EXHIBIT 10.55
PLEDGE AND SECURITY AGREEMENT
among
MONTREIGN OPERATING COMPANY, LLC,
as Borrower and a Grantor
and
EACH OF THE OTHER GRANTORS PARTY HERETO,
as Grantors
and
FIFTH THIRD BANK
as Collateral Agent
dated as of January 24, 2017
{10.55 - Empire - Revolving Credit Agreement - Pledge and Security Agreement
(execution) (2).DOCX.1}
1
NEWYORK 8871481
US-DOCS\78586653.1
TABLE OF CONTENTS
PAGE
SECTION 1.DEFINITIONS; GRANT OF SECURITY. 1
1.1General Definitions 1
1.2Definitions; Interpretation 9
SECTION 2.GRANT OF SECURITY. 9
2.1Grant of Security Interest by Grantors 10
2.2Certain Limited Exclusions 11
SECTION 3.SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
11
3.1Security for Obligations 11
3.2Continuing Liability Under Collateral 11
SECTION 4.REPRESENTATIONS AND WARRANTIES AND COVENANTS. 11
4.1Generally. 11
4.2Equipment and Inventory 14
4.3Receivables. 15
4.4Investment Related Property. 16
4.5[Reserved] 21
4.6Letter-of-Credit Rights. 21
4.7Intellectual Property. 22
4.8Commercial Tort Claims. 24
4.9Perfection of De Minimis Collateral 24
i
SECTION 5.ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS. 24
5.1Further Assurances. 24
5.2Additional Grantors 26
SECTION 6.COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. 26
6.1Power of Attorney 26
6.2No Duty on the Part of Collateral Agent or Secured Parties 27
SECTION 7.REMEDIES. 28
7.1Generally. 28
7.2Application of Proceeds 30
7.3Sales on Credit 30
7.4Investment Accounts 30
7.5Investment Related Property 30
7.6Intellectual Property. 31
7.7Cash 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
11.1General 34
11.2Waivers 35
11.3Governing Law 36
11.4Regulatory Matters 36
ii
11.5Updates to Disclosure Schedules 37
11.6Consent to Jurisdiction and Waiver of Jury Trial 37
11.7Reinstatement 37
11.8Amendments 37
11.9Intercreditor Agreement 37
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
ANNEX I - JOINDER AGREEMENT
EXHIBIT A - PLEDGE SUPPLEMENT
EXHIBIT B - UNCERTIFICATED SECURITIES CONTROL AGREEMENT
iii
This PLEDGE AND SECURITY AGREEMENT, dated as of January 24, 2017 (this
"Agreement"), is made by (a) MONTREIGN OPERATING COMPANY, LLC, a New York
limited liability company (the "Borrower"), and (b) EACH OF THE OTHER PARTIES
HERETO, whether as an original signatory hereto or as an Additional Grantor
(each, a "Grantor" and, collectively, together with the Borrower, the
"Grantors"), in favor of FIFTH THIRD BANK, in its capacity as collateral agent
for the benefit of the Secured Parties (together with its successors and assigns
in such capacity, the "Collateral Agent").
RECITALS
WHEREAS, reference is made to that certain Revolving Credit Agreement, dated as
of the date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among the Borrower,
the banks, financial institutions and other entities from time to time party
thereto in the capacity of lenders and
Fifth Third Bank, in its capacity as administrative agent (together with its
successors and assigns in such capacity, the "Administrative Agent");
WHEREAS, subject to the