AMENDED AND RESTATED SECURITY AGREEMENT
Exhibit
10.8
This AMENDED AND RESTATED SECURITY AGREEMENT (this “Agreement”) dated as of March 25,
2008 among MoneyGram International, Inc., a Delaware corporation (“Holdco”), MoneyGram
Payment Systems Worldwide, Inc., a Delaware corporation (the “Borrower”), MoneyGram Payment
Systems, Inc., a Delaware corporation (“Payment Systems”), FSMC, Inc., a Minnesota
corporation (“FSMC”), MoneyGram Investments, LLC (formerly CAG Inc.), a Delaware limited
liability company (“Investments”), PropertyBridge, Inc., a Delaware corporation
(“PropertyBridge”), MoneyGram of New York LLC, a Delaware limited liability company
(“MGI NY”; Holdco, the Borrower, Payment Systems, FSMC, Investments, PropertyBridge, MGI NY
and each Person who becomes a party to this Agreement by execution of a joinder in the form of
Exhibit A hereto, are sometimes collectively referred to herein as “Grantors” and each,
individually, as a “Grantor”), and JPMorgan Chase Bank, N.A., as Collateral Agent for the
benefit of the Secured Parties (the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, Holdco, JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative
Agent”), and the financial institutions so designated on the commitment schedule attached
thereto (the “Existing Lenders”) are party to that certain Amended and Restated Credit
Agreement dated as of June 29, 2005 (as previously amended, the “Existing Credit
Agreement”);
WHEREAS, Holdco, the Borrower, Payment Systems, FSMC, Investments, PropertyBridge, MGI NY and
the Collateral Agent are each party to that certain Security Agreement dated as of January 25, 2008
(the “Existing Security Agreement”);
WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement dated as of the
date hereof by and among Holdco, the Borrower, the Administrative Agent and the financial
institutions so designated on the Commitment Schedule (the “Lenders”) (the same, as it may
be amended, restated, amended and restated, modified or supplemented and in effect from time to
time, being herein referred to as the “Credit Agreement”), Holdco, the Administrative Agent
and the Existing Lenders have agreed to amend and restate the Existing Credit Agreement and the
Lenders have agreed to make available to the Borrower certain credit facilities on the terms and
conditions set forth therein;
WHEREAS, one or more Grantors may from time to time on or after the date hereof enter into, or
guaranty the obligations of one or more other Grantors or any of their respective Subsidiaries in
connection with, one or more Rate Management Transactions permitted by the Credit Agreement with a
Rate Management Counterparty;
WHEREAS, each of the Grantors has benefited or will benefit directly and indirectly from the
credit facilities made available pursuant to the Credit Agreement and from the entering into of
Rate Management Transactions by Grantors or their Subsidiaries, and has entered into that certain
Amended & Restated Guaranty dated as of the date hereof with respect to the Credit Agreement; and
WHEREAS, to induce the Administrative Agent and the Lenders to enter into the Credit Agreement
and make available the credit facilities thereunder and to induce the Lenders and their Affiliates
to enter into Rate Management Transactions, the Grantors have agreed to amend and restate the
Existing Security Agreement on the terms and conditions set forth herein to amend the definition of
Collateral (as defined in the Existing Security Agreement) and to make the other changes evidenced
hereby.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used herein without definition and defined
in the Credit Agreement are used herein as defined therein. In addition, as used herein:
“Chattel Paper” means any “chattel paper”, as such term is defined in the UCC.
“Collateral” shall have the meaning ascribed thereto in Section 3 hereof;
provided, however, that notwithstanding anything herein to the contrary, the term
“Collateral” shall not include any property of any Grantor constituting Pledged Collateral under
the Pledge Agreement or any Excluded Assets.
“Commercial Tort Claims” means “commercial tort claims”, as such term is defined in
the UCC.
“Contracts” means all contracts, undertakings, or other agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any Grantor may now or
hereafter have any right, title or interest, including, without limitation, with respect to an
account receivable, any agreement relating to the terms of payment or the terms of performance
thereof, in all cases other than Excluded Assets and other than any contract, undertaking or other
agreement if the granting of a security interest therein would be prohibited by enforceable
anti-assignment provisions of contracts or applicable law (after giving effect to relevant
provisions of the UCC).
“Copyrights” means any copyrights, rights and interests in copyrights, copyright
registrations and copyright applications, including, without limitation, the copyright
registrations and applications listed on Schedule III attached hereto, and all renewals of
any of the foregoing, all income, royalties, damages and payments now and hereafter due and/or
payable under or with respect to any of the foregoing, including, without limitation, damages and
payments for past, present and future infringements of any of the foregoing and the right to xxx
for past, present and future infringements of any of the foregoing.
“Documents” means any “documents”, as such term is defined in the UCC, and shall
include, without limitation, all documents of title (as defined in the UCC) bills of lading or
other receipts evidencing or representing Inventory or Equipment.
“Equipment” means any “equipment”, as such term is defined in the UCC.
“Event of Default” means a Default (as defined in the Credit Agreement).
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“Excluded Assets” means any or all of the following with respect to any Grantor:
(a) cash and cash equivalents (other than proceeds of the Collateral);
(b) accounts receivable;
(c) Portfolio Securities;
(d) deposit or securities accounts containing any of the foregoing;
(e) other assets that require perfection exclusively through control agreements under the
applicable UCC;
(f) Letter-of-Credit Rights;
(g) leasehold real property;
(h) motor vehicles and other assets subject to certificates of title;
(i) interest in joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged
without the consent of one or more third parties;
(j) tax-exempt bonds;
(k) General Intangibles or other rights arising under contracts, Instruments, licenses,
license agreements or other documents, to the extent (and only to the extent) that the grant
of a security interest would (i) be prohibited by an enforceable anti-assignment provision
of such documents in favor of a third party on such grant, unless and until any required
consents shall have been obtained, (ii) give any other party to such contract, Instrument,
license, license agreement or other document the right to terminate its obligations
thereunder, or (iii) violate any law, provided, however, that (1) any portion of any such
General Intangible or other such right shall cease to constitute Excluded Property pursuant
to this clause (k) at the time and to the extent that the grant of a security interest
therein does not result in any of the consequences specified above and (2) the limitation
set forth in this clause (k) above shall not affect, limit, restrict or impair the grant by
a Grantor of a security interest pursuant to this Agreement in any such General Intangible
or other such right, to the extent that an otherwise applicable prohibition or restriction
on such grant is rendered ineffective by any applicable law, including the UCC;
(l) property as to which the Collateral Agent and the Borrower reasonably determine (as
specified in writing by such Persons) that the costs of obtaining a security interest (or
perfecting the same) outweighs the benefit to the Secured Parties of the security afforded
thereby;
(m) Capital Stock representing more than 65% of the total combined voting power of a Foreign
Subsidiary;
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(n) obligations the interest on which is wholly exempt from the taxes imposed by subtitle A
of the Code; and
(o) direct Proceeds, substitutions or replacements of any of the foregoing, but only to the
extent such Proceeds, substitutions or replacements would otherwise constitute Excluded
Property.
“General Intangibles” means any “general intangibles”, as such term is defined in the
UCC, and, in any event, shall include, without limitation, all right, title and interest in or
under any Contract, models, drawings, materials and records, claims, literary rights, goodwill,
rights of performance, Copyrights, Trademarks, Patents, warranties, rights under insurance policies
and rights of indemnification.
“Goods” means any “goods”, as such term is defined in the UCC, including, without
limitation, fixtures and embedded Software to the extent included in “goods” as defined in the UCC.
“Instruments” means any “instrument”, as such term is defined in the UCC, and shall
include, without limitation, promissory notes, drafts, bills of exchange, trade acceptances,
letters of credit, letter of credit rights (as defined in the UCC) and Chattel Paper, in each case
other than Excluded Assets.
“Inventory” means any “inventory”, as such term is defined in the UCC.
“Investment Property” means any “investment property”, as such term is defined in the
UCC, other than Excluded Assets.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations of the Loan Parties to the Lenders or to any Lender, the Administrative
Agent, the Collateral Agent, the LC Issuer or any indemnified party arising under the Loan
Documents, including without limitation all obligations of the Loan Parties under the Guaranty and
all joinders and supplements thereto.
“Patents” means any patents and patent applications, including, without limitation,
the inventions and improvements described and claimed therein, and those patents and patent
applications listed on Schedule IV attached hereto, and the reissues, divisions,
continuations, renewals, extensions and continuations-in-part of any of the foregoing, and all
income, royalties, damages and payments now or hereafter due and/or payable under or with respect
to any of the foregoing, including, without limitation, damages and payments for past, present and
future infringements of any of the foregoing and the right to xxx for past, present and future
infringements of any of the foregoing.
“Pledge Agreement” means that certain Amended and Restated Pledge Agreement dated as
of the date hereof among the Collateral Agent, Holdco, the Borrower and certain of its
Subsidiaries, as from time to time amended, restated, amended and restated, supplemented or
otherwise modified.
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“Portfolio Securities” means, collectively, portfolio securities (i) designated as
“trading investments” on Holdco’s consolidated financial statements, (ii) designated as “available
for sale investments” on Holdco’s consolidated financial statements or (iii) otherwise designated
as investments on Holdco’s consolidated financial statements, in each case valued at fair value in
accordance with GAAP.
“Proceeds” means “proceeds”, as such term is defined in the UCC and, in any event,
includes, without limitation, (a) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable with respect to any of the Collateral, (b) any and all payments (in any form
whatsoever) made or due and payable from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau or agency (or any person acting under color of governmental
authority), and (c) any and all other amounts from time to time paid or payable under, in respect
of or in connection with any of the Collateral other than Excluded Assets.
“Rate Management Counterparties” means Lenders and their Affiliates (or Persons which
were Lenders or their Affiliates at the time the applicable Rate Management Transaction was entered
into) which have entered into Rate Management Transactions with Holdco or any Subsidiary.
“Representative” means any Person acting as agent, representative or trustee on behalf
of the Collateral Agent from time to time.
“Required Secured Parties” means (a) prior to the date upon which the Credit Agreement
has terminated by its terms and all of the Obligations have been paid in full, the Required Lenders
(or if so required by Section 8.2 of the Credit Agreement, all the Lenders) and (b) after the
Credit Agreement has terminated by its terms and all of the Obligations have been paid in full,
Secured Parties holding in the aggregate at least a majority of the aggregate due and unpaid Rate
Management Obligations, as determined by the Collateral Agent in its reasonable discretion.
“Secured Parties” means, collectively, each Lender, the Rate Management
Counterparties, the LC Issuer, the Administrative Agent, the Collateral Agent and all of their
successors and assigns.
“Secured Obligations” means all Obligations and all Rate Management Obligations owing
to the Rate Management Counterparties.
“Significant Acquired Subsidiary” means any Subsidiary of Holdco that on the date such
Subsidiary is acquired, incorporated or formed (or in respect of a newly incorporated or formed
Subsidiary, that acquires assets as part of one or more related transactions immediately
thereafter) has total assets that exceed 10% of the consolidated total assets of the Borrower and
its Subsidiaries or has total revenues for the most recent 12 month period, if applicable, on a pro
forma basis that exceed 10% of the total consolidated revenues for the most recent 12 month period
of the Borrower and its Subsidiaries.
“Software” means all “software”, as such term is defined in the UCC, now owned or
hereafter acquired by any Grantor, other than software embedded in any category of Goods,
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including, without limitation, all computer programs and all supporting information provided
in connection with a transaction related to any program.
“Termination Date” shall have the meaning ascribed thereto in Section 4.10
below.
“Trademarks” means any trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos, other business
identifiers, all registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, the trademarks and applications listed in Schedule
V attached hereto and renewals thereof, and all income, royalties, damages and payments now or
hereafter due and/or payable under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future infringements of any of the foregoing
and the right to xxx for past, present and future infringements of any of the foregoing.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York; provided, that to the extent that the UCC is used to define any term herein or in
any Loan Document and such term is defined differently in different Articles or Divisions of the
UCC, the definition of such term contained in Article or Division 9 shall govern.
Section 2. Representations, Warranties and Covenants of Grantors. Each Grantor
represents and warrants to, and covenants with, the Collateral Agent, for the benefit of the
Secured Parties, as follows:
(a) each Grantor has rights in and the power to transfer the Collateral in which it
purports to grant a security interest pursuant to Section 3 hereof (subject, with
respect to after acquired Collateral, to such Grantor acquiring the same) and no Lien other
than Permitted Liens exists upon such Collateral;
(b) such Grantor has the power, authority and legal right to execute this Agreement and
to grant a security interest in the Collateral to the Collateral Agent, for the benefit of
the Secured Parties;
(c) this Agreement has been duly authorized, executed and delivered by such Grantor and
constitutes a legal, valid and binding obligation of such Grantor enforceable in accordance
with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting the enforcement of
creditors’ rights generally or by general equitable principles;
(d) no consent, approval or authorization of or designation or filing with any
Governmental Entity on the part of such Grantor is required in connection with or as a
condition to the security interest granted under this Agreement, or the exercise by the
Collateral Agent of the rights provided for in this Agreement except as may be required in
connection with disposition of the Collateral by laws affecting creditors’ rights generally;
(e) the execution, delivery and performance of this Agreement by such Grantor will not
violate any provision of (i) any applicable law, rule, regulation, order, judgment, writ,
award or decree binding on such Grantor, (ii) the charter or by-laws or
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Memorandum of Articles of Association of such Grantor or (iii) any mortgage, indenture,
lease, contract, or other agreement, instrument or undertaking to which such Grantor is a
party or to which such Grantor or its assets is bound, and will not result in the creation
or imposition of any Lien in any of the assets of such Grantor except to the extent
otherwise permitted by this Agreement or the Credit Agreement and except with respect to
clauses (i) or (iii), to the extent, individually or in the aggregate, that such violation,
conflict, breach, default or creation or imposition of any Lien could not reasonably be
expected to result in a Material Adverse Effect;
(f) this Agreement is effective to create in favor of the Collateral Agent for the
benefit of the Secured Parties a valid security interest in and Lien upon all of the
Grantors’ right, title and interest in and to the Collateral, and, upon the filing of
appropriate UCC financing statements in the jurisdictions listed on Schedule I
attached hereto, such security interest will be duly perfected in all the Collateral in
which a security interest may be perfected by filing of a UCC financing statement in the
appropriate filing office and jurisdiction pursuant to the UCC, and upon delivery of the
Instruments to the Collateral Agent or its Representative, duly endorsed by the applicable
Grantor or accompanied by appropriate undated instruments of transfer duly executed by such
Grantor, the security interest in the Instruments will be duly perfected;
(g) all of the Equipment, Inventory and Goods shall be located on the date hereof at
the places as specified on Schedule I attached hereto. Except as disclosed on
Schedule I, as of the date hereof none of the Collateral is in the possession of any
bailee, warehouseman, processor or consignee. Schedule I discloses each Grantor’s
name as of the date hereof as it appears in official filings in the state of its
incorporation, formation or organization, the type of entity of each Grantor (including
corporation, partnership, limited partnership or limited liability company), organizational
identification number issued by each Grantor’s state of incorporation, formation or
organization (or a statement that no such number has been issued), each Grantor’s state of
incorporation, formation or organization and the chief place of business, chief executive
office and the office where each Grantor keeps its books and records. Each Grantor has only
one state of incorporation, formation or organization. No Grantor (including any Person
acquired by any Grantor) does business or has done business during the one (1) year
preceding the date hereof under any trade name or fictitious business name except as
disclosed on Schedule II attached hereto;
(h) the Copyrights, Patents and Trademarks listed on Schedules III, IV
and V, respectively, constitute all of the registered or pending Copyrights, Patents
and Trademarks owned as of such date by such Grantor which are registered or pending with
any Governmental Entity;
(i) no Copyrights, Patents or Trademark which is material to the business of such
Grantor or the invalidity, unenforceability or termination of which could reasonably be
expected to have a Material Adverse Effect (each a “Material IP Item”) has been
adjudged invalid or unenforceable or has been canceled, in whole or in part, or, to such
Grantor’s knowledge, is not presently subsisting. Each of such Material IP Items is valid
and enforceable. Each Grantor is the sole and exclusive owner of the entire and
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unencumbered right, title and interest in and to each of such Material IP Items free
and clear of any Liens, other than Permitted Liens. Each Grantor has adopted, used and is
currently using, or has a current bona fide intention to use, all of such Material IP Items
and such Grantor has no knowledge of any suits or actions commenced or threatened with
respect thereto; and
(j) as of the date hereof, such Grantor does not own any Commercial Tort Claim in an
amount in excess of $5,000,000 individually or $10,000,000 in the aggregate, except for
those disclosed on Schedule VI hereto.
Notwithstanding the foregoing or anything else in this Agreement to the contrary, no
representation, warranty or covenant is made with respect to the creation or perfection of a
security interest in Collateral to the extent such creation or perfection would require (i) any
filing other than a filing in the United States of America, any State thereof and the District of
Columbia, (ii) other action under the laws of any jurisdiction other than the United States of
America, any State thereof and the District of Columbia or (iii) that any control agreements be
obtained in respect thereof.
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, as of the
Effective Date each Grantor hereby pledges and grants to the Collateral Agent, for the benefit of
the Secured Parties, a Lien on and security interest in and to all of such Grantor’s right, title
and interest in the following personal property, whether now owned by such Grantor or hereafter
acquired and whether now existing or hereafter coming into existence and wherever located (all
being collectively referred to herein as “Collateral”):
(a) the Instruments of such Grantor, together with all payments thereon or thereunder:
(b) all Inventory of such Grantor;
(c) all General Intangibles (including payment intangibles (as defined in the UCC) and
Software) of such Grantor;
(d) all Equipment (including any corporate aircraft) of such Grantor;
(e) all Documents of such Grantor;
(f) all Contracts of such Grantor;
(g) all Goods of such Grantor;
(h) all Investment Property of such Grantor;
(i) Commercial Tort Claims of such Grantor; specified on Schedule VI, as from
time to time updated; and
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(j) all other tangible and intangible personal property of such Grantor, including,
without limitation, all Proceeds, products, accessions, rents, profits, income, benefits,
substitutions, additions and replacements of and to any of the property of such Grantor
described in the preceding clauses of this Section 3 (including, without limitation,
any proceeds of insurance thereon, insurance claims and all rights, claims and benefits
against any Person relating thereto), other rights to payments not otherwise included in the
foregoing and all books, correspondence, files, records, invoices and other papers,
including without limitation all tapes, cards, computer runs, computer programs, computer
files and other papers, documents and records in the possession or under the control of such
Grantor or any computer bureau or service company from time to time acting for such Grantor;
provided, however, that “Collateral” shall not include the Excluded Assets.
Section 4. Covenants; Remedies. In furtherance of the grant of the pledge and
security interest pursuant to Section 3 hereof, each Grantor hereby agrees with the
Collateral Agent, for the benefit of the Secured Parties, as follows:
4.1. Delivery and Other Perfection; Maintenance, etc.
(a) Delivery of Instruments, Documents, Etc. If any Grantor shall at any time
hold or acquire (1) any Instrument in an amount in excess of $5,000,000 individually or
$10,000,000 in the aggregate, (2) any Chattel Paper in an amount in excess of $5,000,000
individually or $10,000,000 in the aggregate or (3) any negotiable Document in an amount in
excess of $5,000,000 individually or $10,000,000 in the aggregate, such Grantor shall, on
the earlier of (A) 30 days after the date written notice thereof has been given to such
Grantor by the Collateral Agent but only with respect to Instruments, Chattel Paper and
negotiable Documents of Significant Acquired Subsidiaries and (B) on or before the later of
(i) 30 days following such acquisition or (ii) the first date required for delivery of
financial statements pursuant to Section 6.1(i) or (ii) of the Credit Agreement following
such acquisition (or such longer period as to which the Collateral Agent may agree), or, if
an Event of Default has occurred and is continuing, within 30 days following written notice
thereof given by the Collateral Agent to such Grantor, deliver and pledge to the Collateral
Agent or its Representative any and all (to the extent constituting Collateral) Instruments,
negotiable Documents and Chattel Paper duly endorsed and/or accompanied by such instruments
of assignment and transfer executed by such Grantor in such form and substance as the
Collateral Agent or its Representative may reasonably request; provided, that so
long as no Event of Default shall have occurred and be continuing, such Grantor may retain
for collection in the ordinary course of business any such Instruments, negotiable Documents
and Chattel Paper received by such Grantor in the ordinary course of business, and the
Collateral Agent or its Representative shall, promptly upon request of such Grantor, make
appropriate arrangements for making any other Instruments, negotiable Documents and Chattel
Paper pledged by such Grantor available to such Grantor for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the extent deemed appropriate
by the Collateral Agent or its Representative, against trust receipt or like document).
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(b) Other Documents and Actions. Each Grantor shall, upon written request by
the Collateral Agent, promptly execute, deliver, file and/or record any financing statement,
notice, instrument, document, agreement or other papers that may be reasonably necessary (in
the reasonable judgment of the Collateral Agent or its Representative) to create, preserve,
perfect or validate the security interest granted pursuant hereto or to enable the
Collateral Agent or its Representative to exercise and enforce the rights of the Collateral
Agent hereunder with respect to such pledge and security interest; provided, that in
no event shall any control agreements be required. Notwithstanding the foregoing, each
Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time
to file in any filing office in any relevant UCC jurisdiction any initial financing
statements and amendments thereto that (a) indicate the Collateral (i) as all assets (other
than Excluded Assets) of such Grantor or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC
of the State of New York or such jurisdiction, or (ii) as being of an equal or lesser scope
or with greater detail, and (b) contain any other information required by part 5 of Article
9 of the UCC of the State of New York for the sufficiency or filing office acceptance of any
financing statement or amendment, including (i) whether such Grantor is an organization, the
type of organization and any organization identification number issued to such Grantor, and
(ii) in the case of a financing statement filed as a fixture filing or indicating Collateral
as as-extracted collateral or timber to be cut, a sufficient description of real property to
which the Collateral relates. Each Grantor agrees to furnish any such information to the
Collateral Agent promptly upon written request. Each Grantor also ratifies its
authorization for the Collateral Agent to have filed in any UCC jurisdiction any like
initial financing statements or amendments thereto if filed prior to the date hereof.
(c) Reserved.
(d) Reserved.
(e) Intellectual Property. If any Grantor shall (i) obtain registered rights
to any new patentable inventions, any registered Copyrights or any Patents or Trademarks, or
(ii) become the owner of any registered Copyrights or any Patents or Trademarks or any
improvement on any Patent, the provisions of this Agreement above shall automatically apply
thereto and such Grantor shall, on or before the later of (i) 30 days following such
obtainment or (ii) the first date required for delivery of financial statements pursuant to
Section 6.1(i) or (ii) of the Credit Agreement following such obtainment, give to the
Collateral Agent written notice thereof. Each Grantor hereby authorizes the Collateral
Agent to modify this Agreement by amending Schedules III, IV and V,
as applicable, to include any such registered or pending Copyrights, Patents and Trademarks.
Each Grantor shall have the duty (but no Secured Party shall have any duty), subject to the
exercise of its reasonable business judgment, (i) to prosecute diligently any patent,
trademark, or service xxxx applications material to the business of such Grantor pending as
of the date hereof or hereafter, (ii) to make application on unpatented but patentable
inventions and on trademarks, copyrights and service marks material to the business of such
Grantor, as appropriate, (iii) to preserve and maintain all rights in the Material IP Items
and (iv) to ensure that the Material IP Items are and remain enforceable; provided,
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that such Grantor may abandon or otherwise cease to maintain any Copyrights, Patents or
Trademarks that, in the ordinary course of business, are reasonably determined by such
Grantor not to merit continuing maintenance. Any expenses incurred in connection with any
Grantor’s obligations under this Section 4.1(e) shall be borne by Grantors. No
Grantor shall abandon any right to file a patent, trademark or service xxxx application, or
abandon any pending patent, application or any other Copyright, Patent or Trademark (in each
case which is or would constitute a Material IP Item) without the written consent of the
Collateral Agent, which consent shall not be unreasonably withheld; provided, that
such Grantor may abandon or otherwise cease to maintain any Copyrights, Patents or
Trademarks that, in the ordinary course of business, are reasonably determined by such
Grantor not to merit continuing maintenance.
(f) Further Identification of Collateral. Each Grantor will, within 30 days
following a written request and as often as reasonably requested by the Collateral Agent or
its Representative (but no more frequently than twice per year except during the continuance
of an Event of Default), furnish to the Collateral Agent or such Representative, updated
schedules to this Agreement and such other information further identifying and describing
the Collateral as the Collateral Agent or its Representative may reasonably request, all in
reasonable detail.
(g) Investment Property. If any Grantor shall at any time hold or acquire any
Certificated Securities, such Grantor shall, on the earlier of (A) 30 days after the date
written notice thereof has been given to such Grantor by the Collateral Agent but only with
respect to Certificated Securities representing Capital Stock of Significant Acquired
Subsidiaries and (B) on or before the later of (i) 30 days following such acquisition or
(ii) the first date required for delivery of financial statements pursuant to Section 6.1(i)
or (ii) of the Credit Agreement following such acquisition (or such longer period as to
which the Collateral Agent may agree), or, if an Event of Default has occurred and is
continuing, within 30 days following written notice thereof given by the Collateral Agent to
such Grantor, deliver such Certificated Securities to the Collateral Agent, accompanied by
such undated instruments of transfer or assignment duly executed in blank as the Collateral
Agent may from time to time reasonably specify.
(h) Commercial Tort Claims. If at any time any Grantor shall hold or acquire
any Commercial Tort Claim in an amount in excess of $5,000,000 individually or $10,000,000
in the aggregate, such Grantor shall, on the earlier of (A) 30 days after the date written
notice thereof has been given to such Grantor by the Collateral Agent but only with respect
to Commercial Tort Claims of Significant Acquired Subsidiaries and (B) on or before the
later of (i) 30 days following such acquisition or (ii) the first date required for delivery
of financial statements pursuant to Section 6.1(i) or (ii) of the Credit Agreement following
such acquisition (or such longer period as to which the Collateral Agent may agree), or, if
an Event of Default has occurred and is continuing, within 30 days following written notice
thereof given by the Collateral Agent to such Grantor, enter into a supplement to this
Agreement, granting to the Collateral Agent a Lien on and security interest in such
Commercial Tort Claim.
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4.2. Other Liens. Grantors will not create, permit or suffer to exist, and will
defend the Collateral against and take such other action as is reasonably necessary to remove, any
Lien on the Collateral except Permitted Liens, and will defend the right, title and interest of the
Collateral Agent in and to the Collateral and in and to all Proceeds thereof against the claims and
demands of all Persons not holding a Permitted Lien.
4.3. Preservation of Rights. If an Event of Default has occurred or is continuing,
the Collateral Agent and its Representative may, but shall not be required to, but only following 5
Business Days’ written notice to any Grantor of its intent to do so, take any steps the Collateral
Agent or its Representative reasonably deems necessary to preserve any Collateral or any rights
against third parties to any of the Collateral, including obtaining insurance of Collateral at any
time when a Grantor has failed to do so, and any applicable Grantor jointly and severally agrees to
promptly pay, or reimburse the Collateral Agent within 10 days after demand for, all reasonable
expenses incurred in connection therewith.
4.4. Name Change; Location.
(a) Without limiting the restrictions on mergers involving the Grantors contained in
the Credit Agreement, if any Grantor shall (i) reincorporate or reorganize itself under the
laws of any jurisdiction other than the jurisdiction in which it is incorporated or
organized as of the date hereof, (ii) otherwise change its name, identity or corporate
structure or (iii) change the proposed use by such Grantor of any tradename or fictitious
business name other than any such name set forth on Schedule II attached hereto,
such Grantor shall, on or before the later of (i) 30 days following such change or (ii) the
first date required for delivery of financial statements pursuant to Section 6.1(i) or (ii)
of the Credit Agreement following such change, give to the Collateral Agent written notice
thereof.
(b) Except for the sale of Inventory in the ordinary course of business and except as
not prohibited by the Credit Agreement, each Grantor will keep the Collateral at the
locations specified in Schedule I or such other locations as to which notice has
been given to the Collateral Agent by such Grantor pursuant to this Section and with respect
to which such Grantor has taken such action as the Collateral Agent shall have reasonably
requested to protect and preserve its interests in the Collateral to be located at such
location (including using commercially reasonable efforts to secure a landlord waiver or
similar document with respect to any current or future chief executive office of the
Grantors). If any Grantor shall change its chief place of business or form any new location
at which Collateral having an aggregate value in excess of $5,000,000 is or is reasonably
expected to be located, such Grantor shall, on or before the later of (i) 30 days following
such change or (ii) the first date required for delivery of financial statements pursuant to
Section 6.1(i) or (ii) of the Credit Agreement following such change, give to the Collateral
Agent written notice thereof.
4.5. Insurance. All insurance policies required under Section 6.6 of the Credit
Agreement shall name the Collateral Agent (for the benefit of the Secured Parties) as an additional
insured or as lender loss payee, as applicable, and shall contain loss payable clauses or mortgagee
12
clauses, through endorsements in form and substance reasonably satisfactory to the Collateral
Agent.
4.6. Events of Default, Etc. During the period during which an Event of Default shall
have occurred and be continuing:
(a) Each Grantor shall, at the request of the Collateral Agent or its Representative,
assemble the Collateral and make it available to the Collateral Agent or its Representative
at a place or places designated by the Collateral Agent or its Representative which are
reasonably convenient to the Collateral Agent or its Representative, as applicable, and such
Grantor;
(b) the Collateral Agent or its Representative 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 Collateral Agent shall have all of the rights and remedies with respect to the
Collateral of a secured party under the UCC (whether or not said UCC 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 maximum extent permitted by law, to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral as if the Collateral Agent were the sole
and absolute owner thereof (and each Grantor agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Collateral Agent or its Representative in their discretion may, in the name of
the Collateral Agent or in the name of any Grantor 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;
(e) the Collateral Agent, or its Representative, may take immediate possession and
occupancy of any premises owned, used or leased by any Grantor and exercise all other rights
and remedies of an assignee which may be available to the Collateral Agent; and
(f) the Collateral Agent may, upon ten (10) Business Days’ prior written notice to the
Grantors of the time and place (which notice each Grantor hereby agrees is commercially
reasonable notification for purposes hereof), with respect to the Collateral or any part
thereof which shall then be or shall thereafter come into the possession, custody or control
of the Collateral Agent or its Representative, sell, lease, license, assign or otherwise
dispose of all or any part of such Collateral, at such place or places as the Collateral
Agent deems appropriate, and for cash or for credit or for future delivery (without any
Secured Party 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
13
and cannot be waived), and the Collateral Agent or anyone else may be the purchaser,
lessee, licensee, assignee 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 Grantors, any such demand, notice
and right or equity being hereby expressly waived and released. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section 4.6 shall be
applied in accordance with Section 4.7 hereof. If such proceeds are insufficient to cover
the costs and expenses of such realization and the payment in full of the Secured Obligations, the
Grantors shall remain liable for any deficiency.
4.7. Application of Proceeds. The proceeds of any collection, sale or other
realization of all or any part of the Collateral, and any other cash at the time held by the
Collateral Agent under this Agreement, shall be applied in accordance with Section 2.24(ii) of the
Credit Agreement.
4.8. Attorney in Fact. Each Grantor hereby irrevocably constitutes and appoints the
Collateral Agent until the Termination Date, with full power of substitution, as its true and
lawful attorney in fact with full irrevocable power and authority in the place and stead of such
Grantor and in the name of such Grantor or in its own name, from time to time in the discretion of
the Collateral Agent, for the purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute and deliver any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives the Collateral Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do the following upon the occurrence
and during the continuation of any Event of Default:
(a) to ask, demand, collect, receive and give acquittance and receipts for any and all
moneys due and to become due under any Collateral and, in the name of such Grantor or its
own name or otherwise, to take possession of and endorse and collect any checks, drafts,
notes, acceptances or other Instruments, unless constituting Excluded Assets, for the
payment of moneys due under any Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate by the
Collateral Agent for the purpose of collecting any and all such moneys due under any
Collateral whenever payable and to file any claim or to take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the Collateral Agent for
the purpose of collecting any and all such moneys due under any Collateral whenever payable;
(b) to pay or discharge charges or Liens levied or placed on or threatened against the
Collateral (other than Permitted Liens), to effect any insurance called for by the terms of
this Agreement and to pay all or any part of the premiums therefor;
14
(c) to direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due, and to become due thereunder, directly to the Collateral
Agent or as the Collateral Agent shall direct, and to receive payment of and receipt for any
and all moneys, claims and other amounts due, and to become due at any time, in respect of
or arising out of any Collateral;
(d) to sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments, verifications and
notices in connection with accounts and other Documents constituting Collateral;
(e) to commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral, unless being diligently pursued by the
applicable Grantor;
(f) to defend any suit, action or proceeding brought against such Grantor with respect
to any Collateral, unless being diligently defended by such Grantor;
(g) after giving notice to the applicable Grantor, to settle, compromise or adjust any
suit, action or proceeding described above and, in connection therewith, to give such
discharges or releases as the Collateral Agent may deem appropriate;
(h) to the extent that such Grantor’s authorization given in Section 4.1(b) of
this Agreement is not sufficient, to file such financing statements with respect to this
Agreement, with or without such Grantor’s signature, or to file a photocopy of this
Agreement in substitution for a financing statement, as the Collateral Agent may deem
appropriate, and to execute in such Grantor’s name such financing statements and amendments
thereto and continuation statements which may require the such Grantor’s signature; and
(i) generally to sell, transfer, pledge, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Collateral
Agent were the absolute owner thereof for all purposes, and to do, at the Collateral Agent’s
option and at such Grantor’s expense, at any time, or from time to time, all acts and things
which the Collateral Agent reasonably deems necessary to protect, preserve or realize upon
the Collateral and the Collateral Agent’s Lien therein, in order to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
Each Grantor hereby ratifies, to the extent permitted by law, all that such attorneys lawfully
do or cause to be done by virtue hereof. The power of attorney granted hereunder is a power
coupled with an interest and shall be irrevocable until the Termination Date.
Each Grantor also authorizes the Collateral Agent, at any time from and after the occurrence
and during the continuation of any Event of Default, (x) to communicate in its own name with any
party to any Contract constituting Collateral with regard to the assignment of the right, title and
interest of such Grantor in and under the Contracts constituting Collateral hereunder and other
matters relating thereto and (y) to execute, in connection with any sale of
15
Collateral provided for in Section 4.6 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
4.9. Perfection. Except as provided in the second paragraph of Section 4.11,
prior to or concurrently with the execution and delivery of this Agreement, each Grantor shall
furnish to the Collateral Agent such financing statements, assignments for security, Instruments
(accompanied by appropriate undated instruments of transfer duly executed by such Grantor) and
other documents as may be necessary or as the Collateral Agent or the Representative may reasonably
request to perfect the security interests granted by Section 3 of this Agreement.
4.10. Termination. This Agreement and the Liens granted hereunder shall terminate
upon the date of the termination of the Credit Agreement, the full and complete performance and
indefeasible satisfaction of all the Secured Obligations (other than contingent indemnification
obligations) and the termination of all commitments which could give rise to Secured Obligations
(the “Termination Date”), whereupon each Grantor shall automatically be released from its
obligations hereunder (other than those expressly stated to survive such termination) and the
Collateral Agent shall forthwith cause to be assigned, transferred and delivered, against receipt
but without any recourse, warranty or representation whatsoever, any remaining Collateral to or on
the order of the Grantors. The Collateral Agent, at the Grantors’ expense, shall also execute and
deliver to the Grantors upon such termination such UCC termination statements and such other
documentation as shall be reasonably requested by the Grantors to effect the termination and
release of the Liens in favor of the Collateral Agent created hereby.
4.11. Further Assurances. At any time and from time to time, upon the written request
of the Collateral Agent or its Representative, and at the sole expense of Grantors, Grantors will
promptly and duly execute and deliver any and all such further instruments, documents and
agreements and take such further reasonable actions as the Collateral Agent or its Representative
may reasonably require in order for the Collateral Agent to obtain the full benefits of this
Agreement and of the rights and powers herein granted in favor of the Collateral Agent, including,
without limitation, using the Grantors’ best efforts to secure all consents and approvals necessary
or appropriate for the assignment to the Collateral Agent of any Collateral held by any Grantor or
in which any Grantor has any rights not heretofore assigned, the filing of any financing or
continuation statements under the UCC with respect to the liens and security interests granted
hereby or transferring Collateral to the Collateral Agent’s possession (if a security interest in
such Collateral can be only perfected by possession; provided, that in no event shall any
control agreement be required) and obtaining waivers of liens from landlords and mortgagees solely
with respect to any current or future chief executive office of the Grantors. Each Grantor also
hereby authorizes the Collateral Agent and its Representative to file any such financing or
continuation statement without the signature of such Grantor to the extent permitted by applicable
law. Without limiting the foregoing, each Grantor agrees to promptly upon the request of the
Collateral Agent execute and deliver to the Collateral Agent such supplemental security instruments
with respect to Copyrights, Patents and Trademarks as the Collateral Agent may from time to time
reasonably request.
Within 30 days after the date hereof (or such longer period as to which the Collateral Agent
may agree), Grantors shall deliver (with respect to (b) below, use commercially
16
reasonable efforts to deliver) to the Collateral Agent the following, each in form and
substance reasonably satisfactory to the Collateral Agent:
(a) an aircraft mortgage and security agreement and an opinion of counsel relating to
the Collateral Agent’s first priority perfected security interest in Holdco’s corporate
aircraft; and
(b) a fully-executed landlord waiver or similar agreement with respect to the Grantors’
chief executive office located at 0000 Xxxxx Xxxxxx Xxxxx, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000.
4.12. Limitation on Duty of the Collateral Agent. The powers conferred on the
Collateral Agent under this Agreement are solely to protect the Collateral Agent’s interest in the
Collateral and shall not impose any duty upon it to exercise any such powers. The Collateral Agent
shall be accountable only for amounts that it actually receives as a result of the exercise of such
powers and neither the Collateral Agent nor its Representative nor any of their respective
officers, directors, employees or agents shall be responsible to Grantors for any act or failure to
act, except for bad faith, gross negligence, willful misconduct or breach of this Agreement.
Without limiting the foregoing, the Collateral Agent and any Representative shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in their possession if
such Collateral is accorded treatment substantially equivalent to that which the Collateral Agent
or any Representative, in its individual capacity, accords its own property consisting of the type
of Collateral involved, it being understood and agreed that neither any Secured Party nor any
Representative shall have any responsibility for taking any necessary steps (other than steps taken
in accordance with the standard of care set forth above) to protect, preserve or exercise rights
against any Person with respect to any Collateral and the Collateral Agent shall be relieved of all
responsibility for the Collateral upon surrendering same to the applicable Grantor.
Also without limiting the generality of the foregoing, neither any Secured Party nor any
Representative shall have any obligation or liability under any Contract or license by reason of or
arising out of this Agreement or the granting to the Collateral Agent of a security interest
therein or assignment thereof or the receipt by any Secured Party or any Representative of any
payment relating to any Contract or license pursuant hereto, nor shall any Secured Party or any
Representative be required or obligated in any manner to perform or fulfill any of the obligations
of any Grantor under or pursuant to any Contract or license, or to make any payment, or to make any
inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any
performance by any party under any Contract or license, or to present or file any claim, or to take
any action to collect or enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
Nothing in this Agreement shall be construed to subject the Collateral Agent or any Secured
Party to liability as an owner of any Collateral, nor shall the Collateral Agent or any Secured
Party be deemed to have assumed any obligations under any agreement or instrument included as
Collateral, unless and until in each case the Collateral Agent enforces its rights hereunder after
an Event of Default in such a manner as to actually take ownership of such Collateral pursuant to a
foreclosure or similar action.
17
Section 5. Miscellaneous.
5.1. No Waiver. No failure on the part of the Collateral Agent or any of its
Representatives 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 the Collateral Agent or any of its Representatives 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 rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies provided by law.
5.2. Notices. All notices, demands and requests that any party is required or elects
to give to any other party shall be given in accordance with the provisions of Section 13.1 of the
Credit Agreement, and if given (i) to the Collateral Agent, shall be given to it at 00 X. Xxxxxxxx
Xxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000-0000 or as otherwise specified by the Collateral Agent in
writing, (ii) to a Grantor other than the Borrower, shall be given to it c/o the Borrower at the
address specified in the Credit Agreement and (iii) to the Borrower, shall be given to it at its
address specified in the Credit Agreement.
5.3. Amendments, etc. The terms of this Agreement may be waived, altered or amended
only by an instrument in writing duly executed by each Grantor and the Collateral Agent with (other
than in the case of amendments hereof solely for the purpose of adding Collateral as contemplated
hereby) the concurrence or at the direction of the Required Secured Parties. Any such amendment or
waiver shall be binding upon the Collateral Agent and each Grantor and their respective successors
and assigns.
5.4. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, the Secured Parties and the respective successors and assigns of
each of the foregoing, provided, that no Grantor shall assign or transfer its rights
hereunder, except as permitted by this Agreement or the Credit Agreement.
5.5. Counterparts; Headings. This Agreement may be authenticated in any number of
counterparts, all of which taken together shall constitute one and the same instrument and any of
the parties hereto may authenticate this Agreement by signing any such counterpart. This Agreement
may be authenticated by manual signature, facsimile or, if approved in writing by the Collateral
Agent, electronic means, all of which shall be equally valid. The headings in this Agreement are
for convenience of reference only and shall not alter or otherwise affect the meaning hereof.
5.6. 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 (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.
5.7. Expenses. Any taxes (including income taxes) and stamp duties payable or ruled
payable by any domestic or foreign Governmental Entity in respect of this Agreement shall be
18
paid by the Grantors, together with related interest, penalties, fines and expenses, if any.
The Grantors shall reimburse the Collateral Agent promptly following demand for any and all
reasonable and documented costs and out-of-pocket expenses (limited with respect to legal expenses
to the reasonable fees, disbursements and other charges of one counsel to the Collateral Agent and,
if reasonably necessary, one local counsel in any relevant jurisdiction) relating to this Agreement
as and to the extent required by Section 9.6(i) of the Credit Agreement (giving effect to the last
sentence of Section 10.16 thereof). For purposes thereof, costs and expenses relating to the
collection, preservation or sale of the Collateral shall be deemed to be in connection with the
administration of the Loan Documents. Any and all costs and expenses incurred by the Grantors in
the performance of actions required pursuant to the terms hereof shall be borne solely by the
Grantors.
5.8. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Grantors and the Collateral Agent with respect to the subject matter hereof and
supersedes all prior oral and written agreements and understandings between any Grantor and the
Collateral Agent relating to the subject matter hereof. This Agreement supplements the other Loan
Documents and nothing in this Agreement shall be deemed to limit or supersede the rights granted to
the Collateral Agent or the other Secured Parties in any other Loan Document. In the event of any
inconsistencies between the provisions of this Agreement and the provisions of the Pledge Agreement
relating to Pledged Collateral, the provisions of the Pledge Agreement relating to the Pledged
Collateral shall govern.
5.9. Choice of Law, Submission to Jurisdiction, etc.
(a) This Agreement shall be construed in accordance with and governed by the laws of
the State of New York.
(b) Each Grantor 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.
(c) Each of the parties hereto 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 paragraph (b) of this Section. 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.
19
(d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in this Section. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.
5.10. 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.
5.11. Amendment and Restatement. This Agreement amends and restates the Existing
Security Agreement in its entirety and, on the Effective Date, the terms and provisions of the
Existing Security Agreement shall be superseded hereby and the rights and obligations of the
parties hereto shall be governed by this Agreement rather than the Existing Security Agreement.
This Agreement is given in substitution for the Existing Security Agreement, is in no way intended
to constitute a novation of the Existing Security Agreement and the Liens granted in the Existing
Security Agreement hereby are renewed and extended and shall be continuing. The parties hereto
acknowledge and agree that any waivers, express or implied by course of conduct or otherwise,
amendments or other actions (or failures to act) under the Existing Security Agreement shall not
affect the rights and duties of the parties under this Agreement.
[Signature Page Follows]
20
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.
GRANTORS: | ||||
MONEYGRAM INTERNATIONAL, INC. | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
MONEYGRAM PAYMENT SYSTEMS WORLDWIDE, INC. | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
MONEYGRAM PAYMENT SYSTEMS, INC. | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
FSMC, INC. | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
MONEYGRAM INVESTMENTS, LLC | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Page to Amended and Restated Security Agreement]
PROPERTYBRIDGE, INC. | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
MONEYGRAM OF NEW YORK LLC, | ||||
By: MONEYGRAM PAYMENT SYSTEMS, INC., its Sole Member | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Page to Amended and Restated Security Agreement]
COLLATERAL AGENT: | ||||
JPMORGAN CHASE BANK, N.A., as Collateral Agent for the benefit of the Secured Parties | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Title: | Vice President | |||
[Signature Page to Amended and Restated Security Agreement]
EXHIBIT A
Form of Joinder
Joinder to Security Agreement
Joinder to Security Agreement
The undersigned,
, a , as of the day of ,
20 , hereby
joins in the execution of that certain Amended and Restated Security Agreement dated as of March
25, 2008 (as the same may be amended, restated, supplemented or otherwise modified and in effect
from time to time, the “Security Agreement”) among MoneyGram International, Inc., MoneyGram
Payment Systems Worldwide, Inc., MoneyGram Payment Systems, Inc., FSMC, Inc., MoneyGram
Investments, LLC, PropertyBridge, Inc., MoneyGram of New York LLC and each other Person that
becomes a Grantor thereunder after the date and pursuant to the terms thereof, to and in favor of
JPMorgan Chase Bank, N.A., as Collateral Agent. Capitalized terms used but not defined herein have
the meanings given them in the Security Agreement. By executing this Joinder, the undersigned
hereby agrees that it is a Grantor thereunder and agrees to be bound by all of the terms and
provisions of the Security Agreement.
The undersigned represents and warrants to the Collateral Agent and the other Secured Parties that:
(a) all of the Equipment, Inventory and Goods owned by such Grantor is located at the places as
specified on Schedule I attached hereto;
(b) except as disclosed on Schedule I, none of such Collateral is in the possession of any
bailee, warehousemen, processor or consignee;
(c) the chief place of business, chief executive office and the office where such Grantor keeps its
books and records are located at the place specified on Schedule I;
(d) such Grantor (including any Person acquired by such Grantor) does not do business or has not
done business during the past five years under any tradename or fictitious business name, except as
disclosed on Schedule II;
(e) all registered or pending Copyrights, Patents and Trademarks owned by the undersigned are
listed in Schedules III, IV and V, respectively; and
(f) all Commercial Tort Claims, in an amount in excess of $5,000,000 individually or $10,000,000 in
the aggregate of such Grantor are listed in Schedule VI.
, a
By:
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Name: |
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Title: |
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FEIN: |
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