SECURITY AGREEMENT (ALL ASSETS)
This Security Agreement (All Assets) (this "AGREEMENT"), dated as of
November 24, 2003, is made by and between THE XXXXXXX MASTER LIMITED
PARTNERSHIP, a Delaware limited partnership ("NMLP"), and FLEET NATIONAL BANK, a
national banking association having an address at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as agent (Fleet National Bank, in such capacity as agent,
hereinafter referred to as "AGENT") for a syndicate of Lenders (singly and
collectively, the "LENDERS") as specifically provided in the Loan Agreement (as
defined below).
RECITALS
WHEREAS, pursuant to that certain Master Loan Agreement dated as of
November 24, 2003 (as amended, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT") entered into by and among NMLP, T-Two Partners,
L.P., a Delaware limited partnership ("T-TWO"), the Agent and the Lenders, the
Agent and the Lenders have agreed to make a loan to NMLP in the aggregate
principal amount of $216,000,000.00 (the "NMLP LOAN") and a loan to T-Two in the
aggregate principal amount of $309,000,000.00 (the "T-TWO LOAN") (the NMLP Loan
and the T-Two Loan sometimes are referred to herein, collectively, as the
"LOANS"), upon the terms and subject to the conditions set forth therein.
WHEREAS, NMLP has substantial financial dealings with T-Two and is
affiliated with T-Two (either by ownership, contractual relationship,
employment or other meaningful business relationship).
WHEREAS, pursuant to the terms of the Call Option Agreement, NMLP has
executed and delivered a Guaranty of even date herewith, guaranteeing the
payment and performance of all T-Two Obligations arising under or pursuant to
the Loan Agreement (the "GUARANTY").
WHEREAS, as a condition to making the Loans, the Agent and the Lenders
have required NMLP to execute and deliver this Agreement and certain other NMLP
Security Documents to secure NMLP's obligations under the Guaranty and the Loan
Agreement.
ACCORDINGLY, in consideration of the mutual covenants contained in the
Loan Agreement and herein, the parties hereby agree as follows:
1. Definitions. All terms defined in the recitals hereto and the Loan
Agreement that are not otherwise defined herein shall have the meanings given
them in the recitals and the Loan Agreement. All terms defined in the UCC and
not otherwise defined herein have the meanings assigned to them in the UCC. In
addition, the following terms have the meanings set forth below or in the
referenced Section of this Agreement:
"Account Debtor" has the meaning given that term in the UCC.
"Accounts" and "Accounts Receivable" means all of NMLP's
"accounts", as such term is defined in the UCC, including each and
every right of NMLP to the payment of money, whether such right to
payment now exists or hereafter arises, whether such right to payment
arises out of a sale, lease or other disposition of goods or other
property, out of a rendering of services, out of a loan, out of the
overpayment of taxes or other liabilities, or otherwise arises under
any contract or agreement, whether such right to payment is created,
generated or earned by NMLP or by some other person who subsequently
transfers such
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person's interest to NMLP, whether such right to payment is or is not
already earned by performance, and howsoever such right to payment may
be evidenced, together with all other rights and interests (including
all Liens) which NMLP may at any time have by law or agreement against
any Account Debtor or other obligor obligated to make any such payment
or against any property of such Account Debtor or other obligor; all
including but not limited to all present and future Accounts, Contract
Rights, loans and obligations receivable, credit card receivables,
Health-Care-Insurance Receivables, Chattel Paper, bonds, notes and
other debt instruments, tax refunds and rights to payment in the nature
of general intangibles.
"Cash Management Agreement" means that certain Cash Management
Agreement dated of even date herewith by and between, among others,
NMLP, T-Two, the Agent and the Lenders.
"Chattel Paper" has the meaning given that term in the UCC.
"Collateral" means all assets of NMLP including, without
limitation, all of NMLP's Accounts, Accounts Receivable, Contract
Rights, Commercial Tort Claims, Chattel Paper (whether Tangible or
Electronic), Deposit Accounts, Documents, Equipment, General
Intangibles (including Payment Intangibles and Software), Goods,
Instruments (including any Promissory Notes), Inventory, Investment
Property, Letter-of-Credit Rights, and all Supporting Obligations;
together with (i) all substitutions and replacements for and products
of any of the foregoing; (ii) in the case of all goods, all accessions;
(iii) all accessories, attachments, parts, equipment and repairs now or
hereafter attached or affixed to or used in connection with any goods;
(iv) all warehouse receipts, bills of lading and other documents of
title now or hereafter covering such goods; (v) any money, or other
assets of NMLP that now or hereafter come into the possession, custody,
or control of the Agent; (vi) all of NMLP's right, title and interest
in, to, and under the Call Option Agreement; and (vii) all Proceeds of
any and all of the foregoing.
"Commercial Tort Claims" has the meaning given that term in
the UCC.
"Contract Rights" includes, without limitation, "contract
rights" as now or formerly defined in the UCC and also any right to
payment under a contract not yet earned by performance and not
evidenced by an instrument or Chattel Paper.
"Deposit Accounts" has the meaning given that term in the UCC
and also includes all depository, operating, and other accounts
established and maintained by NMLP with the Agent, including, without
limitation, the NMLP Cash Collateral Account.
"Documents" has the meaning given that term in the UCC.
"Electronic Chattel Paper" means Chattel Paper evidenced by a
record or records consisting of information stored in an electronic
medium.
"Equipment" means all of NMLP's "equipment", as such term is
defined in the UCC, whether now owned or hereafter acquired, including
but not limited to all present and future machinery, vehicles,
furniture, fixtures, manufacturing equipment, shop equipment, office
and recordkeeping equipment, parts, tools, supplies, and including
specifically the goods described in any equipment schedule or list
herewith or hereafter furnished to the Agent by NMLP.
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"Event of Default" has the meaning given that term in Section
6.
"General Intangibles" means all of NMLP's "general
intangibles", as such term is defined in the UCC, whether now owned or
hereafter acquired; and also all: rights to payment for credit
extended; deposits; amounts due to NMLP; credit memoranda in favor of
NMLP; warranty claims; tax refunds and abatements; insurance refunds
and premium rebates; all means and vehicles of investment or hedging,
including, without limitation, options, warrants, and futures
contracts; records; customer lists; telephone numbers; goodwill; causes
of action; judgments; payments under any settlement or other agreement;
literary rights; rights to performance; royalties; license and/or
franchise fees; rights of admission; licenses; franchises; license
agreements, including all rights of NMLP to enforce same; permits,
certificates of convenience and necessity, and similar rights granted
by any governmental authority; patents, patent applications, patents
pending, and other intellectual property; developmental ideas and
concepts; proprietary processes; blueprints, drawings, designs,
diagrams, plans, reports, and charts; catalogs; manuals; technical
data; computer software programs (including the source and object codes
therefor), computer records, computer software, rights of access to
computer record service bureaus, service bureau computer contracts, and
computer data; tapes, disks, semi-conductors chips and printouts; trade
secrets rights, copyrights, mask work rights and interests, and
derivative works and interests; user, technical reference, and other
manuals and materials; trade names, trademarks, service marks, and all
goodwill relating thereto; applications for registration of the
foregoing; and all other general intangible property of NMLP in the
nature of intellectual property; proposals; cost estimates, and
reproductions on paper, or otherwise, of any and all concepts or ideas,
and any matter related to, or connected with, the design, development,
manufacture, sale, marketing, leasing, or use of any or all property
produced, sold, or leased, by NMLP or credit extended or services
performed, by NMLP, whether intended for an individual customer or the
general business of NMLP, or used or useful in connection with research
by NMLP.
"Goods" has the meaning given that term in the UCC.
"Health-Care-Insurance Receivables" means an interest in, or
claim under, a policy of insurance which is a right to payment of a
monetary obligation for healthcare goods or services provided.
"Instruments" has the meaning given that term in the UCC.
"Inventory" means all of NMLP's "inventory", as such term is
defined in the UCC, whether now owned or hereafter acquired, whether
consisting of whole goods, spare parts or components, supplies or
materials, whether acquired, held or furnished for sale, for lease or
under service contracts or for manufacture or processing, and wherever
located.
"Investment Property" means all of NMLP's "investment
property", as such term is defined in the UCC, whether now owned or
hereafter acquired, including but not limited to all securities,
security entitlements, securities accounts, commodity contracts,
commodity accounts, stocks, bonds, mutual fund shares, money market
shares and U.S. Government securities.
"Letter-of-Credit Rights" means a right to payment or
performance under a letter of credit, whether or not the beneficiary
has demanded or is at the time entitled to demand
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payment or performance. The term does not include the right of a
beneficiary to demand payment or performance under a letter of credit.
"Lien" means any security interest, mortgage, deed of trust,
pledge, lien, charge, encumbrance, title retention agreement or
analogous instrument or device, including the interest of each lessor
under any capitalized lease and the interest of any bondsman under any
payment or performance bond, in, of or on any assets or properties of a
person, whether now owned or hereafter acquired and whether arising by
agreement or operation of law.
"NMLP Cash Collateral Account" has the meaning given that term
in the Cash Management Agreement.
"Payment Intangibles" means a General Intangible under which
the Account Debtor's principal obligation is a monetary obligation.
"Permitted Liens" means (i) the Security Interest, (ii)
covenants, restrictions, rights, easements and minor irregularities in
title which do not materially interfere with NMLP's business or
operations as presently conducted, (iii) Liens in existence on the date
hereof and described on Exhibit A hereto, and (iv) as to after acquired
property, any Liens subject to which such property is acquired.
"Proceeds" has the meaning given that term in the UCC.
"Promissory Notes" means an instrument that evidences a
promise to pay a monetary obligation, does not evidence an order to
pay, and does not contain an acknowledgment by a bank that the bank has
received for deposit a sum of money of funds.
"Security Interest" has the meaning given that term in Section
2.
"Software" means a computer program and any supporting
information provided in connection with a transaction relating to the
program. The term does not include a computer program that is included
in the definition of Goods.
"Supporting Obligations" means a Letter-of-Credit Right, or
secondary obligation that supports the payment or performance of an
Account, Chattel Paper, a Document, a General Intangible, an Instrument
or Investment Property.
"Tangible Chattel Paper" means Chattel Paper evidenced by a
record or records consisting of information that is inscribed on a
tangible medium.
"UCC" means the Uniform Commercial Code as in effect from time
to time in The Commonwealth of Massachusetts.
2. Security Interest. NMLP hereby grants the Agent a security interest
(the "Security Interest") in the Collateral to secure payment of the NMLP
Obligations.
3. Representations, Warranties and Agreements. NMLP hereby represents,
warrants and agrees as follows:
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(1) TITLE. NMLP (i) has absolute title to each item of
Collateral in existence on the date hereof, free and clear of all Liens
except the Security Interest and the Permitted Liens, (ii) will have,
at the time NMLP acquires any rights in Collateral hereafter arising,
absolute title to each such item of Collateral free and clear of all
Liens except Permitted Liens, (iii) will keep all Collateral free and
clear of all Liens except Permitted Liens, and (iv) will defend the
Collateral against all claims or demands of all persons other than the
Agent. NMLP will not sell or otherwise dispose of the Collateral or any
interest therein, outside the ordinary course of business, without the
prior written consent of the Agent, except as permitted under the Loan
Agreement.
(2) CHIEF EXECUTIVE OFFICE; IDENTIFICATION NUMBER. NMLP's
chief executive office and principal place of business is located at
the address set forth under its signature below. NMLP's federal
employer identification number is correctly set forth under its
signature below.
(3) CHANGES IN NAME OR LOCATION. NMLP will not change its name
without prior written notice to the Agent. NMLP will not change its
business address without prior written notice to the Agent.
(4) FIXTURES. NMLP will not permit any tangible Collateral to
become part of or to be affixed to any real property without first
assuring to the reasonable satisfaction of the Agent that the Security
Interest will be prior and senior to any Lien then held or thereafter
acquired by any mortgagee of such real property or the owner or
purchaser of any interest therein.
(5) RIGHTS TO PAYMENT. To NMLP's Knowledge, each right to
payment and each instrument, document, chattel paper and other
agreement constituting or evidencing Collateral is (or will be when
arising, issued or assigned to the Agent) the valid, genuine and
legally enforceable obligation, subject to no defense, setoff or
counterclaim (other than those arising in the ordinary course of
business), of the Account Debtor or other obligor named therein or in
NMLP's records pertaining thereto as being obligated to pay such
obligation. NMLP will neither agree to any material modification or
amendment nor agree to any forbearance, release or cancellation of any
such obligation, and will not subordinate any such right to payment to
claims of other creditors of such Account Debtor or other obligor.
(6) MISCELLANEOUS COVENANTS. NMLP will:
(1) keep all tangible Collateral in good repair,
working order and condition, normal depreciation excepted, and
will, from time to time, replace any worn, broken or defective
parts thereof;
(2) promptly pay all taxes (other than income taxes
on the income of Agent or any of the Lenders) and other
governmental charges levied or assessed upon or against any
Collateral or upon or against the creation, perfection or
continuance of the Security Interest, except if contested in
accordance with Section 9.1 of the Loan Agreement;
(3) at all reasonable times, permit the Agent or
its representatives to examine or inspect any Collateral,
wherever located, and to examine, inspect and copy NMLP's
books and records pertaining to the Collateral and its
business and
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financial condition and, upon the occurrence and during the
continuance of an Event of Default, to send and discuss with
Account Debtors and other obligors requests for verifications
of amounts owed to NMLP;
(4) keep accurate and complete records pertaining to
the Collateral and pertaining to NMLP's business and financial
condition and submit to the Agent such periodic reports
concerning the Collateral and NMLP's business and financial
condition as the Agent may from time to time reasonably
request;
(5) promptly notify the Agent of any loss of or
material damage to any Collateral or of any adverse change,
known to NMLP, in the prospect of payment of any material sums
due on or under any instrument, chattel paper, or account
constituting Collateral;
(6) if the Agent at any time so requests (after the
occurrence and during the continuance of an Event of Default),
promptly deliver to the Agent any instrument, document or
chattel paper constituting Collateral, duly endorsed or
assigned by NMLP;
(7) at all times keep all tangible Collateral
insured as provided in the Loan Agreement;
(8) from time to time execute such financing
statements as the Agent may reasonably require in order to
perfect the Security Interest and, if any Collateral consists
of a motor vehicle, execute such documents as may be required
to have the Security Interest properly noted on a certificate
of title;
(9) pay when due or reimburse the Agent on demand
for all costs of collection of any of the Obligations and all
other out-of-pocket expenses (including in each case all
reasonable attorneys' fees) incurred by the Agent in
connection with the creation, perfection, satisfaction,
protection, defense or enforcement of the Security Interest or
the creation, continuance, protection, defense or enforcement
of this Agreement or any or all of the NMLP Obligations,
including expenses incurred in any litigation or bankruptcy or
insolvency proceedings;
(10) execute, deliver or endorse any and all
instruments, documents, assignments, security agreements and
other agreements and writings which the Agent may at any time
reasonably request in order to secure, protect, perfect or
enforce the Security Interest and the Agent's rights under
this Agreement; and
(11) not use or keep any Collateral, or permit it to
be used or kept, for any unlawful purpose or in violation of
any federal, state or local law, statute or ordinance.
(7) AGENT'S RIGHT TO TAKE ACTION. NMLP authorizes the Agent to
file such financing statements as the Agent deems reasonably necessary
to perfect the Security Interest in the Collateral. Further, if NMLP at
any time fails to perform or observe any agreement contained in Section
3(f), and if such failure continues for a period of ten (10) business
days after the Agent gives NMLP written notice thereof, the Agent may
(but need not) perform or observe such agreement on behalf and in the
name, place and stead of NMLP (or, at the
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Agent's option, in the Agent's own name) and may (but need not) take
any and all other actions which the Agent may reasonably deem necessary
to cure or correct such failure (including, without limitation the
payment of taxes, the satisfaction of security interests, liens, or
encumbrances, the performance of obligations under contracts or
agreements with Account Debtors or other obligors, the procurement and
maintenance of insurance, the execution of financing statements, the
endorsement of instruments, and the procurement of repairs or
transportation); and, except to the extent that the effect of such
payment would be to render any loan or forbearance of money usurious or
otherwise illegal under any applicable law, NMLP shall thereupon pay
the Agent on demand the amount of all moneys expended and all costs and
expenses (including reasonable attorneys' fees) incurred by the Agent
in connection with or as a result of the Agent's performing or
observing such agreements or taking such actions, together with
interest thereon from the date expended or incurred by the Agent at the
highest rate then applicable to any of the NMLP Obligations.
(8) POWER OF ATTORNEY. NMLP hereby irrevocably appoints (which
appointment is coupled with an interest) the Agent, or its delegate, as
the attorney-in-fact of NMLP with the right (but not the duty) from
time to time, following the occurrence and during the continuance of an
Event of Default, to: (a) create, prepare, complete, execute, deliver,
endorse or file, in the name and on behalf of NMLP, any and all
instruments, documents, financing statements, applications for
insurance and other agreements and writings required to be obtained,
executed, delivered or endorsed by NMLP under this Section 3; (b) to
convert the Collateral into cash, including, without limitation, the
sale (either public or private) of all or any portion or portions of
the Collateral; (c) to enforce collection of the Collateral, either in
its own name or in the name of NMLP, including, without limitation,
executing releases, compromising or settling with any Account Debtors
and prosecuting, defending, compromising or releasing any action
relating to the Collateral; (d) to receive, open and dispose of all
mail addressed to NMLP and to take therefrom any remittances or
proceeds of Collateral in which the Agent has a security interest; (e)
to notify post office authorities to change the address for delivery of
mail addressed to NMLP to such address as the Agent shall designate;
(f) to endorse the name of NMLP in favor of the Agent upon any and all
checks, drafts, money orders, notes, acceptances or other instruments
of the same or different nature; (g) to sign and endorse the name of
NMLP on and to receive as secured party any of the Collateral, any
invoices, schedules of Collateral, freight or express receipts, or
bills of lading, storage receipts, warehouse receipts, or other
documents of title of the same or different nature relating to the
Collateral; (h) to sign the name of NMLP on any notice to the Account
Debtors or on verification of the Collateral; and (h) to sign and file
or record on behalf of NMLP any financing or other statement in order
to perfect or protect the Agent's security interest. The Agent shall
not be obliged to do any of the acts or exercise any of the powers
hereinabove authorized, but if the Agent elects to do any such act or
exercise any such power, it shall not be accountable for more than it
actually receives as a result of such exercise of power, and it shall
not be responsible to NMLP except for willful misconduct in bad faith.
All powers conferred upon the Agent by this Agreement, being coupled
with an interest, shall be irrevocable so long as any NMLP Obligation
of NMLP to the Agent shall remain unpaid.
4. Assignment of Insurance. NMLP hereby assigns to the Agent, as
additional security for the payment of the NMLP Obligations, any and all moneys
(including but not limited to proceeds of insurance and refunds of unearned
premiums) due or to become due under, and all other rights of NMLP under or with
respect to, any and all policies of insurance covering the Collateral, and NMLP
hereby directs the issuer of any such policy to pay any such moneys directly to
the Agent, following
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the occurrence and during the continuance of an Event of Default. After the
occurrence of an Event of Default, the Agent may (but need not), in its own name
or in NMLP's name, execute and deliver proofs of claim, receive all such moneys,
endorse checks and other instruments representing payment of such moneys, and
adjust, litigate, compromise or release any claim against the issuer of any such
policy.
5. Events of Default. Each of the following occurrences shall
constitute an event of default under this Agreement (herein called "Event of
Default"): (i) an Event of Default shall occur under the Loan Agreement or any
other NMLP Loan Document; or (ii) NMLP shall fail to observe or perform any
covenant or agreement herein binding on it and such failure is not cured within
the periods set forth in Section 10.2 of the Loan Agreement.
6. Remedies upon Event of Default. Upon the occurrence and during the
continuance of an Event of Default, the Agent may exercise any one or more of
the following rights and remedies: (i) declare all unmatured NMLP Obligations to
be immediately due and payable, and the same shall thereupon be immediately due
and payable, without presentment or other notice or demand; (ii) exercise and
enforce any or all rights and remedies available upon default to a secured party
under the UCC, including but not limited to the right to take possession of any
Collateral, proceeding without judicial process or by judicial process (without
a prior hearing or notice thereof, which NMLP hereby expressly waives), and the
right to sell, lease or otherwise dispose of any or all of the Collateral, and
in connection therewith, the Agent may require NMLP to make the Collateral
available to the Agent at a place to be designated by the Agent which is
reasonably convenient to both parties, and if notice to NMLP of any intended
disposition of Collateral or any other intended action is required by law in a
particular instance, such notice shall be deemed commercially reasonable if
given (in the manner specified in Section 8) at least ten (10) days prior to the
date of intended disposition or other action; (iii) exercise any right, remedy,
power, privilege or discretion of NMLP pursuant to the Call Option Agreement,
including, without limitation, NMLP's right under the Call Option Agreement to
acquire either (a) a 100% ownership interest in T-Two or (b) T-Two's ownership
interest in the Grantor Trust T-1 Certificate and Grantor Trust T-2 Certificate;
and (iv) exercise or enforce any or all other rights or remedies available to
the Agent by law or agreement against the Collateral, against NMLP or against
any other person or property. The Agent is hereby granted a nonexclusive,
worldwide and royalty-free license to use or otherwise exploit all intellectual
property owned by or licensed to NMLP that the Agent deems necessary or
appropriate to the disposition of any Collateral.
7. Other Personal Property. Unless, at the time the Agent takes
possession of any tangible Collateral, or within seven days thereafter, NMLP
gives written notice to the Agent of the existence of any goods, papers or other
property of NMLP, not affixed to or constituting a part of such Collateral, but
which are located or found upon or within such Collateral, describing such
property, the Agent shall not be responsible or liable to NMLP for any action
taken or omitted by or on behalf of the Agent with respect to such property.
8. Notice. All notices and other communications hereunder shall be in
writing and shall be (a) personally delivered, (b) sent by first class United
States mail, (c) sent by overnight courier of national reputation, or (d)
transmitted by telecopy, in each case addressed or telecopied to the party to
whom notice is being given at its address or telecopier number as set forth
below its signature or, as to each party, at such other address or telecopier
number as may hereafter be designated by such party in a written notice to the
other party complying as to delivery with the terms of this Section. All such
notices, requests, demands and other communications shall be deemed to have been
given on (i) the date received if personally delivered, (ii) five (5) days after
being deposited in the mail if
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delivered by mail, (iii) the date received if sent by overnight courier, or (iv)
the date of receipt if delivered by telecopy.
9. Termination. Upon the payment in full of the NMLP Obligations, in
immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which NMLP is
responsible, the Agent shall release the Collateral granted to the Agent as
provided for herein. However, such release by the Agent shall not be deemed to
terminate or release NMLP from any obligation or liability under this Agreement
which specifically by its terms survives the payment in full of the NMLP
Obligations.
10. Miscellaneous. This Agreement has been duly and validly authorized
by all necessary action. This Agreement does not contemplate a sale of accounts,
or chattel paper. This Agreement can be waived, modified, amended, terminated or
discharged, and the Security Interest can be released, only explicitly in a
writing signed by the Agent, and, in the case of amendment or modification, in a
writing signed by NMLP. A waiver signed by the Agent shall be effective only in
the specific instance and for the specific purpose given. Mere delay or failure
to act shall not preclude the exercise or enforcement of any of the Agent's
rights or remedies. All rights and remedies of the Agent shall be cumulative and
may be exercised singularly or concurrently, at the Agent's option, and the
exercise or enforcement of any one such right or remedy shall neither be a
condition to nor bar the exercise or enforcement of any other. The Agent's duty
of care with respect to Collateral in its possession (as imposed by law) shall
be deemed fulfilled if the Agent exercises reasonable care in physically
safekeeping such Collateral or, in the case of Collateral in the custody or
possession of a bailee or other third person, exercises reasonable care in the
selection of the bailee or other third person, and the Agent need not otherwise
preserve, protect, insure or care for any Collateral. The Agent shall not be
obligated to preserve any rights NMLP may have against prior parties, to realize
on the Collateral at all or in any particular manner or order, or to apply any
cash proceeds of Collateral in any particular order of application. This
Agreement shall be binding upon and inure to the benefit of NMLP and the Agent
and their respective successors and assigns and shall take effect when signed by
NMLP and delivered to the Agent, and NMLP waives notice of the Agent's
acceptance hereof. The Agent may execute this Agreement if appropriate for the
purpose of filing, but the failure of the Agent to execute this Agreement shall
not affect or impair the validity or effectiveness of this Agreement. A carbon,
photographic or other reproduction of this Agreement or of any financing
statement signed by NMLP shall have the same force and effect as the original
for all purposes of a financing statement. This Agreement shall be governed by
and construed in accordance with the substantive laws (other than conflict laws)
of The Commonwealth of Massachusetts. If any provision or application of this
Agreement is held unlawful or unenforceable in any respect, such illegality or
unenforceability shall not affect other provisions or applications which can be
given effect and this Agreement shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the NMLP Obligations. The parties
hereto hereby (i) consent to the personal jurisdiction of the state and federal
courts located in The Commonwealth of Massachusetts in connection with any
controversy related to this Agreement; (ii) waive any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by the
Agent or NMLP in connection with this Agreement or the other NMLP Loan Documents
may be venued in either the state or federal courts located in Boston,
Massachusetts; and (iv) agree that a final judgment in any such suit, 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.
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THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
NMLP: THE XXXXXXX MASTER LIMITED PARTNERSHIP,
A Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Xxxxxxx MLP Corp., its Manager
By:
-----------------------------------------
Xxxxxxx Xxxxxxx, Chief Operating Officer
Addresses:
1. Chief Executive Office:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
2. Principal Place of Business:
c/o First Winthrop Corporation
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
AGENT: FLEET NATIONAL BANK,
A national banking association
By:
--------------------------------
Xxxxx X. Xxx
duly authorized
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EXHIBIT A
PERMITTED LIENS
Liens in favor of Integrated Group with respect to NMLP's ownership interests in
and to Xxxxxxx XX LLC, Xxxxxxx Xxxxx LLC and Xxxxxxx Capital LLC.
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