Exhibit 10.2
EXECUTION COPY
PLEDGE AND SECURITY AGREEMENT
THIS
PLEDGE AND SECURITY AGREEMENT (as the same may be amended,
restated, supplemented or otherwise modified from time to time,
this “ Security Agreement ”) is entered into as
of March 4, 2009 by and among TENNANT COMPANY, a Minnesota
corporation (the “ Company ”), the Subsidiaries
of the Company listed on the signature pages hereto (together with
the Company, the “ Initial Grantors ,” and
together with any additional Subsidiaries, whether now existing or
hereafter formed or acquired which become parties to this Security
Agreement from time to time, in accordance with the terms of the
Credit Agreement (as defined below) or, upon the effectiveness
thereof, the Note Agreement (as defined in the Intercreditor
Agreement), if any, by executing a Supplement hereto in
substantially the form of Annex I , the “
Grantors ”), and JPMORGAN CHASE BANK, N.A., a national
banking association, in its capacity as contractual representative
(the “ Collateral Agent ”) for itself and for
the Secured Parties (as defined in the Credit Agreement identified
below).
PRELIMINARY STATEMENT
The
Company, certain Subsidiaries of the Company from time to time
parties thereto as borrowers (together with the Company, the
“ Borrowers ”), the financial institutions from
time to time party thereto as lenders (collectively, the “
Lenders ”), and JPMorgan Chase Bank, N.A., as
administrative agent thereunder (the “ Administrative
Agent ”), have entered into that certain Credit Agreement
dated as of June 19, 2007 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), which Credit Agreement provides,
subject to the terms and conditions thereof, for extensions of
credit and other financial accommodations to be made by the Lenders
to or for the benefit of the Borrowers.
The
Grantors wish to secure their obligations to the Secured Parties
pursuant to the terms of this Security Agreement.
ACCORDINGLY,
the Grantors and the Collateral Agent, on behalf of the Secured
Parties, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Terms Defined in the Credit Agreement . All capitalized
terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Credit Agreement.
1.2.
Terms Defined in UCC . Terms defined in the UCC which are
not otherwise defined in this Security Agreement are used herein as
defined in the UCC.
1.3.
Definitions of Certain Terms Used Herein . As used in this
Security Agreement, in addition to the terms defined in the
Preliminary Statement, the following terms shall have the following
meanings:
“
Accounts ” shall have the meaning set forth in Article
9 of the UCC.
“
Article ” means a numbered article of this Security
Agreement, unless another document is specifically
referenced.
“
Chattel Paper ” shall have the meaning set forth in
Article 9 of the UCC.
“
Collateral ” means all Accounts, Chattel Paper,
Commercial Tort Claims, Copyrights, Deposit Accounts, Documents,
Equipment, Farm Products, General Intangibles, Goods, Instruments,
Inventory, Investment Property, letters of credit, Letter-of-Credit
Rights, Licenses, Patents, Pledged Deposits, Supporting
Obligations, Trademarks and Other Collateral, wherever located, in
which any Grantor now has or hereafter acquires any right or
interest, and the proceeds (including Stock Rights), insurance
proceeds and products thereof, together with all books and records,
customer lists, credit files, computer files, programs, printouts
and other computer materials and records related thereto;
provided however that “Collateral” shall not
include Excluded Assets.
“
Commercial Tort Claims ” means those certain currently
existing commercial tort claims, as defined in the UCC of any
Grantor, including each commercial tort claim specifically
described in Exhibit “F” .
“
Control ” shall have the meaning set forth in Article
8 or, if applicable, in Section 9-104, 9-105, 9-106 or 9-107 of
Article 9 of the UCC.
“
Copyrights ” means, with respect to any Person, all of
such Person’s right, title, and interest in and to the
following: (a) all copyrights, rights and interests in copyrights,
works protectable by copyright, copyright registrations, and
copyright applications; (b) all extensions of any of the foregoing;
(c) all income, royalties, damages, and payments now or hereafter
due and/or payable under any of the foregoing, including, without
limitation, damages or payments for past or future infringements
for any of the foregoing; (d) the right to sue for past, present,
and future infringements of any of the foregoing; and (e) all
rights corresponding to any of the foregoing throughout the
world.
“
Default ” means an event described in Section
5.1 hereof.
“
Deposit Accounts ” shall have the meaning set forth in
Article 9 of the UCC.
“
Documents ” shall have the meaning set forth in
Article 9 of the UCC.
“
Equipment ” shall have the meaning set forth in
Article 9 of the UCC.
“
Excluded Assets ” means (i) motor vehicles and other
assets subject to certificates of title; (ii) any equipment, lease,
license, contract, instrument or agreement to which any Grantor is
a party, if and so long as the pledge of, or grant of a security
interest in, such property would result in (A) a breach of
applicable law or (B) a breach, termination or default under the
terms of such lease, license, contract, instrument or agreement or
any agreement to which such equipment is subject (other than to the
extent that any such term would be rendered ineffective pursuant to
Sections 9-406, 9-407, 9-408 or 9-409 of the UCC); (iii) assets to
the extent a security interest in such assets would result in a
Deemed Dividend Problem or a Financial Assistance Problem; (iv)
assets consisting of real property or interests in real property;
(v) fixtures; (vi) assets of the Company or any Domestic Subsidiary
located in Australia or Japan; (vii) those assets as to which the
Collateral Agent, by notice to the Company, reasonably determines
that the burden or cost of obtaining such a security interest,
pledge or perfection thereof outweighs the benefit to the Secured
Parties of the security to be afforded thereby; and (viii) any
lease of
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equipment by a Grantor and
equipment subject thereto which are conveyed to a third party in
connection with the financing of such lease and equipment, to the
extent such Indebtedness and any Lien on such lease and/or
equipment is otherwise permitted under Sections 6.01 and 6.02 of
the Credit Agreement and the comparable provisions of the Note
Agreement.
“
Exhibit ” refers to a specific exhibit to this
Security Agreement, unless another document is specifically
referenced.
“
Farm Products ” shall have the meaning set forth in
Article 9 of the UCC.
“
General Intangibles ” shall have the meaning set forth
in Article 9 of the UCC and, in any event, includes payment
intangibles, contract rights, rights to payment, rights arising
under common law, statutes, or regulations, choses or things in
action, goodwill (including the goodwill associated with any
Trademark), Patents, Trademarks, Copyrights, URLs and domain names,
Industrial Designs, other industrial or Intellectual Property or
rights therein or applications therefor, whether under license or
otherwise, programs, programming materials, blueprints, drawings,
purchase orders, customer lists, monies due or recoverable from
pension funds, route lists, rights to payment and other rights
under any royalty or licensing agreements, including Intellectual
Property Licenses, infringement claims, computer programs,
information contained on computer disks or tapes, software,
literature, reports, catalogs, pension plan refunds, pension plan
refund claims, insurance premium rebates, tax refunds, and tax
refund claims, interests in a partnership or limited liability
company which do not constitute a security under Article 8 of the
Code, and any other personal property other than Commercial Tort
Claims, money, Accounts, Chattel Paper, Deposit Accounts, Goods,
Investment Property, negotiable Collateral, and oil, gas, or other
minerals before extraction.
“
Goods ” shall have the meaning set forth in Article 9
of the UCC.
“
Industrial Designs ” means (i) registered industrial
designs and industrial design applications, and also includes
registered industrial designs and industrial design applications
listed in Exhibit “B” , (ii) all renewals,
divisions and any industrial design registrations issuing thereon
and any and all foreign applications corresponding thereto, (iii)
all income, royalties, damages and payments now and hereafter due
or payable under and with respect thereto, including payments under
all licenses entered into in connection therewith and damages and
payments for past or future infringements thereof, (iv) the right
to sue for past, present and future infringements thereof, and (v)
all of each Grantor’s rights corresponding thereto throughout
the world.
“
Instruments ” shall have the meaning set forth in
Article 9 of the UCC.
“
Intellectual Property ” means all Patents, Trademarks,
Copyrights and any other intellectual property.
“
Inventory ” shall have the meaning set forth in
Article 9 of the UCC.
“
Investment Property ” shall have the meaning set forth
in Article 9 of the UCC.
“
Letter of Credit Rights ” shall have the meaning set
forth in Article 9 of the UCC.
“
Licenses ” means, with respect to any Person, all of
such Person’s right, title, and interest in and to (a) any
and all licensing agreements or similar arrangements in and to its
Patents, Copyrights, or Trademarks, (b) all income, royalties,
damages, claims, and payments now or hereafter due or
payable
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under and with respect thereto,
including, without limitation, damages and payments for past and
future breaches thereof, and (c) all rights to sue for past,
present, and future breaches thereof.
“
Other Collateral ” means any property of the Grantors,
not included within the defined terms Accounts, Chattel Paper,
Commercial Tort Claims, Copyrights, Deposit Accounts, Documents,
Equipment, Farm Products, General Intangibles, Goods, Instruments,
Inventory, Investment Property, Letter-of-Credit Rights, Licenses,
Patents, Pledged Deposits, Supporting Obligations and Trademarks,
including, without limitation, all cash on hand, Stock Rights or
any other deposits (general or special, time or demand, provisional
or final) with any bank or other financial institution, it being
intended that the Collateral include all personal property of the
Grantors other than Excluded Assets.
“
Patents ” means, with respect to any Person, all of
such Person’s right, title, and interest in and to: (a) any
and all patents and patent applications; (b) all inventions and
improvements described and claimed therein; (c) all reissues,
divisions, continuations, extensions, and continuations-in-part
thereof; (d) all income, royalties, damages, claims, and payments
now or hereafter due or payable under and with respect thereto,
including, without limitation, damages and payments for past and
future infringements thereof; (e) all rights to sue for past,
present, and future infringements thereof; and (f) all rights
corresponding to any of the foregoing throughout the
world.
“
Pledged Deposits ” means all time deposits of money
(other than Deposit Accounts and Instruments), whether or not
evidenced by certificates, which a Grantor may from time to time
designate as pledged to the Collateral Agent or to any Secured
Party as security for any Secured Obligations, and all rights to
receive interest on said deposits.
“
Receivables ” means the Accounts, Chattel Paper,
Documents, Investment Property, Instruments or Pledged Deposits,
and any other rights or claims to receive money which are General
Intangibles or which are otherwise included as
Collateral.
“
Section ” means a numbered section of this Security
Agreement, unless another document is specifically
referenced.
“
Security ” shall have the meaning set forth in Article
8 of the UCC, excluding immaterial Securities received from or with
respect to customers in settlement of Receivables.
“
Senior Creditor Documents ” means (i) prior to the
effectiveness of the Intercreditor Agreement, the Loan Documents
and (ii) on and after the effectiveness of the Intercreditor
Agreement, the “Senior Creditor Documents” (as defined
in the Intercreditor Agreement).
“
Stock Rights ” means any securities, dividends or
other distributions and any other right or property which any
Grantor shall receive or shall become entitled to receive for any
reason whatsoever with respect to, in substitution for or in
exchange for any securities or other ownership interests in a
corporation, partnership, joint venture or limited liability
company constituting Collateral and any securities, any right to
receive securities and any right to receive earnings, in which any
Grantor now has or hereafter acquires any right, issued by an
issuer of such securities.
“
Supporting Obligation ” shall have the meaning set
forth in Article 9 of the UCC.
“
Trademarks ” means, with respect to any Person, all of
such Person’s right, title, and interest in and to the
following: (a) all trademarks (including service marks), trade
names, trade dress, and trade styles and the registrations and
applications for registration thereof and the goodwill of the
business symbolized by the foregoing; (b) all licenses of the
foregoing, whether as licensee or licensor; (c) all
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renewals of the foregoing; (d)
all income, royalties, damages, and payments now or hereafter due
or payable with respect thereto, including, without limitation,
damages, claims, and payments for past and future infringements
thereof; (e) all rights to sue for past, present, and future
infringements of the foregoing, including the right to settle suits
involving claims and demands for royalties owing; and (f) all
rights corresponding to any of the foregoing throughout the
world.
The
foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each
of the Grantors hereby pledges, assigns and grants to the
Collateral Agent, on behalf of and for the benefit of the Secured
Parties, a security interest in all of such Grantor’s right,
title and interest, whether now owned or hereafter acquired, in and
to the Collateral to secure the prompt and complete payment and
performance of the Secured Obligations (including, without
limitation, the Secured Obligations as defined in the Intercreditor
Agreement upon the effectiveness of the Intercreditor Agreement).
For the avoidance of doubt, the grant of a security interest herein
shall not be deemed to be an assignment of intellectual property
rights owned by the Grantors.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each
of the Initial Grantors represents and warrants to the Collateral
Agent and the Secured Parties, and each Grantor that becomes a
party to this Security Agreement pursuant to the execution of a
Security Agreement Supplement in substantially the form of Annex
I represents and warrants (after giving effect to supplements
to each of the Exhibits hereto with respect to such subsequent
Grantor as attached to such Security Agreement Supplement),
that:
3.1.
Title, Authorization, Validity and Enforceability . Such
Grantor has good and valid rights in or the power to transfer the
Collateral owned by it and title to the Collateral with respect to
which it has purported to grant a security interest hereunder, free
and clear of all Liens except for Liens permitted under Section
4.1.6 hereof, and has full corporate, limited liability company
or partnership, as applicable, power and authority to grant to the
Collateral Agent the security interest in such Collateral pursuant
hereto. The execution and delivery by such Grantor of this Security
Agreement have been duly authorized by proper corporate, limited
liability company, limited partnership or partnership, as
applicable, proceedings, and this Security Agreement constitutes a
legal, valid and binding obligation of such Grantor and creates a
security interest which is enforceable against such Grantor in all
Collateral it now owns or hereafter acquires, except as
enforceability may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws relating to
or affecting the enforcement of creditors’ rights generally,
(ii) general equitable principles (whether considered in a
proceeding in equity or at law), and (iii) requirements of
reasonableness, good faith and fair dealing. When financing
statements have been filed in the appropriate offices against such
Grantor in the locations listed in Exhibit “E” ,
the Collateral Agent will have a fully perfected first priority
security interest in the Collateral owned by such Grantor in which
a security interest may be perfected by filing of a financing
statement under the UCC, subject only to Liens permitted under
Section 4.1.6 hereof and the limitations on perfection and
priority set forth in the UCC.
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3.2.
Conflicting Laws and Contracts . Neither the execution and
delivery by such Grantor of this Security Agreement, the creation
and perfection of the security interest in the Collateral granted
hereunder, nor compliance with the terms and provisions hereof will
violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on such Grantor, or (ii) such
Grantor’s charter, articles or certificate of incorporation,
partnership agreement or by-laws (or similar constitutive
documents), or (iii) the provisions of any indenture, instrument or
agreement to which such Grantor is a party or is subject, or by
which it, or its property may be bound or affected, or conflict
with or constitute a default thereunder, or result in or require
the creation or imposition of any Lien in, of or on the property of
such Grantor pursuant to the terms of any such indenture,
instrument or agreement (other than any Lien of the Collateral
Agent on behalf of the Secured Parties).
3.3.
Principal Location . Such Grantor’s mailing address
and the location of its place of business (if it has only one) or
its chief executive office (if it has more than one place of
business), is disclosed in Exhibit “A” ; such
Grantor has no other places of business except those set forth in
Exhibit “A” .
3.4.
Property Locations . The Inventory and Equipment of each
Grantor are located solely at the locations of such Grantor
described in Exhibit “A” , except for Inventory
and Equipment which is in transit or Inventory which is located in
storage facilities for use by such Grantor’s sales and
marketing operations, at customer’s premises, or with dealers
or distributors for such Grantor’s Inventory. All of said
locations are owned by such Grantor except for locations (i) which
are leased by such Grantor as lessee and designated in Part B of
Exhibit “A” and (ii) at which Inventory is held
in a public warehouse or is otherwise held by a bailee or on
consignment by such Grantor as designated in Part C of Exhibit
“A” , with respect to which Inventory such Grantor
has delivered bailment agreements, warehouse receipts, financing
statements or other documents satisfactory to the Collateral Agent
to protect the Collateral Agent’s and the Secured
Parties’ security interest in such Inventory.
3.5.
No Other Names; Etc. . Within the five-year period ending as
of the date such Person becomes a Grantor hereunder, such Grantor
has not conducted business under any name, changed its jurisdiction
of formation, merged with or into or consolidated with any other
Person, except as disclosed in Exhibit “A” . The
name in which such Grantor has executed this Security Agreement is
the exact name as it appears in such Grantor’s organizational
documents, as amended, as filed with such Grantor’s
jurisdiction of organization as of the date such Person becomes a
Grantor hereunder.
3.6.
No Default . No Default exists.
3.7.
Accounts and Chattel Paper . The names of the obligors,
amounts owing, due dates and other information with respect to the
Accounts and Chattel Paper owned by such Grantor are and will be
correctly stated in all material respects in all records of such
Grantor relating thereto and in all invoices and reports with
respect thereto furnished to the Collateral Agent by such Grantor
from time to time. As of the time when each Account or each item of
Chattel Paper arises, such Grantor shall be deemed to have
represented and warranted that such Account or Chattel Paper, as
the case may be, and all records relating thereto, are genuine and
in all respects what they purport to be.
3.8.
Filing Requirements . None of the Collateral owned by such
Grantor is of a type for which security interests or liens may be
perfected by filing under any federal statute except for Patents,
Trademarks and Copyrights held by such Grantor and described in
Part B of Exhibit “B” .
3.9.
No Financing Statements . No financing statement describing
all or any portion of the Collateral which has not lapsed or been
terminated naming such Grantor as debtor has been filed in any
jurisdiction except financing statements (i) naming the Collateral
Agent on behalf of the Secured Parties
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as the secured party and (ii) in
respect of Liens permitted by Section 6.02 of the Credit Agreement
and the comparable provisions of the Note Agreement;
provided , that nothing herein shall be deemed to constitute
an agreement to subordinate any of the Liens of the Collateral
Agent under the Senior Creditor Documents to any Liens otherwise
permitted under Section 6.02 of the Credit Agreement and the
comparable provisions of the Note Agreement.
3.10.
Federal Employer Identification Number; State Organization
Number; Jurisdiction of Organization . Such Grantor’s
federal employer identification number is, and if such Grantor is a
registered organization, such Grantor’s State of
organization, type of organization and State of organization
identification number are, listed in Exhibit “G”
.
3.11.
Pledged Securities and Other Investment Property .
Exhibit “D ” sets forth a complete and accurate
list of the Instruments, Securities and other Investment Property
constituting Collateral and delivered to the Collateral Agent. Each
Grantor is the direct and beneficial owner of each Instrument,
Security and other type of Investment Property listed in Exhibit
“D” as being owned by it, free and clear of any
Liens, except for the security interest granted to the Collateral
Agent for the benefit of the Secured Parties hereunder or as
permitted by Section 6.02 of the Credit Agreement and the
comparable provisions of the Note Agreement. Each Grantor further
represents and warrants that (i) all such Instruments, Securities
or other types of Investment Property which are shares of stock in
a corporation or ownership interests in a partnership or limited
liability company have been (to the extent such concepts are
relevant with respect to such Instrument, Security or other type of
Investment Property) duly and validly issued, are fully paid and
non-assessable and constitute the percentage of the issued and
outstanding shares of stock (or other equity interests) of the
respective issuers thereof indicated in Exhibit
“D” hereto and (ii) with respect to any
certificates delivered to the Collateral Agent representing an
ownership interest in a partnership or limited liability company,
either such certificates are Securities as defined in Article 8 of
the UCC of the applicable jurisdiction as a result of actions by
the issuer or otherwise, or, if such certificates are not
Securities, such Grantor has so informed the Collateral Agent so
that the Collateral Agent may take steps to perfect its security
interest therein as a General Intangible.
3.12.
Intellectual Property .
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3.12.1
Exhibit “B” contains a complete and accurate
listing as of the date hereof of all U.S. Intellectual Property of
each of the Grantors, including, but not limited to the following:
(i) state and U.S. trademark registrations, applications for
trademark registration and common law trademarks, (ii) U.S. patents
and patents applications, together with all reissuances,
continuations, continuations in part, revisions, extensions, and
reexaminations thereof, (iii) U.S. copyright registrations and
applications for registration, (iv) industrial design registrations
and industrial design applications, (v) trade secrets, (vi) domain
names, (vii) proprietary computer software, (viii) all forms of
Intellectual Property described in clauses (i)-(iii) above that are
owned by a third party and licensed to the Grantors or otherwise
used by the Grantors under contract, and (ix) the names of any
Person who has been granted rights in respect thereof outside of
the ordinary course of business. All of the U.S. registrations,
applications for registration or applications for issuance of the
Intellectual Property are valid and subsisting, in good standing
and are recorded or is in the process of being recorded in the name
of the applicable Grantor.
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3.12.2
Such Intellectual Property’s valid, subsisting, unexpired
(where registered) and enforceable and has not been abandoned or
adjudged invalid or unenforceable, in whole or in part except as
could not be reasonably expected to result in a Material Adverse
Effect.
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3.12.3
No Person other than the respective Grantor has any right or
interest of any kind or nature in or to the Intellectual Property,
including any right to sell, license, lease, transfer,
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distribute, use or otherwise
exploit the Intellectual Property or any portion thereof outside of
the ordinary course of the respective Grantor’s business,
except as noted on Exhibit B. Each Grantor has good, marketable and
exclusive title to, and the valid and enforceable power and right
to sell, license, transfer, distribute, use and otherwise exploit,
its Intellectual Property, except as noted on Exhibit B.
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3.12.4
Each Grantor has taken or caused to be taken steps so that none of
its Intellectual Property, the value of which to the Grantors are
contingent upon maintenance of the confidentiality thereof, have
been disclosed by such Grantor to any Person other than employees,
contractors, customers, representatives and agents of the Grantors
who are parties to customary confidentiality and nondisclosure
agreements with the Grantors except where those disclosures,
individually or in the aggregate, could not be reasonably expected
to result in a Material Adverse Effect.
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3.12.5
To each Grantor’s knowledge, no Person has violated,
infringed upon or breached, or is currently violating, infringing
upon or breaching, any of the rights of the Grantors to the
Intellectual Property or has breached or is breaching any duty or
obligation owed to the Grantors in respect of the Intellectual
Property except where those breaches, individually or in the
aggregate, could not be reasonably expected to result in a Material
Adverse Effect.
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3.12.6
No settlement or consents, covenants not to sue, nonassertion
assurances, or releases have been entered into by any Grantor or to
which any Grantor is bound that adversely affects its rights to own
or use any Intellectual Property except as could not be reasonably
expected to result in a Material Adverse Effect, in each case
individually or in the aggregate.
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3.12.7
No Grantor has received any written notice that remains outstanding
challenging the validity, enforceability, or ownership of any
Intellectual Property except where those challenges could not
reasonably be expected to result in a Material Adverse Effect, and
to such Grantor’s knowledge at the date hereof there are no
facts upon which such a challenge could be made.
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3.12.8
Each Grantor owns directly or is entitled to use, by license or
otherwise, all Intellectual Property necessary for the conduct of
such Grantor’s business.
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3.12.9
Each Grantor uses adequate standards of quality in the manufacture,
distribution, and sale of all products sold and in the provision of
all services rendered under or in connection with all trademarks
and has taken all commercially reasonable action necessary to
insure that all licensees of the trademarks owned or licensed by
such Grantor use such adequate standards of quality, except where
the failure to use adequate standards of quality could not
reasonably be expected to result in a Material Adverse
Effect.
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3.12.10
The consummation of the transactions contemplated by the Senior
Creditor Documents will not result in the termination or material
impairment of any of the Intellectual Property.
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ARTICLE IV
COVENANTS
From
the date of this Security Agreement and thereafter until this
Security Agreement is terminated pursuant to Section 8.12 hereof,
each of the Initial Grantors agrees, and from and after
the
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effective date of any Security
Agreement Supplement applicable to any Grantor (and after giving
effect to supplements to each of the Exhibits hereto with respect
to such subsequent Grantor as attached to such Security Agreement
Supplement) and thereafter until this Security Agreement is
terminated each such subsequent Grantor agrees:
4.1.
General .
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4.1.1
Inspection . Subject to the limitations set forth in the
Senior Creditor Documents, each Grantor will permit the Collateral
Agent or any Secured Party, by its representatives and agents (i)
to inspect the Collateral, (ii) to examine and make copies of the
records of such Grantor relating to the Collateral and (iii) to
discuss the Collateral and the related records of such Grantor
with, and to be advised as to the same by, such Grantor’s
officers and employees (and, in the case of any Receivable, with
any person or entity which is or may be obligated thereon), all at
such reasonable times and intervals as the Collateral Agent or such
Secured Party may determine, and all at such Grantor’s
expense.
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4.1.2
Taxes . Such Grantor will pay when due all taxes,
assessments and governmental charges and levies upon the Collateral
owned by such Grantor, except (i) those which are being contested
in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside in accordance with GAAP and
with respect to which no Lien exists, and (ii) those which by
reason of the amount involved or the remedies available to the
taxing authority could not reasonably be expected to have a
Material Adverse Effect.
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4.1.3
Records and Reports; Notification of Default . Each Grantor
shall keep and maintain complete, accurate and proper books and
records with respect to the Collateral owned by such Grantor, and
furnish to the Collateral Agent, with sufficient copies for each of
the Secured Parties, such reports relating to the Collateral as the
Collateral Agent shall from time to time reasonably request. Each
Grantor will give prompt notice in writing to the Collateral Agent
and the Lenders of the occurrence and continuance of a Default and
of any other development, financial or otherwise, which could
reasonably be expected to materially and adversely affect the
Collateral.
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4.1.4
Financing Statements and Other Actions; Defense of Title .
Each Grantor hereby authorizes the Collateral Agent to file, and if
requested will execute and deliver to the Collateral Agent, all
financing statements describing the Collateral owned by such
Grantor and other documents and take such other actions as may from
time to time reasonably be requested by the Collateral Agent in
order to maintain a first priority, perfected security interest in
and, if applicable, Control of, the Collateral owned by such
Grantor, subject to Liens permitted under Section 6.02 of the
Credit Agreement and the comparable provisions of the Note
Agreement, provided that nothing herein shall be deemed to
constitute an agreement to subordinate any of the Liens of the
Collateral Agent under the Loan Documents to any Liens otherwise
permitted under Section 6.02 of the Credit Agreement and the
comparable provisions of the Note Agreement. Such financing
statements may describe the Collateral in the same manner as
described herein or may contain an indication or description of
collateral that describes such property in any other manner as the
Collateral Agent may determine, in its reasonable discretion, is
necessary, advisable or prudent to ensure that the perfection of
the security interest in the Collateral granted to the Collateral
Agent herein, including, without limitation, describing such
property as “all assets (other than the Excluded Assets
described and defined in the Pledge and Security Agreement dated as
of March 4, 2009 by and among the Debtor, other parties and the
Secured Party)” or “all assets whether now owned or
hereafter acquired and wheresoever located, including all
accessions thereto and proceeds thereof (other than the Excluded
Assets described
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and defined in the Pledge and
Security Agreement dated as of March 4, 2009 by and among the
Debtor, other par
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