EXHIBIT 10.2
CONFORMED COPY
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GUARANTEE AND COLLATERAL AGREEMENT
made by
NATIONAL WATERWORKS HOLDINGS, INC.,
NATIONAL WATERWORKS, INC.,
as Borrower
and certain of its Subsidiaries
in favor of
UBS AG, STAMFORD BRANCH,
as Administrative Agent
Dated as of November 22, 2002
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS...................................................................... 3
1.1 Definitions........................................................................ 3
1.2 Other Definitional Provisions...................................................... 6
SECTION 2. GUARANTEE.......................................................................... 6
2.1 Guarantee.......................................................................... 6
2.2 Right of Contribution.............................................................. 7
2.3 No Subrogation..................................................................... 7
2.4 Amendments, etc. with respect to the Borrower Obligations.......................... 8
2.5 Guarantee Absolute and Unconditional............................................... 8
2.6 Reinstatement...................................................................... 9
2.7 Payments........................................................................... 9
SECTION 3. GRANT OF SECURITY INTEREST......................................................... 9
SECTION 4. REPRESENTATIONS AND WARRANTIES..................................................... 10
4.1 No Other Liens..................................................................... 10
4.2 Perfected First Priority Liens..................................................... 10
4.3 Jurisdiction of Organization; Chief Executive Office............................... 11
4.4 Inventory and Equipment............................................................ 11
4.5 Farm Products...................................................................... 11
4.6 Investment Property................................................................ 11
4.7 Receivables........................................................................ 11
4.8 Contracts.......................................................................... 11
4.9 Intellectual Property.............................................................. 12
SECTION 5. COVENANTS.......................................................................... 12
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper................. 12
5.2 Maintenance of Perfected Security Interest; Further Documentation.................. 12
5.3 Investment Property................................................................ 13
5.4 Contracts.......................................................................... 14
SECTION 6. REMEDIAL PROVISIONS................................................................ 14
6.1 Certain Matters Relating to Receivables............................................ 14
6.2 Communications with Obligors; Grantors Remain Liable............................... 14
6.3 Pledged Stock...................................................................... 15
6.4 Proceeds to be Turned Over To Administrative Agent................................. 16
6.5 Application of Proceeds............................................................ 16
6.6 Code and Other Remedies............................................................ 16
6.7 Registration Rights................................................................ 17
6.8 Intellectual Property.............................................................. 18
6.9 Deficiency......................................................................... 18
SECTION 7. THE ADMINISTRATIVE AGENT........................................................... 18
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc........................ 18
7.2 Duty of Administrative Agent....................................................... 20
7.3 Execution of Financing Statements.................................................. 20
7.4 Authority of Administrative Agent.................................................. 20
SECTION 8. MISCELLANEOUS...................................................................... 20
8.1 Amendments in Writing.............................................................. 20
8.2 Notices............................................................................ 20
8.3 No Waiver by Course of Conduct; Cumulative Remedies................................ 21
8.4 Enforcement Expenses; Indemnification.............................................. 21
8.5 Successors and Assigns............................................................. 21
8.6 Set-Off............................................................................ 21
8.7 Counterparts....................................................................... 22
8.8 Severability....................................................................... 22
8.9 Section Headings................................................................... 22
8.10 Integration........................................................................ 22
8.11 GOVERNING LAW...................................................................... 22
8.12 Submission To Jurisdiction; Waivers................................................ 22
8.13 Acknowledgements................................................................... 23
8.14 Additional Grantors................................................................ 23
8.15 Releases........................................................................... 23
8.16 Construction....................................................................... 24
8.17 WAIVER OF JURY TRIAL............................................................... 24
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Inventory and Equipment Locations
Schedule 6 Intellectual Property
Schedule 7 Contracts
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 22,
2002, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
UBS AG, Stamford Branch, as Administrative Agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions or
entities (the "Lenders") from time to time parties to the Credit Agreement,
dated as of November 22, 2002 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among National Waterworks Holdings,
Inc. ("Holdings"), National Waterworks, Inc. (the "Borrower"), the Lenders,
JPMorgan Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as the
co-syndication agents thereunder, General Electric Capital Corporation and
Antares Capital Corporation, as the co-documentation agents thereunder, and the
Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement that the Grantors shall have executed and delivered this
Agreement to the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement, and the following terms are used herein as defined
in the New York UCC: Accounts, Certificated Security, Chattel Paper, Commercial
Tort Claims, Documents, Equipment, Farm Products, General Intangibles, Goods,
Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans and Reimbursement Obligations and
interest accruing at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding) to the Administrative Agent or any Lender (or, in the case of any
Specified Swap Agreement, any Affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Credit Agreement, this Agreement, the other Loan Documents, any Letter of
Credit, any Specified Swap Agreement or any other document made, delivered or
given in connection with any of the foregoing, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Lenders that are required to be
paid by the Borrower pursuant to the terms of any of the foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by
the Administrative Agent as provided in Section 6.1 or 6.4.
"Contracts": the contracts and agreements listed in Schedule
7, as such contracts and agreements may be amended, supplemented or otherwise
modified from time to time, including, without limitation, (i) all rights of any
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of any Grantor to damages arising
thereunder and (iii) all rights of any Grantor to perform and to exercise all
remedies thereunder.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed in Schedule
6), granting any right under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell materials derived
from any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code
of any applicable jurisdiction and, in any event, including, without limitation,
any demand, time, savings, passbook or like account maintained with a depositary
institution.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of
any Foreign Subsidiary.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2) or any
other Loan Document to which such Guarantor is a party, in each case whether on
account of guarantee obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other
than the Borrower.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to ▇▇▇ at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to Holdings or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-102(a)(49) of the New
York UCC (other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting "investment
property" as so defined, all Pledged Notes and all Pledged Stock.
"Issuers": the collective reference to each issuer of any
Investment Property.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor Obligations.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule 6, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in Schedule 6, and (iii) all rights to obtain
any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2,
all Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory notes
issued in connection with extensions of trade credit by any Grantor in the
ordinary course of business).
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock certificates, options,
interests or rights of any nature whatsoever in respect of the Capital Stock of
any Person that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect; provided that in no event shall more than 65% of the
total outstanding Foreign Subsidiary Voting Stock of any Excluded Foreign
Subsidiary (as defined in clause (a) of the definition of such term) be required
to be pledged hereunder and no Foreign Subsidiary Voting Stock of any Excluded
Foreign Subsidiary (as defined in clause (b) of the definition of such term)
shall be required to be pledged hereunder.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the New York UCC and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any Trademark,
including, without limitation, any of the foregoing referred to in Schedule 6.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(a) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(b) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(c) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 (in each case, other
than contingent or unliquidated obligations or liabilities) shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Borrower
Obligations.
(d) No payment made by the Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full (in each case, other than contingent or unliquidated obligations or
liabilities), no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Subsidiary Guarantor hereby agrees
that to the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantor's right of contribution shall be subject
to the terms and conditions of Section 2.3. The provisions of this Section 2.2
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Administrative Agent and the Lenders, and each Subsidiary
Guarantor shall remain liable to the Administrative Agent and the Lenders for
the full amount guaranteed by such Subsidiary Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are paid in full (other than contingent or
unliquidated obligations and liabilities), no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations shall not have been paid in full, such amount shall be held
by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine, subject to the terms of the Loan Documents.
2.4 Amendments, etc. with respect to the Borrower Obligations.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, subject to the terms of the Loan Documents, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Lender for the payment of the Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure, perfect or insure any Lien at any
time held by it as security for the Borrower Obligations or for the guarantee
contained in this Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Borrower Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
To the extent permitted by applicable law, each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower Obligations or
any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Administrative
Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any other Person against the Administrative Agent or
any Lender, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of the Borrower or such Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Borrower Obligations, or of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against the Borrower, any other Guarantor or any other
Person or against any collateral security or guarantee for the Borrower
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Borrower, any other
Guarantor or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any
Lender against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the Funding Office.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the
Administrative Agent, and hereby grants to the Administrative Agent, for the
ratable benefit of the Lenders, a security interest in such Grantor's right,
title and interest in all of the following property now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Deposit Accounts;
(e) all Documents;
(f) all Equipment;
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) all Letter-of-Credit Rights;
(m) all Goods;
(n) all other property not otherwise described above;
(o) all books and records pertaining to the Collateral; and
(p) to the extent not otherwise included, all Proceeds, Supporting
Obligations and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing;
provided, however, that notwithstanding any of the other
provisions set forth in this Section 3, this Agreement shall not constitute a
grant of a security interest in any property to the extent that (x) such grant
of a security interest is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained of any Governmental
Authority pursuant to such Requirement of Law or is prohibited by, or
constitutes a breach or default under or results in the termination of or
requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in
the case of any Investment Property, Pledged Stock or Pledged Note, any
applicable shareholder or similar agreement, except to the extent that such
Requirement of Law or the term in such contract, license, agreement, instrument
or other document or shareholder or similar agreement providing for such
prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law or (y) such property is subject to a Lien
permitted by Section 7.3(f), (g) or (l) of the Credit Agreement or by Section
7.3(o) of the Credit Agreement (to the extent such Lien is of the same type as
permitted by Section 7.3(g) of the Credit Agreement), and with respect to such
property the Administrative Agent and the Lenders are not permitted to obtain a
second priority Lien by the terms thereof; but provided further that the
security interests granted hereunder shall extend to the Proceeds of any
property described in this paragraph to the extent that such Proceeds are not
subject to either clause (x) or clause (y), and if such Proceeds are subject to
either clause (x) or clause (y), then this Agreement shall not constitute a
grant of a security interest in any such Proceeds.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, each Grantor hereby represents
and warrants to the Administrative Agent and each Lender that:
4.1 No Other Liens. Except for the security interest granted to
the Administrative Agent for the ratable benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others. No financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Administrative
Agent or with respect to which arrangements satisfactory to the Administrative
Agent for termination have been made, for the ratable benefit of the Lenders,
pursuant to this Agreement or as are permitted by the Credit Agreement.
4.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral (as to which perfection may be obtained by
such filings and other actions) in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor and (b) are prior to all
other Liens on the Collateral in existence on the date hereof except for Liens
permitted by the Credit Agreement which have priority over the Liens on the
Collateral by operation of law.
4.3 Jurisdiction of Organization; Chief Executive Office. On the
date hereof, such Grantor's jurisdiction of organization, identification number
from the jurisdiction of organization (if any), and the location of such
Grantor's chief executive office or sole place of business or principal
residence, as the case may be, are specified on Schedule 4 and such Grantor has
furnished to the Administrative Agent a certified charter, certificate of
incorporation or other organization document and long-form good standing
certificate as of a date which is recent to the date hereof.
4.4 Inventory and Equipment. On the date hereof, the Inventory and
the Equipment (other than mobile goods) are kept at the locations listed on
Schedule 5.
4.5 Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.6 Investment Property. (a) The shares of Pledged Stock pledged
by such Grantor hereunder constitute all the issued and outstanding shares of
all classes of the Capital Stock of each Issuer owned by such Grantor or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) To the best of such Grantor's knowledge, each of the Pledged
Notes constitutes the legal, valid and binding obligation of the obligor with
respect thereto, enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has
good and marketable title to, the Investment Property pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except for the Liens created by this Agreement and such other security
interests permitted by the Credit Agreement.
4.7 Receivables. (a) No amount in excess of $250,000 payable to
such Grantor under or in connection with any Receivable is evidenced by any
Instrument or Chattel Paper which has not been delivered to the Administrative
Agent.
(b) The amounts represented by such Grantor to the Lenders from
time to time as owing to such Grantor in respect of the Receivables will at such
times be accurate in all material respects.
4.8 Contracts. (a) Schedule 7 lists all contracts and agreements
of such Grantor that may be material to the conduct of the business of such
Grantor.
(b) Except for the failure of which could not reasonably be
expected to have a Material Adverse Effect, each Contract is in full force and
effect and constitutes a valid and legally enforceable obligation of the parties
thereto, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(c) Neither such Grantor nor (to the best of such Grantor's
knowledge) any of the other parties to the Contracts is in default in the
performance or observance of any of the terms thereof in any manner that, in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(d) Such Grantor has made available to the Administrative Agent a
complete and correct copy of each Contract, including all amendments,
supplements and other modifications thereto.
(e) No amount in excess of $250,000 payable to such Grantor under
or in connection with any Contract is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Administrative Agent.
4.9 Intellectual Property. (a) Schedule 6 lists all registered
Intellectual Property owned by such Grantor in its own name on the date hereof.
(b) Except as set forth in Schedule 6, on the date hereof, none of
the Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative
Agent and the Lenders that, from and after the date of this Agreement until the
Obligations (other than contingent or unliquidated obligations and liabilities)
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Delivery of Instruments, Certificated Securities and Chattel
Paper. If any amount in excess of $250,000 payable under or in connection with
any of the Collateral shall be or become evidenced by any Instrument,
Certificated Security or Chattel Paper, such Instrument, Certificated Security
or Chattel Paper shall be promptly delivered to the Administrative Agent, duly
indorsed in a manner satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Agreement.
5.2 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.2 and shall use commercially reasonable efforts to defend
such security interest against any material claims and demands of all Persons
whomsoever (other than Persons claiming by, through or under the Administrative
Agent), subject to the rights of such Grantor under the Loan Documents to
dispose of the Collateral.
(b) As soon as practicable following the request of the
Administrative Agent, such Grantor will furnish to the Administrative Agent and
the Lenders statements and schedules further identifying and describing the
assets and property of such Grantor and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment
Property, Deposit Accounts, Letter-of-Credit Rights and any other relevant
Collateral, taking any actions reasonably necessary to enable the Administrative
Agent to obtain "control" (within the meaning of the applicable Uniform
Commercial Code) with respect thereto.
5.3 Investment Property. (a) If such Grantor shall become entitled
to receive or shall receive any certificate (including, without limitation, any
certificate representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Administrative
Agent and the Lenders, hold the same in trust for the Administrative Agent and
the Lenders and deliver the same forthwith to the Administrative Agent in the
exact form received, duly indorsed by such Grantor to the Administrative Agent,
if required, together with an undated stock power covering such certificate duly
executed in blank by such Grantor and with, if the Administrative Agent so
reasonably requests, signature guaranteed, to be held by the Administrative
Agent, subject to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Investment Property (other
than Cash Equivalents) upon the liquidation or dissolution of any Issuer (other
than, so long as no Event of Default shall have occurred and be continuing, with
respect to a dissolution or liquidation permitted by Section 7.4 of the Credit
Agreement) shall be paid over to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Investment
Property (other than Cash Equivalents) or any property shall be distributed upon
or with respect to the Investment Property pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property so distributed shall, unless otherwise subject to a
perfected security interest in favor of the Administrative Agent, be delivered
to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Investment Property shall be received by such
Grantor, such Grantor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Grantor will not (i) vote to enable, or take any other action to permit,
any Issuer to issue (except to such Grantor or another Grantor) any Capital
Stock of any nature or to issue (except to such Grantor or another Grantor) any
other securities convertible into or granting the right to purchase or exchange
for any Capital Stock of any nature of any Issuer, (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Investment Property or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreement), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or Liens permitted
under the Credit Agreement or (iv) enter into any agreement or undertaking
restricting the right or ability of such Grantor or the Administrative Agent to
sell, assign or transfer any of the Investment Property or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Investment Property issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.7(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Investment Property issued by it.
5.4 Contracts. (a) Such Grantor will perform and comply in all
respects with all its obligations under the Contracts, except to the extent that
failure to do so could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Except as could not reasonably be expected to have a Material
Adverse Effect, such Grantor will not amend, modify, terminate or waive any
provision of any Contract in any manner which could reasonably be expected to
affect the value of such Contract as Collateral.
(c) Such Grantor will exercise promptly and diligently each and
every right which it may have under each Contract (other than any right of
termination), except to the extent that failure to do so could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Administrative Agent shall have the right to make test verifications of the
Receivables in any reasonable manner and through any reasonable medium (after
consultation with the Borrower), and each Grantor shall furnish all such
assistance and information as the Administrative Agent may require in connection
with such test verifications. At any time and from time to time, upon the
Administrative Agent's request (which request shall be limited to one request
per Grantor each fiscal year, unless otherwise consented to by the relevant
Grantor (such consent not to be unreasonably withheld or delayed); provided that
if an Event of Default has occurred and is continuing, such limitation on the
Administrative Agent's ability to make such request shall not be applicable) and
at the expense of the relevant Grantor, such Grantor shall cause independent
public accountants or others satisfactory to the Administrative Agent to furnish
to the Administrative Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to
collect such Grantor's Receivables, subject to the Administrative Agent's
direction and control, and the Administrative Agent may curtail or terminate
said authority at any time after the occurrence and during the continuance of an
Event of Default. If required by the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, any payments of
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Administrative Agent if required,
in a Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Grantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
(c) At the Administrative Agent's reasonable request, each Grantor
shall deliver to the Administrative Agent copies of all documents evidencing,
and relating to, the agreements and transactions which gave rise to the
Receivables, including, without limitation, copies of all orders, invoices and
shipping receipts. Originals of such documents shall be provided if necessary,
in the reasonable discretion of the Administrative Agent, upon the request of
the Administrative Agent.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
Administrative Agent, in its own name or in the name of others, may at any time
after the occurrence and during the continuance of an Event of Default and upon
written notice to the Borrower, communicate with obligors under the
Receivables and parties to the Contracts to verify with them to the
Administrative Agent's satisfaction the existence, amount and terms of any
Receivables or Contracts.
(b) Upon the request of the Administrative Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Receivables and parties to the Contracts that the
Receivables and the Contracts have been assigned to the Administrative Agent for
the ratable benefit of the Lenders and that payments in respect thereof shall be
made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables and Contracts 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
thereto. Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) or Contract by reason of or arising out of this Agreement or the
receipt by the Administrative Agent or any Lender of any payment relating
thereto, nor shall the Administrative Agent or any Lender be obligated in any
manner to perform any of the obligations of any Grantor under or pursuant to any
Receivable (or any agreement giving rise thereto) or Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have given notice
to the relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid to the extent
permitted in the Credit Agreement, and to exercise all voting and corporate or
other organizational rights with respect to the Investment Property; provided,
however, that no vote shall be cast or corporate or other organizational right
exercised or other action taken which, in the Administrative Agent's reasonable
judgment, would impair the Collateral or which would result in any violation of
any provision of the Credit Agreement, this Agreement or any other Loan
Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Property (other than cash dividends, payments and
other Proceeds permitted to be paid pursuant to 7.6(c) of the Credit Agreement)
and make application thereof to the Obligations in such order as the
Administrative Agent may reasonably determine, and (ii) any or all of the
Investment Property shall be registered in the name of the Administrative Agent
or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (x) all voting, corporate and other rights pertaining to such
Investment Property at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate or other
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Administrative Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may reasonably determine), all without
liability except to account for property actually received by it, but the
Administrative Agent shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of
any Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) to the extent expressly
required hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In
addition to the rights of the Administrative Agent and the Lenders specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, at the request of the Administrative Agent, all
Proceeds received by any Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Grantor, and shall, forthwith
upon receipt by such Grantor, be turned over to the Administrative Agent in the
exact form received by such Grantor (duly indorsed by such Grantor to the
Administrative Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while held
by the Administrative Agent in a Collateral Account (or by such Grantor in trust
for the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. If an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds constituting
Collateral, whether or not held in any Collateral Account, and any proceeds of
the guarantee set forth in Section 2, in payment of the Obligations in the
following order:
First, to pay incurred and unpaid fees and expenses of the
Administrative Agent under the Loan Documents;
Second, to the Administrative Agent, for application by it
towards payment of amounts then due and owing and remaining unpaid in respect of
the Obligations, pro rata among the Administrative Agent and the Lenders
according to the amounts of the Obligations then due and owing and remaining
unpaid to the Administrative Agent and the Lenders;
Third, to the Administrative Agent, for application by it
towards prepayment of the Obligations, pro rata among the Administrative Agent
and Lenders according to the amounts of the Obligations then held by the
Administrative Agent and the Lenders; and
Fourth, any balance of such Proceeds remaining after the then
outstanding Obligations shall have been paid in full (excluding contingent
indemnification obligations), no Letters of Credit shall be outstanding and the
Commitments shall have been terminated shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur
and be continuing, the Administrative Agent, on behalf of the Lenders, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Administrative Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived to the extent permitted by
applicable law), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Administrative Agent or any Lender
or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery, in
accordance with applicable law. The Administrative Agent or any Lender shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, under such circumstances, at the Administrative Agent's request,
to assemble the Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select, whether at such
Grantor's premises or elsewhere. The Administrative Agent shall apply the net
proceeds of any action taken by it pursuant to this Section 6.6, after deducting
all reasonable costs and expenses of every kind incurred in connection therewith
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615(a)(3) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any Lender arising out of the exercise by them of any rights hereunder other
than with respect to claims, damages and demands resulting from the gross
negligence or willful misconduct of the Administrative Agent or any Lender. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
6.7 Registration Rights. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to resort to
one or more private sales thereof to a restricted group of purchasers which will
be obliged to agree, among other things, to acquire such securities for their
own account for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private sale may
result in prices and other terms less favorable than if such sale were a public
sale. The Administrative Agent shall be under no obligation to delay a sale of
any of the Pledged Stock for the period of time necessary to permit the Issuer
thereof to register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Issuer would agree to do
so.
(c) Each Grantor agrees to use its commercially reasonable efforts
to do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Stock pursuant to this
Section 6.7 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Grantor further agrees that a breach of any
of the covenants contained in this Section 6.7 will cause irreparable injury to
the Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
6.8 Intellectual Property. In the event that the Loans become due
and payable pursuant to Section 8 of the Credit Agreement, the Administrative
Agent shall have the right to license the Intellectual Property of any Grantor
to any Person without the consent of such Grantor or any other Loan Party and
such Grantor shall take any action required by the Administrative Agent to
enable the Administrative Agent to so license such Intellectual Property.
6.9 Deficiency. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay its Obligations and the fees and disbursements of any
attorneys employed by the Administrative Agent or any Lender to collect such
deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be reasonably necessary or desirable to accomplish the
purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or Contract or with respect to any other Collateral and file any
claim or take any other action or proceeding in any court of law or equity
or otherwise deemed reasonably appropriate by the Administrative Agent for
the purpose of collecting any and all such moneys due under any Receivable
or Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Administrative Agent may reasonably request to evidence the
Administrative Agent's and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in
Section 6.6 or 6.7, any indorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Administrative Agent may deem
reasonably appropriate; (7) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such Copyright,
Patent or Trademark pertains), throughout the world for such term or terms,
on such conditions, and in such manner, as the Administrative Agent shall
in its sole discretion reasonably determine; and (8) generally, sell,
transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the
Administrative Agent were the absolute owner thereof for all purposes, and
do, at the Administrative Agent's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the Administrative
Agent deems reasonably necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's and the Lenders' security
interests therein and to effect the intent of this Agreement, all as fully
and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum equal to the highest rate per annum at
which interest would then be payable on any category of past due ABR Loans under
the Credit Agreement, from the date on which the Administrative Agent requests
reimbursement from the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent's and the Lenders' interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to any applicable
law, each Grantor authorizes the Administrative Agent to file or record
financing statements and other filing or recording documents or instruments with
respect to the Collateral without the signature of such Grantor in such form and
in such offices as the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under this Agreement.
Each Grantor authorizes the Administrative Agent to use the collateral
description "all personal property" in any such financing statements.
7.4 Authority of Administrative Agent. Each Grantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Grantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 10.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1 with a copy to be
delivered to each of the Borrower and its counsel as set forth in Section 10.2
of the Credit Agreement.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
agrees to pay or reimburse each Lender and the Administrative Agent for all its
costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such Guarantor is a
party, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the
extent the Borrower would be required to do so pursuant to Section 10.5 of the
Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
Administrative Agent and each Lender (but excluding any Participant) if an Event
of Default has occurred and is continuing, without prior notice to such Grantor
or any other Grantor, any such prior notice being expressly waived by each
Grantor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Grantor to the Administrative Agent or such
Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the Administrative Agent or such Lender may elect, whether or
not the Administrative Agent or any Lender has made any demand for payment and
although such obligations,
liabilities and claims may be contingent or unmatured. The Administrative Agent
and each Lender shall notify such Grantor promptly of any such set-off and the
application made by the Administrative Agent or such Lender of the proceeds
thereof, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Administrative Agent
and each Lender under this Section 8.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 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.
8.9 Section Headings. The Section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the Administrative Agent
and Lenders, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Grantors and the Lenders.
8.14 Additional Grantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to Section 6.9 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.15 Releases. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations (other than Obligations in respect of
Specified Swap Agreements and contingent or unliquidated obligations and
liabilities) shall have been paid in full, the Commitments have been terminated
and no Letters of Credit shall be outstanding, the Collateral shall be
automatically released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Administrative Agent
shall deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement (including indirectly through the sale, transfer or other disposition
of the Capital Stock of a Subsidiary Guarantor), or otherwise permitted by the
Required Lenders or all the Lenders, as applicable, pursuant to Section 10.1 of
the Credit Agreement, the Lien of the Administrative Agent in such Collateral
shall be, and is hereby deemed to be, automatically released and the
Administrative Agent, at the request and sole expense of such Grantor, shall
execute and deliver to such Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral. At the request and sole expense of the Borrower, a Subsidiary
Guarantor shall be, and is hereby deemed to be, automatically released from its
obligations hereunder in the event that all the Capital Stock of such Subsidiary
Guarantor shall be sold, transferred or otherwise disposed of in a transaction
permitted by the Credit Agreement or otherwise permitted by the Required Lenders
or all Lenders, as applicable, pursuant to Section 10.1 of the Credit Agreement.
8.16 Construction. In the event of any inconsistency between the
terms of this Agreement and the terms of the Credit Agreement, the terms of the
Credit Agreement shall govern to the extent necessary to resolve such
inconsistency.
8.17 WAIVER OF JURY TRIAL. EACH GRANTOR AND THE ADMINISTRATIVE
AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
NATIONAL WATERWORKS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Title: President and C.E.O.
NATIONAL WATERWORKS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Title: C.F.O. and Secretary
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
--------------------------------------------------------------------------------
National Waterworks, Inc. American Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
National Waterworks Holdings, Inc. American Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
SCHEDULE 2
DESCRIPTION OF INVESTMENT PROPERTY
PLEDGED STOCK:
Issuer Class of Stock Stock Certificate No. No. of Shares
National Waterworks, Common 1 100
Inc.
------------------------ -------------------- ------------------------- -----------------
PLEDGED NOTES:
Issuer Payee Principal Amount
None -- --
--------------------------------------------------------------------
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Delaware Secretary of State
Patent and Trademark Filings
Filing with the United States Patent and Trademark Office
Actions with respect to Pledged Stock
Agent given possession of stock certificate, along with signed
stock power in blank
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Jurisdiction of Location of Chief
--------------- -----------------
Grantor Organization Executive Office
------- ------------ ----------------
National Waterworks, Inc. Delaware Waco, Texas
National Waterworks Holdings, Inc. Delaware Waco, Texas
SCHEDULE 5
LOCATIONS OF INVENTORY AND EQUIPMENT
GRANTOR: National Waterworks, Inc.
OWNED LOCATIONS
STREET ADDRESS STATE
1. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
2. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
3. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
4. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
5. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
6. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
7. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇
8. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
9. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇
10. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
11. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇
12. ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
13. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇
14. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
15. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇
16. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇
17. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
18. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
19. ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇'▇▇▇▇▇▇ ▇▇
20. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇
21. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇
22. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇
23. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇
24. ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇
25. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇
26. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
27. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ PA
28. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇
29. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
30. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇
31. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ ▇▇
32. ▇▇▇▇ ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
33. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
34. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇
LEASED LOCATIONS
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
1. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
2. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇
Little Rock
----------------------------------------------------------------------------------------------------------
3. ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
4. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
5. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Tucson
----------------------------------------------------------------------------------------------------------
6. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Mohave Valley
----------------------------------------------------------------------------------------------------------
7. Canal Industrial Park, AZ
Tolleson
----------------------------------------------------------------------------------------------------------
8. ▇▇▇▇ ▇, ▇, ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Gilbert
----------------------------------------------------------------------------------------------------------
9. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇
Bakersfield
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
10. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
11. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇
Corona
----------------------------------------------------------------------------------------------------------
12. ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇
Escondido
----------------------------------------------------------------------------------------------------------
13. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇
Fresno
----------------------------------------------------------------------------------------------------------
14. ▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇
Indio
----------------------------------------------------------------------------------------------------------
15. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Lancaster
----------------------------------------------------------------------------------------------------------
16. ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Santa ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
17. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
18. ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
19. ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇
Pueblo
----------------------------------------------------------------------------------------------------------
20. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
21. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Smyrna
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
22. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇
Fort ▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
23. ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Oakland Park
----------------------------------------------------------------------------------------------------------
24. ▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Ocala
----------------------------------------------------------------------------------------------------------
25. ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇
Ocala
----------------------------------------------------------------------------------------------------------
26. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Pensacola
----------------------------------------------------------------------------------------------------------
27. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Rockledge
----------------------------------------------------------------------------------------------------------
28. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
Sarasota
----------------------------------------------------------------------------------------------------------
29. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Fort ▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
30. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
31. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Tallahassee
----------------------------------------------------------------------------------------------------------
32. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Augusta
----------------------------------------------------------------------------------------------------------
33. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇
Buford
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
34. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Byron
----------------------------------------------------------------------------------------------------------
35. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
36. ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------------------------------------------------------------
37. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Stream
----------------------------------------------------------------------------------------------------------
38. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Lebanon
----------------------------------------------------------------------------------------------------------
39. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Bloomington
----------------------------------------------------------------------------------------------------------
40. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
St. ▇▇▇▇
----------------------------------------------------------------------------------------------------------
41. Junction U.S. 31 North & Highway 18 IN
Kokomo
----------------------------------------------------------------------------------------------------------
42. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
43. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Bowling Green
----------------------------------------------------------------------------------------------------------
44. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Lexington
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
45. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------------------------------------------------------------
46. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
47. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
Littleton
----------------------------------------------------------------------------------------------------------
48. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Elkridge
----------------------------------------------------------------------------------------------------------
49. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Novi
----------------------------------------------------------------------------------------------------------
50. 6575 23 Mile Road MI
Shelby Township
----------------------------------------------------------------------------------------------------------
51. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Eden Prairie
----------------------------------------------------------------------------------------------------------
52. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Edina
----------------------------------------------------------------------------------------------------------
53. ▇▇▇▇▇-▇▇▇▇ ▇▇. ▇.▇. ▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
54. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Independence
----------------------------------------------------------------------------------------------------------
55. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
Asheville
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
56. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
Charlotte
----------------------------------------------------------------------------------------------------------
57. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Greensboro
----------------------------------------------------------------------------------------------------------
58. Seventh Street Court S.E. NC
Hickory
----------------------------------------------------------------------------------------------------------
59. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Morrisville
----------------------------------------------------------------------------------------------------------
60. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Pineville
----------------------------------------------------------------------------------------------------------
61. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
Wilmington
----------------------------------------------------------------------------------------------------------
62. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Omaha
----------------------------------------------------------------------------------------------------------
63. 212 Williamstown - New Freedom Road NJ
▇▇▇▇▇▇▇ Township
----------------------------------------------------------------------------------------------------------
64. ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇
Forked River
----------------------------------------------------------------------------------------------------------
65. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇
Albuquerque
----------------------------------------------------------------------------------------------------------
66. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Las Cruces
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
67. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
Las Vegas
----------------------------------------------------------------------------------------------------------
68. ▇▇ ▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
69. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Masillon
----------------------------------------------------------------------------------------------------------
70. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Monroe
----------------------------------------------------------------------------------------------------------
71. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
72. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Westerville
----------------------------------------------------------------------------------------------------------
73. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Alpha
----------------------------------------------------------------------------------------------------------
74. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Hillsboro
----------------------------------------------------------------------------------------------------------
75. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Medford
----------------------------------------------------------------------------------------------------------
76. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Upper Macungie
----------------------------------------------------------------------------------------------------------
77. 3668 Crescent County PA
Whitehall Township
----------------------------------------------------------------------------------------------------------
78. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Plymouth Meeting
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
79. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
Charleston
----------------------------------------------------------------------------------------------------------
80. 143 and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
81. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
82. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Conway
----------------------------------------------------------------------------------------------------------
83. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
84. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Sumter
----------------------------------------------------------------------------------------------------------
85. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Murfreesboro
----------------------------------------------------------------------------------------------------------
86. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇
Memphis
----------------------------------------------------------------------------------------------------------
87. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇
Blountville
----------------------------------------------------------------------------------------------------------
88. ▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
Nashville
----------------------------------------------------------------------------------------------------------
89. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇
----------------------------------------------------------------------------------------------------------
90. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
91. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
----------------------------------------------------------------------------------------------------------
92. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇
Corpus Christi
----------------------------------------------------------------------------------------------------------
93. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Houston
----------------------------------------------------------------------------------------------------------
94. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Houston
----------------------------------------------------------------------------------------------------------
95. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Laredo
----------------------------------------------------------------------------------------------------------
96. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇
McAllen
----------------------------------------------------------------------------------------------------------
97. ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇
San Antonio
----------------------------------------------------------------------------------------------------------
98. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇
Tyler
----------------------------------------------------------------------------------------------------------
99. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
Waco
----------------------------------------------------------------------------------------------------------
100. ▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
----------------------------------------------------------------------------------------------------------
101. Aircraft Hangar Building 219, Waco-Madison ▇▇▇▇▇▇ Airport TX
Waco
----------------------------------------------------------------------------------------------------------
102. Office Maintenance Hanger - Waco Regional Airport, TX
Waco
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
103. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇
Ogden
----------------------------------------------------------------------------------------------------------
104. 8380 S. 4052, UT
West Jorden
----------------------------------------------------------------------------------------------------------
105. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Sterling
----------------------------------------------------------------------------------------------------------
106. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇
Chesapeake
----------------------------------------------------------------------------------------------------------
107. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇
Falmouth
----------------------------------------------------------------------------------------------------------
108. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
109. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇
Roanoke
----------------------------------------------------------------------------------------------------------
110. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Bellingham
----------------------------------------------------------------------------------------------------------
111. ▇▇▇▇ ▇▇▇ ▇▇, ▇▇
▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------
112. Pasco Airport Industrial Park, WA
Pasco
----------------------------------------------------------------------------------------------------------
113. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Seattle
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
STREET ADDRESS STATE
----------------------------------------------------------------------------------------------------------
114. ▇▇▇▇-▇ ▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇
Vancouver
----------------------------------------------------------------------------------------------------------
SCHEDULE 6
COPYRIGHTS AND COPYRIGHT LICENSES
Copyrights:
1. WATER CITY Poster Design
2. POWERSCOPE
PATENTS AND PATENT LICENSES
Patents:
1. U.S. Patent No. 5,074,526
TRADEMARKS AND TRADEMARK LICENSES
1. POWERSCOPE - Common Law ▇▇▇▇ - unregistered service ▇▇▇▇
SCHEDULE 7
CONTRACTS
1) CONTRACTS FOR THE PURCHASE OF GOODS AND/OR SERVICES INVOLVING TOTAL ANNUAL
PAYMENTS IN EXCESS OF $500,000
-------------------------------------------------------------------------------------------------------------
OTHER PARTY AGREEMENT DATE
-------------------------------------------------------------------------------------------------------------
Neenah Foundry Company Consignment Agreement November 22, 2000
-------------------------------------------------------------------------------------------------------------
North American Pipe Corporation Distributor Agreement May 11, 2001
-------------------------------------------------------------------------------------------------------------
Badger Meter, Inc. Distributor Resale Supply Agreement May 18, 1998
-------------------------------------------------------------------------------------------------------------
Invensys Metering Systems Distributorship Agreements Various
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Co. Distribution Agreements Various
-------------------------------------------------------------------------------------------------------------
2) CONTRACTS FOR THE SALE OF GOODS AND/OR SERVICES INVOLVING TOTAL ANNUAL
REVENUES IN EXCESS OF $500,000
-------------------------------------------------------------------------------------------------------------
OTHER PARTY AGREEMENT DATE
-------------------------------------------------------------------------------------------------------------
City of Corona Bid No. 02-06 July 11, 2001
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ City RFP No. 105-01*02 January 9, 2002 (bid)
"Backflow Assembly Test & Repair April 1, 2002 (PO)
-------------------------------------------------------------------------------------------------------------
Las Vegas Valley Water Bid No. 4803-00 Renewed 06/30/01 thru 06/30/02
3/4" Stamped Copper Tubing
-------------------------------------------------------------------------------------------------------------
Denver ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ 07/1/00
Renewed 07/01/02 thru 06/30/2002
-------------------------------------------------------------------------------------------------------------
City of Berwyn Water Meter Agreement May 5, 1999
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Plumbing Company Subcontract (to Berwyn Water Meter April 30, 1999
Agreement)
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
Village of Forest Park Water Meter Agreement 01/09/00
-------------------------------------------------------------------------------------------------------------
Professional Meters, Inc. Subcontract (to Forest Park Water 01/18/01
Meter Agreement)
-------------------------------------------------------------------------------------------------------------
Alliant/Wisc Power Blanket Order GO002992 05/24/01
-------------------------------------------------------------------------------------------------------------
City of Houston Plastic Meter Boxes Contract 05/22/01-05/30/04
SC-R-9999-031013086
-------------------------------------------------------------------------------------------------------------
City of Houston Water Meter R/P Contract 05/15/02
SC-R-4515-031-13401
-------------------------------------------------------------------------------------------------------------
DeKalb Co. Government Contract No. 5145-01 Renewed April 1, 2002 thru May 31,
2003
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ City Water & Sewerage Bid for Contract I- Manholes and 11/21/01
Authority Contract II - Polyvinylchloride
Profile Sewer Pipe
-------------------------------------------------------------------------------------------------------------
City of Apopka Contract No. 99-157 Renewed February 1, 2002 thru
January 31, 2003
-------------------------------------------------------------------------------------------------------------
Orange County Government 1. Contract #Y1-1011A 1. Renewed for June 5, 2002 thru
Water Meter Boxes, Lot I June 4, 2003
2. Contract #Y9-1011 Water Pipes,
Valves & Fittings 2. September 22, 1999 thru 09/21/02
-------------------------------------------------------------------------------------------------------------
Indian River County Utility Department IRC Bid #6010 Utilities Supplies & Renewed from 10/01/01/ thru
Materials 09/30/02. Up for rebid as of
9/30/02 and such new contract has
not yet been awarded
-------------------------------------------------------------------------------------------------------------
Ft. ▇▇▇▇▇▇ Utility Authority Bid No. 5140 (Piggyback Indian River 06/11/01. 06/05/01 thru 09/30/01
County Bid No. 6010) with annual renewals through 09/30/05
-------------------------------------------------------------------------------------------------------------
Knoxville Utilities Board Purchase Order 6752 Renewed 07/01/01/ thru 06/30/02
-------------------------------------------------------------------------------------------------------------
City of Camden Contract and Agreement (for cold 03/05/01
water meters)
-------------------------------------------------------------------------------------------------------------
Cleveland, City of Contract No. 58750 01/29/02 (1 yr)
▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ 11/09/01 (3 yrs)
-------------------------------------------------------------------------------------------------------------
Borough of Edinboro Bid for new meter re-setters 11/20/01
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
The Village of Lagrange Park Water Meter Agreement 10/24/01
-------------------------------------------------------------------------------------------------------------
Professional Meter Inc. Subcontract to Village of Lagrange 10/24/01
Park Water Meter Agreement
-------------------------------------------------------------------------------------------------------------
Chanhassen Utility Department Contract 10/19/01
-------------------------------------------------------------------------------------------------------------
FSC Sales & Service Inc. Purchase Agreement 173-001A 07/10/01
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ Bros Corp-Bartow-Farmland Job Contract #8141217 02/14/02 (PO)
-------------------------------------------------------------------------------------------------------------
Brandbury ▇▇▇▇▇ Construction Purchase Order 11/15/00 (PO)
Job No. 3999
Bid ID: 418291
-------------------------------------------------------------------------------------------------------------
Alburquerque Underground Purchase Order No. 201015-01 03/08/02
-------------------------------------------------------------------------------------------------------------
3) CONTRACTS (OTHER THAN SALES AGENCY OR DISTRIBUTOR AGREEMENTS) CONTAINING
COVENANTS MATERIALLY RESTRICTING LINE OF BUSINESS
Noncompetition Agreement dated January 1, 2001 between Distribution and ISCO
Industries, LLC. The agreement restricts, among other matters, Distribution from
the following activities: the business of fabrication, distribution or sale of
HDPE pipe for any use except municipal markets in Florida, Georgia, North
Carolina and South Carolina for five (5) years commencing January 1, 2001.
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Guarantee
and Collateral Agreement dated as of November 22, 2002 (the "Agreement"), made
by the Grantors parties thereto for the benefit of UBS AG, Stamford Branch, as
Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the
Agreement and will comply with such terms insofar as such terms are applicable
to the undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.3(a) of the Agreement.
3. The terms of Sections 6.3(c) and 6.7 of the Agreement
shall apply to it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:_______________________________________
Name:
Title:
Address for Notices:
_________________________________________
_________________________________________
_________________________________________
Fax:
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 200__,
made by ______________________________ (the "Additional Grantor"), in favor of
UBS AG, Stamford Branch, as administrative agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions or
entities (the "Lenders") parties to the Credit Agreement referred to below. All
capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.
W I T N E S S E T H :
WHEREAS, National Waterworks Holdings, Inc. ("Holdings"),
National Waterworks, Inc. (the "Borrower"), the Lenders, JPMorgan Securities
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as the co-syndication agents
thereunder, General Electric Capital Corporation and Antares Capital
Corporation, as the co-documentation agents thereunder, and the Administrative
Agent have entered into a Credit Agreement, dated as of November 22, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
and certain of its Affiliates (other than the Additional Grantor) have entered
into the Guarantee and Collateral Agreement, dated as of November 22, 2002 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
and Collateral Agreement") in favor of the Administrative Agent for the benefit
of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor
to become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Guarantee
and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Grantor thereunder. The information set forth
in Annex 1-A hereto is hereby added to the information set forth in the
Schedules to the Guarantee and Collateral Agreement. The Additional Grantor
hereby represents and warrants that, with respect to the Additional Grantor
only, each of the representations and warranties contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct on and as the date hereof
(after giving effect to this Assumption Agreement) as if made on and as of such
date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:___________________________
Name:
Title:
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
Supplement to Schedule 7