COLLATERAL AGREEMENT dated as of June 29, 2010 by and among JACK IN THE BOX INC., and certain of its Subsidiaries as Grantors, in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
Exhibit 10.2
Execution Version
dated as of June 29, 2010
by and among
XXXX IN THE BOX INC.,
and certain of its Subsidiaries
as Grantors,
as Grantors,
in favor of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
as Administrative Agent
TABLE OF CONTENTS
| ARTICLE I DEFINED TERMS | 2 | |||||
SECTION 1.1.
|
Terms Defined in the Uniform Commercial Code | 2 | ||||
SECTION 1.2.
|
Definitions | 2 | ||||
SECTION 1.3.
|
Other Definitional Provisions | 4 | ||||
| ARTICLE II SECURITY INTEREST | 4 | |||||
SECTION 2.1.
|
Grant of Security Interest | 4 | ||||
SECTION 2.2.
|
Grantors Remain Liable | 5 | ||||
| ARTICLE III REPRESENTATIONS AND WARRANTIES | 5 | |||||
SECTION 3.1.
|
Existence | 5 | ||||
SECTION 3.2.
|
Authorization of Agreement; No Conflict | 5 | ||||
SECTION 3.3.
|
Consents | 6 | ||||
SECTION 3.4.
|
Perfected First Priority Liens | 6 | ||||
SECTION 3.5.
|
Title, No Other Liens | 6 | ||||
SECTION 3.6.
|
State of Organization; Location of Books and Records Relating to Collateral; other Information | 6 | ||||
SECTION 3.7.
|
Pledged Stock; Partnership/LLC Interests | 6 | ||||
| ARTICLE IV COVENANTS | 7 | |||||
SECTION 4.1.
|
Maintenance of Perfected Security Interest; Further Information | 7 | ||||
SECTION 4.2.
|
Changes in Locations; Changes in Name or Structure | 7 | ||||
SECTION 4.3.
|
Required Notifications | 7 | ||||
SECTION 4.4.
|
Delivery Covenants | 8 | ||||
SECTION 4.5.
|
Filing Covenants | 8 | ||||
SECTION 4.6.
|
Pledged Stock; Partnership/LLC Interests | 8 | ||||
SECTION 4.7.
|
Further Assurances | 9 | ||||
| ARTICLE V REMEDIAL PROVISIONS | 9 | |||||
SECTION 5.1.
|
General Remedies | 9 | ||||
SECTION 5.2.
|
Specific Remedies | 10 | ||||
SECTION 5.3.
|
Application of Proceeds | 11 | ||||
SECTION 5.4.
|
Waiver, Deficiency | 11 | ||||
| ARTICLE VI THE ADMINISTRATIVE AGENT | 11 | |||||
SECTION 6.1.
|
Administrative Agent’s Appointment as Attorney-In-Fact | 11 | ||||
SECTION 6.2.
|
Duty of Administrative Agent | 12 | ||||
SECTION 6.3.
|
Authority of Administrative Agent | 13 | ||||
| ARTICLE VI MISCELLANEOUS | 13 | |||||
SECTION 7.1.
|
Amendments in Writing | 13 | ||||
SECTION 7.2.
|
Notices | 13 | ||||
SECTION 7.3.
|
No Waiver by Course of Conduct, Cumulative Remedies | 13 | ||||
SECTION 7.4.
|
Enforcement Expenses, Indemnification | 14 | ||||
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SECTION 7.5.
|
Waiver of Jury Trial | 14 | ||||
SECTION 7.6.
|
Successors and Assigns | 15 | ||||
SECTION 7.7.
|
Set-Off | 15 | ||||
SECTION 7.8.
|
Counterparts | 15 | ||||
SECTION 7.9.
|
Severability | 15 | ||||
SECTION 7.10.
|
Section Heading | 15 | ||||
SECTION 7.11.
|
Integration | 16 | ||||
SECTION 7.12.
|
Governing Law | 16 | ||||
SECTION 7.13.
|
Consent to Jurisdiction | 16 | ||||
SECTION 7.14.
|
Acknowledgements | 16 | ||||
SECTION 7.15.
|
Additional Grantors | 17 | ||||
SECTION 7.16.
|
Releases | 17 |
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SCHEDULES:
Schedule 3.6
|
Jurisdiction of Organization; Taxpayer Identification Number; Registered Organization Number; Chief Executive Office and other Locations | |
Schedule 3.7
|
Pledged Stock and Partnership/LLC Interests |
iii
COLLATERAL AGREEMENT (this “Agreement”), dated as of June 29, 2010, by and among XXXX
IN THE BOX INC., a Delaware corporation (the “Company”), certain of its Subsidiaries as
identified on the signature pages hereto and any Additional Grantor (as defined below) who may
become party to this Agreement (such Subsidiaries and Additional Grantors, collectively, with the
Company, the “Grantors”), in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent (in such capacity, the “Administrative Agent”) for the ratable benefit
of (a) itself and the other financial institutions (the “Lenders”) from time to time party
to the Credit Agreement dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) by and among the Company, as
borrower (the “Borrower”), the Lenders, and the Administrative Agent and (b) any party to a
Hedging Agreement that was (i) a Lender or (ii) an Affiliate of a Lender at the time such Hedging
Agreement was entered into (collectively with the Lenders, the “Secured Parties”).
STATEMENT OF PURPOSE
Pursuant to the Credit Agreement, the Lenders have agreed to make Extensions of Credit to the
Borrower upon the terms and subject to the conditions set forth therein.
It is a condition precedent to the obligation of the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent and the Secured Parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the Administrative Agent and the Lenders
to enter into the Credit Agreement and to induce the Lenders to make their respective Extensions of
Credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative Agent and the
Secured Parties, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Terms Defined in the Uniform Commercial Code.
(a) The following terms when used in this Agreement shall have the meanings assigned to them
in the UCC (as defined in Section 1.2 below) as in effect from time to time:
“Issuer”, “Proceeds”, “Securities Entitlement”, “Securities
Intermediary” and “Securities Account”.
(b) Terms defined in the UCC and not otherwise defined herein or in the Credit Agreement shall
have the meaning assigned in the UCC as in effect from time to time.
SECTION 1.2. Definitions. The following terms when used in this Agreement shall have
the meanings assigned to them below:
“Additional Grantor” means each Restricted Subsidiary of the Company which hereafter
becomes a Grantor pursuant to Section 7.15 hereof and Section 9.9 of the Credit
Agreement.
2
“Agreement” means this Collateral Agreement, as amended, restated, supplemented or
otherwise modified from time to time.
“Collateral” shall have the meaning assigned thereto in Section 2.1.
“Control” means the manner in which “control” is achieved under the UCC with respect
to any Collateral for which the UCC specifies a method of achieving “control”.
“Effective Endorsement and Assignment” means, with respect to any specific type of
Collateral, all such endorsements, assignments and other instruments of transfer reasonably
requested by the Administrative Agent with respect to the Security Interest granted in such
Collateral, and in each case, in form and substance reasonably satisfactory to the Administrative
Agent.
“Guarantors” means the collective reference to each Person party to the Guaranty
Agreement.
“Guaranty Agreement” shall have the meaning assigned thereto in the Credit Agreement.
“Obligations” means with respect to the Borrower, the meaning assigned thereto in the
Credit Agreement and with respect to each Guarantor, the obligations of such Guarantor under the
Guaranty Agreement executed by such Guarantor.
“Partnership/LLC Interests” means, with respect to any Grantor, the entire
partnership, membership interest or limited liability company interest, as applicable, of such
Grantor in each partnership, limited partnership or limited liability company owned thereby,
including, without limitation, such Grantor’s capital account, its interest as a partner or member,
as applicable, in the net cash flow, net profit and net loss, and items of income, gain, loss,
deduction and credit of any such partnership, limited partnership or limited liability company, as
applicable, such Grantor’s interest in all distributions made or to be made by any such
partnership, limited partnership or limited liability company, as applicable, to such Grantor and
all of the other economic rights, titles and interests of such Grantor as a partner or member, as
applicable, of any such partnership, limited partnership or limited liability company, as
applicable, whether set forth in the partnership agreement or membership agreement, as applicable,
of such partnership, limited partnership or limited liability company, as applicable, by separate
agreement or otherwise.
“Permitted Liens” means those Liens permitted pursuant to Section 11.2 of the
Credit Agreement.
“Pledged Stock” means all of the shares of capital stock of each Subsidiary Issuer
that is not a Partnership/LLC and all of the other economic rights, titles and interests of such
Grantor as a shareholder or owner of such Subsidiary Issuer, whether set forth in the articles,
bylaws or other governing document of such Subsidiary Issuer, by separate agreement or otherwise,
together with all stock certificates and stock options that may be issued or granted by such
Subsidiary Issuer to the applicable Grantor.
3
“Securities Act” means the Securities Act of 1933, including all amendments thereto
and regulations promulgated thereunder.
“Security Interests” means the security interests granted pursuant to Article
II, as well as all other security interests created or assigned as additional security for the
Obligations pursuant to the provisions of the Credit Agreement.
“Subsidiary Issuer” means any Issuer of Pledged Stock or any Partnership/LLC
Interests, which Issuer is a direct Subsidiary of any Grantor from time to time party to this
Agreement.
“UCC” means the Uniform Commercial Code as in effect in the State of New York, as
amended or modified from time to time.
SECTION 1.3. Other Definitional Provisions. Capitalized terms defined in the Credit
Agreement and not otherwise defined herein shall have the meaning assigned thereto in the Credit
Agreement. The words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement, and Section and Schedule references are to this Agreement unless otherwise
specified. The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms. Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s
Collateral or the relevant part thereof.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security Interest. Each Grantor hereby grants, pledges and
collaterally assigns to the Administrative Agent, for the ratable benefit of itself and the Secured
Parties, a security interest in, all of such Grantor’s right, title and interest in all Pledged
Stock, Partnership/LLC Interests and any and all proceeds thereof whether 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 wherever located or deemed located (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 the Obligations;
provided, that any Security Interest in any Collateral constituting Pledged Stock or
Partnership/LLC Interests issued by any Foreign Subsidiary shall be limited to sixty-six percent
(66%) of all issued and outstanding shares of all classes of voting Capital Stock of such Foreign
Subsidiary and one hundred percent (100%) of all issued and outstanding shares of all classes of
non-voting Capital Stock of such Foreign Subsidiary; provided further that in no event
shall the Collateral include or the Security Interest attach to (a) any Margin Stock or (b) any
agreement with a Person other than a Grantor or a Subsidiary of a Grantor that specifically
prohibits in writing the pledge of, or granting of a security interest or a Lien in (but not merely
the assignment of or of any interest in), such agreement or any of the Grantor’s rights under such
agreement without the consent of such other Person (unless such prohibition is not enforceable or
is otherwise ineffective under Applicable Law or the consent of such other Person has been
obtained).
4
SECTION 2.2. Grantors Remain Liable. Anything herein to the contrary notwithstanding:
(a) each Grantor shall remain liable under the contracts and agreements included in the Collateral
to the extent set forth therein to perform all of its duties and obligations thereunder (including,
without limitation, all of its obligations as a partner or member of any Partnership/LLC, if
applicable) to the same extent as if this Agreement had not been executed, (b) the exercise by
Administrative Agent of any of the rights hereunder shall not release any Grantor from any of its
duties or obligations under the contracts and agreements included in the Collateral (including,
without limitation, all of its obligations as a partner or member of any Partnership/LLC, if
applicable), (c) neither the Administrative Agent nor any Secured Party shall have any obligation
or liability under the contracts and agreements included in the Collateral by reason of this
Agreement (including, without limitation, any obligations or liabilities as a partner or member of
any Partnership/LLC), nor shall the Administrative Agent or any Secured Party be obligated to
perform any of the obligations or duties of any Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder, and (d) neither the Administrative Agent nor
any Secured Party shall have any liability in contract or tort for any Grantor’s acts or omissions.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Extensions of Credit to the Borrower thereunder, each
Grantor hereby represents and warrants to the Administrative Agent and each Secured Party that:
SECTION 3.1. Existence. Each Grantor (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or formation, (b) has the
power and authority to own its properties and to carry on its business as now being and hereafter
proposed to be conducted and (c) except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect, is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization.
SECTION 3.2. Authorization of Agreement; No Conflict. Each Grantor has the right,
power and authority and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of, this Agreement. This Agreement has been duly executed and
delivered by the duly authorized officers of each Grantor and this Agreement constitutes the legal,
valid and binding obligation of the Grantors enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the enforcement of
creditors’ rights in general and the availability of equitable remedies. The execution, delivery
and performance by the Grantors of this Agreement will not, by the passage of time, the giving of
notice or otherwise, violate any Applicable Law or Material Contract and will not result in the
creation or imposition of any Lien upon or with respect to any property now owned or hereafter
acquired by any Grantor other than the Security Interests.
5
SECTION 3.3. Consents. No consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or Governmental Authority and no consent of any other Person is
required in connection with the execution, delivery, performance, validity or enforceability
against any Grantor or any Subsidiary Issuer party to this Agreement, except (a) as may be required
by laws affecting the offering and sale of securities generally, (b) filings under the UCC, and (c)
for such consents, authorizations and filings that have been obtained or made prior to the date
hereof.
SECTION 3.4. Perfected First Priority Liens. Each financing statement naming any
Grantor as a debtor is in appropriate form for filing in the appropriate filing offices of the
states specified on Schedule 3.6. The Security Interests granted pursuant to this Agreement
(a) constitute valid security interests in all of the Collateral in favor of the Administrative
Agent, for the ratable benefit of itself and the Secured Parties, as collateral security for the
Obligations, and, upon the filing of appropriate financing statements, the Security Interests will
be perfected to the extent such Security Interests can be perfected by the filing of financing
statements and (b) are prior to all other Liens on the Collateral in existence on the date hereof
except for Permitted Liens.
SECTION 3.5. Title, No Other Liens. Except for the Security Interests, each Grantor
has rights in each item of the Collateral free and clear of any and all Liens or claims other than
Permitted Liens. No Collateral is in the possession or Control of any Person asserting any claim
thereto or security interest therein, except that the Administrative Agent or its designee may
obtain possession or Control of Collateral as contemplated hereby.
SECTION 3.6. State of Organization; Location of Books and Records Relating to Collateral;
other Information.
(a) Each Grantor is organized under the laws of the state identified on Schedule 3.6
under such Grantor’s name. The taxpayer identification number and Registered Organization number of
each Grantor is set forth on Schedule 3.6 under such Grantor’s name.
(b) The chief place of business, chief executive office and any other office where each
Grantor keeps its books and records relating to the Collateral are located at the locations
specified on Schedule 3.6 under such Grantor’s name. No Grantor does business nor has done
business during the past five years under any trade name or fictitious business name except as
disclosed on Schedule 3.6 under such Grantor’s name.
SECTION 3.7. Pledged Stock; Partnership/LLC Interests.
(a) As of the date hereof, all Pledged Stock and all Partnership/LLC Interests owned by any
Grantor are listed on Schedule 3.7.
(b) All Pledged Stock and all Partnership/LLC Interests issued by any Subsidiary Issuer to any
Grantor (i) have been duly and validly issued and, if applicable, are fully paid and nonassessable,
(ii) are beneficially owned as of record by such Grantor and (iii) constitute all the issued and
outstanding shares of all classes of the Capital Stock of such Subsidiary Issuer issued to such
Grantor.
6
(c) None of the Partnership/LLC Interests (i) are traded on a Securities exchange or in
Securities markets, (ii) by their terms expressly provide that they are Securities governed by
Article 8 of the UCC, (iii) are Investment Company Securities (as such term is defined in Section
8-103(b) of the UCC) or (iv) are held or maintained in the form of a Securities Entitlement or
credited to any Securities Account.
ARTICLE IV
COVENANTS
Until the Obligations (other than any contingent indemnification obligations) shall have been
paid in full and the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 7.1, each Grantor covenants and agrees that:
SECTION 4.1. Maintenance of Perfected Security Interest; Further Information. Each
Grantor shall maintain the Security Interest created by this Agreement as a perfected Security
Interest (to the extent required to do so hereunder) having the priority described in Section
3.4 and shall defend such Security Interest against the claims and demands of all Persons
whomsoever.
SECTION 4.2. Changes in Locations; Changes in Name or Structure. No Grantor will,
except upon prior written notice to the Administrative Agent and delivery to the Administrative
Agent of all additional financing statements (executed if necessary for any particular filing
jurisdiction) and other instruments and documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the Security Interests and (b) if applicable,
a written supplement to the Schedules to this Agreement:
(i) change its jurisdiction of organization or the location of its chief executive
office from that identified on Schedule 3.6;
(ii) change its name, identity or corporate or organizational structure to such an
extent that any financing statement filed by the Administrative Agent in connection with
this Agreement would become misleading; or
(iii) permit any Collateral (other than Certificated Securities delivered to the
Administrative Agent pursuant to Section 4.4) to be held by any Securities
Intermediary, held or maintained in the form of a Securities Entitlement or credited to any
Securities Account.
SECTION 4.3. Required Notifications. Each Grantor shall promptly notify the
Administrative Agent, in writing, of: (a) any Lien (other than the Security Interests or Permitted
Liens) on any of the Collateral which would materially adversely affect the ability of the
Administrative Agent to exercise any of its remedies hereunder or (b) the acquisition or ownership
by such Grantor of any Collateral after the date hereof. At the request of the Administrative Agent
or the Required Lenders, each Grantor shall promptly deliver to the Administrative Agent and in any
event within ten (10) Business Days after such request updated Schedules to this Agreement.
7
SECTION 4.4. Delivery Covenants. Each Grantor will deliver and pledge to the
Administrative Agent, for the ratable benefit of itself and the Secured Parties, all Collateral
evidenced by a certificate, in each case, together with an Effective Endorsement and Assignment.
SECTION 4.5. Filing Covenants. Pursuant to Section 9-509 of 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. Such financing statements may describe the Collateral in the same manner as described
herein or may contain an indication or description of Collateral that describes such property in
any other manner as the Administrative Agent may reasonably determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the Security Interest in the Collateral
granted herein. Further, 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 hereby authorizes, ratifies and confirms all financing
statements and other filing or recording documents or instruments filed by the Administrative Agent
prior to the date of this Agreement.
SECTION 4.6. Pledged Stock; Partnership/LLC Interests.
(a) Without the prior written consent of the Administrative Agent, no Grantor will (i) vote to
enable, or take any other action to permit, any Subsidiary Issuer to issue any Pledged Stock or
Partnership/LLC Interests, except for such those additional Pledged Stock or Partnership/LLC
Interests that will be subject to the Security Interest granted herein in favor of the
Administrative Agent (which such Security Interest shall, in the case of any additional Pledged
Stock or Partnership/LLC Interests issued by a Foreign Subsidiary, be limited to sixty-six percent
(66%) of all issued and outstanding shares of all classes of voting Capital Stock of such Foreign
Subsidiary and one hundred percent (100%) of all issued and outstanding shares of all classes of
non-voting Capital Stock of such Foreign Subsidiary) or (ii) enter into any agreement or
undertaking restricting the right or ability of (A) the Administrative Agent to sell, assign or
transfer any Pledged Stock or Partnership/LLC Interests or Proceeds thereof or (B) such Grantor to
sell, assign or transfer any Pledged Stock or Partnership/LLC Interests or Proceeds thereof;
provided that, in connection with any proposed sale by any Grantor of any Pledged Stock or
Partnership/LLC Interests owned thereby, such Grantor may enter into a customary purchase agreement
restricting its right to sell, assign or transfer such Pledged Stock or Partnership/LLC Interests
to the extent that (1) such sale is permitted by the Credit Agreement, (2) the security interests
of the Administrative Agent in such Pledged Stock or Partnership LLC Interests remain in full force
and effect and (3) the terms relating to any such restriction are customary and market as
determined in good faith by such Grantor; and provided further that nothing in the
Section 4.6(a) shall prohibit the consummation of any such sale, assignment or transfer
that is permitted by the Credit Agreement. The Grantors will defend the right, title and interest
of the Administrative Agent in and to any Pledged Stock and Partnership/LLC Interests against the
claims and demands of all Persons whomsoever.
(b) If any Grantor shall become entitled to receive or shall receive (i) any Certificated
Securities (including, without limitation, any certificate representing a stock dividend or a
8
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
ownership interests of any Subsidiary Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any Collateral, or otherwise in respect thereof, or (ii) any
sums paid upon or in respect of any Collateral upon the liquidation or dissolution of any
Subsidiary Issuer (other than as permitted pursuant to the Credit Agreement), such Grantor shall
accept the same as the agent of the Administrative Agent and the Secured Parties, hold the same in
trust for the Administrative Agent and the Secured Parties, segregated from other funds of such
Grantor, and promptly deliver the same to the Administrative Agent in accordance with the terms
hereof.
SECTION 4.7. Further Assurances. Upon the request of the Administrative Agent and at
the sole expense of the Grantors, each 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.
ARTICLE V
REMEDIAL PROVISIONS
SECTION 5.1. General Remedies. 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 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. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale
or sales, at any exchange, broker’s board or office of the Administrative Agent or any 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.
The Administrative Agent or 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. 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 any such claims, damages, or demands result solely from the gross negligence or willful
misconduct of the Administrative Agent or any Secured Party, as determined by a court of competent
jurisdiction by a final and nonappealable judgment, in each case against whom such claim is
asserted. 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 ten (10) days before such
sale or other disposition.
9
SECTION 5.2. Specific Remedies.
(a) Upon the occurrence and during the continuance of an Event of Default, the Administrative
Agent shall have the right to receive any and all cash dividends, payments or distributions made in
respect of any Pledged Stock or Partnership/LLC Interests or other Proceeds paid in respect of any
Pledged Stock or Partnership/LLC Interests, and any or all of any Pledged Stock or Partnership/LLC
Interests shall be registered in the name of the Administrative Agent or its nominee, and the
Administrative Agent or its nominee may thereafter exercise (i) all voting, corporate and other
rights pertaining to such Pledged Stock or Partnership/LLC Interests at any meeting of
shareholders, partners or members of the relevant Subsidiary Issuers and (ii) any and all rights of
conversion, exchange and subscription and any other rights, privileges or options pertaining to
such Pledged Stock or Partnership/LLC Interests as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and all of the Pledged
Stock or Partnership/LLC Interests upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate, partnership or company structure of any Subsidiary
Issuer or upon the exercise by any Grantor or the Administrative Agent of any right, privilege or
option pertaining to such Pledged Stock or Partnership/LLC Interests, and in connection therewith,
the right to deposit and deliver any and all of the Pledged Stock or Partnership/LLC Interests 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 the Administrative Agent and the Secured Parties
shall not be responsible for any failure to do so or delay in so doing. In furtherance thereof,
each Grantor hereby authorizes and instructs each Subsidiary Issuer with respect to any Collateral
consisting of Pledged Stock or Partnership/LLC Interests 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
Subsidiary Issuer shall be fully protected in so complying, and (ii) upon and during the
continuance of an Event of Default, pay any dividends, distributions or other payments with respect
to any Pledged Stock or Partnership/LLC Interests directly to the Administrative Agent.
(b) 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 5.2(a), each Grantor shall be
permitted to receive all cash dividends, payments or other distributions made in respect of any
Pledged Stock or Partnership/LLC Interests, to the extent permitted in the Credit Agreement, and to
exercise all voting and other corporate, company and partnership rights with respect to any Pledged
Stock or Partnership/LLC Interests.
(c) Each Grantor recognizes that the Administrative Agent may be unable to effect a public
sale of any or all the Collateral, by reason of certain prohibitions contained in the Securities
Act and applicable state securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for investment and not with a
view to the distribution or resale thereof. Each Grantor acknowledges and agrees that
10
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 Collateral 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.
(d) Each Grantor agrees to use its commercially reasonable 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
Collateral valid and binding and in compliance with any and all other Applicable Laws.
SECTION 5.3. Application of Proceeds. At such intervals as may be agreed upon by the
Company 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 the Collateral or any Proceeds of the Collateral in payment in whole or in part
of the Obligations (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) in
accordance with Section 12.4 of the Credit Agreement. Any balance of such Proceeds
remaining shall be paid over to the Company, on behalf of the Grantors, or to whomsoever (if such
Person is not a Grantor) may be lawfully entitled to receive the same. Only after (i) the payment
by the Administrative Agent of any other amount required by any provision of law, including,
without limitation, Section 9-608 and Section 9-615 of the UCC and (ii) the payment in full of the
Obligations (other than any contingent indemnification obligations) and the termination of the
Commitments, shall the Administrative Agent account for the surplus, if any, to any Grantor, or to
whomever may be lawfully entitled to receive the same (if such Person is not a Grantor).
SECTION 5.4. Waiver, Deficiency. Except to the extent prohibited under Applicable Law
(including Section 9-602 of the UCC), each Grantor waives and agrees not to assert any rights or
privileges which it may acquire under Sections 9-210, 9-607, 9-608, 9-610, 9-615, 9-620, 9-621,
9-623, 9-624, 9-625 or 9-627 of 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.
ARTICLE VI
THE ADMINISTRATIVE AGENT
SECTION 6.1. Administrative Agent’s Appointment as Attorney-In-Fact.
(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
11
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 upon the occurrence and continuation of an Event of Default:
(i) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral;
(ii) execute, in connection with any sale provided for in this Agreement, any
endorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and
(iii) (A) 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; (B) defend any suit, action or
proceeding brought against such Grantor with respect to any Collateral; (C) 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; and (D)
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.
(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 in accordance with the provisions of
Section 6.1(a).
(c) The expenses of the Administrative Agent incurred in connection with actions taken
pursuant to the terms of this Agreement 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 in accordance with Section 6.1(a). 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 6.2. Duty of Administrative Agent. The Administrative Agent’s sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral in its possession,
under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account. Neither the Administrative
Agent, any Secured Party nor any of their respective officers, directors,
12
employees or agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of any Grantor or any other Person or to take any other
action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the
Administrative Agent and the 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 officers, directors, employees or
agents shall be responsible to any Grantor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct as determined by a court of competent jurisdiction
by a final and nonappealable judgment.
SECTION 6.3. 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 Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the Administrative Agent and the
Grantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the
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 VII
MISCELLANEOUS
SECTION 7.1. Amendments in Writing. None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified except in accordance with Section
14.11 of the Credit Agreement.
SECTION 7.2. Notices. All notices, requests and demands to or upon the Administrative
Agent or any Grantor hereunder shall be effected in the manner provided for in Section 14.1
of the Credit Agreement.
SECTION 7.3. 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 7.1), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure
to exercise, nor any delay in exercising on the part of the Administrative Agent or any Secured
Party, of any right, power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any 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
13
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.
SECTION 7.4. Enforcement Expenses, Indemnification.
(a) Each Grantor agrees to pay or reimburse each Secured Party and the Administrative Agent
for all its costs and expenses incurred in connection with enforcing or protecting any rights under
this Agreement and the other Loan Documents to which such Grantor is a party, (including, without
limitation, in connection with any workout, restructuring, bankruptcy or other similar proceeding)
including, without limitation, the fees and disbursements of counsel to each Secured Party and of
counsel to the Administrative Agent.
(b) Each Grantor 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 stamp, excise, sales or other taxes (in each case, to the same extent that the Borrower
would be required to do so under Section 5.11 of the Credit Agreement) 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 Grantor agrees to pay, and to save the Administrative Agent and the Secured Parties
harmless from any and all liabilities, obligations, losses, damages, penalties, costs and expenses
in connection with 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 any Grantor would be required to do so pursuant to
Section 14.2 of the Credit Agreement.
(d) The agreements in this Section shall survive termination of the Commitments and repayment
of the Obligations and all other amounts payable under the Credit Agreement and the other Loan
Documents. All amounts due under this Section shall be payable promptly after demand therefor.
SECTION 7.5. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUR OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
14
SECTION 7.6. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of each Grantor (and shall
bind all Persons who become bound as a Grantor to this Collateral Agreement), the Administrative
Agent and the Secured Parties and their successors and assigns; provided that no Grantor
may assign, transfer or delegate any of its rights or obligations under this Agreement without the
prior written consent of the Administrative Agent (given in accordance with Section 7.1).
SECTION 7.7. Set-Off. Each Grantor hereby irrevocably authorizes the Administrative
Agent and each Secured Party at any time and from time to time pursuant to Section 14.3 of
the Credit Agreement, without notice to such Grantor or any other Grantor, any such notice being
expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Administrative Agent or such
Secured Party to or for the credit or the account of such Grantor, or any part thereof in such
amounts as the Administrative Agent or such Secured Party may elect, against and on account of the
obligations and liabilities of such Grantor to the Administrative Agent or such Secured Party
hereunder and claims of every nature and description of the Administrative Agent or such Secured
Party against such Grantor, in any currency, whether arising hereunder, under the Credit Agreement,
any other Loan Document or otherwise, as the Administrative Agent or such Secured Party may elect,
whether or not the Administrative Agent or any Secured Party has made any demand for payment and
although such obligations, liabilities and claims may be contingent or unmatured. The
Administrative Agent and each Secured Party shall notify such Grantor promptly of any such set-off
and the application made by the Administrative Agent or such Secured Party of the proceeds thereof;
provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Administrative Agent and each Secured Party under this Section
are in addition to other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or such Secured Party may have.
SECTION 7.8. Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile transmission or electronic mail
shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 7.9. Severability. Any provision of this Agreement or any other Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 7.10. Section Heading. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
15
SECTION 7.11. Integration. This Agreement, any Hedging Agreement between the Borrower
and a Secured Party and the other Loan Documents, and any separate letter agreements with respect
to fees payable to the Administrative Agent and the Arrangers, constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matters hereof. In the event of any
conflict between the provisions of this Agreement and the Credit Agreement, the provisions of the
Credit Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Secured Parties in this Agreement shall not be
deemed a conflict with the Credit Agreement.
SECTION 7.12. Governing Law. THIS AGREEMENT, UNLESS EXPRESSLY SET FORTH HEREIN, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 7.13. Consent to Jurisdiction.
(a) Each Grantor irrevocably and unconditionally submits for itself and its property, to the
nonexclusive jurisdiction of the state and federal courts located in New York, New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York state court or, to the fullest
extent permitted by Applicable Law, in such federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or in any other Loan Document shall affect any right that the Administrative Agent or any
Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Company or any other Grantor or its properties in the courts of
any jurisdiction.
(b) Each Grantor irrevocably and unconditionally waives, to the fullest extent permitted by
Applicable Law, any objection that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement or any other Loan Documentation
any court referred to in paragraph (a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each Grantor irrevocably consents to service of process in the manner provided for notices
in Section 14.1 of the Credit Agreement. Nothing in this Agreement will affect the right of
any party hereto to serve process in any other manner permitted by Applicable Law.
SECTION 7.14. Acknowledgements.
(a) Each Grantor hereby acknowledges that: (i) it has discussed this Agreement with its
counsel, (ii) neither the Administrative Agent nor any Secured Party has any fiduciary
16
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 (iii) no joint venture is created hereby or by
the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby or
thereby among the Secured Parties or among the Grantors and the Secured Parties.
(b) Each Subsidiary Issuer party to this Agreement acknowledges receipt of a copy of this
Agreement and agrees to be bound thereby and to comply with the terms thereof insofar as such terms
are applicable to it. Each Subsidiary Issuer agrees to provide such notices to the Administrative
Agent as may be necessary to give full effect to the provisions of this Agreement.
SECTION 7.15. Additional Grantors. Each Subsidiary of the Company that is required to
become a party to this Agreement pursuant to Section 9.9 of the Credit Agreement shall
become a Grantor and/or a Subsidiary Issuer, as applicable, for all purposes of this Agreement upon
execution and delivery by such Subsidiary of a joinder agreement in form and substance satisfactory
to the Administrative Agent.
SECTION 7.16. Releases.
(a) At such time as the Obligations (other than any contingent indemnification obligations)
shall have been paid in full and the Commitments have been terminated, the Collateral shall be
released from the Liens created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or performance of any act by any
party, and all rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Administrative Agent shall deliver to
such Grantor any Collateral held by the Administrative Agent hereunder, and execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the
request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or
other documents reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral.
(c) If any Grantor shall cease to be a Restricted Subsidiary as a result of a transaction
permitted under the Credit Agreement, then, at the request of the Company and at the expense of the
Grantors, such Grantor shall be released from its obligations hereunder and shall no longer be a
party to this Agreement. The Administrative Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all releases or other documents reasonably
necessary or desirable evidencing such release and the fact that such Grantor is no longer a party
to this Agreement.
(d) The terminations, releases and/or other actions described in subsections (a), (b) and (c)
above shall occur without notice to, or vote of consent of, any counterparty to a Hedging
17
Agreement that was a Lender or an Affiliate of a Lender at the time such agreement was
executed.
[Signature Pages to Follow]
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by
their duly authorized officers, all as of the day and year first written above.
| XXXX IN THE BOX INC., as Grantor |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Finance, Controller & Treasurer | |||
| JBX GENERAL PARTNER LLC, as Grantor and Subsidiary Issuer |
||||
| By: | Xxxx in the Box Inc., | |||
| as sole member | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Finance, Controller & Treasurer | |||
| JBX LIMITED PARTNER LLC, as Grantor and Subsidiary Issuer |
||||
| By: | Xxxx in the Box Inc., | |||
| as sole member | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Finance, Controller & Treasurer | |||
[Signature Pages Continued]
| XXXX IN THE BOX EASTERN DIVISION L.P., as Grantor and Subsidiary Issuer |
||||
| By: | JBX General Partner LLC, | |||
| as general partner | ||||
| By: | Xxxx in the Box Inc., | |||
| as sole member | ||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Finance, Controller & Treasurer | |||
| QDOBA RESTAURANT CORPORATION, as Grantor and Subsidiary Issuer |
||||
| By: | /s/ Xxxxx X. Rebel | |||
| Name: | Xxxxx X. Rebel | |||
| Title: | Chief Financial Officer | |||
| FOODMAKER INC., as Subsidiary Issuer |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| FOODMAKER INTERNATIONAL FRANCHISING, INC., as Subsidiary Issuer |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
[Signature Pages Continued]
| ZRC OPERATIONS COMPANY, INC., as Subsidiary Issuer |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | President & Secretary | |||
| JIB STORED VALUE CARDS, LLC, as Subsidiary Issuer |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President, Finance, Controller & Treasurer | |||
| QMG STORED VALUE CARDS, LLC, as Subsidiary Issuer |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | President | |||
| STORED VALUE CARD, INC., as Subsidiary Issuer |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Vice President & Treasurer | |||
[Signature Pages Continued]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION as Administrative Agent |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Managing Director | |||
COLLATERAL AGREEMENT
DISCLOSURE SCHEDULES
DISCLOSURE SCHEDULES
Schedule 3.6
|
Jurisdiction of Organization; Taxpayer Identification Number; Registered Organization Number; Chief Executive Office and Other Locations | |
Schedule 3.7
|
Pledged Stock and Partnership/LLC Interests |
1
SCHEDULE 3.6 — JURISDICTION OF ORGANIZATION; TAXPAYER
IDENTIFICATION NUMBER: REGISTERED ORGANIZATION NUMBER; CHIEF
EXECUTIVE OFFICE AND OTHER LOCATIONS
IDENTIFICATION NUMBER: REGISTERED ORGANIZATION NUMBER; CHIEF
EXECUTIVE OFFICE AND OTHER LOCATIONS
Xxxx in the Box Inc. |
||
State of Organization:
|
Delaware | |
Taxpayer Identification Number:
|
00-0000000 | |
Registered Organization Number:
|
0773942 | |
Chief Executive Office:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Books and Records Locations:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Inventory/Equipment Locations:
|
CA, HI, WA, OR, AZ, NV, ID, UT | |
Trade/Fictitious Business Names:
|
Xxxx in the Box | |
| Quick Stuff | ||
| Foodmaker |
Xxxx in the Box Eastern Division L.P. |
||
State of Organization:
|
Texas | |
Taxpayer Identification Number:
|
33-093700 | |
Registered Organization Number:
|
142380-10 | |
Chief Executive Office:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Books and Records Locations:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Inventory/Equipment Locations:
|
TX, IL, LA, TN, NC, SC, MO, OK | |
Trade/Fictitious Business Names:
|
Xxxx in the Box | |
| Quick Stuff | ||
| Foodmaker |
JBX General Partner LLC |
||
State of Organization:
|
Delaware | |
Taxpayer Identification Number:
|
00-0000000 | |
Registered Organization Number:
|
33-00102 | |
Chief Executive Office:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Books and Records Locations:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Inventory/Equipment Locations:
|
N/A | |
Trade/Fictitious Business Names:
|
Xxxx in the Box | |
| Quick Stuff | ||
| Foodmaker |
2
JBX
Limited Partner LLC |
||
State of Organization:
|
Delaware | |
Taxpayer Identification Number:
|
None | |
Registered Organization Number:
|
33-00104 | |
Chief Executive Office:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Books and Records Locations:
|
0000 Xxxxxx Xxx. | |
| Xxx Xxxxx, XX 00000 | ||
Inventory/Equipment Locations:
|
N/A | |
Trade/Fictitious Business Names:
|
Xxxx in the Box | |
| Quick Stuff | ||
| Foodmaker |
Qdoba Restaurant Corporation |
||
State of Organization:
|
Delaware | |
Taxpayer Identification Number:
|
00-0000000 | |
Registered Organization Number:
|
2792020 | |
Chief Executive Office:
|
0000 Xxxx Xxxx, Xxxxx 000 | |
| Xxxxx Xxxxx, XX 00000 | ||
Inventory/Equipment Locations:
|
CO, WA, TX, IL | |
Trade/Fictitious Business Names:
|
Qdoba Mexican Grill | |
| Z Teca Mexican Grill |
3
SCHEDULE 3.7 — PLEDGED STOCK AND PARTNERSHIP/LLC INTERESTS
Certificated Securities:
Xxxx in the Box Inc.
| Percentage of | ||||||
| Ownership Interests | ||||||
| of such Class and | ||||||
| Name of Issuer | Class and Series | Certificate Number | Series | |||
Foodmaker Inc. |
Common Stock | 0001 | 100% | |||
Foodmaker
International
Franchising, Inc. |
Common Stock | 2 | 100% | |||
Qdoba Restaurant
Corporation |
Common Stock | 1 | 100% | |||
Stored Value Card, Inc. |
Class A | 1 | 100% |
Qdoba Restaurant Corporation
| Percentage of | ||||||
| Ownership Interests | ||||||
| of such Class and | ||||||
| Name of Issuer | Class and Series | Certificate Number | Series | |||
ZRC Operations
Company, Inc. |
Common Stock | 2 | 100% |
4
Partnerships/LLC Interests:
Xxxx in the Box Inc.
| Name of Issuer | Percentage of | |||||||
| (including identification | Type of Ownership | Certificate Number | Ownership Interests | |||||
| of type of entity) | Interest | (if any) | of such Type | |||||
JBX General Partner
LLC
|
Membership Interests | Uncertificated | 100 | % | ||||
JBX Limited Partner
LLC
|
Membership Interests | Uncertificated | 100 | % | ||||
JIB Stored Value
Cards, LLC
|
Membership Interests | Uncertificated | 100 | % | ||||
JBX General Partner LLC
| Name of Issuer | Percentage of | |||||||
| (including identification | Type of Ownership | Certificate Number | Ownership Interests | |||||
| of type of entity) | Interest | (if any) | of such Type | |||||
Xxxx in the Box
Eastern Division
L.P.
|
General Partnership Interest | Uncertificated | 1 | % | ||||
JBX Limited Partner LLC
| Name of Issuer | Percentage of | |||||||
| (including identification | Type of Ownership | Certificate Number | Ownership Interests | |||||
| of type of entity) | Interest | (if any) | of such Type | |||||
Xxxx in the Box
Eastern Division
L.P.
|
Limited Partnership Interest | Uncertificated | 99 | % | ||||
Qdoba Restaurant Corporation
| Name of Issuer | Percentage of | |||||||
| (including identification | Type of Ownership | Certificate Number | Ownership Interests | |||||
| of type of entity) | Interest | (if any) | of such Type | |||||
QMG Stored Value
Cards, LLC
|
Membership Interests | Uncertificated | 100 | % | ||||
5
