SECURITY AGREEMENT
EXHIBIT 10.2
EXECUTION COPY
SECURITY AGREEMENT dated as of December 7, 2006, between Great Wall Acquisition
Corporation, a corporation organized and existing under the laws of the State of Delaware (the
“Debtor”), and DBS Bank Ltd, as administrative agent and security agent (the
“Administrative Agent”).
The Debtor, certain lending institutions (together with their respective successors and
assigns and any new lenders from time to time, the “Lenders”) and the Administrative Agent
have entered into that certain Credit Agreement dated as of December 7, 2006, with the Debtor (as
from time to time amended, the “Credit Agreement”) providing for the making of loans to the
Debtor (collectively, “Loans”), and in connection therewith the Debtor has agreed to grant
to the Administrative Agent for the benefit of the Secured Creditors as hereinafter defined a
security interest in its all of its property, assets and revenues.
Accordingly, to induce the Lenders to extend credit pursuant to the Credit Agreement and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Debtor and the Administrative Agent agree as follows:
Section 1. Definitions.
(a) Terms defined in the Credit Agreement are used herein as defined therein.
(b) The terms “Account”, “As-Extracted Collateral”, “Chattel Paper”,
“Commodity Account”, “Deposit Account”, “Document”, “Electronic Chattel
Paper”, “Equipment”, “Fixture”, “General Intangible”, “Goods”,
“Instrument”, “Inventory”, “Investment Property”, “Letter-of-Credit
Right”, “Payment Intangible”, “Proceeds”, “Securities Account”,
“Security Entitlement”, “Software” and “Tangible Chattel Paper” have the
respective meanings ascribed thereto in Article 9 of the UCC, and the term “Financial
Assets” has the meaning ascribed thereto in Article 8 of the UCC.
(c) As used herein:
“Collateral” has the meaning set forth in Section 3.
“Collateral Account” has the meaning set forth in Section 4(a).
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“Copyright Collateral” means all Copyrights of the Debtor, whether now owned or
hereafter acquired.
“Copyrights” means all copyrights, copyright registrations and applications for
copyright registrations, including, without limitation, all renewals and extensions thereof,
the right to recover for all past, present and future infringements thereof, and all other
rights of any kind whatsoever accruing thereunder or pertaining thereto.
“Credit Documents” means, collectively, the Credit Agreement, this Agreement
and the other Loan Documents.
“Intellectual Property” means, collectively, all Copyright Collateral, all
Patent 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 the Debtor with respect to any of the foregoing, in each
case whether now or hereafter owned or used; (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 licenses, consents,
permits, variances, certifications and approvals of governmental agencies now or hereafter
held by the Debtor; and (g) all causes of action, claims and warranties now or hereafter
owned or acquired by the Debtor in respect of any of the items listed above.
“Motor Vehicles” means motor vehicles, tractors, trailers and other like
property, to the extent the title thereto is governed by a certificate of title or
ownership.
“Patent Collateral” means all Patents of the Debtor, whether now owned or
hereafter acquired by the Debtor, including without limitation each Patent identified in
Annex 5.
“Patents” means all patents and patent applications, including, without
limitation, the inventions and improvements described and claimed therein together with the
reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof,
all income, royalties, damages and payments now or hereafter due and/or payable under
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and
with respect thereto, including, without limitation, damages and payments for past or
future infringements thereof, the right to xxx for past, present and future infringements
thereof, and all rights corresponding thereto throughout the world.
“Person” means an individual, corporation, limited liability company,
partnership, unincorporated association, joint venture, trust, governmental agency or other
entity.
“Secured Creditors” means, collectively, the Lenders and the Administrative
Agent.
“Secured Obligations” means the principal of and interest on the Loans and all
fees, indemnification payments all other amounts whatsoever payable, whether now outstanding
or hereafter from time to time incurred, assumed or arising, under the Credit Documents.
“Trademark Collateral” means all Trademarks of the Debtor whether now owned or
hereafter acquired by the Debtor. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark that would be rendered invalid, abandoned, void
or unenforceable by reason of its being included as part of the Trademark Collateral.
“Trademarks” means all trade names, trademarks and service marks, logos,
trademark and service xxxx registrations, and applications for trademark and service xxxx
registrations, including, without limitation, all renewals of trademark and service xxxx
registrations, all rights corresponding thereto throughout the world, the right to recover
for all past, present and future infringements thereof, all other rights of any kind
whatsoever accruing thereunder or pertaining thereto, together, in each case, with the
product lines and goodwill of the business connected with the use of, and symbolized by,
each such trade name, trademark and service xxxx.
“UCC” means the Uniform Commercial Code as in effect from time to time in the
State of New York.
Section 2. Representations and Warranties. The Debtor represents and warrants to the
Administrative Agent for the benefit of the Secured Creditors that:
(a) Title and Priority. The Debtor is the sole beneficial owner of the
Collateral and no security interest exists in the Collateral except for Liens expressly
permitted by the terms of the Credit Documents; and the security interests created
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pursuant hereto constitute valid, perfected security interests in the Collateral,
subject to no equal or prior Lien except as so permitted.
(b) Names, Etc. The full and correct legal name, type of organization,
jurisdiction of organization, organizational ID number (if applicable) and mailing address
of the Debtor as of the date hereof are correctly set forth in Annex 1.
(c) Changes in Circumstances. The Debtor has not (i) within the period of four
months prior to the date hereof, changed its location (as defined in Section 9-307 of the
UCC), or (ii) heretofore changed its name, or (iii) heretofore become a “new debtor” (as
defined in Section 9-102(a)(56) of the UCC) with respect to a currently effective security
agreement previously entered into by any other Person.
(d) Intellectual Property. To the Debtor’s knowledge, the Debtor is not
infringing in any respect upon any Copyright, Patent or Trademark of any other Person; and
no proceedings have been instituted or are pending against the Debtor or, to the Debtor’s
knowledge, threatened, and no claim against the Debtor has been received by the Debtor,
alleging any such violation.
The Debtor does not own any Trademarks registered in the United States of America to
which the last sentence of the definition of Trademark Collateral applies.
(f) Fair Labor Standards Act. Any Goods now or hereafter produced by the
Debtor or any of its Subsidiaries included in the Collateral have been and will be produced
in compliance with the requirements of the Fair Labor Standards Act, as amended.
Section 3. Collateral. As collateral security for the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, whether
now existing or hereafter from time to time incurred or arising, the Debtor hereby grants to the
Administrative Agent, for the benefit of the Secured Creditors, a security interest in all of the
Debtor’s right, title and interest in, to and under the following property, assets and revenues,
whether now owned or hereafter acquired and whether now existing or hereafter coming into existence
(all of the property, assets and revenues described in this Section 3 being collectively referred
to herein as the “Collateral”):
(a) all Accounts;
(b) all Chattel Paper (whether tangible or electronic);
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(c) all Commodity Accounts;
(d) all Deposit Accounts;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all Instruments;
(i) all Inventory;
(j) all Goods;
(k) all Letter-of-Credit Rights;;
(l) all Securities Accounts, all Security Entitlements and all other Investment
Property whatsoever to the extent not covered by the other clauses of this Section 3;
(m) all Intellectual Property, all Payment Intangibles, all Software, and all other
General Intangibles whatsoever not covered by the other clauses of this Section 3;
(n) all As-Extracted Collateral;
(o) all commercial tort claims as defined in Section 9-102(a)(13) of the UCC;
(p) all other tangible and intangible personal property whatsoever of the Debtor; and
(q) all Proceeds, products, offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the Collateral and, to the extent related to
any Collateral, all books, correspondence, credit files, records, invoices and other papers
(including without limitation all tapes, cards, computer runs and other papers and documents
in the possession or under the control of the Debtor or any computer bureau or service
company from time to time acting for the Debtor).
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Section 4. Cash Proceeds of Collateral.
(a) Collateral Account. The Debtor will, if so instructed by the Administrative
Agent, establish at a banking institution selected by the Administrative Agent a cash collateral
account (the “Collateral Account”), which
(i) to the extent of all Investment Property or Financial Assets shall be a Securities
Account in respect of which the Administrative Agent shall be the “entitlement holder” as
defined in Section 8-102(a)(7) of the UCC, and
(ii) to the extent of any cash, shall be a Deposit Account in respect of which the
Administrative Agent shall be the “customer” within the meaning of Section 9-104(a)(3) of
the UCC, and
into which there shall be deposited from time to time the cash proceeds of any of the Collateral
(including proceeds of insurance thereon) required to be delivered to the Administrative Agent
pursuant hereto and into which the Debtor may from time to time deposit any additional amounts that
any of them wishes to pledge to the Administrative Agent for the benefit of the Secured Creditors
as additional collateral security hereunder or that they are required to pledge as additional
collateral security hereunder. The balance from time to time in the Collateral Account shall
constitute part of the Collateral hereunder and shall not constitute payment of the Secured
Obligations until applied as hereinafter provided. Except as expressly provided in the next
sentence, the Administrative Agent shall remit the collected balance standing to the credit of the
Collateral Account to or upon the order of the Debtor as the Debtor shall from time to time
instruct, provided, that at any time after the occurrence and during the continuance of an
Event of Default, the Administrative Agent may in its discretion apply or cause to be applied
(subject to collection) the balance from time to time standing to the credit of the Collateral
Account to the payment of the Secured Obligations in the manner specified in Section 5.09. The
balance from time to time in the Collateral Account shall be subject to withdrawal only as provided
herein.
(b) Proceeds of Accounts. If so requested by the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, the Debtor shall instruct
all account debtors in respect of Accounts, Chattel Paper and General Intangibles and all obligors
on Instruments to make all payments in respect thereof either directly to the Administrative Agent
or any bank in the United States of America specified by the Administrative Agent under
arrangements, in form and substance satisfactory to the Administrative Agent, pursuant to which the
Debtor shall have irrevocably instructed such other bank (and such other bank shall have agreed) to
remit all proceeds of such payments directly to the Collateral Account. All payments made to the
Administrative Agent as provided in the preceding sentence, shall be immediately deposited in the
Collateral Account. In addition to the
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foregoing, the Debtor agrees that, at any time after the occurrence and during the continuance of
an Event of Default, if the proceeds of any Collateral hereunder shall be received by it, the
Debtor shall, upon the request of the Administrative Agent, as promptly as possible deposit such
proceeds into the Collateral Account. Until so deposited, all such proceeds shall be held in trust
by the Debtor for and as the property of the Administrative Agent and shall not be commingled with
any other funds or property of the Debtor.
(c) Investment of Balance in Collateral Account. The cash balance standing to the
credit of the Collateral Account shall be invested from time to time in such investments as the
Debtor (or, after the occurrence and during the continuance of a Default, the Administrative Agent
in its discretion) shall determine, which shall be held in the name and be under the control of the
Administrative Agent (and credited to the Collateral Account), provided that at any time
after the occurrence and during the continuance of an Event of Default, the Administrative Agent
may in its discretion at any time and from time to time elect to liquidate any such investments and
to apply or cause to be applied the proceeds thereof to the payment of the Secured Obligations in
the manner specified in Section 5.09.
Section 5. Further Assurances; Remedies. In furtherance of the grant of the pledge
and security interest pursuant to Section 3, the Debtor hereby agrees with the Administrative Agent
for the benefit of the Lenders as follows:
5.01 Delivery and Other Perfection. The Debtor shall:
(a) if so instructed by the Administrative Agent, promptly deliver to the
Administrative Agent any and all Instruments, Documents and Tangible Chattel Paper
constituting part of the Collateral in which the Debtor purports to grant a security
interest hereunder, endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Administrative Agent may request;
provided, that so long as no Event of Default shall have occurred and be continuing,
the Debtor may retain for collection in the ordinary course any Instruments received by the
Debtor in the ordinary course of its business and the Administrative Agent shall, promptly
upon request of the Debtor, make appropriate arrangements for making any of the foregoing
pledged by the Debtor available to the Debtor for purposes of presentation, collection or
renewal (any such arrangement to be effected, to the extent deemed appropriate by the
Administrative Agent, against trust receipt or like document);
(b) promptly give, execute, deliver, file, record, authorize or obtain all such
financing statements, notices, instruments, documents, agreements or consents or other
papers as may be necessary or desirable in the judgment of the Administrative Agent to
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create, preserve, perfect or validate the security interest granted pursuant hereto or to
enable the Administrative Agent to exercise and enforce its rights hereunder with respect to
such pledge and security interest, provided that notices to account debtors in
respect of any Accounts, Chattel Paper or General Intangibles and to obligors on Instruments
shall be subject to the provisions of clause (c) below;
(c) upon the occurrence and during the continuance of any Event of Default, upon
request of the Administrative Agent, promptly notify (and the Debtor hereby authorizes the
Administrative Agent so to notify) each account debtor in respect of any Accounts, Chattel
Paper or General Intangibles and each obligor on Instruments of the Debtor that such
Collateral has been assigned to the Administrative Agent hereunder, and that any payments
due or to become due in respect thereof are to be made directly to the Administrative Agent
or as the Administrative Agent may otherwise direct;
(d) without limiting the obligations of the Debtor under Section 5.04(b), if so
requested by the Administrative Agent, upon the acquisition after the date hereof by the
Debtor of any Motor Vehicle or other Equipment covered by a certificate of title or
ownership, cause the Administrative Agent to be listed as the lienholder on such certificate
of title and take such other steps as may be required under the law applicable to perfection
of a security interest in such property to perfect such security interest, and within 10
days of the acquisition thereof deliver evidence of the same to the Administrative Agent;
(e) keep full and accurate books and records relating to the Collateral, and stamp or
otherwise xxxx such books and records in such manner as the Administrative Agent may
reasonably require in order to reflect the security interests granted by this Agreement; and
(f) permit representatives of the Administrative Agent, upon reasonable notice, at any
time during normal business hours to inspect and make abstracts from its books and records
pertaining to the Collateral, and permit representatives of the Administrative Agent to be
present at the Debtor’s place of business to receive copies of all communications and
remittances relating to the Collateral, and forward copies of any notices or communications
received by the Debtor with respect to the Collateral, all in such manner as the
Administrative Agent may require.
5.02 Other Financing Statements and Liens. Without the prior written consent of the
Administrative Agent the Debtor shall not (a) file or authorize the filing of any financing
statement or like instrument with respect to any of the Collateral in which the Administrative
Agent is not named as the sole secured party for the benefit of the Secured Creditors, or (b) cause
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or permit any Person other than the Administrative Agent to have “control” (as defined in Section
9-104, 9-105, 9-106 or 9-107 of the UCC) of any Deposit Account, Electronic Chattel Paper,
Investment Property, Letter-of-Credit Right or Commodity Account constituting part of the
Collateral.
5.03 Preservation of Rights. No Secured Creditor shall be required to take steps
necessary to preserve any rights against prior parties to any of the Collateral.
5.04 Special Provisions Relating to Certain Collateral.
(a) Intellectual Property.
(1) For the purpose of enabling the Administrative Agent to exercise rights and remedies
under Section 5.05 at such time as the Administrative Agent shall be lawfully entitled to exercise
such rights and remedies, and for no other purpose, the Debtor hereby grants to the Administrative
Agent, to the extent assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to the Debtor) to use, assign, license or sublicense any of the
Intellectual Property now owned or hereafter acquired by the Debtor, wherever the same may be
located, including in such license 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
thereof.
(2) Notwithstanding anything contained herein to the contrary, so long as no Event of Default
shall have occurred and be continuing, the Debtor 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 Debtor. In furtherance of the
foregoing, unless an Event of Default shall have occurred and be continuing the Administrative
Agent shall from time to time, upon the request of the Debtor, execute and deliver any instruments,
certificates or other documents, in the form so requested, that the Debtor shall have certified are
appropriate (in its judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to clause (1) immediately above as to any specific
Intellectual Property). Further, upon the payment in full of all of the Secured Obligations and
cancellation or termination of any commitment to extend credit under the Credit Documents or
earlier expiration of this Agreement or release of the Collateral, the Administrative Agent shall
grant back to the Debtor the license granted pursuant to clause (1) immediately above. The
exercise of rights and remedies under Section 5.05 by the Administrative Agent shall not terminate
the rights of the holders of any licenses or sublicenses theretofore granted by the Debtor in
accordance with the first sentence of this clause (2).
Security Agreement
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(3) The Debtor will furnish to the Administrative Agent from time to time (but, unless a
Default shall have occurred and be continuing, no more frequently than quarterly) statements and
schedules further identifying and describing the Copyright Collateral, the Patent Collateral and
the Trademark Collateral, respectively, and such other reports in connection with the Copyright
Collateral, the Patent Collateral and the Trademark Collateral as the Administrative Agent may
reasonably request, all in reasonable detail.
(b) Motor Vehicles.
(1) The Debtor shall, if so requested by the Administrative Agent, deliver to the
Administrative Agent, or to any agent or custodian specified by the Administrative Agent in writing
to the Debtor, originals of the certificates of title or ownership for the Motor Vehicles owned by
it with the Administrative Agent listed as lienholder and take such other action as the
Administrative Agent shall deem appropriate to perfect the security interest created hereunder in
all such Motor Vehicles.
(2) Without limiting the generality of the foregoing, if so requested by the Administrative
Agent, upon the acquisition after the date hereof by the Debtor of any Motor Vehicle, the Debtor
shall deliver to the Administrative Agent, or to any agent or custodian specified by the
Administrative Agent in writing to the Debtor, originals of the certificates of title or ownership
for such Motor Vehicles, together with the manufacturer’s statement of origin with the
Administrative Agent listed as lienholder; provided, however, if the Motor Vehicle to be
acquired is subject to a purchase money security interest, the Administrative Agent shall be listed
as a junior lienholder to the Person holding such purchase money security interest.
(3) Without limiting Section 5.10, the Debtor hereby appoints the Administrative Agent as its
attorney-in-fact, effective the date hereof and terminating upon the termination of this Agreement,
for the purpose of (i) executing on behalf of the Debtor title or ownership applications for filing
with appropriate state agencies to enable Motor Vehicles now owned or hereafter acquired by the
Debtor to be retitled and the Administrative Agent listed as lienholder thereon, (ii) filing such
applications with such state agencies and (iii) executing such other documents and instruments on
behalf of, and taking such other action in the name of, the Debtor as the Administrative Agent may
deem necessary or advisable to accomplish the purposes hereof (including, without limitation, the
purpose of creating in favor of the Administrative Agent a perfected lien on the Motor Vehicles and
exercising the rights and remedies of the Administrative Agent under Section 5.05). This
appointment as attorney-in-fact is irrevocable and coupled with an interest.
(4) Any certificates of title or ownership delivered pursuant to the terms hereof shall be
accompanied by odometer statements for each Motor Vehicle covered thereby.
Security Agreement
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5.05 Events of Default, Etc. If an Event of Default shall have occurred and be
continuing:
(a) the Debtor shall, at the request of the Administrative Agent, assemble the
Collateral owned by it at such place or places, reasonably convenient to both the
Administrative Agent and the Debtor, designated in its request;
(b) the Administrative Agent may make any reasonable compromise or settlement deemed
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, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and remedies with respect to
the Collateral of a secured party under the Uniform Commercial Code (whether or not said
Code is in effect in the jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under the laws in effect
in any jurisdiction where any rights and remedies hereunder may be asserted, including,
without limitation, the right, to the fullest extent permitted by applicable law, to
exercise all voting, consensual and other powers of ownership pertaining to the Collateral
as if the Administrative Agent were the sole and absolute owner thereof (and the Debtor
agrees to take all such action as may be appropriate to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in the name of the
Debtor or otherwise, demand, xxx for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the Collateral, but shall be
under no obligation to do so; and
(e) the Administrative Agent may, upon ten days’ prior written notice to the Debtor of
the time and place, with respect to the Collateral or any part thereof that shall then be or
shall thereafter come into the possession, custody or control of the Administrative Agent,
the Lenders or any of their respective agents, sell, lease, assign or otherwise dispose of
all or any part of such Collateral, at such place or places as the Administrative Agent
deems best, and for cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof (except such notice
as is required above or by applicable statute and cannot be waived), and any Secured
Creditor or anyone else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the
Security Agreement
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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 Debtor, any such demand, notice and right or equity being
hereby expressly waived and released. In the event of any sale, assignment, 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 Debtor
shall supply to the Administrative Agent or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property relating to such Trademark
Collateral. The Administrative Agent may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time or place to which
the sale may be so adjourned.
The Proceeds of each collection, sale or other disposition under this Section 5.05, including by
virtue of the exercise of the license granted to the Administrative Agent in Section 5.04(a), shall
be applied in the manner specified in Section 5.09.
The Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, and applicable state securities laws, the Administrative 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 the distribution or resale thereof. The Debtor acknowledges that
any such private sales may be at prices and on terms less favorable to the Administrative 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 Administrative 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 thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other realization of or upon
the Collateral pursuant to Section 5.05 are insufficient to cover the costs and expenses of such
realization and the payment in full of the Secured Obligations, the Debtor shall remain liable for
any deficiency.
5.07 Locations; Names. Without at least 30 days’ prior written notice to the
Administrative Agent, the Debtor shall not change its location (as defined in Section 9-307 of the
UCC) or change its name from the name shown as its current legal name on Annex 1.
5.08 Private Sale. None of the Secured Creditors shall incur any liability as a
result of the sale of the Collateral, or any part thereof, at any private sale pursuant to Section
5.05
Security
Agreement
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conducted in a commercially reasonable manner. The Debtor hereby waives any claims against any
Secured Creditor 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 that might have been obtained at a public sale
or was less than the aggregate amount of the Secured Obligations, even if the Administrative Agent
accepts the first offer received and does not offer the Collateral to more than one offeree.
5.09 Application of Proceeds. Except as otherwise expressly provided herein or in
the other Credit Documents, the Proceeds of any collection, sale or other realization of all or any
part of the Collateral pursuant hereto, and any other cash at the time held by the Administrative
Agent under Section 4 or this Section 5, shall be applied by the Administrative Agent:
First, to the payment of the costs and expenses of such collection, sale or
other realization, including out-of-pocket costs and expenses of the Administrative Agent
and the fees and expenses of its agents and counsel, and all expenses incurred and advances
made by the Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each case equally
and ratably in accordance with the respective amounts thereof then due and owing or as the
Secured Creditors holding the same may otherwise agree; and
Finally, to the payment to the Debtor, or its successors or assigns, or as a
court of competent jurisdiction may direct, of any surplus then remaining.
5.10 Attorney-in-Fact. Without limiting any rights or powers granted by this
Agreement to the Administrative Agent while no Event of Default has occurred and is continuing,
upon the occurrence and during the continuance of any Event of Default the Administrative Agent is
hereby appointed the attorney-in-fact of the Debtor for the purpose of carrying out the provisions
of this Section 5 and taking any action and executing any instruments that the Administrative Agent
may deem necessary or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, so long as the Administrative Agent shall be entitled under this Section 5 to make
collections in respect of the Collateral, the Administrative Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of the Debtor representing any
dividend, payment or other distribution in respect of the Collateral or any part thereof and to
give full discharge for the same.
5.11 Perfection. Prior to or concurrently with the execution and delivery of this
Agreement, the Debtor shall (i) file such financing statements and other documents in such offices
as the Administrative Agent may request to perfect the security interests granted by
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Section 3 of this Agreement, (ii) cause the Administrative Agent to be listed as the lienholder on
all certificates of title or ownership relating to Motor Vehicles owned by the Debtor to the extent
so requested by the Administrative Agent and (iii) execute and deliver such short form assignments
or security agreements relating to Collateral consisting of the Intellectual Property as the
Administrative Agent may reasonably request. Without limiting the foregoing, the Debtor consents
that UCC financing statements may be filed describing the Collateral as “all assets” or “all
personal property” of the Debtor (provided that no such description shall be deemed to
modify the description of Collateral set forth in Section 3).
5.12 Termination. When all Secured Obligations shall have been paid in full and all
commitments to extend credit under the Credit Documents shall have expired or been terminated, this
Agreement shall terminate, and the Administrative 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 thereof, to or on the order of
the Debtor and to be released and canceled all licenses and rights referred to in Section 5.04(a).
The Administrative Agent shall also execute and deliver to the Debtor upon such termination such
Uniform Commercial Code termination statements, certificates for terminating the liens on the Motor
Vehicles and such other documentation as shall be reasonably requested by the Debtor to effect the
termination and release of the liens on the Collateral.
Section 6. Miscellaneous.
6.01 Notices. All notices, requests, consents and demands hereunder shall be in
writing and telecopied or delivered to the intended recipient at its “Address for Notices”
specified on the signature pages hereof and shall be deemed to have been given at the times
specified in said Section.
6.02 No Waiver. No failure on the part of any Secured Creditor to exercise, and no
course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise by any Secured Creditor
of any right, power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived, altered or amended
only by an instrument in writing duly executed by the Debtor and the Administrative Agent. Any
such amendment or waiver shall be binding upon the Secured Creditors and each holder of any of the
Secured Obligations and the Debtor.
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6.04 Expenses. The Debtor agrees to reimburse each of the Secured Creditors for all
costs and expenses incurred by them (including, without limitation, the fees and expenses of legal
counsel) in connection with (i) any Event of Default and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner of participation in or other
involvement with (w) performance by the Administrative Agent of any obligations of the Debtor in
respect of the Collateral that the Debtor has failed or refused to perform, (x) bankruptcy,
insolvency, receivership, foreclosure, winding up or liquidation proceedings, or any actual or
attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of
any of the Collateral, and for the care of the Collateral and defending or asserting rights and
claims of the Administrative Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (y) judicial or regulatory proceedings and (z) workout, restructuring or
other negotiations or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section 6.04, and all such
costs and expenses shall be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.
6.05 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the Debtor and the Administrative Agent,
(provided, however, that the Debtor shall not assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative Agent).
6.06 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 hereto
may execute this Agreement by signing any such counterpart.
6.07 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
6.08 Submission to Jurisdiction. The Debtor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the
Security Agreement
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Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Debtor or its properties in the courts of any jurisdiction.
6.09 Waiver of Venue. The Debtor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement in any court referred to in Section 6.08. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
6.10 Service of Process. The Debtor hereby agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought in the State of New York may
be made upon CT Corporation, presently located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(the “Process Agent”), and the Debtor hereby confirms and agrees that the Process Agent has
been duly and irrevocably appointed as its agent and true and lawful attorney-in-fact in its name,
place and stead to accept such service of any and all such writs, process and summonses, and agrees
that the failure of the Process Agent to give any notice of any such service of process to the
Debtor shall not impair or affect the validity of such service or of any judgment based thereon.
The Debtor hereby further irrevocably consents to the service of process in any suit, action or
proceeding in such courts by the mailing thereof by the Administrative Agent or any Lender by
registered or certified mail, postage prepaid, at its address set forth beneath its signature
hereto. Nothing in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
6.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
6.12 Captions. The captions and section headings appearing herein are included
solely for convenience of reference and are not intended to affect the interpretation of any
provision of this Agreement.
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6.13 Agents and Attorneys-in-Fact. The Administrative Agent may employ agents and
attorneys-in-fact in connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
6.14 Severability. If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be liberally construed in favor of
the Secured Creditors in order to carry out the intentions of the parties hereto as nearly as may
be possible and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other jurisdiction.
Security Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed
and delivered as of the day and year first above written.
| GREAT WALL ACQUISITION CORPORATION |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
| By | ||||
| Name: | ||||
| Title: | ||||
Security Agreement
| DBS BANK LTD,
as Administrative Agent |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
Security Agreement
ANNEX 1
FILING DETAILS
[See Section 2(b)]
| Type of | Place of | |||||||||||||
| Current | Organization | Business or | ||||||||||||
| Legal | (corporation, | Location of | Former | |||||||||||
| Name (no | limited | Jurisdiction | Organizational | Current | Chief | Location | Legal | |||||||
| trade | liability | of | ID Number | Mailing | Executive | of | Name(s) | |||||||
| names) | company, etc.) | Organization | (if applicable) | Address | Officer | Goods | (if any) | |||||||
Great Wall Acquisition Corporation |
Corporation | Delaware | IRS Employer ID# 00-0000000 |
000 Xxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
000 Xxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 |
New York, New York | None |
Annex 7 to Security Agreement
