Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 138 825K
Business-Combination Transaction
2: EX-2.1 Exhibit 2.1 Merger Agreement 102 369K
3: EX-2.2 Exhibit 2.2 Amendment to Merger Agreement 5 28K
4: EX-2.3 Exhibit 2.3 Articles of Merger 4 24K
5: EX-2.4 Exhibit 2.4 Stock Purchase Agreement 4/22/97 30 119K
6: EX-2.6 Exhibit 2.6 Asset Purchase Agreement 4/25/97 124 395K
7: EX-2.7 Exhibit 2.7 Asset Purchase Agreement 4/17/96 67 222K
8: EX-2.8 Amendment to Asset Purchase Agreement 4/26/96 9 37K
9: EX-3.1 Certificate of Amended and Restated of Inc. 4 23K
10: EX-3.2 Exhibit 3.2 By-Laws 4 25K
11: EX-4.1 Exhibit 4.1 Indenture 105 465K
12: EX-4.3 Exchange and Registration Rights Agreement 19 85K
13: EX-4.4 Exhibit 4.4 Global Note 14 61K
14: EX-10.1 Exhibit 10.1 Distribution Agreement 18 62K
23: EX-10.10 Exhibit 10.10 Term Note (5/21/97)(First Source Fin 4 26K
24: EX-10.11 Exhibit 10.11 Term Note (5/21/97) Nationsbank 4 26K
25: EX-10.12 Exhibit 10.12 Acquisition Note(Bankboston) 4 27K
26: EX-10.13 Exhibit 10.13 Acquisition Note (First Source Fin) 4 27K
27: EX-10.14 Exhibit 10.14 Acquisition Note (Southtrust) 4 27K
28: EX-10.15 Exhibit 10.15 Acquisition Note(Nationsbank) 4 27K
29: EX-10.16 Exhibit 10.16 Credit Agreement 250 877K
30: EX-10.17 Exhibit 10.17 Guarantee and Collateral Agreement 59 225K
31: EX-10.18 Exhibit 10.18 Consent and Release of Lenders 9 31K
32: EX-10.19 Exhibit 10.19 Consent and Release of Pnc 5 30K
15: EX-10.2 Exhibit 10.2 License Agreement 11 46K
33: EX-10.20 Exhibit 10.20 Statement of Understanding 23 76K
34: EX-10.21 Supp #1 to Statement of Understanding 5/31/89 3 21K
35: EX-10.22 Supp #2 to Statement of Understanding 11/27/90 2 21K
36: EX-10.23 Supp #3 to Statement of Understanding 11/18/92 2 21K
37: EX-10.24 Supp #4 to Statement of Understanding 11/9/94 2 21K
38: EX-10.25 Supp #5 to Statement of Understanding 1/16/97 2 21K
39: EX-10.26 Statement of Understanding 1/28/88 Merrick 12 55K
40: EX-10.27 Joint Venture Agreement (Mfa) 24 67K
41: EX-10.28 Joint Venture Agreement (J.R. Simplot) 31 112K
42: EX-10.29 Joint Venture Agreement (Flint River) 20 86K
16: EX-10.3 Exhibit 10.3 Guaranty Agreement 6 31K
43: EX-10.30 Statement of Understanding (8/10/93) (Phelps) 22 69K
44: EX-10.31 Purchase Agreement (5/16/97) 29 129K
45: EX-10.32 Trademark License and Option Agreement 27 93K
46: EX-10.33 Trademark License Agreement 11 46K
47: EX-10.34 License Agreement 12 50K
48: EX-10.35 Transition Storage and Handling Agreement 9 38K
49: EX-10.36 Transition Services Agreement 13 52K
50: EX-10.37 Lease Agreement (W. Fred Williams) 24 102K
51: EX-10.38 Lease Agreement (Eastpark) 24 101K
52: EX-10.39 Software License Agreement 4 24K
17: EX-10.4 Exhibit 10.4 Memorandum of Agreement 7 44K
53: EX-10.40 Employment (Dale) 8 45K
54: EX-10.41 Employment Agreement (Gadd) 8 45K
55: EX-10.42 Employment Agreement (Cowan) 8 45K
56: EX-10.43 Employment Agreement (Oakley) 8 45K
57: EX-10.44 Amended and Restated Management Services Agreement 5 32K
58: EX-10.45 Agreement (Windy & Bruckmann) 3 21K
59: EX-10.46 Exhibit 10.46 (Whpf, Windy & Bruckman) Agreement 3 20K
18: EX-10.5 Exhibit 10.5 Assignment of Trademarks 11 47K
19: EX-10.6 Exhibit 10.6 Employee Benefits Agreements 1 17K
20: EX-10.7 Exhibit 10.7 Disbursing Agreement 21 79K
21: EX-10.8 Exhibit 10.8 Term Note (5/21/97) (Bankboston) 4 26K
22: EX-10.9 Exhibit 10.9 Term Note (5/21/97) (Southtrust) 4 27K
60: EX-12.1 Statement of Computation of Ratios 1 17K
61: EX-25.1 Statement of Eligibility on Form T-1 30 103K
62: EX-99.1 Form of Exchange Agent Agreement 14 55K
63: EX-99.2 Form of Letter of Transmittal 8 41K
64: EX-99.3 Form of Notice of Guarantee Delivery 3 22K
EX-10.17 — Exhibit 10.17 Guarantee and Collateral Agreement
Exhibit Table of Contents
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GUARANTEE AND COLLATERAL AGREEMENT
made by
each of the Grantors (as defined herein)
in favor of
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
Dated as of May 21, 1997
================================================================================
TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS............................................ 1
1.1 Definitions............................................... 1
1.2 Other Definitional Provisions............................. 5
SECTION 2. GUARANTEE................................................ 5
2.1 Guarantee................................................. 5
2.2 Right of Contribution..................................... 6
2.3 No Subrogation............................................ 6
2.4 Amendments, etc. with respect to the Borrower Obligations. 6
2.5 Guarantee Absolute and Unconditional...................... 7
2.6 Reinstatement............................................. 7
2.7 Payments.................................................. 8
SECTION 3. GRANT OF SECURITY INTEREST............................... 8
SECTION 4. REPRESENTATIONS AND WARRANTIES........................... 8
4.1 Representations in Credit Agreement....................... 9
4.2 Title; No Other Liens..................................... 9
4.3 Perfected First Priority Liens............................ 9
4.4 Chief Executive Office.................................... 9
4.5 Inventory and Equipment................................... 9
4.6 Farm Products............................................. 9
4.7 Pledged Securities........................................ 9
4.8 Accounts.................................................. 10
4.9 Intellectual Property..................................... 10
SECTION 5. COVENANTS................................................ 10
5.1 Covenants in Credit Agreement............................. 10
5.2 Delivery of Instruments and Chattel Paper................. 11
5.3 Maintenance of Insurance.................................. 11
5.4 Payment of Obligations.................................... 11
5.5 Maintenance of Perfected Security Interest; Further
Documentation ........................................... 11
5.6 Changes in Locations, Name, etc........................... 12
5.7 Notices................................................... 12
5.8 Pledged Securities........................................ 12
5.9 Accounts.................................................. 13
5.10 Intellectual Property..................................... 13
5.11 Covenants of Holdings..................................... 15
5.12 Covenants of WHPF......................................... 15
5.13 Covenants of Armour....................................... 16
SECTION 6. REMEDIAL PROVISIONS...................................... 17
6.1 Certain Matters Relating to Accounts...................... 17
6.2 Communications with Obligors; Grantors Remain Liable...... 19
6.3 Pledged Stock............................................. 20
6.4 Proceeds to be Turned Over To Administrative Agent........ 20
6.5 Application of Proceeds................................... 21
6.6 Code and Other Remedies................................... 21
6.7 Registration Rights....................................... 22
6.8 Waiver; Deficiency........................................ 22
SECTION 7. THE ADMINISTRATIVE AGENT................................. 23
7.1 Administrative Agent's Appointment as Attorney-in-Fact,
etc ..................................................... 23
7.2 Duty of Administrative Agent.............................. 24
7.3 Execution of Financing Statements......................... 24
7.4 Authority of Administrative Agent......................... 25
SECTION 8. MISCELLANEOUS............................................ 25
8.1 Amendments in Writing..................................... 25
8.2 Notices................................................... 25
8.3 No Waiver by Course of Conduct; Cumulative Remedies....... 25
8.4 Enforcement Expenses; Indemnification..................... 25
8.5 Successors and Assigns.................................... 26
8.6 Set-Off................................................... 26
8.7 Counterparts.............................................. 26
8.8 Severability.............................................. 26
8.9 Section Headings.......................................... 26
8.10 Integration............................................... 27
8.11 GOVERNING LAW............................................. 27
8.12 Submission To Jurisdiction; Waivers....................... 27
8.13 Acknowledgements.......................................... 27
8.14 WAIVER OF JURY TRIAL...................................... 28
8.15 Additional Grantors....................................... 28
8.16 Releases.................................................. 28
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of May 21, 1997, made
by Windy Hill Pet Food Holdings, Inc., a Delaware corporation ("Holdings"), WHPF
Inc., a Delaware corporation formerly named Windy Hill Pet Food Company, Inc.
("WHPF"), Armour Corporation, a Delaware corporation ("Armour"), Windy Hill Pet
Food Company, Inc., a Minnesota corporation (the "Borrower"), each of the
signatories hereto (WHPF, Armour, the Borrower and each of the signatories
hereto, together with any other subsidiary of the Borrower that becomes a party
hereto from time to time after the date hereof, the ("Grantors")), in favor of
CREDIT SUISSE FIRST BOSTON, as administrative agent (the "Administrative Agent")
for the banks and other financial institutions (the "Lenders") from time to time
parties to the Credit Agreement, dated as of May 21, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Windy Hill Pet Food Acquisition Co., a Minnesota corporation,
("Acquisition Co."), the Lenders, the Administrative Agent and THE CHASE
MANHATTAN BANK, a New York banking corporation, as documentation agent for the
Lenders.
W I T N E S S E T H:
WHEREAS, Acquisition Co. proposes to merge with and into Hubbard
Milling Company, a Minnesota corporation ("Hubbard"), pursuant to the terms of a
Merger Agreement, dated as of March 21, 1997 among Hubbard, Windy Hill Pet Food
Co. Inc., and Acquisition Co., pursuant to which Hubbard will be the surviving
corporation and will be the borrower (the "Borrower") under the Credit
Agreement;
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement that the Grantors shall have executed and delivered this
Agreement to the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New
2
York on the date hereof are used herein as so defined: Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Accounts": all accounts (as defined in the Code) of the Grantors,
including, without limitation all Accounts (as defined in the Credit
Agreement) of the Grantors.
"Agreement": this Guarantee and Collateral Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Agents or any
Lender (or, in the case of any Hedge Agreement referred to below, any
Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, this Agreement, the other Loan Documents, any Letter of Credit
or any Hedge Agreement entered into by the Borrower with the Issuing
Lender, any Lender (or any Affiliate of any Lender) or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative Agent or to
the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of the foregoing agreements).
"Collateral": as defined in Section 3.
"Concentration Account": any concentration account established by
the Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed in Schedule 6), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings
and applications in the United States Copyright Office, and (ii) the right
to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Excluded Property": means (i) any of the Borrower's rights to
indemnification against Hubbard Milling Company ("Hubbard Milling") and
its shareholders under the Merger
3
Agreement, dated as of March 21, 1997, by and among Hubbard Milling, Windy
Hill Pet Food Company, Inc. and Windy Hill Pet Food Acquisition Co. (the
"Merger Agreement") for claims relating to assets transferred pursuant to
(X) the Merger Agreement or (Y) the sale of the Animal Feed Division and
(ii) the Borrower's interest in the escrow accounts established pursuant
to the Merger Agreement, in each case, to the extent a security interest
therein is granted to secure the full and timely payment and performance
by the Borrower of its indemnification obligations under the Asset
Purchase Agreement for the sale of the Animal Feed Division and (iii) all
property of the Animal Feed Division.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9- 106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, including, without
limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which
such Grantor is a party or under which such Grantor has any right, title
or interest or to which such Grantor or any property of such Grantor is
subject, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages arising
thereunder and (iii) all rights of such Grantor to perform and to exercise
all remedies thereunder, in each case to the extent the grant by such
Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is
not prohibited by such contract, agreement, instrument or indenture
without the consent of any other party thereto, would not give any other
party to such contract, agreement, instrument or indenture the right to
terminate its obligations thereunder, or is permitted with consent if all
necessary consents to such grant of a security interest have been obtained
from the other parties thereto (it being understood that the foregoing
shall not be deemed to obligate such Grantor to obtain such consents);
provided, that the foregoing limitation shall not affect, limit, restrict
or impair the grant by such Grantor of a security interest pursuant to
this Agreement in any Account or any money or other amounts due or to
become due under any such contract, agreement, instrument or indenture.
"Guarantor Obligations": with respect to any Guarantor, the
collective reference to (i) the Borrower Obligations and (ii) all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement or any other Loan Document to which such
Guarantor is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders that are required to
be paid by such Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"Guarantors": the collective reference to Holdings and each Grantor
other than the Borrower.
"Hedge Agreements": as to any Person, all interest rate swaps, caps
or collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest obligations,
either generally or under specific contingencies.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign
4
laws or otherwise, including, without limitation, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and
the Trademark Licenses, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by
any Grantor to another Grantor or any of its Subsidiaries.
"Issuers": the collective reference to each issuer of a Pledged
Security.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without
limitation, any of the foregoing referred to in Schedule 6, (ii) all
applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in
Schedule 6, and (iii) all rights to obtain any reissues or extensions of
the foregoing.
"Patent License": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Securities": the collective reference to the Pledged Notes
and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on Schedule 2,
together with any other shares, stock certificates, options or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New York
on the date hereof and, in any event, shall include, without limitation,
all dividends or other income from the Pledged Securities, collections
thereon or distributions or payments with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source
5
or business identifiers, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith other
than any pending intent to use applications for which a statement of use
or an amendment to allege use have not been filed and accepted, whether in
the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, and all common-law rights
related thereto, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) the right to obtain all renewals
thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
in Schedule 6.
"Vehicles": all cars, trucks, trailers, construction and earth
moving equipment and other vehicles and equipment covered by a certificate
of title of any state or of the United States of America and all tires and
other appurtenances to any of the foregoing.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in
6
this Section 2 shall have been satisfied by payment in full, no Letter of Credit
shall be outstanding and the Commitments shall be terminated, notwithstanding
that from time to time during the term of the Credit Agreement the Borrower may
be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are paid in full, no Letter of Credit shall
be outstanding and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 Amendments, etc. with respect to the Borrower Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
7
surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Borrower Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Borrower or any of the Guarantors
with respect to the Borrower Obligations. Each Guarantor understands and agrees
that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Administrative Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any Lender against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the
8
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent located at 11
Madison Avenue, New York, New York 10010.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative
Agent, and hereby grants to the Administrative Agent, for the ratable benefit of
the Lenders, a security interest in, all of the following property now owned or
at any time hereafter acquired by such Grantor or in which such Grantor now has
or at any time in the future may acquire any right, title or interest other than
the Excluded Property (collectively, the "Collateral"), as collateral security
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of such Grantor's Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment (other than Vehicles);
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Pledged Securities;
(j) all books and records pertaining to the Collateral; and
(k) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions
of credit to the Borrower thereunder, each Grantor hereby represents and
warrants to the Administrative Agent and each Lender that:
9
4.1 Representations in Credit Agreement. In the case of each
Guarantor, the representations and warranties set forth in subsection 6 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct, and the Administrative Agent and each Lender
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty to
the Borrower's knowledge shall, for the purposes of this Section 4.1, be deemed
to be a reference to such Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest granted
to the Administrative Agent for the ratable benefit of the Lenders pursuant to
this Agreement and the other Liens permitted to exist on the Collateral by the
Credit Agreement, such Grantor owns each item of the Collateral free and clear
of any and all Liens or claims of others. No financing statement or other public
notice with respect to all or any part of the Collateral is on file or of record
in any public office, except such as have been filed in favor of the
Administrative Agent, for the ratable benefit of the Lenders, pursuant to this
Agreement or as are permitted by the Credit Agreement and except in the case of
public notice filings at the U.S. Patent and Trademark Office which remain "on
file" despite the filing of a subsequent release.
4.3 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for (i) unrecorded Liens permitted by the
Credit Agreement which have priority over the Liens on the Collateral by
operation of law and (ii) Liens described on Schedule 8.
4.4 Chief Executive Office. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 4.
4.5 Inventory and Equipment. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5.
4.6 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) To the best knowledge of such Grantor, each of the Pledged Notes
constitutes the legal, valid and binding obligation of the obligor with respect
thereto, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable
10
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.8 Accounts. (a) No amount payable to such Grantor under or in
connection with any Account is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent.
(b) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Accounts will at such times
be accurate.
(c) The places where such Grantor keeps its records concerning such
Grantor's Accounts are listed on Schedule 7 or such other location or locations
of which such Grantor shall have provided prior written notice to the
Administrative Agent pursuant to Section 5.6 hereof.
4.9 Intellectual Property. (a) Schedule 6 lists all registered
Intellectual Property owned and currently used by such Grantor in its own name
on the date hereof.
(b) On the date hereof, all material registered U.S. Intellectual
Property is valid, subsisting, unexpired and enforceable, has not been abandoned
and , to such Grantor's knowledge and as used in connection with the business of
such Grantor, and, except as set forth in Schedule 6, does not infringe the
intellectual property rights of any other Person.
(c) Except as set forth in Schedule 6, on the date hereof, none of
the Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) Except as set forth in Schedule 6, No action or proceeding is
pending, or, to the knowledge of such Grantor, threatened, on the date hereof
(i) seeking to limit, cancel or question the validity of any Intellectual
Property or such Grantor's ownership interest therein, or (ii) which, if
adversely determined, would have a material adverse effect on the value of any
Intellectual Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and
the Lenders that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each Guarantor,
such Guarantor shall take, or shall refrain from taking, as the case may be,
each action that is necessary to be taken or
11
not taken, as the case may be, so that no Default or Event of Default is caused
by the failure to take such action or to refrain from taking such action by such
Guarantor or any of its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to
this Agreement.
5.3 Maintenance of Insurance. (a) Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory and Equipment against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to the Administrative Agent and
(ii) to the extent requested by the Administrative Agent, insuring such Grantor,
the Administrative Agent and the Lenders against liability for personal injury
and property damage relating to such Inventory and Equipment, such policies to
be in such form and amounts and having such coverage as may be reasonably
satisfactory to the Administrative Agent and the Lenders.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Administrative Agent of
written notice thereof, (ii) name the Administrative Agent as insured party or
loss payee, (iii) if reasonably requested by the Administrative Agent, include a
breach of warranty clause and (iv) be reasonably satisfactory in all other
respects to the Administrative Agent.
(c) The Borrower shall deliver to the Administrative Agent and the
Lenders a report of a reputable insurance broker with respect to such insurance
during the month of June in each calendar year beginning 1998 and such
supplemental reports with respect thereto as the Administrative Agent may from
time to time reasonably request.
5.4 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.5 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative Agent and the
Lenders from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and
12
deliver, and have recorded, such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted, including, without limitation, the filing
of any financing or continuation statements under the Uniform Commercial Code
(or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby.
5.6 Changes in Locations, Name, etc. Such Grantor will not, except
upon 15 days' prior written notice to the Administrative Agent and delivery to
the Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 5 showing any additional
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5;
(ii) change the location of its chief executive office or sole place
of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading.
provided that, prior to taking any such action, or promptly after receiving a
written request therefor from the Administrative Agent, such Grantor shall
deliver to the Administrative Agent all additional executed financing statements
and other documents reasonably requested by the Administrative Agent to maintain
the validity, perfection and priority of the security interests provided for
herein.
5.7 Notices. Such Grantor will advise the Administrative Agent and
the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to exercise any of its
remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 Pledged Securities. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by such Grantor
to the Administrative Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor and with, if
the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent,
13
subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Securities upon the
liquidation or dissolution of any Issuer shall be paid over to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be delivered to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Pledged Securities shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or property in
trust for the Lenders, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Grantor will not (i) vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Pledged Securities or Proceeds thereof (except
pursuant to a transaction expressly permitted by the Credit Agreement), (iii)
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Pledged Securities or Proceeds thereof,
or any interest therein, except for the security interests created by this
Agreement or (iv) enter into any agreement or undertaking restricting the right
or ability of such Grantor or the Administrative Agent to sell, assign or
transfer any of the Pledged Securities or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Pledged Securities issued by it.
5.9 Accounts. (a) Other than in the ordinary course of business
consistent with its past practice, such Grantor will not (i) grant any extension
of the time of payment of any Account, (ii) compromise or settle any Account for
less than the full amount thereof, (iii) release, wholly or partially, any
Person liable for the payment of any Account, (iv) allow any credit or discount
whatsoever on any Account or (v) amend, supplement or modify any Account in any
manner that could adversely affect the value thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of
each material demand, notice or document received by it that questions or calls
into doubt the validity or enforceability of more than 10% of the aggregate
amount of the then outstanding Accounts.
5.10 Intellectual Property. (a) Such Grantor (either itself or
through licensees) will (i) subject to its reasonable business judgment,
continue to use each material registered Trademark on each and every trademark
class of goods applicable to its current line as reflected in its current
catalogs, brochures and price lists in order to maintain such Trademark in full
force free from any claim of abandonment for non-use, (ii) maintain as in the
past the quality of products and services
14
offered under such Trademark, (iii) use such Trademark with the appropriate
notice of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any mark which is confusingly similar
or a colorable imitation of such Trademark unless the Administrative Agent, for
the ratable benefit of the Lenders, shall obtain a perfected security interest
in such mark pursuant to this Agreement, and (v) not (and not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby such Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do
any act, or omit to do any act, whereby any material Patent may become
forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will
employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any portion of the material Copyrights may become invalidated or
otherwise impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any portion of the material Copyrights may fall into the
public domain.
(d) Such Grantor (either itself or through licensees) will not do
any act that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Notwithstanding anything to the contrary, any breach of clauses
(a) through (d) of this Section 5.10 by a licensee shall not be a breach by any
Grantor if the terms of the license granted to such licensee prohibit or require
the licensee to abide by the acts set forth therein and such Grantor is
diligently taking all reasonable action to cause such licensee to comply with
the terms of such licensee.
(f) Such Grantor will notify the Administrative Agent and the
Lenders immediately if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property or such Grantor's right to register the same or
to own and maintain the same.
(g) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within five Business Days after the last day
of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may request to evidence the Administrative Agent's and the Lenders'
security interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.
(h) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
15
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(i) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and sue for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
5.11 Covenants of Holdings. Holdings covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the Loans, any Reimbursement Obligations, and all other
Obligations then due and owing have been paid in full, no Letter of Credit shall
be outstanding and the Commitments shall have terminated:
5.12.1 Holdings shall not conduct or otherwise engage, in any
business or operations other than (i) transactions contemplated by the Loan
Documents or the provision of administrative, legal, accounting and management
services to or on behalf of the Borrower or any of its Subsidiaries, (ii) the
ownership of the Capital Stock of WHPF (or any successor thereto), and the
exercise of rights and performance of obligations in connection therewith, (iii)
the entry into, and exercise of rights and performance of obligations in respect
of, (A) the Transaction Documents to which Holdings is a party, this Guarantee
and Collateral Agreement and the other Loan Documents to which Holdings is a
party, and any other agreement to which Holdings is a party on the date hereof,
in each case as amended, supplemented, waived or otherwise modified from time to
time, and any refinancings, refundings, renewals or extensions thereof, (B)
contracts and agreements with officers, directors and employees of the Holdings
or a Subsidiary thereof relating to their employment or directorships, (C)
insurance policies and related contracts and agreements, and (D) equity
subscription agreements, registration rights agreements, voting and other
stockholder agreements, engagement letters, underwriting agreements and other
agreements in respect of its equity securities or any offering, issuance or sale
thereof, (iv) the offering, issuance and sale of its equity securities, (v) the
filing of registration statements, and compliance with applicable reporting and
other obligations, under federal, state or other securities laws, (vi) the
listing of its equity securities and compliance with applicable reporting and
other obligations in connection therewith, (vii) the retention of transfer
agents, private placement agents, underwriters, counsel, accountants and other
advisors and consultants, (viii) the performance of obligations under and
compliance with its certificate of incorporation and by-laws, or any applicable
law, ordinance, regulation, rule, order, judgment, decree or permit, including,
without limitation, as a result of or in connection with the activities of the
Borrower and its Subsidiaries, (ix) the incurrence and payment of its operating
and business expenses and any taxes for which it may be liable, and (x) other
activities incidental or related to the foregoing.
5.12.2 Holdings shall not own, lease, manage or otherwise operate
any properties or assets (other than in connection with the activities described
in Section 5.12.1 above), or incur, create, assume or suffer to exist any
Indebtedness or Guarantee Obligations of Holdings (other than such as may be
incurred, created or assumed or exist in connection with the activities
described in Section 5.12.1 above).
5.12 Covenants of WHPF. WHPF covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the Loans, any Reimbursement Obligations, and all other
Obligations then due and owing have been paid in full, no Letter of Credit shall
be outstanding and the Commitments shall have terminated:
16
5.13.1 WHPF shall not conduct or otherwise engage, in any business
or operations other than (i) transactions contemplated by the Loan Documents or
the provision of administrative, legal, accounting and management services to or
on behalf of the Borrower or any of its Subsidiaries, (ii) the ownership of the
Capital Stock of the Borrower (or any successor thereto) and Armour, and the
exercise of rights and performance of obligations in connection therewith, (iii)
the entry into, and exercise of rights and performance of obligations in respect
of, (A) the Transaction Documents to which WHPF is a party, this Guarantee and
Collateral Agreement and the other Loan Documents to which WHPF is a party, and
any other agreement to which WHPF is a party on the date hereof, in each case as
amended, supplemented, waived or otherwise modified from time to time, and any
refinancings, refundings, renewals or extensions thereof, (B) contracts and
agreements with officers, directors and employees of WHPF or a Subsidiary
thereof relating to their employment or directorships, (C) insurance policies
and related contracts and agreements, and (D) equity subscription agreements,
registration rights agreements, voting and other stockholder agreements,
engagement letters, underwriting agreements and other agreements in respect of
its equity securities or any offering, issuance or sale thereof, (iv) the
offering, issuance and sale of its equity securities, (v) the filing of
registration statements, and compliance with applicable reporting and other
obligations, under federal, state or other securities laws, (vi) the listing of
its equity securities and compliance with applicable reporting and other
obligations in connection therewith, (vii) the retention of transfer agents,
private placement agents, underwriters, counsel, accountants and other advisors
and consultants, (viii) the performance of obligations under and compliance with
its certificate of incorporation and by-laws, or any applicable law, ordinance,
regulation, rule, order, judgment, decree or permit, including, without
limitation, as a result of or in connection with the activities of the Borrower
and its Subsidiaries, (ix) the incurrence and payment of its operating and
business expenses and any taxes for which it may be liable, and (x) other
activities incidental or related to the foregoing.
5.13.2 WHPF shall not own, lease, manage or otherwise operate any
properties or assets (other than in connection with the activities described in
Section 5.13.1 above), or incur, create, assume or suffer to exist any
Indebtedness or Guarantee Obligations of WHPF (other than such as may be
incurred, created or assumed or exist in connection with the activities
described in Section 5.13.1 above).
5.13 Covenants of Armour. Armour covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the Loans, any Reimbursement Obligations, and all other
Obligations then due and owing have been paid in full, no Letter of Credit shall
be outstanding and the Commitments shall have terminated:
5.14.1 Armour shall not conduct or otherwise engage, in any business
or operations other than (i) transactions contemplated by the Loan Documents or
the provision of administrative, legal, accounting and management services to or
on behalf of the Borrower or any of its Subsidiaries, (ii) the ownership of the
Capital Stock of the Borrower (or any successor thereto), and the exercise of
rights and performance of obligations in connection therewith, (iii) the entry
into, and exercise of rights and performance of obligations in respect of, (A)
the Transaction Documents to which Armour is a party, this Guarantee and
Collateral Agreement and the other Loan Documents to which Armour is a party,
and any other agreement to which Armour is a party on the date hereof, in each
case as amended, supplemented, waived or otherwise modified from time to time,
and any refinancings, refundings, renewals or extensions thereof, (B) contracts
and agreements with officers, directors and employees of Armour or a Subsidiary
thereof relating to their employment or directorships, (C) insurance policies
and related contracts and agreements, and (D) equity subscription agreements,
registration rights agreements, voting and other stockholder agreements,
engagement letters, underwriting agreements and other agreements in respect of
its equity securities or any offering,
17
issuance or sale thereof, (iv) the offering, issuance and sale of its equity
securities, (v) the filing of registration statements, and compliance with
applicable reporting and other obligations, under federal, state or other
securities laws, (vi) the listing of its equity securities and compliance with
applicable reporting and other obligations in connection therewith, (vii) the
retention of transfer agents, private placement agents, underwriters, counsel,
accountants and other advisors and consultants, (viii) the performance of
obligations under and compliance with its certificate of incorporation and
by-laws, or any applicable law, ordinance, regulation, rule, order, judgment,
decree or permit, including, without limitation, as a result of or in connection
with the activities of the Borrower and its Subsidiaries, (ix) the incurrence
and payment of its operating and business expenses and any taxes for which it
may be liable, and (x) other activities incidental or related to the foregoing.
5.14.2 Armour shall not own, lease, manage or otherwise operate any
properties or assets (other than in connection with the activities described in
Section 5.14.1 above), or incur, create, assume or suffer to exist any
Indebtedness or Guarantee Obligations of Armour (other than such as may be
incurred, created or assumed or exist in connection with the activities
described in Section 5.14.1 above).
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Accounts. (a) At any time and from
time to time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent shall have the right to make test
verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and the relevant Grantor shall furnish all such
assistance and information as the Administrative Agent may require in connection
with such test verifications. At any time and from time to time after the
occurrence and during the continuance of an Event of Default, upon the
Administrative Agent's reasonable request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
reasonably satisfactory to the Administrative Agent to furnish to the
Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts.
(b) The Administrative Agent hereby authorizes each Grantor to
collect such Grantor's Accounts and the Administrative Agent may curtail or
terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Administrative Agent at
any time after the occurrence and during the continuance of an Event of Default,
any Proceeds constituting collections of such Accounts, when collected by such
Grantor (excluding any such collections through the Lockbox system), (i) shall
be forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the
Administrative Agent if required, in the Concentration Account established by
such Grantor maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Lenders only as provided in Section , and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and
the other Lenders, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Accounts shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
All Proceeds constituting collections of Accounts while held by the
Concentration Account bank (or by any Guarantor in trust for the benefit of the
Administrative Agent and the other Lenders) shall continue to be collateral
security for all of the Obligations and shall not constitute payment thereof
until applied as hereinafter provided. At any time when an Event of Default has
occurred and is continuing, at the Administrative Agent's election, the
Administrative Agent may apply all or any part of the funds on deposit in the
Concentration Account established by
18
the relevant Grantor to the payment of the Obligations of such Grantor then due
and owing, such application to be made as set forth in Section 6.5 hereof. So
long as no Event of Default has occurred and is continuing, the funds on deposit
in the Concentration Account shall be remitted as provided in Section 6.1(e)
hereof. At any time when an Event of Default has occurred and is continuing, at
the Administrative Agent's request, each Grantor shall deliver to the
Administrative Agent all original and other documents evidencing, and relating
to, the agreements and transactions which gave rise to such Grantor's Accounts,
including, without limitation, all statements relating to such Grantor's
Accounts.
(c) At any time and from time to time after the occurrence and
during the continuance of an Event of Default, at the Administrative Agent's
request, each Grantor shall deliver to the Administrative Agent all original and
other documents evidencing, and relating to, the agreements and transactions
which gave rise to such Grantor's Accounts, including, without limitation, all
original orders, invoices and shipping receipts.
(d) Lockbox System; Concentration Account. (i) Solely to the extent
required under Section 8.11 of the Credit Agreement, each Grantor shall
establish or cause to be established in the name of the Administrative Agent,
and subject to the control of the Administrative Agent pursuant to such
Grantor's Lockbox Agreements, for the benefit of the Administrative Agent and
the other Lenders, such Grantor's Lockbox system into which the Proceeds of all
such Grantor's Accounts shall be deposited and forwarded to the Concentration
Account bank in accordance with and to the extent and when required under such
Lockbox Agreements. On and after the date, if any, on which any Grantor is
required to establish any Lockbox system for so long as such Grantor is required
to maintain such system, (x) such Grantor shall ensure that all account debtors
in respect of such Grantor's Accounts payable in Dollars shall have been given
instructions reasonably satisfactory to the Administrative Agent directing such
account debtors to make all payments on such Accounts by means of deposits into
such Grantor's Lockbox system, (y) without the prior consent of the
Administrative Agent (which consent shall not be unreasonably withheld), such
Grantor shall not, in a manner materially adverse to the Lenders, change the
form of any such instructions given to account debtors, and (z) unless and until
the Administrative Agent shall have advised such Grantor to the contrary, such
Grantor shall, and the Administrative Agent hereby authorizes such Grantor to,
enforce and collect all amounts owing on such Grantor's Accounts, for the
benefit and on behalf of the Administrative Agent and the other Lenders in
accordance with and subject to the provisions of such Grantor's Lockbox
Agreements; provided, however, that such privilege shall automatically be
suspended upon the occurrence and during the continuance of an Event of Default
specified in Section 10(f) of the Credit Agreement with respect to such Grantor
and may at the option of the Administrative Agent be terminated upon the
occurrence and during the continuance of any other Event of Default with respect
to such Grantor or any other Grantor.
(ii) All Proceeds of such Grantor's Accounts which have been received on
any Business Day through such Grantor's Lockbox system will be transferred into
such Grantor's Concentration Account on such Business Day to the extent required
by the applicable Lockbox Agreement. All of such Grantor's Proceeds received on
any Business Day by the Concentration Account bank pursuant to paragraph (b)
above will be transferred into such Grantor's Concentration Account on such
Business Day. Such Concentration Account is, and shall remain, under the sole
dominion and control of the Administrative Agent. Each Grantor acknowledges and
agrees that (A) such Grantor has no right of withdrawal from its Concentration
Account, (B) the funds on deposit in such Grantor's Concentration Account shall
be collateral security for all of such Grantor's Obligations and (C) upon the
occurrence and during the continuance of an Event of Default, at the
Administrative Agent's election, the funds on deposit in such Grantor's
Concentration Account may be applied by the Administrative Agent to
19
the payment of such Grantor's Obligations then due and owing, such application
to be made in the order of priority set forth in Section 6.5 hereof.
(e) Grantor's Account. So long as no Event of Default has occurred
and is continuing, and whether or not any Lockbox system shall have been
established or maintained, the Administrative Agent shall instruct the
Concentration Account bank to promptly remit any funds on deposit in each
Grantor's Concentration Account to such Grantor's Account. In the event that an
Event of Default has occurred and is continuing, the Administrative Agent and
the Grantors agree that the Administrative Agent, at its option, may require
that each Concentration Account be established at Credit Suisse First Boston.
Each Grantor shall have the right, at any time and from time to time, to
withdraw such of its own funds from its own Account, and to maintain such
balances in its Account, as it shall deem to be necessary or desirable.
(f) Restructuring of Deposit Accounts. If (a) any Concentration
Account is maintained at a Concentration Account bank located in a state within
the United States in which Article 9 of the Uniform Commercial Code in effect in
such state has been expressly made applicable to (and only for so long as it is
applicable to) demand deposit accounts and all filings have been made in such
state which are necessary to perfect the Lenders' security interest in such
Concentration Account or (b) after the Effective Date the relevant Grantor
demonstrates to the Administrative Agent, and the Administrative Agent in its
sole discretion agrees, that the costs associated with maintaining both a
Concentration Account and a Grantor's Account outweigh any benefits to the
Lenders in terms of any additional protection to their rights in such Grantor's
Collateral that could not be achieved with the use of a single account, then
upon the request of such Grantor, the Administrative Agent may amend this
Agreement to delete the requirement that a separate Account be maintained and
provide that such Grantor be entitled to withdraw funds on deposit in such
Concentration Account at any time so long as no Event of Default has occurred
and is continuing.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default,
communicate with obligors under the Accounts to verify with them to the
Administrative Agent's satisfaction the existence, amount and terms of any
Accounts.
(b) Upon the request of the Administrative Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Accounts that the Accounts have been assigned to
the Administrative Agent for the ratable benefit of the Lenders and that
payments in respect thereof shall be made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Accounts to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Administrative Agent nor any Lender 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 the receipt by the Administrative Agent or any Lender of
any payment relating thereto, nor shall the Administrative Agent or any Lender
be obligated in any manner to perform any of the obligations of any Grantor
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 it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
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6.3 Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Pledged Securities; provided, however, that
no vote shall be cast or corporate right exercised or other action taken which,
in the Administrative Agent's reasonable judgment, would impair the Collateral
or which would be inconsistent with or result in any violation of any provision
of the Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Pledged Securities shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Pledged Securities at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any Issuer, or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Securities, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Securities with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it, but
the Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In addition
to the rights of the Administrative Agent and the Lenders specified in Section
6.1 with respect to payments of Accounts, if an Event of Default shall occur and
be continuing, all Proceeds received by any Grantor consisting of cash, checks
and other near-cash items shall be held by such Grantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the Administrative Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Administrative Agent, if required). All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Concentration Account maintained under its sole
dominion and control. All Proceeds while held by the Administrative Agent in a
Concentration Account (or by such Grantor in trust for the
21
Administrative Agent and the Lenders) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section .
6.5 Application of Proceeds. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Concentration Account in payment of the Obligations in such order as the
Administrative Agent may elect, and any part of such funds which the
Administrative Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Administrative Agent to the Borrower or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and
be continuing, the Administrative Agent, on behalf of the Lenders, may exercise,
in addition to all other rights and remedies granted to them in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the exercise by them of any rights hereunder. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition.
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6.7 Registration Rights. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 6.7 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.7 will cause irreparable injury to the Administrative Agent and
the Lenders, that the Administrative Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 6.7 shall be specifically enforceable
against such Grantor, and such Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent or any Lender to collect such deficiency.
23
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a)
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Administrative Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any or all of
the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account or with respect to any other Collateral and file any claim or take
any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Account or with respect
to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section
6.6 or 6.7, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and
(v) (i) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (ii) ask or demand for, collect, and receive payment
of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(iii) sign and indorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with
any of the Collateral; (iv) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other
right in respect of any Collateral; (v) defend any suit, action or
proceeding brought against such Grantor with respect to any Collateral;
(vi) settle, compromise or adjust any such suit, action or proceeding and,
in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate; (vii) assign any Copyright,
Patent or Trademark (along with the goodwill of the business to which any
such Copyright, Patent or Trademark pertains), throughout the world for
such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (viii)
generally, sell, transfer, pledge and make any agreement with respect to
or otherwise deal with
24
any of the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and do, at the
Administrative Agent's option and such Grantor's expense, at any time, or
from time to time, all acts and things which the Administrative Agent
deems necessary to protect, preserve or realize upon the Collateral and
the Administrative Agent's and the Lenders' security interests therein and
to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due ABR Loans under the Credit Agreement, from the date
of payment by the Administrative Agent to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent's and the Lenders' interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
25
7.4 Authority of Administrative Agent. Each Grantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Grantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with subsection 12.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 12.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees
to pay or reimburse each Lender and the Administrative Agent for all its costs
and expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
26
(c) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the
extent the Borrower would be required to do so pursuant to subsection 12.5 of
the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Administrative Agent and each Lender at any time and from time to time while an
Event of Default pursuant to subsection 10(a) of the Credit Agreement shall have
occurred and be continuing, without notice to such Grantor or any other Grantor,
any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Administrative Agent or such
Lender may elect, against and on account of the obligations and liabilities of
such Grantor to the Administrative Agent or such Lender hereunder and claims of
every nature and description of the Administrative Agent or such Lender against
such Grantor, in any currency, whether arising hereunder, under the Credit
Agreement, any other Loan Document or otherwise, as the Administrative Agent or
such Lender may elect, whether or not the Administrative Agent or any Lender has
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Administrative Agent and each Lender
shall notify such Grantor promptly of any such set-off and the application made
by the Administrative Agent or such Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Administrative Agent and each Lender
under this Section 8.6 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
27
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the Administrative
Agent and Lenders, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Grantors and the Lenders.
28
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 8.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Borrower, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Borrower shall have delivered to the Administrative Agent, at
least ten Business Days prior to the date of the proposed release, a written
request for release identifying the relevant Subsidiary Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a certification
by the Borrower stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
29
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
WINDY HILL PET FOOD HOLDINGS, INC.
By: /s/ M. Laurie Cummings
-------------------------------
Title: V.P.
WHPF INC.
By: /s/ M. Laurie Cummings
-------------------------------
Title: V.P.
ARMOUR CORPORATION
By: /s/ M. Laurie Cummings
-------------------------------
Title: V.P.
WINDY HILL PET FOOD COMPANY, INC.
By: /s/ M. Laurie Cummings
-------------------------------
Title: V.P.
Acknowledged and Agreed to as
of the date hereof by:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By:
--------------------------------------
Title:
29
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
WINDY HILL PET FOOD HOLDINGS, INC.
By:
-------------------------------
Title:
WHPF INC.
By:
-------------------------------
Title:
ARMOUR CORPORATION
By:
-------------------------------
Title:
WINDY HILL PET FOOD COMPANY, INC.
By:
-------------------------------
Title:
Acknowledged and Agreed to as
of the date hereof by:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By: /s/ PP Wenger /s/ PP Lubinsky
--------------------------------------
Title: Associate VP
29
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
WINDY HILL PET FOOD HOLDINGS, INC.
By:
-------------------------------
Title:
WHPF INC.
By:
-------------------------------
Title:
ARMOUR CORPORATION
By:
-------------------------------
Title:
WINDY HILL PET FOOD COMPANY, INC.
By:
-------------------------------
Title:
Acknowledged and Agreed to as
of the date hereof by:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By: /s/ PP Horgan /s/ PP Wenger
--------------------------------------
Title: Vice President Associate
Schedule 1
to the Guarantee and
Collateral Agreement
NOTICE ADDRESSES OF GUARANTORS
WHPF Inc. Two Maryland Farms
Suite 301
Brentwood, TN 37027-2487
Attn: Robert V. Dale
Facsimile: 615-373-9152
c/o Dartford Partnership
456 Montgomery Street
Suite 2200
San Francisco, CA 94104
Attn: M. Laurie Cummings
Facsimile: 415-982-3023
Windy Hill Pet Food Holdings, Inc. c/o Dartford Partnership
456 Montgomery Street
Suite 2200
San Francisco, CA 94104
Attn: M. Laurie Cummings
Facsimile: 415-982-3023
Armour Corporation Two Maryland Farms
Suite 301
Brentwood, TN 37027-2487
Attn: Robert V. Dale
Facsimile: 615-373-9152
c/o Dartford Partnership
456 Montgomery Street
Suite 2200
San Francisco, CA 94104
Attn: M. Laurie Cummings
Facsimile: 415-982-3023
Schedule 2
to the Guarantee and
Collateral Agreement
DESCRIPTION OF PLEDGED SECURITIES
[Enlarge/Download Table]
Pledgor Issuer Class of Stock Stock Certificate No. of Shares
------- ------ -------------- ----------------- -------------
Pledged Stock:
WHPF Inc. Windy Hill Pet Food Common 2 2,744
Company, Inc. (MN)
Armour Corporation Common 28 10,000
Preferred 4 25,000
Armour Corporation Windy Hill Pet Food Common 1 1,756
Company, Inc. (MN)
Pledged Notes:
Issuer Payee Principal Amount
------ ----- ----------------
WHPF Inc. Windy Hill Pet Food $7,936,357.54
Company, Inc.
Schedule 3
to the Guarantee and
Collateral Agreement
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Company Jurisdiction
------- ------------
WHPF Inc. California Sec. of State
Delaware Sec. of State
Tennessee Sec. of State
Armour Corporation California Sec. of State
Delaware Sec. of State
Tennessee Sec. of State
Borrower California Sec. of State
and County Recorder of Deeds of Los Angeles
County
and County Recorder of Deeds of San Joaquin
County
and County Clerk of Adams County
Colorado Sec. of State
and Adams County
Florida Sec. of State
and Duval County
Georgia Clerk of Superior Court in Bartow County
Idaho Sec. of State
Illinois Sec. of State
and County Recorder of Deeds of Kankakee
County
and County Recorder of Deeds of Dupage County
Indiana Sec. of State
and Jay County
Iowa Sec. of State
and Cerro Gordo County
Company Jurisdiction
------- ------------
Kansas Sec. of State
and McPherson County
and County Recorder of Deeds of Shawnee
County
Maryland State Dept. of Assessments and Taxation
Michigan Sec. of State
Minnesota Sec. of State
and Ottertail County
and Le Suena County
and Swift County
and Becker County
and Blue Earth County
Missouri Sec. of State
and the County Recorder of Deeds of Bates
County
Montana Sec. of State
Nebraska Sec. of State
New Jersey Sec. of State
and County Clerk of Somerset County
New York Sec. of State
and the County Clerk of Rockland County
North Dakota Sec. of State
and the Register of Deeds in Burleigh County
Ohio Sec. of State and the County
and the Recorders of Shelby and Lucas Counties
Oregon Sec. of State
and Clackamas County
Pennsylvania Sec. of the Commonwealth
and the Prothonotary of Columbia County
and the Prothonotary of Lehigh County
South Dakota Sec. of State
Tennessee Sec. of State
and Williamson County
and Weakly County
and Carroll County
Texas Sec. of State
and County Clerk of Dallas County
and County Clerk of Tarrant County
Washington State Dept. of Licensing
Wisconsin Sec. of State
and Walworth County
Wyoming Sec. of State
Patent and Trademark Filings
Covered by the UCC filings listed above and U.S. Patent and Trademark Office.
Actions with respect to Pledged Stock
Delivery to the Administrative Agent.
Other Actions
None.
Schedule 4
to the Guarantee and
Collateral Agreement
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE
Grantor Location
------- --------
Windy Hill Pet Food Company, Inc. (MN) Two Maryland Farms
Suite 301
Brentwood, TN 37027-2487
Attn: Robert V. Dale
(See Schedule 1 for others.)
Schedule 5
to the Guarantee and
Collateral Agreement
LOCATION OF INVENTORY AND EQUIPMENT
Grantor: The Borrower
Locations:
1. 2 Maryland Farms
Suite 301
Brentwood, Tennessee 37027
County: Williamson
2. 633 Euclid Avenue
McKenzie, Tennessee 38201
County: Weakly
3. 145 First Avenue, North
Perham, Minnesota 56573
County: Ottertail
4. 400 Block of 5th Street, N.W.
Perham, Minnesota 56573
County: Ottertail
5. 136 9th Avenue, S.W.
Perham, Minnesota 56573
County: Ottertail
6. 100 Block of 2nd Street, N.E.
Perham, Minnesota 56573
County: Ottertail
7. Premier Distribution Services, Inc.
2501 71st Street
North Bergen, NJ 07047
County: Somerset
8. Rudie Wilhelm Warehouse Co.
1200 S.E. Jennifer
Clackamas, OR 97015
County: Clackamas
9. Nawf Co. Inc.
1213 W. North Carrier Parkway
Grand Prarie, TX 75050
County: Tarrant
10. Acme Distribution Centers, Inc.
18101 East Colfax Avenue
Aurora, CO 80011
County: Adams
11. Weber Distribution Warehouse
15500 Pheobe Avenue
La Miranda, CA 90638
County: Los Angeles
12. La Grou Distribution System
3514 South Kostner Avenue, West
Chicago, Illinois 60632
County: Dupage
13. Southern Packaging
5330 West 5th Street
Jacksonville, Florida 32209
County: Duval
14. Exel Logistics
1720 Hayden Road
Carrollton, Texas 75006
County: Dallas
15. Star-Kist Foods, Inc.
20801 S. Santa Fe Avenue
Carson, California 90810
County: Los Angeles
16. Prism
3664 Perlman Drive
Stockton, California 95215
County: San Joaquin
17. Star-Kist Foods, Inc.
1551 E. Willow Street
Kankakee, Illinois 60901
County: Kankakee
18. Star-Kist Foods, Inc.
6650 Low Street
Bloomburg, Pennsylvania
County: Columbia
19. Carroll Sales
600 4th Street, S.W.
Mason City, Iowa 50401
County: Cerro Gordo
20. Star-Kist Foods, Inc.
1040 Ways Avenue
Terminal Island, California 90731
County: Los Angeles
21. Star-Kist Foods, Inc.
2200 N.W. Brickyard Road
Topeka, Kansas 66618
County: Shawnee
22. Heritage Industries
One Heritage Place
Frazee, Minnesota
County: Becker
23. 424 North Riverfront Drive
Mankato, Minnesota
County: Blue Earth
24. 218 East Lincoln Street
Portland, Indiana
County: Jay
25. 1084 Arapaho Road
Inman, Kansas
County: McPherson
26. 105 and 309 Atlantic Avenue
DeGraff, Minnesota
County: Swift
27. 1800 Hubbard Lane
LeSueur, Minnesota
County: LeSueur
28. 6821 Ruppsville Road
Allentown, Pennsylvania
County: Lehigh
29. Route 59
Hillburn, New York
County: Rockland
30. (Tax No. FD2500002)
Delavan, Wisconsin
County: Walworth
31. 424 North Riverfront Drive
Mankato, Minnesota
County: Blue Earth
32. Old Highway 22
McKenzie, Tennessee
County: Carroll
33. First Avenue
North Perham, Minnesota
County:
34. 2 Maryland Farms
Brentwood, Tennessee
County: Williamson
35. 400 Block of 5th Street, N.W.
Perham, Minnesota
County: Ottertail
36. 136 9th Avenue, S.W.,
Perham, Minnesota
County: Ottertail
37. 100 Block of 2nd Street, N.E.
Perham, Minnesota
County: Ottertail
38. 145 First Avenue
North Perham, Minnesota
County:
39. Rudie Welhelm Warehouse Co.
P.O. Box 22226
Milwaukee, OR 97269-2226
County: Clackamas
40. 17 Veronica Avenue
Somerset, NJ 08873
County: Somerset
41. La Grou Distribution System
1800 Hawthorne Lane
W. Chicago, IL 60185
County: DuPage
Schedule 6
to the Guarantee and
Collateral Agreement
(See attachment.)
Schedule 7
to the Guarantee and
Collateral Agreement
ACCOUNTS
Windy Hill Pet Food Company, Inc. (MN) Two Maryland Farms
Suite 301
Brentwood, TN 37027-2487
Attn: Robert V. Dale
(See Schedule 1 for others.)
Schedule 8
to the Guarantee and
Collateral Agreement
EXISTING PRIOR LIENS
(See Schedule 9.3(g) of the Credit Agreement.)
Attachment
to Schedule 6
of the Guarantee and
Collateral Agreement
INTELLECTUAL PROPERTY
I. OWNED INTELLECTUAL PROPERTY
A. EXISTING BUSINESS
1. U.S. Registered Marks
Mark Reg. No. Reg. Date Status
---- -------- --------- ------
BONKERS 1,402,410 07/22/86 REGISTERED
FIELD FORMULA 1,089,841 04/18/78 REGISTERED
FOOD OF CHAMPIONS 947,325 11/14/72 REGISTERED
G. WHISKERS 1,555,992 09/12/89 REGISTERED
G. WHISKERS 1,474,393 01/26/88 REGISTERED
HOME AND FIELD 1,272,053 03/27/84 REGISTERED
MEATY MEAL 1,094,125 06/20/78 REGISTERED
ROSE'S 1,050,886 10/19/76 REGISTERED
ROSE'S 1,457,669 09/15/87 REGISTERED
ROYAL FEAST 1,276,457 05/01/84 REGISTERED
TRAIL BLAZER and Design 985,144 05/28/74 REGISTERED
TRAIL MASTER 1,840,059 06/14/94 REGISTERED
TUFFY'S 2,010,312 10/22/96 REGISTERED
CANINE PRIME and Design 1,991,988 08/06/96 REGISTERED
FELINE PRIME and Design 1,991,987 08/06/96 REGISTERED
2. Foreign Marks
[Download Table]
Mark Country Registered Owner Reg. No. Reg. Date Status
---- ------- ---------------- -------- --------- ------
BONKERS Canada Martha White 339,181 04/15/88 REGISTERED
Foods, Inc.
BONKERS Germany Windmill 1,077,871 06/10/85 REGISTERED
Corporation
BONKERS Japan Windmill 3,097,544 ? REGISTERED
Corporation
TRAIL BLAZER Germany The PFB 1,088,102 02/18/86 REGISTERED
Partnership L.P.
-1-
2. Foreign Marks
[Download Table]
Mark Country Registered Owner Reg. No. Reg. Date Status
---- ------- ---------------- -------- --------- ------
TRAIL BLAZER Singapore Windmill 2720/9 ? REGISTERED
Corporation
TUFFY Benelux Windy Hill Pet 319,988 07/23/73 REGISTERED
Food Company,
Inc.
TUFFY'S Canada Windy Hill Pet TMA205,343 02/14/75 REGISTERED
Food Company,
Inc.
TUFFY'S Japan Windy Hill Pet 1,279,595 06/24/77 REGISTERED
Food Company,
Inc.
TUFFY'S in Japan Windy Hill Pet 1,302,914 10/03/77 REGISTERED
Katakana Food Company,
Characters Inc.
TUFFY'S Taiwan Windy Hill Pet 683,198 07/01/95 REGISTERED
Food Company,
Inc.
TUFFY'S and Taiwan Windy Hill Pet 484,245 05/16/90 REGISTERED
TUFFY'S in Food Company,
Chinese Inc.
Characters
TUFFY'S PET Canada Windy Hill Pet TMA183,128 05/12/72 REGISTERED
FOODS Food Company,
Inc.
3. State Trademark Registrations/Variety Designators
[Download Table]
Mark Country Registered Owner Reg. No. Reg. Date Status
---- ------- ---------------- -------- --------- ------
DIXIE TREAT Tennessee Windmill 930,428 04/28/93 REGISTERED
COUNTRY Corporation
STYLE DOG (d/b/a Martha
FOOD and White Foods)
Design
TUFFY'S Montana Windy Hill Pet 9147 06/04/71 REGISTERED
Food Company,
Inc.
TUFFY'S Nevada Windy Hill Pet -- 05/31/72 REGISTERED
Food Company,
Inc.
TUFFY'S West Virginia Windy Hill Pet 247,184 08/14/72 REGISTERED
Food Company,
Inc.
-2-
4. Fictitious Business Names/Trade Names/Common Law Trademarks
TUFFY'S PET PRODUCTS
TUFFY'S PET PRODUCTS COMPANY
CHUNK (Canada only)
GOLDEN CHUNKS (United States only)
HIGH PROTEIN MEAL (United States and Canada only)
PREMIUM PUPPY GROWTH FORMULA (United States and Canada only)
DINNERTIME (United States and Canada only)
HIGH DENSITY FORMULA (United States and Canada only)
PERFORMANCE BLEND (United States only)
B. HUBBARD PET FOOD DIVISION
1. U.S. Registered Marks and Pending Applications
a. Registrations
Registration NO.
MARK (DATE) STATUS
---- ---------------- ------
BECAUSE FRIENDS TAKE CARE OF FRIENDS
United States 1,760,755 REGISTERED
(03/23/93)
BONES AND BITS
United States 1,816,454 REGISTERED
(01/11/94)
CHOICE CHUNKS
United States 1,149,458 REGISTERED
(03/24/81)
CHOICE STARS
United States 1,697,061 REGISTERED
(06/23/92)
CHOMPERS (Stylized Letters)
United States 1,318,473 REGISTERED.
(02/05/85)
COUNTRY PRIME
United States 1,993,173 REGISTERED.
(08/13/96)
COUNTRY PRIME KIBBLES AND NIBBLES
-3-
Registration NO.
MARK (DATE) STATUS
---- ---------------- ------
United States 1,799,565 REGISTERED
(10/19/93)
COUNTRY PRIME MOIST & TASTY
United States 1,895,651 REGISTERED.
(05/23/95)
DINNER BELL
United States 1,416,856 REGISTERED.
(11/11/86)
ENERGY INJECTED FOR THE ACTIVE DOG
United States 1,662,685 REGISTERED
(10/29/91)
GPI-DINE A MITE and Design
United States 1,122,511 REGISTERED
(07/17/79)
HUBBARD
United States 621,047 RENEWED. Section
(02/14/56) 2(f).
United States 641,332 RENEWED. Section
(02/15/57) 2(f).
HUBBARD SOW POWER
United States 1,206,410 REGISTERED.
(08/24/82) Section 8 & 15
accepted.
H AND DESIGN
United States 911,597 RENEWED.
(06/04/71)
United States 914,461 RENEWED.
(06/08/71)
IMPERIAL CHOICE
United States 1,720,574 REGISTERED
(09/29/92)
LASSY
United States 1,627,472 REGISTERED
(12/11/90)
LASSY (Block Letters)
United States 431,236 RENEWED.
(07/15/47)
LASSY (Stylized)
-4-
Registration NO.
MARK (DATE) STATUS
---- ---------------- ------
United States 525,450 RENEWED.
(05/23/50)
LI'L NIBBLERS
United States 1,797,231 REGISTERED
(10/05/93)
MAGNUM
United States 1,412,549 REGISTERED
(10/07/86)
United States 1,274,511 (04/17/84) REGISTERED
MORTON
United States 1,341,301 (06/11/85) REGISTERED
MORTON'S DOG CHUNKS
United States 1,160,203 (07/07/81) REGISTERED
MORTON'S MAINMEAL
United States 1,187,960 (01/26/82) REGISTERED
PEPPY
United States 1,631,804 (01/15/41) REGISTERED
PEPPY CHASE
United States 892,557 RENEWED
PORTRAIT
United States 1,300,854 (10/16/84) REGISTERED
PROCLAIM
United States 1,693,416 (06/09/92) REGISTERED.
PUPPY-GRO
United States 1,125,864 REGISTERED.
(05/20/80)
SPORTSMAN
United States 979,519 (02/26/74) RENEWED.
United States 1,735,116 (11/24/92) REGISTERED.
SUPREME
United States 1,585,003 (02/27/90) REGISTERED.
SUPREME COUNTRY FRESH
United States 1,050,891(10/19/76) RENEWED.
SUPREME DOG FOOD AND DESIGN
-5-
Registration NO.
MARK (DATE) STATUS
---- ---------------- ------
United States 1,286,279 (07/17/84) REGISTERED.
SWEET LASSY (Block Letters)
United States 235,240 RENEWED.
(11/15/27)
DESIGN ONLY
United States 1,175,403 (10/27/81) REGISTERED.
b. Pending Applications
Mark Serial No. Date Status
---- ---------- ---- ------
LEFTOVERS
United States 75/010,088 (10/24/95) N/A
MILKFLAKES
United States 74/696,089 (07/03/94) N/A
TABLE SCRAPS
United States 75/009,732 (10/18/95) N/A
2. Foreign Registrations
Mark Date Status
---- ---- ------
HUBBARD
Canada 431,333
(08/05/94) REGISTERED
PROCLAIM
Canada 450,594
(11/24/95) REGISTERED
3. Fictitious Business Names/Trade Names/Common Law Trademarks
The following has been registered as an assumed name in the
jurisdictions noted:
Name Jurisdiction
---- ------------
Proclaim Pet Products Illinois, Indiana, Michigan, Missouri,
Nebraska, North Dakota, Ohio, Wisconsin
-6-
II. LICENSES
A. Existing Business
1. Grantor has pursuant to that certain License Agreement, dated
April 29, 1996, granted an exclusive, royalty-free perpetual right and license
to Heinz Pet Products Company, a division of Star-Kist Foods, Inc. to use the
mark TUFFY'S in connection with the manufacture, distribution or sale of pet
food products outside the United States and Canada.
B. Hubbard Pet Food Division
1. Grantor has pursuant to that certain License Agreement, dated May
__, 1996, granted an exclusive, royalty-free perpetual right and license to
Feed-Rite (US) Animal Feeds, Inc. to use the marks listed below in the United
States and Canada in connection with the manufacture, distribution and sale of
livestock and equine animal feed and dietary supplements for livestock and
equine animals.
Mark Reg. No.
---- --------
HUBBARD
United States 621,407
641,332
Canada 431,913
H and Design
United States 911,597
914,461
HUBBARD SOW POWER
United States 1,206,410
LASSY (Stylized)
United States 525,450
SWEET LASSY (Block Letters)
United States 235,740
2. Grantor has pursuant to that certain Distribution Agreement,
dated May __,1996, granted a non-exclusive license to Feed-Rite (US) Animal
Feeds, Inc. to use the marks and any related trade dress formats or logos listed
below in connection with the distribution and sale of certain pet products in
portions of the United States for a period of 3 years from the date of the
agreement.
HUBBARD HAPPY HOUND
HUBBARD CAT STARS
HUBBARD HIGH ENERGY DOG FOOD
LASSY SELECT DOG FOOD
LASSY DOG FOOD
HUBBARD CHUNKS
SPORTSMAN DOG FOOD
SPORTSMAN CAT FOOD
PURRFECT CAT FOOD
LASSY CAT FOOD
LASSY ACTIVE
HUBBARD PUPPY GRO
HUBBARD HIGH PERFORMANCE
PROCLAIM
IMPERIAL CHOICE
-7-
COUNTRY PRIME
ROYAL FLUSH
HUBBARD BISCUITS
HUBBARD FISH FOOD
III. CLAIMS CHALLENGING USE OR VALIDITY OF INTELLECTUAL PROPERTY
A. Existing Business
1. U.S. Registration No.1,023,889 for the mark TUFFY'S expired as a result
of the failure to renew the registration on or before October 28, 1995.
2. U.S. Registration No. 1,555,992 for the mark G. WHISKERS (stylized) was
cancelled for failure to file a Declaration under Section 8 on or before
September 12, 1995. The Section 8 Declaration, however, was filed on September
7, 1995 and the Grantor's Petition for Reinstatement was accepted.
3. Keco Milling Company owns a Tennessee state registration of the mark
DIXIE TREAT for "foods and ingredients of Foods" which was issued on April 28,
1963.
4. Agreement dated July 8, 1974 between Star-Kist Foods, inc. and L.V.
Patterson Ltd. whereby Star-Kist agreed to discontinue the use of "golden
Chunks" in Canada but reserved the right to use the word "Chunks."
5. Opposition by Martin & Robertson Limited and/or its affiliated company
Delta Food Processors Ltd. to Application No.367,480 for TUFFY'S in Canada.
Opposition was withdrawn.
6. Distributor in Taiwan was advised not to distribute Tuffy's packaging
with paw print in Taiwan.
7. Non-use to date in the relevant foreign jurisdictions of all or some of
the marks which are the subject of the foreign registrations described in
Section I.A.2 and the state registrations described in Section I.A.3 above may
subject these registration to cancellation and/or affect Grantor's ability to
use the relevant mark in the relevant jurisdiction and/or Grantor's ability to
maintain the relevant registrations. Furthermore, the recordation of the
assignment of these registrations to the Grantor (and/or its predecessors in
interest) has not been completed or in some instances has not yet been
undertaken.
8. Abandoned application for Tuffy's (Serial No.1095760 filed May 18,
1978) in the United Kingdom because of prior registration for "Tuffy's" owned by
Food Securities Limited (Reg. No.862480 in class 31) covering among other things
"food stuffs for animals."
9. Heinz Pet Products Company, a division of Star-Kist Foods, Inc., and
their affiliates own various trademarks incorporating the word formatives
"Meaty" and "Meal" in the United States, Canada and throughout the world and
Grantor did not acquire any rights to any such trademarks in connection with the
acquisition of certain assets from Heinz pursuant to that Certain Purchase
Agreement, dated April 29, 1996 between Grantor and Heinz.
10. Lender acknowledges the existence of the following registrations and
uses by third parties of the mark or name TUFFY on pet products:
Mark U.S. Reg. No. Goods Registrant
---- ------------- ----- ----------
Tuffy 1558243 Pet Toys Bounce Inc.
Name Owner Goods
---- ----- -----
Tuffy Kong Company, Inc. Natural rubber "Jawrobics" dog toys,
"Jawrobeaks" bird toys, teeth
cleaning tug-flossing/chew toy, cat and
dog grooming tools
-8-
Tuffy Toy Ben Richter Co. Pet products
Tuffy Togs Ben Richter Co. Cat and dog products
11. Grantor makes no representation as to the validity of or its exclusive
right to use either DINNER ROUNDS or any of the fictitious business names, trade
names, common law trademarks or variety designators identified above.
12. The assignment of U.S. Registration Numbers 1,991,987 and 1,991,988
of the marks CANINE PRIME and Design and FELINE PRIME and Design, respectively,
from Star-Kist Foods, Inc. as of April 29, 1996 has not been properly recorded
by the U.S. Patent and Trademark Office.
B. Hubbard Pet Food Division
1. In November 1994 Pet Life Foods, Inc. sued Hubbard for alleged
trademark infringement for sale of a peanut-shaped, peanut-flavored dog biscuit.
This issue was resolved by Hubbard agreeing to discontinue use of the particular
shape.
2. Hubbard in March 1992 objected to use of SUPREME in connection
with sale of dog food by Mounds Agri-Service. The issue was resolved by
agreement by Mounds Agri-Service to discontinue offending usage.
3. Hubbard in March 1994 threatened opposition to registration of
SUNSHINE SUPREME for pet feed by Carlson Specialty Seeds, Inc. The issue was
resolved by limitation of the product to feed for birds.
4. Hubbard in August 1995 objected to use of SUPREME in connection
with sale of dog food by Shenandoah Valley Kennels. The maker was not pursued
upon protestations by Shenandoah Valley Kennels that use was permissible
descriptive use.
5. Grantor makes no representations as to the validity of or its
exclusive rights to use any of the foreign trademarks, fictitious business
names, trade names, common law trademarks or variety designators identified
above with respect to the Hubbard Pet Food Division.
-9-
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 199_, made by
______________________________, a ______________ corporation (the "Additional
Grantor"), in favor of CREDIT SUISSE FIRST BOSTON, as administrative agent (in
such capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreement referred to below.
All capitalized terms not defined herein shall have the meaning ascribed to them
in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Windy Hill Pet Food Acquisition Co., the Lenders, the
Administrative Agent and The Chase Manhattan Bank, as documentation agent for
the Lenders (the "Documentation Agent") have entered into a Credit Agreement,
dated as of May 21, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower (as
defined therein) and certain of its Affiliates (other than the Additional
Grantor) have entered into the Guarantee and Collateral Agreement, dated as of
May 21, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Guarantee and Collateral Agreement") in favor of the Administrative Agent
for the benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee and
Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering
this Assumption Agreement, the Additional Grantor, as provided in Section 8.15
of the Guarantee and Collateral Agreement, hereby becomes a party to the
Guarantee and Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedules ____________ to
the Guarantee and Collateral Agreement. The Additional Grantor hereby represents
and warrants that each of the representations and warranties contained in
Section 4 of the Guarantee and Collateral Agreement is true and correct on and
as the date hereof (after giving effect to this Assumption Agreement) as if made
on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
2
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
------------------------------
Name:
Title:
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/27/97 | | | | | | | None on these Dates |
| | 5/21/97 | | 1 | | 58 |
| | 3/21/97 | | 4 | | 6 |
| | 4/29/96 | | 55 | | 57 |
| | 10/28/95 | | 56 |
| | 9/12/95 | | 56 |
| | 9/7/95 | | 56 |
| List all Filings |
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