Exhibit 10.2
EXECUTION COPY
AMENDMENT AGREEMENT NO. 3 AND CONSENT
Dated as of July 21, 2005
AMENDMENT AGREEMENT NO. 3 AND CONSENT (this "Amendment
Agreement"), among ALLEGHENY ENERGY SUPPLY COMPANY, LLC (the "Company"), each
of the other persons listed on the signature pages hereof as a Grantor,
CITIBANK, N.A., as Collateral Agent, Intercreditor Agent and Depository Bank,
and CITICORP NORTH AMERICA, INC., as Administrative Agent. Capitalized terms
not otherwise defined herein shall have the meaning set forth in the Existing
Security and Intercreditor Agreement (as defined below) (without giving effect
to the amendment thereof contemplated by this Amendment Agreement).
PRELIMINARY STATEMENTS
(1) The Company, each other Grantor, Citibank, N.A., as
Collateral Agent, Intercreditor Agent and Depository Bank, Citicorp North
America, Inc., as administrative agent (in such capacity, the "Administrative
Agent"), and Law Debenture Trust Company of New York, as Indenture Trustee, are
party to that certain Amended and Restated Security and Intercreditor
Agreement, dated as of February 21, 2003 (as amended by that certain Amendment
No. 1 to Security and Intercreditor Agreement, dated as of August 22, 2003 and
by that certain Amendment No. 2 and Waiver to Security and Intercreditor
Agreement and Waiver to Common Terms Agreement, dated as of March 4, 2004, and
by that certain Amendment Agreement, dated as of March 8, 2004, and as amended
and restated in its entirety by that certain Amendment Agreement No. 2, dated
as of October 28, 2004, the "Existing Security and Intercreditor Agreement" and
as further amended pursuant to Section 3 of this Amendment Agreement, the
"Security and Intercreditor Agreement"), pursuant to which the Company and the
other Grantors have granted a security interest in certain of their property
and assets to secure certain obligations of the Company and the other Grantors
as more fully set forth therein.
(2) The Company has entered into that certain Credit
Agreement, dated as of July 21, 2005 (said agreement, as it may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to
time, being the "Credit Agreement"), with the other persons referred to therein
as Loan Parties, the lenders and other financial institutions party thereto
(all such lenders and other financial institutions party to the Credit
Agreement on the date hereof and that may become a party to the Credit
Agreement from time to time after the date hereof, the "Lenders"), the
Administrative Agent and Citibank, N.A., as Collateral Agent and Intercreditor
Agent, pursuant to which the Lenders have agreed to make certain Advances (as
defined in the Credit Agreement) pursuant to the terms of the Credit Agreement
to be secured by both the Group Assets and the Springdale Assets in the order
of priorities set forth in the Existing Security and Intercreditor Agreement,
as amended by this Amendment Agreement.
(3) With the proceeds of the initial Advances (as defined in
the Credit Agreement) to be made under the Credit Agreement, the Company will
repay all outstanding amounts under the Term Credit Agreement.
(4) With the proceeds of the Advances (as defined in the
Credit Agreement) to be made on the Second Draw Date (as defined in the Credit
Agreement), the Company will repay the aggregate principal amount outstanding
under the Amended A Notes.
(5) Debt outstanding under the Credit Agreement will
constitute Additional Secured Debt and Replacement Senior Debt and will be
secured by the Collateral as more fully set forth in the Security and
Intercreditor Agreement and the Lenders will constitute Secured Lenders under
the Security and Intercreditor Agreement.
(6) The Company and the Required Creditors desire to amend
the Existing Security and Intercreditor Agreement as set forth below in order
to reflect the status of the Senior Debt Obligations secured thereby and
certain other agreed-upon amendments or modifications thereto.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged) the parties hereto
hereby agree as follows:
SECTION 1. Advances as Additional Secured Debt and
Replacement Senior Debt. The parties hereto hereby acknowledge and agree that
the Debt outstanding under the Credit Agreement shall constitute Additional
Secured Debt and Replacement Senior Debt for all purposes under the Security
and Intercreditor Agreement and shall be secured by the Collateral as more
fully set forth in the Security and Intercreditor Agreement and the Lenders
shall constitute Secured Lenders under the Existing Security and Intercreditor
Agreement.
SECTION 2. Consent to Amendment and Termination of Mortgages
and Amendment of Material Contracts. (a) The parties hereto hereby consent to
(i) the amendment and restatement of the Mortgages specified on Schedule I
hereto in substantially the form of Exhibit A hereto and (ii) the termination
of the Mortgages specified on Schedule II hereto, in the case of clauses (i)
and (ii), on the date of the initial Borrowing under the Credit Agreement, and
(iii) subject to the satisfaction of the conditions precedent set forth in
Section 7, the termination of the Mortgages specified on Schedule III hereto.
(b) The Required Creditors hereby consent to the execution by
the Collateral Agent of a Consent and Approval in substantially the form of
Exhibit B hereto.
SECTION 3. Amendments to Existing Security and Intercreditor
Agreement. Subject to the satisfaction of the conditions precedent set forth in
Section 5, the Existing Security and Intercreditor Agreement is hereby amended
as follows:
(a) Clause (iii) of Section 1.02(a) is amended by inserting
the words "and clause (ii) of this Section 1.02" in the fourth line of such
clause after the phrase "provided that notwithstanding the foregoing".
(b) Article V is amended by adding thereto a new Section
5.17, to read as follows:
"Section 5.17. Action Under Mortgages. Whenever judgment,
consent or approval of the Person named as mortgagee under any of the Mortgages
(the "Mortgagee") is required under such Mortgage for any matter, or the
Mortgagee shall have an option or election under such Mortgage, such judgment,
the decision whether or not to consent to or approve the same or the exercise
of such option or election shall be at the discretion of the Intercreditor
Agent. Further, whenever the Mortgagee is permitted under any Mortgage to make
any request, such request shall be in the discretion of the Intercreditor
Agent. Moreover, any notice received by the Mortgagee pursuant to any Mortgage
shall be forwarded promptly to the Intercreditor Agent."
SECTION 4. Confirmation of Security Interest. Each Grantor
hereby confirms the grant of the Lien and security interest pursuant to Section
5.01 of the Existing Security and Intercreditor Agreement and each Grantor
hereby assigns, pledges and grants to the Collateral Agent, for the ratable
benefit of the Secured Parties and with respective effectiveness and priorities
with respect to the security interests granted pursuant to the Security and
Intercreditor Agreement as set forth in Section 2.02 of the Security and
Intercreditor Agreement, a Lien on and security interest in, such Grantor's
right, title and interest in and to the following (including, without
limitation, with respect to the Springdale Assets), in each case, as to each
type of property described below, whether now owned or hereafter acquired by
such Grantor, wherever located, and whether now or hereafter existing or
arising: all (a) Equipment, (b) Inventory, (c) Receivables and Related
Contracts, (d) Security Collateral, (e) Assigned Agreements and Agreement
Collateral, (f) Account Collateral, (g) Intellectual Property Collateral, (h)
Commercial Torts Claim Collateral, (i) books and records (including customer
lists, credit files, printouts and other computer output materials and records)
of such Grantor pertaining to any of the Collateral, (j) to the extent not
already included in clauses (a) through (i) of this Section 4, the Springdale
Assets, and (k) all proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral (including proceeds,
collateral and supporting obligations that constitute property of the types
described in clauses (a) through (i) of this Section 4 and this clause (k) and,
to the extent not otherwise included, all (i) payments under insurance (whether
or not the Collateral Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral, (ii) tort claims, including all
commercial tort claims and (iii) cash; provided, however, that notwithstanding
any of the other provisions set forth in this paragraph, this Section 4 shall
not, at any time, constitute a grant of a security interest in any property
that is, at such time, an Excluded Asset.
SECTION 5. Conditions Precedent to Effectiveness of this
Amendment Agreement. This Amendment Agreement and the amendments to the
Existing Security Agreement set forth in Section 3 of this Amendment Agreement
shall become effective as of the date hereof when, and only when, the following
conditions of effectiveness have been satisfied:
(a) each of the Intercreditor Agent and the Collateral Agent
shall have acknowledged and executed this Amendment Agreement; and
(b) the Intercreditor Agent (or its counsel) shall have
received counterparts of this Amendment Agreement executed by or on
behalf of the Required Creditors and the Grantors or, as to any of
such Persons, written evidence satisfactory to the Intercreditor Agent
(which may include a facsimile transmission of a signed signature page
of this Amendment Agreement) that such Person has signed a counterpart
of this Amendment Agreement.
SECTION 6. Amendment and Restatement of Security and
Intercreditor Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 7, the Security and Intercreditor Agreement
shall be amended and restated in its entirety to read as set forth in Exhibit C
hereto (such amendment and restatement of the Security and Intercreditor
Agreement, the "New Security Agreement"); provided that at any time prior to
the Amendment and Restatement Effective Date, the Grantors may, with the
Collateral Agent's prior written consent, supplement or amend any of the
schedules to the New Security Agreement set forth in Exhibit C hereto to
correct any matter that would otherwise render such schedule inaccurate or
incomplete, and, on the Amendment and Restatement Effective Date, the New
Security Agreement shall be deemed to include such schedule as so supplemented
or amended.
SECTION 7. Conditions Precedent to Effectiveness of the
Amendment and Restatement of the Security and Intercreditor Agreement. The
amendment and restatement of the Security and Intercreditor Agreement pursuant
to Section 6 shall be effective, and the New Security Agreement shall be deemed
delivered, when, and only when, the following conditions precedent have been
satisfied (the date on which such conditions precedent are satisfied, the
"Amendment and Restatement Effective Date"):
(a) all amounts outstanding under the Amended A Notes shall
have been repaid in full with the proceeds of Advances under the
Credit Agreement;
(b) all amounts outstanding under the Amended B Notes shall
have been repaid in full; and
(c) the Refinancing Indenture shall have been terminated or
shall be of no further effect in accordance with its terms.
SECTION 8. Release. Upon the occurrence of the Amendment and
Restatement Effective Date, the Collateral Agent will execute and deliver to
each Grantor, at such Grantor's expense, such documents as such Grantor shall
reasonably request to evidence the release of any Grantor that is not party to
the New Security Agreement and any item of Collateral that is not included as
Collateral under (and as defined in) the New Security Agreement from the
assignment and security interest granted by the Security and Intercreditor
Agreement or any other Collateral Document.
SECTION 9. Amendment Provisions. This Amendment Agreement is
subject to the provisions of Section 9.02 of the Existing Security and
Intercreditor Agreement.
SECTION 10. Reaffirmation. Each of the Grantors, as of the
date hereof, confirms and agrees that, notwithstanding the amendment of the
Existing Security and Intercreditor Agreement contemplated hereby or any
related amendment to any of the Mortgages or delivery of additional Mortgages,
each Collateral Document to which it is a party is, and shall continue to be,
in full force and effect and is hereby ratified and confirmed in all respects,
except that, subject to the effectiveness of this Amendment Agreement in
accordance with Section 5, on and after the date of the amendment of the
Existing Security and Intercreditor Agreement in accordance with Section 3,
each reference in the Existing Security and Intercreditor Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Security and Intercreditor Agreement, and each reference in each of
the other Financing Documents to "the Security Agreement", "the Security and
Intercreditor Agreement", "thereunder", "thereof" or words of like import
referring to the Existing Security and Intercreditor Agreement, shall mean and
be a reference to the amended Security and Intercreditor Agreement.
SECTION 11. Costs and Expenses. The Company agrees to pay on
demand all costs and expenses of any Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment Agreement and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for any Agent) in accordance with the terms of Section 9.01 of the
Existing Security and Intercreditor Agreement.
SECTION 12. Execution in Counterparts. This Amendment
Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment Agreement.
SECTION 13. Governing Law. THIS AMENDMENT AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ALLEGHENY ENERGY SUPPLY
COMPANY, LLC, as Company and as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ALLEGHENY ENERGY SUPPLY
CAPITAL, LLC, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
Title: President
ALLEGHENY ENERGY SUPPLY
DEVELOPMENT SERVICES, LLC, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ALLEGHENY ENERGY SUPPLY
▇▇▇▇▇▇▇ GENERATING FACILITY, LLC,
as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ALLEGHENY ENERGY SUPPLY WHEATLAND
GENERATING FACILITY, LLC, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ACADIA BAY ENERGY COMPANY,
LLC, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇▇ ENERGY COMPANY OF
VIRGINIA, LLC, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
LAKE ACQUISITION COMPANY,
L.L.C, as a Grantor
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CITIBANK, N.A.,
as Intercreditor Agent
By /s/ Caesar W. Wyszmonski
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Name: Caesar W. Wyszmonski
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and on behalf
of each of the Lenders
By /s/ Caesar W. Wyszmonski
-------------------------
Name: Caesar W. Wyszmonski
Title: Vice President
CITIBANK, N.A.,
as Collateral Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT C
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FORM OF NEW SECURITY AGREEMENT
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EXECUTION COPY
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______________________________________________________________________________
AMENDED AND RESTATED SECURITY AGREEMENT
AMONG
ALLEGHENY ENERGY SUPPLY COMPANY, LLC,
THE OTHER PERSONS REFERRED TO HEREIN AS GRANTORS,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
AND
CITIBANK, N.A.,
as Collateral Agent and Depository Bank,
dated as of __________, 2005
______________________________________________________________________________
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of
__________, 2005, made by and among (capitalized terms used herein shall have
the meanings assigned thereto in Section 1.01 of this Agreement):
ALLEGHENY ENERGY SUPPLY COMPANY, LLC, a Delaware limited
liability company (the "Company");
Each of the Persons (other than the Company) listed on the
signature pages hereof as a Grantor and the Additional Grantors (the Company,
the Persons so listed and the Additional Grantors being collectively referred
to herein as the "Grantors");
CITICORP NORTH AMERICA, INC. ("CNAI"), not in its individual
capacity except as expressly set forth herein but solely as administrative
agent for the Lenders (solely in such capacity, the "Administrative Agent");
and
CITIBANK, N.A. ("Citibank"), not in its individual capacity
except as expressly set forth herein but solely as (a) the depository bank
(solely in such capacity, the "Depository Bank") and (b) collateral agent on
behalf and for the benefit of the Secured Parties (solely in such capacity, the
"Collateral Agent").
PRELIMINARY STATEMENTS
(1) The Company is a party to that certain Credit Agreement,
dated as of July 21, 2005 (said agreement, as it may hereafter be amended,
amended and restated, supplemented or otherwise modified from time to time,
being the "Credit Agreement"), with the Lenders and the Agents.
(2) The Grantors have agreed to grant the security interest
contemplated by this Agreement to secure the performance of their Obligations
under the Credit Agreement and the other Financing Documents.
NOW, THEREFORE, to secure the Secured Obligations and the
performance of the Company's and the other Grantors' Obligations under the
Financing Documents, and in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged) the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions. (a) Defined terms used in this
Agreement and the Schedules and Exhibits to this Agreement have the meanings
assigned to them in Appendix A-1. Terms defined in the Credit Agreement and not
otherwise defined in this Agreement are used in this Agreement as defined in
the Credit Agreement.
(b) Unless otherwise defined in this Agreement or in the
Credit Agreement, terms defined in Article 8 or 9 of the UCC and/or in
the Federal Book Entry Regulations are used in this Agreement as such
terms are defined in such Article 8 or 9 and/or the Federal Book Entry
Regulations.
Section 1.02 Principles of Interpretation. (a) Except to the
extent expressly provided to the contrary in this Agreement or to the extent
that the context otherwise requires, in this Agreement:
(i) the table of contents and Article and Section headings
contained in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement or any other Financing
Document;
(ii) references to any document, instrument or agreement,
including any Financing Document, shall include (A) all exhibits,
annexes, schedules, appendices or other attachments thereto and (B)
all documents, instruments or agreements issued or executed in
replacement thereof; provided that notwithstanding the foregoing, no
reference to the Credit Agreement shall be deemed to include any
credit agreement, the proceeds of which were used to repay the
Obligations under the Credit Agreement;
(iii) references to a document or agreement, including any
Financing Document, shall be deemed to include any amendment,
restatement, modification, supplement or replacement thereto entered
into in accordance with the terms thereof and the terms of the
Financing Documents; provided that notwithstanding the foregoing, no
reference to the Credit Agreement shall be deemed to include any
credit agreement, the proceeds of which were used to repay the
Obligations under the Credit Agreement;
(iv) the words "include", "includes" and "including" are not
limiting;
(v) references to any Person shall include such Person's
successors and permitted assigns (and in the case of any Governmental
Authority, any Person succeeding to such Governmental Authority's
functions and capacities);
(vi) the words "hereof", "herein" 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;
(vii) references to "days" shall mean calendar days;
(viii) the singular includes the plural and the plural
includes the singular;
(ix) references to Applicable Law, generally, shall mean
Applicable Law as in effect from time to time, and references to any
specific Applicable Law shall mean such Applicable Law, as amended,
modified or supplemented from time to time, and any Applicable Law
successor thereto;
(x) in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding"; and
(xi) any reference in this Agreement to an Article, Section,
Schedule, Appendix or Exhibit is to the article or section of, or a
schedule, appendix or exhibit to this Agreement unless otherwise
indicated, and Schedules, Appendices and Exhibits to this Agreement
shall be deemed incorporated by reference in this Agreement.
(b) This Agreement is the result of negotiations among the
parties thereto and their respective counsel. Accordingly, this Agreement shall
be deemed the product of all parties thereto, and no ambiguity in this
Agreement shall be construed in favor of or against any Grantor or any Creditor
Party.
ARTICLE II
SECURED OBLIGATIONS
[INTENTIONALLY OMITTED].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Grantors.
Each Grantor represents and warrants to each Secured Party, as of the date
hereof, that:
(a) Such Grantor's exact legal name, as defined in Section
9-503(a) of the UCC, is correctly set forth in Schedule 3.01(a). Such
Grantor has only the trade names and domain names listed on Schedule
3.01(a). Such Grantor is located (within the meaning of Section 9-307
of the UCC) and has its chief executive office and the office in which
it maintains the original copies of each Assigned Agreement and
Related Contract to which such Grantor is a party and all originals of
all chattel paper that evidence Receivables of such Grantor, in the
state or jurisdiction set forth in Schedule 3.01(a). The information
set forth in Schedule 3.01(a) with respect to such Grantor is true and
accurate in all respects. Such Grantor has not previously changed its
name, location, chief executive office, place where it maintains its
agreements, type of organization, jurisdiction of organization or
organizational identification number from those set forth in Schedule
3.01(a) except as disclosed in Schedule 3.01(a) and, with respect to
Lake Acquisition Company LLC, other than any such change occurring
prior to the acquisition by the Company of such company and which the
Company is not aware of.
(b) All Security Collateral consisting of certificated
securities and instruments have been delivered to the Collateral
Agent. None of the Receivables or Agreement Collateral is evidenced by
a promissory note or other instrument that has not been delivered to
the Collateral Agent.
(c) Such Grantor is the legal and beneficial owner of its
Collateral free and clear of any Lien, claim, option or right of
others, except for the security interest created under the Collateral
Documents or permitted under the Financing Documents (including the
PCB Liens) and except to the extent set forth in the operating
agreement of ▇▇▇▇▇▇▇▇ Generation, LLC. No effective financing
statement or other instrument similar in effect covering all or any
part of such Collateral or listing such Grantor or any trade name of
such Grantor as debtor is on file in any recording office, except such
as may have been filed in favor of the Collateral Agent relating to
the Financing Documents or financing statements or other instruments
relating to Liens permitted under the Financing Documents.
(d) Such Grantor has exclusive possession and control of the
Material Equipment and Inventory other than Inventory and Equipment
stored at any leased premises or warehouse for which a landlord's or
warehouseman's agreement, in form and substance reasonably
satisfactory to the Administrative Agent, is in effect and which
leased premises or warehouse is so indicated by an asterisk on
Schedule 3.01(d), except to the extent otherwise permitted by the
Financing Documents. In the case of any Equipment or Inventory of such
Grantor, in each case, with a value in excess of $25,000,000 located
on leased premises or in warehouses, no lessor or warehouseman of any
premises or warehouse upon or in which such Equipment or Inventory is
located has (i) issued any warehouse receipt or other receipt in the
nature of a warehouse receipt in respect of any such Equipment or
Inventory, (ii) issued any document for any such Equipment or
Inventory or (iii) received notification of any secured party's
interest (other than the security interest granted hereunder or any
other Permitted Lien) in such Equipment or Inventory.
(e) The Initial Pledged Equity pledged by such Grantor
hereunder has been duly authorized and validly issued and is fully
paid and non-assessable. With respect to the Pledged Equity that is an
uncertificated security, such Grantor has caused the issuer thereof
either (i) to register the Collateral Agent as the registered owner of
such security or (ii) to agree in an authenticated record with such
Grantor and the Collateral Agent that such issuer will comply with
instructions with respect to such security originated by the
Collateral Agent without further consent of such Grantor. If such
Grantor is an issuer of Pledged Equity, such Grantor confirms that it
has received notice of such security interest. The Pledged Debt
pledged as of the date hereof by such Grantor hereunder has been duly
authorized, authenticated or issued and delivered, is the legal, valid
and binding obligation of the issuers thereof, except to the extent
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar law affecting the enforcement of
creditors' rights generally and by general principles of equity, is
evidenced by one or more promissory notes (which notes have been
delivered to the Collateral Agent) and is not in default.
(f) The Initial Pledged Equity pledged by such Grantor
constitutes the percentage of the issued and outstanding Equity
Interests of the issuers thereof indicated on Schedule 3.01(f).
(g) Such Grantor does not have any deposit or securities
accounts other than the Controlled Accounts and the Operating
Accounts. Set forth on Schedule 3.01(g) is a complete and accurate
list of all Initial Controlled Accounts and Operating Accounts,
showing as of the date hereof, the name and address of the bank or
other financial institution with whom each such Initial Controlled
Account and Operating Account is maintained, the name of the
accountholder and the account number thereof.
(h) The Material Contracts to which such Grantor is a party
have been duly authorized, executed and delivered by it and are in
full force and effect and are binding upon and enforceable against
such Grantor, and to the best knowledge of such Grantor, all other
parties thereto in accordance with their terms, except to the extent
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar law affecting the enforcement of
creditors' rights generally and by general principles of equity. Each
Regulated Affiliate party to any Material Contract to which such
Grantor is a party has executed and delivered to the Collateral Agent
a Consent in respect of each such Material Contract.
ARTICLE IV
PREPAYMENT ACCOUNT
Section 4.01 Creation of Prepayment Account; Termination of
Recovery Event Proceeds Account. (a) The Collateral Agent, at the direction of
the Company, has established with the Depository Bank at its offices in New
York City, New York (ABA No. ▇▇▇▇▇▇▇▇▇), in the name of the Collateral Agent
and under the sole control and dominion of the Collateral Agent and subject to
the terms of this Agreement, and shall maintain, the non-interest bearing
Dollar-denominated securities account, Account No. 795584 (the "Prepayment
Account").
(b) The Collateral Agent is hereby directed by the Company to
close Account No. 795379, previously established by the Collateral Agent, at
the direction of the Company, with the Depository Bank at its offices in New
York City, New York (ABA No. ▇▇▇▇▇▇▇▇▇).
(c) For so long as any Secured Obligations shall remain
unpaid or any Creditor Party shall have any Commitment under any Financing
Document to which it is a party, the Prepayment Account shall be maintained in
the name of and under the sole dominion and control of the Collateral Agent.
The Collateral Agent shall cause the Prepayment Account to be, and the
Prepayment Account shall be, separate from all other accounts held by or under
the control or dominion of the Collateral Agent. The Company irrevocably
confirms the authority of (and directs and authorizes) the Collateral Agent to,
and the Collateral Agent agrees to, deposit into, or credit to, and transfer
funds from the Prepayment Account in accordance with this Agreement. The
Prepayment Account shall be subject to Applicable Laws of the Board of
Governors of the Federal Reserve System and of any other applicable
Governmental Authority, as may now or hereafter be in effect.
(d) The Company shall not have any rights against or to
moneys or funds on deposit in, or credited to, the Prepayment Account, as
third-party beneficiary or otherwise, except the right of the Company to
receive or make requisitions of moneys or funds on deposit in, or credited to,
the Prepayment Account, as permitted by this Agreement, and to direct the
Collateral Agent as to the investment of moneys held in the Prepayment Account
as permitted by Section 4.03. In no event shall any amounts or Cash Equivalents
deposited into, or credited to, the Prepayment Account, be registered in the
name of the Company, payable to the order of the Company, or specially endorsed
to the Company, except to the extent that the foregoing have been specially
endorsed to the Collateral Agent or endorsed in blank.
(e) (i) Unless otherwise specified in this Agreement, all
references to the Prepayment Account shall include references to all Prepayment
Subaccounts thereof and such Prepayment Subaccounts shall be subject to the
same restrictions and limitations as the Prepayment Account.
(ii) No Prepayment Subaccount may itself include another
Prepayment Subaccount.
Section 4.02 Prepayment Account. (a) The Company shall pay
all amounts pursuant to Section 2.06(b)(ii) of the Credit Agreement (any such
amount being a "Prepayment Amount") to the Administrative Agent, and the
Administrative Agent shall promptly cause to be deposited all such amounts into
the Prepayment Account.
(b) Amounts shall not be released from the Prepayment Account
except in accordance with the Administrative Agent's instructions pursuant to
Sections 2.06(b)(iii) and 2.06(c) of the Credit Agreement and Sections 4.04,
4.10 and 7.08(c) hereof.
(c) The Collateral Agent may establish and maintain with the
Depository Bank at its officers in New York City, State of New York, in the
name of the Collateral Agent, individual securities accounts within the
Prepayment Account if such individual securities accounts (each, a "Prepayment
Subaccount") are requested by the Administrative Agent in order to credit
amounts allocated for application to the payment of certain Senior Debt
Obligations in accordance with this Agreement, and the Credit Agreement to such
individual securities accounts. Amounts shall be released from each Prepayment
Subaccount established at the request of the Administrative Agent in accordance
with directions from the Administrative Agent.
Section 4.03 Investment of Funds in Prepayment Account. (a)
Unless to the knowledge of the Collateral Agent any Event of Default has
occurred and is continuing, the Collateral Agent will from time to time (i)
invest (or cause to be invested) amounts on deposit in, or credited to, the
Prepayment Account in Cash Equivalents which are deposited into, or credited
to, the Prepayment Account, (ii) invest (or cause to be invested) interest paid
on the Cash Equivalents referred to in clause (i) above, and (iii) reinvest (or
cause to be reinvested) other proceeds of any such Cash Equivalents that may
mature or be sold, in each case in Cash Equivalents which are deposited into,
or credited to, the Prepayment Account, in each case as the Company may select
and instruct the Collateral Agent. Interest and proceeds resulting from any
investment of funds in the Prepayment Account in Cash Equivalents that are not
invested or reinvested in Cash Equivalents shall be deposited and held in, or
credited to, the Prepayment Account. In addition, whenever directed to make a
transfer of funds from the Prepayment Account in accordance with the provisions
of this Article IV, the Collateral Agent shall have the right at any time to
exchange (or cause to be exchanged) such Cash Equivalents for similar Cash
Equivalents of smaller or larger denominations, or for other Cash Equivalents
deposited into, or credited to, the Prepayment Account, to the extent that,
after application of all other funds available for such purpose pursuant to
this Article IV, the liquidation of such Cash Equivalents is necessary to make
such transfer.
(b) If any Event of Default has occurred and is continuing,
the Collateral Agent will from time to time, to the extent so notified in
accordance with Section 4.04, (i) invest (or cause to be invested) amounts on
deposit in, or credited to, the Prepayment Account in Cash Equivalents which
are deposited into, or credited to, the Prepayment Account, (ii) invest (or
cause to be invested) interest paid on the Cash Equivalents referred to in
clause (i) above and (iii) reinvest (or cause to be reinvested) other proceeds
of any such Cash Equivalents that may mature or be sold, in each case in Cash
Equivalents which are deposited into, or credited to, the Prepayment Account,
in each case, as instructed by the Required Lenders. Interest and proceeds
resulting from any investment of funds in the Prepayment Account in Cash
Equivalents that are not invested or reinvested in Cash Equivalents shall be
deposited and held in, or credited to, the Prepayment Account. In addition, the
Collateral Agent shall have the right at any time to exchange (or cause to be
exchanged) such Cash Equivalents for similar Cash Equivalents of smaller or
larger denominations, or for other Cash Equivalents deposited into, or credited
to, the Prepayment Account.
(c) The Collateral Agent shall not invest or reinvest any
funds in the Prepayment Account unless it has received instructions from the
Company or the Required Lenders in accordance with this Section 4.03 as to the
investment of such funds. All investments and reinvestments of funds in the
Prepayment Account shall be made in the name of the Collateral Agent or its
nominee(s).
(d) Whenever directed to make a transfer of funds from the
Prepayment Account in accordance with this Article IV, the Collateral Agent is
hereby directed and authorized by the Company to liquidate (or cause to be
liquidated) Cash Equivalents (in order of their respective maturities), to the
extent that, after application of all other funds available for such purpose
pursuant to this Article IV, the liquidation of any Cash Equivalent is
necessary to make such transfer.
(e) Neither the Collateral Agent nor the Depository Bank
shall (in the absence of gross negligence or willful misconduct, as determined
by a final and non-appealable decision of a court of competent jurisdiction)
have any liability with respect to any interest, cost or penalty on the
liquidation of any Cash Equivalent pursuant to this Agreement, nor shall the
Collateral Agent (in the absence of gross negligence or willful misconduct, as
determined by a final and non-appealable decision of a court of competent
jurisdiction) have any liability with respect to Cash Equivalents (including
purchases or conversions of foreign exchange) or moneys deposited into, or
credited to, the Prepayment Account (or any losses resulting therefrom)
invested in accordance with the instructions of the Company or the Required
Lenders, as the case may be.
(f) All references in this Agreement to the Prepayment
Account and to cash, moneys or funds therein or balances thereof, shall include
the Cash Equivalents in which such cash, moneys, funds or balances are then
invested and the proceeds thereof.
(g) (i) Neither the Collateral Agent nor any of its
Affiliates assume any duty or liability for monitoring the rating or
performance of any Cash Equivalent. In the event an investment selection with
respect to amounts in the Prepayment Account is not made by the Company or the
Required Lenders in accordance with the applicable provisions of this Section
4.03, the funds in the Prepayment Account shall not be invested and the
Collateral Agent shall not incur any liability for interest or income thereon.
The Collateral Agent shall have no obligation to invest or reinvest the funds
in the Prepayment Account if all or a portion of such funds is deposited with
the Collateral Agent after 11:00 a.m. (New York City time) on the day of
deposit. Instructions to invest or reinvest that are received after 11:00 a.m.
(New York City time) will be treated as if received on the following business
day in New York. Requests or instructions received after 11:00 a.m. (New York
City time) by the Collateral Agent to liquidate all or a portion of funds in
the Prepayment Account will be treated as if received on the following business
day in New York. Notwithstanding the foregoing, the Collateral Agent shall use
commercially reasonable efforts to invest or reinvest funds deposited prior to
1:00 p.m. (New York City time) on the day of deposit, and to give effect to
investment instructions received prior to 1:00 p.m. (New York City time) on the
day of receipt of such instructions. The Collateral Agent shall have no
responsibility for any investment losses resulting from the investment,
reinvestment or liquidation of all or a portion of funds in the Prepayment
Account; provided that the Collateral Agent has made such investment,
reinvestment or liquidation, as applicable, in accordance with the terms, and
subject to the conditions, of this Agreement.
(ii) The Company acknowledges that non-deposit investment
products (A) are not obligations of, nor guaranteed, by Citibank nor
any of its Affiliates; (B) are not FDIC insured; and (C) are subject
to investment risks, including the possible loss of principal amount
invested.
Section 4.04 Transfers from Prepayment Account During the
Continuance of an Event of Default. Following the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall not accept any
instructions from the Company with respect to any transfer or withdrawal of
funds on deposit in, or credited to, the Prepayment Account and, in such
circumstances, the Collateral Agent shall only accept and comply with
instructions for the investment, transfer or withdrawal of funds in the
Prepayment Account solely from the Required Lenders and without further consent
by the Company.
Section 4.05 Reports, Certifications and Instructions. (a)
The Collateral Agent shall maintain all such accounts, books and records as may
be necessary to properly record all transactions carried out by it under this
Agreement. The Collateral Agent shall permit the other Secured Parties, the
Company and its Affiliates and their authorized representatives to examine such
accounts, books and records; provided that any such examination shall occur
upon reasonable notice and during normal business hours.
(b) The Collateral Agent shall deliver to the Company and the
Administrative Agent, as soon as practicable after the end of each calendar
month following the date hereof, copies of the account statements for the
Prepayment Account (including all Prepayment Subaccounts) for such month
prepared or compiled by the Collateral Agent. Such account statements shall
indicate, with respect to each such account, deposits, credits and transfers,
investments made and closing balances. The Collateral Agent shall provide any
additional information or reports relating to the Prepayment Account and the
transactions therein reasonably requested from time to time by the Company or
any Secured Party.
(c) Each time the Company directs the Collateral Agent to
make a transfer or withdrawal from the Prepayment Account, it shall be deemed
to represent and warrant for the benefit of the Collateral Agent and the other
Secured Parties that such transfer or withdrawal is being made in an amount,
and shall be applied solely for the purposes, permitted by, and otherwise in
accordance with, this Agreement and the Credit Agreement. Except to the extent
any officer or officers of the Collateral Agent responsible for the
administration of this Agreement has actual knowledge to the contrary, the
Collateral Agent may conclusively rely on, and shall incur no liability in so
relying on, any such direction.
(d) Notwithstanding any provision to the contrary contained
in this Agreement, all notices, certifications, approvals, directions,
instructions or other communication given to the Collateral Agent with respect
to any payments, transfers, credits, deposits, withdrawals or investments with
respect to, or otherwise relating to, the Prepayment Account, in each case, by
the Company or by any other Secured Party shall be given in writing, and the
Collateral Agent shall not be required to take any action with respect to any
payments, transfers, credits, deposits, withdrawals or investments unless it
has received such written instructions specifying the date, amount and
Prepayment Subaccount (if applicable) with respect to which such transfer,
credit, deposit, withdrawal or investment is to be made.
(e) At the request of the Administrative Agent, the Company
shall deliver to the Administrative Agent and the Collateral Agent, within five
Business Days after receipt thereof by any Grantor, copies of the account
statements for all Controlled Accounts and all Operating Accounts for such
month. Such account statements shall indicate, with respect to each such
account, deposits, credits and closing balances. The Company shall also provide
any additional information or reports relating to each Controlled Account and
each Operating Account and the transactions therein reasonably requested from
time to time by any Secured Party.
Section 4.06 Depository Bank Undertakings. The Depository
Bank represents and warrants to, and agrees with the Company and the Collateral
Agent as follows:
(a) The Depository Bank (i) is a securities intermediary on
the date hereof and (ii) so long as this Agreement remains in effect and
Citibank remains the Depository Bank hereunder, shall remain a securities
intermediary, and shall act as such with respect to the Company, the Collateral
Agent, the Prepayment Account and all of the Account Collateral (including all
security entitlements maintained or carried in the Prepayment Account) from
time to time transferred, credited or maintained in the Prepayment Account.
(b) The Prepayment Account is, and shall remain, a securities
account, with the Collateral Agent (and no other Person) as the entitlement
holder and under the sole dominion and control of the Collateral Agent for the
ratable benefit of the Secured Parties.
(c) The Depository Bank (i) has identified (and will continue
to identify) the Collateral Agent for the ratable benefit of the Secured
Parties in its records as, and will treat the Collateral Agent as (A) the sole
Person having a security entitlement against the Depository Bank with respect
to the Prepayment Account and the Account Collateral from time to time carried
in the Prepayment Account, (B) the sole entitlement holder against the
Depository Bank with respect to the Prepayment Account, (C) the sole Person
having dominion and control over the Prepayment Account and any and all assets,
property and items from time to time carried in the Prepayment Account and (D)
the sole Person entitled to exercise the rights that comprise the Prepayment
Account; and (ii) has credited and will continue to credit such assets,
property and items to the Prepayment Account in accordance with written
instructions given pursuant to, and the other terms and conditions of, this
Agreement.
(d) To the maximum extent permitted by Applicable Law, all of
the Account Collateral (including cash), from time to time carried in the
Prepayment Account, shall constitute financial assets and the Depository Bank
shall treat all such Account Collateral as financial assets.
(e) Notwithstanding any other provision in this Agreement to
the contrary, the Depository Bank shall comply with any and all entitlement
orders and other directions originated by, and only by, the Collateral Agent in
respect of the Prepayment Account or the Account Collateral from time to time
carried therein without any further consent or action by the Company or any
other Person and shall not comply with the entitlement orders of any other
Person (for the avoidance of doubt, the foregoing does not preclude the
Company's right to require that the Prepayment Account be established,
maintained and administered in accordance with the provisions of this Article
IV).
(f) The "securities intermediary's jurisdiction" (within the
meaning of Section 8-110(e) of the UCC) of the Depository Bank is and will
continue to be the State of New York.
(g) To be binding on the Depository Bank, all instructions by
the Collateral Agent pursuant to Section 4.04 with respect to the Account
Collateral carried in the Prepayment Account must be given to the Depository
Bank, and only pursuant to and subject to the terms and conditions of this
Agreement.
(h) Anything herein to the contrary notwithstanding, the
Depository Bank will not be required to follow any instruction that would
violate any Applicable Law, decree, regulation or order of any Governmental
Authority (including any court or tribunal).
(i) The Depository Bank has not entered into and will not
enter into any agreement with any other Person relating to the Prepayment
Account or any financial assets credited thereto pursuant to which it has
agreed or will agree to comply with entitlement orders of such Person. The
Depository Bank has not entered into any other agreement with the Company or
any other Person purporting to limit or condition the duties of the Depository
Bank to comply with entitlement orders originated by the Collateral Agent as
set forth in Section 4.06(e).
(j) The Depository Bank hereby waives and releases any Lien
or other right it may have against the Prepayment Account or any financial
asset credited to the Prepayment Account or any credit balance in the
Prepayment Account, and agrees that it will not assert any such Lien or other
right in, to or against the Prepayment Account or any credit balance in the
Prepayment Account.
(k) The Depository Bank will send copies of all statements
and confirmations for the Prepayment Account simultaneously to the Company and
the Collateral Agent.
(l) All securities or other property underlying any
financial assets consisting of Account Collateral deposited in or credited to
the Prepayment Account shall be registered in the name of the Depository Bank,
endorsed to the Depository Bank or in blank or credited to another securities
account or securities accounts maintained in the name of the Depository Bank,
and in no case will any financial asset consisting of Account Collateral
deposited in or credited to the Prepayment Account be registered in the name
of the Company, payable to the order of the Company or specially endorsed to
the Company, except to the extent the foregoing have been specially endorsed
by the Company to the Depository Bank or in blank.
(m) If any Person asserts to the Depository Bank any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against any Account
Collateral, the Depository Bank will as promptly as practicable thereafter
notify the Company and the Collateral Agent thereof.
Section 4.07 Controlled Accounts. (a) Each Grantor hereby
agrees that it shall maintain all Account Collateral (i) in the case of the
Company, with the Collateral Agent in the Prepayment Account, or (ii) in the
case of any Grantor (including the Company), (A) in an Operating Account or (B)
with a bank or financial institution (each, a "Pledged Account Bank") that has
agreed, pursuant to an Account Control Agreement among such Grantor, the
Collateral Agent and such Pledged Account Bank, to (1) comply with instructions
originated by the Collateral Agent directing the disposition of funds in the
Account Collateral without the further consent of such Grantor and (2) waive or
subordinate in favor of the Collateral Agent all claims of such Pledged Account
Bank (other than customary rights of set-off, as may be agreed by the
Collateral Agent in its reasonable discretion) to the Account Collateral.
(b) Other than the Prepayment Account, the Initial Controlled
Accounts and the Operating Accounts, each Grantor agrees it will not add any
bank or financial institution that maintains any deposit or securities account
for such Grantor or open any new deposit or securities accounts with any then
existing Pledged Account Bank unless the Collateral Agent shall have received,
on or prior to the date on which such bank or financial institution is added or
such new account is opened, (i) written notice of such additional bank or
financial institution or such new account, (ii) in the case of a bank or
financial institution or Pledged Account Bank that is not the Collateral Agent,
an Account Control Agreement duly executed by such new Person and such Grantor,
or a supplement to an existing Account Control Agreement with such then
existing Pledged Account Bank, covering such new account and (iii) if requested
by the Collateral Agent, an opinion of counsel reasonably acceptable to the
Collateral Agent, with respect to the authorization, execution, delivery,
validity and enforceability of, and perfection under, such Account Control
Agreement. Each Grantor agrees that it will not terminate any bank or financial
institution as a Pledged Account Bank or terminate any Account Collateral,
except that the Grantor may terminate any Controlled Account or Operating
Account, and terminate a bank or financial institution as a Pledged Account
Bank with respect to such Controlled Account, if the balance on deposit in, or
credited to any such Controlled Account or Operating Account is equal to $0.00
and it gives the Collateral Agent prompt written notice of such termination.
(c) Each Grantor agrees that it shall not maintain on deposit
in the aggregate for all Grantors in the Operating Accounts at any time more
than $5,000,000.
(d) Unless and until a Notice of Exclusive Control is issued
pursuant to any Account Control Agreement, each Grantor hereby agrees that it
will invest (or cause to be invested) amounts on deposit in, or credited to,
all Controlled Accounts subject to such Account Control Agreement only in Cash
Equivalents.
Section 4.08 Force Majeure. Neither the Collateral Agent nor
the Depository Bank shall incur any liability for not performing any act or
fulfilling any obligation hereunder by reason of any occurrence beyond its
control (including any provision of any present or future law or regulation or
any act of any Governmental Authority, any act of God, war or terrorism, or the
unavailability of the Federal Reserve Bank wire services or any electronic
communication facility).
Section 4.09 Clearing Agency. The Account Collateral in the
Prepayment Account may be held by the Collateral Agent directly or through any
clearing agency or depository (collectively, the "Clearing Agency") including
the Federal Reserve/Treasury Book-Entry System for United States and federal
agency securities, and the Depository Trust Company. The Collateral Agent shall
not have any responsibility or liability for the actions or omissions to act on
the part of any Clearing Agency. The Collateral Agent is authorized, for any
Collateral at any time held hereunder, to register the Collateral in the name
of one or more of its nominee(s) or the nominee(s) of any Clearing Agency in
which the Collateral Agent has a participant account, and such nominee(s) may
sign the name of any Grantor and guarantee such signature in order to transfer
securities or certify ownership thereof to tax or other Governmental
Authorities.
Section 4.10 Return of Funds. Upon termination of this
Agreement in accordance with Section 9.08, the Collateral Agent shall pay,
assign, transfer and deliver to or to the order of the Company all moneys and
investments in, or credited to, the Prepayment Account, in accordance with the
instructions of the Company.
ARTICLE V
SECURITY INTERESTS
Section 5.01 Grant of Security. Each Grantor hereby assigns,
pledges and grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a Lien on and security interest in, such Grantor's right,
title and interest in and to the following, in each case, as to each type of
property described below, whether now owned or hereafter acquired by such
Grantor, wherever located, and whether now or hereafter existing or arising
(collectively, the "Collateral"):
(a) all equipment in all of its forms, including all
machinery, tools, motor vehicles, vessels, aircraft, furniture and fixtures,
and all parts thereof and all accessions thereto and all software related
thereto, including software that is embedded in and is part of the equipment
(any and all such property being the "Equipment");
(b) all inventory in all of its forms, including (i) all raw
materials, work in process, finished goods and materials used or consumed in
the manufacture, production, preparation or shipping thereof, (ii) goods in
which such Grantor has an interest in mass or a joint or other interest or
right of any kind (including goods in which such Grantor has an interest or
right as consignee) and (iii) goods that are returned to or repossessed or
stopped in transit by such Grantor, and all accessions thereto and products
thereof and documents therefor, and all software related thereto, including
software that is embedded in and is part of the inventory (any and all such
property being the "Inventory");
(c) all accounts (including health-care-insurance
receivables), chattel paper (including tangible chattel paper and electronic
chattel paper), instruments (including promissory notes), deposit accounts,
letter-of-credit rights, general intangibles (including, without limitation,
all payment intangibles and Emissions Credits) (other than trust accounts
maintained in the name of another Person that is not a Grantor) and other
obligations owed to such Grantor of any kind, whether or not arising out of or
in connection with the sale or lease of goods or the rendering of services and
whether or not earned by performance, and all rights now or hereafter existing
in and to all supporting obligations and in and to all security agreements,
mortgages, Liens, leases, letters of credit and other contracts securing or
otherwise relating to the foregoing property (any and all of such accounts,
chattel paper, instruments, deposit accounts, letter-of-credit rights, general
intangibles and other obligations, to the extent not referred to in clause (d),
(e) or (f) below, being the "Receivables", and any and all such supporting
obligations, security agreements, mortgages, Liens, leases, letters of credit
and other contracts being the "Related Contracts");
(d) the following (the "Security Collateral"):
(i) the Initial Pledged Equity and the certificates, if any,
representing the Initial Pledged Equity, and all dividends,
distributions, return of capital, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Initial Pledged Equity
and all subscription warrants, rights or options issued thereon or
with respect thereto;
(ii) all additional shares of stock and other Equity
Interests of or in any issuer of the Initial Pledged Equity or any
successor entity from time to time acquired by such Grantor in any
manner (such shares and other Equity Interests, together with the
Initial Pledged Equity, being the "Pledged Equity"), and the
certificates, if any, representing such additional shares or other
Equity Interests, and all dividends, distributions, return of capital,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such shares or other Equity Interests and all
subscription warrants, rights or options issued thereon or with
respect thereto;
(iii) all indebtedness from time to time owed to such Grantor
by any Person (the "Pledged Debt") and the instruments, if any,
evidencing such indebtedness, and all interest, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
indebtedness; and
(iv) all other investment property (including all (A)
securities, whether certificated or uncertificated, (B) security
entitlements, (C) securities accounts (including, without limitation,
the Prepayment Account), (D) commodity contracts and (E) commodity
accounts) in which such Grantor has now, or acquires from time to time
hereafter, any right, title or interest in any manner, and the
certificates or instruments, if any, representing or evidencing such
investment property, and all dividends, distributions, return of
capital, interest, distributions, value, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
investment property and all subscription warrants, rights or options
issued thereon or with respect thereto;
(e) each contract and agreement, including Material Contract
(other than the Financing Documents), to which such Grantor is now or may
hereafter become a party, in each case as such agreements may be amended,
amended and restated, supplemented or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including (i) all rights of such
Grantor to receive moneys due and to become due under or pursuant to the
Assigned Agreements, (ii) all rights of such Grantor to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of such Grantor for damages arising out of or for
breach of or default under the Assigned Agreements and (iv) the right of such
Grantor to terminate the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder (all such
Collateral being the "Agreement Collateral");
(f) the following (collectively, the "Account Collateral"):
(i) the Prepayment Account, the Controlled Accounts, the
Operating Accounts and all funds and financial assets from time to
time credited thereto (including all Cash Equivalents), all interest,
dividends, distributions, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such funds and financial assets,
and all certificates and instruments, if any, from time to time
representing or evidencing the Controlled Accounts or the Prepayment
Account;
(ii) all promissory notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time delivered to
or otherwise possessed by the Collateral Agent for or on behalf of
such Grantor, including those delivered or possessed in substitution
for or in addition to any or all of the then existing Account
Collateral; and
(iii) all interest, dividends, distributions, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the then existing Account Collateral;
(g) all of the following (collectively, the "Intellectual
Property Collateral"):
(i) all patents, patent applications, utility models and
statutory invention registrations, all inventions claimed or disclosed
therein and all improvements thereto ("Patents");
(ii) all trademarks, service marks, domain names, trade
dress, logos, designs, slogans, trade names, business names, corporate
names and other source identifiers, whether registered or unregistered
(provided that no security interest shall be granted in United States
intent-to-use trademark applications to the extent that, and solely
during the period in which, the grant of a security interest therein
would impair the validity or enforceability of such intent-to-use
trademark applications under applicable federal law), together, in
each case, with the goodwill symbolized thereby ("Trademarks");
(iii) all copyrights, including copyrights in Computer
Software (as hereinafter defined), internet web sites and the content
thereof, whether registered or unregistered ("Copyrights");
(iv) all computer software, programs and databases (including
source code, object code and all related applications and data files),
firmware and documentation and materials relating thereto, together
with any and all maintenance rights, service rights, programming
rights, hosting rights, test rights, improvement rights, renewal
rights and indemnification rights and any substitutions, replacements,
improvements, error corrections, updates and new versions of any of
the foregoing ("Computer Software");
(v) all confidential and proprietary information, including
know-how, trade secrets, manufacturing and production processes and
techniques, inventions, research and development information,
databases and data, including technical data, financial, marketing and
business data, pricing and cost information, business and marketing
plans and customer and supplier lists and information (collectively,
"Trade Secrets"), and all other intellectual, industrial and
intangible property of any type, including industrial designs and mask
works;
(vi) all registrations and applications for registration for
any of the foregoing, together with all reissues, divisions,
continuations, continuations-in-part, extensions, renewals and
reexaminations thereof;
(vii) all tangible embodiments of the foregoing, all rights
in the foregoing provided by international treaties or conventions,
all rights corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto;
(viii) all agreements, permits, consents, orders and
franchises relating to the license, development, use or disclosure of
any of the foregoing to which such Grantor, now or hereafter, is a
party or a beneficiary; and
(ix) any and all claims for damages and injunctive relief for
past, present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the foregoing, with
the right, but not the obligation, to ▇▇▇ for and collect, or
otherwise recover, such damages;
(h) all commercial tort claims described in Schedule 5.01(h)
(collectively, the "Commercial Tort Claims Collateral");
(i) all books and records (including customer lists, credit
files, printouts and other computer output materials and records) of such
Grantor pertaining to any of the Collateral; and
(j) all proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral (including proceeds,
collateral and supporting obligations that constitute property of the types
described in clauses (a) through (i) of this Section 5.01 and this clause (j))
and, to the extent not otherwise included, all (A) payments under insurance
(whether or not the Collateral Agent is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral, (B) tort claims,
including all commercial tort claims and (C) cash;
provided, however, that notwithstanding any of the other provisions set forth
in this Section 5.01, this Agreement shall not, at any time, constitute a grant
of a security interest (1) in any Asset that is, at such time, an Excluded
Asset and (2) in any Asset consisting of leases, licenses, contracts or
agreements to which any Grantor is a party or any of its rights or interests
thereunder if and for so long as the grant of such security interest shall
constitute or result in (I) the abandonment, invalidation or unenforceability
of any right, title or interest of such Grantor therein or (II) a breach or
termination pursuant to the terms of, or a default under, any such lease,
license, contract or agreement (other than to the extent that any such term
would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409
of the UCC (or any successor provision or provisions) of any relevant
jurisdiction or any other applicable law (including the Bankruptcy Code) or
principles of equity), provided, however, in the case of either (I) or (II)
above, that such security interest shall attach immediately at such time as the
condition causing such abandonment, invalidation or unenforceability shall be
remedied and to the extent severable, shall attach immediately to any portion
of such lease, license, contract or agreement that does not result in any of
the consequences specified in (I) or (II) above.
Section 5.02 Security for Obligations. This Agreement
secures, in the case of each Grantor, the payment of all Secured Obligations.
Without limiting the generality of the foregoing, this Agreement secures, as to
the Company and each other Grantor, the payment of all amounts that constitute
part of the Secured Obligations and would be owed by the Company or any other
Grantor to any Secured Party under any Financing Document but for the fact that
they are unenforceable or not allowable due to the existence of an Insolvency
Proceeding involving the Company or any other Grantor.
Section 5.03 Delivery and Control of Security Collateral and
Account Collateral. (a) All certificates or instruments representing or
evidencing Security Collateral shall be delivered to and held by or on behalf
of the Collateral Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Collateral Agent but excluding checks, certificates of
title and other similar instruments; provided that instruments evidencing
Pledged Debt need not be delivered until and unless an Event of Default has
occurred and is continuing. The Collateral Agent shall have the right, at any
time in its discretion and without notice to any Grantor, to transfer to or to
register in the name of the Collateral Agent or any of its nominees any or all
of the Security Collateral, subject only to the revocable rights specified in
Section 5.14. In addition, the Collateral Agent shall have the right at any
time to exchange certificates or instruments representing or evidencing
Security Collateral for certificates or instruments of smaller or larger
denominations.
(b) With respect to any Security Collateral in which any
Grantor has any right, title or interest and that constitutes an uncertificated
security, such Grantor will cause the issuer thereof either (i) to register the
Collateral Agent as the registered owner of such security or (ii) to agree in
an authenticated record with such Grantor and the Collateral Agent that such
issuer will comply with instructions with respect to such security originated
by the Collateral Agent without further consent of such Grantor, such
authenticated record to be in form and substance satisfactory to the Collateral
Agent. With respect to any Security Collateral in which any Grantor has any
right, title or interest and that is not an uncertificated security, upon the
request of the Collateral Agent, such Grantor will notify each such issuer of
Pledged Equity that such Pledged Equity is subject to the security interest
granted hereunder.
(c) Upon the request of the Collateral Agent, each Grantor
will notify each such issuer of Pledged Debt that such Pledged Debt is subject
to the security interest granted hereunder.
Section 5.04 Further Assurances; Etc. (a) Each Grantor agrees
that from time to time, at the expense of such Grantor, such Grantor will
promptly do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds, conveyances,
pledge agreements, mortgages, deeds of trust, trust deeds, assignments,
financing statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other instruments as any
Agent, the Depository Bank or any other Secured Party through the
Administrative Agent, may reasonably require from time to time in order to (i)
carry out more effectively the purposes of the Financing Documents, (ii) to the
fullest extent permitted by Applicable Law, subject it or any of its
Subsidiaries' properties, assets, rights or interests (other than Excluded
Assets) to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (iii) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder and (iv) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Financing Document or under any other instrument executed in
connection with any Financing Document to which it or any of its Subsidiaries
is or is to be a party, and cause each of its Subsidiaries to do so. Without
limiting the generality of the foregoing, each Grantor will promptly with
respect to Collateral of such Grantor: (A) at the request of the Administrative
Agent, ▇▇▇▇ conspicuously each document included in Inventory, each chattel
paper included in Receivables, each Related Contract, each Assigned Agreement
and each of its records pertaining to such Collateral with a legend, in form
and substance satisfactory to the Administrative Agent, indicating that such
document, chattel paper, Related Contract, Assigned Agreement or Collateral is
subject to the security interest granted hereby; (B) if any such Collateral
shall be evidenced by a promissory note or other instrument or chattel paper,
deliver and pledge to the Collateral Agent hereunder such note or instrument or
chattel paper duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the
Administrative Agent; provided that instruments evidencing Pledged Debt need
not be delivered until and unless an Event of Default has occurred and is
continuing; (C) execute or authenticate and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Administrative Agent may reasonably
request, in order to perfect and preserve the security interest granted or
purported to be granted by such Grantor hereunder; (D) deliver and pledge to
the Collateral Agent for benefit of the Secured Parties certificates
representing Security Collateral that constitutes certificated securities,
accompanied by undated stock or bond powers executed in blank; (E) take all
action necessary to ensure that the Collateral Agent has control of Collateral
consisting of deposit accounts, investment property and letter-of-credit rights
as provided in Sections 9-104, 9-106 and 9-107 of the UCC and, at the request
of the Administrative Agent, electronic chattel paper and transferable records
as provided in Section 9-105 of the UCC and in Section 16 of UETA; (F) at the
request of the Administrative Agent, take all action to ensure that the
Collateral Agent's security interest is noted on any certificate of ownership
related to any Collateral evidenced by a certificate of ownership; (G) at the
request of the Administrative Agent, cause the Collateral Agent to be the
beneficiary under all letters of credit that constitute Collateral, with the
exclusive right to make all draws under such letters of credit, and with all
rights of a transferee under Section 5-114(e) of the UCC; and (H) deliver to
the Collateral Agent evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable to perfect and protect the
security interest created by such Grantor under this Agreement has been taken.
(b) Each Grantor hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
including one or more financing statements indicating that such financing
statements cover all assets or all personal property (or words of similar
effect) of such Grantor, in each case without the signature of such Grantor,
and regardless of whether any particular asset described in such financing
statements falls within the scope of the UCC or the granting clause of this
Agreement. A photocopy or other reproduction of this Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law. Each Grantor ratifies its
authorization for the Collateral Agent to have filed such financing statements,
continuation statements or amendments filed prior to the date hereof.
(c) The Company will furnish to the Collateral Agent on or
prior to the fifth anniversary of the date hereof (but no more than six months
prior thereto) upon the request of the Collateral Agent, an opinion of counsel,
from outside counsel reasonably satisfactory to the Collateral Agent, to the
effect that all financing or continuation statements have been filed to perfect
or continue the perfection of the security interest granted hereunder, and
covering the perfection or continued perfection in other Collateral by means
other than the filing of financing statements, but only to the extent that the
opinions delivered on the Closing Date covered such matters.
Section 5.05 As to the Assigned Agreements. (a) Each Grantor
will at its expense furnish to the Collateral Agent promptly upon receipt
thereof copies of all notices, requests and other documents received by such
Grantor under or pursuant to the Material Contracts to which it is a party
regarding or related to any breach or default by any party thereto that could
reasonably be expected to have a Material Adverse Effect or the occurrence of
any other event that could reasonably be expected to have a Material Adverse
Effect and copies of any amendment, modification or waiver of any Material
Contract.
(b) Each Grantor hereby consents on its behalf and on behalf
of its Subsidiaries to the assignment and pledge to the Collateral Agent for
benefit of the Secured Parties of each Assigned Agreement to which it is a
party by any other Grantor hereunder.
(c) The Company hereby agrees that as soon as reasonably
available after entering into any Material Contract with any Regulated
Affiliate (but in any event within 30 days thereof), it shall deliver to the
Collateral Agent a Consent to the assignment of such Material Contract pursuant
to this Agreement duly executed by such Regulated Affiliate.
Section 5.06 Grantors Remain Liable. Anything herein to the
contrary notwithstanding, (a) each Grantor shall remain liable under the
contracts and agreements included in such Grantor's Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to
the same extent as if this Agreement had not been executed, (b) the exercise by
the Collateral 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 and (c) no Secured Party shall have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement or any other Financing Document, nor
shall 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.
Section 5.07 Additional Equity Interests. Each Grantor agrees
that it will (a) cause each issuer of the Pledged Equity pledged by such
Grantor not to issue any Equity Interests or other securities in addition to or
in substitution for the Pledged Equity issued by such issuer, except to such
Grantor or any other Person holding Equity Interests in such Grantor on a
ratable basis in accordance with the Equity Interest so held, and (b) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all additional Equity Interests or other securities of each issuer of
the Pledged Equity.
Section 5.08 Maintaining Electronic Chattel Paper,
Transferable Records and Letter-of-Credit Rights and Giving Notice of
Commercial Tort Claims. The Company covenants and agrees that until all Secured
Obligations are paid in full and all Commitments shall have terminated:
(a) each Grantor will, at the request of the Administrative
Agent, maintain all (i) electronic chattel paper so that the Collateral
Agent has control of the electronic chattel paper in the manner specified
in Section 9-105 of the UCC and (ii) all transferable records so that the
Collateral Agent has control of the transferable records in the manner
specified in Section 16 of the Uniform Electronic Transactions Act, as in
effect in the jurisdiction governing such transferable record ("UETA");
(b) each Grantor will maintain all letter-of-credit rights
assigned to the Collateral Agent so that the Collateral Agent has control
of the letter-of-credit rights in the manner specified in Section 9-107
of the UCC; and
(c) each Grantor will immediately give notice to the
Collateral Agent of any commercial tort claim where such Grantor is
claiming damages in an aggregate amount in excess of $25,000,000 that may
arise in the future and will immediately execute or otherwise
authenticate a supplement to this Agreement, and otherwise take all
necessary action requested by the Administrative Agent, to subject such
commercial tort claim to the first priority security interest created
under this Agreement.
Section 5.09 Equipment and Inventory. Each Grantor will
cause all Equipment (other than any Equipment that is immaterial or
non-essential to the conduct of business of the Company and its Subsidiaries,
taken as a whole) of such Grantor to be maintained and preserved in accordance
with prudent practices then being utilized in the merchant, non-regulated
power generation industry and in accordance with Applicable Laws (including
Environmental Laws), except where the failure to comply with such Applicable
Laws could not reasonably be expected to have a Material Adverse Effect.
Section 5.10 Insurance. (a) The Company will, or will cause
its Subsidiaries to, maintain property damage and liability insurance in
accordance with the terms of the Financing Documents. Each policy of each
Grantor for liability insurance shall provide for all losses to be paid on
behalf of the Collateral Agent and such Grantor as their interests may appear,
and each policy for property damage insurance shall provide for all losses to
be paid directly to a Controlled Account. Each endorsement or certificate of
insurance for such policy (other than with respect to any policy of liability
insurance) shall in addition (i) name the Collateral Agent, and name or cover
each Grantor, in each case, as insured parties thereunder (without any
representation or warranty by or obligation upon the Collateral Agent) as
their interests may appear, (ii) contain the agreement by the insurer that any
loss thereunder shall be payable to the Collateral Agent notwithstanding any
action, inaction or breach of representation or warranty by such Grantor,
(iii) provide that at least ten days' prior written notice of cancellation or
of lapse shall be given to the Collateral Agent by the insurer and (iv) not
provide for any recourse against any Creditor Party for the payment premiums
or other amounts with respect thereto. The relevant Grantor will, if so
requested by the Collateral Agent, deliver to the Collateral Agent original or
duplicate policies of such insurance and, as often as the Collateral Agent may
reasonably request, a report of a reputable insurance broker with respect to
such insurance. Further, the relevant Grantor will, at the request of the
Collateral Agent (as instructed by the Administrative Agent), duly execute and
deliver instruments of assignment of such insurance policies to comply with
the requirements of the Financing Documents and cause the insurers to
acknowledge notice of such assignment.
(b) Reimbursement under any liability insurance maintained
by any Grantor pursuant to the Financing Documents may be paid directly to the
Person who shall have incurred liability covered by such insurance.
(c) All insurance payments received by any Grantor in
connection with any loss, damage or destruction of any Inventory or Equipment
shall be used by such Grantor, except as otherwise required or permitted
hereunder or under the Credit Agreement, to pay or as reimbursement for the
costs of the necessary repairs to or replacements of such Equipment or
Inventory.
Section 5.11 Post-Closing Changes; Bailees; Collections on
Assigned Agreements, Receivables and Related Contracts. (a) No Grantor will
change its name, type of organization, jurisdiction of organization,
organizational identification number from those set forth in Section 3.01(a)
without first giving at least 30 days' prior written notice to the Collateral
Agent and taking all action required by the Collateral Agent for the purpose
of perfecting or protecting the security interest granted by this Agreement.
Each Grantor will hold and preserve its records relating to the Collateral,
including the Assigned Agreements and Related Contracts. If the Grantor does
not have an organizational identification number and later obtains one, it
will forthwith notify the Collateral Agent of such organizational
identification number.
(b) If any Collateral of any Grantor with a value in excess
of $25,000,000 is at any time in the possession or control of a warehouseman,
bailee or agent, and the Collateral Agent so requests, such Grantor will (i)
notify such warehouseman, bailee or agent of the security interest created
hereunder, (ii) instruct such warehouseman, bailee or agent to hold all such
Collateral solely for the Collateral Agent's account subject only to the
Collateral Agent's instructions (which shall permit such Collateral to be
removed by such Grantor in the ordinary course of business until the
Collateral Agent notifies such warehouseman, bailee or agent that an Event of
Default has occurred and is continuing), (iii) use commercially reasonable
efforts, to cause such warehouseman, bailee or agent to authenticate a record
acknowledging that it holds possession of such Collateral for the Collateral
Agent's benefit and shall act on the instructions of the Collateral Agent
without the further consent of the Grantor or any other Person, and (iv) make
such authenticated record available to the Collateral Agent.
(c) Except as otherwise provided in this subsection (c),
each Grantor will continue to collect, at its own expense, all amounts due or
to become due such Grantor under the Assigned Agreements, Receivables and
Related Contracts. In connection with such collections, such Grantor may take
(and, at the Administrative Agent's direction, will take) such action as such
Grantor or the Administrative Agent may deem necessary or advisable to enforce
collection of the Assigned Agreements, Receivables and Related Contracts;
provided that the Collateral Agent shall have the right at any time upon the
occurrence and during the continuance of an Event of Default and upon written
notice to such Grantor of its intention to do so, to notify the obligors under
any Assigned Agreements, Receivables and Related Contracts of the assignment
of such Assigned Agreements, Receivables and Related Contracts to the
Collateral Agent and to direct such obligors to make payment of all amounts
due or to become due to such Grantor thereunder directly to the Collateral
Agent and, upon such notification and at the expense of such Grantor, to
enforce collection of any such Assigned Agreements, Receivables and Related
Contracts, to adjust, settle or compromise the amount or payment thereof, in
the same manner and to the same extent as such Grantor might have done, and to
otherwise exercise all rights with respect to such Assigned Agreements,
Receivables and Related Contracts, including those set forth set forth in
Section 9-607 of the UCC. After receipt by any Grantor of the notice from the
Collateral Agent referred to in the proviso to the preceding sentence, (i) all
amounts and proceeds (including instruments) received by such Grantor in
respect of the Assigned Agreements, Receivables and Related Contracts of such
Grantor shall be received in trust for the benefit of the Collateral Agent
hereunder, shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Collateral Agent in the same form as so received
(with any necessary indorsement) to be deposited in the Enforcement Proceeds
Account and applied as provided in Section 6.06 and (ii) such Grantor will not
adjust, settle or compromise the amount or payment of any Receivable or amount
due on any Assigned Agreement or Related Contract, release wholly or partly
any obligor thereof, or allow any credit or discount thereon. No Grantor will
permit or consent to the subordination of its right to payment under any of
the Assigned Agreements, Receivables and Related Contracts to any other
indebtedness or obligations of the obligor thereof.
Section 5.12 Intellectual Property Collateral. (a) With
respect to each item of its material Intellectual Property Collateral, each
Grantor agrees to take, at its expense, all commercially reasonable steps,
including in the U.S. Patent and Trademark Office, the U.S. Copyright Office
and any other Governmental Authority, to (i) maintain the validity and
enforceability of such Intellectual Property Collateral and maintain such
Intellectual Property Collateral in full force and effect, except expirations
or terminations in the ordinary course, and (ii) pursue the registration and
maintenance of each unexpired patent, trademark, or unexpired copyright
registration or application, now or hereafter included in such Intellectual
Property Collateral of such Grantor, including the payment of required fees
and taxes, the filing of responses to office actions issued by the U.S. Patent
and Trademark Office, the U.S. Copyright Office or other governmental
authorities, the filing of applications for renewal or extension, the filing,
where appropriate, of affidavits under Sections 8 and 15 of the U.S. Trademark
Act, the filing, where appropriate, of divisional, continuation,
continuation-in-part, reissue and renewal applications or extensions, the
payment of maintenance fees and the participation in interference,
reexamination, opposition, cancellation, infringement and misappropriation
proceedings. No Grantor shall, without the written consent of the
Administrative Agent, discontinue use of or otherwise abandon any Intellectual
Property Collateral, or abandon any right to file an application for patent,
trademark, or copyright, unless such Grantor shall have previously determined
that such use or the pursuit or maintenance of such Intellectual Property
Collateral is no longer desirable in the conduct of such Grantor's business
and that the loss thereof would not be reasonably likely to have a Material
Adverse Effect.
(b) Where required by Applicable Law, each Grantor shall use
proper statutory notice in connection with its use of each item of its
Intellectual Property Collateral, except to the extent failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(c) Each Grantor shall take all steps which it or the
Collateral Agent (as directed by the Administrative Agent) deems reasonable
and appropriate to preserve and protect each item of its Intellectual Property
Collateral, including taking all reasonable steps necessary to ensure that all
licensed users of any of the Trademarks use such consistent standards of
quality, except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section 5.13 Letter-of-Credit Rights. (a) Each Grantor, by
granting a security interest in its Receivables consisting of letter-of-credit
rights to the Collateral Agent, intends to (and hereby does) assign to the
Collateral Agent its rights (including its contingent rights) to the proceeds
of all Related Contracts consisting of letters of credit of which it is or
hereafter becomes a beneficiary or assignee.
(b) Upon the occurrence and during the continuance of an
Event of Default, each Grantor will, promptly upon request by the Collateral
Agent, (i) notify (and such Grantor hereby authorizes the Collateral Agent to
notify) the issuer and each nominated person with respect to each of the
Related Contracts consisting of letters of credit that the proceeds thereof
have been assigned to the Collateral Agent hereunder and any payments due or
to become due in respect thereof are to be made directly to the Collateral
Agent or its designee and (ii) arrange for the Collateral Agent to become the
transferee beneficiary of letter of credit.
Section 5.14 Voting Rights, Dividends, Etc. (a) So long as
no Event of Default shall have occurred and be continuing:
(i) each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security Collateral
of such Grantor or any part thereof for any purpose; provided that such
Grantor will not exercise or refrain from exercising any such right if
such action would violate this Agreement;
(ii) each Grantor shall be entitled to receive and retain
any and all dividends, interest and other distributions paid in respect
of the Security Collateral of such Grantor if and to the extent that the
payment thereof is not otherwise prohibited by the terms of the Financing
Documents; and
(iii) the Collateral Agent will execute and deliver (or
cause to be executed and delivered) to each Grantor all such proxies and
other instruments as such Grantor may reasonably request for the purpose
of enabling such Grantor to exercise the voting and other rights that it
is entitled to exercise pursuant to paragraph (i) above and to receive
the dividends or interest payments that it is authorized to receive and
retain pursuant to paragraph (ii) above. In the absence of instructions
to vote or exercise other rights, the Collateral Agent shall not be
obligated and shall incur no liability for its failure to take any action
in respect of such rights.
(b) Upon the occurrence and during the continuance of an
Event of Default:
(i) all rights of each Grantor (A) to exercise or refrain
from exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 5.14(a)(i) shall,
upon notice to such Grantor by the Collateral Agent (as instructed by the
Administrative Agent), cease and (B) to receive the dividends, interest
and other distributions that it would otherwise be authorized to receive
and retain pursuant to Section 5.14(a)(ii) shall, upon notice to such
Grantor by the Collateral Agent (as instructed by the Administrative
Agent), automatically cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall thereupon have the sole right
to exercise or refrain from exercising such voting and other consensual
rights (in each case, as instructed by the Administrative Agent) and to
receive and hold as Security Collateral such dividends, interest and
other distributions; and
(ii) all dividends, interest and other distributions that
are received by any Grantor contrary to the provisions of paragraph (i)
of this Section 5.14(b) shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of such Grantor
and shall be forthwith paid over to the Collateral Agent as Security
Collateral in the same form as so received (with any necessary
indorsement).
Section 5.15 The Collateral Agent Appointed
Attorney-in-Fact. Each Grantor hereby irrevocably appoints the Collateral
Agent such Grantor's attorney-in-fact, with full authority in the place and
stead of such Grantor and in the name of such Grantor or otherwise, from time
to time, in the Collateral Agent's discretion, to take any action and to
execute any instrument that the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation:
(a) (i) to obtain and adjust insurance proceeds required to
be paid to the Collateral Agent pursuant to the terms of the Financing
Documents; and (ii) to ask for, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for moneys due and
to become due under or in respect of any of the Collateral;
(b) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings that the Collateral Agent may deem necessary or desirable for
the collection of any of the Collateral or otherwise to enforce
compliance with the terms and conditions of any Assigned Agreement or the
rights of the Collateral Agent with respect to any of the Collateral;
provided that the Collateral Agent shall not exercise the power and authority
granted to it pursuant to this Section 5.15 above except during such period as
an Event of Default has occurred and is continuing.
ARTICLE VI
REMEDIES AND ENFORCEMENT
Section 6.01 Remedies and Enforcement Action. At such time
as any Event of Default has occurred and is continuing, the Collateral Agent,
upon the instruction and direction of the Administrative Agent, may take any
Enforcement Action.
Section 6.02 Sale; Incidents of Sale. In connection with any
sale of any Collateral, the Company agrees that, to the extent notice of sale
shall be required by Applicable Law, at least ten days' notice to the Company
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The Collateral
Agent shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Collateral Agent may adjourn any public
or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. With respect to any sale of any of the
Collateral made or caused to be made by the Collateral Agent, whether made
under the power of sale hereby given or pursuant to judicial proceedings, to
the extent permitted by Applicable Law:
(a) Any Creditor Party (including any Secured Party), the
Company, the Parent and any Affiliate thereof may bid for, and purchase,
the Collateral offered for sale, and, upon compliance with the terms of
sale, may hold and dispose of such property;
(b) The Collateral Agent may, but shall not be obligated to,
make and deliver to the purchaser or purchasers a good and sufficient
deed, ▇▇▇▇ of sale and instrument of assignment and transfer covering the
Collateral sold;
(c) The Collateral Agent, pursuant to the power of attorney
granted pursuant to Section 5.15, may make all necessary deeds, bills of
sale and instruments of assignment and transfer of the Collateral thus
sold, and for that purpose the Collateral Agent may execute all necessary
deeds, bills of sale and instruments of assignment and transfer, and may
substitute one or more Persons with like power; and
(d) Upon a sale of any Equity Interests in a Subsidiary of
the Company pledged or assigned pursuant to Article V or substantially
all of the Assets of any Grantor, whether made under the power of sale
hereby given or pursuant to judicial proceedings, such Grantor shall
permit, to the extent permitted by Applicable Law, the purchaser thereof
and its successors and its or their permitted assigns to take and use the
name of such Grantor and to carry on business under such name or any
variant or variants thereof and to use and employ any and all other trade
names and trademarks of such Grantor.
Section 6.03 Collateral Agent May File Proofs of Claim. In
case of the pendency of any Insolvency Proceeding relative to any Grantor or
the Collateral, the Collateral Agent (irrespective of whether any of the
outstanding Senior Debt Obligations shall then be due and payable) shall be
entitled and empowered (but not obligated), by intervention in such proceeding
or otherwise, (a) to file and prove a claim for the whole amount of the Senior
Debt Obligations owing and unpaid and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Collateral
Agent (including any claim for the reasonable compensation, disbursements and
advances of the Collateral Agent in its individual or trust capacity and its
agents and counsel) and of any other Creditor Parties allowed in such judicial
proceeding and (b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Creditor Party to make such payments to the Collateral Agent.
Section 6.04 Collateral Agent May Enforce Claims. All rights
of action and claims under this Agreement and the other Financing Documents
may be prosecuted and enforced by the Collateral Agent; provided that the
Collateral Agent is also hereby appointed as agent for the other Creditor
Parties for this and the other purposes of this Agreement and the other
Financing Documents, and the Collateral Agent shall take such action solely as
agent for the Creditor Parties. Enforcement Proceeds received by the
Collateral Agent in connection with any Event of Default shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of (a) the Collateral Agent, in its capacity as
Collateral Agent (including previously outstanding amounts in respect thereof)
and (b) its agents and counsel, be for the benefit of the other relevant
Creditor Parties and deposited into the Enforcement Proceeds Account for
application as provided in Section 6.06.
Section 6.05 Enforcement Proceeds Account. Upon the
occurrence and during the continuance of an Event of Default and the taking
any Enforcement Action, the Collateral Agent shall establish and thereafter
maintain an account (the "Enforcement Proceeds Account") for the purposes of
depositing therein any Enforcement Proceeds received in respect of the
Collateral. The Collateral Agent is hereby directed to deposit in, or credit
to, the Enforcement Proceeds Account, all Enforcement Proceeds. All
Enforcement Proceeds held in the Enforcement Proceeds Account shall be trust
funds held by the Collateral Agent for the benefit of the Secured Parties for
the purpose of making payments therefrom in accordance with Section 6.06.
Section 6.06 Application of Enforcement Proceeds. (a)
Proceeds on deposit in, or credited to, the Enforcement Proceeds Account shall
be applied as promptly as practicable by the Collateral Agent at the direction
of the Required Lenders, in the following order of priority:
first, pro rata to the payment of all reasonable fees, costs
and expenses hereunder and under any of the Mortgages (including legal
fees and expenses) and other similar amounts owed to the Collateral
Agent, the Depository Bank and the Mortgage Trustees in connection
with the execution and administration of their respective duties
hereunder or under any Mortgages and the taking of any Enforcement
Action;
second, pro rata to the payment of all reasonable fees,
costs, expenses (including legal fees and expenses) and any other
amounts payable to the Administrative Agent in connection with the
Administrative Agent's execution and administration of its duties
hereunder or under any other Financing Document to which it is a party
and the taking of any Enforcement Action;
third, pro rata to the payment of all Secured Obligations to
the Administrative Agent for further application in accordance with
the terms of the Credit Agreements; and
fourth, after payment in full of the Secured Obligations, to
the payment of the remainder, if any, to the applicable Grantor, its
successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
(b) The terms of this Section 6.06 shall apply solely to the
application of proceeds in the Enforcement Proceeds Account and shall in no
way affect, impair or limit the rights of the Creditor Parties otherwise
provided hereunder or in any other Financing Document.
ARTICLE VII
COLLATERAL AGENT
Section 7.01 Authorization and Action of the Collateral
Agent. Each Creditor Party (other than the Collateral Agent) hereby appoints
and authorizes the Collateral Agent to take such action as agent on its behalf
and to (a) execute and deliver all of the Financing Documents (other than this
Agreement) to which it is or is to be a party (including the Mortgages and the
Consents) delivered or to be delivered on or after the date hereof as
expressly contemplated by the Financing Documents; provided that any Financing
Document (including any Mortgages or Consents) to be delivered at any point
after the date hereof shall be in substantially the form of the relevant
Financing Document (including any Consent or Mortgage) delivered pursuant to
the terms of the Credit Agreement on or prior to the date hereof or the
Collateral Agent shall be directed by the Administrative Agent to execute and
deliver any such Financing Document (including any Mortgage or Consent) and
(b) exercise such powers and discretion under this Agreement and the other
Financing Documents to which the Collateral Agent is a party as are delegated
to the Collateral Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Financing Documents (including, without
limitation, enforcement or collection of the Secured Obligations), the
Collateral Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding upon all
Creditor Parties or, with respect to the investment of funds in the Prepayment
Account in Cash Equivalents in accordance with Section 4.03 only, the
instructions of the Company; provided that the Collateral Agent shall not be
required to take any action that exposes it to personal liability or that is
contrary to this Agreement or Applicable Law. The Collateral Agent agrees to
give as promptly as practicable to the Administrative Agent notice of each
notice given to it by the Company or any other Person pursuant to the terms of
this Agreement or any other Financing Document.
Section 7.02 Reliance. None of the Collateral Agent or the
Depository Bank nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Financing Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, each of the Collateral Agent and the Depository
Bank: (a) may consult with legal counsel (including counsel for any Grantor),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes
no warranty or representation to any other Creditor and shall not be
responsible to any other Creditor Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the
Financing Documents; (c) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions
of any Financing Document on the part of any Grantor or to inspect the
property (including the books and records) of any Grantor; (d) shall not be
responsible to any other Creditor Party for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported
to be created under or in connection with, any Financing Document or any other
instrument or document furnished pursuant thereto; and (e) shall incur no
liability under or in respect of any Financing Document by acting upon any
notice, consent, certificate or other instrument or writing believed by it to
be genuine and signed or sent by the proper party or parties.
Section 7.03 Citibank, CNAI and Affiliates. With respect to
its Commitment (if any), the Advances made by it (if any), any Senior Debt
Obligations owed to it (if any) and any Notes issued to it, Citibank and CNAI
shall have the same rights and powers under the Financing Documents as any
other Creditor Party and may exercise the same as though it were not an Agent;
and the terms "Creditor Party", "Creditor Parties", "Lender", "Lenders",
"Secured Party", and "Secured Parties" shall, unless otherwise expressly
indicated, include Citibank in its individual, and, agency capacities.
Citibank and CNAI and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Company, the Parent, any Affiliate thereof, any of their respective
Subsidiaries and any Person that may do business with or own securities of the
Company, the Parent, any Affiliate thereof or any such Subsidiary, all as if
Citibank, were not an Agent, and without any duty to account therefor to the
other Creditor Parties.
Section 7.04 Acceptance of Collateral. The Collateral Agent
has no duty to solicit the deposit of any Collateral with it by any Grantor or
other Person and agrees to accept all Collateral to be delivered to or held by
the Collateral Agent pursuant to the terms of this Agreement or any other
Collateral Document. The Collateral Agent shall, on behalf and for the benefit
of the Secured Parties, be the beneficiary and hold and safeguard any
Collateral delivered to it during the term of this Agreement or any other
Collateral Document as specified herein or therein and shall hold such
Collateral in accordance with the provisions of this Agreement or such other
Collateral Document, as the case may be; provided that the Collateral Agent
shall not be required to hold or safeguard the Collateral with a higher degree
of care than it holds and safeguards its own property.
Section 7.05 The Collateral Agent May Perform. If any
Grantor fails to perform any agreement contained herein, the Collateral Agent
may, but without any obligation to do so and without notice, itself perform,
or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by such Grantor under
Section 9.01.
Section 7.06 Duties. (a) The powers conferred on the
Collateral Agent hereunder are solely to protect the Secured Parties' interest
in the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not any Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which it accords its own property.
(b) Anything contained herein to the contrary
notwithstanding, the Collateral Agent may from time to time, when the
Collateral Agent deems it to be necessary, appoint one or more subagents
(each, a "Subagent") for the Collateral Agent hereunder with respect to all or
any part of the Collateral. In the event that the Collateral Agent so appoints
any Subagent with respect to any Collateral, (i) the assignment and pledge of
such Collateral and the security interest granted in such Collateral by each
Grantor hereunder shall be deemed for purposes of this Agreement to have been
made to such Subagent, in addition to the Collateral Agent, for the ratable
benefit of the Secured Parties, as security for the Secured Obligations of
such Grantor, (ii) such Subagent shall automatically be vested, in addition to
the Collateral Agent, with all rights, powers, privileges, interests and
remedies of the Collateral Agent hereunder with respect to such Collateral,
and (iii) the term "Collateral Agent", when used herein in relation to any
rights, powers, privileges, interests and remedies of the Collateral Agent
with respect to such Collateral, shall include such Subagent; provided that no
such Subagent shall be authorized to take any action with respect to any such
Collateral unless and except to the extent expressly authorized in writing by
the Collateral Agent.
(c) None of the Collateral Agent or the Depository Bank
shall be deemed to have knowledge of (i) the occurrence of any Default or
Event of Default (or if any such event would occur after giving effect to any
application of funds contemplated by any provision of this Agreement) unless
and until it has received written notice thereof from the Company or any other
Creditor Party or (ii) the existence, the content, or the terms and conditions
of, any other agreement, instrument or document, in each case, to which it is
not a party, whether or not referenced herein. Without prejudice to the
foregoing, none of the Collateral Agent or the Depository Bank shall be
attributed with any knowledge or information that any other department or
division of Citibank or any of its Affiliates may have from time to time.
(d) The parties hereto agree that any of the
acknowledgements, consents, agreements and statements made by the Collateral
Agent in respect of the Collateral in the Financing Documents are being made
in its capacity as directed agent for, and on behalf and at the request of,
the Secured Parties and that such acknowledgements, consents, and agreements
are being made without independent investigation and without liability as a
principal. The parties hereto understand and agree that, notwithstanding any
other term of the Financing Documents, in making any determinations, taking
actions, granting consents, refraining from taking actions, withholding
consents contemplated in the Financing Documents, the Collateral Agent is
authorized, and should be expected, to consult with legal and other advisors
and with the other Creditor Parties and their respective advisors. None of the
Collateral Agent or the Depository Bank shall incur any liability for any
determination made or instruction given by the Required Lenders and their
respective advisors. The Collateral Agent assumes no responsibility and shall
not be deemed to have assumed any responsibility, either express or implied,
to monitor the validity or sufficiency of the Collateral. The Creditor Parties
further acknowledge and agree that the provisions of the Financing Documents
which empower and/or entitle the Collateral Agent to take action, to refrain
to take action, or to request the taking or refraining from taking action,
with respect to the Collateral or otherwise shall not impose, and shall not be
deemed to impose, on the Collateral Agent an obligation to act independently
from the instructions of the Creditor Parties or to monitor the contingencies
that may give rise to the exercise of such power or entitlement.
Section 7.07 Liability. None of the Depository Bank or the
Collateral Agent shall be liable for any error of judgment or for any act done
or omitted to be done by it in good faith or for any mistake of fact or law,
or for anything it may do or refrain from doing, except to the extent that any
such liability is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted directly and primarily from its gross
negligence or willful misconduct.
Section 7.08 Successor Collateral Agent and Depository Bank.
(a) The Required Lenders may remove the Collateral Agent or the Depository
Bank at any time by giving to the Collateral Agent or the Depository Bank (as
applicable) 30 days' prior written notice of removal. The Collateral Agent and
the Depository Bank may resign at any time by giving to the Administrative
Agent and the Company 15 days' prior written notice of resignation.
(b) Within 30 days after giving the foregoing notice of
removal to the Collateral Agent or the Depository Bank (as applicable) or
within 15 days after receiving the foregoing notice of resignation from the
Collateral Agent or the Depository Bank (as applicable) the Required Lenders
shall appoint a successor collateral agent or depository bank (as applicable)
and give notice of such successor collateral agent or depository bank (as
applicable) to the Collateral Agent or the Depository Bank (as applicable). If
no successor collateral agent or depository bank (as applicable) shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 15 days after the retiring Collateral Agent's or
Depository Bank's (as applicable) giving of notice of resignation or 30 days
after the Required Lenders' removal of the retiring Collateral Agent or
Depository Bank (as applicable), then the retiring Collateral Agent or
Depository Bank (as applicable) may on behalf of the other Secured Parties
apply to a court of competent jurisdiction for appropriate relief or appoint a
successor collateral agent or depository bank (as applicable), in each case,
which shall be a Creditor Party; provided that if no Creditor Party is willing
to become the successor collateral agent or depository bank (as applicable),
then such successor Collateral Agent or Depository Bank (as applicable) shall
be a commercial bank (or any Affiliate thereof) organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as the Collateral Agent or the Depository Bank (as applicable)
hereunder by a successor Collateral Agent or Depository Bank (as applicable)
such successor Collateral Agent or Depository Bank (as applicable) shall
thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Collateral Agent or
Depository Bank (as applicable) and the retiring Collateral Agent or
Depository Bank (as applicable) shall be discharged from its duties and
obligations under this Agreement and the other Financing Documents. After any
retiring Collateral Agent's or Depository Bank's resignation or removal
hereunder as the Collateral Agent or the Depository Bank (as applicable) the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Collateral Agent or the
Depository Bank (as applicable) under this Agreement or any other Financing
Document.
(c) Upon receipt of notice of the identity of the successor
collateral agent, the Collateral Agent shall either deliver the funds on
deposit in the Prepayment Account and all other Collateral then held hereunder
to the successor collateral agent, less the Collateral Agent's fees, costs,
expenses and the value of other obligations owed to the Collateral Agent
hereunder, or hold such funds (or any portion thereof) and such other
Collateral (if any) pending distribution, until all such fees, costs and
expenses or the value of other obligations are paid to it.
Section 7.09 Suits, Etc., Brought by the Collateral Agent.
In any suit, proceeding or action brought by the Collateral Agent in its
individual capacity (and in its capacity as agent hereunder) under or with
respect to the Collateral for any sum owing under this Agreement or any other
Financing Document, or to enforce any provisions hereof or thereof, the
Company will save, indemnify and keep the Collateral Agent in its individual
capacity (and in its capacity as trustee or agent hereunder) harmless from and
against all expense, loss or damage (including reasonable attorney's fees and
documented expenses) suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction of liability whatsoever of the obligee thereunder,
arising out of a breach by any Grantor of any of its obligations hereunder or
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to, or in favor of, such obligee or its successors from the
Company, and all such obligations of the Company shall be and remain
enforceable against and only against the Company, and shall not be enforceable
against the Collateral Agent (in its individual capacity) or any other
Creditor Party.
Section 7.10 Compensation of the Collateral Agent and the
Depository Bank. Each of the Collateral Agent and the Depository Bank shall be
entitled to reasonable compensation as may be agreed from time to time between
the Company and the Collateral Agent or the Depository Bank, as the case may
be, for all services rendered under this Agreement and the other Financing
Documents to which it is a party and such compensation, together with
reimbursement of the Collateral Agent or the Depository Bank, as the case may
be, in its individual capacity (and its agency capacity) for its advances,
disbursements and reasonable expenses in connection with the performance of
the trust and activities provided for herein (including the reasonable fees
and expenses of its agents and of counsel, accountants and other experts),
shall be paid in full by the Company promptly following demand from the
Collateral Agent or the Depository Bank, as the case may be, from time to time
as services are rendered and expenses are incurred. All such payments made by
the Company to the Collateral Agent or the Depository Bank shall be made free
and clear of all present and future income, stamp or other taxes, levies and
withholdings imposed, assessed, levied or collected by the government of the
United States of America or any political subdivision or taxing authority
thereof. Except as otherwise expressly provided herein, no Creditor Party
shall have any liability for any fees, expenses or disbursements of either of
the Collateral Agent or the Depository Bank. Any reasonable and documented
fees, compensation, indemnity amounts (unless such indemnity amounts are
subject to dispute among the parties hereto) or expenses of the Collateral
Agent or the Depository Bank (in its individual or agency capacity), or its
counsel not paid as provided for herein may be taken from any Collateral held
by the Collateral Agent hereunder, subject to the provisions of Article IX.
Upon its resignation or removal, each of the Collateral Agent and the
Depository Bank shall be entitled to the prompt payment by the Company of its
compensation and indemnification for the services rendered under this
Agreement and the other Financing Documents to which it is a party, and to
reimbursement of all reasonable out-of-pocket expenses up to the date of
resignation or removal (including the reasonable fees and expenses of counsel,
if any) incurred in connection with the performance of such services. The
agreements in this Section 7.10 shall survive any resignation or removal of
the Collateral Agent or the Depository Bank, as the case may be, and the
termination of the other provisions of this Agreement.
Section 7.11 Taxes, Stamp and Other Similar Taxes. (a) The
Company shall pay or reimburse the Collateral Agent and the Depository Bank
upon request for any transfer taxes or other taxes relating to or incurred in
connection with the Collateral and shall indemnify and hold harmless the
Collateral Agent and the Depository Bank from any amounts that it is obligated
to pay in the way of such taxes. Any payments of income from the Collateral
shall be subject to withholding regulations then in force with respect to
United States federal taxation. Upon the Collateral Agent's request, the
Company and each Lender will promptly provide the Collateral Agent and the
Depository Bank with the appropriate Form W-9 for tax identification number
certifications, or Form W-8BEN, for non-resident alien certifications. The
Collateral Agent and the Depository Bank shall be responsible only for income
reporting to the Internal Revenue Service with respect to income earned on the
Collateral. This Section 7.11 shall survive the termination of this Agreement
and the resignation or removal of the Collateral Agent or the Depository Bank.
(b) The Company agrees to indemnify and hold harmless each
of the Collateral Agent and the Depository Bank (in its individual and agency
capacity), and each other Creditor Party from, and shall reimburse each of the
Collateral Agent and the Depository Bank (in its individual or agency
capacity) and each other Creditor Party for any present or future claim for
liability for any stamp or other similar tax and any penalties or interest
with respect thereto, which may be assessed, levied or collected by any
jurisdiction in connection with the Financing Documents, and the Collateral
created hereunder or under any other Collateral Document or the attachment or
perfection of the security interest granted to the Collateral Agent in any
Collateral. The obligations of the Company under this Section 7.11 shall
survive the resignation or removal of the Collateral Agent or the termination
of the other provisions of this Agreement.
Section 7.12 Limitation on Duties in Respect of Collateral.
Beyond its express duties set forth in this Agreement or in the other
Financing Documents to which it is a party as to the custody thereof, and the
accounting to the Grantors and the Secured Parties for moneys received
hereunder, neither the Depository Bank nor the Collateral Agent shall have any
duty (implied or otherwise) to the Grantors or the Secured Parties with
respect to any Collateral in its possession or control or in the possession or
control of its agent or nominee, any income thereon, or the priority or
preservation of rights against prior parties or any other rights pertaining
thereto. To the extent, however, that the Collateral Agent or the Depository
Bank or an agent or nominee of either of them maintains possession or control
of any of the Collateral or the Collateral Documents at any office of the
Collateral Agent or the Depository Bank, the Collateral Agent or the
Depository Bank shall, or shall instruct such agent or nominee to, grant the
Grantors and the other Secured Parties reasonable access to such Collateral
(other than, except to the extent permitted pursuant to Article IV, the
Account Collateral, the Prepayment Account and all funds and financial assets
(including security entitlements and Cash Equivalents) from time to time on
deposit in, or credited to, any thereof) or Collateral Documents as they
previously notified the Collateral Agent to be required for the conduct of
their businesses, except, in the case of the Grantors, if and to the extent
that the Collateral Agent shall have taken Enforcement Action.
Section 7.13 Right to Initiate Judicial Proceedings, Etc.
Upon the occurrence and during the continuance of an Event of Default (a) the
Collateral Agent shall have the right and power to institute and maintain such
suits and proceedings as it may deem appropriate to protect and enforce the
rights vested in the Collateral Agent by this Agreement and the other
Financing Documents; and (b) the Collateral Agent may, either after entry or
without entry proceed by suit or suits at law or in equity to enforce such
rights and to foreclose upon the Collateral and to realize upon all or, from
time to time, any of the property pledged hereunder for the benefit of the
Secured Parties under the judgment or decree of a court of competent
jurisdiction.
Section 7.14 Exculpatory Provisions. (a) Neither the
Collateral Agent nor the Depository Bank makes any representation as to the
value or condition of the security interests created hereunder or any part
thereof, or as to the title of any Grantor or as to the rights and interests
granted or the security afforded by this Agreement or any other Financing
Document, or as to the validity, execution (except by itself), enforceability,
legality or sufficiency of this Agreement, any other Financing Document, the
Secured Obligations and neither the Collateral Agent (in its individual and
agency capacities) nor the Depository Bank shall incur any liability or
responsibility in respect of any such matters.
(b) Except as expressly provided for or referenced in any
Financing Document to which it is a party, none of the Collateral Agent or the
Depository Bank shall be responsible for or under, nor chargeable with
knowledge of the existence, the content, or the terms and conditions of, any
other agreement, instrument or document. The Collateral Agent and the
Depository Bank shall not be attributed with any knowledge or information that
any other department or division of Citibank or any of Citibank's Affiliates
may have from time to time.
(c) Without prejudice to Section 4.05(d), all notices,
certifications, approvals, directions, instructions or other communication
given to the Collateral Agent with respect to, or otherwise relating to, this
Agreement or the other Financing Documents, in each case, by any Creditor
Party or the Administrative Agent (whether on its own behalf or on behalf of
the Secured Parties (or any class thereof)) shall be given in writing, signed
by an Authorized Signatory of such Person and, except as otherwise expressly
required under the Financing Documents, neither the Collateral Agent nor the
Depository Bank shall be required to take any action under any Financing
Document unless it has received such written instructions.
Section 7.15 Treatment of Creditor Parties. (a) The
Collateral Agent may treat the holders of Senior Debt Obligations as the
absolute owners thereof for all purposes under this Agreement and the other
Financing Documents unless it shall receive notice to the contrary from any
Creditor Party or the Administrative Agent.
(b) Any Person that shall be designated as the duly
authorized representative of one or more of the Grantor or Creditor Parties to
act as such in connection with any matters pertaining to this Agreement, any
other Financing Document or the Collateral shall present to the Collateral
Agent such documents, including opinions of counsel, as the Collateral Agent
may reasonably request, in order to demonstrate to the Collateral Agent the
authority of such Person to act as the representative of such Grantors or
Creditor Parties.
Section 7.16 Miscellaneous. (a) The Collateral Agent shall
have the right at any time to seek instructions concerning the administration
of its duties and obligations hereunder or any other Financing Documents from
the Required Lenders or any court of competent jurisdiction. In the event
there is any disagreement between the other parties to this Agreement and the
terms of this Agreement or any other applicable Financing Document do not
unambiguously mandate the action the Collateral Agent is to take or not to
take in connection therewith under the circumstances then existing, or the
Collateral Agent is in doubt as to what action it is required to take or not
to take, the Collateral Agent shall be entitled to refrain from taking any
action until directed otherwise in writing by a request signed jointly by the
Required Lenders or by order of a court of competent jurisdiction.
(b) None of the provisions of this Agreement or the other
Financing Documents shall be construed to require the Collateral Agent or the
Depository Bank to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder
or thereunder. Neither the Collateral Agent nor the Depository Bank shall be
under any obligation to exercise any of the rights or powers vested in it by
this Agreement or the other Financing Documents, at the request or direction
of the Company, any other Grantor or any Creditor Party, (i) if any action it
has been requested or directed to take would be contrary to Applicable Law, or
(ii) unless such Agent shall have been offered security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction
(including interest thereon from the time incurred until reimbursed).
Section 7.17 Indemnification. Each of the Lenders agrees to
indemnify the Collateral Agent and the Depository Bank (to the extent not
promptly reimbursed by the Company), ratably according to the respective
amounts of the Senior Debt Obligations owed to such Creditor Party from time
to time, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind of nature whatsoever that may be imposed on,
incurred by, or asserted against the Collateral Agent or Depository Bank (as
applicable) in any way relating to or arising out of this Agreement or any
other Financing Document to which it is a party or any action taken or omitted
by the Collateral Agent or Depository Bank (as applicable) under this
Agreement or any other Financing Document to which it is a party
(collectively, the "Indemnified Costs"); provided that no such Creditor Party
shall be liable for any portion of the Indemnified Costs found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
directly and primarily from the Collateral Agent's or Depository Bank's (as
applicable) gross negligence or willful misconduct. Without limiting the
foregoing, each of the Lenders agrees to reimburse the Collateral Agent or
Depository Bank (as applicable) promptly upon demand for its ratable share of
any out-of-pocket expenses (including reasonable counsel fees and
disbursements) incurred by the Collateral Agent or Depository Bank (as
applicable) in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement or any other Financing
Document, to the extent that the Collateral Agent or the Depository Bank (as
applicable) is not reimbursed for such expenses by the Company. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.17 shall apply.
Section 7.18 Publicity. No printed or other material in any
language, including prospectuses, notices, reports, and promotional material
which mentions "Citibank, N.A." by name or the rights, powers, or duties of
the Collateral Agent or the Depository Bank under this Agreement or any other
Financing Document shall be issued by any of the parties hereto, or on such a
party's behalf, without the prior written consent of the Collateral Agent or
the Depository Bank, as the case may be.
Section 7.19 Merger; Consolidation. Any corporation into
which the Collateral Agent or the Depository Bank may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Collateral Agent or the
Depository Bank shall be a party, or any corporation succeeding to the
business of the Collateral Agent or the Depository Bank shall be the successor
of the Collateral Agent or the Depository Bank, as the case may be, hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an
instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
ARTICLE VIII
OTHER AGREEMENTS
[INTENTIONALLY OMITTED]
ARTICLE IX
MISCELLANEOUS
Section 9.01 Indemnity and Expenses. (a) Each Grantor agrees
to indemnify, defend and save and hold harmless each Creditor Party and each
of their Affiliates and their respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses
(including reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or resulting from the Financing Documents (including
enforcement of this Agreement), except to the extent such claim, damage, loss,
liability or expense if found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted directly and primarily from such
Indemnified Party's gross negligence or willful misconduct.
(b) Each Grantor will upon demand pay to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, that the
Collateral Agent may incur in connection with (i) the administration of any
Financing Document to which it is a party, (ii) the custody, preservation, use
or operation of, or the sale of, collection from or other realization upon,
any of the Collateral of such Grantor, (iii) the exercise or enforcement of
any of the rights of the Collateral Agent or any other Creditor Party
hereunder or (iv) the failure by such Grantor to perform or observe any of the
provisions hereof.
(c) The indemnities provided by the Grantors pursuant to
this Agreement shall survive the expiration, cancellation, termination or
modification of this Agreement or the other Financing Documents, the
resignation or removal of the Collateral Agent, and the provision of any
subsequent or additional indemnity by any Person.
Section 9.02 Amendments; Waivers, Etc. No amendment or
waiver of any provision of this Agreement, and no consent to any departure by
any Grantor herefrom, shall in any event be effective unless the same shall be
in writing and signed by the Collateral Agent in accordance with Section
9.01(b) of the Credit Agreement, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of the Collateral Agent or any other Secured
Party to exercise, and no delay in exercising any right hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the expense of
any other right.
Section 9.03 Subordination. (a) Each Grantor hereby
subordinates any and all debts, liabilities and other Obligations owed to such
Grantor by each other Grantor (the "Subordinated Obligations") to the Senior
Debt Obligations to the extent and in the manner hereinafter set forth in this
Section 9.03.
(b) Except during the continuance of a Default (including
the commencement and continuation of any Insolvency Proceeding relating to any
other Grantor), each Grantor may receive regularly scheduled payments from any
other Grantor on account of the Subordinated Obligations. After the occurrence
and during the continuance of any Default (including the commencement and
continuation of any Insolvency Proceeding relating to any other Grantor),
however, unless the Required Lenders otherwise agree, no Grantor shall demand,
accept or take any action to collect any payment on account of the
Subordinated Obligations.
(c) In any Insolvency Proceeding relating to any other
Grantor, each Grantor agrees that each Creditor Party shall be entitled to
receive payment in full in cash of all Senior Debt Obligations owed to such
Creditor Party (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("Post Petition Interest"))
before such Grantor receives payment of any Subordinated Obligations.
(d) After the occurrence and during the continuance of any
Default (including the commencement and continuation of any Insolvency
Proceeding relating to any other Grantor), each Grantor shall, if the
Collateral Agent (acting at the direction of the Administrative Agent) so
requests, collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for the Creditor Parties and deliver such payments to
the Collateral Agent on account of the Senior Debt Obligations owed to the
Creditor Parties (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without reducing
or affecting in any manner the liability of such Grantor under the other
provisions of this Agreement or any other Financing Document to which it is a
party.
(e) After the occurrence and during the continuance of any
Default (including the commencement and continuation of any Insolvency
Proceeding relating to any other Grantor), the Collateral Agent is authorized
and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Grantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Senior Debt Obligations (including any and all Post Petition Interest),
and (ii) to require each Grantor (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Collateral Agent for application to the
Secured Obligations (including any and all Post Petition Interest).
Section 9.04 Additional Grantors. If at any time any Person
is required to execute a security agreement supplement pursuant to the terms
of the Financing Document, such Person shall execute and deliver a security
agreement supplement in the form of Exhibit A hereto (each a "Security
Agreement Supplement"), and thereafter (a) such Person shall be referred to as
an "Additional Grantor" and shall be and become a Grantor hereunder, and each
reference in this Agreement and the other Financing Documents to "Grantor"
shall also mean and be a reference to such Additional Grantor, and each
reference in this Agreement and the other Financing Documents to "Collateral"
shall also mean and be a reference to the Collateral of such Additional
Grantor, and (b) the supplemental schedules attached to each Security
Agreement Supplement shall be incorporated into and become a part of and
supplement Schedules 3.01(a), 3.01(d), 3.01(f), 3.01(g), 5.01(h) and A-1,
respectively, hereto, and the Collateral Agent may attach such supplemental
schedules to such Schedules; and each reference to such Schedules shall mean
and be a reference to such Schedules as supplemented pursuant to each Security
Agreement Supplement.
Section 9.05 Security Interest Absolute and Waivers. (a) The
Obligations of each Grantor under or in respect of this Agreement or any other
Collateral Document to which such Grantor is a party are independent of the
Senior Debt Obligations or any other Obligations of any other Grantor under or
in respect of the Financing Documents, and a separate action or actions may be
brought and prosecuted against each Grantor to enforce this Agreement or any
other Collateral Document to which such Grantor is a party, irrespective of
whether any action is brought against the Company or any other Grantor or
whether the Company or any other Grantor is joined in any such action or
actions. All rights of the Collateral Agent and the other Secured Parties and
the pledge, assignment and security interest hereunder, and all Obligations of
each Grantor hereunder, shall be irrevocable, absolute and unconditional
irrespective of, and each Grantor hereby irrevocably waives (to the maximum
extent permitted by applicable law) any defenses it may now have or may
hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Financing
Document or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Senior Debt Obligations or any
other Obligations of any Grantor under or in respect of the Financing
Documents or any other amendment or waiver of or any consent to any
departure from any Financing Document, including any increase in the
Senior Debt Obligations resulting from the extension of additional credit
to any Grantor or any of its Subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment
or waiver of or consent to departure from any guaranty, for all or any of
the Senior Debt Obligations;
(iv) any manner of application of any Collateral or any
other collateral, or proceeds thereof, to all or any of the Senior Debt
Obligations, or any manner of sale or other disposition of any Collateral
or any other collateral for all or any of the Senior Debt Obligations or
any other Obligations of any Grantor under or in respect of the Financing
Documents or any other assets of any Grantor or any of its Subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of any Grantor or any of its
Subsidiaries;
(vi) any failure of any Secured Party to disclose to any
Grantor any information relating to the business, condition (financial or
otherwise), operations, performance, assets, nature of assets,
liabilities or prospects of any other Grantor now or hereafter known to
such Secured Party (each Grantor waiving any duty on the part of the
Secured Parties to disclose such information);
(vii) the failure of any other Person to execute or deliver
this Agreement or any other Collateral Document, guaranty or agreement or
the release or reduction of liability of any Grantor (other than the
complete release of the Company) or other grantor or surety with respect
to the Senior Debt Obligations; or
(viii) any other circumstance (including any statute of
limitations) or any existence of or reliance on any representation by any
Secured Party that might otherwise constitute a defense available to, or
a discharge of, such Grantor or any other Grantor or a third party
grantor of a security interest.
(b) This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Secured Obligations is rescinded or must otherwise be returned by any Secured
Party or by any other Person upon the insolvency, bankruptcy or reorganization
of any Grantor or otherwise, all as though such payment had not been made.
(c) Each Grantor hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Secured Obligations
and this Agreement or any other Collateral Document to which such Grantor is a
party and any requirement that any Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take
any action against any Grantor or any other Person or any Collateral.
(d) Each Grantor hereby unconditionally and irrevocably
waives any right to revoke this Agreement or any other Collateral Document to
which such Grantor is a party and acknowledges that this Agreement or any
other Collateral Document to which such Grantor is a party is continuing in
nature and applies to all Secured Obligations, whether existing now or in the
future.
(e) Each Grantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Grantor or other
rights of such Grantor to proceed against any of the other Grantors, any other
guarantor or any other Person or any Collateral and (ii) any defense based on
any right of set-off or counterclaim against or in respect of the Obligations
of such Grantor hereunder.
(f) Each Grantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Grantor and without affecting the
liability of such Grantor under this Agreement or any other Collateral
Document to which such Grantor is a party, foreclose under any Mortgage by
nonjudicial sale (subject to Applicable Law), and each Grantor hereby waives
any defense to the recovery by the Collateral Agent and the other Secured
Parties against such Grantor of any deficiency after such nonjudicial sale and
any defense or benefits that may be afforded by Applicable Law.
(g) Each Grantor hereby unconditionally and irrevocably
waives any duty on the part of any Secured Party to disclose to such Grantor
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Grantor or any of its Subsidiaries now or hereafter known by such Secured
Party.
(h) Each Grantor and each of the Creditor Parties confirms
that it is the intention of all such Persons that this Agreement, the other
Collateral Documents and the Obligations of each Grantor hereunder or
thereunder do not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Agreement, any other Collateral Document and the
Obligations of each Grantor hereunder or thereunder or in connection with any
Insolvency Proceeding in respect of any Grantor. To effectuate the foregoing
intention, the Collateral Agent, the other Secured Parties and the Grantors
hereby irrevocably agree that the Obligations of each Grantor under this
Agreement and the other Collateral Documents at any time shall be limited to
the maximum amount as will result in the Obligations of such Grantor under
this Agreement and the other Collateral Documents not constituting a
fraudulent transfer or conveyance.
(i) Each Grantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Financing Documents and that the waivers set forth in this
Section 9.05 are knowingly made in contemplation of such benefits.
Section 9.06 Notices; Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including
telecopier communication) and mailed, telecopied or otherwise delivered, in
the case of any Grantor or any Agent, addressed to it at its address specified
on the signature pages hereto; or, as to any party, at such other address as
shall be designated by such party in a written notice to the other parties.
All such notices and other communications shall, when mailed, telecopied or
otherwise delivered, be effective when deposited in the mails, telecopied or
otherwise delivered (or confirmed by a signed receipt), respectively,
addressed as aforesaid; except that notices and other communications to the
Collateral Agent shall not be effective until received by it. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or any Exhibit, Schedule or Appendix hereto shall
be effective as delivery of an original executed counterpart thereof.
(b) The Collateral Agent shall promptly forward to the
Administrative Agent copies of any notice, certificate, report, instrument,
demand, request, direction, instruction, waiver, receipt, consent or other
document that it receives from any other party hereto or to any other
Financing Document to which it is a party.
Section 9.07 Continuing Security Interest; Assignments Under
the Financing Documents. This Agreement and each other Collateral Document
shall create a continuing security interest in the Collateral and shall (a)
remain in full force and effect until the latest of (i) the payment in full in
cash of the Senior Debt Obligations, (ii) the Maturity Date and (iii) the
termination or expiration of all Commitments, (b) be binding upon each
Grantor, its successors and assigns and (c) inure, together with the rights
and remedies of the Collateral Agent hereunder, to the benefit of the Secured
Parties and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Creditor Party may
assign, sell or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including all or any portion of its
Commitment, the Advances owing to it and the Note or Notes, if any, held by
it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Creditor Party herein
or otherwise, in each case as provided in the Credit Agreement.
Section 9.08 Release and Termination. (a) All Collateral
sold, transferred or otherwise disposed of in accordance with the terms of the
Financing Documents (including pursuant to a waiver or amendment of the terms
thereof) shall be sold, transferred or otherwise disposed of free and clear of
the assignment and security interest granted hereby; provided that at the time
of such sale, transfer or other disposition, no Default shall have occurred
and be continuing. Upon any such sale, lease, transfer or other disposition of
any item of Collateral of any Grantor in accordance with the terms of the
Financing Documents (other than sales of Inventory in the ordinary course of
business), the Collateral Agent will, at such Grantor's expense, execute and
deliver to such Grantor, or to such Persons as such Grantor shall reasonably
designate, such UCC termination statements and other similar documents as such
Grantor shall reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted hereby or under
any other Collateral Document; provided that (A) at the time of such request
and such release no Default shall have occurred and be continuing, (B) such
Grantor shall have delivered to the Collateral Agent, at least five Business
Days prior to the date of the proposed release, a written request for release
describing the item of Collateral and the terms of the sale, lease, transfer
or other disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a form of release for
execution by the Collateral Agent and a certificate of such Grantor to the
effect that the transaction is in compliance with the Financing Documents and
as to such other matters as the Collateral Agent may request and (C) the
proceeds of any such sale, lease, transfer or other disposition required to be
applied, or any payment to be made in connection therewith, in accordance with
Section 2.06 of the Credit Agreement shall, to the extent so required, be paid
or made to, or in accordance with the instructions of, the Collateral Agent
when and as required under Section 2.06 of the Credit Agreement. Upon the
release of any item of Collateral from the security interest granted hereby
pursuant to this Section 9.08(a), any representation, warranty or covenant
contained herein relating to such Collateral shall no longer be deemed to be
made with respect to such Collateral (except to the extent that any such
representation, warranty or covenant made prior to such release would be
deemed to survive the termination of this Agreement pursuant to Section 9.19).
(b) Upon the latest of (i) the payment in full in cash of
the Senior Debt Obligations, (ii) the Maturity Date and (iii) the termination
or expiration of all Commitments, the pledge and security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Grantor. Upon any such termination, the Collateral Agent will, at
the applicable Grantor's expense, execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such
termination.
Section 9.09 Execution in Counterparts. This Agreement may
be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
a signature page to this Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this Agreement.
Section 9.10 Severability. If any provision of this
Agreement shall be invalid, illegal or unenforceable, then to the extent
permitted by law, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 9.11 Integration. This Agreement represents the
agreement of the parties hereto with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by any
party relative to subject matter hereof not expressly set forth or referred to
herein or in the other Financing Documents.
Section 9.12 No Partnership. Nothing contained in this
Agreement and no action by any Creditor Party is intended to constitute or
shall be deemed to constitute the Creditor Parties (or any of them) a
partnership, association, joint venture or other entity.
Section 9.13 No Reliance. No Creditor Party has relied on
any representation or warranty of any other Creditor Party with respect to
this Agreement and the transactions contemplated hereunder unless such
representation or warranty has been set forth expressly in this Agreement.
Section 9.14 Third Party Beneficiaries. All undertakings,
agreements, representations and warranties contained in this Agreement and the
other Collateral Documents are solely for the benefit of the Creditor Parties
and their respective successors and permitted assigns, and (a) there are no
other parties (including any Affiliates of any Grantor) who are intended to be
benefited in any way by this Agreement and the other Collateral Documents and
(b) nothing herein shall give the Company, any other Grantor or any of their
respective Affiliates or any other Person (other than a Creditor Party) any
benefit or any legal or equitable right or remedy under this Agreement or any
other Collateral Document. The existence of this Agreement and the other
Collateral Documents shall not commit or obligate the Creditor Parties to make
any Advances or consummate any of the other transactions contemplated by the
Financing Documents.
Section 9.15 No Impairment. Nothing in this Agreement is
intended or shall be construed to impair, diminish or otherwise adversely
affect any other rights the Creditor Parties may have or may obtain against
the Company, any other Grantor or any other Person.
Section 9.16 Equitable Remedies. Each party to this
Agreement acknowledges that the breach by it of any of the provisions of this
Agreement is likely to cause irreparable damage to the other party. Therefore,
the relief to which any party shall be entitled in the event of any such
breach or threatened breach shall include, but not be limited to, a mandatory
injunction for specific performance, injunctive or other judicial relief to
prevent a violation of any of the provisions of this Agreement, damages and
any other relief to which it may be entitled at law or in equity.
Section 9.17 Remedies. Other than as stated expressly
herein, no remedy herein conferred upon the Collateral Agent or any other
Creditor Party is intended to be exclusive of any other remedy and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or the other Financing Documents, or now or
hereafter existing at law or in equity or by statute or otherwise.
Section 9.18 Limitations. (a) The obligations, liabilities
or responsibilities of any party hereunder shall be limited to those
obligations, liabilities or responsibilities expressly set forth and
attributed to such party pursuant to this Agreement or otherwise applicable
under Applicable Law.
(b) In no event shall any Indemnified Party be liable for,
and each of the Grantors hereby agrees not to assert any claim against any
Indemnified Party, on any theory of liability, for consequential, incidental,
indirect, punitive or special damages arising out of or otherwise relating to
the Notes, this Agreement, the other Financing Documents, any of the
transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Advances.
Section 9.19 Survival. Notwithstanding anything in this
Agreement to the contrary, Sections 7.10, 7.11, 7.17, 9.01, 9.19, 9.20, 9.21,
9.22 and 9.23 shall survive any termination of this Agreement. In addition,
each representation and warranty made or deemed to be made hereunder shall
survive the making of such representation and warranty, and no Creditor Party
shall be deemed to have waived, by reason of making any Advance or acceptance
of any Note or making any payment pursuant thereto, any Default that may arise
by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that such Creditor Party may have had notice or
knowledge or reason to believe that such representation or warranty was false
or misleading at the time such Advance was made or such Note was issued.
Section 9.20 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9.21 The Mortgages. In the event that any of the
Collateral hereunder is also subject to a valid and enforceable Lien under the
terms of any Mortgage and the terms of such Mortgage are inconsistent with the
terms of this Agreement, then with respect to such Collateral, the terms of
such Mortgage shall be controlling in the case of fixtures and real estate
leases, letting and licenses of, and contracts and agreements relating to the
lease of, real property, and the terms of this Agreement shall be controlling
in the case of all other Collateral.
Section 9.22 Jurisdiction, Etc. (a) Each of the parties
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or Federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any of the other Financing Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the fullest extent permitted by 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 shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of
the other Financing Documents in the courts of any jurisdiction.
(b) Each of the parties irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or any
of the other Financing Documents to which it is a party in any New York State
or Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court and agrees not to
plead or claim, any right of immunity from legal action, suit or proceeding,
from setoff or counterclaim, from the jurisdiction of any court, from service
of process, from attachment upon or prior to judgment, from attachment in aid
of execution or judgment, from execution of judgment, or from any other legal
process or proceeding for the giving of any relief or for the enforcement of
any judgment, and consents to such relief and enforcement against it, its
assets and its revenues in any jurisdiction, in each case with respect to any
matter arising out of, or in connection with, this Agreement. Each of the
parties hereto waives personal service of process and consents to service of
process by certified or registered mail, return receipt requested, directed to
it at the address last specified for notices hereunder, and such service shall
be deemed completed ten days after the same is so mailed.
Section 9.23 WAIVER OF JURY TRIAL. EACH OF THE PARTIES
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE OTHER FINANCING DOCUMENTS OR THE
ACTIONS OF ANY GRANTOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
ALLEGHENY ENERGY SUPPLY COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ALLEGHENY ENERGY SUPPLY CAPITAL, LLC,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ALLEGHENY ENERGY SUPPLY DEVELOPMENT
SERVICES, LLC, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
ACADIA BAY ENERGY COMPANY, LLC, as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇▇ ENERGY COMPANY OF VIRGINIA, LLC,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
LAKE ACQUISITION COMPANY, L.L.C.,
as Grantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By: /s/ Caesar W. Wyszmonski
------------------------
Name: Caesar W. Wyszmonski
Title: Vice President
CITIBANK, N.A., as Collateral Agent
and Depository Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions...................................................................................1
Section 1.02 Principles of Interpretation..................................................................2
ARTICLE II
SECURED OBLIGATIONS
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Grantors................................................3
ARTICLE IV
PREPAYMENT ACCOUNT
Section 4.01 Creation of Prepayment Account; Termination of Recovery Event Proceeds Account................5
Section 4.02 Prepayment Account............................................................................6
Section 4.03 Investment of Funds in Prepayment Account.....................................................6
Section 4.04 Transfers from Prepayment Account During the Continuance of an Event of Default...............8
Section 4.05 Reports, Certifications and Instructions......................................................8
Section 4.06 Depository Bank Undertakings..................................................................9
Section 4.07 Controlled Accounts..........................................................................11
Section 4.08 Force Majeure................................................................................12
Section 4.09 Clearing Agency..............................................................................12
Section 4.10 Return of Funds..............................................................................12
ARTICLE V
SECURITY INTERESTS
Section 5.01 Grant of Security............................................................................12
Section 5.02 Security for Obligations.....................................................................17
Section 5.03 Delivery and Control of Security Collateral and Account Collateral...........................17
Section 5.04 Further Assurances; Etc......................................................................17
Section 5.05 As to the Assigned Agreements................................................................19
Section 5.06 Grantors Remain Liable.......................................................................19
Section 5.07 Additional Equity Interests..................................................................19
Section 5.08 Maintaining Electronic Chattel Paper, Transferable Records and
Letter-of-Credit Rights and Giving Notice of Commercial Tort Claims..........................20
Section 5.09 Equipment and Inventory......................................................................20
Section 5.10 Insurance....................................................................................20
Section 5.11 Post-Closing Changes; Bailees; Collections on Assigned Agreements
Receivables and Related Contracts............................................................21
Section 5.12 Intellectual Property Collateral.............................................................22
Section 5.13 Letter-of-Credit Rights......................................................................23
Section 5.14 Voting Rights, Dividends, Etc................................................................23
Section 5.15 The Collateral Agent Appointed Attorney-in-Fact..............................................24
ARTICLE VI
REMEDIES AND ENFORCEMENT
Section 6.01 Remedies and Enforcement Action..............................................................25
Section 6.02 Sale; Incidents of Sale......................................................................25
Section 6.03 Collateral Agent May File Proofs of Claim....................................................25
Section 6.04 Collateral Agent May Enforce Claims..........................................................26
Section 6.05 Enforcement Proceeds Account.................................................................26
Section 6.06 Application of Enforcement Proceeds..........................................................26
ARTICLE VII
COLLATERAL AGENT
Section 7.01 Authorization and Action of the Collateral Agent.............................................27
Section 7.02 Reliance.....................................................................................27
Section 7.03 Citibank, CNAI and Affiliates................................................................28
Section 7.04 Acceptance of Collateral.....................................................................28
Section 7.05 The Collateral Agent May Perform.............................................................28
Section 7.06 Duties.......................................................................................29
Section 7.07 Liability....................................................................................30
Section 7.08 Successor Collateral Agent and Depository Bank...............................................30
Section 7.09 Suits, Etc., Brought by the Collateral Agent.................................................31
Section 7.10 Compensation of the Collateral Agent and the Depository Bank.................................31
Section 7.11 Taxes, Stamp and Other Similar Taxes.........................................................32
Section 7.12 Limitation on Duties in Respect of Collateral................................................32
Section 7.13 Right to Initiate Judicial Proceedings, Etc..................................................33
Section 7.14 Exculpatory Provisions.......................................................................33
Section 7.15 Treatment of Creditor Parties................................................................33
Section 7.16 Miscellaneous................................................................................34
Section 7.17 Indemnification..............................................................................34
Section 7.18 Publicity....................................................................................35
Section 7.19 Merger; Consolidation........................................................................35
ARTICLE VIII
OTHER AGREEMENTS
ARTICLE IX
MISCELLANEOUS
Section 9.01 Indemnity and Expenses.......................................................................35
Section 9.02 Amendments; Waivers, Etc.....................................................................36
Section 9.03 Subordination................................................................................36
Section 9.04 Additional Grantors..........................................................................37
Section 9.05 Security Interest Absolute and Waivers.......................................................37
Section 9.06 Notices; Etc.................................................................................40
Section 9.07 Continuing Security Interest; Assignments Under the Financing Documents......................40
Section 9.08 Release and Termination......................................................................40
Section 9.09 Execution in Counterparts....................................................................41
Section 9.10 Severability.................................................................................41
Section 9.11 Integration..................................................................................41
Section 9.12 No Partnership...............................................................................41
Section 9.13 No Reliance..................................................................................41
Section 9.14 Third Party Beneficiaries....................................................................42
Section 9.15 No Impairment................................................................................42
Section 9.16 Equitable Remedies...........................................................................42
Section 9.17 Remedies.....................................................................................42
Section 9.18 Limitations..................................................................................42
Section 9.19 Survival.....................................................................................42
Section 9.20 GOVERNING LAW................................................................................43
Section 9.21 The Mortgages................................................................................43
Section 9.22 Jurisdiction, Etc............................................................................43
Section 9.23 WAIVER OF JURY TRIAL.........................................................................44
Schedules:
Schedule 3.01(a) - Name, Location, Chief Executive Office, Place Where Agreements Are Maintained, Type of
Organization, Jurisdiction of Organization and Organizational Identification Number;
Trade Names and Domain Names; Changes in Name, Location, Etc.
Schedule 3.01(d) - Material Equipment
Schedule 3.01(f) - Pledged Equity
Schedule 3.01(g) - Initial Controlled Accounts and Operating Accounts
Schedule 5.01(h) - Commercial Tort Claims
Exhibits:
Exhibit A - Form of Security Agreement Supplement
Exhibit B - Form of Account Control Agreement
Exhibit C-1 - Form of Consent and Agreement (West Virginia)
Exhibit C-2 - Form of Consent and Agreement (Other States)
Appendices:
Appendix A-1 - Definitions
APPENDIX A-1
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DEFINITIONS
In this Agreement and the Schedules and Exhibits hereto, the
following terms shall have the following meanings:
"Account Collateral" has the meaning set forth in Section 5.01(f).
"Account Control Agreement" means an agreement executed by a Pledged
Account Bank with respect to all Controlled Accounts maintained with such
Pledged Account Bank, in the form, or substantially in the form, of
Exhibit B or such other form as may be mutually acceptable to the
Administrative Agent, the Collateral Agent and the Company.
"Acquired Material Property" has the meaning set forth in Section
5.04(b)(i).
"Additional Grantor" has the meaning set forth in Section 9.04.
"Additional Provisions" has the meaning set forth in the definition
of "Federal Book Entry Regulations".
"Administrative Agent" has the meaning set forth in the recitals of
parties to this Agreement.
"Agreement" means this Amended and Restated Security Agreement.
"Agreement Collateral" has the meaning set forth in Section 5.01(e).
"Assigned Agreements" has the meaning set forth in Section 5.01(e).
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. ss. 101, et seq.).
"Citibank" has the meaning set forth in the preamble to this
Agreement.
"Clearing Agency" has the meaning set forth in Section 4.09.
"CNAI" has the meaning set forth in the preamble to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and rulings issued thereunder.
"Collateral" has the meaning set forth in Section 5.01.
"Collateral Agent" has the meaning set forth in the preamble to this
Agreement.
"Commercial Tort Claims Collateral" has the meaning set forth in
Section 5.01(h).
"Company" has the meaning set forth in the preamble to this
Agreement.
"Computer Software" has the meaning set forth in Section 5.01(g)(iv).
"Consent" means consent and agreement from each Regulated Affiliate
with respect to any Material Contract to which such Regulated Affiliate
is a party, in each case, in the form or substantially in the form
attached hereto as Exhibit C-1 or Exhibit C-2, as applicable, or such
other form as may be mutually acceptable to the Administrative Agent, the
Collateral Agent and the Company.
"Controlled Account" means (a) each Initial Controlled Account and
(b) any other bank or securities account of any Grantor, other than the
Prepayment Account and the Operating Accounts, which is maintained in
accordance with Section 4.10.
"Copyrights" has the meaning set forth in Section 5.01(g)(iii).
"Creditor Party" means each of the Agents, the Depository Bank and
the Lenders.
"Depository Bank" has the meaning set forth in the preamble to this
Agreement.
"Dollars" and "$" mean the lawful currency of the United States of
America.
"Enforcement Action" means any or all of the following:
(i) application of funds in the Prepayment Account to the
payment of Secured Obligations;
(ii) exercising of any power of sale or other remedies
granted by any of the Collateral Documents or any other Financing
Document;
(iii) exercising any and all rights of the Company to demand
or otherwise require payment of any amount under, or performance of
any provision of, the Assigned Agreements, the Receivables, the
Related Contracts and the other Collateral;
(iv) exercising all other rights and remedies with respect
to the Assigned Agreements, the Receivables, the Related Contracts
and the other Collateral, including those set forth in Section 9-607
of the UCC;
(v) taking any Foreclosure Action;
(vi) proceeding to protect and enforce the rights of the
Secured Parties under this Agreement or any other Collateral Document
by sale pursuant to judicial proceedings or by a proceeding in equity
or at law or otherwise, whether for the enforcement of the security
interests created under or pursuant to this Agreement or any other
Collateral Document or for the enforcement of any other legal,
equitable or other remedy;
(vii) exercising in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise
available to the Secured Parties, to the extent permitted by
Applicable Law, all the rights and remedies of a secured party upon
default under the UCC (whether or not the UCC applies to the affected
Collateral) and the laws of any jurisdiction in which the Collateral
is located;
(viii) charging, exercising setoff rights or otherwise
applying all or any part of the Secured Obligations against any funds
held with respect to the Account Collateral or in any other deposit
account of the Company; and
(ix) taking any other action similar to the foregoing
permitted by Applicable Law.
"Enforcement Proceeds" means any cash, securities or any other
consideration received by the Collateral Agent as a result of the taking
of any Enforcement Action in respect of the Collateral, including,
without limitation (a) any balances then outstanding in the Prepayment
Account or received therein from time to time thereafter, (b) the
proceeds of any sale (net of reasonable costs and expenses of such sale
and any taxes, assessments or prior Liens) or Enforcement Action (net of
reasonable costs and expenses of such action) taken pursuant to Article
VI, (c) any Recovery Event Proceeds or proceeds of the Sale of any Assets
and (d) foreclosure proceeds in respect of any property encumbered under
any Mortgage.
"Enforcement Proceeds Account" has the meaning set forth in Section
6.05.
"Equipment" has the meaning set forth in Section 5.01(a).
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person, or warrants, rights or options of the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are authorized or otherwise existing on any
date of determination.
"Federal Book Entry Regulations" means (a) the federal regulations
contained in Subpart B ("Treasury/Reserve Automated Debt Entry System
(TRADES)") governing book-entry securities consisting of U.S. Treasury
bonds, notes and bills and Subpart D ("Additional Provisions") of 31
C.F.R. Part 357, 31 C.F.R. ss. 357.2, ss. 357.10 through ss. 357.15 and
ss. 357.40 through ss. 357.45 and (b) to the extent substantially
identical to the federal regulations referred to in clause (a) above (as
in effect from time to time), the federal regulations governing other
book-entry securities.
"Foreclosure Action" means the selling of any of the Collateral
either as an entirety or, if permitted by Applicable Law, in parcels at a
public or private sale.
"Grantors" has the meaning set forth in the preamble to this
Agreement.
"Indemnified Costs" has the meaning set forth in Section 7.17.
"Indemnified Party" has the meaning set forth in Section 9.01(a).
"Initial Controlled Accounts" means all those deposit and securities
accounts of the Company and the other Grantors set forth in Part A of
Schedule 3.01(g) of this Agreement, which identifies each account by
account number and account name.
"Initial Pledged Equity" means, with respect to any Grantor, the
Equity Interests set forth opposite such Grantor's name on and as
otherwise described in Schedule 3.01(f) and issued by the Persons named
therein.
"Intellectual Property Collateral" has the meaning set forth in
Section 5.01(g).
"Inventory" has the meaning set forth in Section 5.01(b).
"Material Equipment" means any Equipment with a fair market value of,
or the sale of which results in aggregate gross proceeds or consideration
of, not less than $25,000,000.
"Mortgage Trustee" means any Person (including any natural person)
identified as a trustee under any Mortgage.
"Notice of Exclusive Control" has the meaning set forth in the
Account Control Agreement.
"Operating Account Bank" means an institution at which an Operating
Account has been established as specified in Part B of Schedule 3.01(g).
"Operating Accounts" means those deposit and securities accounts of
the Company and the other Grantors set forth in Part B of Schedule
3.01(g), which identifies each account by account number and account
name.
"Patents" has the meaning set forth in Section 5.01(g)(i).
"PCB Liens" means Liens existing on the date hereof securing
Pollution Control Bonds and Liens permitted by Section 5.02(b)(xx) of the
Credit Agreement.
"Pledged Account Bank" has the meaning set forth in Section 4.07(a).
"Pledged Debt" has the meaning set forth in Section 5.01(d)(iii).
"Pledged Equity" has the meaning set forth in Section 5.01(d)(ii).
"Post Petition Interest" has the meaning set forth in Section
9.03(c).
"Prepayment Account" has the meaning set forth in Section 4.01(a).
"Prepayment Amount" has the meaning set forth in Section 4.02(a).
"Prepayment Subaccount" has the meaning set forth in Section 4.02(c).
"Receivables" has the meaning set forth in Section 5.01(c).
"Regulated Affiliates" means MPC, PEC and WPPC.
"Related Contracts" has the meaning set forth in Section 5.01(c).
"Secured Obligations" means all Obligations of the Company and the
other Grantors now or hereafter existing in respect of Senior Debt
Obligations owing under or with respect to the Advances or any Financing
Document, whether direct or indirect, absolute or contingent, and whether
for principal, reimbursement obligations, interest, fees, premiums,
penalties, indemnifications, contract causes of action, costs, expenses
or otherwise.
"Secured Parties" means any of the Creditor Parties holding or owed
any of the Secured Obligations from time to time.
"Security Agreement Supplement" has the meaning set forth in Section
9.04.
"Security Collateral" has the meaning set forth in Section 5.01(d).
"Senior Debt Obligations" means, without duplication, the Obligations
of the Company to pay (a) principal and interest on, or in respect of,
the Advances (including any interest accruing after the filing of a
petition with respect to, or the commencement of, any Insolvency
Proceeding, whether or not a claim for post-petition interest is allowed
in such proceeding), and (b) any and all commissions, fees, indemnities,
prepayment premiums, costs and expenses and other amounts payable to any
Creditor Party under any Financing Document, including all renewals or
extensions thereof (including any reimbursement obligations for costs and
expenses incurred by any Creditor Party in preserving any rights,
interests and remedies with respect to the Collateral and/or the Liens
granted in favor of the Secured Parties); provided that notwithstanding
anything to the contrary in any Financing Document, "Senior Debt
Obligations" shall not include any Obligations of the Company owed to any
of its Affiliates.
"Subagent" has the meaning set forth in Section 7.06(b).
"Subordinated Obligations" has the meaning set forth in Section
9.03(a).
"Trade Secrets" has the meaning set forth in Section 5.01(g)(v).
"Trademarks" has the meaning set forth in Section 5.01(g)(ii).
"UETA" has the meaning set forth in Section 5.08(a).