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Title: |
Pledge and Security Agreement |
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Date: |
2007 |
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$83 |
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#2768859 |
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EXECUTION VERSION
PLEDGE AND SECURITY AGREEMENT
dated as of March 20, 2007
among
FEDDERS CORPORATION,
as Grantor,
FEDDERS NORTH AMERICA, INC.,
as Grantor,
EACH OF THE OTHER GRANTORS
FROM TIME TO TIME PARTY HERETO
and
BANK OF AMERICA, N.A.,
as Collateral Agent and Administrative Agent
{PAGE}
SECTION 1. DEFINITIONS; GRANT OF SECURITY............................1
1.1 General Definitions................................................1
1.2 Definitions; Interpretation........................................7
SECTION 2. GRANT OF SECURITY.........................................8
2.1 Grant of Security..................................................8
2.2 Certain Limited Exclusions.........................................9
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE..........9
3.1 Security for Obligations...........................................9
3.2 Continuing Liability Under Collateral..............................9
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.............10
4.1 Generally.........................................................10
4.2 Equipment and Inventory...........................................13
4.3 Receivables.......................................................14
4.4 Investment Related Property.......................................16
4.5 Material Contracts................................................22
4.6 Letter of Credit Rights...........................................22
4.7 Intellectual Property.............................................22
4.8 Commercial Tort Claims............................................25
SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES;
ADDITIONAL GRANTORS......................................26
5.1 Access; Right of Inspection.......................................26
5.2 Further Assurances................................................26
5.3 Additional Grantors...............................................26
SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT..............27
6.1 Power of Attorney.................................................27
6.2 No Duty on the Part of Collateral Agent or Secured Parties........28
SECTION 7. REMEDIES.................................................28
7.1 Generally.........................................................28
7.2 Application of Proceeds...........................................30
7.3 Sales on Credit...................................................30
7.4 Deposit Accounts..................................................30
7.5 Investment Related Property.......................................30
7.6 Intellectual Property.............................................31
7.7 Cash Proceeds.....................................................32
SECTION 8. COLLATERAL AGENT.........................................33
SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS..........33
SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM...........34
SECTION 11. MISCELLANEOUS............................................34
SCHEDULE 4.1 -- GENERAL INFORMATION
SCHEDULE 4.2 -- LOCATION OF EQUIPMENT AND INVENTORY
SCHEDULE 4.4 -- INVESTMENT RELATED PROPERTY
SCHEDULE 4.6 -- DESCRIPTION OF LETTERS OF CREDIT
SCHEDULE 4.7 -- INTELLECTUAL PROPERTY - EXCEPTIONS
SCHEDULE 4.8 -- COMMERCIAL TORT CLAIMS
EXHIBIT A -- PLEDGE SUPPLEMENT
EXHIBIT B -- PERMITTED INVESTMENTS
EXHIBIT C -- INTELLECTUAL PROPERTY SECURITY AGREEMENT
{PAGE}
This PLEDGE AND SECURITY AGREEMENT, dated as of March 20, 2007 (this
"Agreement"), by FEDDERS CORPORATION ("Holdings"), FEDDERS NORTH AMERICA, INC.
("Company") and EACH OF THE UNDERSIGNED, whether as an original signatory
hereto or as an Additional Grantor (as herein defined) (together with Holdings
and Company, collectively the "Grantors") in favor of BANK OF AMERICA, N.A.
("Bank of America"), as collateral agent for the Secured Parties (as herein
defined) (in such capacity as collateral agent, the "Collateral Agent") and as
administrative agent for the Lenders (as herein defined) (in such capacity as
administrative agent, the "Administrative Agent").
RECITALS:
WHEREAS, reference is made to that certain Revolving Loan and Guaranty
Agreement, dated as of the date hereof (as it may be amended, restated,
supplemented or otherwise modified from time to time, the "Revolving Loan
Agreement"), by and among Holdings, Company, certain Subsidiaries of Holdings,
the Lenders party thereto from time to time (the "Lenders"), Bank of America,
as Administrative Agent and Collateral Agent, and General Electric Capital
Corporation, as Documentation Agent;
WHEREAS, subject to the terms and conditions of the Revolving Loan
Agreement, certain Grantors may (i) make use of one or more Bank Products
provided to them by Bank Product Secured Parties, (ii) request that Issuing
Bank issue one or more Letters of Credit for the account of such Grantors, and
(iii) enter into one or more Hedge Agreements with one or more Lender
Counterparties;
WHEREAS, in consideration of the extensions of credit and other
accommodations of Agents, Lenders, Lender Counterparties, Issuing Bank and Bank
Product Secured Parties as set forth in the Revolving Loan Agreement, the
agreements relating to Bank Products, the Letters of Credit and the Hedge
Agreements, respectively, each Grantor has agreed to secure such Grantor's
obligations under the Credit Documents and the Hedge Agreements as set forth
herein; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, each Grantor and the Collateral
Agent agree as follows:
SECTION 1. DEFINITIONS; GRANT OF SECURITY.
1.1 General Definitions. In this Agreement, the following terms shall have
the following meanings:
"Additional Grantors" shall have the meaning assigned in Section 5.3.
"Administrative Agent" shall have the meaning set forth in the preamble.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Assigned Agreements" shall mean all agreements and contracts to which a
Grantor is a party as of the date hereof, or to which a Grantor becomes a party
after the date hereof, including, without limitation, each Material Contract,
as each such agreement may be amended, supplemented or otherwise modified from
time to time.
"Bank of America" shall have the meaning set forth in the preamble hereto.
"Canadian Grantor" shall mean a Grantor that is a Canadian Subsidiary.
"Cash Proceeds" shall have the meaning assigned in Section 7.7.
"Chattel Paper" shall mean all "chattel paper" as defined in Article 9 of
the UCC, including, without limitation, "electronic chattel paper" or "tangible
chattel paper", as each term is defined in Article 9 of the UCC.
"Collateral" shall have the meaning assigned in Section 2.1.
"Collateral Account" shall mean any account established by the Collateral
Agent.
"Collateral Agent" shall have the meaning set forth in the preamble.
"Collateral Records" shall mean books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals,
computer software, computer printouts, tapes, disks and related data processing
software and similar items that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon.
"Collateral Support" shall mean all property (real or personal) assigned,
hypothecated or otherwise securing any Collateral and shall include any
security agreement or other agreement granting a lien or security interest in
such real or personal property.
"Commercial Tort Claims" shall mean all "commercial tort claims" as
defined in Article 9 of the UCC, including, without limitation, all commercial
tort claims listed on Schedule 4.8 (as such schedule may be amended or
supplemented from time to time).
"Commodities Accounts" shall mean all (i) "commodity accounts" as defined
in Article 9 of the UCC, (ii) "futures accounts" as defined in the UCC and
(iii) accounts listed on Schedule 4.4 under the heading "Commodities Accounts"
or "Futures Accounts" (as such schedule may be amended or supplemented from
time to time).
"Company" shall have the meaning set forth in the preamble.
"Controlled Foreign Corporation" shall mean "controlled foreign
corporation" as defined in the Tax Code.
"Copyright Licenses" shall mean any and all agreements providing for the
granting of any right in or to Copyrights (whether such Grantor is licensee or
licensor thereunder) including, without limitation, each agreement referred to
in Schedule 4.7(B) (as such schedule may be amended or supplemented from time
to time).
"Copyrights" shall mean all United States, Canadian and other foreign
copyrights (including Community designs), including but not limited to
copyrights in software and databases, and all Mask Works (as defined under 17
U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, and,
with respect to any and all of the foregoing: (i) all registrations and
applications therefor including, without limitation, the registrations and
applications referred to in Schedule 4.7(A) (as such schedule may be amended or
supplemented from time to time), (ii) all extensions and renewals thereof,
(iii) all rights corresponding thereto throughout the world, (iv) all rights to
sue for past, present and future infringements thereof, and (v) all Proceeds of
the foregoing, including, without limitation, licenses, royalties, income,
payments, claims, damages and proceeds of suit.
"Credit Documents" shall mean the Revolving Loan Agreement, the LC
Documents, each Hedge Agreement, the Mortgages, all executed Deposit Account
Control Agreements, Securities Account Control Agreements and Intellectual
Property Security Agreements of Grantors, the Landlord Personal Property
Collateral Access Agreements, if any, and all other instruments, documents and
agreements delivered by any Grantor pursuant to this Agreement or any of the
other Credit Documents in order to grant to Collateral Agent, for the benefit
of Secured Parties, a Lien on any real, personal or mixed property of such
Grantor as security for the Obligations or to preserve, protect or perfect such
Lien.
"Deposit Accounts" (i) shall mean all "deposit accounts" as defined in
Article 9 of the UCC, (ii) all "Deposit Accounts" as defined in the Revolving
Loan Agreement and (iii) all of the accounts listed on Schedule 4.4 under the
heading "Deposit Accounts" (as such schedule may be amended or supplemented
from time to time).
"Deposit Account Control Agreement" shall mean an agreement governing a
Deposit Account in such form as may be reasonably agreed to by the Collateral
Agent, as it may be amended, supplemented or otherwise modified from time to
time, executed by the relevant Grantor, the Collateral Agent, the relevant
financial institution and each other agent party thereto.
"Documents" shall mean all "documents" as defined in Article 9 of the UCC
and "documents of title" as defined in the UCC.
"Equipment" shall mean (i) all "equipment" as defined in Article 9 of the
UCC, (ii) all machinery, manufacturing equipment, data processing equipment,
computers, office equipment, furnishings, furniture, appliances, fixtures and
tools (in each case, regardless of whether characterized as equipment under the
UCC) and (iii) all accessions or additions thereto, all parts thereof, whether
or not at any time of determination incorporated or installed therein or
attached thereto, and all replacements therefor, wherever located, now or
hereafter existing, including any fixtures.
"Financial Assets" shall mean all "financial assets" as defined in the
UCC.
"General Intangibles" (i) shall mean all "general intangibles" as defined
in Article 9 of the UCC and "intangibles" as defined in the UCC, including
"payment intangibles" also as defined in Article 9 of the UCC and (ii) shall
include, without limitation, all interest rate or currency protection or
hedging arrangements, all tax refunds, all licenses, permits, concessions and
authorizations, all Assigned Agreements and all Intellectual Property (in each
case, regardless of whether characterized as general intangibles or intangibles
under the UCC). "Goods" (i) shall mean all "goods" as defined in Article 9 of
the UCC and (ii) shall include, without limitation, all Inventory and Equipment
(in each case, regardless of whether characterized as goods under the UCC).
"Grantors" shall have the meaning set forth in the preamble hereto.
"Holdings" shall have the meaning set forth in the preamble hereto.
"Indemnitee" shall mean the Collateral Agent, and its Affiliates'
officers, partners, directors, trustees, employees and agents.
"Instruments" shall mean all "instruments" as defined in Article 9 of the
UCC.
"Insurance" shall mean (i) all insurance policies covering any or all of
the Collateral (regardless of whether the Collateral Agent is the loss payee
thereof) and (ii) any key man life insurance policies.
"Intellectual Property" shall mean, collectively, the Copyrights, the
Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the
Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.
"Intellectual Property Security Agreement" shall mean that certain
agreement, substantially in the form of Exhibit C, as it may be amended,
supplemented or otherwise modified from time to time, executed by the relevant
Grantor and the Collateral Agent.
"Inventory" shall mean (i) all "inventory" as defined in Article 9 of the
UCC and (ii) all goods held for sale, lease, display or demonstration or to be
furnished under contracts of service or so leased or furnished, all raw
materials, work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing, furnishing
or production of such inventory or otherwise used or consumed in any Grantor's
business; and all goods described above which are returned to or repossessed by
any Grantor, all computer programs embedded in any goods and all accessions
thereto and products thereof (in each case, regardless of whether characterized
as inventory under the UCC).
"Investment Accounts" shall mean the Collateral Account, Securities
Accounts, Commodities Accounts and Deposit Accounts.
"Investment Related Property" shall mean (i) all "investment property" (as
such term is defined in Article 9 of the UCC) and (ii) all of the following
(regardless of whether classified as investment property under the UCC): all
Pledged Equity Interests, Pledged Debt, the Investment Accounts and
certificates of deposit and Financial Assets.
"Lenders" shall have the meaning set forth in the recitals hereto.
"Letter of Credit Right" shall mean "letter-of-credit right" as defined in
Article 9 of the UCC.
"Money" shall mean "money" as defined in the UCC.
"Non-Assignable Contract" shall mean any agreement, contract or license to
which any Grantor is a party that by its terms purports to restrict or prevent
the assignment or granting of a security interest therein (either by its terms
or by any federal, state or provincial statutory prohibition or otherwise
irrespective of whether such prohibition or restriction is enforceable under
Section 9-406 through 409 of the UCC).
"Non-Assignable Material Contract" shall mean any Non-Assignable Contract
to which Holdings or any of its Subsidiaries is a party (other than the Credit
Documents) for which breach, nonperformance, cancellation or failure to renew
could reasonably be expected to have a Material Adverse Effect.
"Patent Licenses" shall mean all agreements providing for the granting of
any right in or to Patents (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred to in
Schedule 4.7(D) (as such schedule may be amended or supplemented from time to
time).
"Patents" shall mean all United States, Canadian and other foreign patents
and certificates of invention, or similar industrial property rights, and
applications for any of the foregoing, including, but not limited to: (i) each
patent and patent application referred to in Schedule 4.7(C) hereto (as such
schedule may be amended or supplemented from time to time), (ii) all reissues,
divisions, continuations, continuations-in-part, extensions, renewals, and
reexaminations thereof, (iii) all rights corresponding thereto throughout the
world, (iv) all inventions and improvements described therein, (v) all rights
to sue for past, present and future infringements thereof, (vi) all licenses,
claims, damages, and proceeds of suit arising therefrom, and (vii) all Proceeds
of the foregoing, including, without limitation, licenses, royalties, income,
payments, claims, damages, and proceeds of suit.
"Pledge Supplement" shall mean any supplement to this agreement in
substantially the form of Exhibit A.
"Pledged Debt" shall mean all indebtedness owed to such Grantor,
including, without limitation, all Indebtedness described on Schedule 4.4(A)
under the heading "Pledged Debt" (as such schedule may be amended or
supplemented from time to time), issued by the obligors named therein, the
instruments evidencing such Indebtedness, and all interest, cash, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
Indebtedness.
"Pledged Equity Interests" shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust Interests.
"Pledged LLC Interests" shall mean all interests in any limited liability
company including, without limitation, all limited liability company interests
listed on Schedule 4.4(A) under the heading "Pledged LLC Interests" (as such
schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such limited liability company interests and
any interest of such Grantor on the books and records of such limited liability
company or on the books and records of any securities intermediary pertaining
to such interest and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such limited liability company interests.
"Pledged Partnership Interests" shall mean all interests in any general
partnership, limited partnership, limited liability partnership or other
partnership including, without limitation, all partnership interests listed on
Schedule 4.4(A) under the heading "Pledged Partnership Interests" (as such
schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such partnership interests and any interest
of such Grantor on the books and records of such partnership or on the books
and records of any securities intermediary pertaining to such interest and all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such partnership interests.
"Pledged Stock" shall mean all shares of capital stock owned by such
Grantor, including, without limitation, all shares of capital stock described
on Schedule 4.4(A) under the heading "Pledged Stock" (as such schedule may be
amended or supplemented from time to time), and the certificates, if any,
representing such shares and any interest of such Grantor in the entries on the
books of the issuer of such shares or on the books of any securities
intermediary pertaining to such shares, and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares.
"Pledged Trust Interests" shall mean all interests in a Delaware business
trust or other trust including, without limitation, all trust interests listed
on Schedule 4.4(A) under the heading "Pledged Trust Interests" (as such
schedule may be amended or supplemented from time to time) and the
certificates, if any, representing such trust interests and any interest of
such Grantor on the books and records of such trust or on the books and records
of any securities intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments, securities and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such trust
interests.
"Proceeds" shall mean (i) all "proceeds" as defined in Article 9 of the
UCC, (ii) payments or distributions made with respect to any Investment Related
Property and (iii) whatever is receivable or received when Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
"Receivables" shall mean all rights to payment, whether or not earned by
performance, for goods or other property sold, leased, licensed, assigned or
otherwise disposed of, or services rendered or to be rendered, including,
without limitation all such rights constituting or evidenced by any Account,
Chattel Paper, Instrument, General Intangible or Investment Related Property,
together with all of Grantor's rights, if any, in any goods or other property
giving rise to such right to payment and all Collateral Support and Supporting
Obligations related thereto and all Receivables Records.
"Receivables Records" shall mean (i) all original copies of all documents,
instruments or other writings or electronic records or other Records evidencing
the Receivables, (ii) all books, correspondence, credit or other files,
Records, ledger sheets or cards, invoices, and other papers relating to
Receivables, including, without limitation, all tapes, cards, computer tapes,
computer discs, computer runs, record keeping systems and other papers and
documents relating to the Receivables, whether in the possession or under the
control of Grantor or any computer bureau or agent from time to time acting for
Grantor or otherwise, (iii) all evidences of the filing of financing statements
and the registration of other instruments in connection therewith, and
amendments, supplements or other modifications thereto, notices to other
creditors or secured parties, and certificates, acknowledgments, or other
writings, including, without limitation, lien search reports, from filing or
other registration officers, (iv) all credit information, reports and memoranda
relating thereto and (v) all other written or nonwritten forms of information
related in any way to the foregoing or any Receivable.
"Record" shall have the meaning specified in Article 9 of the UCC.
"Revolving Loan Agreement" shall have the meaning set forth in the
recitals hereto.
"Secured Obligations" shall have the meaning assigned in Section 3.1.
"Secured Parties" shall mean the Agents, Lenders, Lender Counterparties,
Issuing Bank and Bank Product Secured Parties and shall include, without
limitation, all former Agents, Lenders, Lender Counterparties, Issuing Bank and
Bank Product Secured Parties to the extent that any Obligations owing to such
Persons were incurred while such Persons were Agents, Lenders, Lender
Counterparties, Issuing Bank or Bank Product Secured Parties and such
Obligations have not been paid or satisfied in full.
"Securities Accounts" (i) shall mean all "securities accounts" as defined
in Article 8 of the UCC and (ii) shall include, without limitation, all of the
accounts listed on Schedule 4.4(A) under the heading "Securities Accounts" (as
such schedule may be amended or supplemented from time to time).
"Securities Account Control Agreement" shall mean an agreement governing a
Securities Account or a Commodities Account in such form as may be agreed to by
the Collateral Agent, as it may be amended, supplemented or otherwise modified
from time to time, executed by the relevant Grantor, the Collateral Agent, the
relevant Approved Securities Intermediary and each other agent party thereto.
"Supporting Obligation" shall mean all "supporting obligations" as defined
in Article 9 of the UCC and includes any guarantee, indemnitee or other
obligation of any Person in respect of or related to any Receivables.
"Tax Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time.
"Term Loan Facility Pledge and Security Agreement" shall mean that certain
pledge and security agreement, dated as of the date hereof, between Goldman
Sachs Credit Partners, L.P., as collateral agent for the Term Loan Facility
Secured Parties, and each Grantor.
"Trademark Licenses" shall mean any and all agreements providing for the
granting of any right in or to Trademarks (whether such Grantor is licensee or
licensor thereunder) including, without limitation, each agreement referred to
in Schedule 4.7(F) (as such schedule may be amended or supplemented from time
to time).
"Trademarks" shall mean all United States, Canadian and other foreign
trademarks, trade names, corporate names, company names, business names,
fictitious business names, Internet domain names, service marks, certification
marks, collective marks, logos, other source or business identifiers, designs
and general intangibles of a like nature, all registrations and applications
for any of the foregoing including, but not limited to: (i) the registrations
and applications referred to in Schedule 4.7(E) (as such schedule may be
amended or supplemented from time to time), (ii) all extensions or renewals of
any of the foregoing, (iii) all of the goodwill of the business connected with
the use of and symbolized by the foregoing, (iv) the right to sue for past,
present and future infringement or dilution of any of the foregoing or for any
injury to goodwill, and (v) all Proceeds of the foregoing, including, without
limitation, licenses, royalties, income, payments, claims, damages, and
proceeds of suit.
"Trade Secret Licenses" shall mean any and all agreements providing for
the granting of any right in or to Trade Secrets (whether such Grantor is
licensee or licensor thereunder) including, without limitation, each agreement
referred to in Schedule 4.7(G) (as such schedule may be amended or supplemented
from time to time).
"Trade Secrets" shall mean all trade secrets and all other confidential or
proprietary information and know-how whether or not such Trade Secret has been
reduced to a writing or other tangible form, including all documents and things
embodying, incorporating, or referring in any way to such Trade Secret,
including but not limited to: (i) the right to sue for past, present and future
misappropriation or other violation of any Trade Secret, and (ii) all Proceeds
of the foregoing, including, without limitation, licenses, royalties, income,
payments, claims, damages, and proceeds of suit.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York or, when the context implies, the Uniform
Commercial Code as in effect from time to time in any other applicable
jurisdiction; provided that where the perfection, effect of perfection or
non-perfection, priority or enforcement of any Lien granted in Collateral owned
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