SECURITY AGREEMENT among TOWN SPORTS INTERNATIONAL HOLDINGS, INC., TOWN SPORTS INTERNATIONAL, LLC, CERTAIN OTHER SUBSIDIARIES OF TOWN SPORTS INTERNATIONAL HOLDINGS, INC. and DEUTSCHE BANK TRUST COMPANY AMERICAS, as COLLATERAL AGENT Dated as of May 11,...
Exhibit 10.4
among
TOWN SPORTS INTERNATIONAL HOLDINGS, INC.,
TOWN SPORTS INTERNATIONAL, LLC,
CERTAIN OTHER SUBSIDIARIES OF TOWN SPORTS INTERNATIONAL HOLDINGS,
INC.
INC.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as COLLATERAL AGENT
as COLLATERAL AGENT
Dated as of May 11, 2011
TABLE OF CONTENTS
Page | ||||
ARTICLE I SECURITY INTERESTS |
2 | |||
1.1 Grant of Security Interests |
2 | |||
1.2 Power of Attorney |
4 | |||
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS |
4 | |||
2.1 Necessary Filings |
4 | |||
2.2 No Liens |
5 | |||
2.3 Other Financing Statements |
5 | |||
2.4 Chief Executive Office |
5 | |||
2.5 Legal Names; Type of Organization (and Whether a Registered Organization
and/or a Transmitting Utility); Jurisdiction of Organization; Organizational
Identification Numbers; Changes Thereto; etc. |
5 | |||
2.6 Trade Names; Etc. |
6 | |||
ARTICLE III SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS; CHATTEL PAPER
AND CERTAIN OTHER COLLATERAL |
6 | |||
3.1 Maintenance of Records |
6 | |||
3.2 Direction to Account Debtors; Contracting Parties; etc. |
7 | |||
3.3 Collection |
7 | |||
3.4 Instruments |
7 | |||
3.5 Assignors Remain Liable Under Accounts |
7 | |||
3.6 Assignors Remain Liable Under Contracts |
8 | |||
3.7 Designated Deposit Accounts |
8 | |||
3.8 Letter-of-Credit Rights |
8 | |||
3.9 Commercial Tort Claims |
8 | |||
3.10 Chattel Paper |
9 | |||
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES |
9 | |||
4.1 Additional Representations and Warranties |
9 | |||
4.2 Infringements |
9 | |||
4.3 Preservation of Marks and Domain Names |
10 | |||
4.4 Maintenance of Registration |
10 | |||
4.5 Future Registered Marks |
10 | |||
ARTICLE V SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE
SECRETS |
10 | |||
5.1 Additional Representations and Warranties |
10 |
Page | ||||
5.2 Infringements |
11 | |||
5.3 Maintenance of Patents or Copyrights |
11 | |||
5.4 Prosecution of Patent or Copyright Applications |
11 | |||
5.5 Other Patents and Copyrights |
11 | |||
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL |
11 | |||
6.1 Protection of Collateral Agent’s Security |
11 | |||
6.2 Additional Information |
12 | |||
6.3 Further Actions |
12 | |||
6.4 Financing Statements |
12 | |||
ARTICLE VII REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT |
12 | |||
7.1 Remedies; Obtaining the Collateral Upon Default |
12 | |||
7.2 Remedies; Disposition of the Collateral |
14 | |||
7.3 Waiver of Claims |
15 | |||
7.4 Application of Proceeds |
16 | |||
7.5 Remedies Cumulative |
18 | |||
7.6 Discontinuance of Proceedings |
18 | |||
ARTICLE VIII INDEMNITY |
19 | |||
8.1 Indemnity |
19 | |||
8.2 Indemnity Obligations Secured by Collateral; Survival |
20 | |||
ARTICLE IX DEFINITIONS |
20 | |||
ARTICLE X MISCELLANEOUS |
27 | |||
10.1 Notices |
27 | |||
10.2 Waiver; Amendment |
27 | |||
10.3 Obligations Absolute |
28 | |||
10.4 Successors and Assigns |
28 | |||
10.5 Headings Descriptive |
29 | |||
10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL |
29 | |||
10.7 Assignor’s Duties |
30 | |||
10.8 Termination; Release |
30 | |||
10.9 Counterparts |
31 | |||
10.10 Severability |
31 | |||
10.11 The Collateral Agent and the other Secured Creditors |
31 | |||
10.12 Additional Assignors |
31 |
ANNEX A
|
Schedule of Chief Executive Offices Address(es) of Chief Executive Office | |
ANNEX B ANNEX C |
Schedule of Legal Names, Type of Organization (and Whether a Registered Organization and/or a
Transmitting Utility), Jurisdiction of Organization and Organizational Identification Numbers
Schedule of Trade and Fictitious Names |
ANNEX D
|
Schedule of Commercial Tort Claims | |
ANNEX E
|
Schedule of Marks and Applications; Internet Domain Name Registrations | |
ANNEX F
|
Schedule of Patents | |
ANNEX G
|
Schedule of Copyrights | |
ANNEX H
|
Grant of Security Interest in United States Trademarks | |
ANNEX I
|
Grant of Security Interest in United States Patents | |
ANNEX J
|
Grant of Security Interest in United States Copyrights |
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SECURITY AGREEMENT, dated as of May 11, 2011, made by each of the undersigned assignors (each,
an “Assignor” and, together with any other entity that becomes an assignor hereunder
pursuant to Section 10.12 hereof, the “Assignors”) in favor of Deutsche Bank Trust
Company Americas, as collateral agent (together with any successor collateral agent, the
“Collateral Agent”), for the benefit of the Secured Creditors (as defined below). Certain
capitalized terms as used herein are defined in Article IX hereof. Except as otherwise
defined herein, all other capitalized terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Town Sports International Holdings, LLC (“Holdings”), Town Sports
International, LLC (the “Borrower”), the lenders from time to time party thereto (the
“Lenders”) and Deutsche Bank Trust Company Americas, as administrative agent (together with
any successor administrative agent, the “Administrative Agent”), have entered into a Credit
Agreement, dated as of May 11, 2011 (as amended, modified, restated, extended, restructured and/or
supplemented from time to time, together with any agreement refinancing in full the Indebtedness
under such agreement or successor agreements to the extent such agreement provides that it is to be
the “Credit Agreement” hereunder, the “Credit Agreement”), providing for the making of
Loans to, and the issuance of, and participation in, Letters of Credit for the account of, the
Borrower, all as contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent
and the Collateral Agent are herein called the “Lender Creditors”);
WHEREAS, the Borrower and/or one or more of its Subsidiaries may at any time and from time to
time enter into one or more Interest Rate Protection Agreements and/or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or affiliate, even if the
respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason,
together with such Lender’s or affiliate’s successors and assigns, if any, collectively, the
“Other Creditors” and, together with the Lender Creditors, the “Secured
Creditors”);
WHEREAS, pursuant to the Credit Agreement Party Guaranty, each Credit Agreement Party has
guaranteed to the Guaranteed Creditors the payment when due of all Guaranteed Obligations as
described (and defined) therein;
WHEREAS, pursuant to the Subsidiaries Guaranty, each Assignor (other than Holdings and the
Borrower) has jointly and severally guaranteed the payment and performance when due of all
Guaranteed Obligations as described (and defined) therein;
WHEREAS, it is a condition precedent to the making of Loans to the Borrower, and the issuance
of, and participation in, Letters of Credit for the account of the Borrower under the Credit
Agreement and to the Other Creditors entering into Interest Rate Protection Agreements and Other
Hedging Agreements that each Assignor shall have executed and delivered to the Collateral Agent
this Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence of Loans by the Borrower and
the issuance of, and participation in, Letters of Credit for the account of the Borrower under the
Credit Agreement and the entering into by the Borrower and/or one or more of its Subsidiaries of
Interest Rate Protection Agreements or Other Hedging Agreements and, accordingly, desires to
execute this Agreement in order to satisfy the condition described in the preceding recital and to
induce the Lenders to make Loans to the Borrower and issue, and/or participate in, Letters of
Credit for the account of the Borrower and the Other Creditors to enter into Interest Rate
Protection Agreements or Other Hedging Agreements with the Borrower and/or one or more of its
Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each Assignor hereby makes
the following representations and warranties to the Collateral Agent for the benefit of the Secured
Creditors and hereby covenants and agrees with the Collateral Agent for the benefit of the Secured
Creditors as follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. (a) As security for the prompt and complete payment
and performance when due of all of its Obligations, each Assignor does hereby assign and transfer
unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, in each case
for the benefit of the Secured Creditors, a continuing security interest in all of the right, title
and interest of such Assignor in, to and under all of the following personal property and fixtures
(and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in
each case whether now existing or hereafter from time to time acquired:
(i) | each and every Account; | ||
(ii) | all cash; | ||
(iii) | the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; | ||
(iv) | all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper); | ||
(v) | all Commercial Tort Claims (including all Commercial Tort Claims described in Annex D hereto); | ||
(vi) | all Domain Names, Trade Secrets, and other proprietary information, including financial data, personal information, customer lists, supplier lists, business plans, and data collections; | ||
(vii) | all Contracts, together with all Contract Rights arising thereunder; |
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(viii) | all Copyrights; | ||
(ix) | all Equipment; | ||
(x) | all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing; | ||
(xi) | all Documents; | ||
(xii) | all General Intangibles; | ||
(xiii) | all Goods; | ||
(xiv) | all Instruments; | ||
(xv) | all Inventory; | ||
(xvi) | all Investment Property and Securities Accounts; | ||
(xvii) | all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing); | ||
(xviii) | all Marks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same; | ||
(xix) | all Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same; | ||
(xx) | all Permits; | ||
(xxi) | all Software and all recorded data of any kind or nature, and any media on which the foregoing is recorded; | ||
(xxii) | all Supporting Obligations; and | ||
(xxiii) | all Proceeds and products of any and all of the foregoing (all of the above, including this clause (xxiii), the “Collateral”); |
provided that no Assignor shall be required to grant a security interest hereunder in (and
the term “Collateral” shall not include) any Excluded Collateral (so long as same remains
“Excluded Collateral” in accordance with the definition thereof).
3
(b) The security interest of the Collateral Agent under this Agreement extends to all
Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights,
at any time during the term of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Assignors shall
not be required to take any actions to perfect the Collateral Agent’s security interest hereunder
in motor vehicles, Letter-of-Credit Rights, cash, Deposit Accounts and Securities Accounts, in each
case except to the extent that a security interest in such types of Collateral can be perfected by
(i) the filings of a UCC-1 (or similar) financing statement under the applicable UCC, (ii) in the
case of Designated Deposit Accounts, by the execution and delivery of a Deposit Account Control
Agreement in accordance with Section 9.18 of the Credit Agreement and (iii) in the case of Letter
of Credit Rights, by taking the respective actions described in Section 3.8 hereof (and the
representations, warranties and covenants contained in this Agreement with respect to a perfected
security interest in such Collateral shall be qualified to the extent provided in this Section
1.1(c)).
(d) Notwithstanding anything to the contrary contained in this Agreement, no security interest
is assigned, transferred, pledged or granted in any “intent-to-use” application for registration of
a Xxxx filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing with
respect thereto of a verified “Statement of Use” pursuant to Section 1(d) of the Xxxxxx Act or an
“Amendment to Allege Use” pursuant to Section 1(c) of the Xxxxxx Act, to the extent that, and
during the period in which, the assignment, transfer, pledge or grant of a security interest in
such intent-to-use application would impair the validity or enforceability of any registration that
issues from that intent-to-use application under applicable federal law.
1.2 Power of Attorney. Each Assignor hereby constitutes and appoints the Collateral
Agent its true and lawful attorney, irrevocably, with full power after the occurrence of and during
the continuance of an Event of Default (in the name of such Assignor or otherwise) to act, require,
demand, receive, compound and give acquittance for any and all moneys and claims for moneys due or
to become due to such Assignor under or arising out of the Collateral, to endorse any checks or
other instruments or orders in connection therewith and to file any claims or take any action or
institute any proceedings which the Collateral Agent may deem to be necessary or advisable to
protect the interests of the Secured Creditors, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations, warranties and covenants
shall survive execution and delivery of this Agreement, as follows:
2.1 Necessary Filings. (i) All filings, registrations, recordings and other actions
necessary or appropriate to create, preserve and perfect the security interest granted by such
Assignor to the Collateral Agent hereby in respect of the Collateral have been accomplished (or
will be accomplished within the time periods set forth in the first sentence of Section 8.11(a) of
the Credit Agreement) and (ii) the security interest granted to the Collateral Agent pursuant to
4
this Agreement in and to the Collateral creates (or upon such filings will create) a valid
and, together with all such filings, registrations, recordings and other actions, a perfected
security interest therein prior to the rights of all other Persons therein and subject to no other
Liens (other than Permitted Liens) and is entitled to all the rights, priorities and benefits
afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfected
security interests, in each case to the extent that the Collateral consists of the type of property
in which a security interest may be perfected and is required to be perfected hereunder (x) by
possession or control (within the meaning of the UCC as in effect on the date hereof in the State
of New York), (y) by filing a financing statement under the UCC as enacted in any relevant
jurisdiction or (z) by a filing of a Grant of Security Interest in the respective form attached
hereto in the United States Patent and Trademark Office or in the United States Copyright Office.
2.2 No Liens. Such Assignor is, and as to all Collateral acquired by it from time to
time after the date hereof such Assignor will be, the owner or holder of all Collateral free from
any Lien (other than Permitted Liens), and such Assignor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest therein adverse to
the Collateral Agent.
2.3 Other Financing Statements. As of the date hereof, there is no financing
statement (or similar statement or instrument of registration under the law of any jurisdiction)
covering or purporting to cover any interest of any kind in the Collateral (other than financing
statements filed in respect of Permitted Liens), and so long as the Termination Date has not
occurred, such Assignor will not execute or authorize to be filed in any public office any
financing statement (or similar statement or instrument of registration under the law of any
jurisdiction) or statements relating to the Collateral, except financing statements filed or to be
filed in respect of and covering the security interests granted hereby by such Assignor or in
connection with Permitted Liens.
2.4 Chief Executive Office. The chief executive office of such Assignor is, on the
date of this Agreement, located at the address indicated on Annex A hereto for such
Assignor. During the period of the four calendar months preceding the date of this Agreement, the
chief executive office of such Assignor has not been located at any address other than that
indicated on Annex A in accordance with the immediately preceding sentence, in each case
unless each such other address is also indicated on Annex A hereto for such Assignor.
2.5 Legal Names; Type of Organization (and Whether a Registered Organization and/or a
Transmitting Utility); Jurisdiction of Organization; Organizational Identification Numbers; Changes
Thereto; etc. As of the date hereof, the exact legal name of each Assignor, the type of
organization of such Assignor, whether or not such Assignor is a Registered Organization, the
jurisdiction of organization of such Assignor, the organizational identification number (if any) of
such Assignor, and whether or not such Assignor is a Transmitting Utility, is listed on Annex
B hereto for such Assignor. Such Assignor shall not change its legal name, its type of
organization, its status as a Registered Organization (in the case of a Registered Organization),
its status as a Transmitting Utility or as a Person which is not a Transmitting Utility, as the
case may be, its jurisdiction of organization, or its organizational identification number (if any)
from that listed on Annex B hereto, except that any such changes shall be permitted (so
long as not in violation of the applicable requirements of the Credit Documents and
5
so long as same do not involve (x) a Registered Organization ceasing to constitute same or (y)
such Assignor changing its jurisdiction of organization from the United States or a State thereof
to a jurisdiction of organization outside the United States or a State thereof) if (i) it shall
have given to the Collateral Agent not more than 10 days’ written notice (or such shorter period as
shall be acceptable to the Collateral Agent) after each change to the information listed on
Annex B (as adjusted for any subsequent changes thereto previously made in accordance with
this sentence), together with a supplement to Annex B which shall correct all information
contained therein for such Assignor, and (ii) in connection with such respective change or changes,
it shall have taken all action reasonably requested by the Collateral Agent to maintain the
security interests of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. In addition, to the extent that such Assignor
does not have an organizational identification number on the date hereof and later obtains one,
such Assignor shall promptly thereafter notify the Collateral Agent of such organizational
identification number and shall take all actions reasonably satisfactory to the Collateral Agent to
the extent necessary to maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby fully perfected and in full force and effect.
2.6 Trade Names; Etc. Such Assignor does not have nor does it operate in any
jurisdiction under, nor in the preceding five years has it had or operated in any jurisdiction
under, any trade names, fictitious names or other names except its legal name as specified in
Annex B and such other trade or fictitious names as are listed on Annex C hereto
for such Assignor. Such Assignor may assume or operate in any jurisdiction under any new trade,
fictitious or other name if (i) it shall have given to the Collateral Agent not more than 10 days’
written notice (or such shorter period as shall be acceptable to the Collateral Agent) after any
such assumption or operation, clearly describing such new name and the jurisdictions in which such
new name will be used and providing such other information in connection therewith as the
Collateral Agent may reasonably request and (ii) with respect to such new name, it shall have taken
all action reasonably requested by the Collateral Agent to maintain the security interest of the
Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect.
ARTICLE III
SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1 Maintenance of Records. Upon the occurrence and during the continuance of an
Event of Default and at the request of the Collateral Agent, such Assignor shall, at its own cost
and expense, deliver all tangible evidence of its Accounts and Contract Rights (including, without
limitation, all documents evidencing the Accounts and all Contracts) and such books and records to
the Collateral Agent or to its representatives (copies of which evidence and books and records may
be retained by such Assignor). Upon the occurrence and during the continuance of an Event of
Default and if the Collateral Agent so directs, such Assignor shall legend, in form and manner
satisfactory to the Collateral Agent, the Accounts and the Contracts, as well as books, records and
documents (if any) of such Assignor evidencing or pertaining to such Accounts and Contracts with an
appropriate reference to the fact that such Accounts and
6
Contracts have been assigned to the Collateral Agent and that the Collateral Agent has a
security interest therein.
3.2 Direction to Account Debtors; Contracting Parties; etc. Upon the occurrence and
during the continuance of an Event of Default, if the Collateral Agent so directs any Assignor,
such Assignor agrees (x) to cause all payments on account of the Accounts and Contracts to be made
directly to the Cash Collateral Account, (y) that the Collateral Agent may, at its option, directly
notify the obligors with respect to any Accounts and/or under any Contracts to make payments with
respect thereto as provided in the preceding clause (x), and (z) that the Collateral Agent may
enforce collection of any such Accounts and Contracts and may adjust, settle or compromise the
amount of payment thereof, in the same manner and to the same extent as such Assignor. Without
notice to or assent by any Assignor, the Collateral Agent may, upon the occurrence and during the
continuance of an Event of Default, apply any or all amounts then in, or thereafter deposited in,
the Cash Collateral Account toward the payment of the Obligations in the manner provided in
Section 7.4 of this Agreement. The reasonable costs and expenses of collection (including
reasonable attorneys’ fees), whether incurred by an Assignor or the Collateral Agent, shall be
borne by the relevant Assignor. The Collateral Agent shall deliver a copy of each notice referred
to in the preceding clause (y) to the relevant Assignor, provided that (x) the failure by
the Collateral Agent to so notify such Assignor shall not affect the effectiveness of such notice
or the other rights of the Collateral Agent created by this Section 3.2 and (y) no such
notice shall be required if an Event of Default of the type described in Section 11.05 of the
Credit Agreement has occurred and is continuing.
3.3 Collection. Except as otherwise directed by the Collateral Agent after the
occurrence and during the continuation of an Event of Default, any Assignor may allow as
adjustments to amounts owing under its Accounts and Contracts (i) an extension or renewal of the
time or times of payment, or settlement for less than the total unpaid balance, which such Assignor
finds appropriate, and (ii) a refund or credit due as a result of returned or damaged merchandise
or improperly performed services or for other reasons which such Assignor finds appropriate. The
reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) of
collection, whether incurred by an Assignor or the Collateral Agent, shall be borne by the relevant
Assignor.
3.4 Instruments. If any Assignor owns or acquires any Instrument in excess of
$1,000,000 constituting Collateral (other than (x) checks and other payment instruments received
and collected in the ordinary course of business and (y) any Instrument subject to pledge pursuant
to the Pledge Agreement), such Assignor will within 10 Business Days notify the Collateral Agent
thereof, and upon request by the Collateral Agent will promptly deliver such Instrument to the
Collateral Agent appropriately endorsed to the order of the Collateral Agent as further security
hereunder.
3.5 Assignors Remain Liable Under Accounts. Anything herein to the contrary
notwithstanding, the Assignors shall remain liable under each of the Accounts to observe and
perform all of the conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to such Accounts. Neither the Collateral
Agent nor any other Secured Creditor shall have any obligation or liability under any Account (or
any agreement giving rise thereto) by reason of or arising out of this Agreement or
7
the receipt by the Collateral Agent or any other Secured Creditor of any payment relating to
such Account pursuant hereto, nor shall the Collateral Agent or any other Secured Creditor be
obligated in any manner to perform any of the obligations of any Assignor under or pursuant to any
Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by them or as to the sufficiency of any
performance by any party under any Account (or any agreement giving rise thereto), to present or
file any claim, to take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to them or to which they may be entitled at any time or times.
3.6 Assignors Remain Liable Under Contracts. Anything herein to the contrary
notwithstanding, the Assignors shall remain liable under each of the Contracts to observe and
perform all of the conditions and obligations to be observed and performed by them thereunder, all
in accordance with and pursuant to the terms and provisions of each Contract. Neither the
Collateral Agent nor any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the Collateral Agent or
any other Secured Creditor of any payment relating to such Contract pursuant hereto, nor shall the
Collateral Agent or any other Secured Creditor be obligated in any manner to perform any of the
obligations of any Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party under any Contract, to
present or file any claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to them or to which they may be entitled at any time or
times.
3.7 Designated Deposit Accounts. With respect to each Designated Deposit Account
maintained by such Assignor from time to time, such Assignor shall comply with the requirements of
Section 9.18 of the Credit Agreement.
3.8 Letter-of-Credit Rights. If any Assignor is at any time a beneficiary under a
letter of credit with a stated amount of $1,000,000 or more, such Assignor shall promptly notify
the Collateral Agent thereof and, at the request of the Collateral Agent, such Assignor shall,
pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use
its commercially reasonable efforts to either (i) arrange for the issuer and any confirmer of such
letter of credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing
under such letter of credit or (ii) arrange for the Collateral Agent to become the transferee
beneficiary of such letter of credit, with the Collateral Agent agreeing, in each case, that the
proceeds of any drawing under the letter of credit are to be applied as provided in this Agreement
after the occurrence and during the continuance of an Event of Default.
3.9 Commercial Tort Claims. All Commercial Tort Claims of, and known to, each
Assignor in existence on the date of this Agreement are described in Annex D hereto (but
only to the extent that the amount (taking the greater of the aggregate claimed damages thereunder
or the reasonably estimated value thereof) of an individual Commercial Tort Claim is $1,000,000 or
more). If any Assignor shall at any time after the date of this Agreement acquire a Commercial
Tort Claim in an amount (taking the greater of the aggregate claimed damages thereunder or the
reasonably estimated value thereof) of $1,000,000 or more, such Assignor shall promptly notify the
Collateral Agent thereof in a writing signed by such Assignor and describing
8
the details thereof and shall grant to the Collateral Agent in such writing a security
interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such
writing to be in form and substance reasonably satisfactory to the Collateral Agent.
3.10 Chattel Paper. Upon the request of the Collateral Agent made at any time or from
time to time, each Assignor shall promptly furnish to the Collateral Agent a list of all Electronic
Chattel Paper in each case in respect of goods with a value greater than $1,000,000 held or owned
by such Assignor. Furthermore, if requested by the Collateral Agent, each Assignor shall promptly
take all actions which are reasonably practicable so that the Collateral Agent has “control” of all
Electronic Chattel Paper in accordance with the requirements of Section 9-105 of the UCC. Each
Assignor will promptly (and in any event within 10 days) following any request by the Collateral
Agent, deliver an original of all of its Tangible Chattel Paper in each case in respect of goods
with a value greater than $1,000,000 to the Collateral Agent.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES
4.1 Additional Representations and Warranties. Each Assignor represents and warrants
that it is the true and lawful owner of or otherwise has the right to use the registered Marks and
Domain Names listed in Annex E hereto for such Assignor and that said listed Marks and
Domain Names include all (a) United States trademarks and service marks registered in the United
States Patent and Trademark Office, (b) applications to register United States trademarks and
service marks in the United States Patent and Trademark Office, and (c) Internet domain names, in
each case of (a)-(c), that such Assignor owns in connection with its business as of the date
hereof. Each Assignor represents and warrants that it owns, is licensed to use or otherwise has
the right to use, all Marks and Domain Names that are necessary for the conduct of its business as
currently conducted. Each Assignor further warrants that it has no knowledge of any written or
other material third party claim received by it that any aspect of such Assignor’s present business
operations infringe or will infringe any trademark, service xxxx or trade name of any other Person
which, either individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. Each Assignor represents and warrants that the registrations listed in Annex
E are subsisting and have not been canceled and, to such Assignor’s knowledge, are valid, and
such Assignor is not aware, except as would not have a Material Adverse Effect, of any third-party
claim that any of said registrations is invalid or unenforceable. Each Assignor hereby grants to
the Collateral Agent an absolute power of attorney to sign, solely upon the occurrence and during
the continuance of an Event of Default, any document which may be required by the United States
Patent and Trademark Office or similar registrar in order to effect, in accordance with Section 7.1
hereof, an absolute assignment of all right, title and interest in each Xxxx and/or Domain Name,
and record the same.
4.2 Infringements. Except as each Assignor otherwise determines in its reasonable
business judgment, each Assignor agrees to prosecute diligently in accordance with reasonable
business practices any Person infringing any Xxxx or Domain Name in any manner that could
reasonably be expected to have a Material Adverse Effect.
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4.3 Preservation of Marks and Domain Names. Except as otherwise permitted by the
Credit Agreement, each Assignor agrees to use its United States federally registered Marks that are
material to such Assignor’s business in interstate commerce during the time in which this Agreement
is in effect and to take all such other actions as are reasonably necessary to preserve such Marks
as trademarks or service marks under the laws of the United States (in each case, other than as
such Assignor determines that the preservation or continued effectiveness thereof is no longer
desirable in the conduct of the business).
4.4 Maintenance of Registration. Except as otherwise permitted by the Credit
Agreement, each Assignor shall, at its own expense, diligently process all documents reasonably
required to maintain all Xxxx and/or Domain Name registrations, including but not limited to
affidavits of use and applications for renewals of registration in the United States Patent and
Trademark Office for all of its material registered Marks, and shall pay all fees and disbursements
in connection therewith and shall not abandon such filing of affidavit of use or any such
application of renewal prior to the exhaustion of all administrative and judicial remedies without
prior written consent of the Collateral Agent, which consent shall not be unreasonably withheld (in
each case, other than as such Assignor determines that the preservation or continued effectiveness
thereof is no longer desirable in the conduct of the business).
4.5 Future Registered Marks. If any Xxxx registration is issued hereafter to any
Assignor as a result of any application now or hereafter pending before the United States Patent
and Trademark Office, at the end of the calendar quarter in which such certificate or similar
indicia of ownership was received, such Assignor shall deliver to the Collateral Agent a copy of
such registration certificate or similar indicia of ownership, and a grant of a security interest
in such Xxxx, to the Collateral Agent and at the expense of such Assignor, confirming the grant of
a security interest in such Xxxx to the Collateral Agent hereunder, the form of such security to be
substantially in the form of Annex H hereto or in such other form as may be reasonably
satisfactory to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1 Additional Representations and Warranties. Each Assignor represents and warrants
that it is the true and lawful owner of (i) all rights in (x) the Patents listed in Annex F
hereto for such Assignor and that said Patents include all the United States patents and
applications for United States patents that such Assignor owns as of the date hereof and (y) the
Copyrights listed in Annex G hereto for such Assignor and that said Copyrights constitute
all the United States copyrights registered with the United States Copyright Office and
applications to register United States copyrights that such Assignor owns as of the date hereof and
(ii) all rights in, or otherwise has the right to use, all Trade Secrets and other proprietary
information necessary to operate the business of such Assignor as currently operated. Each
Assignor further warrants that it has no knowledge of any written or other material third party
claim received by it that any aspect of such Assignor’s present business operations infringes or
will infringe any patent and/or copyright of any other Person, or that such Assignor has
misappropriated any trade secret or other proprietary information, in each case which, either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Each Assignor
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hereby grants to the Collateral Agent an absolute power of attorney to sign, solely upon the
occurrence and during the continuance of any Event of Default, any document which may be required
by the United States Patent and Trademark Office or the United States Copyright Office in order to
effect, in accordance with Section 7.1 hereof, an absolute assignment of all right, title and
interest in each Patent or Copyright, and to record the same.
5.2 Infringements. Except as each Assignor otherwise determines in its reasonable
business judgment, each Assignor agrees to diligently prosecute any Person infringing any Patent or
Copyright or any Person misappropriating any Trade Secret, for which such Assignor has a right of
action for misappropriation, in each case to the extent that such infringement or misappropriation,
either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.3 Maintenance of Patents or Copyrights. Except as otherwise permitted by the Credit
Agreement, at its own expense, each Assignor shall make timely payment of all post-issuance fees
required to maintain in force its rights under each issued Patent or registered Copyright (other
than as such Assignor determines that the preservation or continued effectiveness thereof is no
longer desirable in the conduct of the business).
5.4 Prosecution of Patent or Copyright Applications. At its own expense, each
Assignor shall diligently prosecute all material applications for (i) United States Patents listed
in Annex H hereto and (ii) United States Copyrights listed on Annex I hereto, in
each case for such Assignor and shall not abandon any such application prior to exhaustion of all
administrative and judicial remedies (in each case, other than as such Assignor determines that the
preservation or continued effectiveness thereof is no longer desirable in the conduct of the
business).
5.5 Other Patents and Copyrights. At the end of each calendar quarter following the
acquisition or issuance of a United States Patent, registration of a Copyright, or acquisition of a
registered Copyright, or of filing of an application for a United States Patent or Copyright, the
relevant Assignor shall deliver to the Collateral Agent a copy of said Copyright or Patent, or
certificate or registration of, or application therefor, as the case may be, with a grant of a
security interest as to such Patent or Copyright, as the case may be, to the Collateral Agent and
at the expense of such Assignor, confirming the grant of a security interest, the form of such
grant of a security interest to be substantially in the form of Annex I or J
hereto, as appropriate, or in such other form as may be reasonably satisfactory to the Collateral
Agent.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1 Protection of Collateral Agent’s Security. Except as otherwise permitted by the
Credit Documents, each Assignor will do nothing to impair the rights of the Collateral Agent in the
Collateral. Each Assignor will at all times keep its Inventory and Equipment insured in favor of
the Collateral Agent, at such Assignor’s own expense to the extent and in the manner required by
the Credit Documents. Except to the extent otherwise permitted to be retained by such Assignor or
applied by such Assignor pursuant to the terms of the Credit Documents, during the existence of an
Event of Default the Collateral Agent shall, at the time any proceeds
11
of such insurance are distributed to the Secured Creditors, apply such proceeds in accordance
with Section 7.4 hereof. Each Assignor assumes all liability and responsibility in
connection with the Collateral acquired by it and the liability of such Assignor to pay the
Obligations shall in no way be affected or diminished by reason of the fact that such Collateral
may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Assignor.
6.2 Additional Information. Each Assignor will, at its own expense, from time to time
upon the reasonable request of the Collateral Agent, promptly (and in any event within 10 Business
Days after its receipt of the respective request) furnish to the Collateral Agent such information
with respect to the Collateral (including with reasonable specificity and in summary form, the
identity of the Collateral or such components thereof as may have been reasonably requested by the
Collateral Agent, the value and location of such Collateral, etc.) as may be reasonably requested
by the Collateral Agent. Without limiting the forgoing, each Assignor agrees that it shall
promptly (and in any event within 10 Business Days after its receipt of the respective request)
furnish to the Collateral Agent such updated Annexes hereto as may from time to time be reasonably
requested by the Collateral Agent.
6.3 Further Actions. Each Assignor will, at its own expense and upon the reasonable
request of the Collateral Agent, take such further steps relating to the Collateral, which the
Collateral Agent deems reasonably appropriate or advisable to perfect, preserve or protect its
security interest in the Collateral.
6.4 Financing Statements. Each Assignor agrees to authorize and deliver to the
Collateral Agent such financing statements, in form reasonably acceptable to the Collateral Agent,
as the Collateral Agent may from time to time reasonably request or as are reasonably necessary or
desirable in the opinion of the Collateral Agent to establish and maintain a valid, enforceable,
perfected security interest in the Collateral as provided herein and the other rights and security
contemplated hereby. Each Assignor will pay any applicable filing fees, recordation taxes and
related expenses relating to its Collateral. Each Assignor hereby authorizes the Collateral Agent
to file any such financing statements without the signature of such Assignor where permitted by law
(and such authorization includes describing the Collateral as “all assets” of such Assignor).
ARTICLE VII
REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
7.1 Remedies; Obtaining the Collateral Upon Default. Each Assignor agrees that, if
any Event of Default shall have occurred and be continuing, then and in every such case, the
Collateral Agent, in addition to any rights now or hereafter existing under applicable law and
under the other provisions of this Agreement, shall have all rights as a secured creditor under any
UCC, and such additional rights and remedies to which a secured creditor is entitled under the laws
in effect in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take possession of the
Collateral or any part thereof, from such Assignor or any other Person who then has
possession of any part thereof with or without notice or process of law, and for that
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purpose may enter upon such Assignor’s premises where any of the Collateral is located
and remove the same and use in connection with such removal any and all services, supplies,
aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument or other obligation
(including, without limitation, the Accounts and the Contracts) constituting the Collateral
to make any payment required by the terms of such agreement, instrument or other obligation
directly to the Collateral Agent and may exercise any and all remedies of such Assignor in
respect of such Collateral;
(iii) instruct all depository banks and other depository institutions which have
entered into a Deposit Account Control Agreement with the Collateral Agent to transfer all
monies, securities and instruments held by such depositary bank or other depository
institution to the Cash Collateral Account in accordance with the terms of the respective
Deposit Account Control Agreement (including by issuing a “Notice of Exclusive Control” in
accordance with the terms thereof);
(iv) withdraw all monies, securities and instruments in the Cash Collateral Account
and/or in any other Deposit Account maintained with the Collateral Agent or any other
Secured Creditor (or any affiliate thereof) for application to the Obligations in accordance
with Section 7.4 hereof;
(v) sell, assign or otherwise liquidate any or all of the Collateral or any part
thereof in accordance with Section 7.2 hereof, or direct such Assignor to sell,
assign or otherwise liquidate any or all of the Collateral or any part thereof, and, in each
case, take possession of the proceeds of any such sale or liquidation;
(vi) take possession of the Collateral or any part thereof, by directing such Assignor
in writing to deliver the same to the Collateral Agent at any reasonable place or places
designated by the Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places so designated
by the Collateral Agent and there delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the Collateral Agent at such
place or places pending further action by the Collateral Agent as provided in
Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept, provide such security and
maintenance services as shall be reasonably necessary to protect the same and to
preserve and maintain it in good condition;
(vii) license or sublicense, whether on an exclusive or nonexclusive basis, any Marks,
Domain Names, Patents or Copyrights included in the Collateral for such term and on such
conditions and in such manner as the Collateral Agent shall in its sole judgment determine;
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(viii) apply any monies constituting Collateral or proceeds thereof in accordance with
the provisions of Section 7.4;
(ix) take any other action as specified in clauses (1) through (5), inclusive, of
Section 9-607 of the UCC;
(x) declare the entire right, title and interest of any Assignor in and to any
Patents, Copyrights, Domain Names, and Marks included in the Collateral, in which event
such rights, title and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, and the Collateral Agent shall be entitled to exercise
the power of attorney referred to in Sections 4.1 and 5.1 to execute, cause to be
acknowledged and notarized and record said absolute assignment with the applicable agency
or registrar;
(xi) use or practice any Patents, Copyrights, Trade Secrets or other proprietary
information, Marks, and Domain Names included in the Collateral and the goodwill of any
Assignor’s business symbolized by such Marks or Domain Names and the right to carry on the
business and use the assets of such Assignor in connection with which the Marks or Domain
Names have been used; and
(xii) direct any Assignor to refrain, in which event such Assignor shall refrain, from
using or practicing any Patents, Copyrights, Trade Secrets or other proprietary
information, Marks, and Domain Names included in the Collateral in any manner whatsoever,
directly or indirectly, and such Assignor shall execute such further documents that the
Collateral Agent may reasonably request to further confirm this and to transfer ownership
and any registrations and pending applications to the Collateral Agent for the benefit of
the Secured Creditors;
it being understood that each Assignor’s obligation so to deliver the Collateral is of the essence
of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction,
the Collateral Agent shall be entitled to a decree requiring specific performance by such Assignor
of said obligation. By accepting the benefits of this Agreement and each other Security Document,
the Secured Creditors expressly acknowledge and agree that this Agreement and each other Security
Document may be enforced only by the action of the Collateral Agent acting upon the instructions of
the Required Secured Creditors and that no other Secured Creditor shall have any right individually
to seek to enforce or to enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may be exercised by the
Collateral Agent or the holders of at least a majority of the outstanding Other Obligations, as the
case may be, for the benefit of the Secured Creditors upon the terms of this Agreement and the
other Security Documents.
7.2 Remedies; Disposition of the Collateral. If any Event of Default shall have
occurred and be continuing, then any Collateral repossessed by the Collateral Agent under or
pursuant to Section 7.1 hereof and any other Collateral whether or not so repossessed by
the Collateral Agent, may be sold, assigned, leased or otherwise disposed of under one or more
contracts or as an entirety, and without the necessity of gathering at the place of sale the
property to
14
be sold, and in general in such manner, at such time or times, at such place or places and on
such terms as the Collateral Agent may, in compliance with any mandatory requirements of applicable
law, determine to be commercially reasonable. Any of the Collateral may be sold, leased or
otherwise disposed of, in the condition in which the same existed when taken by the Collateral
Agent or after any overhaul or repair at the expense of the relevant Assignor which the Collateral
Agent shall determine to be commercially reasonable. Any disposition which shall be a private sale
or other private proceedings permitted by such requirements shall be made upon not less than 10
days’ prior written notice to the relevant Assignor specifying the time at which such disposition
is to be made and the intended sale price or other consideration therefor, and shall be subject,
for the 10 days after the giving of such notice, to the right of the relevant Assignor or any
nominee of such Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration so specified. Any
such sale, lease or other disposition may be effected by means of a public disposition or private
disposition, effected in accordance with the applicable requirements (in each case if and to the
extent applicable) of Sections 9-610 through 9-613 of the UCC and/or such other mandatory
requirements of applicable law as may apply to the respective disposition. The Collateral Agent
may, without notice or publication, adjourn any public or private disposition or cause the same to
be adjourned from time to time by announcement at the time and place fixed for the disposition, and
such disposition may be made at any time or place to which the disposition may be so adjourned. To
the extent permitted by any such requirement of law, the Collateral Agent may bid for and become
the purchaser (and may pay all or any portion of the purchase price by crediting Obligations
against the purchase price) of the Collateral or any item thereof, offered for sale in accordance
with this Section 7.2 without accountability to the relevant Assignor. If, under
applicable law, the Collateral Agent shall be permitted to make disposition of the Collateral
within a period of time which does not permit the giving of notice to the relevant Assignor as
hereinabove specified, the Collateral Agent need give such Assignor only such notice of disposition
as shall be reasonably practicable in view of such applicable law. Each Assignor agrees to do or
cause to be done all such other acts and things as may be reasonably necessary to make such
disposition or dispositions of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Assignor’s expense.
7.3 Waiver of Claims. Except as otherwise provided in this Agreement, EACH ASSIGNOR
HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION
WITH THE COLLATERAL AGENT’S TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT
REMEDY OR REMEDIES, and each Assignor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession or any such disposition except
any damages which are the direct result of the Collateral Agent’s gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a final and
non-appealable decision);
15
(ii) except as otherwise expressly provided in this Agreement, all other requirements
as to the time, place and terms of sale or other requirements with respect to the
enforcement of the Collateral Agent’s rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay, extension or moratorium
now or hereafter in force under any applicable law in order to prevent or delay the
enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof,
and each Assignor, for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral
shall operate to divest all right, title, interest, claim and demand, either at law or in equity,
of the relevant Assignor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from, through and under such
Assignor.
7.4 Application of Proceeds. (a) All moneys collected by the Collateral Agent upon
any sale or other disposition of the Collateral (and, to the extent the Pledge Agreement or any
other Security Document requires proceeds of collateral under such other Security Document to be
applied in accordance with the provisions of this Agreement, all monies collected by the Pledgee or
collateral agent under such other Security Document upon any sale or other disposition of the
collateral under any such Security Document), together with all other moneys received by the
Collateral Agent hereunder and under each other Security Document, shall be applied as follows:
(i) first, to the payment of all amounts owing the Collateral Agent of the type
described in clauses (iii), (iv) and (v) of the definition of “Obligations”;
(ii) second, to the extent proceeds remain after the application pursuant to
preceding clause (i), an amount equal to the outstanding Primary Obligations shall be paid
to the Secured Creditors as provided in Section 7.4(e) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Primary Obligations or, if the
proceeds are insufficient to pay in full all such Primary Obligations, its Pro Rata Share of
such amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to
preceding clauses (i) and (ii), an amount equal to the outstanding Secondary Obligations
shall be paid to the Secured Creditors as provided in Section 7.4(e) hereof, with
each Secured Creditor receiving an amount equal to its outstanding Secondary Obligations or,
if the proceeds are insufficient to pay in full all such Secondary Obligations, its Pro Rata
Share of such amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to
preceding clauses (i) through (iii), inclusive, and following the termination of this
Agreement pursuant to Section 10.8(a) hereof, to the relevant Assignor or to
whomever may be lawfully entitled to receive such surplus.
16
(b) For purposes of this Agreement, (x) “Pro Rata Share” shall mean, when calculating
a Secured Creditor’s portion of any distribution or amount, that amount (expressed as a percentage)
equal to a fraction the numerator of which is the then unpaid amount of such Secured Creditor’s
Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations, as the case may
be, (y) “Primary Obligations” shall mean (i) in the case of the Credit Document
Obligations, all principal of, premium, fees and interest on, all Loans, all Unpaid Drawings, all
contingent reimbursement obligations equal to the Stated Amount of all outstanding Letters of
Credit and all Fees, and (ii) in the case of the Other Obligations, all amounts due under each
Interest Rate Protection Agreement and each Other Hedging Agreement with an Other Creditor (other
than indemnities, fees (including, without limitation, attorneys’ fees) and similar obligations and
liabilities) and (z) “Secondary Obligations” shall mean all Obligations other than Primary
Obligations.
(c) When payments to Secured Creditors are based upon their respective Pro Rata Shares, the
amounts received by such Secured Creditors hereunder shall be applied (for purposes of making
determinations under this Section 7.4 only) (i) first, to their Primary Obligations and
(ii) second, to their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured Creditor, such excess
amount shall instead be distributed in respect of the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of the other Secured Creditors, with each Secured Creditor whose
Primary Obligations or Secondary Obligations, as the case may be, have not been paid in full to
receive an amount equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of such Secured
Creditor entitled to distribution and the denominator of which is the unpaid Primary Obligations or
Secondary Obligations, as the case may be, of all Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the benefits hereof and of the other
Security Documents, agrees and acknowledges that if the Lender Creditors are to receive a
distribution on account of undrawn amounts with respect to Letters of Credit issued under the
Credit Agreement (which shall only occur after all outstanding Revolving Loans and Swingline Loans
under the Credit Agreement and Unpaid Drawings have been paid in full), such amounts shall be paid
to the Administrative Agent under the Credit Agreement and held by it, for the equal and ratable
benefit of the Lender Creditors, as cash security for the repayment of Obligations owing to the
Lender Creditors as such. If any amounts are held as cash security pursuant to the immediately
preceding sentence, then upon the termination of all outstanding Letters of Credit under the Credit
Agreement, and after the application of all such cash security to the repayment of all Obligations
owing to the Lender Creditors after giving effect to the termination of all such Letters of Credit,
if there remains any excess cash, such excess cash shall be returned by the Administrative Agent to
the Collateral Agent for distribution in accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if to the Lender Creditors,
to the Administrative Agent for the account of the Lender Creditors, and (y) if to the Other
Creditors, to the trustee, paying agent or other similar representative (each, a
17
“Representative”) for the Other Creditors or, in the absence of such a Representative,
directly to the Other Creditors.
(f) For purposes of applying payments received in accordance with this Section 7.4,
the Collateral Agent shall be entitled to rely upon (i) the Administrative Agent and (ii) the
Representative or, in the absence of such a Representative, upon the Other Creditors for a
determination (which the Administrative Agent, each Representative and the Secured Creditors agree
(or shall agree) to provide upon request of the Collateral Agent) of the outstanding Obligations
owed to the Lender Creditors or the Other Creditors, as the case may be. Unless it has received
written notice from a Lender Creditor or an Other Creditor to the contrary, the Administrative
Agent and each Representative, in furnishing information pursuant to the preceding sentence, and
the Collateral Agent, in acting hereunder, shall be entitled to assume that no Secondary
Obligations are outstanding. Unless it has written notice from an Other Creditor to the contrary,
the Collateral Agent, in acting hereunder, shall be entitled to assume that no Interest Rate
Protection Agreements or Other Hedging Agreements are in existence.
(g) This Agreement is made with full recourse to each Assignor and pursuant to and upon all
the warranties, representations, covenants and agreements on the part of such Assignor contained
herein, in the Secured Debt Agreements and otherwise in writing in connection herewith or
therewith. It is understood that each Assignor shall remain jointly and severally liable to the
extent of any deficiency between the amount of the proceeds of the Collateral and the aggregate
amount of the Obligations.
7.5 Remedies Cumulative. Each and every right, power and remedy hereby specifically
given to the Collateral Agent shall be in addition to every other right, power and remedy
specifically given to the Collateral Agent under this Agreement, the other Secured Debt Agreements
or now or hereafter existing at law, in equity or by statute and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised from time to time
or simultaneously and as often and in such order as may be deemed expedient by the Collateral
Agent. All such rights, powers and remedies shall be cumulative and the exercise or the beginning
of the exercise of one shall not be deemed a waiver of the right to exercise any other or others.
No delay or omission of the Collateral Agent in the exercise of any such right, power or remedy and
no renewal or extension of any of the Obligations shall impair any such right, power or remedy or
shall be construed to be a waiver of any Default or Event of Default or an acquiescence thereof.
No notice to or demand on any Assignor in any case shall entitle it to any other or further notice
or demand in similar or other circumstances or constitute a waiver of any of the rights of the
Collateral Agent to any other or further action in any circumstances without notice or demand. In
the event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder and
shall be entitled to judgment, then in such suit the Collateral Agent may recover reasonable
expenses, including reasonable attorneys’ fees, and the amounts thereof shall be included in such
judgment.
7.6 Discontinuance of Proceedings. In case the Collateral Agent shall have instituted
any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Collateral Agent, then and in every such case the
relevant Assignor, the Collateral Agent and each holder of any of the Obligations shall
18
be restored to their former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Agreement, and all rights, remedies and powers
of the Collateral Agent shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1 Indemnity. (a) Without limiting the provisions of the other Secured Debt
Agreements, each Assignor jointly and severally agrees to indemnify, reimburse and hold the
Collateral Agent, each other Secured Creditor (in its capacity as such) and their respective
successors, assigns, employees, affiliates, advisors and agents (as to any Indemnitee, its
“Related Parties”) (hereinafter in this Section 8.1 referred to individually as
“Indemnitee,” and collectively as “Indemnitees”) harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments
and any and all costs, expenses or disbursements (including reasonable attorneys’ fees and expenses
(limited, in the case of any Event of Default, to one counsel to the Collateral Agent, one
additional counsel for all Issuing Lenders and Lenders, taken as a whole, one local counsel for the
Collateral Agent and the Lenders, taken as a whole, in each relevant jurisdiction, and, solely in
the case of an actual or perceived conflict of interests, one additional counsel in each relevant
jurisdiction to each group of affected Lenders similarly situated, taken as a whole)) (for the
purposes of this Section 8.1 the foregoing are collectively called “expenses”) of
whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees in
any way relating to or arising out of this Agreement or the enforcement of any of the terms hereof,
or the preservation of any rights hereunder, or in any way relating to or arising out of the
manufacture, ownership, ordering, purchase, delivery, control, acceptance, lease, financing,
possession, operation, condition, sale, return or other disposition, or use of the Collateral
(including, without limitation, latent or other defects, whether or not discoverable), the
violation of the laws of any country, state or other governmental body or unit, any tort
(including, without limitation, claims arising or imposed under the doctrine of strict liability,
or for or on account of injury to or the death of any Person (including any Indemnitee), or
property damage), or contract claim; provided that no Indemnitee shall be indemnified
pursuant to this Section 8.1(a) for losses, damages or liabilities to the extent caused by
the gross negligence or willful misconduct of such Indemnitee or its Related Parties (as determined
by a court of competent jurisdiction in a final and non-appealable decision). Each Assignor agrees
that upon written notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, the relevant Assignor shall
assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best efforts
to promptly notify the relevant Assignor of any such assertion of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each Assignor agrees,
jointly and severally, to pay or reimburse the Collateral Agent for any and all reasonable fees,
costs and expenses of whatever kind or nature incurred in connection with the creation,
preservation or protection of the Collateral Agent’s Liens on, and security interest in, the
Collateral, including, without limitation, all fees and taxes in connection with the recording or
filing of instruments and documents in all applicable public offices, payment or discharge of any
taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the
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Collateral and all other fees, costs and expenses in connection with protecting, maintaining
or preserving the Collateral and the Collateral Agent’s interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising
out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof, each
Assignor agrees, jointly and severally, to pay, indemnify and hold each Indemnitee harmless from
and against any loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur
in consequence of or growing out of any misrepresentation by any Assignor in this Agreement or in
any writing contemplated by or made or delivered pursuant to or in connection with this Agreement.
(d) If and to the extent that the obligations of any Assignor under this Section 8.1
are unenforceable for any reason, such Assignor hereby agrees to make the maximum contribution to
the payment and satisfaction of such obligations which is permissible under applicable law.
8.2 Indemnity Obligations Secured by Collateral; Survival. Any amounts paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement shall constitute Obligations
secured by the Collateral. The indemnity obligations of each Assignor contained in this
Article VIII shall continue in full force and effect notwithstanding the full payment of
all of the other Obligations and notwithstanding the full payment of all the Notes issued, and
Loans made, under the Credit Agreement, the termination of all Letters of Credit issued under the
Credit Agreement, the termination of all Interest Rate Protection Agreements and Other Hedging
Agreements entered into with the Other Creditors and the payment of all other Obligations and
notwithstanding the discharge thereof and the occurrence of the Termination Date.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such definitions shall be
equally applicable to the singular and plural forms of the terms defined.
“Account” shall mean any “account” as such term is defined in the UCC as in effect on
the date hereof in the State of New York, and in any event shall include but shall not be limited
to, all rights to payment of any monetary obligation, whether or not earned by performance, (i) for
property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of, (ii)
for services rendered or to be rendered, (iii) for a secondary obligation incurred or to be
incurred, (iv) for energy provided or to be provided, (v) arising out of the use of a credit or
charge card or information contained on or for use with the card, or (vi) as winnings in a lottery
or other game of chance operated or sponsored by a State, governmental unit of a State, or person
licensed or authorized to operate the game by a State or governmental unit of a State. Without
limiting the foregoing, the term “account” shall include all Health-Care-Insurance Receivables.
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“Administrative Agent” shall have the meaning provided in the recitals of this
Agreement.
“Agreement” shall mean this Security Agreement as the same may be amended, modified,
restated and/or supplemented from time to time in accordance with its terms.
“As-Extracted Collateral” shall mean “as-extracted collateral” as such term is defined
in the UCC as in effect on the date hereof in the State of New York.
“Assignor” shall have the meaning provided in the first paragraph of this Agreement.
“Borrower” shall have the meaning provided in the recitals of this Agreement.
“Cash Collateral Account” shall mean a non-interest bearing cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent for the benefit of
the Secured Creditors.
“Chattel Paper” shall mean “chattel paper” as such term is defined in the UCC as in
effect on the date hereof in the State of New York. Without limiting the foregoing, the term
“Chattel Paper” shall in any event include all Tangible Chattel Paper and all Electronic Chattel
Paper.
“Class” shall have the meaning provided in Section 10.2 of this Agreement.
“Collateral” shall have the meaning provided in Section 1.1(a) of this
Agreement.
“Collateral Agent” shall have the meaning provided in the first paragraph of this
Agreement.
“Commercial Tort Claims” shall mean “commercial tort claims” as such term is defined
in the UCC as in effect on the date hereof in the State of New York.
“Contract Rights” shall mean all rights of any Assignor under each Contract,
including, without limitation, (i) any and all rights to receive and demand payments under any or
all Contracts, (ii) any and all rights to receive and compel performance under any or all
Contracts, and (iii) any and all other rights, interests and claims now existing or in the future
arising in connection with any or all Contracts.
“Contracts” shall mean all contracts between any Assignor and one or more additional
parties (including, without limitation, any Interest Rate Protection Agreements, Other Hedging
Agreements, licensing agreements and any partnership agreements, joint venture agreements and
limited liability company agreements).
“Copyrights” shall mean any United States or foreign copyright owned by any Assignor,
including any registrations of any copyrights, in the United States Copyright Office or any foreign
equivalent office, as well as any application for a copyright registration made with the United
States Copyright Office or any foreign equivalent office by any Assignor.
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“Credit Agreement” shall have the meaning provided in the recitals of this Agreement.
“Credit Document Obligations” shall have the meaning provided in the definition of
“Obligations” in this Article IX.
“Credit Documents” shall have the meaning provided in the Credit Agreement, as such
documents may be amended, modified, restated and/or supplemented from time to time in connection
with the Credit Agreement.
“Deposit Accounts” shall mean all “deposit accounts” as such term is defined in the
UCC as in effect on the date hereof in the State of New York.
“Documents” shall mean “documents” as such term is defined in the UCC as in effect on
the date hereof in the State of New York.
“Domain Names” shall mean all Internet domain names and associated URL addresses in or
to which any Assignor has any right, title or interest.
“Electronic Chattel Paper” shall mean “electronic chattel paper” as such term is
defined in the UCC as in effect on the date hereof in the State of New York.
“Equipment” shall mean any “equipment” as such term is defined in the UCC as in effect
on the date hereof in the State of New York now or hereafter owned by any Assignor, and in any
event, shall include, but shall not be limited to, all machinery, equipment, furnishings, fixtures
and vehicles now or hereafter owned by any Assignor and any and all additions, substitutions and
replacements of any of the foregoing and all accessions thereto, wherever located, together with
all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
“Event of Default” shall mean any Event of Default under, and as defined in, the
Credit Agreement or, after the Credit Document Obligations have been paid in full and all Letters
of Credit and Commitments have terminated, an Event of Default (or similar term) under any Interest
Rate Protection Agreement or Other Hedging Agreement entered into with an Other Creditor.
“Excluded Collateral” shall mean (i) any Contract that validly prohibits, restricts or
requires the consent not obtained of a third party (other than Holdings or a Subsidiary thereof)
for the creation by such Assignor of a security interest in such Contract (or in any rights or
property obtained by such Assignor under such Contracts) except to the extent that any such
prohibition or restriction would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408
and 9-409 of the UCC (or any successor provision or provisions) or any other applicable law
(including the Bankruptcy Code), (ii) any property subject to a Lien permitted by Section
10.01(vi), (vii), (xiv) or (xv) of the Credit Agreement, to the extent that the contractual
arrangements governing such Lien expressly prohibit the granting of a security interest hereunder
in such property, (iii) any property to the extent that such grant of a security interest is
prohibited by a governmental authority, or requires a consent not obtained of any governmental
authority and (iv) the Equity Interests in Persons that are not Wholly-Owned Subsidiaries of
Holdings but
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only to the extent that the pledge of such Equity Interests is not permitted hereunder by the
terms of any agreement or organizational document of such Person and only so long as such
contractual prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective
by the UCC, the Bankruptcy Code or any other requirement of law.
“General Intangibles” shall mean “general intangibles” as such term is defined in the
UCC as in effect on the date hereof in the State of New York.
“Goods” shall mean “goods” as such term is defined in the UCC as in effect on the date
hereof in the State of New York.
“Health-Care-Insurance Receivable” shall mean any “health-care-insurance receivable”
as such term is defined in the UCC as in effect on the date hereof in the State of New York.
“Holdings” shall have the meaning provided in the recitals hereto.
“Indemnitee” shall have the meaning provided in Section 8.1(a) of this
Agreement.
“Instrument” shall mean “instruments” as such term is defined in the UCC as in effect
on the date hereof in the State of New York.
“Inventory” shall mean merchandise, inventory and goods, and all additions,
substitutions and replacements thereof and all accessions thereto, wherever located, together with
all goods, supplies, incidentals, packaging materials, labels, materials and any other items used
or usable in manufacturing, processing, packaging or shipping same, in all stages of production
from raw materials through work in process to finished goods, and all products and proceeds of
whatever sort and wherever located any portion thereof which may be returned, rejected, reclaimed
or repossessed by the Collateral Agent from any Assignor’s customers, and shall specifically
include all “inventory” as such term is defined in the UCC as in effect on the date hereof in the
State of New York.
“Investment Property” shall mean “investment property” as such term is defined in the
UCC as in effect on the date hereof in the State of New York.
“Lender Creditors” shall have the meaning provided in the recitals of this Agreement.
“Lenders” shall have the meaning provided in the recitals of this Agreement.
“Letter-of-Credit Rights” shall mean “letter-of-credit rights” as such term is defined
in the UCC as in effect on the date hereof in the State of New York.
“Marks” shall mean any trademarks, service marks and trade names owned by any
Assignor, including any registration or application for registration of any trademarks and service
marks owned by any Assignor, which are registered or filed in the United States Patent and
Trademark Office or the equivalent thereof in any state of the United States or any
23
equivalent foreign office or agency, as well as any unregistered trademarks and service marks
owned by any Assignor and any trade dress owned by any Assignor.
“Obligations” shall mean and include, as to any Assignor, all of the following:
(i) the full and prompt payment when due (whether at stated maturity, by acceleration
or otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, principal, premium, interest, reimbursement obligations (both actual and
contingent) under Letters of Credit, fees, cost and indemnities (including, in each case,
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 Assignor at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding) of such Assignor to the
Lender Creditors, whether now existing or hereafter incurred under, arising out of, or in
connection with, the Credit Agreement and the other Credit Documents to which such Assignor
is a party (including, without limitation, in the event such Assignor is a Guarantor, all
such obligations, liabilities and indebtedness of such Assignor under its Guaranty) and the
due performance and compliance by such Assignor with all of the terms, conditions and
agreements contained in the Credit Agreement and in such other Credit Documents (all such
obligations, liabilities and indebtedness under this clause (i), except to the extent
consisting of obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively called the “Credit
Document Obligations”);
(ii) the full and prompt payment when due (whether at stated maturity, by acceleration
or otherwise) of all obligations, liabilities and indebtedness (including, in each case,
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 Assignor 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 by each Assignor
to the Other Creditors, now existing or hereafter incurred under, arising out of or in
connection with any Interest Rate Protection Agreement or Other Hedging Agreement, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is now in existence or
hereinafter arising (including, without limitation, in the case of an Assignor that is a
Guarantor, all obligations, liabilities and indebtedness of such Assignor under its Guaranty
in respect of the Interest Rate Protection Agreements and Other Hedging Agreements), and the
due performance and compliance by such Assignor with all of the terms, conditions and
agreements contained in each such Interest Rate Protection Agreement and Other Hedging
Agreement (all such obligations, liabilities and indebtedness under this clause (ii) being
herein collectively called the “Other Obligations”);
(iii) any and all sums advanced by the Collateral Agent in order to preserve the
Collateral or preserve its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities of such Assignor referred to in clauses (i) and
(ii)
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above, after an Event of Default shall have occurred and be continuing, 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
(v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement;
it being acknowledged and agreed that the “Obligations” shall include extensions of credit of the
types described above, whether outstanding on the date of this Agreement or extended from time to
time after the date of this Agreement.
“Other Creditors” shall have the meaning provided in the recitals of this Agreement.
“Other Obligations” shall have the meaning provided in the definition of “Obligations”
in this Article IX.
“Patents” shall mean any United States or foreign patent owned by any Assignor, and
any divisions, continuations (including, but not limited to, continuations-in-parts) and
improvements thereof.
“Permits” shall mean, to the extent permitted to be assigned by the terms thereof or
by applicable law, all licenses, permits, rights, orders, variances, franchises or authorizations
of or from any governmental authority or agency.
“Primary Obligations” shall have the meaning provided in Section 7.4(b) of
this Agreement.
“Pro Rata Share” shall have the meaning provided in Section 7.4(b) of this
Agreement.
“Proceeds” shall mean all “proceeds” as such term is defined in the UCC as in effect
in the State of New York on the date hereof and, in any event, shall also include, but not be
limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of the Collateral, (ii)
any and all payments (in any form whatsoever) made or due and payable to any Assignor from time to
time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any governmental authority (or any person acting under color of
governmental authority) and (iii) any and all other amounts from time to time paid or payable under
or in connection with any of the Collateral.
“Registered Organization” shall have the meaning provided in the UCC as in effect in
the State of New York.
“Representative” shall have the meaning provided in Section 7.4(e) of this
Agreement.
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“Required Secured Creditors” shall mean (i) at any time when any Credit Document
Obligations are outstanding (other than contingent indemnity obligations that are not then due and
payable) or any Commitments or Letters of Credit under the Credit Agreement exist, the Required
Lenders (or, to the extent provided in Section 13.12 of the Credit Agreement, each of the Lenders)
and (ii) at any time after all of the Credit Document Obligations have been paid in full in cash
(other than contingent indemnity obligations that are not then due and payable) and all Commitments
and Letters of Credit under the Credit Agreement have been terminated and no further Commitments or
Letters of Credit may be provided thereunder, the holders of a majority of the Other Obligations.
“Requisite Creditors” shall have the meaning provided in Section 10.2 of this
Agreement.
“Secondary Obligations” shall have the meaning provided in Section 7.4(b) of
this Agreement.
“Secured Creditors” shall have the meaning provided in the recitals of this Agreement.
“Secured Debt Agreements” shall mean and include (i) this Agreement and the other
Credit Documents and (ii) the Interest Rate Protection Agreements and Other Hedging Agreements
entered into with an Other Creditor.
“Securities Accounts” shall mean all “securities accounts” as such term is defined in
the UCC as in effect on the date hereof in the State of New York.
“Software” shall mean “software” as such term is defined in the UCC as in effect on
the date hereof in the State of New York.
“Supporting Obligations” shall mean any “supporting obligation” as such term is
defined in the UCC as in effect on the date hereof in the State of New York, now or hereafter owned
by any Assignor, or in which any Assignor has any rights, and, in any event, shall include, but
shall not be limited to, all of such Assignor’s rights in any Letter-of-Credit Right or secondary
obligation that supports the payment or performance of, and all security for, any Account, Chattel
Paper, Document, General Intangible, Instrument or Investment Property.
“Tangible Chattel Paper” shall mean “tangible chattel paper” as such term is defined
in the UCC as in effect on the date hereof in the State of New York.
“Termination Date” shall have the meaning provided in Section 10.8(a) of this
Agreement.
“Trade Secrets” shall mean any trade secrets or other proprietary and confidential
information including financial data, personal information, customer lists, supplier lists,
business plans, and data collections, to the extent each of the foregoing constitute trade secrets,
to which any Assignor has any right, title or interest therein.
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“Transmitting Utility” shall have the meaning given such term in Section 9-102(a)(80)
of the UCC.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the
relevant jurisdiction.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Except as otherwise specified herein, all notices, requests, demands or
other communications to or upon the respective parties hereto shall be sent or delivered by mail,
telecopy or courier service and all such notices and communications shall, when mailed, telecopied
or sent by courier, be effective when deposited in the mails, delivered to the overnight courier,
or sent by telecopier, except that notices and communications to the Collateral Agent or any
Assignor shall not be effective until received by the Collateral Agent or such Assignor, as the
case may be. All notices and other communications shall be in writing and addressed as follows:
(a) if to any Assignor, at:
c/o Town Sports International, LLC
0 Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
0 Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Collateral Agent, at:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Lender Creditor (other than the Collateral Agent), at such address as
such Lender Creditor shall have specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor shall have
specified in writing to the Borrower and the Collateral Agent;
or at such other address or addressed to such other individual as shall have been furnished in
writing by any Person described above to the party required to give notice hereunder.
10.2 Waiver; Amendment. Except as provided in Sections 10.8 and 10.12
hereof and Section 13.12(c) of the Credit Agreement, none of the terms and conditions of
this
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Agreement or any other Security Document may be changed, waived, modified or varied in any
manner whatsoever unless in writing duly signed by each Assignor directly affected thereby (it
being understood that the addition or release of any Assignor hereunder shall not constitute a
change, waiver, discharge or termination affecting any Assignor other than the Assignor so added or
released) and the Collateral Agent (with the written consent of the Required Secured Creditors);
provided, however, (i) that any change, waiver, modification or variance affecting
the rights and benefits of a single Class of Secured Creditors (and not all Secured Creditors in a
like or similar manner) also shall require the written consent of the Requisite Creditors of such
affected Class, (ii) supplements to the Annexes hereto and to the other Security Documents may be
made without the consent of any Secured Creditor, other than the Collateral Agent, as provided
herein or therein, and (iii) Assignors may be released from their obligations hereunder and under
the other Security Documents and new Assignors may be added hereto and to the other Security
Documents without the consent of any Secured Creditors other than the Collateral Agent, as provided
herein or therein. For the purpose of this Agreement and each other Security Document, the term
“Class” shall mean each class of Secured Creditors, i.e., whether (x) the Lender
Creditors as holders of the Credit Document Obligations or (y) the Other Creditors as the holders
of the Other Obligations. For the purpose of this Agreement, the term “Requisite
Creditors” of any Class shall mean each of (x) with respect to the Credit Document Obligations,
the Required Lenders (or, to the extent provided in Section 13.12 of the Credit Agreement, each of
the Lenders), and (y) with respect to the Other Obligations, the holders of at least a majority of
all Other Obligations outstanding from time to time.
10.3 Obligations Absolute. The obligations of each Assignor hereunder shall remain in
full force and effect without regard to, and shall not be impaired by, (a) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of such
Assignor; (b) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege
under or in respect of this Agreement or any other Secured Debt Agreement; or (c) any amendment to
or modification of any Secured Debt Agreement or any security for any of the Obligations; whether
or not such Assignor shall have notice or knowledge of any of the foregoing.
10.4 Successors and Assigns. This Agreement shall create a continuing security
interest in the Collateral and shall (i) remain in full force and effect, subject to release and/or
termination as set forth in Section 10.8 hereof, (ii) be binding upon each Assignor, its
successors and assigns; provided, however, that no Assignor shall assign any of its
rights or obligations hereunder or under the other Credit Documents without the prior written
consent of the Collateral Agent (with the prior written consent of the Required Secured Creditors),
and (iii) inure, together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent, the other Secured Creditors and their respective successors,
transferees and assigns. All agreements, statements, representations and warranties made by each
Assignor herein or in any certificate or other instrument delivered by such Assignor or on its
behalf under this Agreement shall be considered to have been relied upon by the Secured Creditors
and shall survive the execution and delivery of this Agreement and the other Secured Debt
Agreements regardless of any investigation made by the Secured Creditors or on their behalf.
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10.5 Headings Descriptive. The headings of the several sections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
10.6 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL. (a) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK IN EACH CASE WHICH ARE
LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH ASSIGNOR
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH ASSIGNOR HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH ASSIGNOR,
AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS
PERSONAL JURISDICTION OVER SUCH ASSIGNOR. EACH ASSIGNOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH ASSIGNOR AT
ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 10.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE
OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS
IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN, HOWEVER, SHALL AFFECT THE RIGHT OF THE
COLLATERAL AGENT UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY ASSIGNOR
IN ANY OTHER JURISDICTION.
(b) EACH ASSIGNOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH
COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
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(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.7 Assignor’s Duties. It is expressly agreed, anything herein contained to the
contrary notwithstanding, that, prior to the Termination Date, each Assignor shall remain liable to
perform all of the obligations, if any, assumed by it with respect to the Collateral and, except as
otherwise provided in Section 10.11 hereof, the Collateral Agent shall not have any
obligations or liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any manner to perform or
fulfill any of the obligations of any Assignor under or with respect to any Collateral.
10.8 Termination; Release. (a) After the Termination Date, this Agreement shall
terminate (provided that all indemnities set forth herein including, without limitation in
Section 8.1 hereof, shall survive such termination) and the Collateral Agent, at the
request and expense of the respective Assignor, will promptly execute and deliver to such Assignor
a proper instrument or instruments (including UCC termination statements on form UCC-3)
acknowledging the satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Assignor (without recourse and without any representation or warranty) such of
the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement. As used in this Agreement,
“Termination Date” shall mean the date upon which both (A) the Total Commitment under the
Credit Agreement has been terminated, no Note under the Credit Agreement is outstanding and all
Loans thereunder have been repaid in full, all Letters of Credit issued under the Credit Agreement
have been terminated and all other Credit Document Obligations then due and payable have been paid
in full and (B) unless the respective Interest Rate Protection Agreements and Other Hedging
Agreements specifically provide otherwise, all Interest Rate Protection Agreements and Other
Hedging Agreements entered into with any Other Creditor have been terminated and all Other
Obligations then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person
other than a Credit Party in accordance with the Credit Agreement) or any other transaction
expressly permitted by the Credit Agreement requires a release of the relevant Collateral (x) at
any time prior to the time at which all Credit Document Obligations have been paid in full and all
Commitments and Letters of Credit under the Credit Agreement have been terminated, in connection
with a sale or disposition permitted by the Secured Debt Agreements or is otherwise released at the
direction of the Required Lenders (or all the Lenders if required by Section 13.12 of the Credit
Agreement) or (y) at any time thereafter, to the extent permitted by the other Secured Debt
Agreements, and in the case of clauses (x) and (y), the proceeds of such sale or other disposition
(or from such release) are applied in accordance with the terms of the Credit Agreement or such
other Secured Debt Agreements, as the case may be, to the extent required to be so applied, the
Collateral Agent, at the request and expense of such Assignor, will duly release from the security
interest created hereby (and will execute and deliver such documentation, including termination or
partial release statements and the like in connection therewith) and assign, transfer and deliver
to such Assignor (without recourse and without any
30
representation or warranty) such of the Collateral as is then being (or has been) so sold or
otherwise disposed of, or released, and as may be in the possession of the Collateral Agent and has
not theretofore been released pursuant to this Agreement. Furthermore, upon the release of any
Subsidiary Guarantor from the Subsidiaries Guaranty in accordance with the provisions thereof, such
Assignor (and the Collateral at such time assigned by the respective Assignor pursuant hereto)
shall be released from this Agreement.
(c) At any time that an Assignor desires that the Collateral Agent take any action to
acknowledge or give effect to any release of Collateral pursuant to the foregoing Section
10.8(a) or (b), such Assignor shall deliver to the Collateral Agent a certificate
signed by a senior officer of such Assignor stating that the release of the respective Collateral
is permitted pursuant to such Section 10.8(a) or (b). At any time that the
Borrower or the respective Assignor desires that a Subsidiary of the Borrower which has been
released from the Subsidiaries Guaranty be released hereunder as provided in the last sentence of
Section 10.8(b) hereof, it shall deliver to the Collateral Agent a certificate signed by a
principal executive officer of the Borrower and the respective Assignor stating that the release of
the respective Assignor (and its Collateral) is permitted pursuant to such Section 10.8(b).
(d) The Collateral Agent shall have no liability whatsoever to any other Secured Creditor as
the result of any release of Collateral by it in accordance with (or which the Collateral Agent in
the absence of gross negligence and willful misconduct believes to be in accordance with) this
Section 10.8.
10.9 Counterparts. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Collateral Agent.
10.10 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 The Collateral Agent and the other Secured Creditors. The Collateral Agent will
hold in accordance with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed that the obligations of the Collateral Agent as
holder of the Collateral and interests therein and with respect to the disposition thereof, and
otherwise under this Agreement, are only those expressly set forth in this Agreement and in Section
12 of the Credit Agreement. The Collateral Agent shall act hereunder on the terms and conditions
set forth herein and in Section 12 of the Credit Agreement.
10.12 Additional Assignors. It is understood and agreed that any Subsidiary Guarantor
that desires to become an Assignor hereunder, or is required to execute a counterpart of this
Agreement after the date hereof pursuant to the respective Secured Debt Agreements, shall become an
Assignor hereunder by executing a counterpart hereof and delivering same to
31
the Collateral Agent, or by executing a Joinder Agreement, (y) delivering supplements to
Annexes A through G, inclusive, hereto as are necessary to cause such Annexes to be
complete and accurate with respect to such additional Assignor on such date, and (z) taking all
actions as specified in this Agreement as would have been taken by such Assignor had it been an
original party to this Agreement, in each case with all documents required above to be delivered to
the Collateral Agent and with all documents and actions required above to be taken to the
reasonable satisfaction of the Collateral Agent.
[Remainder of this page intentionally left blank; signature page follows]
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers as of the date first above written.
TOWN SPORTS INTERNATIONAL, LLC, | ||||
as an Assignor |
||||
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Chief Financial Officer | |||
TOWN SPORTS INTERNATIONAL HOLDINGS, INC., | ||||
as an Assignor |
||||
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Chief Financial Officer | |||
Signature page to Town Sports Security Agreement — 2011
Address:
|
TSI 217 BROADWAY, LLC | |
c/o Town Sports International, LLC
|
TSI ALEXANDRIA, LLC | |
0 Xxxx Xxxxx, 0xx Xxxxx
|
TSI ALEXANDRIA WEST, LLC | |
Xxx Xxxx, XX 00000
|
TSI ALLSTON, LLC | |
Attention: Xxx Xxxxxxxxx
|
TSI ANDOVER, LLC | |
Tel. No.: (000) 000-0000
|
TSI ARDMORE, LLC | |
Fax No.: (000) 000-0000
|
TSI ARTHRO-FITNESS SERVICES, LLC | |
TSI ASTORIA, LLC | ||
TSI BATTERY PARK, LLC | ||
TSI XXX XXXXX 00XX XXXXXX, LLC | ||
TSI BAYONNE, LLC | ||
TSI BAYRIDGE, LLC | ||
TSI BENSONHURST, LLC | ||
TSI BETHESDA, LLC | ||
TSI BOYLSTON, LLC | ||
TSI BROADWAY, LLC | ||
TSI BROOKLYN BELT, LLC | ||
TSI BRUNSWICK, LLC | ||
TSI BULFINCH, LLC | ||
TSI XXXXXX, LLC | ||
TSI CARMEL, LLC | ||
TSI CASH MANAGEMENT, LLC | ||
TSI CENTRAL SQUARE, LLC | ||
TSI CHERRY HILL, LLC | ||
TSI CHEVY CHASE, LLC | ||
TSI CLARENDON, LLC | ||
TSI XXXXXXX, LLC | ||
TSI COBBLE HILL, LLC | ||
TSI COLONIA, LLC | ||
TSI COLUMBIA HEIGHTS, LLC | ||
TSI COMMACK, LLC | ||
TSI CONNECTICUT AVENUE, LLC | ||
TSI COURT STREET, LLC | ||
TSI CROTON, LLC | ||
TSI DANBURY, LLC | ||
TSI DEDHAM, LLC | ||
TSI DEER PARK, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer |
Signature page to Town Sports Security Agreement — 2011
TSI XXXXX FERRY, LLC | ||
TSI XXXXX SQUARE, LLC | ||
TSI XXXXX FERRY, LLC | ||
TSI DOWNTOWN CROSSING, LLC | ||
TSI DUPONT CIRCLE, INC. | ||
TSI DUPONT II, INC. | ||
TSI EAST 23, LLC | ||
TSI EAST 31, LLC | ||
TSI EAST 34, LLC | ||
TSI EAST 36, LLC | ||
TSI EAST 41, LLC | ||
TSI EAST 48, LLC | ||
TSI EAST 51, LLC | ||
TSI EAST 59, LLC | ||
TSI EAST 76, LLC | ||
TSI EAST 86, LLC | ||
TSI EAST 91, LLC | ||
TSI EAST BRUNSWICK, LLC | ||
TSI EAST MEADOW, LLC | ||
TSI ENGLEWOOD, LLC | ||
TSI F STREET, LLC | ||
TSI FAIRFAX, LLC | ||
TSI FENWAY, LLC | ||
TSI FIRST AVENUE, LLC | ||
TSI FOREST HILLS, LLC | ||
TSI FORT XXX, LLC | ||
TSI FRAMINGHAM, LLC | ||
TSI FRANKLIN (MA), LLC | ||
TSI FRANKLIN PARK, LLC | ||
TSI FREEHOLD, LLC | ||
TSI GALLERY PLACE, LLC | ||
TSI GARDEN CITY, LLC | ||
TSI GARNERVILLE, LLC | ||
TSI GEORGETOWN, LLC | ||
TSI GERMANTOWN, LLC | ||
TSI GLENDALE, LLC | ||
TSI XXXXXX, LLC | ||
TSI GRAND CENTRAL, LLC | ||
TSI GREAT NECK, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer |
Signature page to Town Sports Security Agreement — 2011
TSI GREENWICH, LLC | ||
TSI HARTSDALE, LLC | ||
TSI HAWTHORNE, LLC | ||
TSI HERALD, LLC | ||
TSI HICKSVILLE, LLC | ||
TSI HIGHPOINT, LLC | ||
TSI HOBOKEN, LLC | ||
TSI HOBOKEN NORTH, LLC | ||
TSI HOLDINGS (CIP), LLC | ||
TSI HOLDINGS (DC), LLC | ||
TSI HOLDINGS (MA), LLC | ||
TSI HOLDINGS (MD), LLC | ||
TSI HOLDINGS (NJ), LLC | ||
TSI HOLDINGS (PA), LLC | ||
TSI HOLDINGS (VA), LLC | ||
TSI HUNTINGTON, LLC | ||
TSI INTERNATIONAL, INC. | ||
TSI IRVING PLACE, LLC | ||
TSI JAMAICA ESTATES, LLC | ||
TSI JERSEY CITY, LLC | ||
TSI K STREET, LLC | ||
TSI LARCHMONT, LLC | ||
TSI LEXINGTON (MA), LLC | ||
TSI LINCOLN, LLC | ||
TSI XXXXXXXXXX, LLC | ||
TSI LONG BEACH, LLC | ||
TSI LYNNFIELD, LLC | ||
TSI M STREET, LLC | ||
TSI MAHWAH, LLC | ||
TSI MAMARONECK, LLC | ||
TSI MARKET STREET, LLC | ||
TSI MARLBORO, LLC | ||
TSI MATAWAN, LLC | ||
TSI XXXXXX STREET, LLC | ||
TSI MIDWOOD, LLC | ||
TSI MONTCLAIR, LLC | ||
TSI XXXXXX PARK, LLC | ||
TSI XXXXXX HILL, LLC | ||
TSI NANUET, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer |
Signature page to Town Sports Security Agreement — 2011
TSI NATICK, LLC | ||
TSI NEW XXXXXXXX, LLC | ||
TSI NEWARK, LLC | ||
TSI NEWBURY STREET, LLC | ||
TSI XXXXXX, LLC | ||
TSI NO SWEAT, LLC | ||
TSI NORTH BETHESDA, LLC | ||
TSI NORWALK, LLC | ||
TSI OCEANSIDE, LLC | ||
TSI OLD BRIDGE, LLC | ||
TSI PARSIPPANY, LLC | ||
TSI PLAINSBORO, LLC | ||
TSI PORT JEFFERSON, LLC | ||
TSI PRINCETON, LLC | ||
TSI PRINCETON NORTH, LLC | ||
TSI PROVIDENCE DOWNTOWN, LLC | ||
TSI PROVIDENCE EASTSIDE, LLC | ||
TSI RADNOR, LLC | ||
TSI XXXXXX, LLC | ||
TSI READE STREET, LLC | ||
TSI XXXX PARK, LLC | ||
TSI RIDGEWOOD, LLC | ||
TSI RODIN PLACE, LLC | ||
TSI SCARSDALE, LLC | ||
TSI SEAPORT, LLC | ||
TSI SHERIDAN, LLC | ||
TSI SILVER SPRING, LLC | ||
TSI SMITHTOWN, LLC | ||
TSI SOCIETY HILL, LLC | ||
TSI SOHO, LLC | ||
TSI XXXXXX, LLC | ||
TSI SOMERSET, LLC | ||
TSI SOUTH BETHESDA, LLC | ||
TSI SOUTH END, LLC | ||
TSI SOUTH PARK SLOPE, LLC | ||
TSI SOUTH STATION, LLC | ||
TSI SPRINGFIELD, LLC | ||
TSI STAMFORD DOWNTOWN, LLC | ||
TSI STAMFORD POST, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer |
Signature page to Town Sports Security Agreement — 2011
TSI STAMFORD RINKS, LLC | ||
TSI STATEN ISLAND, LLC | ||
TSI STERLING, LLC | ||
TSI SUNNYSIDE, LLC | ||
TSI SYOSSET, LLC | ||
TSI UNIVERSITY MANAGEMENT, LLC | ||
TSI VARICK STREET, LLC | ||
TSI WALL STREET, LLC | ||
TSI WALTHAM, LLC | ||
TSI WASHINGTON, INC. | ||
TSI WATER STREET, LLC | ||
TSI WATERTOWN, LLC | ||
TSI WAYLAND, LLC | ||
TSI WELLESLEY, LLC | ||
TSI WELLINGTON CIRCLE, LLC | ||
TSI WEST 14, LLC | ||
TSI WEST 16, LLC | ||
TSI WEST 23, LLC | ||
TSI WEST 38, LLC | ||
TSI WEST 41, LLC | ||
TSI WEST 44, LLC | ||
TSI WEST 48, LLC | ||
TSI WEST 52, LLC | ||
TSI WEST 73, LLC | ||
TSI WEST 76, LLC | ||
TSI WEST 80, LLC | ||
TSI WEST 94, LLC | ||
TSI WEST 115TH STREET, LLC | ||
TSI WEST 125, LLC | ||
TSI WEST 145TH STREET, LLC | ||
TSI WEST XXXXXXXX, LLC | ||
TSI WEST HARTFORD, LLC | ||
TSI WEST XXXXXX, LLC | ||
TSI WEST NYACK, LLC | ||
TSI WEST SPRINGFIELD, LLC | ||
TSI WESTBOROUGH, LLC | ||
TSI WESTPORT, LLC | ||
TSI WESTWOOD, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer |
Signature page to Town Sports Security Agreement — 2011
TSI WEYMOUTH, LLC | ||
TSI WHITE PLAINS, LLC | ||
TSI WHITE PLAINS CITY CENTER, LLC | ||
TSI WHITESTONE, LLC | ||
TSI WOBURN, LLC | ||
TSI WOODMERE, LLC, | ||
each as an Assignor |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Senior Vice President — Chief Financial Officer | |||
Signature page to Town Sports Security Agreement — 2011
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Collateral Agent
AMERICAS, as Collateral Agent
By:
|
/s/ Xxxxx Xxxxxx
|
|||
Title: Director | ||||
By:
|
/s/ Xxxxxxx Xxxxxxxx | |||
Name: Xxxxxxx Xxxxxxxx | ||||
Title: Vice President |
Signature page to Town Sports Security Agreement — 2011
ANNEX A
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
Name of Assignor | Address(es) of Chief Executive Office | |
Town Sports International Holdings, Inc.
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
Town Sports International, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI 000 Xxxxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Alexandria, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Alexandria West, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Allston, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Andover, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Ardmore, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Arthro-Fitness Services, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Astoria, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Battery Park, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxx Xxxxx 00xx Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Bayonne, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Bayridge, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Bensonhurst, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Bethesda, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Boylston, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 2
Page 2
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Broadway, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Brooklyn Belt, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Brunswick, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Bulfinch, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Carmel, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Cash Management, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Central Square, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Cherry Hill, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Chevy Chase, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Clarendon, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Cobble Hill, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Colonia, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Columbia Heights, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Commack, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Connecticut Avenue, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Court Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 3
Page 3
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Croton, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Danbury, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxx Square, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Dedham, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Deer Park, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxx Ferry, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Downtown Crossing, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Dupont Circle, Inc.
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Dupont II, Inc.
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East Brunswick, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East Meadow, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 23, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 31, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 34, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 36, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 41, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 48, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 51, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 4
Page 4
Name of Assignor | Address(es) of Chief Executive Office | |
TSI East 59, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 76, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 86, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI East 91, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Englewood, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI F Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Fairfax, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Fenway, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI First Avenue, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Forest Hills, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Fort Xxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Framingham, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Franklin (MA), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Franklin Park, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Freehold, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Gallery Place, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Garden City, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Garnersville, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 5
Page 5
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Georgetown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Germantown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Glendale, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Grand Central, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Great Neck, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Greenwich, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Hartsdale, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Hawthorne, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Herald, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Hicksville, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Highpoint, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Hoboken, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Hoboken North, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (CIP), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (DC), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (MA), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (MD), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 6
Page 6
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Holdings (NJ), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (PA), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Holdings (VA), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Huntington, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI International, Inc.
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Irving Place, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Jamaica Estates, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Jersey City, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI K Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Larchmont, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Lexington (MA), LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Lincoln, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Long Beach, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Lynnfield, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI M Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Mahwah, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Mamaroneck, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 7
Page 7
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Market Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Marlboro, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Matawan, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Midwood, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Montclair, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx Park, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx Hill, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Nanuet, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Natick, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI New Xxxxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Newark, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Newbury Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI No Sweat, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI North Bethesda, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Norwalk, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Oceanside, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 8
Page 8
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Old Bridge, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Parsippany, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Plainsboro, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Port Jefferson, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Princeton, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Princeton North, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Providence Downtown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Providence Eastside, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Radnor, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Reade Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxx Park, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Ridgewood, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Rodin Place, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Scarsdale, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Seaport, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Sheridan, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Silver Spring, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 9
Page 9
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Smithtown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Society Hill, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Soho, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Somerset, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI South Bethesda, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI South End, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI South Park Slope, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI South Station, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Springfield, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Stamford Downtown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Stamford Post, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Stamford Rinks, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Staten Island, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Sterling, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Sunnyside, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Syosset, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI University Management, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 10
Page 10
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Varick Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Wall Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Waltham, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Washington, Inc.
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Water Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Watertown, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Wayland, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Wellesley, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Wellington Circle, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West Xxxxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West Hartford, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West Xxxxxx, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West Nyack, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West Springfield, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 14, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 16, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 23, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 38, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 11
Page 11
Name of Assignor | Address(es) of Chief Executive Office | |
TSI West 41, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 44, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 48, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 52, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 73, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 76, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 80, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 94, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 115th Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 125, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI West 145th Street, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Westborough, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Westport, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Westwood, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Weymouth, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI White Plains City Center, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI White Plains, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Whitestone, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX A
Page 12
Page 12
Name of Assignor | Address(es) of Chief Executive Office | |
TSI Woburn, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
|
TSI Woodmere, LLC
|
0 Xxxx Xxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 |
ANNEX B
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION
(AND WHETHER A REGISTERED ORGANIZATION AND/OR
A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION
AND ORGANIZATIONAL IDENTIFICATION NUMBERS
(AND WHETHER A REGISTERED ORGANIZATION AND/OR
A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION
AND ORGANIZATIONAL IDENTIFICATION NUMBERS
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
Town Sports International Holdings, Inc.
|
Corporation | Yes | Delaware | 3754592 | No | |||||||
Town Sports International, LLC
|
Limited Liability Company | Yes | New York | None | No | |||||||
TSI 217 Broadway, LLC
|
Limited Liability Company | Yes | Delaware | 4268991 | No | |||||||
TSI Alexandria, LLC
|
Limited Liability Company | Yes | Delaware | 2901743 | No | |||||||
TSI Alexandria West, LLC
|
Limited Liability Company | Yes | Delaware | 4330291 | No | |||||||
TSI Allston, LLC
|
Limited Liability Company | Yes | Delaware | 3899539 | No | |||||||
TSI Andover, LLC
|
Limited Liability Company | Yes | Delaware | 4269134 | No | |||||||
TSI Ardmore, LLC
|
Limited Liability Company | Yes | Delaware | 3387908 | No | |||||||
TSI Arthro-Fitness Services, LLC
|
Limited Liability Company | Yes | Delaware | 4268994 | No | |||||||
TSI Astoria, LLC
|
Limited Liability Company | Yes | Delaware | 4268995 | No | |||||||
TSI Battery Park, LLC
|
Limited Liability Company | Yes | Delaware | 4268998 | No | |||||||
TSI Xxx Xxxxx 00xx Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4269108 | No | |||||||
TSI Bayonne, LLC
|
Limited Liability Company | Yes | Delaware | 4536496 | No | |||||||
TSI Bayridge, LLC
|
Limited Liability Company | Yes | Delaware | 4269001 | No | |||||||
TSI Bensonhurst, LLC
|
Limited Liability Company | Yes | Delaware | 4416091 | No | |||||||
TSI Bethesda, LLC
|
Limited Liability Company | Yes | Delaware | 3018449 | No | |||||||
TSI Boylston, LLC
|
Limited Liability Company | Yes | Delaware | 4269330 | No | |||||||
TSI Broadway, LLC
|
Limited Liability Company | Yes | Delaware | 4269002 | No | |||||||
TSI Brooklyn Belt, LLC
|
Limited Liability Company | Yes | Delaware | 4269004 | No | |||||||
TSI Brunswick, LLC
|
Limited Liability Company | Yes | Delaware | 4282150 | No | |||||||
TSI Bulfinch, LLC
|
Limited Liability Company | Yes | Delaware | 3899536 | No | |||||||
TSI Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4239615 | No | |||||||
TSI Carmel, LLC
|
Limited Liability Company | Yes | Delaware | 4269111 | No | |||||||
TSI Cash Management, LLC
|
Limited Liability Company | Yes | Delaware | 4269009 | No | |||||||
TSI Central Square, LLC
|
Limited Liability Company | Yes | Delaware | 3899543 | No | |||||||
TSI Cherry Hill, LLC
|
Limited Liability Company | Yes | Delaware | 3040637 | No | |||||||
TSI Chevy Chase, LLC
|
Limited Liability Company | Yes | Delaware | 4269632 | No | |||||||
TSI Clarendon, LLC
|
Limited Liability Company | Yes | Delaware | 3317876 | No | |||||||
TSI Xxxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4195613 | No | |||||||
TSI Cobble Hill, LLC
|
Limited Liability Company | Yes | Delaware | 4269013 | No |
ANNEX B
Page 2
Page 2
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
TSI Colonia, LLC
|
Limited Liability Company | Yes | Delaware | 2928572 | No | |||||||
TSI Columbia Heights, LLC
|
Limited Liability Company | Yes | Delaware | 4269691 | No | |||||||
TSI Commack, LLC
|
Limited Liability Company | Yes | Delaware | 4269015 | No | |||||||
TSI Connecticut Avenue, LLC
|
Limited Liability Company | Yes | Delaware | 4269736 | No | |||||||
TSI Court Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269017 | No | |||||||
TSI Croton, LLC
|
Limited Liability Company | Yes | Delaware | 4269019 | No | |||||||
TSI Danbury, LLC
|
Limited Liability Company | Yes | Delaware | 4269758 | No | |||||||
TSI Xxxxx Square, LLC
|
Limited Liability Company | Yes | Delaware | 4160261 | No | |||||||
TSI Dedham, LLC
|
Limited Liability Company | Yes | Delaware | 4510871 | No | |||||||
TSI Deer Park, LLC
|
Limited Liability Company | Yes | Delaware | 4364946 | No | |||||||
TSI Xxxxx Ferry, LLC
|
Limited Liability Company | Yes | Delaware | 4269114 | No | |||||||
TSI Downtown Crossing, LLC
|
Limited Liability Company | Yes | Delaware | 4269741 | No | |||||||
TSI Dupont Circle, Inc.
|
Corporation | Yes | Delaware | 2220114 | No | |||||||
TSI Dupont II, Inc.
|
Corporation | Yes | Delaware | 2439444 | No | |||||||
TSI East 23, LLC
|
Limited Liability Company | Yes | Delaware | 4269027 | No | |||||||
TSI East 31, LLC
|
Limited Liability Company | Yes | Delaware | 4269030 | No | |||||||
TSI East 34, LLC
|
Limited Liability Company | Yes | Delaware | 4269032 | No | |||||||
TSI East 36, LLC
|
Limited Liability Company | Yes | Delaware | 4269035 | No | |||||||
TSI East 41, LLC
|
Limited Liability Company | Yes | Delaware | 4269039 | No | |||||||
TSI East 48, LLC
|
Limited Liability Company | Yes | Delaware | 4269115 | No | |||||||
TSI East 51, LLC
|
Limited Liability Company | Yes | Delaware | 4269041 | No | |||||||
TSI East 59, LLC
|
Limited Liability Company | Yes | Delaware | 4269047 | No | |||||||
TSI East 76, LLC
|
Limited Liability Company | Yes | Delaware | 4269049 | No | |||||||
TSI East 86, LLC
|
Limited Liability Company | Yes | Delaware | 4269119 | No | |||||||
TSI East 91, LLC
|
Limited Liability Company | Yes | Delaware | 4269051 | No | |||||||
TSI East Brunswick, LLC
|
Limited Liability Company | Yes | Delaware | 4343405 | No | |||||||
TSI East Meadow, LLC
|
Limited Liability Company | Yes | Delaware | 4269024 | No | |||||||
TSI Englewood, LLC
|
Limited Liability Company | Yes | Delaware | 4099792 | No | |||||||
TSI F Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269753 | No | |||||||
TSI Fairfax, LLC
|
Limited Liability Company | Yes | Delaware | 2951887 | No | |||||||
TSI Fenway, LLC
|
Limited Liability Company | Yes | Delaware | 3899546 | No | |||||||
TSI First Avenue, LLC
|
Limited Liability Company | Yes | Delaware | 4269053 | No | |||||||
TSI Forest Hills, LLC
|
Limited Liability Company | Yes | Delaware | 4269055 | No | |||||||
TSI Fort Xxx, LLC
|
Limited Liability Company | Yes | Delaware | 2900457 | No |
ANNEX B
Page 3
Page 3
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
TSI Framingham, LLC
|
Limited Liability Company | Yes | Delaware | 4269136 | No | |||||||
TSI Franklin (MA), LLC
|
Limited Liability Company | Yes | Delaware | 4269138 | No | |||||||
TSI Franklin Park, LLC
|
Limited Liability Company | Yes | Delaware | 2928574 | No | |||||||
TSI Freehold, LLC
|
Limited Liability Company | Yes | Delaware | 3057259 | No | |||||||
TSI Gallery Place, LLC
|
Limited Liability Company | Yes | Delaware | 4269770 | No | |||||||
TSI Garden City, LLC
|
Limited Liability Company | Yes | Delaware | 4269057 | No | |||||||
TSI Garnerville, LLC
|
Limited Liability Company | Yes | Delaware | 4376082 | No | |||||||
TSI Georgetown, LLC
|
Limited Liability Company | Yes | Delaware | 4269763 | No | |||||||
TSI Germantown, LLC
|
Limited Liability Company | Yes | Delaware | 2916539 | No | |||||||
TSI Glendale, LLC
|
Limited Liability Company | Yes | Delaware | 4269128 | No | |||||||
TSI Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4269240 | No | |||||||
TSI Grand Central, LLC
|
Limited Liability Company | Yes | Delaware | 4269060 | No | |||||||
TSI Great Neck, LLC
|
Limited Liability Company | Yes | Delaware | 4269061 | No | |||||||
TSI Greenwich, LLC
|
Limited Liability Company | Yes | Delaware | 4269761 | No | |||||||
TSI Hartsdale, LLC
|
Limited Liability Company | Yes | Delaware | 4269062 | No | |||||||
TSI Hawthorne, LLC
|
Limited Liability Company | Yes | Delaware | 4269066 | No | |||||||
TSI Herald, LLC
|
Limited Liability Company | Yes | Delaware | 4269068 | No | |||||||
TSI Hicksville, LLC
|
Limited Liability Company | Yes | Delaware | 4257117 | No | |||||||
TSI Highpoint, LLC
|
Limited Liability Company | Yes | Delaware | 3140945 | No | |||||||
TSI Hoboken, LLC
|
Limited Liability Company | Yes | Delaware | 3057253 | No | |||||||
TSI Hoboken North, LLC
|
Limited Liability Company | Yes | Delaware | 3773429 | No | |||||||
TSI Holdings (CIP), LLC
|
Limited Liability Company | Yes | Delaware | 4269773 | No | |||||||
TSI Holdings (DC), LLC
|
Limited Liability Company | Yes | Delaware | 4268598 | No | |||||||
TSI Holdings (MA), LLC
|
Limited Liability Company | Yes | Delaware | 4268036 | No | |||||||
TSI Holdings (MD), LLC
|
Limited Liability Company | Yes | Delaware | 4268623 | No | |||||||
TSI Holdings (NJ), LLC
|
Limited Liability Company | Yes | Delaware | 3744923 | No | |||||||
TSI Holdings (PA), LLC
|
Limited Liability Company | Yes | Delaware | 4268627 | No | |||||||
TSI Holdings (VA), LLC
|
Limited Liability Company | Yes | Delaware | 4268618 | No | |||||||
TSI Huntington, LLC
|
Limited Liability Company | Yes | Delaware | 4268974 | No | |||||||
TSI International, Inc.
|
Corporation | Yes | Delaware | 2141083 | No | |||||||
TSI Irving Place, LLC
|
Limited Liability Company | Yes | Delaware | 4268978 | No | |||||||
TSI Jamaica Estates, LLC
|
Limited Liability Company | Yes | Delaware | 4402223 | No | |||||||
TSI Jersey City, LLC
|
Limited Liability Company | Yes | Delaware | 3525625 | No | |||||||
TSI K Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269781 | No |
ANNEX B
Page 4
Page 4
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
TSI Larchmont, LLC
|
Limited Liability Company | Yes | Delaware | 4268983 | No | |||||||
TSI Lexington (MA), LLC
|
Limited Liability Company | Yes | Delaware | 4269142 | No | |||||||
TSI Lincoln, LLC
|
Limited Liability Company | Yes | Delaware | 4268985 | No | |||||||
TSI Xxxxxxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 3305800 | No | |||||||
TSI Long Beach, LLC
|
Limited Liability Company | Yes | Delaware | 4268987 | No | |||||||
TSI Lynnfield, LLC
|
Limited Liability Company | Yes | Delaware | 4269143 | No | |||||||
TSI M Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269776 | No | |||||||
TSI Mahwah, LLC
|
Limited Liability Company | Yes | Delaware | 2905457 | No | |||||||
TSI Mamaroneck, LLC
|
Limited Liability Company | Yes | Delaware | 4268989 | No | |||||||
TSI Market Street, LLC
|
Limited Liability Company | Yes | Delaware | 3123380 | No | |||||||
TSI Marlboro, LLC
|
Limited Liability Company | Yes | Delaware | 3057264 | No | |||||||
TSI Matawan, LLC
|
Limited Liability Company | Yes | Delaware | 3057208 | No | |||||||
TSI Xxxxxx Street, LLC
|
Limited Liability Company | Yes | Delaware | 4268990 | No | |||||||
TSI Midwood, LLC
|
Limited Liability Company | Yes | Delaware | 4268993 | No | |||||||
TSI Montclair, LLC
|
Limited Liability Company | Yes | Delaware | 3235308 | No | |||||||
TSI Xxxxxx Park, LLC
|
Limited Liability Company | Yes | Delaware | 4269130 | No | |||||||
TSI Xxxxxx Hill, LLC
|
Limited Liability Company | Yes | Delaware | 4269000 | No | |||||||
TSI Nanuet, LLC
|
Limited Liability Company | Yes | Delaware | 4269005 | No | |||||||
TSI Natick, LLC
|
Limited Liability Company | Yes | Delaware | 4269786 | No | |||||||
TSI New Xxxxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4290057 | No | |||||||
TSI Newark, LLC
|
Limited Liability Company | Yes | Delaware | 3548397 | No | |||||||
TSI Newbury Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269793 | No | |||||||
TSI Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4188428 | No | |||||||
TSI No Sweat, LLC
|
Limited Liability Company | Yes | Delaware | 4071998 | No | |||||||
TSI North Bethesda, LLC
|
Limited Liability Company | Yes | Delaware | 3018427 | No | |||||||
TSI Norwalk, LLC
|
Limited Liability Company | Yes | Delaware | 4269791 | No | |||||||
TSI Oceanside, LLC
|
Limited Liability Company | Yes | Delaware | 4269012 | No | |||||||
TSI Old Bridge, LLC
|
Limited Liability Company | Yes | Delaware | 3057213 | No | |||||||
TSI Parsippany, LLC
|
Limited Liability Company | Yes | Delaware | 2928568 | No | |||||||
TSI Plainsboro, LLC
|
Limited Liability Company | Yes | Delaware | 2928573 | No | |||||||
TSI Port Jefferson, LLC
|
Limited Liability Company | Yes | Delaware | 4269018 | No | |||||||
TSI Princeton, LLC
|
Limited Liability Company | Yes | Delaware | 2750867 | No | |||||||
TSI Princeton North, LLC
|
Limited Liability Company | Yes | Delaware | 3946066 | No | |||||||
TSI Providence Downtown, LLC
|
Limited Liability Company | Yes | Delaware | 4411647 | No |
ANNEX B
Page 5
Page 5
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
TSI Providence Eastside, LLC
|
Limited Liability Company | Yes | Delaware | 4411648 | No | |||||||
TSI Radnor, LLC
|
Limited Liability Company | Yes | Delaware | 4034032 | No | |||||||
TSI Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 3138497 | No | |||||||
TSI Reade Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269021 | No | |||||||
TSI Xxxx Park, LLC
|
Limited Liability Company | Yes | Delaware | 4269031 | No | |||||||
TSI Ridgewood, LLC
|
Limited Liability Company | Yes | Delaware | 3386883 | No | |||||||
TSI Rodin Place, LLC
|
Limited Liability Company | Yes | Delaware | 3026591 | No | |||||||
TSI Scarsdale, LLC
|
Limited Liability Company | Yes | Delaware | 4269037 | No | |||||||
TSI Seaport, LLC
|
Limited Liability Company | Yes | Delaware | 4269040 | No | |||||||
TSI Sheridan, LLC
|
Limited Liability Company | Yes | Delaware | 4269043 | No | |||||||
TSI Silver Spring, LLC
|
Limited Liability Company | Yes | Delaware | 3296686 | No | |||||||
TSI Smithtown, LLC
|
Limited Liability Company | Yes | Delaware | 4269048 | No | |||||||
TSI Society Hill, LLC
|
Limited Liability Company | Yes | Delaware | 3026597 | No | |||||||
TSI Soho, LLC
|
Limited Liability Company | Yes | Delaware | 4269052 | No | |||||||
TSI Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4269058 | No | |||||||
TSI Somerset, LLC
|
Limited Liability Company | Yes | Delaware | 2928575 | No | |||||||
TSI South Bethesda, LLC
|
Limited Liability Company | Yes | Delaware | 3854033 | No | |||||||
TSI South End, LLC
|
Limited Liability Company | Yes | Delaware | 4269795 | No | |||||||
TSI South Park Slope, LLC
|
Limited Liability Company | Yes | Delaware | 4269064 | No | |||||||
TSI South Station, LLC
|
Limited Liability Company | Yes | Delaware | 4269797 | No | |||||||
TSI Springfield, LLC
|
Limited Liability Company | Yes | Delaware | 2928570 | No | |||||||
TSI Stamford Downtown, LLC
|
Limited Liability Company | Yes | Delaware | 4269799 | No | |||||||
TSI Stamford Post, LLC
|
Limited Liability Company | Yes | Delaware | 4269803 | No | |||||||
TSI Stamford Rinks, LLC
|
Limited Liability Company | Yes | Delaware | 4269807 | No | |||||||
TSI Staten Island, LLC
|
Limited Liability Company | Yes | Delaware | 4269070 | No | |||||||
TSI Sterling, LLC
|
Limited Liability Company | Yes | Delaware | 2978316 | No | |||||||
TSI Sunnyside, LLC
|
Limited Liability Company | Yes | Delaware | 4324681 | No | |||||||
TSI Syosset, LLC
|
Limited Liability Company | Yes | Delaware | 4269074 | No | |||||||
TSI University Management, LLC
|
Limited Liability Company | Yes | Delaware | 4269811 | No | |||||||
TSI Varick Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269076 | No | |||||||
TSI Wall Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269078 | No | |||||||
TSI Waltham, LLC
|
Limited Liability Company | Yes | Delaware | 3584187 | No | |||||||
TSI Washington, Inc.
|
Corporation | Yes | Delaware | 2195425 | No | |||||||
TSI Water Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269087 | No |
ANNEX B
Page 6
Page 6
Assignor’s | ||||||||||||
Registered | Organization | |||||||||||
Type of Organization | Organization | Identification Number | Transmitting | |||||||||
(or, if the Assignor is an | ? | Jurisdiction of | (or, if none, so | Utility? | ||||||||
Exact Legal Name of Each Assignor | Individual, so indicate) | (Yes/No) | Organization | indicate) | (Yes/No) | |||||||
TSI Watertown, LLC
|
Limited Liability Company | Yes | Delaware | 4269336 | No | |||||||
TSI Wayland, LLC
|
Limited Liability Company | Yes | Delaware | 4554568 | No | |||||||
TSI Wellesley, LLC
|
Limited Liability Company | Yes | Delaware | 4269148 | No | |||||||
TSI Wellington Circle, LLC
|
Limited Liability Company | Yes | Delaware | 4160262 | No | |||||||
TSI West 14, LLC
|
Limited Liability Company | Yes | Delaware | 4269093 | No | |||||||
TSI West 16, LLC
|
Limited Liability Company | Yes | Delaware | 4269096 | No | |||||||
TSI West 23, LLC
|
Limited Liability Company | Yes | Delaware | 4269098 | No | |||||||
TSI West 38, LLC
|
Limited Liability Company | Yes | Delaware | 4269038 | No | |||||||
TSI West 41, LLC
|
Limited Liability Company | Yes | Delaware | 4269045 | No | |||||||
TSI West 44, LLC
|
Limited Liability Company | Yes | Delaware | 4269054 | No | |||||||
TSI West 48, LLC
|
Limited Liability Company | Yes | Delaware | 4269067 | No | |||||||
TSI West 52, LLC
|
Limited Liability Company | Yes | Delaware | 4269073 | No | |||||||
TSI West 73, LLC
|
Limited Liability Company | Yes | Delaware | 4269077 | No | |||||||
TSI West 76, LLC
|
Limited Liability Company | Yes | Delaware | 4269080 | No | |||||||
TSI West 80, LLC
|
Limited Liability Company | Yes | Delaware | 4269085 | No | |||||||
TSI West 94, LLC
|
Limited Liability Company | Yes | Delaware | 4269086 | No | |||||||
TSI West 115th Street, LLC
|
Limited Liability Company | Yes | Delaware | 4269131 | No | |||||||
TSI West 125, LLC
|
Limited Liability Company | Yes | Delaware | 4269090 | No | |||||||
TSI West 145th Street, LLC
|
Limited Liability Company | Yes | Delaware | 4239620 | No | |||||||
TSI West Xxxxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 2928566 | No | |||||||
TSI West Hartford, LLC
|
Limited Liability Company | Yes | Delaware | 4411640 | No | |||||||
TSI West Xxxxxx, LLC
|
Limited Liability Company | Yes | Delaware | 4269593 | No | |||||||
TSI West Nyack, LLC
|
Limited Liability Company | Yes | Delaware | 4269089 | No | |||||||
TSI West Springfield, LLC
|
Limited Liability Company | Yes | Delaware | 3131927 | No | |||||||
TSI Westborough, LLC
|
Limited Liability Company | Yes | Delaware | 4311117 | No | |||||||
TSI Westport, LLC
|
Limited Liability Company | Yes | Delaware | 4269809 | No | |||||||
TSI Westwood, LLC
|
Limited Liability Company | Yes | Delaware | 3478988 | No | |||||||
TSI Weymouth, LLC
|
Limited Liability Company | Yes | Delaware | 4269814 | No | |||||||
TSI White Plains City Center, LLC
|
Limited Liability Company | Yes | Delaware | 4269095 | No | |||||||
TSI White Plains, LLC
|
Limited Liability Company | Yes | Delaware | 4269100 | No | |||||||
TSI Whitestone, LLC
|
Limited Liability Company | Yes | Delaware | 4269102 | No | |||||||
TSI Woburn, LLC
|
Limited Liability Company | Yes | Delaware | 4411649 | No | |||||||
TSI Woodmere, LLC
|
Limited Liability Company | Yes | Delaware | 4269106 | No |
ANNEX C
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF TRADE AND FICTITIOUS NAMES
The Company and its Subsidiaries operate fitness clubs under the names “New York Sports Clubs”,
“Washington Sports Clubs”, “Boston Sports Club”, and “Philadelphia Sports Clubs” and use the
abbreviations “NYSC”, “WSC”, “BSC” and “PSC”, respectively, generally within an oval logo. Set out
below is a list of the Company and its Subsidiaries and the trade or fictitious name(s) each
operates under:
Name of Assignor | Trade and/or Fictitious Names | |
Town Sports International, LLC
|
None | |
TSI 217 Broadway, LLC
|
NYSC | |
TSI Alexandria, LLC
|
WSC | |
TSI Alexandria West, LLC
|
None | |
TSI Allston, LLC
|
BSC | |
TSI Andover, LLC
|
BSC | |
TSI Ardmore, LLC
|
PSC | |
TSI Arthro-Fitness Services, LLC
|
NYSC | |
TSI Astoria, LLC
|
NYSC | |
TSI Battery Park, LLC
|
NYSC | |
TSI Xxx Xxxxx 00xx Xxxxxx, LLC
|
NYSC | |
TSI Bayonne, LLC
|
NYSC | |
TSI Bayridge, LLC
|
NYSC | |
TSI Bensonhurst, LLC
|
NYSC | |
TSI Bethesda, LLC
|
WSC | |
TSI Boylston, LLC
|
BSC | |
TSI Broadway, LLC
|
NYSC | |
TSI Brooklyn Belt, LLC
|
NYSC | |
TSI Brunswick, LLC
|
NYSC | |
TSI Bulfinch, LLC
|
BSC | |
TSI Xxxxxx, LLC
|
NYSC | |
TSI Carmel, LLC
|
NYSC | |
TSI Cash Management, LLC
|
None | |
TSI Central Square, LLC
|
BSC |
ANNEX C
Page 2
Page 2
Name of Assignor | Trade and/or Fictitious Names | |
TSI Cherry Hill, LLC
|
PSC | |
TSI Chevy Chase, LLC
|
WSC | |
TSI Clarendon, LLC
|
WSC | |
TSI Xxxxxxx, LLC
|
NYSC | |
TSI Cobble Hill, LLC
|
NYSC | |
TSI Colonia, LLC
|
NYSC | |
TSI Columbia Heights, LLC
|
WSC | |
TSI Commack, LLC
|
NYSC | |
TSI Connecticut Avenue, LLC
|
WSC | |
TSI Court Street, LLC
|
NYSC | |
TSI Croton, LLC
|
NYSC | |
TSI Danbury, LLC
|
NYSC | |
TSI Xxxxx Square, LLC
|
BSC | |
TSI Dedham, LLC
|
BSC | |
TSI Deer Park, LLC
|
NYSC | |
TSI Xxxxx Ferry, LLC
|
NYSC | |
TSI Downtown Crossing, LLC
|
BSC | |
TSI Dupont Circle, Inc.
|
None | |
TSI Dupont II, Inc.
|
None | |
TSI East Brunswick, LLC
|
NYSC | |
TSI East Meadow, LLC
|
NYSC | |
TSI East 23, LLC
|
NYSC | |
TSI East 31, LLC
|
NYSC | |
TSI East 34, LLC
|
NYSC | |
TSI East 36, LLC
|
NYSC | |
TSI East 41, LLC
|
NYSC | |
TSI East 48, LLC
|
NYSC | |
TSI East 51, LLC
|
NYSC | |
TSI East 59, LLC
|
NYSC | |
TSI East 76, LLC
|
NYSC | |
TSI East 86, LLC
|
NYSC |
ANNEX C
Page 3
Page 3
Name of Assignor | Trade and/or Fictitious Names | |
TSI East 91, LLC
|
NYSC | |
TSI Englewood, LLC
|
NYSC | |
TSI F Street, LLC
|
WSC | |
TSI Fairfax, LLC
|
WSC | |
TSI Fenway, LLC
|
BSC | |
TSI First Avenue, LLC
|
NYSC | |
TSI Forest Hills, LLC
|
NYSC | |
TSI Fort Xxx, LLC
|
NYSC | |
TSI Framingham, LLC
|
BSC | |
TSI Franklin (MA), LLC
|
BSC | |
TSI Franklin Park, LLC
|
NYSC | |
TSI Freehold, LLC
|
NYSC | |
TSI Gallery Place, LLC
|
WSC | |
TSI Garden City, LLC
|
NYSC | |
TSI Garnerville, LLC
|
NYSC | |
TSI Georgetown, LLC
|
WSC | |
TSI Germantown, LLC
|
WSC | |
TSI Glendale, LLC
|
NYSC | |
TSI Xxxxxx, LLC
|
WSC | |
TSI Grand Central, LLC
|
NYSC | |
TSI Great Neck, LLC
|
NYSC | |
TSI Greenwich, LLC
|
NYSC | |
TSI Hartsdale, LLC
|
NYSC | |
TSI Hawthorne, LLC
|
NYSC | |
TSI Herald, LLC
|
NYSC | |
TSI Hicksville, LLC
|
NYSC | |
TSI Highpoint, LLC
|
PSC | |
TSI Hoboken, LLC
|
NYSC | |
TSI Hoboken North, LLC
|
NYSC | |
TSI Holdings (CIP), LLC
|
None | |
TSI Holdings (DC), LLC
|
None |
ANNEX C
Page 4
Page 4
Name of Assignor | Trade and/or Fictitious Names | |
TSI Holdings (MA), LLC
|
None | |
TSI Holdings (MD), LLC
|
None | |
TSI Holdings (NJ), LLC
|
None | |
TSI Holdings (PA), LLC
|
None | |
TSI Holdings (VA), LLC
|
None | |
TSI Huntington, LLC
|
NYSC | |
TSI International, Inc.
|
None | |
TSI Irving Place, LLC
|
NYSC | |
TSI Jamaica Estates, LLC
|
NYSC | |
TSI Jersey City, LLC
|
NYSC | |
TSI K Street, LLC
|
WSC | |
TSI Larchmont, LLC
|
NYSC | |
TSI Lexington (MA), LLC
|
BSC | |
TSI Lincoln, LLC
|
NYSC | |
TSI Xxxxxxxxxx, LLC
|
NYSC | |
TSI Long Beach, LLC
|
NYSC | |
TSI Lynnfield, LLC
|
BSC | |
TSI M Street, LLC
|
WSC | |
TSI Mahwah, LLC
|
NYSC | |
TSI Mamaroneck, LLC
|
NYSC | |
TSI Market Street, LLC
|
PSC | |
TSI Marlboro, LLC
|
NYSC | |
TSI Matawan, LLC
|
NYSC | |
TSI Xxxxxx Street, LLC
|
NYSC | |
TSI Midwood, LLC
|
NYSC | |
TSI Montclair, LLC
|
NYSC | |
TSI Xxxxxx Park, LLC
|
NYSC | |
TSI Xxxxxx Hill, LLC
|
NYSC | |
TSI Nanuet, LLC
|
NYSC | |
TSI Natick, LLC
|
BSC | |
TSI New Xxxxxxxx, LLC
|
NYSC |
ANNEX C
Page 5
Page 5
Name of Assignor | Trade and/or Fictitious Names | |
TSI Newark, LLC
|
NYSC | |
TSI Newbury Street, LLC
|
BSC | |
TSI Xxxxxx, LLC
|
BSC | |
TSI No Sweat, LLC
|
No Sweat | |
TSI North Bethesda, LLC
|
WSC | |
TSI Norwalk, LLC
|
NYSC | |
TSI Oceanside, LLC
|
NYSC | |
TSI Old Bridge, LLC
|
NYSC | |
TSI Parsippany, LLC
|
NYSC | |
TSI Plainsboro, LLC
|
NYSC | |
TSI Port Jefferson, LLC
|
NYSC | |
TSI Princeton, LLC
|
NYSC | |
TSI Princeton North, LLC
|
NYSC | |
TSI Providence Downtown, LLC
|
BSC I | |
TSI Providence Eastside, LLC
|
BSC II | |
TSI Radnor, LLC
|
PSC | |
TSI Xxxxxx, LLC
|
NYSC | |
TSI Reade Street, LLC
|
NYSC | |
TSI Xxxx Park, LLC
|
NYSC | |
TSI Ridgewood, LLC
|
NYSC | |
TSI Rodin Place, LLC
|
PSC | |
TSI Scarsdale, LLC
|
NYSC | |
TSI Seaport, LLC
|
NYSC | |
TSI Sheridan, LLC
|
NYSC | |
TSI Silver Spring, LLC
|
WSC | |
TSI Smithtown, LLC
|
NYSC | |
TSI Society Hill, LLC
|
PSC | |
TSI Soho, LLC
|
NYSC | |
TSI Xxxxxx, LLC
|
NYSC | |
TSI Somerset, LLC
|
NYSC | |
TSI South Bethesda, LLC
|
WSC |
ANNEX C
Page 6
Page 6
Name of Assignor | Trade and/or Fictitious Names | |
TSI South End, LLC
|
BSC | |
TSI South Park Slope, LLC
|
NYSC | |
TSI South Station, LLC
|
BSC | |
TSI Springfield, LLC
|
NYSC | |
TSI Stamford Downtown, LLC
|
NYSC | |
TSI Stamford Post, LLC
|
NYSC | |
TSI Stamford Rinks, LLC
|
NYSC | |
TSI Staten Island, LLC
|
NYSC | |
TSI Sterling, LLC
|
WSC | |
TSI Sunnyside, LLC
|
NYSC | |
TSI Syosset, LLC
|
NYSC | |
TSI University Management, LLC
|
None | |
TSI Varick Street, LLC
|
NYSC | |
TSI Wall Street, LLC
|
NYSC | |
TSI Waltham, LLC
|
BSC | |
TSI Washington, Inc.
|
WSC | |
TSI Water Street, LLC
|
NYSC | |
TSI Watertown, LLC
|
BSC | |
TSI Wayland, LLC
|
None | |
TSI Wellesley, LLC
|
BSC | |
TSI Wellington Circle, LLC
|
BSC | |
TSI West Xxxxxxxx, LLC
|
NYSC | |
TSI West Hartford, LLC
|
NYSC | |
TSI West Xxxxxx, LLC
|
BSC | |
TSI West Nyack, LLC
|
NYSC | |
TSI West Springfield, LLC
|
WSC | |
TSI West 14, LLC
|
NYSC | |
TSI West 16, LLC
|
NYSC | |
TSI West 23, LLC
|
NYSC | |
TSI West 38, LLC
|
NYSC | |
TSI West 41, LLC
|
NYSC |
ANNEX C
Page 7
Page 7
Name of Assignor | Trade and/or Fictitious Names | |
TSI West 44, LLC
|
NYSC | |
TSI West 48, LLC
|
NYSC | |
TSI West 52, LLC
|
NYSC | |
TSI West 73, LLC
|
NYSC | |
TSI West 76, LLC
|
NYSC | |
TSI West 80, LLC
|
NYSC | |
TSI West 94, LLC
|
NYSC | |
TSI West 115th Street, LLC
|
NYSC | |
TSI West 125, LLC
|
NYSC | |
TSI West 145th Street, LLC
|
NYSC | |
TSI Westport, LLC
|
NYSC | |
TSI Westborough, LLC
|
BSC | |
TSI Westwood, LLC
|
NYSC | |
TSI Weymouth, LLC
|
BSC | |
TSI White Plains City Center, LLC
|
NYSC | |
TSI White Plains, LLC
|
NYSC | |
TSI Whitestone, LLC
|
NYSC | |
TSI Woburn, LLC
|
BSC | |
TSI Woodmere, LLC
|
NYSC |
ANNEX D
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
DESCRIPTION OF COMMERCIAL TORT CLAIMS
Name of Assignor | Description of Commercial Tort Claims | |
Town Sports International, LLC
|
On September 22, 2009, in an action styled Town Sports International, LLC v. Ajilon Solutions, a division of Ajilon Professional Staffing LLC (Supreme Court of the State of New York, New York County, 602911-09), Town Sports International, LLC (“TSI”) brought an action in the Supreme Court of the State of New York, New York County, against Ajilon for breach of contract, conversion, and replevin, seeking, among other things, money damages against Ajilon for breaching its agreement to design and deliver to TSI a new sports club enterprise management system known as GIMS, including failing to provide copies of the computer source code written for GIMS, related documentation, properly identified requirements documents and other property owned and licensed by TSI. Subsequently, on October 14, 2009, Ajilon brought a counterclaim against TSI alleging, among other things, failure to pay outstanding invoices in the amount of $2.9 million. On March 7, 2011, TSI amended its complaint to add claims against Ajilon for fraud, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. |
ANNEX E
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF MARKS AND APPLICATIONS;
INTERNET DOMAIN NAME REGISTRATIONS
INTERNET DOMAIN NAME REGISTRATIONS
1. | Marks and Applications: None. | ||
2. | Internet Domain Name Registrations: |
Domain | Date Created | Date Expires | Registrant | Vendor | ||||
XXXXXXXXXXXX.XXX
|
06/20/2007 | 06/202014 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXX.XXX
|
01/3/2001 | 01/3/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XX
|
07/29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXXXXXX.XXX
|
05/14/1998 | 05/13/2013 | Xxxxxx Xxxxxxx | Domain Registry of Americas | ||||
XXXXXXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXXXXXXXXX.XXX
|
05/14/1998 | 05/13/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXX.XXX
|
08/23/2004 | 08/23/2011 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXX.XXX
|
12/31/2002 | 12/31/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXX.XXX
|
03/24/2008 | 03/24/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXX.XXX
|
07/24/2008 | 07/24/2017 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
07/24/2008 | 07/24/2017 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXX.XXX
|
03/24/2008 | 03/24/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXX.XXX
|
03/24/2008 | 03/24/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXX.XXX
|
03/24/2008 | 03/24/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXX.XXX
|
02/13/2006 | 02/13/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXX.XXX
|
01/3/2001 | 01/3/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXX.XX
|
07/29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXX.XX
|
07/29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXXX.XXX
|
06/27/2000 | 06/27/2018 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXX.XXX
|
07/17/2001 | 07/17/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXX.XXX
|
07/18/2001 | 07/18/2013 | Xxxxxx Xxxxxxx | Domain Registry of America |
Exhibit E
Page 2
Page 2
Domain | Date Created | Date Expires | Registrant | Vendor | ||||
XXXXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXXX.XXX
|
02/15/2007 | 02/15/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXX.XXXX
|
02/15/2007 | 02/15/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry Of America |
||||
XXXXXXXXXXXXXXXXXX.XX
|
07/29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXX.XXX
|
04/20/2005 | 04/19/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXX.XXX
|
04/20/2005 | 04/20/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXX.XXX
|
04/20/2005 | 04/20/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXX.XXX
|
04/20/2005 | 04/19/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXX.XXX
|
04/20/2005 | 04/20/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXX.XXX
|
12/02/1995 | 12/01/2014 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXX.XXX
|
10/19/2001 | 10/19/2013 | Xxxxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXX.XXX
|
05/14/1998 | 05/13/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXXX.XX
|
07./29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXXXXXXXXXXXXX.XXX
|
01/18/2005 | 01/18/2016 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXXXXXXXXXX.XXX
|
12/31/2002 | 12/31/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXX.XXX
|
04/26/2006 | 04/26/2015 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXX.XXX
|
11/22/2006 | 11/22/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
12/31/2002 | 12/31/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
12/31/2002 | 12/31/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
03/20/2002 | 03/20/2014 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXX-XXXX-XXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXX.XXX
|
10/31/2000 | 10/31/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXX-XXXXX-XXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America |
Exhibit E
Page 3
Page 3
Domain | Date Created | Date Expires | Registrant | Vendor | ||||
XXXXXX-XXXXX-XXXXXXXX.XXX
|
03/20/2002 | 03/20/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXX-XXXXXX.XXX
|
05/27/1998 | 05/26/2012 | Town Sports International | Network Solutions, LLC |
||||
XXXXXXXXXXXXXX.XXX
|
05/27/1998 | 05/26/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXX.XXX
|
02/20/1997 | 02/21/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXX.XXX
|
08/3/1996 | 08/2/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXX.XXX
|
03/10/2000 | 03/10/2013 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXXX.XX
|
07/29/2010 | 07/28/2011 | Xxxxxx Xxxxxxx | XxXxxxx.xxx, Inc. | ||||
XXXXXXXXXXXXXXXXXXXXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXXXXXXXXXXXXXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America | ||||
XXX.XXXX
|
09/26/2006 | 09/26/2011 | Xxxxxx Xxxxxxx | Dotster Inc. | ||||
XXXXXXXX.XXX
|
10/15/1998 | 10/14/2012 | Xxxxxx Xxxxxxx | Domain Registry of America |
ANNEX F
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF PATENTS
None.
ANNEX G
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS
None.
ANNEX H
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
IN UNITED STATES TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged,
[Name of Grantor], a __________ _________ (the “Grantor”) with principal offices at
____________________________, hereby grants to Deutsche Bank Trust Company Americas, as Collateral
Agent, with principal offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Grantee”),
a continuing security interest in (i) all of the Grantor’s right, title and interest in and to the
United States trademarks, trademark registrations and trademark applications (the “Marks”)
set forth on Schedule A attached hereto, (ii) all Proceeds (as such term is defined in the Security
Agreement referred to below) and products of the Marks, (iii) the goodwill of the businesses with
which the Marks are associated and (iv) all causes of action arising prior to or after the date
hereof for infringement of any of the Marks or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment of all the Obligations
of the Grantor, as such term is defined in the Security Agreement among the Grantor, the other
assignors from time to time party thereto and the Grantee, dated as of May 11, 2011 (as amended,
modified, restated and/or supplemented from time to time, the “Security Agreement”). Upon
the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall
execute, acknowledge, and deliver to the Grantor an instrument in writing releasing the security
interest in the Marks acquired under this Grant.
Notwithstanding anything herein to the contrary, no security interest is granted in
“intent-to-use” applications for registration of a Xxxx filed pursuant to Section 1(b) of the
Xxxxxx Act, 15 U.S.C. § 1051, prior to the filing of a “Statement of Use” pursuant to Section 1(d)
of the Xxxxxx Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the
Annex H
Page 2
Page 2
Xxxxxx Act with respect thereto, to the extent that, and during the period in which, the grant
of a security interest therein would impair the validity or enforceability of any registration that
issues from such intent-to-use application under applicable federal law.
This Grant has been granted in conjunction with the security interest granted to the Grantee
under the Security Agreement. The rights and remedies of the Grantee with respect to the security
interest granted herein are as set forth in the Security Agreement, all terms and provisions of
which are incorporated herein by reference. In the event that any provisions of this Grant are
deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall
govern.
* * *
Annex H
Page 3
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Grant as of the ____ day of
____________, ___.
[NAME OF GRANTOR], Grantor |
||||
By | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent and Grantee |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
Annex H
Page 4
Page 4
STATE OF
|
) | |||||||
) | ss.: | |||||||
COUNTY OF
|
) | |||||||
On this ____ day of _________, ____, before me personally came ________ ________________ who,
being by me duly sworn, did state as follows: that [s]he is ______________ of [Name of Grantor],
that [s]he is authorized to execute the foregoing Grant on behalf of said ____________ and that
[s]he did so by authority of the [Board of Directors] of said ___________.
STATE OF
|
) | |||||||
) | ss: | |||||||
COUNTY OF
|
) | |||||||
On this ____ day of _________, ____, before me personally came ________ _____________________
who, being by me duly sworn, did state as follows: that [s]he is __________________ of Deutsche
Bank Trust Company Americas, that [s]he is authorized to execute the foregoing Grant on behalf of
said corporation and that [s]he did so by authority of the Board of Directors of said corporation.
SCHEDULE A
XXXX | REG. NO. | REG. DATE | ||
ANNEX I
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
IN UNITED STATES PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged,
[Name of Grantor], a __________ _________ (the “Grantor”) with principal offices at
____________________________, hereby grants to Deutsche Bank Trust Company Americas, as Collateral
Agent, with principal offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Grantee”),
a continuing security interest in (i) all of the Grantor’s rights, title and interest in and to the
United States patents (the “Patents”) set forth on Schedule A attached hereto, in each case
together with (ii) all Proceeds (as such term is defined in the Security Agreement referred to
below) and products of the Patents, and (iii) all causes of action arising prior to or after the
date hereof for infringement of any of the Patents or unfair competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment of all the Obligations
of the Grantor, as such term is defined in the Security Agreement among the Grantor, the other
assignors from time to time party thereto and the Grantee, dated as of May 11, 2011 (as amended,
modified, restated and/or supplemented from time to time, the “Security Agreement”). Upon
the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall
execute, acknowledge, and deliver to the Grantor an instrument in writing releasing the security
interest in the Patents acquired under this Grant.
This Grant has been granted in conjunction with the security interest granted to the Grantee
under the Security Agreement. The rights and remedies of the Grantee with respect to the security
interest granted herein are as set forth in the Security Agreement, all terms and provisions of
which are incorporated herein by reference. In the event that any provisions of this Grant are
deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall
govern.
Annex I
Page 3
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Grant as of the ____ day of
____________, ___.
[NAME OF GRANTOR], Grantor |
||||
By | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent and Grantee |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
Annex I
Page 4
Page 4
STATE OF
|
) | |||||||
) | ss: | |||||||
COUNTY OF
|
) | |||||||
On this ____ day of _________, ____, before me personally came ________ ________________ who,
being by me duly sworn, did state as follows: that [s]he is ______________ of [Name of Grantor],
that [s]he is authorized to execute the foregoing Grant on behalf of said ____________ and that
[s]he did so by authority of the Board of Directors of said ___________.
STATE OF
|
) | |||||||
) | ss: | |||||||
COUNTY OF
|
) | |||||||
On this ____ day of _________, ____, before me personally came ________ _____________________
who, being by me duly sworn, did state as follows: that [s]he is __________________ of Deutsche
Bank Trust Company Americas, that [s]he is authorized to execute the foregoing Grant on behalf of
said corporation and that [s]he did so by authority of the Board of Directors of said corporation.
SCHEDULE A
PATENT | PATENT NO. | ISSUE DATE | ||
ANNEX J
to
SECURITY AGREEMENT
to
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
IN UNITED STATES COPYRIGHTS
WHEREAS, [Name of Grantor], a _______________ _____________ (the “Grantor”), having
its chief executive office at _____, _____, is the owner of all right, title and interest in and to the United States
copyrights and associated United States copyright registrations and applications for registration
set forth in Schedule A attached hereto;
WHEREAS, DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent, having its principal
offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Grantee”), desires to acquire a
security interest in said copyrights and copyright registrations and applications therefor; and
WHEREAS, the Grantor is willing to grant to the Grantee a security interest in and lien upon
the copyrights and copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and subject to the terms and conditions of the Security Agreement, dated as of May
11, 2011, made by the Grantor, the other assignors from time to time party thereto and the Grantee
(as amended, modified, restated and/or supplemented from time to time, the “Security
Agreement”), the Grantor hereby assigns to the Grantee as collateral security, and grants to
the Grantee a continuing security interest in, the copyrights and copyright registrations and
applications therefor set forth in Schedule A attached hereto.
Upon the occurrence of the Termination Date (as defined in the Security Agreement), the
Grantee shall execute, acknowledge, and deliver to the Grantor an instrument in writing releasing
the security interest in the Copyrights acquired under this Grant.
This Grant has been granted in conjunction with the security interest granted to the Grantee
under the Security Agreement. The rights and remedies of the Grantee with respect to the security
interest granted herein are as set forth in the Security Agreement, all terms and provisions of
which are incorporated herein by reference. In the event that any provisions of this Grant are
deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall
govern.
* * *
Annex J
Page 2
Page 2
EXECUTED AT __________________, ________________ the ____ day of ____________, ___.
[NAME OF GRANTOR], Grantor |
||||
By | ||||
Name: | ||||
Title: | ||||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent and Grantee |
||||
By | ||||
Name: | ||||
Title: | ||||
By | ||||
Name: | ||||
Title: | ||||
Annex J
Page 3
Page 3
STATE OF
|
) | |||||||
) | ss: | |||||||
COUNTY OF
|
) | |||||||
On this __ day of _________, ____, before me personally came ___________ ______________, who
being duly sworn, did depose and say that [s]he is ___________________ of [Name of Grantor], that
[s]he is authorized to execute the foregoing Grant on behalf of said corporation and that [s]he did
so by authority of the Board of Directors of said corporation.
STATE OF
|
) | |||||||
) | ss.: | |||||||
COUNTY OF
|
) | |||||||
On this ____ day of _________, ____, before me personally came ________ __________________
who, being by me duly sworn, did state as follows: that [s]he is __________________ of Deutsche
Bank Trust Company Americas, that [s]he is authorized to execute the foregoing Grant on behalf of
said __________ and that [s]he did so by authority of the Board of Directors of said ____________.