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EXHIBIT 10.36
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SECURITY AGREEMENT
Dated as of March 13, 1998
between
APRIA HEALTHCARE GROUP INC.
APRIA HEALTHCARE, INC.
APRIACARE MANAGEMENT SYSTEMS, INC.
APRIA NUMBER TWO, INC.
APRIA HEALTHCARE OF NEW YORK STATE, INC.
and
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative and Collateral Agent for the Banks
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TABLE OF CONTENTS
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Section 1. Definitions and Interpretation................ 1
1.01 Certain Defined Terms......................... 1
1.02 Interpretation................................ 4
Section 2. Collateral.................................... 4
2.01 Grant......................................... 4
2.02 Intellectual Property......................... 7
2.03 Perfection.................................... 7
2.04 Preservation and Protection of Security.......
Interests..................................... 7
2.05 Attorney-in-Fact.............................. 9
2.06 Special Provisions Relating to Stock..........
Collateral.................................... 9
2.07 Use of Intellectual Property.................. 10
2.08 Instruments................................... 11
2.09 Use of Collateral............................. 11
2.10 Rights and Obligations........................ 11
2.12 Termination................................... 12
Section 3. Representations and Warranties................ 12
3.01 Title......................................... 12
3.02 Pledged Stock................................. 13
3.03 Intellectual Property......................... 13
3.04 Goods......................................... 14
Section 4. Covenants..................................... 14
4.01 Books and Records............................. 14
4.02 Removals, Etc. ............................... 15
4.03 Sales and Other Liens......................... 15
4.04 Stock Collateral.............................. 15
4.05 Intellectual Property......................... 16
4.06 Insurance..................................... 17
4.07 Further Assurances............................ 17
Section 5. Remedies...................................... 17
5.01 Events of Default, Etc. ...................... 17
5.02 Deficiency.................................... 18
5.03 Private Sale.................................. 19
5.04 Application of Proceeds....................... 19
Section 6. Miscellaneous................................. 20
6.01 The Agent..................................... 20
6.02 Waiver........................................ 20
6.03 Notices....................................... 21
6.04 Expenses, Etc. ............................... 21
6.05 Amendments, Etc. ............................. 21
6.06 Successors and Assigns........................ 22
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6.07 Survival.................................... 22
6.08 Agreements Superseded....................... 22
6.09 Severability................................ 22
6.10 Captions.................................... 22
6.11 Counterparts................................ 22
6.12 GOVERNING LAW; SUBMISSION TO JURISDICTION... 22
6.13 WAIVER OF JURY TRIAL........................ 23
ANNEX 1 - PLEDGED STOCK
ANNEX 2 - LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS
AND APPLICATIONS FOR COPYRIGHT REGISTRATION
ANNEX 3 - LIST OF TRADE NAMES, TRADEMARKS, SERVICE
MARKS, TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
AND APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇
REGISTRATIONS
ANNEX 4 - LIST OF CONTRACTS, LICENSES AND OTHER
AGREEMENTS
ANNEX 5 - LIST OF LOCATIONS
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SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement") dated as of March 13, 1998
is made between Apria Healthcare Group Inc., Apria Healthcare, Inc., ApriaCare
Management Systems, Inc. (formerly known as Apria Number One, Inc.), Apria
Number Two, Inc., Apria Healthcare of New York State, Inc. (formerly known as
Homedco of New York State, Inc.) (collectively, the "Obligors") and Bank of
America National Trust and Savings Association, as Administrative and Collateral
Agent for the Banks (the "Agent").
RECITALS
I. The Borrowers, the Banks, the Syndication Agent and the
Administrative Agent are parties to the Credit Agreement dated as of August 9,
1996 (the "Credit Agreement"), as amended by the First Amendment to Credit
Agreement dated as of April 22, 1997, the Second Amendment to Credit Amendment
dated as of August 8, 1997, the Third Amendment to Credit Agreement and Waiver,
dated as of January 30, 1998, and the Fourth Amendment to Credit Agreement and
Waiver (the "Fourth Amendment"), dated as of March 13, 1998, pursuant to which
the Banks extended certain credit to the Borrowers.
II. It is a condition to the Banks entering into the Fourth Amendment
that each Obligor shall have executed and delivered, and granted the Liens
provided for in, this Agreement.
To induce the Banks to enter into the Fourth Amendment and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Obligor has agreed to pledge and grant a security interest in
the Collateral as security for the Obligations. Accordingly, the Obligors agree
with the Agent as follows:
Section 1. Definitions and Interpretation.
1.01 Certain Defined Terms. Unless otherwise defined, all capitalized
terms used in this Agreement that are defined in the Credit Agreement (including
those terms incorporated by reference) shall have the respective meanings
assigned to them in the Credit Agreement. In addition, the following terms shall
have the following meanings under this Agreement:
"Accounts" shall have the meaning assigned to that term
in Section 2.01(b).
"Collateral" shall have the meaning assigned to that
term in Section 2.01.
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"Copyright Collateral" shall mean all Copyrights, whether now owned or
hereafter acquired by any Obligor, including each Copyright identified in Annex
2. Notwithstanding the foregoing, the Copyright Collateral shall not include any
Copyright which would be rendered invalid, abandoned, void or unenforceable by
reason of its being included as part of the Copyright Collateral.
"Copyrights" shall mean, collectively, (a) all copyrights, copyright
registrations and applications for copyright registrations, (b) all renewals and
extensions of all copyrights, copyright registrations and applications for
copyright registration and (c) all rights, now existing or hereafter coming into
existence, (i) to all income, royalties, damages and other payments (including
in respect of all past, present or future infringements) now or hereafter due or
payable under or with respect to any of the foregoing, (ii) to ▇▇▇ for all past,
present and future infringements with respect to any of the foregoing and (iii)
otherwise accruing under or pertaining to any of the foregoing throughout the
world.
"Documents" shall have the meaning assigned to that
term in Section 2.01(f).
"Equipment" shall have the meaning assigned to that
term in Section 2.01(e).
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"Filing States" shall mean California, Colorado,
Connecticut, Florida, Indiana and Pennsylvania.
"Instruments" shall have the meaning assigned to that
term in Section 2.01(c).
"Intellectual Property" shall mean all Copyright Collateral and all
Trademark Collateral, together with (a) all inventions, processes, production
methods, proprietary information, know-how and trade secrets; (b) all licenses
or user or other agreements granted to any Obligor with respect to any of the
foregoing, in each case whether now or hereafter owned or used, including the
licenses or other agreements with respect to
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the Copyright Collateral or the Trademark Collateral listed in Annex 3; (c) all
information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery
software and programs; (d) all field repair data, sales data and other
information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media in which or on which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) all governmental approvals now held or hereafter
obtained by any Obligor in respect of any of the foregoing; and (g) all causes
of action, claims and warranties now owned or hereafter acquired by any Obligor
in respect of any of the foregoing. It is understood that Intellectual Property
shall include all of the foregoing owned or acquired by each Obligor on a
worldwide basis.
"Inventory" shall have the meaning assigned to that
term in Section 2.01(d).
"Issuers" shall mean, collectively, each Material Subsidiary, directly
or indirectly, of Apria that issues any shares of capital stock now owned or
hereafter acquired by any Obligor, including the respective corporations
identified in Annex 1 under the caption "Issuer."
"Obligations" shall mean (a) any and all Obligations and (b) any and
all obligations of the Obligors for the performance of their agreements,
covenants and undertakings under or in respect of the Credit Documents.
"Pledged Stock" shall have the meaning assigned to that term in
Section 2.01(a).
"Stock Collateral" shall have the meaning assigned to that term in
Section 2.01(a).
"Trademark Collateral" shall mean all Trademarks, whether now owned or
hereafter acquired by any Obligor, including each Trademark identified in Annex
3. Notwithstanding the foregoing, the Trademark Collateral shall not include any
Trademark which would be rendered invalid, abandoned, void or unenforceable by
reason of its being included as part of the Trademark Collateral.
"Trademarks" shall mean, collectively, (a) all trade names, trademarks
and service marks, logos, trademark and service ▇▇▇▇ registrations and
applications for trademark and service
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▇▇▇▇ registrations, (b) all renewals and extensions of any of the foregoing and
(c) all rights, now existing or hereafter coming into existence, (i) to all
income, royalties, damages and other payments (including in respect of all past,
present and future infringements) now or hereafter due or payable under or with
respect to any of the foregoing, (ii) to ▇▇▇ for all past, present and future
infringements with respect to any of the foregoing and (iii) otherwise accruing
under or pertaining to any of the foregoing throughout the world, together, in
each case, with the product lines and goodwill of the business connected with
the use of, or otherwise symbolized by, each such trade name, trademark and
service ▇▇▇▇.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of California from time to time or, by reason of mandatory
application, any other applicable jurisdiction.
Section 1.02 Interpretation. In this Agreement, unless otherwise
indicated, the singular includes the plural and the plural the singular; words
importing either gender include the other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to this Agreement; references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments, extensions and other modifications to such instruments
(without, however, limiting any prohibition on any such amendments, extensions
and other modifications by the terms of any Credit Document); and references to
Persons include their respective permitted successors and assigns and, in the
case of Governmental Authority, Persons succeeding to their respective functions
and capacities.
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Section 2. Collateral.
2.01 Grant. As collateral security for the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) and performance
of the Obligations, each Obligor hereby pledges and grants to the Agent, for the
benefit of the Agent and the Banks, a security interest in all of such Obligor's
right, title and interest in and to the following property, whether now owned or
hereafter acquired by such Obligor and whether now existing or hereafter coming
into existence (collectively, the "Collateral"):
(a) (i) all of the shares of capital stock of the Issuers represented
by the respective certificates identified in Annex 1 under the name of such
Obligor and all other shares of capital stock of whatever class of the Issuers,
now owned or hereafter acquired by such Obligor, together with in each case the
certificates representing the same (collectively, the "Pledged Stock");
(ii) all shares, securities, moneys or property (a) representing
a dividend on, or a distribution or return of capital in respect of, any of the
Pledged Stock, (b) resulting from a split-up, revision, reclassification or
other like change of any of the Pledged Stock or (c) otherwise received in
exchange for any of the Pledged Stock and all Equity Rights issued to the
holders of, or otherwise in respect of, any of the Pledged Stock; and
(iii) without affecting the obligations of any Obligor under any
provision prohibiting such action under any Credit Document, in the event of any
consolidation or merger in which any Issuer is not the surviving corporation,
all shares of each class of the capital stock of the successor corporation
(unless such successor corporation is an Obligor) formed by or resulting from
such consolidation or merger (collectively, and together with the property
described in clauses (i) and (ii) above, the "Stock Collateral");
(b) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Obligor constituting a right to the payment of
money, whether or not earned by performance, including all moneys due and to
become due to such Obligor in repayment of any loans or advances, in payment for
goods (including Inventory and Equipment) sold or leased or for services
rendered, in payment of tax refunds and in payment of any guarantee of any of
the foregoing (collectively, the "Accounts");
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(c) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Obligor evidencing,
representing, arising from or existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the Accounts (collectively, the
"Instruments");
(d) all inventory (as defined in the Uniform Commercial Code) and all
other goods of such Obligor that are held by such Obligor for sale, lease or
furnishing under a contract of service (including to its Subsidiaries or
Affiliates), that are so leased or furnished or that constitute raw materials,
work in process or material used or consumed in its business, including all
spare parts and related supplies, all goods obtained by such Obligor in exchange
for any such goods, all products made or processed from any such goods and all
substances, if any, commingled with or added to any such goods (collectively,
the "Inventory");
(e) all equipment (as defined in the Uniform Commercial Code) and all
other goods of such Obligor that are used or bought for use primarily in its
business, including all spare parts and related supplies, all goods obtained by
such Obligor in exchange for any such goods, all substances, if any, commingled
with or added to such goods and all upgrades and other improvements to such
goods, in each case to the extent not constituting Inventory (collectively, the
"Equipment");
(f) all documents of title (as defined in the Uniform Commercial Code)
or other receipts of such Obligor covering, evidencing or representing Inventory
or Equipment (collectively, the "Documents");
(g) all contracts and other agreements of such Obligor relating to the
sale or other disposition of all or any part of the Inventory, Equipment or
Documents and all rights, warranties, claims and benefits of such Obligor
against any Person arising out of, relating to or in connection with all or any
part of the Inventory, Equipment or Documents of such Obligor, including any
such rights, warranties, claims or benefits against any Person storing or
transporting any such Inventory or Equipment or issuing any such Documents;
(h) all other accounts or general intangibles of such Obligor not
constituting Accounts, including, to the extent related to all or any part of
the other Collateral, all books, correspondence, credit files, records,
invoices, tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Obligor or any computer bureau or
service company from time to time acting for such Obligor;
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(i) all other tangible and intangible property of such Obligor,
including all Intellectual Property; and
(j) all proceeds and products in whatever form of all or any part of
the other Collateral, including all proceeds of insurance and all condemnation
awards and all other compensation for any event of loss with respect to all or
any part of the other Collateral (together with all rights to recover and
proceed with respect to the same), and all accessories to, substitutions for and
replacements of all or any part of the other Collateral.
2.02 Intellectual Property. For the purpose of enabling the Agent to
exercise its rights, remedies, powers and privileges under Section 5 at such
time or times as the Agent shall be lawfully entitled to exercise such rights,
remedies, powers and privileges, and for no other purpose, each Obligor hereby
grants to the Agent, to the extent assignable, an irrevocable, nonexclusive
license (exercisable without payment of royalty or other compensation to such
Obligor) to use, assign, license or sublicense any of the Intellectual Property
of such Obligor, together with reasonable access to all media in which any of
the licensed items may be recorded or stored and to all computer programs used
for the compilation or printout of such items.
2.03 Perfection. Concurrently with the execution and delivery of this
Agreement, each Obligor shall (i) file such financing statements and other
documents in such offices as shall be necessary or as the Agent may reasonably
request to perfect and establish the priority (subject only to Liens permitted
under Section 10.1 of the Credit Agreement) of the Liens granted by this
Agreement, (ii) deliver and pledge to the Agent any and all Instruments,
endorsed or accompanied by such instruments of assignment and transfer in such
form and substance as the Agent may reasonably request, (iii) deliver to the
Agent all certificates identified in Annex 1, accompanied by undated stock
powers duly executed in blank and (iv) take all such other actions as shall be
necessary or as the Agent may reasonably request to perfect and establish the
priority (subject only to such permitted Liens) of the Liens granted by this
Agreement, including, if requested by the Agent, the filing of additional
financing statements subsequent to the date of this Agreement in states other
than the Filing States.
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2.04 Preservation and Protection of Security Interests.
Each Obligor shall:
(a) upon the acquisition after the date of this Agreement by such
Obligor of any Stock Collateral, promptly either (x) transfer and deliver to the
Agent all such Stock Collateral (together with the certificates representing
such Stock Collateral securities duly endorsed in blank or accompanied by
undated stock powers duly executed in blank) or (y) take such other action as
the Agent shall reasonably deem necessary or appropriate to perfect, and
establish the priority of (subject to Permitted Liens), the Liens granted by
this Agreement in such Stock Collateral;
(b) upon the acquisition after the date of this Agreement by such
Obligor of any Instrument in a principal amount equal to or in excess of
$100,000, promptly deliver and pledge to the Agent all such Instruments,
endorsed or accompanied by such instruments of assignment and transfer in such
form and substance as the Agent may request;
(c) upon the acquisition after the date of this Agreement by such
Obligor of any Equipment covered by a certificate of title or ownership having a
value in excess of $100,000 promptly notify the Agent of such acquisition and,
if requested by the Agent, cause the Agent to be listed as the lienholder on
such certificate of title and within 90 days of the acquisition of such
Equipment deliver evidence of the same to the Agent;
(d) upon such Obligor's acquiring, or otherwise becoming entitled to
the benefits of, any Copyright (or copyrightable material), patent (or
patentable invention), Trademark (or associated goodwill) or other Intellectual
Property or upon or prior to such Obligor's filing, either directly or through
any agent, licensee or other designee, of any application with any Governmental
Authority for any Copyright, patent, Trademark, or other Intellectual Property,
in each case after the date of this Agreement, execute and deliver such
contracts, agreements and other instruments as the Agent may reasonably request
to evidence, validate, perfect and establish the priority (subject only to Liens
permitted under Section 10.1 of the Credit Agreement) of the Liens granted by
this Agreement in such and any related Intellectual Property and, if requested
by the Agent, amend Annex 2 or 3 (as the case may be) to reflect the inclusion
of any such Intellectual Property as part of the Collateral (it being understood
that the failure to amend any such Annex shall not affect the Liens granted by
this Agreement on any such Intellectual Property); and
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(e) give, execute, deliver, file or record any and all financing
statements, notices, contracts, agreements or other instruments, obtain any and
all governmental approvals and take any and all steps that may be necessary or
as the Agent may reasonably request to create, perfect, establish the priority
(subject only to Liens permitted under Section 10.1 of the Credit Agreement) of,
or to preserve the validity, perfection or priority (subject only to such
permitted Liens) of, the Liens granted by this Agreement or to enable the Agent
to exercise and enforce its rights, remedies, powers and privileges under this
Agreement with respect to such Liens, including subsequent to the occurrence of
an Event of Default, causing any or all of the Stock Collateral to be
transferred of record into the name of the Agent or its nominee (and the Agent
agrees that if any Stock Collateral is transferred into its name or the name of
its nominee, the Agent will thereafter promptly give to such Obligor copies of
any notices and communications received by it with respect to the Stock
Collateral pledged by such Obligor).
2.05 Attorney-in-Fact. Subject to the rights of such Obligor under
Sections 2.06, 2.07, 2.08 and 2.09, the Agent is hereby appointed the
attorney-in-fact of each Obligor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instruments which the
Agent may reasonably deem necessary or advisable to accomplish the purposes of
this Agreement, to preserve the validity, perfection and priority (subject only
to Liens permitted under Section 10.1 of the Credit Agreement) of the Liens
granted by this Agreement and, following any Event of Default (other than the
Existing Defaults (as defined in the Fourth Amendment) during the Waiver Period
(as defined in the Fourth Amendment)) to exercise its rights, remedies, powers
and privileges under this Agreement. This appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Agent shall be entitled under this Agreement upon the occurrence
and continuation of any Event of Default (other than the Existing Defaults
during the Waiver Period) (i) to ask, demand, collect, ▇▇▇ for, recover, receive
and give receipt and discharge for amounts due and to become due under and in
respect of all or any part of the Collateral; (ii) to receive, endorse and
collect any Instruments or other drafts, instruments, documents and chattel
paper in connection with clause (i) above (including any draft or check
representing the proceeds of insurance or the return of unearned premiums);
(iii) to file any claims or take any action or proceeding that the Agent may
deem necessary or advisable for the collection of all or any part of the
Collateral, including the collection of any compensation due and to become due
under any contract or agreement with respect to all or any part of the
Collateral; and (iv) to execute, in connection with any sale or disposition of
the collateral under
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Section 5, any endorsements, assignments, bills of sale or other instruments of
conveyance or transfer with respect to all or any part of the Collateral.
2.06 Special Provisions Relating to Stock Collateral.
(a) So long as no Event of Default (other than the Existing Defaults
during the Waiver Period) shall have occurred and be continuing, the Obligors
shall have the right to exercise all voting, consensual and other powers of
ownership pertaining to the Stock Collateral for all purposes not inconsistent
with the terms of any Credit Document, provided that the Obligors jointly and
severally agree that they will not vote the Stock Collateral in any manner that
is inconsistent with the terms of any Credit Document; and the Agent shall, at
the Obligors' expense, execute and deliver to the Obligors or cause to be
executed and delivered to the Obligors all such proxies, powers of attorney,
dividend and other orders and other instruments, without recourse, as the
Obligors may reasonably request for the purpose of enabling the Obligors to
exercise the rights and powers which they are entitled to exercise pursuant to
this Section 2.06(a).
(b) So long as no Event of Default (other than the Existing Defaults
during the Waiver Period) shall have occurred and be continuing, the Obligors
shall be entitled to receive and retain any dividends on the Stock Collateral
paid in cash out of earned surplus.
(c) If any Event of Default (other than the Existing Defaults during
the Waiver Period) shall have occurred and be continuing, and whether or not the
Agent or any Bank exercises any available right to declare any Obligation due
and payable or seeks or pursues any other right, remedy, power or privilege
available to it under applicable law, this Agreement or any other Credit
Document, all dividends and other distributions on the Stock Collateral shall be
paid directly to the Agent and retained by it in the Collateral Account as part
of the Stock Collateral, subject to the terms of this Agreement, and, if the
Agent shall so request, the Obligors jointly and severally agree to execute and
deliver to the Agent appropriate additional dividend, distribution and other
orders and instruments to that end, provided that if such Event of Default is
cured, any such dividend or distribution paid to the Agent prior to such cure
shall, upon request of the Obligors (except to the extent applied to the
Obligations), be returned by the Agent to the Obligors.
2.07 Use of Intellectual Property. Subject to such action not
otherwise constituting a Default and so long as no Event of Default (other than
the Existing Defaults during the
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Waiver Period) shall have occurred and be continuing, the Obligors will be
permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in
the ordinary course of the business of the Obligors. In furtherance of the
foregoing, so long as no Event of Default (other than the Existing Defaults
during the Waiver Period) shall have occurred and be continuing, the Agent shall
from time to time, upon the request of the Obligors through Apria, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which such Obligors through Apria shall have certified are
appropriate (in their judgment) to allow them to take any action permitted above
(including relinquishment of the license provided pursuant to Section 2.02 as to
any specific Intellectual Property). The exercise of rights, remedies, powers
and privileges under Section 5 by the Agent shall not terminate the rights of
the holders of any licenses or sublicenses theretofore granted by the Obligors
in accordance with the first sentence of this Section 2.07.
2.08 Instruments. So long as no Event of Default (other than the
Existing Defaults during the Waiver Period) shall have occurred and be
continuing, each Obligor may retain for collection in the ordinary course of
business any Instruments obtained by it in the ordinary course of business, and
the Agent shall, promptly upon the request, and at the expense of, such Obligor
through Apria, make appropriate arrangements for making any Instruments pledged
by the Obligors available to the respective Obligor for purposes of
presentation, collection or renewal. Any such arrangement shall be effected, to
the extent deemed appropriate by the Agent, against trust receipt or like
document.
2.09 Use of Collateral. So long as no Event of Default (other than the
Existing Defaults during the Waiver Period) shall have occurred and be
continuing, each Obligor shall, in addition to its rights under Sections 2.06,
2.07 and 2.08 in respect of the Collateral contemplated in those sections, be
entitled to use and possess the other Collateral and to exercise its rights,
title and interest in all contracts, agreements, licenses and governmental
approvals, subject to the rights, remedies, powers and privileges of the Agent
under Section 5 and to such use, possession or exercise not otherwise
constituting a Default.
2.10 Rights and Obligations.
(a) Each Obligor shall remain liable to perform its duties and
obligations under the contracts and agreements included in the Collateral in
accordance with their respective
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terms to the same extent as if this Agreement had not been executed and
delivered. The exercise by the Agent or any Bank of any right, remedy, power or
privilege in respect of this Agreement shall not release any Obligor from any of
its duties and obligations under such contracts and agreements. Neither the
Agent nor any Bank shall have any duty, obligation or liability under such
contracts and agreements or in respect to any Governmental Approval included in
the Collateral by reason of this Agreement or any other Credit Document, nor
shall the Agent or any Bank be obligated to perform any of the duties or
obligations of any Obligor under any such contract or agreement or any such
Governmental Approval or to take any action to collect or enforce any claim (for
payment) under any such contract or agreement or Governmental Approval.
(b) No Lien granted by this Agreement in the Obligors' right, title
and interest in any contract, agreement or Governmental Approval shall be deemed
to be a consent by the Agent or any Bank to any such contract, agreement or
Governmental Approval.
(c) No reference in this Agreement to proceeds or to the sale or other
disposition of Collateral shall authorize any Obligor to sell or otherwise
dispose of any Collateral except to the extent otherwise expressly permitted by
the terms of any Credit Document.
(d) In connection with any sale of Collateral or all of the capital
stock of any Obligor expressly permitted by the terms of any Credit Document,
the Liens granted pursuant to this Agreement shall automatically terminate with
respect to such Collateral or the assets owned by such Obligor, as applicable.
(e) Neither the Agent nor any Bank shall be required to take steps
necessary to preserve any rights against prior parties to any part of the
Collateral.
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2.12 Termination. When all Obligations shall have been paid in full
and the Revolving Loan Commitments and all Letter of Credit Outstandings shall
have expired or been terminated, this Agreement shall terminate, and the Agent
shall forthwith cause to be assigned, transferred and delivered, against receipt
but without any recourse, warranty or representation whatsoever, any remaining
Collateral and money received in respect of the Collateral, to or on the order
of the respective Obligors and to be released, canceled and granted back all
licenses and rights referred to in Section 2.02. The Agent shall also execute
and deliver to the respective Obligors upon such termination such Uniform
Commercial Code termination statements and such other documentation as shall be
reasonably requested by the respective Obligors to effect the termination and
release of the Liens granted by this Agreement on the Collateral.
Section 3. Representations and Warranties. As of the date of this
Agreement and as of the date of each extension of credit by the Banks, each
Obligor represents and warrants to the Banks and the Agent as follows:
3.01 Title. Each Obligor is the sole beneficial owner of the
Collateral in which it purports to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to this Agreement, and
such Collateral is free and clear of all Liens (and, with respect to the Stock
Collateral, of any Equity Right in favor of any other Person), except for Liens
permitted under Section 10.1 of the Credit Agreement. The Liens granted by this
Agreement in favor of the Agent for the benefit of the Agent and the Banks have
attached and constitute a perfected security interest in all of such Collateral
(other than Instruments having a principal amount of less than $100,000) prior
to all other Liens (except such permitted Liens) to the extent that such
security interest can be perfected by possession, the filing of UCC financing
statements in the Filing States or filing with the Patent and Trademark Office.
3.02 Pledged Stock.
(a) The Pledged Stock evidenced by the certificates identified in
Annex 1 is duly authorized, validly existing, fully paid and nonassessable, and
none of such Pledged Stock is subject to any contractual restriction, or any
restriction under the charter or by-laws of the respective Issuer of such
Pledged Stock, upon the transfer of such Pledged Stock (except for any such
restriction contained in any Credit Document).
(b) The Pledged Stock evidenced by the certificates
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identified in Annex 1 constitutes all of the issued and outstanding shares of
capital stock of any class of the Issuers beneficially owned by such Obligor on
the date of this Agreement (whether or not registered in the name of such
Obligor), and Annex 1 correctly identifies, as at the date of this Agreement,
the respective Issuers of such Pledged Stock, the respective class and par value
of the shares comprising such Pledged Stock and the respective number (and
registered owners) of the shares evidenced by each such certificate.
3.03 Intellectual Property.
(a) Annexes 2 and 3 set forth completely and correctly all Copyrights
and Trademarks owned and federally registered by each respective Obligor on the
date of this Agreement; except pursuant to licenses and other user agreements
entered into by such Obligor in the ordinary course of business and listed in
Annex 4, such Obligor owns and possesses the right to use, and has done nothing
to authorize or enable any other Person to use, any Copyright or Trademark
listed in Annex 2 or 3 under the name of such Obligor; all registrations listed
in Annexes 2 and 3 are valid and in full force and effect; and, except as may be
set forth in Annex 4, each Obligor owns and possesses the right to use all
Copyrights and Trademarks listed in Annexes 2 and 3 under the name of such
Obligor.
(b) Annex 4 sets forth completely and correctly all licenses and other
user agreements included in the Intellectual Property on the date of this
Agreement;
(c) To any Obligor's knowledge, (i) there is no violation by others of
any material right of any Obligor with respect to any Copyright or Trademark
listed in Annex 2 or 3 under the name of such Obligor and (ii) no Obligor is
infringing in any material respect upon any Copyright or Trademark of any other
Person; and no proceedings have been instituted, are pending against any Obligor
or, to any Obligor's knowledge, have been threatened against, and no claim has
been received by, any Obligor, alleging any such violation or except as will not
have a material adverse effect upon the value of such Copyright or Trademark
Collateral.
(d) No Obligor owns any Trademarks registered in the United States of
America to which the last sentence of the definition of Trademark Collateral
applies.
3.04 Goods. Any goods now or hereafter manufactured or otherwise
produced by any Obligor or any of its Subsidiaries included in the Collateral
have been and will be produced in compliance in all material respects with the
requirements of the
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Fair Labor Standards Act.
Section 4. Covenants.
4.01 Books and Records. Each Obligor shall:
(a) keep full and accurate books and records relating to the
Collateral and stamp or otherwise ▇▇▇▇ such books and records in such manner as
the Agent may reasonably require in order to reflect the Liens granted by this
Agreement;
(b) furnish to the Agent and the Banks from time to time (but, unless
a Default (other than the Existing Defaults during the Waiver Period) shall have
occurred and be continuing, no more frequently than quarterly) statements and
schedules further identifying and describing the Copyright Collateral and the
Trademark Collateral and such other reports in connection with the Copyright
Collateral and the Trademark Collateral as the Agent or the Banks may reasonably
request, all in reasonable detail;
(c) prior to filing, either directly or through an agent, licensee or
other designee, any application for any Copyright or Trademark, furnish to the
Agent prompt notice of such proposed filing; and
(d) permit representatives of the Agent and the Banks, upon reasonable
notice, at any time during normal business hours to inspect and make abstracts
from its books and records pertaining to the Collateral.
4.02 Removals, Etc. Without at least 30 days' prior written notice to
the Agent, no Obligor shall (i) maintain any of its books and records with
respect to the Collateral at any office or maintain its principal place of
business at any place, other than at the address initially indicated for notices
to it under Section 6 or at one of the locations identified in Annex 5 under its
name; (ii) change its corporate name, or the name under which it does business,
from the name shown on the signature pages to this Agreement or (iii) permit
less than 60% of the Specified Assets (as defined in the Fourth Amendment) to be
located anywhere other than in one of the Filing States or in transit from one
Filing State to another; provided, that, if in the Ordinary Course of Business,
less than 60% of the Obligor's Specified Assets are located in the Filing
States, the Obligors shall within five (5) Business Days of such becoming aware
of such occurrence, duly execute and file UCC-1 financing statement(s) in such
other states as may be necessary to maintain the perfection of the Agent's Lien
in not less than 60% of the Specified Assets and, in connection therewith, the
definition of
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"Filing States" in Section 1 of this Agreement shall be automatically amended to
include such new states.
4.03 Sales and Other Liens. Except as otherwise permitted under
Section 10.1 or 10.2 of the Credit Agreement, without the prior written consent
of the Agent (granted with the authorization of the Banks as specified in
Section 13.13 of the Credit Agreement), the Obligors shall not dispose of any
Collateral, create, incur, assume or suffer to exist any Lien upon any
Collateral or file or suffer to be on file or authorize to be filed, in any
jurisdiction, any financing statement or like instrument with respect to all or
any part of the Collateral in which the Agent is not named as the sole secured
party for the benefit of the Banks.
4.04 Stock Collateral. The Obligors will cause the Stock Collateral to
constitute at all times 100% of the total number of shares of each class of
capital stock of each Issuer then outstanding. The Obligors shall cause all such
shares to be duly authorized, validly issued, fully paid and nonassessable and
to be free of any contractual restriction or any restriction under the charter
or bylaws of the respective Issuer of such Stock Collateral upon the transfer of
such Stock Collateral (except for any such restriction contained in any Credit
Document).
4.05 Intellectual Property.
(a) Each Obligor (either itself or through licensees) will, for each
Trademark, (i) to the extent consistent with past practice and good business
judgment, continue to use such Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain such Trademark in full force and
effect free from any claim of abandonment for nonuse, (ii) maintain as in the
past the quality of products and services offered under such Trademark, (iii)
employ such Trademark with the appropriate notice of registration and (iv) not
(and not permit any licensee or sublicensee to) do any act or knowingly omit to
do any act whereby any Trademark material to the conduct of its business may
become invalidated.
(b) Each Obligor shall notify the Agent immediately if it knows or has
reason to know that any Intellectual Property material to the conduct of its
business may become abandoned or dedicated, or of any adverse determination or
development (including the institution of, or any such determination or
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development in, any proceeding before any Governmental Authority) regarding each
Obligor's ownership of any Intellectual Property material to its business, its
right to copyright, patent or register the same (as the case may be), or its
right to keep, use and maintain the same.
(c) In the event that any Intellectual Property material to the
conduct of its business is infringed, misappropriated or diluted by a third
party, each Obligor shall notify the Agent within (10) days after it learns of
such event and shall, if consistent with good business practice, promptly ▇▇▇
for infringement, misappropriation or dilution, seek temporary restraints and
preliminary injunctive relief to the extent practicable, seek to recover any and
all damages for such infringement, misappropriation or dilution and take such
other actions as are appropriate under the circumstances to protect such
Collateral.
(d) Subsequent to the occurrence of an Event of Default (other than
the Existing Defaults during the Waiver Period), the Agent shall have the right
but shall in no way be obligated to bring suit in its own name to enforce the
Copyrights and Trademarks and any license under such Intellectual Property, in
which event each Obligor shall, at the request of the Agent, do any and all
lawful acts and execute and deliver any and all proper documents required by the
Agent in aid of such enforcement action.
4.06 Insurance. Each Obligor agrees that it shall keep the Collateral
continuously insured against such risks as are customarily insured against by
businesses of like size and type engaged in the same or similar operations. In
addition, if requested by the Agent, each Obligor shall cause the Agent to be
named as loss payee with respect to any such insurance policies covering all or
any part of the Collateral to the extent of the interest of the Agent and the
Banks in the Collateral (other than Pledged Stock) and shall be named as
additional insured with respect to the general liability insurance policies of
the Obligors to the extent of the interest of the Agent and the Banks in the
Collateral (other than Pledged Stock).
4.07 Further Assurancess. Each Obligor agrees that, from time to time
upon the written request of the Agent, such Obligor will execute and deliver
such further documents and do such other acts and things as the Agent may
reasonably request in order fully to effect the purposes of this Agreement.
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Section 5. Remedies.
5.01 Events of Default, Etc. If any Event of Default shall have
occurred and be continuing (other than the Existing Defaults during the Waiver
Period):
(a) The Agent in its discretion may require each Obligor to, and each
Obligor shall, assemble the Collateral owned by it at such place or places,
reasonably convenient to both the Agent and such Obligor, designated in the
Agent's request;
(b) the Agent in its discretion may make any reasonable compromise or
settlement it deems desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or otherwise
modify the terms of, all or any part of the Collateral;
(c) the Agent in its discretion may, in its name or in the name of the
Obligors or otherwise, demand, ▇▇▇ for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for all or any
part of the Collateral, but shall be under no obligation to do so;
(d) the Agent in its discretion may, upon ten business days' prior
written notice to the Obligors of the time and place, with respect to all or any
part of the Collateral which shall then be or shall thereafter come into the
possession, custody or control of the Agent, the Banks or any of their
respective agents, sell, lease or otherwise dispose of all or any part of such
Collateral, at such place or places as the Agent deems best, for cash, for
credit or for future delivery (without thereby assuming any credit risk) and at
public or private sale, without demand of performance or notice of intention to
effect any such disposition or of time or place of any such sale (except such
notice as is required above or by applicable statute and cannot be waived), and
the Agent or any Bank or any other Person may be the purchaser, lessee or
recipient of any or all of the Collateral so disposed of at any public sale (or,
to the extent permitted by law, at any private sale) and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Obligors, any
such demand, notice and right or equity being hereby expressly waived and
released. In the event of any sale, license or other disposition of any of the
Trademark Collateral, the goodwill connected with and symbolized by the
Trademark Collateral subject to such disposition shall be included, and the
Obligors shall supply to the Agent or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property relating to such
Trademark Collateral. The Agent may, without notice or publication,
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adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned; and
(e) the Agent shall have, and in its discretion may exercise, all of
the rights, remedies, powers and privileges with respect to the Collateral of a
secured party under the Uniform Commercial Code (whether or not the Uniform
Commercial Code is in effect in the jurisdiction where such rights, remedies,
powers and privileges are asserted) and such additional rights, remedies, powers
and privileges to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights, remedies, powers and privileges in respect of
this Agreement or the Collateral may be asserted, including the right, to the
maximum extent permitted by law, to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral as if the Agent were the sole
and absolute owner of the Collateral (and each Obligor agrees to take all such
action as may be appropriate to give effect to such right).
The proceeds of, and other realization upon, the Collateral by virtue of the
exercise of remedies under this Section 5.01 and of the exercise of the license
granted to the Agent in Section 2.02 shall be applied in accordance with Section
5.04.
5.02 Deficiency. If the proceeds of, or other realization upon, the
Collateral by virtue of the exercise of remedies under Section 5.01 and of the
exercise of the license granted by the Agent in Section 2.02 are insufficient to
cover the costs and expenses of such exercise and the payment in full of the
other Obligations, the Obligors shall remain liable for any deficiency.
5.03 Private Sale.
(a) The Agent and the Banks shall incur no liability as a result of
the sale, lease or other disposition of all or any part of the Collateral at any
private sale pursuant to Section 5.01 conducted in a commercially reasonable
manner. Each Obligor hereby waives any claims against the Agent or any Bank
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
(b) The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933 and
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applicable state securities laws, the Agent may be compelled, with respect to
any sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own account,
for investment and not with a view to distribution or resale. The Obligors
acknowledge that any such private sales may be at prices and on terms less
favorable to the Agent than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agree that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Agent shall have no obligation to engage in public sales and
no obligation to delay the sale of any Collateral for the period of time
necessary to permit the respective Issuer of such Collateral to register it for
public sale.
5.04 Application of Proceeds. Except as otherwise expressly provided
in this Agreement and except as provided below in this Section 5.04, the
proceeds of, or other realization upon, all or any part of the Collateral by
virtue of the exercise of remedies under Section 5.01 or of the exercise of the
license granted in Section 2.02, and any other cash at the time held by the
Agent under this Section 5, shall be applied by the Agent:
First, to the payment of the costs and expenses of such exercise of
remedies, including reasonable out-of-pocket costs and expenses of the Agent,
the fees and expenses of its agents and counsel and all other expenses incurred
and advances made by the Agent in that connection;
Next, to the payment in full of the remaining Obligations equally and
ratably in accordance with their respective amounts then due and owing or as the
Banks holding the same may otherwise agree; and
Finally, to the payment to the respective Obligor, or its respective
successors or assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining.
As used in this Section 5, "proceeds" of Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any property received under any bankruptcy,
reorganization or other similar proceeding as to any Obligor or any issuer of,
or account debtor or other obligor on, any of the Collateral.
Section 6. Miscellaneous.
6.01 The Agent. As provided in Section 12.1 of the Credit Agreement,
each Bank has appointed Bank of America National Trust and Savings Association
as its Agent for purposes of this Agreement. In such capacity, Bank of America
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National Trust and Savings Association shall be entitled to all of the rights
and benefits accorded the Agent by Section 12 of the Credit Agreement. Following
the payment in full of all Obligations outstanding under the Credit Agreement
and the termination or expiration of the Commitments of the Banks and Letter of
Credit Outstandings, the provisions of Section 12 of the Credit Agreement shall
be deemed to continue in full force and effect for the benefit of the Agent
under this Agreement. In that connection, following such payment and expiration
and termination, the term "Required Banks" (as used in Section 13.13 of the
Credit Agreement) shall be deemed to refer to Banks holding Obligations
representing 50% or more of the aggregate amount of the Revolving Loan
Commitments or, if the Revolving Loan Commitments shall have been terminated,
Banks holding in excess of 50% of the sum of (a) the aggregate unpaid principal
amount of the Loans plus (b) the aggregate amount of all Letter of Credit
Outstandings.
6.02 Waiver. No failure on the part of the Agent or any Bank to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, remedy, power or privilege under this Agreement shall operate as a
waiver of such right, remedy, power or privilege, nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise of any such right, remedy, power or
privilege or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
6.03 Notices. All notices and communications to be given under this
Agreement shall be given or made in writing to the intended recipient at the
address specified below or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telex or telecopier, delivered to the telegraph
or cable office or personally delivered or, in the case of a mailed notice, upon
receipt, in each case, given or addressed as provided in this Section 6.03:
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To the Obligors: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Agent: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Agency Management Dept., 10831
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
6.04 Expenses, Etc. The Obligors jointly and severally agree to pay
or to reimburse the Agent and the Banks for all reasonable costs and expenses
(including reasonable attorney's fees and expenses) that may be incurred by the
Agent or the Banks in any effort to enforce any of the provisions of Section 5
or any of the obligations of the Obligors in respect of the Collateral or in
connection with (a) the preservation of the Lien of, or the rights of the Agent
under this Agreement or (b) any actual or attempted sale, lease, disposition,
exchange, collection, compromise, settlement or other realization in respect of,
or care of, the Collateral, including all such reasonable costs and expenses
(and reasonable attorney's fees and expenses) incurred in any bankruptcy,
reorganization, workout or other similar proceeding.
6.05 Amendments, Etc. Any provision of this Agreement may be modified,
supplemented or waived only by an instrument in writing duly executed by each
Obligor and the Agent (with the consent of the Banks as specified in Section
13.13 of the Credit Agreement). Any such modification, supplement or waiver
shall be for such period and subject to such conditions as shall be specified in
the instrument effecting the same and shall be binding upon the Agent and each
Bank, each holder of any of the Obligations and each Obligor, and any such
waiver shall be effective only in the specific instance and for the purposes for
which given.
6.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of each Obligor, the Agent, the Banks and each holder of
any of the Obligations and their respective successors and permitted assigns. No
Obligor shall assign or transfer its rights under this Agreement without the
prior written consent of the Agent (with the further consent of the Banks as
specified in Section 13.13 of the Credit Agreement).
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6.07 Survival. All representations and warranties made in this
Agreement or in any certificate or other document delivered pursuant to or in
connection with this Agreement shall survive the execution and delivery of this
Agreement or such certificate or other document (as the case may be) or any
deemed repetition of any such representation or warranty.
6.08 Agreements Superseded. This Agreement supersedes all prior
agreements and understandings, written or oral, among the parties with respect
to the subject matter of this Agreement.
6.09 Severability. Any provision of this Agreement that 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 of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
6.10 Captions. The table of contents and captions and section headings
appearing in this Agreement are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
6.11 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart.
6.12 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA. EACH OBLIGOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND OF ANY
CALIFORNIA STATE COURT SITTING IN LOS ANGELES, CALIFORNIA FOR THE PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OBLIGOR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
6.13 WAIVER OF JURY TRIAL. EACH OBLIGOR, THE AGENT AND THE BANKS
HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
APRIA HEALTHCARE GROUP INC.
APRIA HEALTHCARE, INC.
APRIACARE MANAGEMENT SYSTEMS, INC.
APRIA NUMBER TWO, INC.
APRIA HEALTHCARE OF NEW YORK STATE, INC.
By:
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative and Collateral Agent
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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ANNEX 1
COMPANY TO PROVIDE
Annex 1 to Security Agreement
-1-
29
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
None.
Annex 2 to Security Agreement
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30
ANNEX 3
COMPANY TO PROVIDE
Annex 3 to Security Agreement
-1-
31
ANNEX 4
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
NONE.
Annex 5 to Security Agreement
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32
ANNEX 5
LIST OF LOCATIONS
COMPANY TO PROVIDE
Annex 5 to Security Agreement
-1-