SECOND LIEN GUARANTY AND COLLATERAL AGREEMENT dated as of September 2, 2008 made by ABC FUNDING, INC. and EACH OF THE OTHER GRANTORS (AS DEFINED HEREIN) in favor of CIT CAPITAL USA INC., as Administrative Agent
SECOND
LIEN GUARANTY AND COLLATERAL AGREEMENT
dated
as of September 2, 2008
made
by
and
EACH
OF THE OTHER GRANTORS (AS DEFINED HEREIN)
in
favor of
CIT
CAPITAL USA INC.,
as
Administrative Agent
REFERENCE
IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF SEPTEMBER 2, 2008 (AS
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
“INTERCREDITOR AGREEMENT”), AMONG THE BORROWER, CIT CAPITAL USA INC., AS FIRST
LIEN COLLATERAL AGENT (AS DEFINED THEREIN), AND CIT CAPITAL USA INC., AS SECOND
LIEN ADMINISTRATIVE AGENT (AS DEFINED THEREIN). NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE
SECOND LIEN ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES,
PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE SECOND
LIEN ADMINISTRATIVE AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO
THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY
CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT
AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL
CONTROL.
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
Section
1.02 Other
Definitional Provisions
Section
1.03 Rules
of Interpretation
ARTICLE
II
GUARANTEE
Section
2.01 Guarantee
Section
2.02 Right
of Contribution
Section
2.03 No
Subrogation
Section
2.04 Guaranty
Amendments, Etc. with respect to the Borrower Obligations
Section
2.05 Waivers
Section
2.06 Guaranty
Absolute and Unconditional
Section
2.07 Reinstatement
Section
2.08 Payments
ARTICLE
III
GRANT OF
SECURITY INTEREST
Section
3.01 Grant
of Security Interest
Section
3.02 Transfer
of Pledged Securities
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Section
4.01 Representations
in Term Loan Agreement
Section
4.02 Title;
No Other Liens
Section
4.03 Perfected
Priority Liens
Section
4.04 Grantor
Information
Section
4.05 Inventory
and Equipment
Section
4.06 Deposit
Accounts
Section
4.07 Farm
Products
Section
4.08 Investment
Property
Section
4.09 Receivables
Section
4.10 Contracts
Section
4.11 Intellectual
Property
Section
4.12 Commercial
Tort Claims
Section
4.13 Benefit
to the Guarantors
Section
4.14 Solvency
ARTICLE
V
COVENANTS
Section
5.01 Covenants and
Events of Default in Term Loan Agreement
Section
5.02 Delivery of
Instruments, Certificated Securities and Chattel Paper
Section
5.03 Payment
of Obligations
Section
5.04 Maintenance of
Perfected Security Interest; Further Documentation
Section
5.05 Changes
in Locations, Name, Etc.
Section
5.06 Notices
Section
5.07 Investment
Property
Section
5.08 Intellectual
Property
Section
5.09 Commercial
Tort Claims
ARTICLE
VI
REMEDIAL
PROVISIONS
Section
6.01 Certain
Matters Relating to Receivables
Section
6.02
Communications with Obligors; Grantors Remain Liable
Section
6.03 Pledged
Securities
Section
6.04 Proceeds
to be Turned Over to Administrative Agent
Section
6.05 Application
of Proceeds
Section
6.06 Code
and Other Remedies
Section
6.07 Registration
Rights
Section
6.08 Waiver;
Deficiency
Section
6.09 Non-Judicial
Enforcement
ARTICLE
VII
THE
ADMINISTRATIVE AGENT
Section
7.01 Administrative
Agent’s Appointment as Attorney-in-Fact, Etc.
Section
7.02 Duty
of Administrative Agent
Section
7.03 Execution
of Financing Statements
Section
7.04 Authority
of Administrative Agent
ARTICLE
VIII
SUBORDINATION
OF INDEBTEDNESS
Section
8.01 Subordination
of All Grantor Claims
Section
8.02 Claims
in Bankruptcy
Section
8.03 Payments
Held in Trust
Section
8.04 Liens
Subordinate
Section
8.05 Notation
of Records
ARTICLE
IX
MISCELLANEOUS
Section
9.01 No Waiver by
Course of Conduct; Cumulative Remedies
Section
9.02 Notices
Section
9.03 Enforcement
Expenses; Indemnities
Section
9.04 Amendments
in Writing
Section
9.05 Successors
and Assigns
Section
9.06 Survival;
Revival; Reinstatement
Section
9.07 Counterparts;
Integration; Effectiveness
Section
9.08 Severability
Section
9.09 Set-Off
Section
9.10
Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
Section
9.11 Headings
Section
9.12 Acknowledgments
Section
9.13 Additional
Grantors and Additional Pledged Securities
Section
9.14 Releases
SCHEDULES:
1 Notice
Addresses
2 Investment
Property
3 Perfection
Matters
4 Location
of Jurisdiction of Organization and Chief Executive Office
5 Inventory
and Equipment Locations
6 Intellectual
Property
7 Existing
Permitted Financing Statements
8 Deposit
Accounts
ANNEXES:
I Form
of Acknowledgment and Consent
II
Form of Assumption Agreement
III Form
of Supplement
This
SECOND LIEN GUARANTY AND
COLLATERAL AGREEMENT, dated as of September 2, 2008, is made by ABC
Funding, Inc., a Nevada corporation (the “Borrower”) and each
of the signatories hereto (the Borrower and each of the signatories hereto,
together with any Subsidiary of the Borrower that becomes a party hereto from
time to time after the date hereof, the “Grantors”) in favor
of CIT Capital USA Inc., as administrative agent (in such capacity, together
with its successors in such capacity, the “Administrative
Agent”) for the banks and other financial institutions (the “Lenders”) from time
to time parties to the Second Lien Term Loan Agreement, dated as of September 2,
2008 (as amended, supplemented or otherwise modified from time to time, the
“Term Loan
Agreement”), among the Borrower, the Administrative Agent and the
Lenders.
R
E C I T A L S
A. It
is a condition precedent to the obligation of the Lenders to make their
respective loans to and extensions of credit on behalf of the Borrower under the
Term Loan Agreement that the Grantors shall have executed and delivered this
Agreement to the Administrative Agent for the ratable benefit of the
Lenders.
B. Now,
therefore, in consideration of the premises herein and to induce the
Administrative Agent and the Lenders to enter into the Term Loan Agreement and
to induce the Lenders to make their respective loans to and extensions of credit
on behalf of the Borrower thereunder, each Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as
follows:
ARTICLE
I
Definitions
Section
1.01 Definitions.
(a) Unless
otherwise defined herein, terms defined in the Term Loan Agreement and used
herein have the meanings given to them in the Term Loan Agreement, and all
uncapitalized terms which are defined in the UCC (as defined herein) on the date
hereof are used herein as so defined.
(b) The
following terms are used herein as defined in the UCC on the date
hereof: Accounts, Certificated Security, Chattel Paper, Commercial
Tort Claims, Contracts, Documents, Electronic Chattel Paper, Equipment, Farm
Products, Fixtures, General Intangibles, Instruments, Inventory,
Letter-of-Credit Rights, Proceeds, Supporting Obligations, and Tangible Chattel
Paper.
(c) The
following terms have the following meanings:
“Acknowledgment and
Consent” means an Acknowledgement and Consent substantially in the form
attached hereto as Annex I.
“Administrative Agent”
has the meaning assigned such term in the Preamble.
“Agreement” means this
Second Lien Guaranty and Collateral Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
“Assumption Agreement”
means an Assumption Agreement substantially in the form attached hereto as Annex
II.
“Bankruptcy Code”
means Title 11 of the United States Code, as amended from time to
time.
“Borrower” has the
meaning assigned such term in the Preamble.
“Borrower Obligations”
means the collective reference to the unpaid principal of and interest on the
Loans, the Indebtedness, and all other obligations and liabilities of the
Borrower and the other Grantors (including, without limitation, interest
accruing at the then applicable rate provided in the Term Loan Agreement after
the maturity of the Loans interest accruing at the then applicable rate provided
in the Term Loan 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 Secured Parties, 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
Secured Documents, in each case, whether on account of principal, interest,
reimbursement obligations, payments in respect of an early termination date,
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Secured Parties that are required
to be paid by the Borrower pursuant to the terms of any of the Secured
Documents).
“Collateral” has the
meaning assigned such term in Section
3.01.
“Collateral Account”
means any collateral account established by the Administrative Agent as provided
in Section 6.01 or Section 6.04.
“Copyrights” means the
collective reference to (a) 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 those
listed in Schedule 6), all registrations and recordings thereof, and all
applications in connection therewith, including all registrations, recordings
and applications in the United States Copyright Office and (b) the right to
obtain all renewals thereof.
“Copyright Licenses”
means any written agreement naming any Grantor as licensor or licensee, granting
any right under any Copyright, including the grant of rights to manufacture,
distribute, exploit and sell materials derived from any Copyright.
“Deposit Account” has
the meaning given such term in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including any demand, time, savings, passbook or
like account maintained with a depositary institution.
“First Lien
Obligations” means, with respect to any Grantor, the Obligations as such
term is defined in the First Lien Guaranty and Collateral
Agreement.
“Grantors” has the
meaning assigned such term in the Preamble.
“Grantor Claims” has
the meaning assigned to such term in Section
8.01.
“Guarantor
Obligations” means with respect to any Guarantor, the collective
reference to (a) the Borrower Obligations and (b) all obligations and
liabilities of such Guarantor which may arise under or in connection with any
Secured Document to which such Guarantor is a party (including, without
limitation, Article II of this
Agreement), in each case, whether on account of principal, interest, guarantee
obligations, reimbursement obligations, payments in respect of an early
termination date, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to any Secured Party
under any Secured Document).
“Guarantors” means the
collective reference to all Grantors other than the Borrower.
“Intellectual
Property” means the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including the Copyrights,
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
“Intercompany Note”
means any promissory note evidencing loans made by any Grantor to the Borrower
or any of its Subsidiaries.
“Intercreditor
Agreement” means that certain Intercreditor Agreement dated as of even
date herewith, among the Borrower, the Subsidiaries of the Borrower named
therein, CIT, as administrative agent for and on behalf of the Lenders, and CIT,
as administrative agent for and on behalf of lenders under the Senior Revolving
Credit Agreement, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
“Investment Property”
means the collective reference to (a) all “investment property” as such term is
defined in Section 9.102(a)(49) of the UCC and (b) whether or not constituting
“investment property” as so defined, all Pledged Notes and all Pledged
Securities.
“Issuers” means the
collective reference to each issuer of any Investment Property.
“Lenders” has the
meaning assigned such term in the Preamble.
“LLC” means, with
respect to any Grantor, each limited liability company described or referred to
in Schedule 2 in which such Grantor has an interest.
“LLC Agreement” means
each operating agreement relating to an LLC, as each agreement has heretofore
been, and may hereafter be, amended, restated, supplemented or otherwise
modified from time to time.
“Obligations”
means: (a) in the case of the Borrower, the Borrower Obligations and
(b) in the case of each Guarantor, its Guarantor Obligations.
“Partnership” means,
with respect to any Grantor, each partnership described or referred to in
Schedule 2 in which such Grantor has an interest.
“Partnership
Agreement” means each partnership agreement governing a Partnership, as
each such agreement has heretofore been, and may hereafter be, amended,
restated, supplemented or otherwise modified.
“Patent License” means
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 thereof referred to
in Schedule 6.
“Patents” means the
collective reference to (a) 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 any of the foregoing
referred to in Schedule 6, (b) all applications for letters patent of the United
States or any other country and all divisions, continuations and
continuations-in-part thereof, including any of the foregoing referred to in
Schedule 6 and (c) all rights to obtain any reissues or extensions of the
foregoing.
“Pledged LLC
Interests” means, with respect to any Grantor, all right, title and
interest of such Grantor as a member of all LLCs and all right, title and
interest of such Grantor in, to and under the LLC Agreements.
“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 Partnership
Interests” means, with respect to any Grantor, all right, title and
interest of such Grantor as a limited or general partner in all Partnerships and
all right, title and interest of such Grantor in, to and under the Partnership
Agreements.
“Pledged Securities”
means: (a) the Equity Interests described or referred to in Schedule 2 (as
the same may be supplemented from time to time pursuant to a Supplement),
together with any other Equity Interests of any Person that may be issued or
granted to, or held by, any Grantor while this Agreement is in effect;
including, but not limited to, all Pledged LLC Interests and Pledged Partnership
Interests related thereto; and (b) the certificates or instruments, if any,
representing such Equity Interests, (c) all dividends (cash, Equity Interests or
otherwise), cash, instruments, rights to subscribe, purchase or sell and all
other rights and Property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such securities, (d)
all replacements, additions to and substitutions for any of the Property
referred to in this definition, including, without limitation, claims against
third parties, (e) the proceeds, interest, profits and other income of or on any
of the Property referred to in this definition, (f) all security entitlements in
respect of any of the foregoing, if any, and (g) all books and records relating
to any of the Property referred to in this definition.
“Proceeds” means all
“proceeds” as such term is defined in the UCC 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.
“Receivable” means any
right to payment for goods sold or leased or for services rendered, whether or
not such right is evidenced by an Instrument or Chattel Paper and whether or not
it has been earned by performance (including any Account).
“Secured Documents”
means the collective reference to the Term Loan Agreement, the other Loan
Documents and any other document made, delivered or given in connection with any
of the foregoing.
“Secured Parties”
means the collective reference to the Administrative Agent and the
Lenders.
“Securities Act” means
the Securities Act of 1933, as amended.
“Term Loan Agreement”
has the meaning assigned such term in the Preamble.
“Trademark License”
means any agreement, whether written or oral, providing for the grant by or to
any Grantor of any right to use any Trademark.
“Trademarks” means (a)
all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
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, 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 any of the
foregoing referred to in Schedule 6 and (b) the right to obtain all renewals
thereof.
“Supplement” means a
Supplement substantially in the form attached hereto as
Annex III.
“UCC” means the
Uniform Commercial Code as from time to time in effect in the State of Texas;
provided, however, that, in the event that, by reason of mandatory provisions of
law, any of the attachment, perfection or priority of the Administrative Agent’s
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of Texas, the term “UCC”
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such attachment, perfection,
the effect thereof or priority and for purposes of definitions related to such
provisions.
Section
1.02 Other Definitional
Provisions. Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, refer to
such Grantor’s Collateral or the relevant part thereof.
Section
1.03 Rules of
Interpretation. Section 1.04 and Section 1.05 of the
Term Loan Agreement are hereby incorporated herein by reference and shall apply
to this Agreement, mutatis mutandis.
ARTICLE
II
Guarantee
Section
2.01 Guarantee.
(a) Each of
the Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Secured Parties and each of their respective successors,
indorsees, transferees and assigns, the prompt and complete payment in cash and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations. This is a
guarantee of payment and not collection and the liability of each Guarantor,
insofar as it relates to the Secured Parties, is primary and not
secondary.
(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 2.02).
(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 Article II or affecting the
rights and remedies of any Secured Party hereunder.
(d) Each
Guarantor agrees that if the maturity of the Borrower Obligations is accelerated
by bankruptcy or otherwise, such maturity shall also be deemed accelerated for
the purpose of this guarantee without demand or notice to such
Guarantor. The guarantee contained in this Article II shall
remain in full force and effect until all the Borrower Obligations shall have
been irrevocably and indefeasibly satisfied by payment in full in
cash.
(e) No
payment made by any Grantor, any other guarantor or any other Person or received
or collected by any Secured Party 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
irrevocably and indefeasibly paid in full in cash.
Section
2.02 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 2.03. The provisions of
this Section 2.02 shall in no respect
limit the obligations and liabilities of any Guarantor to the Secured Parties,
and each Guarantor shall remain liable to the Secured Parties for the full
amount guaranteed by such Guarantor hereunder.
Section
2.03 No
Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by any Secured
Party, no Guarantor shall be entitled to be subrogated to any of the rights of
any Secured Party against the Borrower or any other Guarantor or any collateral
security or guarantee or right of offset held by any Secured Party for the
payment of the Borrower Obligations, nor shall any Guarantor seek or be entitled
to seek any indemnity, exoneration, participation, 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 Secured Parties on account
of the Borrower Obligations are irrevocably and indefeasibly paid in full in
cash. 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 irrevocably and indefeasibly paid in full in cash, such amount shall
be held by such Guarantor in trust for the Secured Parties, 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 accordance with
Section 10.02(c) of the Term Loan Agreement.
Section
2.04 Guaranty Amendments, Etc.
with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder, and such Guarantor’s obligations hereunder shall not
be released, discharged or otherwise affected, notwithstanding that, without any
reservation of rights against any Guarantor and without notice to, demand upon
or further assent by any Guarantor (which notice, demand and assent requirements
are hereby expressly waived by such Guarantor): (a) any demand for
payment of any of the Borrower Obligations made by any Secured Party may be
rescinded by such Secured Party or otherwise and any of the Borrower Obligations
continued; (b)
the Borrower Obligations, 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, surrendered or
released by, or any indulgence or forbearance in respect thereof granted by, any
Secured Party; (c) any Secured
Document may be amended, modified, supplemented or terminated, in whole or in
part, as the Secured Parties may deem advisable from time to time; (d) any collateral
security, guarantee or right of offset at any time held by any Secured Party for
the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released; (e) any additional
guarantors, makers or endorsers of the Borrower Obligations may from time to
time be obligated on the Borrower Obligations or any additional security or
collateral for the payment and performance of the Borrower Obligations may from
time to time secure the Borrower Obligations; or (f) any other event
shall occur which constitutes a defense or release of sureties
generally. No Secured Party 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 Article II or
any Property subject thereto.
Section
2.05 Waivers. Each
Guarantor hereby 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 any Secured Party upon the guarantee contained in this Article II or
acceptance of the guarantee contained in this Article II; 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 Article II and no notice of creation
of the Borrower Obligations or any extension of credit already or hereafter
contracted by or extended to the Borrower need be given to any Guarantor; and
all dealings between the Borrower and any of the Guarantors, on the one hand,
and the Secured Parties, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Article II. 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.
Section
2.06 Guaranty Absolute and
Unconditional.
(a) Each
Guarantor understands and agrees that the guarantee contained in this
Article II is, and shall be construed as, a continuing, completed, absolute
and unconditional guarantee of payment, and each Guarantor hereby waives any
defense of a surety or guarantor or any other obligor on any obligations arising
in connection with or in respect of any of the following and hereby agrees that
its obligations hereunder shall not be discharged or otherwise affected as a
result of any of the following:
(i) the
invalidity or unenforceability of any Secured 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 any Secured
Party;
(ii) 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 any Secured Party;
(iii) the
insolvency, bankruptcy arrangement, reorganization, adjustment, composition,
liquidation, disability, dissolution or lack of power of the Borrower or any
other Guarantor or any other Person at any time liable for the payment of all or
part of the Obligations, including any discharge of, or bar or stay against
collecting, any Obligation (or any part of them or interest therein) in or as a
result of such proceeding;
(iv) any sale,
lease or transfer of any or all of the assets of the Borrower or any other
Guarantor, or any changes in the shareholders of the Borrower or any other
Guarantor;
(v) any
change in the corporate existence (including its constitution, laws, rules,
regulations or power), structure or ownership of any Grantor or in the
relationship between the Borrower and any Grantor;
(vi) the fact
that any Collateral or Lien contemplated or intended to be given, created or
granted as security for the repayment of the Obligations shall not be properly
perfected or created, or shall prove to be unenforceable or subordinate to any
other Lien, it being recognized and agreed by each of the Guarantors that it is
not entering into this Agreement in reliance on, or in contemplation of the
benefits of, the validity, enforceability, collectability or value of any of the
Collateral for the Obligations;
(vii) the
absence of any attempt to collect the Obligations or any part of them from any
Grantor;
(viii) (A) any
Secured Party’s election, in any proceeding instituted under Chapter 11 of the
Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code; (B) any borrowing or grant of a Lien by the Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code; (C) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of any Secured Party’s claim (or claims) for
repayment of the Obligations; (D) any use of cash collateral under
Section 363 of the Bankruptcy Code; (E) any agreement or stipulation as to
the provision of adequate protection in any bankruptcy proceeding; (F) the
avoidance of any Lien in favor of the Secured Parties or any of them for any
reason; or (G) failure by any Secured Party to file or enforce a claim against
the Borrower or its estate in any bankruptcy or insolvency case or proceeding;
or
(ix) any other
circumstance or act whatsoever, including any action or omission of the type
described in Section 2.04 (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 Article II, in bankruptcy or in any
other instance.
(b) When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, any Secured Party may, but shall be under no
obligation to, join or make a similar demand on or otherwise pursue or exhaust
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 any Secured Party 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 any
Secured Party against any Guarantor. For the purposes hereof “demand”
shall include the commencement and continuance of any legal
proceedings.
Section
2.07 Reinstatement. The
guarantee contained in this Article II 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 any Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the 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.
Section
2.08 Payments. Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Administrative Agent, for the ratable benefit of the Secured Parties, without
set-off, deduction or counterclaim, in U.S. dollars, in immediately available
funds, at the offices of the Administrative Agent specified in
Section 12.01 of the Term Loan Agreement (or from time to time designated
in accordance with the terms thereof).
ARTICLE
III
Grant
of Security Interest
Section
3.01 Grant of Security
Interest. Each Grantor hereby pledges, assigns and transfers
to the Administrative Agent, and hereby grants to the Administrative Agent, for
the ratable benefit of the Secured Parties, a first priority continuing security
interest in, lien on and right of setoff against, 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 and whether now existing or hereafter coming into existence
(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 (whether Tangible Chattel Paper or Electronic Chattel
Paper);
(c) all
Commercial Tort Claims (including, without limitation, with respect to the
matters set forth on Schedule 3);
(d) all
Contracts;
(e) all
Deposit Accounts other than payroll, withholding tax and other fiduciary Deposit
Accounts;
(f) all
Documents;
(g) all
Equipment;
(h) all
Fixtures;
(i) all
General Intangibles;
(j) all
Instruments;
(k) all
Intellectual Property;
(l) all
Inventory;
(m) all
Investment Property;
(n) all
Letter-of-Credit Rights (whether or not the letter of credit is evidenced by a
writing);
(o) all other
Property not otherwise described above (except for any Property specifically
excluded from any defined term used in any clause of this section
above);
(p) all books
and records pertaining to the Collateral; and
(q) to the
extent not otherwise included, all Proceeds, Supporting Obligations 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
3.02 Transfer of Pledged
Securities. Upon the payment or termination of all First Lien
Obligations, all certificates or instruments representing or evidencing the
Pledged Securities shall be delivered to and held pursuant hereto by the
Administrative Agent or a Person designated by the Administrative Agent and
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, and accompanied by
any required transfer tax stamps to effect the pledge of the Pledged Securities
to the Administrative Agent. Notwithstanding the preceding sentence,
at the Administrative Agent’s discretion, all Pledged Securities must be
delivered or transferred in such manner as to permit the Administrative Agent to
be a “protected purchaser” to the extent of its security interest as provided in
Section 8.303 of the UCC (if the Administrative Agent otherwise qualifies
as a protected purchaser). During the continuance of an Event of
Default, the Administrative Agent shall have the right, at any time in its
discretion and without notice, to transfer to or to register in the name of the
Administrative Agent or any of its nominees any or all of the Pledged
Securities, subject only to the revocable rights of the relevant Grantor
specified in Section 6.03. In
addition, during the continuance of an Event of Default, the Administrative
Agent shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Securities for certificates or instruments of
smaller or larger denominations.
ARTICLE
IV
Representations
and Warranties
To induce
the Administrative Agent and the Lenders to enter into the Term Loan Agreement
and to induce the Lenders to make their respective loans to the Borrower
thereunder, each Grantor hereby represents and warrants to the Administrative
Agent and each Lender that:
Section
4.01 Representations in Term Loan
Agreement. In the case of each Guarantor, the representations
and warranties set forth in Article VII of the Term Loan 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 by reference, are true and correct,
and the Administrative Agent and the Lenders shall be entitled to rely on each
of them, provided that each reference in each such representation and warranty
to the Borrower’s knowledge shall, for the purposes of this Section 4.01, be deemed to be a reference to
such Guarantor’s knowledge.
Section
4.02 Title; No Other
Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to
this Agreement and the other Liens permitted to exist on the Collateral by the
Term Loan Agreement, such Grantor owns each item of the Collateral free and
clear of any and all Liens (other than Excepted 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 Secured Parties, pursuant to this Agreement or as are
permitted by the Term Loan Agreement. Schedule 7 is a complete list
of any existing permitted financing statements or other public notice with
respect to all or any part of the Collateral. For the avoidance of
doubt, it is understood and agreed that any Grantor may, as part of its
business, grant licenses to third parties to use Intellectual Property owned or
developed by a Grantor. For purposes of this Agreement and the other
Loan Documents, such licensing activity shall not constitute a “Lien” on such
Intellectual Property. Each of the Administrative Agent and each
Lender understands that any such licenses may be exclusive to the applicable
licensees, and such exclusivity provisions may limit the ability of the
Administrative Agent to utilize, sell, lease or transfer the related
Intellectual Property or otherwise realize value from such Intellectual Property
pursuant hereto.
Section
4.03 Perfected 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 Secured Parties, 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 Liens securing the First Lien Obligations which have priority over
the Liens on the Collateral.
Section
4.04 Grantor
Information. On the date hereof, the correct legal name of
such Grantor, all names and trade names that such Grantor has used in the last
five years, such Grantor’s jurisdiction of organization and each jurisdiction of
organization of such Grantor over the last five years, such Grantor’s
organizational number (if any), taxpayor identification number, and the
location(s) of such Grantor’s chief executive office or sole place of business
or principal residence, as the case may be, over the last five years are
specified on Schedule 4. Such Grantor has furnished to the
Administrative Agent a certified charter, certificate of incorporation or other
organization document and long-form good standing certificate as of a date which
is recent to the date hereof.
Section
4.05 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.
Section
4.06 Deposit
Accounts. Schedule 8 correctly identifies all Deposit Accounts
owned by each Grantor and institutions holding such Deposit
Accounts.
Section
4.07 Farm
Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
Section
4.08 Investment
Property.
(a) The
Pledged Securities required to be pledged hereunder and under the Term Loan
Agreement by such Grantor are listed in Schedule 2. The shares of
Pledged Securities pledged by such Grantor hereunder constitute all the issued
and outstanding shares of all classes of the Equity Interests of each Issuer
owned by such Grantor. All the shares of the Pledged Securities have
been duly and validly issued and are fully paid and nonassessable; and such
Grantor is the record and beneficial owner of, and has good and marketable title
to, the Investment Property pledged by it hereunder, free of any and all Liens
except Liens securing the First Lien Obligations or options in favor of, or
claims of, any other Person, except the security interest created by this
Agreement, and has rights in or the power to transfer the Investment Property in
which a Lien is granted by it hereunder, free and clear of any Lien except Liens
securing the First Lien Obligations.
(b) There are
no restrictions on transfer (that have not been waived or otherwise consented
to) in the LLC Agreement governing any Pledged LLC Interest or the Partnership
Agreement governing any Pledged Partnership Interest or any other agreement
relating thereto which would limit or restrict: (i) the grant of a
security interest in the Pledged LLC Interests or the Pledged Partnership
Interests, (ii) the perfection of such security interest or (iii) the exercise
of remedies in respect of such perfected security interest in the Pledged LLC
Interests or the Pledged Partnership Interests, in each case, as contemplated by
this Agreement. Upon the exercise of remedies in respect of the
Pledged LLC Interests or the Pledged Partnership Interests, a transferee or
assignee of a membership interest or a partnership interest, as the case may be,
of such LLC or Partnership, as the case may be, shall become a member or
partner, as the case may be, of such LLC or Partnership, as the case may be,
entitled to participate in the management thereof and, upon the transfer of the
entire interest of such Grantor, such Grantor shall cease to be a member or
partner, as the case may be.
(c) 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 principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing.
Section
4.09 Receivables.
(a) No amount
payable to such Grantor under or in connection with any Receivable is evidenced
by any Instrument or Chattel Paper which has not been delivered to the
Administrative Agent.
(b) None of
the obligors on any Receivables is a Governmental Authority.
(c) The
amounts represented by such Grantor to the Lenders from time to time as owing to
such Grantor in respect of the Receivables will at such times be materially
accurate.
Section
4.10 Contracts.
(a) No
consent of any party (other than such Grantor) to any Contract is required, or
purports to be required, in connection with the execution, delivery and
performance of this Agreement, except as has been obtained.
(b) No
consent or authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the execution, delivery,
performance, validity or enforceability of any of the Contracts by any party
thereto other than those which have been duly obtained, made or performed, are
in full force and effect and do not subject the scope of any such Contract to
any material adverse limitation, either specific or general in
nature.
(c) Neither
such Grantor nor (to the best of such Grantor’s knowledge) as of the date hereof
any of the other parties to the Contracts is in default in any material respect
in the performance or observance of any of the terms thereof.
(d) To such
Grantor’s knowledge, as of the date of this Agreement, the right, title and
interest of such Grantor in, to and under the Contracts are not subject to any
existing defenses, offsets, counterclaims or claims.
(e) Such
Grantor has delivered to the Administrative Agent a complete and correct copy of
each Contract, including all amendments, supplements and other modifications
thereto.
(f) No amount
payable to such Grantor under or in connection with any Contract is evidenced by
any Instrument or Chattel Paper which has not been delivered to the
Administrative Agent.
(g) None of
the parties to any Contract is a Governmental Authority.
Section
4.11 Intellectual
Property.
(a) Schedule
6 lists all Intellectual Property owned by such Grantor in its own name on the
date hereof.
(b) On the
date hereof, all material Intellectual Property is valid, subsisting, unexpired
and enforceable, has not been abandoned and 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) 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.
Section
4.12 Commercial Tort
Claims.
(a) On the
date hereof, except to the extent listed in Schedule 3, no Grantor has rights in
any Commercial Tort Claim with potential value in excess of
$100,000.
(b) Upon the
filing of a financing statement covering any Commercial Tort Claim referred to
in Section 5.09 against such Grantor in
the jurisdiction specified in Schedule 3, the security interest granted in such
Commercial Tort Claim will constitute a valid perfected security interest in
favor of the Administrative Agent, for the ratable benefit of the Secured
Parties, 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 such Collateral from such Grantor, which security
interest shall be prior to all other Liens on such Collateral except for
unrecorded liens permitted by the Term Loan Agreement which have priority over
the Liens on such Collateral by operation of law.
Section
4.13 Benefit to the
Guarantors. The Borrower is a member of an affiliated group of
companies that includes such Grantor, and the Borrower and the other Grantors
are engaged in related businesses. Such Grantor may reasonably be
expected to benefit, directly or indirectly, from the Transactions; and such
Grantor has determined that this Agreement is necessary and convenient to the
conduct, promotion and attainment of the business of such Grantor.
Section
4.14 Solvency. Such
Grantor (a) is
not insolvent as of the date hereof and will not be rendered insolvent as a
result of this Agreement (after giving effect to Section 2.02), (b) is not engaged in
business or a transaction, or about to engage in a business or a transaction,
for which any Property remaining with it constitutes unreasonably small capital
and (c) does
not intend to incur, or believe it will incur, Debt that will be beyond its
ability to pay as such Debt matures.
ARTICLE
V
Covenants
Each
Grantor covenants and agrees with the Administrative Agent and the Lenders that,
from and after the date of this Agreement until the Borrower Obligations shall
have been irrevocably and indefeasibly paid in full in cash:
Section
5.01 Covenants and Events of
Default in Term Loan Agreement. Such Grantor shall take, or
shall refrain from taking, as the case may be, each action that is necessary to
be taken or not taken, as the case may be, by it 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 Grantor.
Section
5.02 Delivery of Instruments,
Certificated Securities and Chattel Paper. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any Instrument, Certificated Security or Chattel Paper, such
Instrument, Certificated Security 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.
Section
5.03 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.
Section
5.04 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 4.03 and shall defend such
security interest against the claims and demands of all Persons whomsoever,
subject to the rights of such Grantor under the Loan Documents to dispose of the
Collateral, except for Liens securing the First Lien
Obligations.
(b) Such Grantor will furnish to
the Administrative Agent and the Lenders from time to time statements and
schedules further identifying and describing the assets and property of such
Grantor and such other reports in connection therewith as the Administrative
Agent may reasonably request, all in reasonable detail.
(c) Subject to the Intercreditor
Agreement, 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 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, filing any financing or continuation statements
under the UCC (or other similar laws) in effect in any jurisdiction with respect
to the security interests created hereby. Upon the payment or
termination of all First Lien Obligations, and without limiting the above
obligations of the Grantors, upon the request of the Administrative Agent, and
at the sole expense of such Grantor, such Grantor will promptly 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, (i)
delivering
certificated securities, and (ii) in the case of Investment
Property, Deposit Accounts, Letter-of-Credit Rights and any other relevant
Collateral, taking any actions necessary to enable the Administrative Agent to
obtain “control” (within the meaning of the applicable Uniform Commercial Code)
with respect thereto.
Section
5.05 Changes in Locations, Name,
Etc. Such Grantor recognizes that financing statements
pertaining to the Collateral have been or may be filed where such Grantor
maintains any Collateral or is organized. Without limitation of
Section 8.01(p) of the Term Loan Agreement or any other covenant herein,
such Grantor will not cause or permit any change in its (a) corporate name or
in any trade name used to identify it in the conduct of its business or in the
ownership of its Properties (other than to Cross Canyon Energy Corp.), (b) its identity or
corporate structure or its jurisdiction of organization or its organizational
identification number in such jurisdiction of organization or (c) its federal
taxpayer identification number, unless, in each case, such Grantor shall have
first (i)
notified the Administrative Agent of such change at least thirty (30) days prior
the effective date of such change and (ii) taken all action
reasonably requested by the Administrative Agent for the purpose of maintaining
the perfection and priority of the Administrative Agent’s security interest
under this Agreement. In any notice furnished pursuant to this Section 5.05, such Grantor will expressly
state in a conspicuous manner that the notice is required by this Agreement and
contains facts that may require additional filings of financing statements or
other notices for the purposes of continuing perfection of the Administrative
Agent’s security interest in the Collateral. At the request of the
Administrative Agent, on or prior to the occurrence of such event, the Borrower
will provide to the Administrative Agent and the Lenders an opinion of counsel,
in form and substance reasonably satisfactory to the Administrative Agent, to
the effect that such event will not impair the validity of the security interest
hereunder, the perfection and priority thereof, the enforceability of the Loan
Documents, and such other matters as may be reasonably requested by the
Administrative Agent.
Section
5.06 Notices. Such
Grantor will advise the Administrative Agent and the Lenders promptly, in
reasonable detail, of:
(a) any Lien
(other than Liens securing the First Lien Obligations, security interests
created hereby or Liens permitted under the Term Loan 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.
Section
5.07 Investment
Property.
(a) Upon the
payment or termination of all First Lien Obligations, if such Grantor shall
become entitled to receive or shall receive any certificate (including, without
limitation, any certificate representing a 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 Equity Interests of any Issuer, whether in addition to, in
substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Securities, or otherwise in respect thereof, such Grantor shall accept
the same as the agent of the Secured Parties, hold the same in trust for the
Secured Parties, segregated from other Property of such Grantor, 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, subject to the terms hereof, as
additional collateral security for the Obligations.
(b) Without
the prior written consent of the Administrative Agent, such Grantor will not (i)
unless otherwise expressly permitted hereby or under the other Loan Documents,
vote to enable, or take any other action to permit, any Issuer to issue any
Equity Interests of any nature or to issue any other securities convertible into
or granting the right to purchase or exchange for any Equity Interests of any
nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Investment Property or
Proceeds thereof (except pursuant to a transaction expressly permitted by the
Term Loan 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 Investment
Property or Proceeds thereof, or any interest therein, except for Liens securing
the First Lien Obligations and 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 Investment Property or Proceeds thereof.
(c) In the
case of each Grantor that is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property 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 5.07(a) with respect to the
Investment Property issued by it and (iii) the terms of Section 6.03(c) and Section 6.07 shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.03(c) or Section 6.07 with respect to the Investment
Property issued by it.
(d) In the
case of each Grantor that is a partner in a Partnership, such Grantor hereby
consents to the extent required by the applicable Partnership Agreement to the
pledge by each other Grantor, pursuant to the terms hereof, of the Pledged
Partnership Interests in such Partnership and to the transfer of such Pledged
Partnership Interests to the Administrative Agent or its nominee and to the
substitution of the Administrative Agent or its nominee as a substituted partner
in such Partnership with all the rights, powers and duties of a general partner
or a limited partner, as the case may be. In the case of each Grantor
that is a member of an LLC, such Grantor hereby consents to the extent required
by the applicable LLC Agreement to the pledge by each other Grantor, pursuant to
the terms hereof, of the Pledged LLC Interests in such LLC and to the transfer
of such Pledged LLC Interests to the Administrative Agent or its nominee and to
the substitution of the Administrative Agent or its nominee as a substituted
member of the LLC with all the rights, powers and duties of a member of such
LLC.
(e) Such
Grantor shall not agree to any amendment of a Partnership Agreement or an LLC
Agreement that (i) in any way adversely affects the perfection of the security
interest of the Administrative Agent in the Pledged Partnership Interests or
Pledged LLC Interests pledged by such Grantor hereunder or (ii) causes any
Partnership Agreement or LLC Agreement to include an election to treat the
membership interests or partnership interests of such Grantor as a security
under Section 8.103 of the UCC.
(f) Upon the
payment or termination of all First Lien Obligations, such Grantor shall furnish
to the Administrative Agent such stock or equity powers and other instruments as
may be required by the Administrative Agent to assure the transferability of the
Investment Property when and as often as may be reasonably requested by the
Administrative Agent.
(g) The
Pledged Securities set forth on Schedule 2 will at all times constitute not less
than 100% of the Equity Interests of the Issuer thereof owned by such
Grantor. Such Grantor will not permit any Issuer of any of the
Pledged Securities set forth on Schedule 2 to issue any new shares of any class
of Equity Interests of such Issuer without the prior written consent of the
Administrative Agent.
Section
5.08 Intellectual
Property.
(a) Such
Grantor (either itself or through licensees) will (i) continue to use each
material 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 offered under such Trademark, (iii) use such Trademark with the
appropriate notice of registration and all other notices and legends required by
applicable Governmental Requirements, (iv) not adopt or use any xxxx which is
confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent, for the ratable benefit of the Secured Parties, shall
obtain a perfected security interest in such xxxx 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 material
portion of the Copyrights may become invalidated or otherwise
impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any material portion of the 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) 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.
(f) 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.
(g) 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 maintain each
registration of the material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(h) 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 xxx for infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages for such
infringement, misappropriation or dilution.
Section
5.09 Commercial Tort
Claims. If such Grantor shall obtain an interest in any
Commercial Tort Claim with a potential value in excess of $100,000, such Grantor
shall, within 30 days of obtaining such interest, sign and deliver documentation
acceptable to the Administrative Agent granting a security interest under the
terms and provisions of this Agreement in and to such Commercial Tort
Claim.
ARTICLE
VI
Remedial
Provisions
Section
6.01 Certain Matters Relating to
Receivables.
(a) The Administrative Agent
shall have the right to make test verifications of the Receivables in any manner
and through any medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the Administrative Agent
may reasonably require in connection with such test
verifications.
(b) The Administrative Agent
hereby authorizes each Grantor to collect such Grantor’s Receivables 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 payments of Receivables, when
collected by any Grantor, (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 a Collateral Account 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 6.05 and (ii) until so turned over, shall
be held by such Grantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Grantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the
deposit.
(c) 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 the Receivables, including, without limitation,
all original orders, invoices and shipping receipts.
Section
6.02 Communications with
Obligors; Grantors Remain Liable.
(a) The Administrative Agent in
its own name or in the name of others may at any time communicate with obligors
under the Receivables and parties to the Contracts to verify with them to the
Administrative Agent’s satisfaction the existence, amount and terms of any
Receivables.
(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 Receivables
that the Receivables have been assigned to the Administrative Agent for the
ratable benefit of the Secured Parties 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
Receivables 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 Receivable (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
Receivable (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.
Section
6.03 Pledged Securities.
(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
6.03(b),
each Grantor shall be permitted to receive all cash dividends paid in respect of
the Pledged Securities 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 Term Loan
Agreement, and to exercise all voting and corporate or other organizational
rights with respect to the Investment Property; provided, however, that no vote
shall be cast or corporate or other organizational 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 Term Loan 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 Investment Property and make application
thereof to the Obligations in such order as the Administrative Agent may
determine, and (ii) any or all of the
Investment Property shall be registered in the name of the Administrative Agent
or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (A)
all voting, corporate and other rights pertaining to such Investment Property at
any meeting of shareholders of the relevant Issuer or Issuers or otherwise and
(B) any and all
rights of conversion, exchange and subscription and any other rights, privileges
or options pertaining to such Investment Property as if it were the absolute
owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Investment Property upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate or other organizational structure of any Issuer, or upon the
exercise by any Grantor or the Administrative Agent of any right, privilege or
option pertaining to such Investment Property, and in connection therewith, the
right to deposit and deliver any and all of the Investment Property 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 Investment Property pledged by such
Grantor hereunder to (i) comply with any instruction
received by it from the Administrative Agent in writing that (A) states that an Event of
Default has occurred and is continuing and (B) 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
Investment Property directly to the Administrative Agent.
Section
6.04 Proceeds to be Turned Over
to Administrative Agent. In addition to the rights of the
Administrative Agent and the Lenders specified in Section 6.01 with respect to payments of
Receivables, if an Event of Default shall occur and be continuing, on request by
the Administrative Agent 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 Collateral Account
maintained under its sole dominion and control. All Proceeds while
held by the Administrative Agent in a Collateral Account (or by such Grantor in
trust for the 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
6.05.
Section
6.05 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 constituting
Collateral, whether or not held in any Collateral Account, and any proceeds of
the guarantee set forth in Article II,
in payment of the Obligations in accordance with Section 10.02(c) of the Term
Loan Agreement.
Section
6.06 Code and Other
Remedies.
(a) If an Event of Default shall
occur and be continuing, the Administrative Agent, on behalf of the Secured
Parties, may exercise, in addition to all other rights and remedies granted to
them in this Agreement, the other Loan Documents and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the UCC or any other applicable law or
otherwise available at law or equity. 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 any Secured Party 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. Any Secured Party 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. Any such sale or transfer by the Administrative
Agent either to itself or to any other Person shall be absolutely free from any
claim of right by any Grantor, including any equity or right of redemption, stay
or appraisal which any Grantor has or may have under any rule of law, regulation
or statute now existing or hereafter adopted (and each Grantor hereby waives any
rights it may have in respect thereof). Upon any such sale or
transfer, the Administrative Agent shall have the right to deliver, assign and
transfer to the purchaser or transferee thereof the Collateral so sold or
transferred. The Administrative Agent
shall apply the net proceeds of any action taken by it pursuant to this
Section 6.06, 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
Secured Parties hereunder, including, without limitation, reasonable attorneys’
fees and disbursements, to the payment in whole or in part of the Obligations,
in accordance with Section 10.02(c) of the Term Loan Agreement, 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
9.615(a)(3) of the 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 Secured Party arising out of the exercise by them of
any rights hereunder except to the extent caused by the gross negligence or
willful misconduct of the Administrative Agent or such Secured Party or their
respective agents. 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.
(b) In the
event that the Administrative Agent elects not to sell the Collateral, the
Administrative Agent retains its rights to dispose of or utilize the Collateral
or any part or parts thereof in any manner authorized or permitted by law or in
equity, and to apply the proceeds of the same towards payment of the
Obligations. Each and every method of disposition of the Collateral
described in this Agreement shall constitute disposition in a commercially
reasonable manner. Without limitation of the foregoing, any
disposition involving three (3) or more bidders that are “accredited investors”
(within the meaning of the Securities Act) shall constitute disposition in a
commercially reasonable manner.
(c) The Administrative Agent may
appoint any Person as agent to perform any act or acts necessary or incident to
any sale or transfer of the Collateral.
Section
6.07 Registration
Rights.
(a) If the Administrative Agent
shall determine to exercise its right to sell any or all of the Pledged
Securities pursuant to Section 6.06, and if in the opinion of
the Administrative Agent it is necessary or advisable to have the Pledged
Securities, 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 Securities, 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 Securities, 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 Securities, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise,
or may determine that a public sale is impracticable or not
commercially reasonable, and, accordingly, may 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 Securities 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
Securities pursuant to this Section 6.07 valid and binding and in
compliance with any and all other applicable Governmental
Requirements. Each Grantor further agrees that a breach of any of the
covenants contained in this Section 6.07 will cause irreparable
injury to the Secured Parties, that the Secured Parties have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 6.07 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
Term Loan Agreement.
Section
6.08 Waiver;
Deficiency. Each Grantor waives and agrees not to assert any
rights or privileges which it may acquire under the 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 Secured Party to collect such deficiency.
Section
6.09 Non-Judicial
Enforcement. The Administrative Agent may enforce its rights
hereunder without prior judicial process or judicial hearing, and to the extent
permitted by law, each Grantor expressly waives any and all legal rights which
might otherwise require the Administrative Agent to enforce its rights by
judicial process.
ARTICLE
VII
The
Administrative Agent
Section
7.01 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 Receivable 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
Receivable 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 Secured
Parties’ 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 or any other Loan Document 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 6.06 or Section 6.07, any indorsements, assignments
or other instruments of conveyance or transfer with respect to the Collateral;
and
(v) (A)
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; (B) 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; (C) 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; (D) in the name of such Grantor, or in its own name,
or otherwise, 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;
(E) defend any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (F) 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; (G) 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 (H) generally, sell, transfer,
pledge and make any agreement with respect to or otherwise deal with 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 Secured
Parties’ 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 7.01(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 7.01(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
7.01, together with interest thereon at the post-default rate specified in
Section 3.02(c) of the Term Loan Agreement, but in no event to exceed the
Highest Lawful Rate, 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.
Section
7.02 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 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, and the Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which comparable secured parties accord comparable
collateral. Neither the Administrative Agent, any Secured Party nor
any of their Related Parties 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 Secured Parties hereunder
are solely to protect the Administrative Agent’s and the Secured Parties’
interests in the Collateral and shall not impose any duty upon the
Administrative Agent or any Secured Party to exercise any such
powers. The Administrative Agent and the Secured Parties 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 Related Parties shall
be responsible to any Grantor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct. To the fullest
extent permitted by applicable law, the Administrative Agent shall be under no
duty whatsoever to make or give any presentment, notice of dishonor, protest,
demand for performance, notice of non-performance, notice of intent to
accelerate, notice of acceleration, or other notice or demand in connection with
any Collateral or the Obligations, or to take any steps necessary to preserve
any rights against any Grantor or other Person or ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not it has or is deemed to have
knowledge of such matters. Each Grantor, to the extent permitted by
applicable law, waives any right of marshaling in respect of any and all
Collateral, and waives any right to require the Administrative Agent or any
Secured Party to proceed against any Grantor or other Person, exhaust any
Collateral or enforce any other remedy which the Administrative Agent or any
Secured Party now has or may hereafter have against any Grantor or other
Person.
Section
7.03 Execution of Financing
Statements. Pursuant to the 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 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. Each Grantor authorizes the Administrative Agent to use
the collateral description “all personal property” or “all assets” in any such
financing statements. Each Grantor hereby ratifies and authorizes the
filing by the Administrative Agent of any financing statement with respect to
the Collateral made prior to the date hereof.
Section
7.04 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 Secured Parties, be
governed by the Term Loan 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 Secured Parties 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.
ARTICLE
VIII
Subordination
of Indebtedness
Section
8.01 Subordination of All Grantor
Claims. As used herein, the term “Grantor Claims” shall
mean all debts and obligations of the Borrower or any other Grantor to any other
Grantor, whether such debts and obligations now exist or are hereafter incurred
or arise, or whether the obligation of the debtor thereon be direct, contingent,
primary, secondary, several, joint and several, or otherwise, and irrespective
of whether such debts or obligations be evidenced by note, contract, open
account, or otherwise, and irrespective of the Person or Persons in whose favor
such debts or obligations may, at their inception, have been, or may hereafter
be created, or the manner in which they have been or may hereafter be acquired
by. After and during the continuation of an Event of Default, no
Grantor shall receive or collect, directly or indirectly, from any obligor in
respect thereof any amount upon the Grantor Claims.
Section
8.02 Claims in
Bankruptcy. In the event of receivership, bankruptcy,
reorganization, arrangement, debtor’s relief, or other insolvency proceedings
involving any Grantor, the Administrative Agent on behalf of the Administrative
Agent and the Secured Parties shall have the right to prove their claim in any
proceeding, so as to establish their rights hereunder and receive directly from
the receiver, trustee or other court custodian, dividends and payments which
would otherwise be payable upon Grantor Claims. Each Grantor hereby
assigns such dividends and payments to the Administrative Agent for the benefit
of the Administrative Agent and the Secured Parties for application against the
Borrower Obligations as provided under Section 10.02(c) of the Term Loan
Agreement. Should the Administrative Agent or any Secured Party
receive, for application upon the Obligations, any such dividend or payment
which is otherwise payable to any Grantor, and which, as between such Grantors,
shall constitute a credit upon the Grantor Claims, the intended recipient shall
become subrogated to the rights of the Administrative Agent and the Secured
Parties to the extent that such payments to the Administrative Agent and the
Secured Parties on the Grantor Claims have contributed toward the liquidation of
the Obligations, and such subrogation shall be with respect to that proportion
of the Obligations which would have been unpaid if the Administrative Agent and
the Secured Parties had not received dividends or payments upon the Grantor
Claims.
Section
8.03 Payments Held in
Trust. In the event that, notwithstanding Section 8.01 and Section 8.02, any Grantor should receive any
fund, payment, claim or distribution which is prohibited by such Sections, then
it agrees: (a)
to hold in trust for the Administrative Agent and the Secured Parties an amount
equal to the amount of all funds, payments, claims or distributions so received
and (b) that it
shall have absolutely no dominion over the amount of such funds, payments,
claims or distributions except to pay them promptly to the Administrative Agent,
for the benefit of the Secured Parties; and each Grantor covenants promptly to
pay the same to the Administrative Agent.
Section
8.04 Liens
Subordinate. Each Grantor agrees that, until the Borrower
Obligations are irrevocably and indefeasibly paid in full in cash, any Liens
securing payment of the Grantor Claims shall be and remain inferior and
subordinate to any Liens securing payment of the Obligations, regardless of
whether such encumbrances in favor of such Grantor, the Administrative Agent or
any Secured Party presently exist or are hereafter created or
attach. Without the prior written consent of the Administrative
Agent, no Grantor, during the period in which any of the Borrower Obligations
are outstanding, shall (a) exercise or
enforce any creditor’s right it may have against any debtor in respect of the
Grantor Claims or (b) foreclose,
repossess, sequester or otherwise take steps or institute any action or
proceeding (judicial or otherwise, including without limitation the commencement
of or joinder in any liquidation, bankruptcy, rearrangement, debtor’s relief or
insolvency proceeding) to enforce any Lien held by it.
Section
8.05 Notation of
Records. Upon the request of the Administrative Agent, all
promissory notes and all accounts receivable ledgers or other evidence of the
Grantor Claims accepted by or held by any Grantor shall contain a specific
written notice thereon that the indebtedness evidenced thereby is subordinated
under the terms of this Agreement.
ARTICLE
IX
Miscellaneous
Section
9.01 No Waiver by Course of
Conduct; Cumulative Remedies. Neither the Administrative Agent
nor any Secured Party shall by any act (except by a written instrument pursuant
to Section 9.04), 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 Secured Party, and no course of dealing with respect to, any right, power
or privilege hereunder, or any abandonment or discontinuance of steps to enforce
such right, power or privilege, 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 Secured Party 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 Secured Party 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 or equity.
Section
9.02 Notices. All
notices and other communications provided for herein shall be given in the
manner and subject to the terms of Section 12.01 of the Term Loan
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.
Section
9.03 Enforcement Expenses;
Indemnities.
(a) Each
Guarantor agrees to pay or reimburse each Secured Party and the Administrative
Agent for all its reasonable out-of-pocket costs and expenses incurred in
collecting against such Guarantor under the guarantee contained in Article II 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 to each Secured Party and of counsel to the
Administrative Agent.
(b) Each
Guarantor agrees to pay, and to save the Administrative Agent and the Secured
Parties harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all 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.
(c) Each
Guarantor agrees to pay, and to save the Administrative Agent and the Secured
Parties 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 Section 12.03 of the Term Loan
Agreement.
(d) The
agreements in this Section 9.03 shall
survive repayment of the Obligations and all other amounts payable under the
Term Loan Agreement and the other Loan Documents.
Section
9.04 Amendments in
Writing. None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except in accordance with
Section 12.02 of the Term Loan Agreement.
Section
9.05 Successors and
Assigns. The provisions of this Agreement shall be binding
upon the Grantors and their successors and assigns and shall inure to the
benefit of the Administrative Agent and the Secured Parties and their respective
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, and any such purported assignment,
transfer or delegation shall be null and void.
Section
9.06 Survival; Revival;
Reinstatement.
(a) All
covenants, agreements, representations and warranties made by any Grantor herein
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document to which it is a party
shall be considered to have been relied upon by the Administrative Agent and the
Lenders and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the
other agents or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under the Term Loan Agreement is outstanding and unpaid. The
provisions of Section 9.03 shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, or the termination
of this Agreement, any other Loan Document or any provision hereof or
thereof.
(b) To the
extent that any payments on the Obligations or proceeds of any Collateral are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to such
extent, the Obligations so satisfied shall be revived and continue as if such
payment or proceeds had not been received and the Administrative Agent’s and the
Secured Parties’ Liens, security interests, rights, powers and remedies under
this Agreement and each other Loan Document shall continue in full force and
effect. In such event, each Loan Document shall be automatically
reinstated and the Borrower shall take such action as may be reasonably
requested by the Administrative Agent and the Secured Parties to effect such
reinstatement.
Section
9.07 Counterparts; Integration;
Effectiveness.
(a) This
Agreement may be executed in multiple counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single
contract.
(b) This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and thereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof and thereof. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND THERETO AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
(c) This
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto, the Lenders and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section
9.08 Severability. Any
provision of this Agreement or any other Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof or thereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section
9.09 Set-Off. If
an Event of Default shall have occurred and be continuing, each Lender and each
of its Affiliates is hereby authorized at any time and from time to time,
without notice to such Person or any other Grantor, any such notice being
expressly waived by each Grantor, to the fullest extent permitted by law, 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, claims or obligations (of whatsoever kind, in any currency,
whether direct or indirect, absolute or contingent, matured or unmatured, at any
time held or owing by such Lender or Affiliate to or for the credit or the
account of any Grantor against any of and all the obligations and liabilities of
the Grantor owed to such Lender now or hereafter existing under this Agreement
or any other Loan Document, irrespective of whether or not such Lender shall
have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. The rights of each Lender
under this Section 9.09 are in addition
to other rights and remedies (including other rights of setoff) which such
Lender or its Affiliates may have.
Section
9.10 Governing Law; Submission to
Jurisdiction;
Waiver of Jury Trial.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF TEXAS.
(b) ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT
PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS
NON-EXCLUSIVE AND DOES NOT PRECLUDE A PARTY FROM OBTAINING JURISDICTION OVER
ANOTHER PARTY IN ANY COURT OTHERWISE HAVING JURISDICTION.
(c) EACH
PARTY HEREBY (i) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii)
IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; (iii) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR
AGENT OF COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 9.10.
Section
9.11 Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
Section
9.12 Acknowledgments. 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 Secured Party 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 Secured Parties, 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 Secured Parties or
among the Grantors and the Secured Parties.
(d) Each of
the parties hereto specifically agrees that it has a duty to read this
Agreement, the Security Instruments and the other Loan Documents and agrees that
it is charged with notice and knowledge of the terms of this Agreement, the
Security Instruments and the other Loan Documents; that it has in fact read this
Agreement, the Security Instruments and the other Loan Documents and is fully
informed and has full notice and knowledge of the terms, conditions and effects
thereof; that it has been represented by independent legal counsel of its choice
throughout the negotiations preceding its execution of this Agreement and the
Security Instruments; and has received the advice of its attorney in entering
into this Agreement and the Security Instruments; and that it recognizes that
certain of the terms of this Agreement and the Security Instruments result in
one party assuming the liability inherent in some aspects of the transaction and
relieving the other party of its responsibility for such
liability. EACH
PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR
ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND THE SECURITY
INSTRUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH
PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS.”
Section
9.13 Additional Grantors and
Additional Pledged
Securities. Each Subsidiary of the Borrower that is required
to become a party to this Agreement pursuant to Section 8.13 of the Term
Loan Agreement shall become a party hereto as a Grantor for all purposes of this
Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement and shall thereafter have the same rights, benefits and obligations as
a Grantor party hereto on the date hereof. Each Grantor that is
required to pledge additional Equity Interests pursuant to the Term Loan
Agreement shall execute and deliver a Supplement.
Section
9.14 Releases.
(a) Release Upon Payment in
Full. The grant of a security interest hereunder and all of
rights, powers and remedies in connection herewith shall remain in full force
and effect until the Administrative Agent has (i) retransferred and delivered
all Collateral in its possession to the Grantors and (ii) executed a written
release or termination statement and reassigned to the Grantors without recourse
or warranty any remaining Collateral and all rights conveyed
hereby. Upon the date that the Borrower Obligations shall have been
paid in full in cash and the Grantors shall have fully complied with all
covenants and agreements hereof, the Administrative Agent, at the written
request and expense of the Borrower, will promptly release, reassign and
transfer the Collateral to the Grantors and declare this Agreement to be of no
further force or effect.
(b) Partial
Releases. If any of the Collateral shall be sold, transferred
or otherwise disposed of by any Grantor in a transaction permitted by the Term
Loan Agreement, then the Administrative Agent, at the request and sole expense
of such Grantor, shall promptly 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 Guarantor shall be released from its obligations
hereunder in the event that all the Equity Interests of such Guarantor shall be
sold, transferred or otherwise disposed of in a transaction permitted by the
Term Loan Agreement; provided that the Borrower shall have delivered to the
Administrative Agent, at least fifteen Business Days prior to the date of the
proposed release (or by such later date to which the Administrative Agent may
agree), a written request of a Responsible Officer for release identifying the
relevant 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 Term Loan Agreement and the other Loan
Documents.
(c) Retention in
Satisfaction. Except as may be expressly applicable pursuant
to Section 9.620 of the UCC, no action taken or omission to act by the
Administrative Agent or the Secured Parties hereunder, including, without
limitation, any exercise of voting or consensual rights or any other action
taken or inaction, shall be deemed to constitute a retention of the Collateral
in satisfaction of the Obligations or otherwise to be in full satisfaction of
the Obligations, and the Obligations shall remain in full force and effect,
until the Administrative Agent and the Secured Parties shall have applied
payments (including, without limitation, collections from Collateral) towards
the Obligations in the full amount then outstanding or until such subsequent
time as is provided in Section
9.14(a).
Section
9.15 Acceptance. Each
Grantor hereby expressly waives notice of acceptance of this Agreement,
acceptance on the part of the Administrative Agent and the Secured Parties being
conclusively presumed by their request for this Agreement and delivery of the
same to the Administrative Agent.
[Remainder
of page intentionally left blank; signature page follows]
- -
IN
WITNESS WHEREOF, each of the undersigned has caused this Second Lien Guaranty
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: ABC FUNDING, INC.
By: /s/
Xxxx X.
Xxxxx
Xxxx X.
Xxxxx
Chief
Financial Officer
GUARANTORS: ENERGY VENTURE,
INC.
By: /s/
Xxxx X.
Xxxxx
Xxxx X.
Xxxxx
Vice-President,
Treasurer and Secretary
VOYAGER GAS CORPORATION
By: /s/
Xxxx X.
Xxxxx
Xxxx X.
Xxxxx
Vice-President,
Treasurer and Secretary
Acknowledged
and Agreed to as
of the
date hereof by:
ADMINISTRATIVE
AGENT: CIT CAPITAL USA
INC.,
as Administrative Agent
By: /s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
Vice
President
[Schedules
Omitted]
Annex
I
ACKNOWLEDGMENT
AND CONSENT
The undersigned hereby acknowledges
receipt of a copy of the Second Lien Guaranty and Collateral Agreement dated as
of September 2, 2008 (the “Second Lien Guaranty and Collateral
Agreement”), made by the Grantors parties thereto for the benefit of CIT
Capital USA Inc., as Administrative Agent. The undersigned agrees for
the benefit of the Administrative Agent and the Secured Parties as
follows:
1. The
undersigned will be bound by the terms of the Second Lien Guaranty and
Collateral Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned in its capacity as the Issuer.
2. The
terms of Section 6.03(c) and Section 6.07 of the Second Lien Guaranty
and Collateral Agreement shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.03(c) and Section 6.07 of the Second Lien Guaranty
and Collateral Agreement, each upon notice to it by the Administrative Agent of
an Event of Default.
[NAME OF ISSUER]
By:
______________________________________
Title:
Address for Notices:
Fax:
|
*
|
This
consent is necessary only with respect to any Issuer which is not also a
Grantor. This consent may be modified or eliminated with
respect to any Issuer that is not controlled by a
Grantor.
|
Annex
II
ASSUMPTION AGREEMENT, dated as of
[__________], 200[__], made by [__________], a [__________] (the “Additional Grantor”),
in favor of CIT Capital USA Inc., as administrative agent (in such capacity, the
“Administrative
Agent”) for the Lenders party to the Term Loan Agreement referred to
below. All capitalized terms not defined herein shall have the
meaning ascribed to them in the Second Lien Guaranty and Collateral Agreement
referred to below.
W I T N E
S S E T H:
WHEREAS, ABC Funding, Inc., a Nevada
corporation (the “Borrower”), the
Administrative Agent, and certain financial institutions (the “Lenders”) have
entered into that certain Term Loan Agreement, dated as of September 2, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Term Loan
Agreement”);
WHEREAS, in connection with the Term
Loan Agreement, the Borrower and certain of its Affiliates (other than the
Additional Grantor) have entered into that certain Second Lien Guaranty and
Collateral Agreement, dated as of September 2, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Second Lien Guaranty and
Collateral Agreement”) in favor of the Administrative Agent for the
ratable benefit of the Secured Parties;
WHEREAS, the Term Loan Agreement
requires the Additional Grantor to become a party to the Second Lien Guaranty
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 Second Lien Guaranty and Collateral Agreement;
NOW, THEREFORE, IT IS
AGREED:
1. Second Lien Guaranty and Collateral
Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 9.13 of the Second Lien Guaranty
and Collateral Agreement, hereby becomes a party to the Second Lien Guaranty 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 and, a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in the Schedules to the
Second Lien Guaranty and Collateral Agreement. The Additional Grantor
hereby represents and warrants that each of the representations and warranties
contained in Article IV of the Second Lien Guaranty 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 in accordance with, the laws of the State of Texas.
3. Miscellaneous. This
Assumption Agreement may be executed in multiple counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. Any provision of this Assumption Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
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:
Annex
III
Supplement
SUPPLEMENT, dated as of [__________],
200[__], made by [__________], a [__________] (the “Grantor”), in favor
of CIT Capital USA Inc., as administrative agent (in such capacity, the “Administrative
Agent”) for the Lenders party to the Term Loan Agreement referred to
below. All capitalized terms not defined herein shall have the
meaning ascribed to them in the Second Lien Guaranty and Collateral Agreement
referred to below.
W I T N E
S S E T H:
WHEREAS, ABC Funding, Inc., a Nevada
corporation (the “Borrower”), the
Administrative Agent, and certain financial institutions (the “Lenders”) have
entered into that certain Term Loan Agreement, dated as of September 2, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the
“Term Loan
Agreement”);
WHEREAS, in connection with the Term
Loan Agreement, the Borrower and certain of its Affiliates (including the
Grantor) have entered into that certain Second Lien Guaranty and Collateral
Agreement, dated as of September 2, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, the “Second Lien Guaranty and Collateral Agreement”) in favor
of the Administrative Agent for the ratable benefit of the Secured
Parties;
WHEREAS, the Term Loan Agreement
requires the Grantor to pledge the Equity Interests described in Schedule 2-S
hereto; and
WHEREAS, the Grantor has agreed to
execute and deliver this Supplement in order to pledge such Equity
Interests;
NOW, THEREFORE, IT IS
AGREED:
1. Second Lien Guaranty and Collateral
Agreement. By executing and delivering this Supplement, the
information set forth in Schedule 2-S hereto is hereby added to the information
set forth in Schedule 2 to the Second Lien Guaranty and Collateral
Agreement. The Grantor hereby represents and warrants that each of
the representations and warranties contained in Article IV of the Second
Lien Guaranty and Collateral Agreement is true and correct on and as the date
hereof (after giving effect to this Supplement) as if made on and as of such
date.
2. Governing
Law. This Supplement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
3. Miscellaneous. This
Supplement may be executed in multiple counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single
contract. Any provision of this Supplement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the undersigned has
caused this Supplement to be duly executed and delivered as of the date first
above written.
[GRANTOR]
By:
_____________________________________
Name:
Title:
