EXHIBIT 10.1
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SECURITY AGREEMENT
among
VANGUARD HEALTH SYSTEMS, INC.
CERTAIN SUBSIDIARIES OF
VANGUARD HEALTH SYSTEMS, INC.
and
BANK OF AMERICA, N.A.,
as COLLATERAL AGENT
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Dated as of July 30, 2001
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TABLE OF CONTENTS
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Page
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ARTICLE I SECURITY INTERESTS.................................................2
1.1. Grant of Security Interests....................................2
1.2. Power of Attorney..............................................3
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS.................3
2.1. Necessary Filings..............................................3
2.2. No Liens.......................................................3
2.3. Other Financing Statements.....................................3
2.4. Chief Executive Office, Record Locations.......................4
2.5. Location of Inventory and Equipment............................4
2.6. Legal Names; Organizational Identification Number; Trade Names;
Change of Name; etc............................................4
2.7. Jurisdiction and Type of Organization..........................5
2.8. Collateral in the Possession of a Bailee.......................5
2.9. Recourse.......................................................5
ARTICLE III SPECIAL PROVISIONS CONCERNING RECEIVABLES; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND
CERTAIN OTHER COLLATERAL.......................................6
3.1. Additional Representations and Warranties......................6
3.2. Maintenance of Records.........................................6
3.3. Direction to Account Debtors; Contracting Parties; etc.........6
3.4. Modification of Terms; etc.....................................7
3.5. Collection.....................................................7
3.6. Instruments....................................................7
3.7. Assignors Remain Liable Under Receivables......................8
3.8. Assignors Remain Liable Under Contracts........................8
3.9. Deposit Accounts...............................................8
3.10. Letter-of-Credit Rights........................................9
3.11. Commercial Tort Claims.........................................9
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS..........................9
4.1. Additional Representations and Warranties......................9
4.2. Licenses and Assignments......................................10
4.3. Infringements.................................................10
4.4. Preservation of Marks.........................................10
4.5. Maintenance of Registration...................................10
4.6. Future Registered Marks.......................................10
(i)
4.7. Remedies......................................................11
ARTICLE V SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS.........................11
5.1. Additional Representations and Warranties.....................11
5.2. Licenses and Assignments......................................11
5.3. Infringements.................................................12
5.4. Maintenance of Patents or Copyright...........................12
5.5. Prosecution of Patent Applications............................12
5.6. Other Patents and Copyrights..................................12
5.7. Remedies......................................................12
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL.............................13
6.1. Protection of Collateral Agent's Security.....................13
6.2. Warehouse Receipts Non-negotiable.............................13
6.3. Further Actions...............................................13
6.4. Financing Statements..........................................13
ARTICLE VII REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT.................14
7.1. Remedies; Obtaining the Collateral Upon Default...............14
7.2. Remedies; Disposition of the Collateral.......................15
7.3. Waiver of Claims..............................................16
7.4. Application of Proceeds.......................................17
7.5. Remedies Cumulative...........................................19
7.6. Discontinuance of Proceedings.................................19
ARTICLE VIII INDEMNITY......................................................19
8.1. Indemnity.....................................................19
8.2. Indemnity Obligations Secured by Collateral; Survival.........20
ARTICLE IX DEFINITIONS......................................................21
ARTICLE X MISCELLANEOUS.....................................................26
10.1. Notices......................................................26
10.2. Waiver; Amendment............................................27
10.3. Obligations Absolute.........................................28
10.4. Successors and Assigns.......................................28
10.5. Headings Descriptive.........................................28
10.6. Governing Law................................................28
10.7. Assignor's Duties............................................28
10.8. Termination; Release.........................................28
10.9. Counterparts.................................................29
10.10. Severability................................................29
10.11. The Collateral Agent and the other Secured Creditors........30
(ii)
10.12. Benefit of Agreement........................................30
10.13. Additional Assignors........................................30
ANNEX A Schedule of Chief Executive Offices and Other Record Locations
ANNEX B Schedule of Inventory and Equipment Locations
ANNEX C Schedule of Legal Names, Organizational Identification Numbers and
Trade and Fictitious Names
ANNEX D Schedule of Jurisdictions and Types of Organizations
ANNEX E Schedule of Marks
ANNEX F Schedule of Patents
ANNEX G Schedule of Copyrights
ANNEX H Form of Grant of Security Interest in United States Trademarks
ANNEX I Form of Grant of Security Interest in United States Patents
ANNEX J Form of Grant of Security Interest in United States Copyrights
(iii)
SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of July 30, 2001, made by each of the
undersigned assignors (each an "Assignor" and, together with any other entity
that becomes an assignor hereunder pursuant to Section 10.13 hereof, the
"Assignors") in favor of Bank of America, N.A., as Collateral Agent (together
with any successor Collateral Agent, the "Collateral Agent"), for the benefit
of the Secured Creditors (as defined below). Except as otherwise defined
herein, all capitalized terms used herein and defined in the Credit Agreement
(as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
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WHEREAS, Vanguard Health Systems, Inc. (the "Borrower"), the lenders
from time to time party thereto (the "Lenders"), Banc of America Securities LLC
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Joint Lead Arrangers and Book
Managers, Bank of America, N.A., as Administrative Agent (together with any
successor Administrative Agent, the "Administrative Agent"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as Syndication Agent have entered into a Credit
Agreement, dated as of July 30, 2001 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to,
and the issuance of Letters of Credit for the account of, the Borrower as
contemplated therein (the Lenders, each Issuing Lender, the Administrative
Agent and the Collateral Agent are herein called the "Lenders Creditors");
WHEREAS, the Borrower may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors"
and, together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition precedent to the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower under the
Credit Agreement that each Assignor shall have executed and delivered to the
Collateral Agent this Agreement; and
WHEREAS, each Assignor will obtain benefits from the incurrence of
Loans by, and the issuance of Letters of Credit for the account of, the
Borrower under the Credit Agreement and the entering into by the Borrower of
Interest Rate Protection Agreements and Other Hedging Agreements and,
accordingly, each Assignor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties to the
Collateral Agent for the benefit of the Secured Creditors and hereby covenants
and agrees with the Collateral Agent for the benefit of the Secured Creditors
as follows:
ARTICLE I
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the prompt and
complete payment and performance when due of all of its Obligations, each
Assignor does hereby assign and transfer unto the Collateral Agent, and does
hereby pledge and grant to the Collateral Agent for the benefit of the Secured
Creditors, a continuing security interest in all of the right, title and
interest of such Assignor in, to and under all personal and fixture property of
such Assignor of every kind and nature, whether now existing or hereafter from
time to time acquired, including, without limitation, in, to and under all of
the following, whether now existing or hereafter from time to time acquired:
(i) each and every Receivable, (ii) all Contracts, together with all Contract
Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all
Marks, together with the registrations and right to all renewals thereof, and
the goodwill of the business of such Assignor symbolized by the Marks, (vi) all
Patents and Copyrights, (vii) all computer programs of such Assignor and all
intellectual property rights therein and all other proprietary information of
such Assignor, including, but not limited to, Trade Secret Rights, (viii) all
software and all software licensing rights, all writings, plans, specifications
and schematics, all engineering drawings, customer lists, goodwill and
licenses, and all other recorded data of any kind or nature, regardless of the
medium of recording, (ix) all other Goods, General Intangibles, Investment
Property, Permits, Chattel Paper (whether tangible or electronic), Documents
and Instruments, (x) all Letter of Credit Rights (whether or not the respective
letter of credit is evidenced by a writing), (xi) all commercial tort claims,
(xii) all cash, (xiii) the Cash Collateral Account and all monies, securities,
instruments and other investments deposited or required to be deposited in the
Cash Collateral Account, (xiv) all other bank, demand, deposit, time savings,
cash management, passbook, certificates of deposit and similar accounts
maintained by such Assignor and all monies, securities, instruments and other
investments deposited or required to be deposited in any of the foregoing
accounts, (xv) all Supporting Obligations, and (xvi) all Proceeds and products
of any and all of the foregoing (all of the above, collectively, the
"Collateral").
(b) The security interest of the Collateral Agent under this
Agreement extends to all Collateral which any Assignor may acquire at any time
during the term of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, in
the event that any Assignor acquires an item of Collateral at any time
following the date hereof, such Assignor may elect (which election shall be
made by delivering written notice thereof to the Collateral Agent) that such
Collateral shall not be required to be pledged pursuant to this Agreement as
otherwise required above in this Section 1.1 so long as the book value or fair
market value (as determined in good faith by the Borrower), whichever is
greater, thereof is less
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than $1,000,000 (although in no event shall the aggregate book value or fair
market value (as determined in good faith by the Borrower), whichever is
greater, of all assets excluded from the security interests granted hereunder
provided in this clause (c), exceed $5,000,000).
1.2. Power of Attorney. Each Assignor hereby constitutes and appoints
the Collateral Agent its true and lawful attorney, irrevocably, with full power
after the occurrence of and during the continuance of an Event of Default (in
the name of such Assignor or otherwise) to act, require, demand, receive,
compound and give acquaintance for any and all moneys and claims for moneys due
or to become due to such Assignor under or arising out of the Collateral, to
endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute any proceedings which the
Collateral Agent may deem to be necessary or advisable to protect the interests
of the Secured Creditors, which appointment as attorney is coupled with an
interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this
Agreement, as follows:
2.1. Necessary Filings. All filings, registrations, recordings and
other actions necessary or appropriate to create, preserve and perfect the
security interest granted by such Assignor to the Collateral Agent hereby in
respect of the Collateral have been accomplished and the security interest
granted to the Collateral Agent pursuant to this Agreement in and to the
Collateral creates a valid and, together with all such filings, registrations,
recordings and other actions, a perfected security interest therein prior to
the rights of all other Persons therein and subject to no other Liens (other
than Permitted Liens) and is entitled to all the rights, priorities and
benefits afforded by the Uniform Commercial Code or other relevant law as
enacted in any relevant jurisdiction to perfected security interests, in each
case to the extent that the Collateral consists of the type of property in
which a security interest may be perfected by possession or control (within the
meaning of the UCC as in effect on the date hereof in the State of New York),
by filing a financing statement under the Uniform Commercial Code as enacted in
any relevant jurisdiction or by a filing of a Grant of Security Interest in the
respective form attached hereto in the United States Patent and Trademark
Office or in the United States Copyright Office.
2.2. No Liens. Such Assignor is, and as to Collateral acquired by it
from time to time after the date hereof such Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Permitted Liens), and such Assignor
shall defend the Collateral against all claims and demands of all Persons at
any time claiming the same or any interest therein adverse to the Collateral
Agent.
2.3. Other Financing Statements. As of the date hereof, there is no
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of
any kind in the Collateral (other than financing
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statements filed in respect of Permitted Liens), and so long as the Termination
Date has not occurred, such Assignor will not execute or authorize to be filed
in any public office any financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or statements
relating to the Collateral, except financing statements filed or to be filed in
respect of and covering the security interests granted hereby by such Assignor
or in connection with Permitted Liens.
2.4. Chief Executive Office, Record Locations. The chief executive
office of such Assignor is located at the address indicated on Annex A hereto
for such Assignor. Such Assignor will not move its chief executive office
except to such new location as such Assignor may establish in accordance with
the last sentence of this Section 2.4. The originals of all documents
evidencing all Receivables and Contract Rights of such Assignor and the only
original books of account and records of such Assignor relating thereto are,
and will continue to be, kept at such chief executive office, at one or more of
the other locations set forth on Annex A hereto or at such new locations as
such Assignor may establish in accordance with the last sentence of this
Section 2.4. All Receivables and Contract Rights of such Assignor are, and will
continue to be, maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, the office locations
described above or such new location established in accordance with the last
sentence of this Section 2.4. No Assignor shall establish new locations for
such offices until (i) it shall have given to the Collateral Agent not less
than 15 days' prior written notice of its intention to do so, clearly
describing such new location and providing such other information in connection
therewith as the Collateral Agent may reasonably request, and (ii) with respect
to such new location, it shall have taken all action reasonably satisfactory to
the Collateral Agent to maintain the security interest of the Collateral Agent
in the Collateral intended to be granted hereby at all times fully perfected
and in full force and effect.
2.5. Location of Inventory and Equipment. All Inventory and Equipment
held on the date hereof by each Assignor is located at one of the locations
shown on Annex B hereto for such Assignor. To the extent that any Assignor
desires to establish a new location for Inventory and Equipment that is located
in Alabama, Connecticut, Florida or Mississippi, such Assignor only may do so
if (i) it shall have given to the Collateral Agent not less than 15 days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Collateral
Agent may reasonably request, and (ii) with respect to such new location, it
shall have taken all action reasonably satisfactory to the Collateral Agent to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force
and effect; provided, however, (x) from and after October 1, 2001, the
provisions of this sentence shall not be applicable if such new location is
located in Connecticut and (y) from and after January 1, 2002, the provisions
of this sentence shall not be applicable if such new location is located in
Alabama, Florida or Mississippi.
2.6. Legal Names; Organizational Identification Number; Trade Names;
Change of Name; etc. The legal name of each Assignor, and the organizational
identification number (if any) of each Assignor, is listed on Annex C hereto
for such Assignor. No Assignor has or operates in any jurisdiction under, or in
the preceding five years has had or has operated in any jurisdiction under, any
trade names, fictitious names or other names except its legal name and
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such other trade or fictitious names as are listed on Annex C hereto for such
Assignor. No Assignor shall change its legal name, organizational
identification number (if any) or assume or operate in any jurisdiction under
any trade, fictitious or other name except its legal name, organizational
identification number and those trade names in each case listed on Annex C
hereto for such Assignor and those that may be established in accordance with
the immediately succeeding sentence of this Section 2.6. No Assignor shall
change its legal name or organizational identification number or assume or
operate in any jurisdiction under any new trade, fictitious or other name until
(i) it shall have given to the Collateral Agent not less than 15 days' prior
written notice of its intention so to do, clearly describing such new name and
the jurisdictions in which such new name shall be used and providing such other
information in connection therewith as the Collateral Agent may reasonably
request, and (ii) with respect to such new name, it shall have taken all action
reasonably requested by the Collateral Agent to maintain the security interest
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. In addition, to the extent
that any Assignor does not have an organizational identification number on the
date hereof and later obtains one, such Assignor shall promptly thereafter
notify the Collateral Agent of such organizational identification number and
shall take all actions reasonably satisfactory to the Collateral Agent to the
extent necessary to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby fully perfected and in full force
and effect.
2.7. Jurisdiction and Type of Organization. The jurisdiction of
organization of each Assignor, and the type of organization of each Assignor,
is listed on Annex D hereto for such Assignor. No Assignor shall change its
jurisdiction of organization or its type of organization until (i) it shall
have given to the Collateral Agent not less than 15 days' prior written notice
of intention so to do, clearly describing such new jurisdiction of organization
and/or type of organization and providing such other information in connection
therewith as the Collateral Agent may reasonably request and (ii) with respect
to such new jurisdiction of organization and/or type of organization, it shall
have taken all actions reasonably requested by the Collateral Agent to maintain
the security interest of the Collateral Agent in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect.
2.8. Collateral in the Possession of a Bailee. If any Inventory or
other Goods are at any time in the possession of a bailee, the respective
Assignor shall promptly notify the Collateral Agent thereof and, if requested
by the Collateral Agent, shall use its reasonable best efforts to promptly
obtain an acknowledgment from such bailee, in form and substance reasonably
satisfactory to the Collateral Agent, that the bailee holds such Collateral for
the benefit of the Collateral Agent and shall act upon the instructions of the
Collateral Agent, without the further consent of the respective Assignor. The
Collateral Agent agrees with the Assignors that the Collateral Agent shall not
give any such instructions unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by the
respective Assignor with respect to any such bailee.
2.9. Recourse. This Agreement is made with full recourse to each
Assignor and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained herein, in the
other Credit Documents, in the Interest Rate Protection
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Agreements or Other Hedging Agreements and otherwise in writing in connection
herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS CONCERNING RECEIVABLES; CONTRACT RIGHTS;
INSTRUMENTS; CHATTEL PAPER AND CERTAIN OTHER COLLATERAL
3.1. Additional Representations and Warranties. As of the time when
each of its Receivables arises, each Assignor shall be deemed to have
represented and warranted that each such Receivable, and all records, papers
and documents relating thereto (if any) are genuine and what they purport to
be, and that all papers and documents (if any) relating thereto (i) will, to
the knowledge of such Assignor, represent the genuine, legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by the
respective account debtor arising out of the performance of labor or services
or the sale or lease and delivery of the merchandise listed therein, or both,
(ii) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created for
general accounting purposes), (iii) will, to the knowledge of such Assignor,
evidence true and valid obligations, enforceable in accordance with their
respective terms, and (iv) will be in compliance and will conform in all
material respects with all applicable federal, state and local laws and
applicable laws of any relevant foreign jurisdiction.
3.2. Maintenance of Records. Each Assignor will keep and maintain at
its own cost and expense accurate records of its Receivables and Contracts,
including, but not limited to, originals of all documentation (including each
Contract) with respect thereto, records of all payments received, all credits
granted thereon, all merchandise returned and all other dealings therewith, and
such Assignor will make the same available on such Assignor's premises to the
Collateral Agent for inspection, at such Assignor's own cost and expense, at
any and all reasonable times upon prior notice to such Assignor and otherwise
in accordance with the Credit Agreement. Upon the occurrence and during the
continuance of an Event of Default and at the request of the Collateral Agent,
such Assignor shall, at its own cost and expense, deliver all tangible evidence
of its Receivables and Contract Rights (including, without limitation, all
documents evidencing the Receivables and all Contracts) and such books and
records to the Collateral Agent or to its representatives (copies of which
evidence and books and records may be retained by such Assignor). Upon the
occurrence and during the continuance of an Event of Default and if the
Collateral Agent so directs, such Assignor shall legend, in form and manner
satisfactory to the Collateral Agent, the Receivables and the Contracts, as
well as books, records and documents (if any) of such Assignor evidencing or
pertaining to such Receivables and Contracts with an appropriate reference to
the fact that such Receivables and Contracts have been assigned to the
Collateral Agent and that the Collateral Agent has a security interest therein.
3.3. Direction to Account Debtors; Contracting Parties; etc. Upon the
occurrence and during the continuance of an Event of Default, if the Collateral
Agent so directs any Assignor, such Assignor agrees (x) to cause all payments
on account of the Receivables and Contracts to be made directly to the Cash
Collateral Account, (y) that the Collateral Agent may,
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at its option, directly notify the obligors with respect to any Receivables
and/or under any Contracts to make payments with respect thereto as provided in
the preceding clause (x), and (z) that the Collateral Agent may enforce
collection of any such Receivables and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent as such Assignor. Without notice to or assent by any Assignor, the
Collateral Agent may, upon the occurrence and during the continuance of an
Event of Default, apply any or all amounts then in, or thereafter deposited in,
the Cash Collateral Account toward the payment of the Obligations in the manner
provided in Section 7.4 of this Agreement. The reasonable costs and expenses of
collection (including reasonable attorneys' fees), whether incurred by an
Assignor or the Collateral Agent, shall be borne by the relevant Assignor. The
Collateral Agent shall deliver a copy of each notice referred to in the
preceding clause (y) to the relevant Assignor, provided that (x) the failure by
the Collateral Agent to so notify such Assignor shall not affect the
effectiveness of such notice or the other rights of the Collateral Agent
created by this Section 3.3 and (y) no such notice shall be required if an
Event of Default of the type described in Section 10.05 of the Credit Agreement
has occurred and is continuing.
3.4. Modification of Terms; etc. Except in accordance with such
Assignor's ordinary course of business and consistent with reasonable business
judgment, no Assignor shall rescind or cancel any indebtedness evidenced by any
Receivable or under any Contract, or modify any material term thereof or make
any material adjustment with respect thereto, or extend or renew the same, or
compromise or settle any material dispute, claim, suit or legal proceeding
relating thereto, or sell any Receivable or Contract, or interest therein,
without the prior written consent of the Collateral Agent. No Assignor will do
anything to impair the rights of the Collateral Agent in the Receivables or
Contracts.
3.5. Collection. Each Assignor shall endeavor in accordance with
reasonable business practices to cause to be collected from the account debtor
named in each of its Receivables or obligor under any Contract, as and when due
(including, without limitation, amounts which are delinquent, such amounts to
be collected in accordance with generally accepted lawful collection
procedures) any and all amounts owing under or on account of such Receivable or
Contract, and apply forthwith upon receipt thereof all such amounts as are so
collected to the outstanding balance of such Receivable or under such Contract.
Except as otherwise directed by the Collateral Agent after the occurrence and
during the continuation of an Event of Default, any Assignor may allow in the
ordinary course of business as adjustments to amounts owing under its
Receivables and Contracts (i) an extension or renewal of the time or times of
payment, or settlement for less than the total unpaid balance, which such
Assignor finds appropriate in accordance with reasonable business judgment and
(ii) a refund or credit due as a result of returned or damaged merchandise or
improperly performed services or for other reasons which such Assignor finds
appropriate in accordance with reasonable business judgment. The reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
of collection, whether incurred by an Assignor or the Collateral Agent, shall
be borne by the relevant Assignor.
3.6. Instruments. If any Assignor owns or acquires any Instrument in
excess of $1,000,000 constituting Collateral (other than checks and other
payment instruments received and collected in the ordinary course of business),
such Assignor will within 10 Business Days
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notify the Collateral Agent thereof, and upon request by the Collateral Agent
will promptly deliver such Instrument to the Collateral Agent appropriately
endorsed to the order of the Collateral Agent as further security hereunder.
3.7. Assignors Remain Liable Under Receivables. Anything herein to
the contrary notwithstanding, the Assignors shall remain liable under each of
the Receivables to observe and perform all of the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise to such Receivables. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Receivable (or any agreement giving rise thereto) by reason of or arising out
of this Agreement or the receipt by the Collateral Agent or any other Secured
Creditor of any payment relating to such Receivable pursuant hereto, nor shall
the Collateral Agent or any other Secured Creditor be obligated in any manner
to perform any of the obligations of any Assignor under or pursuant to any
Receivable (or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment received by them
or as to the sufficiency of any performance by any party under any Receivable
(or any agreement giving rise thereto), to present or file any claim, to take
any action to enforce any performance or to collect the payment of any amounts
which may have been assigned to them or to which they may be entitled at any
time or times.
3.8. Assignors Remain Liable Under Contracts. Anything herein to the
contrary notwithstanding, the Assignors shall remain liable under each of the
Contracts to observe and perform all of the conditions and obligations to be
observed and performed by them thereunder, all in accordance with and pursuant
to the terms and provisions of each Contract. Neither the Collateral Agent nor
any other Secured Creditor shall have any obligation or liability under any
Contract by reason of or arising out of this Agreement or the receipt by the
Collateral Agent or any other Secured Creditor of any payment relating to such
contract pursuant hereto, nor shall the Collateral Agent or any other Secured
Creditor be obligated in any manner to perform any of the obligations of any
Assignor under or pursuant to any Contract, to make any payment, to make any
inquiry as to the nature or the sufficiency of any performance by any party
under any Contract, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have been
assigned to them or to which they may be entitled at any time or times.
3.9. Deposit Accounts. For each deposit or similar account that any
Assignor at any time opens or maintains, such Assignor shall, at the Collateral
Agent's request at any time when an Event of Default then exists and is
continuing, pursuant to a control agreement in form and substance reasonably
satisfactory to the Collateral Agent, use its reasonable best efforts to (a)
cause the depositary bank to agree to comply at any time with instructions from
the Collateral Agent to such depositary bank directing the disposition of funds
from time to time credited to such deposit account, without further consent of
the respective Assignor, or (b) arrange for the Collateral Agent to become the
customer of the depositary bank with respect to the deposit account, with the
respective Assignor being permitted, only with the consent of the Collateral
Agent, to exercise rights to withdraw funds from such deposit account.
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3.10. Letter-of-Credit Rights. If any Assignor is at any time a
beneficiary under a letter of credit with a stated amount of $1,000,000 or
more, such Assignor shall promptly notify the Collateral Agent thereof and, at
the request of the Collateral Agent, such Assignor shall, pursuant to an
agreement in form and substance reasonably satisfactory to the Collateral
Agent, use its reasonable best efforts to (i) arrange for the issuer and any
confirmer of such letter of credit to consent to an assignment to the
Collateral Agent of the proceeds of any drawing under such letter of credit or
(ii) arrange for the Collateral Agent to become the transferee beneficiary of
such letter of credit, with the Collateral Agent agreeing, in each case, that
the proceeds of any drawing under the letter of credit are to be applied as
provided in this Agreement after the occurrence and during the continuance of
an Event of Default.
3.11. Commercial Tort Claims. If any Assignor shall at any time hold
or acquire a commercial tort claim with a value of $1,000,000 or more, such
Assignor shall promptly notify the Collateral Agent thereof in a writing signed
by such Assignor and describing the brief details thereof and shall grant to
the Collateral Agent in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance reasonably satisfactory to the Collateral Agent.
3.12. Further Actions. Each Assignor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps, including any
and all actions as may be necessary or required under the Federal Assignment of
Claims Act, relating to its Receivables, Contracts, Instruments and other
property or rights covered by the security interest hereby granted, as the
Collateral Agent may reasonably require.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of or otherwise
has the right to use the registered Marks listed in Annex E hereto for such
Assignor and that said listed Marks include all United States marks and
applications for United States marks registered in the United States Patent and
Trademark Office that such Assignor owns or uses in connection with its
business as of the date hereof. Except as set forth in Schedule VII of the
Credit Agreement, each Assignor represents and warrants that it owns, is
licensed to use or otherwise has the right to use, all Marks that it uses. Each
Assignor further warrants that it has no knowledge of any third party claim
received by it that any aspect of such Assignor's present or contemplated
business operations infringes or will infringe any trademark, service ▇▇▇▇ or
trade name of any other Person other than as could not, either individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
Each Assignor represents and warrants that it is the true and lawful owner of
or otherwise has the right to use all U.S. trademark registrations and
applications listed in Annex E hereto and that said registrations are valid,
subsisting, have not been canceled and that such Assignor is not
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aware of any third-party claim that any of said registrations is invalid or
unenforceable, and is not aware that there is any reason that any of said
registrations is invalid or unenforceable. Each Assignor hereby grants to the
Collateral Agent an absolute power of attorney to sign, upon the occurrence and
during the continuance of an Event of Default, any document which may be
required by the United States Patent and Trademark Office in order to effect an
absolute assignment of all right, title and interest in each ▇▇▇▇, and record
the same.
4.2. Licenses and Assignments. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of
any right under any ▇▇▇▇ absent prior written approval of the Collateral Agent.
4.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to notify the Collateral Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect
to, any party who such Assignor believes is infringing or diluting or otherwise
violating any of such Assignor's rights in and to any ▇▇▇▇ in any manner that
could reasonably be expected to have a Material Adverse Effect, or with respect
to any party claiming that such Assignor's use of any ▇▇▇▇ material to such
Assignor's business violates in any material respect any property right of that
party. Each Assignor further agrees to prosecute in accordance with reasonable
business practices any Person infringing any ▇▇▇▇ in any manner that could
reasonably be expected to have a Material Adverse Effect.
4.4. Preservation of Marks. Each Assignor agrees to use its Marks
which are material to such Assignor's business in interstate commerce during
the time in which this Agreement is in effect and to take all such other
actions as are reasonably necessary to preserve such Marks as trademarks or
service marks under the laws of the United States (other than any such Marks
which are no longer used or useful in its business or operations).
4.5. Maintenance of Registration. Each Assignor shall, at its own
expense, diligently process all documents reasonably required to maintain
trademark registrations, including but not limited to affidavits of use and
applications for renewals of registration in the United States Patent and
Trademark Office for all of its material registered Marks, and shall pay all
fees and disbursements in connection therewith and shall not abandon any such
filing of affidavit of use or any such application of renewal prior to the
exhaustion of all administrative and judicial remedies without prior written
consent of the Collateral Agent (other than with respect to registrations and
applications deemed by such Assignor to be no longer prudent to pursue).
4.6. Future Registered Marks. If any ▇▇▇▇ registration is issued
hereafter to any Assignor as a result of any application now or hereafter
pending before the United States Patent and Trademark Office, within 30 days of
receipt of such certificate, such Assignor shall deliver to the Collateral
Agent a copy of such certificate, and an assignment for security in such ▇▇▇▇,
to the Collateral Agent and at the expense of such Assignor, confirming the
assignment for security in such ▇▇▇▇ to the Collateral Agent hereunder, the
form of such security to be substantially in the form of Annex H hereto or in
such other form as may be reasonably satisfactory to the Collateral Agent.
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4.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of such Assignor in and to each of the Marks, together with all
trademark rights and rights of protection to the same, vested in the Collateral
Agent for the benefit of the Secured Creditors, in which event such rights,
title and interest shall immediately vest, in the Collateral Agent for the
benefit of the Secured Creditors, and the Collateral Agent shall be entitled to
exercise the power of attorney referred to in Section 4.1 hereof to execute,
cause to be acknowledged and notarized and record said absolute assignment with
the applicable agency; (ii) take and use or sell the Marks and the goodwill of
such Assignor's business symbolized by the Marks and the right to carry on the
business and use the assets of such Assignor in connection with which the Marks
have been used; and (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from using the Marks in any manner whatsoever, directly
or indirectly, and such Assignor shall execute such further documents that the
Collateral Agent may reasonably request to further confirm this and to transfer
ownership of the Marks and registrations and any pending trademark application
in the United States Patent and Trademark Office to the Collateral Agent.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. Each Assignor
represents and warrants that it is the true and lawful owner of all rights in
(i) all United States trade secrets and proprietary information necessary to
operate the business of the Assignor (the "Trade Secret Rights"), (ii) the
Patents listed in Annex F hereto for such Assignor and that said Patents
include all the United States patents and applications for United States
patents that such Assignor owns as of the date hereof and (iii) the Copyrights
listed in Annex G hereto for such Assignor and that said Copyrights constitute
all the United States copyrights registered with the United States Copyright
Office and applications to United States copyrights that such Assignor owns as
of the date hereof. Each Assignor further warrants that it has no knowledge of
any third party claim that any aspect of such Assignor's present or
contemplated business operations infringes or will infringe any patent of any
other Person or such Assignor has misappropriated any trade secret or
proprietary information which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. Each Assignor hereby
grants to the Collateral Agent an absolute power of attorney to sign, upon the
occurrence and during the continuance of any Event of Default, any document
which may be required by the United States Patent and Trademark Office in order
to effect an absolute assignment of all right, title and interest in each
Patent, and to record the same.
5.2. Licenses and Assignments. Except as otherwise permitted by the
Secured Debt Agreements, each Assignor hereby agrees not to divest itself of
any right under any Patent or Copyright absent prior written approval of the
Collateral Agent.
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5.3. Infringements. Each Assignor agrees, promptly upon learning
thereof, to furnish the Collateral Agent in writing with all pertinent
information available to such Assignor with respect to any infringement,
contributing infringement or active inducement to infringe in any Patent or
Copyright or to any claim that the practice of any Patent or use of any
Copyright violates any property right of a third party, or with respect to any
misappropriation of any Trade Secret Right or any claim that practice of any
Trade Secret Right violates any property right of a third party, in each case,
in any manner which, either individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. Each Assignor further agrees,
absent direction of the Collateral Agent to the contrary, to diligently
prosecute, in accordance with its reasonable business judgment, any Person
infringing any Patent or Copyright or any Person misappropriating any Trade
Secret Right, in each case to the extent that such infringement or
misappropriation, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.4. Maintenance of Patents or Copyright. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant
to 35 U.S.C. ss. 41 to maintain in force its rights under each Patent or
Copyright, absent prior written consent of the Collateral Agent (other than any
such Patents or Copyrights which are no longer used or useful in its business
or operations).
5.5. Prosecution of Patent Applications. At its own expense, each
Assignor shall diligently prosecute all material applications for (i) United
States Patents listed in Annex F hereto and (ii) Copyrights listed on Annex G
hereto, in each case for such Assignor and shall not abandon any such
application prior to exhaustion of all administrative and judicial remedies
(other than applications deemed by such Assignor to be no longer prudent to
pursue), absent written consent of the Collateral Agent.
5.6. Other Patents and Copyrights. Within 30 days of the acquisition
or issuance of a United States Patent, registration of a Copyright, or
acquisition of a registered Copyright, or of filing of an application for a
United States Patent or Copyright, the relevant Assignor shall deliver to the
Collateral Agent a copy of said Copyright or Patent, or certificate or
registration of, or application therefor, as the case may be, with an
assignment for security as to such Patent or Copyright, as the case may be, to
the Collateral Agent and at the expense of such Assignor, confirming the
assignment for security, the form of such assignment for security to be
substantially in the form of Annex I or J hereto, as appropriate, or in such
other form as may be reasonably satisfactory to the Collateral Agent.
5.7. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may, by written notice to the relevant Assignor, take any
or all of the following actions: (i) declare the entire right, title, and
interest of such Assignor in each of the Patents and Copyrights vested in the
Collateral Agent for the benefit of the Secured Creditors, in which event such
right, title, and interest shall immediately vest in the Collateral Agent for
the benefit of the Secured Creditors, in which case the Collateral Agent shall
be entitled to exercise the power of attorney referred to in Section 5.1 hereof
to execute, cause to be acknowledged and notarized and to record said absolute
assignment with the applicable agency; (ii) take and practice or sell the
Patents and Copyrights; and (iii) direct such Assignor to refrain, in which
event such Assignor
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shall refrain, from practicing the Patents and using the Copyrights directly or
indirectly, and such Assignor shall execute such further documents as the
Collateral Agent may reasonably request further to confirm this and to transfer
ownership of the Patents and Copyrights to the Collateral Agent for the benefit
of the Secured Creditors.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Collateral Agent's Security. Except as otherwise
permitted by the Secured Debt Agreements, each Assignor will do nothing to
impair the rights of the Collateral Agent in the Collateral. Each Assignor will
at all times keep its Inventory and Equipment insured in favor of the
Collateral Agent, at such Assignor's own expense to the extent and in the
manner provided in the Secured Debt Agreements. Except to the extent otherwise
permitted to be retained by such Assignor or applied by such Assignor pursuant
to the terms of the Secured Debt Agreements, the Collateral Agent shall, at the
time any proceeds of such insurance are distributed to the Secured Creditors,
apply such proceeds in accordance with Section 7.4 hereof. Each Assignor
assumes all liability and responsibility in connection with the Collateral
acquired by it and the liability of such Assignor to pay the Obligations shall
in no way be affected or diminished by reason of the fact that such Collateral
may be lost, destroyed, stolen, damaged or for any reason whatsoever
unavailable to such Assignor.
6.2. Warehouse Receipts Non-negotiable. To the extent practicable,
each Assignor agrees that if any warehouse receipt or receipt in the nature of
a warehouse receipt is issued with respect to any of its Inventory, such
Assignor shall request that such warehouse receipt or receipt in the nature
thereof shall not be "negotiable" (as such term is used in Section 7-104 of the
Uniform Commercial Code as in effect in any relevant jurisdiction or under
other relevant law).
6.3. Further Actions. Each Assignor will, at its own expense and upon
the reasonable request of the Collateral Agent, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
lists, descriptions and designations of its Collateral, warehouse receipts,
receipts in the nature of warehouse receipts, bills of lading, documents of
title, vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, certificates, reports and other
assurances or instruments and take such further steps relating to the
Collateral and other property or rights covered by the security interest hereby
granted, which the Collateral Agent deems reasonably appropriate or advisable
to perfect, preserve or protect its security interest in the Collateral.
6.4. Financing Statements. Each Assignor agrees to execute and
deliver to the Collateral Agent such financing statements, in form reasonably
acceptable to the Collateral Agent, as the Collateral Agent may from time to
time reasonably request or as are reasonably necessary or desirable in the
opinion of the Collateral Agent to establish and maintain a valid, enforceable,
perfected security interest in the Collateral as provided herein and the other
rights and security contemplated hereby. Each Assignor will pay any applicable
filing fees, recordation taxes and related expenses relating to its Collateral.
Each Assignor hereby authorizes the
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Collateral Agent to file any such financing statements without the signature of
such Assignor where permitted by law (and such authorization includes
describing the Collateral as "all assets" of such Assignor).
ARTICLE VII
REMEDIES UPON OCCURRENCE OF AN EVENT OF DEFAULT
7.1. Remedies; Obtaining the Collateral Upon Default. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing,
then and in every such case, the Collateral Agent, in addition to any rights
now or hereafter existing under applicable law and under the other provisions
of this Agreement, shall have all rights as a secured creditor under any UCC,
and such additional rights and remedies to which a secured creditor is entitled
under the laws in effect in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from such Assignor or
any other Person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon such
Assignor's premises where any of the Collateral is located and remove the
same and use in connection with such removal any and all services,
supplies, aids and other facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement, instrument or
other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the
terms of such agreement, instrument or other obligation directly to the
Collateral Agent and may exercise any and all remedies of such Assignor in
respect of such Collateral;
(iii) instruct all depositary banks which have entered into a control
agreement with the Collateral Agent to transfer all monies, securities and
instruments held by such depositary bank to the Cash Collateral Account;
(iv) sell, assign or otherwise liquidate any or all of the Collateral
or any part thereof in accordance with Section 7.2 hereof, or direct the
relevant Assignor to sell, assign or otherwise liquidate any or all of the
Collateral or any part thereof, and, in each case, take possession of the
proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by
directing the relevant Assignor in writing to deliver the same to the
Collateral Agent at any reasonable place or places designated by the
Collateral Agent, in which event such Assignor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places
so designated by the Collateral Agent and there delivered to the
Collateral Agent;
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(y) store and keep any Collateral so delivered to the Collateral
Agent at such place or places pending further action by the
Collateral Agent as provided in Section 7.2 hereof; and
(z) while the Collateral shall be so stored and kept, provide
such security and maintenance services as shall be reasonably
necessary to protect the same and to preserve and maintain it in good
condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Collateral for
such term and on such conditions and in such manner as the Collateral
Agent shall in its sole judgment determine;
it being understood that each Assignor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly, upon
application to a court of equity having jurisdiction, the Collateral Agent
shall be entitled to a decree requiring specific performance by such Assignor
of said obligation. By accepting the benefits of this Agreement and each other
Security Document, the Secured Creditors expressly acknowledge and agree that
this Agreement and each other Security Document may be enforced only by the
action of the Collateral Agent acting upon the instructions of the Required
Secured Creditors and that no other Secured Creditor shall have any right
individually to seek to enforce this Agreement or any other Security Document
or to realize upon the security to be granted hereby or thereby, it being
understood and agreed that such rights and remedies may be exercised by the
Collateral Agent for the benefit of the Secured Creditors upon the terms of
this Agreement and the other Security Documents.
7.2. Remedies; Disposition of the Collateral. If any Event of Default
shall have occurred and be continuing, then any Collateral repossessed by the
Collateral Agent under or pursuant to Section 7.1 hereof and any other
Collateral whether or not so repossessed by the Collateral Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the Collateral Agent may, in
compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair at the expense of the relevant
Assignor which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days' prior written notice to the relevant Assignor specifying the time at
which such disposition is to be made and the intended sale price or other
consideration therefor, and shall be subject, for the 10 days after the giving
of such notice, to the right of the relevant Assignor or any nominee of such
Assignor to acquire the Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than 10 days' prior written
notice to the relevant Assignor specifying the time and place of such sale and,
in the absence of applicable requirements of law, shall be by public auction
(which may, at the Collateral Agent's option, be subject to reserve), after
publication of notice of
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such auction (where required by applicable law) not less than 10 days prior
thereto. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may be
made at any time or place to which the sale may be so adjourned. To the extent
permitted by any such requirement of law, the Collateral Agent may bid for and
become the purchaser of the Collateral or any item thereof, offered for sale in
accordance with this Section 7.2 without accountability to the relevant
Assignor. If, under applicable law, the Collateral Agent shall be permitted to
make disposition of the Collateral within a period of time which does not
permit the giving of notice to the relevant Assignor as hereinabove specified,
the Collateral Agent need give such Assignor only such notice of disposition as
shall be reasonably practicable in view of such applicable law. Each Assignor
agrees to do or cause to be done all such other acts and things as may be
reasonably necessary to make such sale or sales of all or any portion of the
Collateral valid and binding and in compliance with any and all applicable
laws, regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Assignor's
expense.
7.3. Waiver of Claims. Except as otherwise provided in this
Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S
TAKING POSSESSION OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES, and each Assignor hereby further
waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision);
(ii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each Assignor,
for itself and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Collateral shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against such
Assignor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof, from,
through and under such Assignor.
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7.4. Application of Proceeds. (a) All moneys collected by the
Collateral Agent (or, to the extent the Pledge Agreement or any other Security
Document requires proceeds of collateral under such other Security Document to
be applied in accordance with the provisions of this Agreement, the Pledgee or
Collateral Agent under such other Security Document) upon any sale or other
disposition of the Collateral, together with all other moneys received by the
Collateral Agent hereunder, shall be applied as follows.
(i) first, to the payment of all amounts owing the Collateral Agent
of the type described in clauses (iii) and (iv) of the definition of
"Obligations";
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 7.4(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors
as provided in Section 7.4(e) hereof, with each Secured Creditor receiving
an amount equal to its outstanding Secondary Obligations or, if the
proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to Section 10.8(a)
hereof, to the relevant Assignor or to whomever may be lawfully entitled
to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in
the case of the Credit Document Obligations, all principal of, premium, fees
and interest on, all Loans, all Unpaid Drawings and all Fees and (ii) in the
case of the Other Obligations, all amounts due under such Interest Rate
Protection Agreements or Other Hedging Agreements (other than indemnities, fees
(including, without limitation, attorneys' fees) and similar obligations and
liabilities) and (z) "Secondary Obligations" shall mean all Obligations other
than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 7.4 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such
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excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an
amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all
Secured Creditors entitled to such distribution.
(d) Each of the Secured Creditors, by their acceptance of the
benefits hereof and of the other Security Documents, agrees and acknowledges
that if the Lender Creditors are to receive a distribution on account of
undrawn amounts with respect to Letters of Credit issued under the Credit
Agreement (which shall only occur after all outstanding Loans under the Credit
Agreement and Unpaid Drawings have been paid in full), such amounts shall be
paid to the Administrative Agent under the Credit Agreement and held by it, for
the equal and ratable benefit of the Lender Creditors, as cash security for the
repayment of Obligations owing to the Lender Creditors as such. If any amounts
are held as cash security pursuant to the immediately preceding sentence, then
upon the termination of all outstanding Letters of Credit under the Credit
Agreement, and after the application of all such cash security to the repayment
of all Obligations owing to the Lender Creditors after giving effect to the
termination of all such Letters of Credit, if there remains any excess cash,
such excess cash shall be returned by the Administrative Agent to the
Collateral Agent for distribution in accordance with Section 7.4(a) hereof.
(e) All payments required to be made hereunder shall be made (x) if
to the Lender Creditors, to the Administrative Agent for the account of the
Lender Creditors and (y) if to the Other Creditors, to the trustee, paying
agent or other similar representative (each a "Representative") for the Other
Creditors or, in the absence of such a Representative, directly to the Other
Creditors.
(f) For purposes of applying payments received in accordance with
this Section 7.4, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent and (ii) the Representative or, in the absence of such a
Representative, upon the Other Creditors for a determination (which the
Administrative Agent, each Representative and the Other Creditors agree (or
shall agree) to provide upon request of the Collateral Agent) of the
outstanding Primary Obligations and Secondary Obligations owed to the Lender
Creditors or the Other Creditors, as the case may be. Unless it has received
written notice from a Lender Creditor or an Other Creditor to the contrary, the
Administrative Agent and each Representative, in furnishing information
pursuant to the preceding sentence, and the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Secondary Obligations are
outstanding. Unless it has written notice from an Other Creditor to the
contrary, the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Interest Rate Protection Agreements or Other Hedging Agreements
are in existence.
(g) This Agreement is made with full recourse to each Assignor
(including, without limitation, with full recourse to all assets of such
Assignor) and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of such Assignor contained
-18-
herein, in the other Secured Debt Agreements and otherwise in writing in
connection herewith or therewith. It is understood that the Assignors shall
remain jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Collateral and the aggregate amount of the
Obligations.
7.5. Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given to the Collateral Agent under
this Agreement, the other Secured Debt Agreements or now or hereafter existing
at law, in equity or by statute and each and every right, power and remedy
whether specifically herein given or otherwise existing may be exercised from
time to time or simultaneously and as often and in such order as may be deemed
expedient by the Collateral Agent. All such rights, powers and remedies shall
be cumulative and the exercise or the beginning of the exercise of one shall
not be deemed a waiver of the right to exercise any other or others. No delay
or omission of the Collateral Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any Default
or Event of Default or an acquiescence thereof. No notice to or demand on any
Assignor in any case shall entitle it to any other or further notice or demand
in similar or other circumstances or constitute a waiver of any of the rights
of the Collateral Agent to any other or further action in any circumstances
without notice or demand. In the event that the Collateral Agent shall bring
any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Collateral Agent may recover reasonable
expenses, including reasonable attorneys' fees, and the amounts thereof shall
be included in such judgment.
7.6. Discontinuance of Proceedings. In case the Collateral Agent
shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Collateral Agent, then and in every such
case the relevant Assignor, the Collateral Agent and each holder of any of the
Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1. Indemnity. (a) Each Assignor jointly and severally agrees to
indemnify, reimburse and hold the Collateral Agent, each other Secured Creditor
and their respective successors, assigns, employees, affiliates and agents
(hereinafter in this Section 8.1 referred to individually as "Indemnitee," and
collectively as "Indemnitees") harmless from any and all liabilities,
obligations, damages, injuries, penalties, claims, demands, actions, suits,
judgments and any and all costs, expenses or disbursements (including
reasonable attorneys' fees and expenses) (for the purposes of this Section 8.1
the foregoing are collectively called "expenses") of whatsoever kind and nature
imposed on, asserted against or incurred by any of the Indemnitees
-19-
in any way relating to or arising out of this Agreement, any other Secured Debt
Agreement or any other document executed in connection herewith or therewith or
in any other way connected with the administration of the transactions
contemplated hereby or thereby or the enforcement of any of the terms of, or
the preservation of any rights under any thereof, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition, sale,
return or other disposition, or use of the Collateral (including, without
limitation, latent or other defects, whether or not discoverable), the
violation of the laws of any country, state or other governmental body or unit,
any tort (including, without limitation, claims arising or imposed under the
doctrine of strict liability, or for or on account of injury to or the death of
any Person (including any Indemnitee), or property damage), or contract claim;
provided that no Indemnitee shall be indemnified pursuant to this Section
8.1(a) for losses, damages or liabilities to the extent caused by the gross
negligence or willful misconduct of such Indemnitee (as determined by a court
of competent jurisdiction in a final and non-appealable decision). Each
Assignor agrees that upon written notice by any Indemnitee of the assertion of
such a liability, obligation, damage, injury, penalty, claim, demand, action,
suit or judgment, the relevant Assignor shall assume full responsibility for
the defense thereof. Each Indemnitee agrees to use its best efforts to promptly
notify the relevant Assignor of any such assertion of which such Indemnitee has
knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each
Assignor agrees, jointly and severally, to pay or reimburse the Collateral
Agent for any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, premiums
for insurance with respect to the Collateral and all other fees, costs and
expenses in connection with protecting, maintaining or preserving the
Collateral and the Collateral Agent's interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions,
suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof,
each Assignor agrees, jointly and severally, to pay, indemnify and hold each
Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by any Assignor in this Agreement, any other
Secured Debt Agreement or in any writing contemplated by or made or delivered
pursuant to or in connection with this Agreement or any other Secured Debt
Agreement.
(d) If and to the extent that the obligations of any Assignor under
this Section 8.1 are unenforceable for any reason, such Assignor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral; Survival. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute
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Obligations secured by the Collateral. The indemnity obligations of each
Assignor contained in this Article VIII shall continue in full force and effect
notwithstanding the full payment of all of the other Obligations and
notwithstanding the full payment of all the Notes issued, and Loans made, under
the Credit Agreement, the termination of all Letters of Credit issued under the
Credit Agreement, the termination of all Interest Rate Protection Agreements
and Other Hedging Agreements entered into with the Other Creditors and the
payment of all other Obligations and notwithstanding the discharge thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Administrative Agent" shall have the meaning provided in the
recitals of this Agreement.
"Agreement" shall mean this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower" shall have the meaning provided in the recitals of this
Agreement.
"Cash Collateral Account" shall mean a cash collateral account
maintained with, and in the sole dominion and control of, the Collateral Agent
for the benefit of the Secured Creditors.
"Chattel Paper" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Class" shall have the meaning provided in Section 10.2 of this
Agreement.
"Collateral" shall have the meaning provided in Section 1.1(a) of
this Agreement.
"Collateral Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Commercial Tort Claims" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Contract Rights" shall mean all rights of any Assignor under each
Contract, including, without limitation, (i) any and all rights to receive and
demand payments under any or all Contracts, (ii) any and all rights to receive
and compel performance under any or all Contracts
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and (iii) any and all other rights, interests and claims now existing or in the
future arising in connection with any or all Contracts.
"Contracts" shall mean all contracts between any Assignor and one or
more additional parties (including, without limitation, any Interest Rate
Protection Agreements, Other Hedging Agreements, licensing agreements and any
partnership agreements, joint venture agreements and limited liability company
agreements), but excluding any contract to the extent that (but only as long
as) the terms thereof prohibit the assignment of, or granting a security
interest in, such contract (it being understood and agreed, however, (i) that
notwithstanding the foregoing, all rights to payment for money due or to become
due pursuant to any such excluded contract shall be subject to the security
interests created by this Agreement and (ii) such excluded contract shall
otherwise be subject to the security interests created by this Agreement upon
receiving any necessary approvals or waivers permitting the assignment
thereof).
"Copyrights" shall mean any United States copyright owned by any
Assignor, including any registrations of any Copyrights, in the United States
Copyright Office or any foreign equivalent office, as well as any application
for a copyright registration now or hereafter made with the United States
Copyright Office or any foreign equivalent office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals of
this Agreement.
"Credit Document Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article IX.
"Default" shall mean any event which with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Equipment" shall mean any "equipment," as such term is defined in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, fixtures
and vehicles now or hereafter owned by any Assignor and any and all additions,
substitutions and replacements of any of the foregoing and all accessions
thereto, wherever located, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"General Intangibles" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York (and
shall include all payment intangibles, partnership interests and all limited
liability company and membership
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interests to the extent that same constitutes a general intangible under such
Uniform Commercial Code).
"Goods" shall have the meaning provided in the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
"Indemnitee" shall have the meaning provided in Section 8.1(a) of
this Agreement.
"Instrument" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof and all accessions thereto,
wherever located, together with all goods, supplies, incidentals, packaging
materials, labels, materials and any other items used or usable in
manufacturing, processing, packaging or shipping same, in all stages of
production from raw materials through work in process to finished goods, and
all products and proceeds of whatever sort and wherever located any portion
thereof which may be returned, rejected, reclaimed or repossessed by the
Collateral Agent from any Assignor's customers, and shall specifically include
all "inventory" as such term is defined in the Uniform Commercial Code as in
effect on the date hereof in the State of New York, now or hereafter owned by
any Assignor.
"Investment Property" shall have the meaning provided in the Uniform
Commercial Code as in effect on the date hereof in the State of New York.
"Lender Creditors" shall have the meaning provided in the recitals of
this Agreement.
"Lenders" shall have the meaning provided in the recitals of this
Agreement.
"Letter of Credit Rights" shall have the meaning provided in
the Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Liens" shall mean any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest in a
financing lease or analogous instrument, in, of, or on any Assignor's property.
"Marks" shall mean all right, title and interest in and to any
trademarks, service marks and trade names now held or hereafter acquired by any
Assignor, including any registration of any trademarks and service marks in the
United States Patent and Trademark Office or in any equivalent foreign office
and any trade dress including slogos and/or designs used by any Assignor, but
excluding any such right, title and interest of an Assignor in and to same as
licensee pursuant to a contract which is expressly excluded from the definition
of "Contract" contained herein pursuant to the terms of such definition.
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"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities (actual or contingent), operations or
condition (financial or otherwise) of the Borrower and its Subsidiaries taken
as a whole.
"Obligations" shall mean (i) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness (including, without limitation,
principal, premium, interest, reimbursement obligations under Letters of
Credit, fees, costs and indemnities (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Assignor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed in
any such proceeding)) of each Assignor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection with,
the Credit Agreement and the other Credit Documents to which such Assignor is a
party (including, in the case of each Assignor that is a Subsidiary Guarantor,
all such obligations, liabilities and indebtedness of such Assignor under the
Subsidiaries Guaranty) and the due performance and compliance by such Assignor
with all of the terms, conditions and agreements contained in the Credit
Agreement and in such other Credit Documents (all such obligations, liabilities
and indebtedness under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection Agreements
or Other Hedging Agreements, being herein collectively called the "Credit
Document Obligations"); (ii) the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency, reorganization or similar proceeding of any
Assignor at the rate provided for in the respective documentation, whether or
not a claim for post-petition interest is allowed in any such proceeding) owing
by such Assignor to the Other Creditors under, or with respect to (including,
in the case of each Assignor that is a Subsidiary Guarantor, all such
obligations, liabilities and indebtedness of such Assignor under the
Subsidiaries Guaranty), each Interest Rate Protection Agreement or Other
Hedging Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by such Assignor with all of the terms, conditions
and agreements contained therein (all such obligations, liabilities and
indebtedness described in this clause (ii) being herein collectively called the
"Other Obligations"); (iii) any and all sums advanced by the Collateral Agent
in order to preserve the Collateral or preserve its security interest in the
Collateral; (iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of such Assignor
referred to in clauses (i) and (ii) above, after an Event of Default shall have
occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, or of any exercise by the Collateral Agent of its rights
hereunder, together with reasonable attorneys' fees and court costs; and (v)
all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement; it being acknowledged and
agreed that the "Obligations" shall include extensions of credit of the types
described above, whether outstanding on the date of this Agreement or extended
from time to time after the date of this Agreement.
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"Other Creditors" shall have the meaning provided in the recitals of
this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article IX.
"Patents" shall mean any patent to which any Assignor now or
hereafter has right, title and interest therein, and any divisions,
continuations (including, but not limited to, continuations-in-parts) and
improvements thereof, as well as any application for a patent now or hereafter
made by any Assignor, but excluding any patent to which any such Assignor has
right, title and interest as licensee pursuant to a contract which is expressly
excluded from the definition of "Contract" contained herein pursuant to the
terms of such definition.
"Permits" shall mean, to the extent permitted to be assigned by the
terms thereof or by applicable law, all licenses, permits, rights, orders,
variances, franchises or authorizations of or from any governmental authority
or agency.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Proceeds" shall have the meaning provided in the Uniform Commercial
Code as in effect in the State of New York on the date hereof or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Collateral Agent or any Assignor from time to time with respect to any of
the Collateral, (ii) any and all payments (in any form whatsoever) made or due
and payable to any Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting
under color of governmental authority) and (iii) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral.
"Receivables" shall mean any "account" as such term is defined in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York, now or hereafter owned by any Assignor and, in any event, shall include,
but shall not be limited to, all of such Assignor's rights to health-care
insurance receivables and to payment for goods sold or leased or services
performed by such Assignor, whether now in existence or arising from time to
time hereafter, including, without limitation, rights evidenced by an account,
note, contract, security agreement, chattel paper, or other evidence of
indebtedness or security, together with (a) all security pledged, assigned,
hypothecated or granted to or held by such Assignor to secure the foregoing,
(b) all of any Assignor's right, title and interest in and to any goods, the
sale of which gave rise thereto, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (d) all powers of attorney
for the execution of any evidence of indebtedness or security or other writing
in connection therewith, (e) all books, records, ledger cards, and invoices
relating thereto, (f) all instruments in connection therewith and amendments
thereto, notices to other
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creditors or secured parties, and certificates from filing or other
registration officers, (g) all credit information, reports and memoranda
relating thereto and (h) all other writings related in any way to the
foregoing.
"Representative" shall have the meaning provided in Section 7.4(e) of
this Agreement.
"Required Secured Creditors" shall mean (i) at any time when any
Credit Document Obligations are outstanding or any Commitments under the Credit
Agreement exist, the Required Lenders (or, to the extent provided in Section
13.12 of the Credit Agreement, each of the Lenders) and (ii) at any time after
all of the Credit Document Obligations have been paid in full and all
Commitments under the Credit Agreement have been terminated and no further
Commitments may be provided thereunder, the holders of a majority of the Other
Obligations.
"Requisite Creditors" shall have the meaning provided in Section 10.2
of this Agreement.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the recitals
of this Agreement.
"Secured Debt Agreements" shall mean and include this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements and Other
Hedging Agreements entered into with an Other Creditor.
"Supporting Obligations" shall have the meaning provided in the
Uniform Commercial Code as in effect on the date hereof in the State of New
York.
"Termination Date" shall have the meaning provided in Section 10.8(a)
of this Agreement.
"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to time in the relevant jurisdiction.
ARTICLE X
MISCELLANEOUS
10.1. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by
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courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier, except that notices and communications to the Collateral
Agent or any Assignor shall not be effective until received by the Collateral
Agent or such Assignor, as the case may be. All notices and other
communications shall be in writing and addressed as follows:
(a) if to any Assignor, c/o:
Vanguard Health Systems, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Collateral Agent, at:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to any Lender Creditor other than the Collateral Agent, at
such address as such Lender Creditor shall have specified in the Credit
Agreement;
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to each Assignor and the Collateral Agent;
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required
to give notice hereunder.
10.2. Waiver; Amendment. Except as provided in Sections 10.8 and
10.13, none of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by each Assignor directly affected thereby and the Collateral Agent
(with the written consent of the Required Secured Creditors); provided,
however, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class of Secured Creditors (and not all Secured
Creditors in a like or similar manner) also shall require the written consent
of the Requisite Creditors of such affected Class. For the purpose of this
Agreement, the term "Class" shall mean each class of Secured Creditors, i.e.,
whether (x) the Lender Creditors as holders of the Credit Document Obligations
or (y) the Other Creditors as the holders of the Other Obligations. For the
purpose of this Agreement, the term "Requisite Creditors" of any Class shall
mean each of (x) with respect to the Credit Document Obligations, the Required
Lenders (or, to the extent provided in Section 13.12 of the Credit
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Agreement, each of the Lenders), and (y) with respect to the Other Obligations,
the holders of at least a majority of all Other Obligations outstanding from
time to time.
10.3. Obligations Absolute. The obligations of each Assignor
hereunder shall remain in full force and effect without regard to, and shall
not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of such
Assignor; (b) any exercise or non-exercise, or any waiver of, any right,
remedy, power or privilege under or in respect of this Agreement or any other
Secured Debt Agreement; or (c) any amendment to or modification of any Secured
Debt Agreement or any security for any of the Obligations; whether or not such
Assignor shall have notice or knowledge of any of the foregoing.
10.4. Successors and Assigns. This Agreement shall be binding upon
each Assignor and its successors and assigns (although no Assignor may assign
its rights and obligations hereunder except in accordance with the provisions
of the Secured Debt Agreements) and shall inure to the benefit of the
Collateral Agent and the other Secured Creditors and their respective
successors and assigns. All agreements, statements, representations and
warranties made by each Assignor herein or in any certificate or other
instrument delivered by such Assignor or on its behalf under this Agreement
shall be considered to have been relied upon by the Secured Creditors and shall
survive the execution and delivery of this Agreement and the other Secured Debt
Agreements regardless of any investigation made by the Secured Creditors or on
their behalf.
10.5. Headings Descriptive. The headings of the several sections of
this Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
10.6. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
10.7. Assignor's Duties. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Assignor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of this
Agreement, nor shall the Collateral Agent be required or obligated in any
manner to perform or fulfill any of the obligations of any Assignor under or
with respect to any Collateral.
10.8. Termination; Release. (a) After the Termination Date, this
Agreement shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 8.1 hereof shall survive such
termination) and the Collateral Agent, at the request and expense of the
respective Assignor, will promptly execute and deliver to such Assignor a
proper instrument or instruments (including Uniform Commercial Code termination
statements on form UCC-3) acknowledging the satisfaction and termination of
this Agreement, and will duly assign, transfer and deliver to such Assignor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Collateral Agent and as has
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not theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which the Total Commitment under the Credit Agreement has been terminated
and all Interest Rate Protection Agreements and Other Hedging Agreements
entered into with any Other Creditor have been terminated, no Note under the
Credit Agreement is outstanding and all Loans thereunder have been repaid in
full, all Letters of Credit issued under the Credit Agreement have been
terminated and all Obligations then due and payable have been paid in full and
no further Incremental Term Loan Commitments may be requested or provided
pursuant to the terms of the Credit Agreement.
(b) In the event that any part of the Collateral is sold, transferred
or otherwise disposed of (other than to the Borrower or a Subsidiary Guarantor)
in accordance with the Credit Agreement or is otherwise released with the
consent of the Required Secured Creditors and the proceeds of such sale,
transfer or other disposition, or from such release, are applied in accordance
with the provisions of the Credit Agreement, to the extent required to be so
applied, such Collateral will be sold, transferred or otherwise disposed of
free and clear of the Liens created by this Agreement and the Collateral Agent,
at the request and expense of the relevant Assignor, will duly and promptly
assign, transfer and deliver to such Assignor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold, transferred or otherwise disposed of, or released, and as may be
in the possession of the Collateral Agent and has not theretofore been released
pursuant to this Agreement. Furthermore, upon the release of any Subsidiary
Guarantor from the Subsidiaries Guaranty in accordance with the provisions
thereof, such Assignor (and the Collateral at such time assigned by the
respective Assignor pursuant hereto) shall be released from this Agreement.
(c) At any time that an Assignor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Collateral
pursuant to the foregoing Section 10.8(a) or (b), such Assignor shall deliver
to the Collateral Agent a certificate signed by a senior officer of such
Assignor stating that the release of the respective Collateral is permitted
pursuant to such Section 10.8(a) or (b). At any time that the Borrower or the
respective Assignor desires that a Subsidiary of the Borrower which has been
released from the Subsidiaries Guaranty be released hereunder as provided in
the last sentence of Section 10.8(b), it shall deliver to the Collateral Agent
a certificate signed by a principal executive officer of the Borrower and the
respective Assignor stating that the release of the respective Assignor (and
its Collateral) is permitted pursuant to such Section 10.8(b).
10.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Assignor and the
Collateral Agent.
10.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
-29-
10.11. The Collateral Agent and the other Secured Creditors. The
Collateral Agent will hold in accordance with this Agreement all items of the
Collateral at any time received under this Agreement. It is expressly
understood and agreed that the obligations of the Collateral Agent as holder of
the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement and in Section 12 of the Credit Agreement. The Collateral
Agent shall act hereunder on the terms and conditions set forth herein and in
Section 12 of the Credit Agreement.
10.12. Benefit of Agreement. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns.
10.13. Additional Assignors. It is understood and agreed that any
Subsidiary Guarantor that desires to become an Assignor hereunder, or is
required to execute a counterpart of this Agreement after the date hereof
pursuant to the requirements of the Credit Agreement or any other Credit
Document, shall become an Assignor hereunder by executing a counterpart hereof
and delivering same to the Collateral Agent, or by executing a Joinder
Agreement substantially in the form of Exhibit O to the Credit Agreement, (y)
delivering supplements to Annexes A through G hereto as are necessary to cause
such Annexes to be complete and accurate with respect to such additional
Assignor on such date and (z) taking all actions as specified in this Agreement
as would have been taken by such Assignor had it been an original party to this
Agreement, in each case with all documents required above to be delivered to
the Collateral Agent and with all documents and actions required above to be
taken to the reasonable satisfaction of the Collateral Agent.
* * *
-30-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
VANGUARD HEALTH SYSTEMS, INC.
VHS ACQUISITION CORPORATION
VHS OF PHOENIX, INC.
VHS OUTPATIENT CLINICS, INC.
VHS OF ARROWHEAD, INC.
PLEASANT PROPERTIES, INC.
VHS OF SOUTH PHOENIX, INC.
VHS IMAGING CENTERS, INC.
VHS OF ANAHEIM, INC.
VHS OF ORANGE COUNTY, INC.
VHS HOLDING COMPANY, INC.
VHS OF HUNTINGTON BEACH, INC.
VHS OF ILLINOIS, INC.
▇▇▇▇▇▇▇ HEALTH PROVIDERS, INC.
▇▇▇▇▇▇▇ MANAGEMENT SERVICES,
INC.
MIDWEST CLAIMS PROCESSING, INC.
PROS TEMPORARY STAFFING, INC.
WATERMARK PHYSICIAN SERVICES,
INC.
VHS GENESIS LABS, INC.
▇▇▇▇▇▇▇ MEDICAL RECORDS, INC.
VANGUARD HEALTH MANAGEMENT,
INC.
TRINITY MEDCARE, INC.
V-II ACQUISITION CO., INC.
VANGUARD HEALTH FINANCIAL
COMPANY, INC.
VHS OF RANCOCAS, INC.,
each as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Chief Financial Officer
Duly authorized to sign on behalf of
each of the foregoing entities
VHS ACQUISITION SUBSIDIARY
NUMBER 1, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 2, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 3, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 4, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 5, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 6, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 7, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 8, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 9, INC.
VHS ACQUISITION SUBSIDIARY
NUMBER 10, INC.,
each as an Assignor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Chief Financial Officer
Duly authorized to sign on behalf of
each of the foregoing entities
THE ANAHEIM VHS LIMITED
PARTNERSHIP, as an Assignor
By: VHS of Anaheim, Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Chief Financial Officer
THE HUNTINGTON BEACH VHS LIMITED
PARTNERSHIP, as an Assignor
By: VHS of Huntington Beach, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Chief Financial Officer
HEALTHCARE COMPLIANCE, L.L.C., as an
Assignor
By: Vanguard Health Management, Inc.,
its Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Chief Financial Officer
THE VHS ARIZONA IMAGING CENTERS
LIMITED PARTNERSHIP, as an Assignor
By: VHS Imaging Centers, Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
Accepted and Agreed to:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Principal
BANK OF AMERICA, N.A.,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Principal
Annex A
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
1. Chief Executive Office of all Assignors except the Assignors referred to
in Sections 2 through 24 below:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Chief Executive Office of Healthcare Compliance, L.L.C.:
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. Chief Executive Office of The Anaheim VHS Limited Partnership:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. (a) Chief Executive Office of VHS Acquisition Corporation:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Other record locations of VHS Acquisition Corporation:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Chief Executive Office of VHS of Anaheim, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. Chief Executive Office of VHS of Huntington Beach, Inc.:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
1
Annex A
to
SECURITY AGREEMENT
7. Chief Executive Office of VHS of Illinois, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. Chief Executive Office of ▇▇▇▇▇▇▇ Management Services, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. Chief Executive Office of MacNeal Health Providers, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. Chief Executive Office of VHS Genesis Labs, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Chief Executive Office of Midwest Claims Processing, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Chief Executive Office of Watermark Physician Services, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Chief Executive Office of Pros Temporary Staffing, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. Chief Executive Office of MacNeal Medical Records, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. Chief Executive Office of MacNeal Medical Records, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2
Annex A
to
SECURITY AGREEMENT
16. Chief Executive Office of VHS of Orange County, Inc.:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. (a) Chief Executive Office of VHS of Phoenix, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Other record location of VHS of Phoenix, Inc.:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18. (a) Chief Executive Office of VHS of Arrowhead, Inc.:
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(b) Other record location of VHS of Arrowhead, Inc.:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. (a) Chief Executive Office of VHS Outpatient Clinics, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Other record location of VHS Outpatient Clinics, Inc.:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. (a) Chief Executive Office of Pleasant Properties, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
3
Annex A
to
SECURITY AGREEMENT
(b) Other record location of Pleasant Properties, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
21. Chief Executive Office of VHS of South Phoenix, Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
22. (a) Chief Executive Office of The VHS Arizona Imaging Centers Limited
Partnership
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Other record locations of The VHS Arizona Imaging Centers Limited
Partnership
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
Suites C-104 and C-105
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
Suites 103 and 112
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, 115, 125, 155 and 175
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
4
Annex A
to
SECURITY AGREEMENT
23. Chief Executive Office of VHS Imaging Centers, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5
Annex B
to
SECURITY AGREEMENT
SCHEDULE OF INVENTORY AND EQUIPMENT LOCATIONS
1. Vanguard Health Management, Inc.:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Healthcare Compliance, L.L.C.:
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. The Anaheim VHS Limited Partnership:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
2100 S. Euclid Avenue
Anaheim, CA
4. VHS Acquisition Corporation:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
5. VHS of Anaheim, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1
Annex B
to
SECURITY AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
2100 S. Euclid Avenue
Anaheim, CA
6. Huntington Beach, Inc.:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ Springfield Street
Huntington Beach, CA
7. VHS of Illinois, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Parking Garage
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Parking ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Remote Employee Parking
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2
Annex B
to
SECURITY AGREEMENT
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇, 209, 210, 400, 601, 612, 606, 700, 703, LL1, 504, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇/▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇-▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3
Annex B
to
SECURITY AGREEMENT
▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10110 Gladstone
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
West Building
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Parking ▇▇▇
▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4
Annex B
to
SECURITY AGREEMENT
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. MacNeal Management Services, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9. MacNeal Health Providers, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. VHS Genesis Labs, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5
Annex B
to
SECURITY AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. Midwest Claims Processing, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Watermark Physician Services, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13. Pros Temporary Staffing, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14. MacNeal Medical Records, Inc.:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. VHS of Orange County, Inc.:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16. VHS of Phoenix, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
17. VHS of Arrowhead, Inc.:
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
6
Annex B
to
SECURITY AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18. VHS Outpatient Clinics, Inc.:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
19. Trinity MedCare, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
20. Pleasant Properties, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
21. VHS of South Phoenix, Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7
Annex B
to
SECURITY AGREEMENT
22. The VHS Arizona Imaging Centers Limited Partnership
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
18555 N. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇-▇▇▇ ▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
Suites 103 and 112
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, 115, 125, 155 and 175
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
23. VHS Imaging Centers, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
24. Other Assignors have no inventory or equipment.
8
Annex C
to
SECURITY AGREEMENT
SCHEDULE OF LEGAL NAMES, ORGANIZATIONAL IDENTIFICATION
NUMBERS AND TRADE AND FICTITIOUS NAMES
------------------------------------------------------
LEGAL NAME ORGANIZATIONAL ID#
---------- ------------------
Federal State ID#
------- ---------
Vanguard Health Systems, Inc. ▇▇-▇▇▇▇▇▇▇ 2765298
VHS Acquisition Corporation ▇▇-▇▇▇▇▇▇▇ 2863490
VHS of Phoenix, Inc. ▇▇-▇▇▇▇▇▇▇ 3177186
VHS Outpatient Clinics, Inc. ▇▇-▇▇▇▇▇▇▇ 3212542
VHS of Arrowhead, Inc. ▇▇-▇▇▇▇▇▇▇ 318980
Pleasant Properties, Inc. ▇▇-▇▇▇▇▇▇▇ 0236400-8
VHS of South Phoenix, Inc. ▇▇-▇▇▇▇▇▇▇ 3448177
The VHS Arizona Imaging Centers Limited Partnership ▇▇-▇▇▇▇▇▇▇ 3991889
VHS Imaging Centers, Inc. ▇▇-▇▇▇▇▇▇▇ 3381167
VHS of Anaheim, Inc. ▇▇-▇▇▇▇▇▇▇ 3046767
VHS of Orange County, Inc. ▇▇-▇▇▇▇▇▇▇ 2991266
VHS Holding Company, Inc. ▇▇-▇▇▇▇▇▇▇ 3053546
VHS of Huntington Beach, Inc. ▇▇-▇▇▇▇▇▇▇ 3053551
The Anaheim VHS Limited Partnership ▇▇-▇▇▇▇▇▇▇ 3054158
The Huntington Beach VHS Limited Partnership ▇▇-▇▇▇▇▇▇▇ 3052
VHS of Illinois, Inc. ▇▇-▇▇▇▇▇▇▇ 3100647
▇▇▇▇▇▇▇ Health Providers, Inc. ▇▇-▇▇▇▇▇▇▇ D5365-515-7
▇▇▇▇▇▇▇ Management Services, Inc. ▇▇-▇▇▇▇▇▇▇ D5347-087-4
Midwest Claims Processing, Inc. ▇▇-▇▇▇▇▇▇▇ D6050-154-8
Pros Temporary Staffing, Inc. ▇▇-▇▇▇▇▇▇▇ D6086-116-1
Watermark Physician Services, Inc. ▇▇-▇▇▇▇▇▇▇ D6080-956-9
VHS Genesis Labs, Inc. ▇▇-▇▇▇▇▇▇▇ 3143714
▇▇▇▇▇▇▇ Medical Records, Inc. ▇▇-▇▇▇▇▇▇▇ 3160763
Vanguard Health Management, Inc. ▇▇-▇▇▇▇▇▇▇ 2712798
Trinity Medcare, Inc. ▇▇-▇▇▇▇▇▇▇ 2720439
V-II Acquisition Co., Inc. ▇▇-▇▇▇▇▇▇▇ 3795-539
Vanguard Health Financial Company, Inc. ▇▇-▇▇▇▇▇▇▇ 0345736
Healthcare Compliance, LLC ▇▇-▇▇▇▇▇▇▇ 0236505
VHS of Rancocas, Inc. ▇▇-▇▇▇▇▇▇▇ 0100-7423-73
VHS Acquisition Subsidiary Number 1, Inc. ▇▇-▇▇▇▇▇▇▇ 3414395
VHS Acquisition Subsidiary Number 2, Inc. ▇▇-▇▇▇▇▇▇▇ 3414394
VHS Acquisition Subsidiary Number 3, Inc. ▇▇-▇▇▇▇▇▇▇ 3414388
VHS Acquisition Subsidiary Number 4, Inc. ▇▇-▇▇▇▇▇▇▇ 3414383
VHS Acquisition Subsidiary Number 5, Inc. ▇▇-▇▇▇▇▇▇▇ 3414379
VHS Acquisition Subsidiary Number 6, Inc. ▇▇-▇▇▇▇▇▇▇ 3414377
VHS Acquisition Subsidiary Number 7, Inc. ▇▇-▇▇▇▇▇▇▇ 3414374
VHS Acquisition Subsidiary Number 8, Inc. ▇▇-▇▇▇▇▇▇▇ 3414371
VHS Acquisition Subsidiary Number 9, Inc. Pending 3414366
VHS Acquisition Subsidiary Number 10, Inc. ▇▇-▇▇▇▇▇▇▇ 3414364
1
Annex C
to
SECURITY AGREEMENT
A. 1. Maryvale Hospital
2. Maryvale Hospital Medical Center
3. Maryvale Medical Center
4. Maryvale Health Institute
5. Desert Sky Family Practice
6. Desert Sky Urgent Care
B. 1. West Anaheim Medical Center
2. Huntington Beach Hospital
3. Huntington Beach Medical Center
C. Business Entities
-----------------
1. MacNeal Health Network
2. ▇▇▇▇▇▇▇ Hospital
3. Genesis Clinical Laboratory
4. Azron, Inc.
5. MacNeal Home Care
6. ▇▇▇▇▇▇▇ Center for Clinical Research
7. MacNeal Electronic Medical Records Initiatives (MEMRI)
8. MacNeal School
9. Midwest Claims Processing
Specialty Services
------------------
10. Great Lakes Orthopedics
11. MacNeal Occupational Health Services
12. ▇▇▇▇▇▇▇ Urology Group
13. BHS Digestive Disease Associates
14. MacNeal Behavioral Health Services
15. ▇▇▇▇▇▇▇ Cancer Center
16. The Center for Neurological Surgery and Spine Surgery
17. MacNeal Rheumatology Associates
18. MacNeal Center for Diabetes
19. MacNeal Rehabilitation Center in Oak Park
20. Consultants in Clinical Psychiatry
21. Life Women's Health Center
22. MacNeal Medical Center in Bridgeview
23. MacNeal Medical Center in Broadview
24. Clearing Clinic
25. MacNeal Neurology Associates
Primary Care Offices
--------------------
26. MacNeal Healthcare Centers
27. Gunnar Medical Group in Riverside
28. ▇▇▇▇▇▇▇ Family Practice
29. Primary Care Associates
2
Annex C
to
SECURITY AGREEMENT
30. ▇▇▇▇▇▇ Family Medicine
31. Personal Physicians
32. Family Care Associates
33. R.M. Gunnar Clinic
34. Riverside Family Practice
35. Riverside Pediatrics
36. ▇▇▇▇▇▇▇ Family HealthCare
Programs/Services
-----------------
37. MacNeal Cardiovision
38. MacNeal CardioCheck
39. MacNeal One to One
40. Pediatric OnCall
41. GLO Trotters
42. Health Horizons
43. Focus on Health
44. HouseCalls
45. MacNeal Coumadin Clinic
46. MacNeal Home Care Wound Care Program
47. ▇▇▇▇▇▇▇ Hospice
48. Lifesteps Weight Management Program
49. MacNeal Travel Clinic
50. MacNeal Sleep Disorder Program
51. ▇▇▇▇▇▇▇ Hospital Patient Management System
52. MacNeal Anticoagulation Center
53. New Beat
54. MacNeal Medical Staff
55. MacNeal Volunteer Copy Service
56. Suburban Counseling Center
57. Pediatric Therapy Services
58. Family Medical Dental Center
59. Health Matters
60. Journey Day Camp
D. 1. La Palma Intercommunity Hospital
E. 1. Phoenix Baptist Hospital and Medical Center
2. Arizona Network Development
3. Life-Core
4. Baby Club
5. Smart Options
6. Healthy Life Style Club for Seniors
7. Movin' Forward
8. Center for Arthritis & Joint Replacement
3
Annex C
to
SECURITY AGREEMENT
9. The Cancer Program
10. West Olive Family Medicine Center
11. Family Medicine Centers of Arizona
12. Dreamy Draw Family Medicine Center
13. Pinnacle Peak Family Medicine Center
14. North Canyon Ranch Family Medicine Center
15. Black Canyon Family Medicine Center
16. Union Hills Family Medicine Center
17. North Phoenix Family Medicine Center
18. The Women's Connection
19. People Who Care
20. Baptist Medical Center
21. Mammoscan
22. Care Connection
23. ▇▇▇▇▇▇▇ Medical ▇▇▇▇▇▇▇▇▇
▇▇. PBH
25. Sunburst Golf Classic
26. The Heart Center at Phoenix Baptist Hospital
27. Wellness Connection
28. ▇▇▇▇▇▇▇ ▇▇▇▇ Family Medical Center
29. 2040 W. ▇▇▇▇▇▇▇ Medical Center
30. Arrowhead Community Hospital and Medical Center
31. Arrowhead Community Hospital Senior Option
32. Arrowhead Community Hospital Life Line
33. Arrowhead Breast Care Center
34. Joy Wellness Connection
35. MedVet
36. Arrowhead Cancer Center
F. 1. Trinity MedCare
G. 1. Pleasant Properties
2. Arrowhead Medical Plaza I
H. 1. Phoenix Memorial Hospital
2. Phoenix Memorial Health System
3. ▇▇▇▇▇ ▇▇▇▇▇ Memorial Medical Center
4. Palm Valley Medical Campus
I. 1. TMC Advanced Imaging
4
Annex D
To
SECURITY AGREEMENT
SCHEDULE OF JURISDICTIONS AND TYPES OF ORGANIZATIONS
----------------------------------------------------
ENTITY NAME JURISDICTION TYPE OF ORGANIZATION
-------------------------------------------------------------------------------------------------------------
Vanguard Health Systems, Inc. Delaware Corporation
VHS Acquisition Corporation Delaware Corporation
VHS of Phoenix, Inc. Delaware Corporation
VHS Outpatient Clinics, Inc. Delaware Corporation
VHS of Arrowhead, Inc. Delaware Corporation
Pleasant Properties, Inc. Arizona Corporation
VHS of South Phoenix, Inc. Delaware Corporation
The VHS Arizona Imaging Centers Limited Partnership Delaware Limited Partnership
VHS Imaging Centers, Inc. Delaware Corporation
VHS of Anaheim, Inc. Delaware Corporation
VHS of Orange County, Inc. Delaware Corporation
VHS Holding Company, Inc. Delaware Corporation
VHS of Huntington Beach, Inc. Delaware Corporation
The Anaheim VHS Limited Partnership Delaware Limited Partnership
The Huntington Beach VHS Limited Partnership Delaware Limited Partnership
VHS of Illinois, Inc. Delaware Corporation
▇▇▇▇▇▇▇ Health Providers, Inc. Illinois Corporation
▇▇▇▇▇▇▇ Management Services, Inc. Illinois Corporation
Midwest Claims Processing, Inc. Illinois Corporation
Pros Temporary Staffing, Inc. Illinois Corporation
Watermark Physician Services, Inc. Illinois Corporation
VHS Genesis Labs, Inc. Delaware Corporation
▇▇▇▇▇▇▇ Medical Records, Inc. Delaware Corporation
Vanguard Health Management, Inc. Tennessee Corporation
Trinity Medcare, Inc. Delaware Corporation
V-II Acquisition Co., Inc. Pennsylvania Corporation
Vanguard Health Financial Company, Inc. Tennessee Corporation
Healthcare Compliance, LLC District of Columbia Limited Liability Corporation
VHS of Rancocas, Inc. New Jersey Corporation
VHS Acquisition Subsidiary Number 1, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 2, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 3, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 4, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 5, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 6, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 7, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 8, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 9, Inc. Delaware Corporation
VHS Acquisition Subsidiary Number 10, Inc. Delaware Corporation
Annex E
to
SECURITY AGREEMENT
------------------
SCHEDULE OF MARKS
-----------------
1. U.S. Service ▇▇▇▇ Application, Serial No. 75/359, 181; Filing Date:
September 18, 1997; Register: Principal; ▇▇▇▇: Vanguard; ▇▇▇▇ Type:
Service ▇▇▇▇; ▇▇▇▇ to be used in hospital and health care services in
International Class 42.
2. Service ▇▇▇▇ "New Arrivals at La Palma Intercommunity Hospital" (with
design) registered by UniHealth America with the Secretary of State of the
State of California.
3. Trademark "Sunrise over Mountain" registered with the Arizona Secretary of
State with an expiration date of 11/14/02.
4. Trademark "A Stronger Body of Healthcare" registered with the Arizona
Secretary of State with an expiration date of 03/31/07.
5. Trademark "Sunburst on Partial Cross" registered with the Arizona
Secretary of State with an expiration date of 06/18/02.
6. Trademark "Sunburst on Partial Cross" registered with the Florida
Department of State with an expiration date of 09/09/02.
7. Trademark Heart (free-form w/"S" thru middle) registered with the Arizona
Secretary of State with an expiration date of 01/24/04.
8. Trademark Flying Arrows registered with the Arizona Secretary of State
with an expiration date of 07/22/06.
9. Trademark Arrowhead enclosed in Circle registered with the Arizona
Secretary of State with an expiration date of 08/14/01.
10. Service ▇▇▇▇ "Las Comadres - The Co-Mothers" registered for Phoenix
Memorial Hospital with the Arizona Secretary of State, Reg. No. 40232,
dated October 14, 1997.
11. Service ▇▇▇▇ "Community Connection - Your Healthselect Option" registered
for Phoenix Memorial Hospital with the Arizona Secretary of State, Reg.
No. 34509, dated October 12, 1994.
12. Service ▇▇▇▇ "▇▇▇▇▇ Company-An Intergenerational Child Development Center"
registered for Phoenix Memorial Hospital with the Arizona Secretary of
State, Reg. No. 26142, dated March 9, 1988.
13. Service ▇▇▇▇ "Dream Game" registered for Phoenix Memorial Hospital with
the Arizona Secretary of State, Reg. No.25342, dated May 20, 1987.
1
Annex E
to
SECURITY AGREEMENT
------------------
14. Service ▇▇▇▇ "The ▇▇▇▇▇▇▇ Institute for Longer Life (Will Center)"
registered for Phoenix Memorial Hospital with the Arizona Secretary of
State, Reg. No. 26170, dated March 22, 1988.
15. Service ▇▇▇▇ "Easy Street's First Place" registered for Phoenix Memorial
Hospital with the Arizona Secretary of State, Reg. No.1,857,927, dated
October 11, 1994.
16. Service ▇▇▇▇ "ESE & Design" registered for Phoenix Memorial Hospital with
the Arizona Secretary of State, Reg. No.1,612,346, dated September 4,
1990.
17. Service ▇▇▇▇ "East Street Environments" registered for Phoenix Memorial
Hospital with the Arizona Secretary of State, Reg. No.1,436,706, dated
April 14, 1987.
2
Annex F
to
SECURITY AGREEMENT
------------------
SCHEDULE OF PATENTS
-------------------
▇▇▇▇▇▇▇ Medical Records, Inc.
-----------------------------
Patent Patent No. Issue Date
------ ---------- ----------
Electronic Medical Records System 5,924,074 July 13, 1999
Annex G
to
SECURITY AGREEMENT
------------------
SCHEDULE OF U.S. COPYRIGHTS
---------------------------
Title Registration No. Registration Date
----- ---------------- -----------------
1. Common Sense Care of the Sick Child TX3800495 March 7, 1994
2. Taming the Monster: A Workbook for Child Sexual Abuse
Victims by ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. TX2944506 October 26, 1990
3. Alternatives to Sexual Misbehavior: A Treatment
Workbook for the Adult Sexual Offender. TX2733661 January 16, 1990
4. Resolution of Post Traumatic Stress Disorder: Sexual
Abuse: A Treatment Workbook for the Adolescent Victim.
TX2569930 March 15, 1989
5. Alternatives to Sexual Misbehavior: A Treatment
Workbook for the Adult Sexual Offender. TX2487029 January 25, 1989
6. Alternatives to Sexual Misbehavior: A Treatment
Workbook for the Adolescent Sexual Offender. TX2487028 January 25, 1989
ANNEX H
to
SECURITY AGREEMENT
------------------
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
---------------------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, [Name of Grantor], a __________ _________ (the
"Grantor") with principal offices at ____________________________, hereby
assigns and grants to Bank of America, N.A., as Collateral Agent, with
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Grantee"), a security interest in (i) all of the Grantor's right, title and
interest in and to the United States trademarks, trademark registrations and
trademark applications (the "Marks") set forth on Schedule A attached hereto,
(ii) all Proceeds (as such term is defined in the Security Agreement referred
to below) and products of the Marks, (iii) the goodwill of the businesses with
which the Marks are associated and (iv) all causes of action arising prior to
or after the date hereof for infringement of any of the Marks or unfair
competition regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment
of all the Obligations of the Grantor, as such term is defined in the Security
Agreement among the Grantor, the other assignors from time to time party
thereto and the Grantee, dated as of July 30, 2001 (as amended from time to
time, the "Security Agreement"). Upon the occurrence of the Termination Date
(as defined in the Security Agreement), the Grantee shall execute, acknowledge,
and deliver to the Grantor an instrument in writing releasing the security
interest in the Marks acquired under this Grant.
This Grant has been granted in conjunction with the security interest
granted to the Grantee under the Security Agreement. The rights and remedies of
the Grantee with respect to the security interest granted herein are as set
forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this
ANNEX H
Page 2
Grant are deemed to conflict with the Security Agreement, the provisions of the
Security Agreement shall govern.
* * *
ANNEX H
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Grant as of
the ____ day of ------------, ----.
[NAME OF GRANTOR], Grantor
By___________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Collateral Agent and Grantee
By___________________________
Name:
Title:
STATE OF ______________)
) ss.:
COUNTY OF _____________)
On this ____ day of _________, ____, before me personally came
________ ________________ who, being by me duly sworn, did state as follows:
that [s]he is ______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said ____________ and that [s]he did
so by authority of the [Board of Directors] of said ____________.
--------------------------------
Notary Public
STATE OF ______________)
) ss.:
COUNTY OF _____________)
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bank of America, N.A., that [s]he
is authorized to execute the foregoing Grant on behalf of said corporation and
that [s]he did so by authority of the Board of Directors of said corporation.
--------------------------------
Notary Public
SCHEDULE A
----------
▇▇▇▇ REG. NO. REG. DATE
---- -------- ---------
ANNEX I
to
SECURITY AGREEMENT
------------------
GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
------------------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, [Name of Grantor], a __________ _________ (the
"Grantor") with principal offices at ____________________________, hereby
assigns and grants to Bank of America, N.A., as Collateral Agent, with
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Grantee"), a security interest in (i) all of the Grantor's rights, title and
interest in and to the United States patents (the "Patents") set forth on
Schedule A attached hereto, in each case together with (ii) all Proceeds (as
such term is defined in the Security Agreement referred to below) and products
of the Patents, and (iii) all causes of action arising prior to or after the
date hereof for infringement of any of the Patents or unfair competition
regarding the same.
THIS GRANT is made to secure the satisfactory performance and payment
of all the Obligations of the Grantor, as such term is defined in the Security
Agreement among the Grantor, the other assignors from time to time party
thereto and the Grantee, dated as of July 30, 2001 (as amended from time to
time, the "Security Agreement"). Upon the occurrence of the Termination Date
(as defined in the Security Agreement), the Grantee shall execute, acknowledge,
and deliver to the Grantor an instrument in writing releasing the security
interest in the Patents acquired under this Grant.
ANNEX I
Page 2
This Grant has been granted in conjunction with the security interest
granted to the Grantee under the Security Agreement. The rights and remedies of
the Grantee with respect to the security interest granted herein are as set
forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this
Grant are deemed to conflict with the Security Agreement, the provisions of the
Security Agreement shall govern.
* * *
Annex I
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Grant as of
the ____ day of ------------, ----.
[NAME OF GRANTOR], Grantor
By___________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Collateral Agent and Grantee
By___________________________
Name:
Title:
STATE OF ______________)
) ss:
COUNTY OF______________)
On this ____ day of _________, ____, before me personally came
________ ________________ who, being by me duly sworn, did state as follows:
that [s]he is ______________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said ____________ and that [s]he did
so by authority of the Board of Directors of said ____________.
-------------------------------
Notary Public
STATE OF ______________)
) ss:
COUNTY OF______________)
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Bank of America, N.A., that [s]he
is authorized to execute the foregoing Grant on behalf of said corporation and
that [s]he did so by authority of the Board of Directors of said corporation.
-------------------------------
Notary Public
SCHEDULE A
----------
PATENT PATENT NO. ISSUE DATE
------ ---------- ----------
Annex J
to
SECURITY AGREEMENT
------------------
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
---------------------------
WHEREAS, [Name of Grantor], a _______________ _____________ (the
"Grantor"), having its chief executive office at__________________,
___________________ , is the owner of all right, title and interest in and to
the United States copyrights and associated United States copyright
registrations and applications for registration set forth in Schedule A
attached hereto;
WHEREAS, BANK OF AMERICA, N.A., as Collateral Agent, having its
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Grantee"), desires to acquire a security interest in said copyrights and
copyright registrations and applications therefor; and
WHEREAS, the Grantor is willing to assign to the Grantee, and to
grant to the Grantee a security interest in and lien upon the copyrights and
copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the terms and conditions of the
Security Agreement, dated as of July 30, 2001, made by the Grantor, the other
assignors from time to time party thereto and the Grantee (as amended from time
to time, the "Security Agreement"), the Grantor hereby assigns to the Grantee
as collateral security, and grants to the Grantee a security interest in, the
copyrights and copyright registrations and applications therefor set forth in
Schedule A attached hereto.
This Grant has been granted in conjunction with the security interest granted
to the Grantee under the Security Agreement. The rights and remedies of the
Grantee with respect to the security interest granted herein are as set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference. In the event that any provisions of this Grant are deemed
to conflict with the Security Agreement, the provisions of the Security
Agreement shall govern.
* * *
Annex J
Page 2
IN WITNESS WHEREOF, the undersigned have executed this Grant as of
the ____ day of ___________, ____.
[NAME OF GRANTOR], Grantor
By___________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Collateral Agent and Grantee
By___________________________
Name:
Title:
STATE OF )
) ss:
COUNTY OF )
On this __ day of _________, ____, before me personally came
___________ ______________, who being duly sworn, did depose and say that [s]he
is ___________________ of [Name of Grantor], that [s]he is authorized to
execute the foregoing Grant on behalf of said corporation and that [s]he did so
by authority of the Board of Directors of said corporation.
-------------------------------
Notary Public
STATE OF ______________)
) ss.:
COUNTY OF______________)
On this ____ day of _________, ____, before me personally came
________ __________________ who, being by me duly sworn, did state as follows:
that [s]he is __________________ of Bank of America, N.A., that [s]he is
authorized to execute the foregoing Grant on behalf of said __________ and that
[s]he did so by authority of the Board of Directors of said _____________.
-------------------------------
Notary Public
ANNEX J
to
SECURITY AGREEMENT
------------------
U.S. COPYRIGHTS
---------------
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
------------- -------------- ---------------