COLLATERAL AGENT AGREEMENT
Exhibit
10.11
COLLATERAL
AGENT AGREEMENT (this “Agreement”) dated as
of January __, 2010, among Collateral Agents, LLC, a Delaware Limited
Liability Company (the “Collateral Agent”),
and the parties identified on Schedule 1 hereto (each,
individually, a “Lender” and
collectively, the “Lenders”), who hold
or will acquire promissory Notes issued or to be issued by China Yongxin
Pharmaceuticals, Inc., a Delaware corporation (“Parent”),
and guaranteed by each of the entities identified on Schedule 2 hereto (each a “Guarantor” and
together with Parent, each a “Debtor” and
collectively, “Debtors”), on or
about the date of this Agreement as described in the Security Agreement referred
to in Section 1(a) below (collectively herein the “Notes”).
WHEREAS,
the Lenders have made, are making and will be making loans to Parent to be
secured by certain Collateral and Pledged Stock; and
WHEREAS,
it is desirable to provide for the orderly administration of such Collateral and
Pledged Stock by requiring each Lender to appoint the Collateral Agent, and the
Collateral Agent has agreed to accept such appointment and to receive, hold and
deliver such Collateral and Pledged Stock, all upon the terms and subject to the
conditions hereinafter set forth; and
WHEREAS,
it is desirable to allocate the enforcement of certain rights of the Lenders
under the Notes for the orderly administration thereof.
NOW,
THEREFORE, in consideration of the premises set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
1. Collateral.
(a) Prior
to or contemporaneously with the execution and delivery of this Agreement by the
Collateral Agent and the Lenders, (i) the Collateral Agent has or will have
entered into a Security Agreement with Parent and Guarantor (“Security Agreement”),
regarding the grant of a security interest in the assets of Parent and Guarantor
(such assets are referred to herein and in the Security Agreement as the “Collateral”) to the
Collateral Agent, for the benefit of the Lenders, (ii) Guarantor will have
executed and delivered a “Guaranty” in favor of Lenders in connection with the
Obligations (as defined in the Security Agreements), (iii) the Lenders and
Collateral Agent and holders of Parent’s $.001 par value Common Stock, have
entered into Stock Pledge Agreements (each a “Stock Pledge
Agreement”) at or about the date of this Agreement with respect to the
grant to Lenders and Collateral Agent of a security interest in Pledged Stock
(as defined therein) by the Pledgors therein, and (iv) Parent is issuing the
Notes to the Lenders pursuant to Subscription Agreements dated at or
about January __, 2010 and the date of this Agreement (collectively,
each a “Subscription Agreement”). Collectively, the Security
Agreement, each Stock Pledge Agreement, each Guaranty, the Notes and
Subscription Agreement and other agreements referred to therein are referred to
herein as “Borrower
Documents”. All defined terms not otherwise defined herein
shall have the meanings attributed to them in the Security Agreement and Stock
Pledge Agreement. For purposes of this Agreement, Collateral includes
Pledged Stock.
(b) The
Collateral Agent hereby acknowledges that any Collateral held by the Collateral
Agent is held for the benefit of the Lenders in accordance with this Agreement
and the Borrower Documents. No reference to the Borrower Documents or
any other instrument or document shall be deemed to incorporate any term or
provision thereof into this Agreement unless expressly so provided.
(c) The
Collateral Agent is to distribute in accordance with the Borrower Documents any
proceeds received from the Collateral which are distributable to the Lenders as
set forth in Section 10.4 of the Security Agreement.
2. Appointment of the
Collateral
Agent.
The
Lenders hereby appoint the Collateral Agent (and the Collateral Agent hereby
accepts such appointment) to take any action including, without limitation, the
registration of any Collateral in the name of the Collateral Agent or its
nominees prior to or during the continuance of an Event of Default (as defined
in the Borrower Documents), the exercise of voting rights, if any, upon the
occurrence and during the continuance of an Event of Default, the application of
any cash collateral received by the Collateral Agent to the payment of the
Obligations, the making of any demand under the Borrower Documents, the exercise
of any remedies given to the Collateral Agent pursuant to the Borrower Documents
and the exercise of any authority pursuant to the appointment of the
Collateral Agent as an attorney-in-fact pursuant to the Security Agreement that
the Collateral Agent deems necessary or proper for the administration of the
Collateral pursuant to the Security Agreement. Upon disposition of
the Collateral in accordance with the Borrower Documents, the Collateral Agent
shall promptly distribute any cash or Collateral in accordance with Section 10.4
of the Security Agreement and Section 6(g) of the Stock Pledge
Agreements. Parent and Lenders must notify Collateral Agent in
writing of the issuance of Notes to Lenders by Parent. Additional
Lenders may become subject to the rights and benefits of this Agreement by
participating in the Offering and executing and delivering a copy of this
Agreement to the Collateral Agent and Company. Schedule I may be
amended from time to time to include such additional Lenders. The
Collateral Agent will not be required to act hereunder in connection with Notes
the issuance of which was not disclosed in writing to the Collateral Agent nor
will the Collateral Agent be required to act on behalf of any assignee of Notes
without the written consent of Collateral Agent.
3. Action by the Majority in
Interest.
(a) Certain
Actions. Each of the Lenders covenants and agrees that only a
Majority in Interest shall have the right, but not the obligation, to undertake
the following actions (it being expressly understood that less than a Majority
in Interest hereby expressly waive the following rights that they may otherwise
have under the Borrower Documents):
(i) Acceleration. If
an Event of Default occurs, after the applicable cure period, if any, a Majority
in Interest may, on behalf of all the Lenders, instruct the Collateral Agent to
provide to Parent, Pledgor and/or Guarantor notice to cure such default and/or
declare the unpaid principal amount of the Notes to be due and payable, together
with any and all accrued interest thereon and all costs payable pursuant to such
Notes;
(ii) Enforcement. Upon
the occurrence of any Event of Default after the applicable cure period, if any,
a Majority in Interest may instruct the Collateral Agent to proceed to protect,
exercise and enforce, on behalf of all the Lenders, their rights and remedies
under the Borrower Documents against Parent, Pledgor and/or Guarantor, and such
other rights and remedies as are provided by law or equity; and
(iii) Waiver of Past
Defaults. A Majority in Interest may instruct the Collateral
Agent to waive any Event of Default by written notice to Parent, Pledgor and/or
Guarantor, and the other Lenders, but not waive damages accrued or accruing
until the effective date of such waiver.
(b) Permitted Subordination and
Release. A Majority in Interest may instruct the Collateral
Agent to agree to release in whole or in part or to subordinate any Collateral
to any claim or other actual or proposed security interest and may enter into
any agreement with Parent, Pledgor and/or Guarantor to evidence such
subordination; provided, however, that
subsequent to any such release or subordination, each Note shall
remain pari passu with the
other Notes held by the Lenders.
(c) Further
Actions. A Majority in Interest may instruct the Collateral
Agent to take any other action described in Section 13(j) of the Subscription
Agreement and subject to the conditions described in Section 13(j) of the
Subscription Agreement by instructing the Collateral Agent in writing to take
such action on behalf of all the Lenders.
(d) Majority in
Interest. A Majority in Interest shall mean Lenders who hold
not less than seventy-five percent (75%) of the outstanding principal
amount of the Notes on the date such Majority in Interest instructs the
Collateral Agent.
4. Power of Attorney.
(a) To
effectuate the terms and provisions hereof, the Lenders hereby appoint the
Collateral Agent as their attorney-in-fact (and the Collateral Agent hereby
accepts such appointment) for the purpose of carrying out the provisions of this
Agreement including, without limitation, taking any action on behalf of,
or at the instruction of, the Majority in Interest at the written direction
of the Majority in Interest and executing any consent authorized pursuant to
this Agreement and taking any action and executing any instrument that the
Collateral Agent may deem necessary or advisable (and lawful) to accomplish the
purposes hereof.
(b) All
acts done under the foregoing authorization are hereby ratified and approved and
neither the Collateral Agent nor any designee nor agent thereof shall be liable
for any acts of commission or omission, for any error of judgment, for any
mistake of fact or law except for acts of gross negligence or willful
misconduct.
(c) This
power of attorney, being coupled with an interest, is irrevocable while this
Agreement remains in effect.
5. Expenses of the Collateral
Agent. The Lenders shall pay any and all reasonable costs and
expenses incurred by the Collateral Agent, including, without limitation,
reasonable costs and expenses relating to all waivers, releases, discharges,
satisfactions, modifications and amendments of this Agreement, the
administration and holding of the Collateral, insurance expenses, and the
enforcement, protection and adjudication of the parties’ rights hereunder by the
Collateral Agent, including, without limitation, the reasonable disbursements,
expenses and fees of the attorneys the Collateral Agent may retain, if any, each
of the foregoing in proportion to their holdings of the Notes.
6. Reliance on Documents and
Experts. The Collateral Agent shall be entitled to rely upon
any notice, consent, certificate, affidavit, statement, paper, document, writing
or communication (which may be by telegram, cable, telex, telecopier, or
telephone) reasonably believed by it to be genuine and to have been signed, sent
or made by the proper person or persons, and upon opinions and advice of its own
legal counsel, independent public accountants and other experts selected by the
Collateral Agent.
7. Duties of the Collateral
Agent; Standard of Care.
(a) The
Collateral Agent’s only duties are those expressly set forth in this Agreement,
and the Collateral Agent hereby is authorized to perform those duties in
accordance with commercially reasonable practices. The Collateral
Agent may exercise or otherwise enforce any of its rights, powers, privileges,
remedies and interests under this Agreement and applicable law or perform any of
its duties under this Agreement by or through its officers, employees,
attorneys, or agents.
(b) The
Collateral Agent shall act in good faith and with that degree of care that an
ordinarily prudent person in a like position would use under similar
circumstances.
(c) Any
funds held by the Collateral Agent hereunder need not be segregated from other
funds except to the extent required by law. The Collateral Agent
shall be under no liability for interest on any funds received by it
hereunder.
8. Resignation. The
Collateral Agent may resign and be discharged of its duties hereunder at any
time by giving written notice of such resignation to the other parties hereto,
stating the date such resignation is to take effect. Within five (5)
days of the giving of such notice, a successor collateral agent shall be
appointed by the Majority in Interest; provided, however, that if the
Lenders are unable so to agree upon a successor within such time period, and
notify the Collateral Agent during such period of the identity of the successor
collateral agent, the successor collateral agent may be a person designated by
the Collateral Agent, and any and all fees of such successor collateral agent
shall be the joint and several obligation of the Lenders. The
Collateral Agent shall continue to serve until the effective date of the
resignation or until its successor accepts the appointment and receives the
Collateral held by the Collateral Agent but shall not be obligated to take any
action hereunder. The Collateral Agent may deposit any Collateral
with the Supreme Court of the State of New York for New York County or any such
other court in New York State that accepts such Collateral.
9. Exculpation. The
Collateral Agent and its officers, employees, attorneys and agents, shall not
incur any liability whatsoever for the holding or delivery of documents or the
taking of any other action in accordance with the terms and provisions of this
Agreement, for any mistake or error in judgment, for compliance with any
applicable law or any attachment, order or other directive of any court or other
authority (irrespective of any conflicting term or provision of this Agreement),
or for any act or omission of any other person engaged by the Collateral Agent
in connection with this Agreement, unless occasioned by the exculpated person’s
own gross negligence or willful misconduct; and each party hereto hereby waives
any and all claims and actions whatsoever against the Collateral Agent and its
officers, employees, attorneys and agents, arising out of or related directly or
indirectly to any or all of the foregoing acts, omissions and
circumstances.
10. Indemnification. The
Lenders hereby agree to indemnify, reimburse and hold harmless the Collateral
Agent and its directors, officers, employees, attorneys and agents, jointly and
severally, from and against any and all claims, liabilities, losses and expenses
that may be imposed upon, incurred by, or asserted against any of them,
arising out of or related directly or indirectly to this Agreement or the
Collateral, except such as are occasioned by the indemnified person’s own gross
negligence or willful misconduct.
11. Miscellaneous.
(a) Rights and Remedies Not
Waived. No act, omission or delay by the Collateral Agent
shall constitute a waiver of the Collateral Agent’s rights and remedies
hereunder or otherwise. No single or partial waiver by the Collateral
Agent of any default hereunder or right or remedy that it may have shall operate
as a waiver of any other default, right or remedy or of the same default, right
or remedy on a future occasion.
(b) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard
to conflicts of laws that would result in the application of
the substantive laws of another jurisdiction.
(c) Waiver of Jury Trial and
Setoff; Consent to Jurisdiction; Etc.
(i) In
any litigation in any court with respect to, in connection with, or arising out
of this Agreement or any instrument or document delivered pursuant to this
Agreement, or the validity, protection, interpretation, collection or
enforcement hereof or thereof, or any other claim or dispute howsoever arising,
between the Collateral Agent and the Lenders or any Lender, then each
Lender, to the fullest extent it may legally do so, (A) waives the right to
interpose any setoff, recoupment, counterclaim or cross-claim in connection with
any such litigation, irrespective of the nature of such setoff, recoupment,
counterclaim or cross-claim, unless such setoff, recoupment, counterclaim or
cross-claim could not, by reason of any applicable federal or state procedural
laws, be interposed, pleaded or alleged in any other action; and (B) WAIVES TRIAL BY JURY IN CONNECTION
WITH ANY SUCH LITIGATION AND ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH LENDER AGREES THAT THIS SECTION 11(c) IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AGREEMENT AND
ACKNOWLEDGE THAT THE COLLATERAL AGENT WOULD NOT ENTER THIS AGREEMENT IF THIS
SECTION 11(c) WERE NOT PART OF THIS AGREEMENT.
(ii) Each
Lender irrevocably consents to the exclusive jurisdiction of any State or
Federal Court located within the County of New York, State of New York, in
connection with any action or proceeding arising out of or relating to this
Agreement or any document or instrument delivered pursuant to this Agreement or
otherwise. Each party hereby irrevocably waives personal service of
process and consents to process being served in any suit, action or proceeding
in connection with this Agreement or any other Transaction Document by mailing a
copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in
any other manner permitted by law. Each Lender hereby waives, to the
fullest extent it may effectively do so, the defenses of forum non conveniens
and improper venue.
(d) Admissibility of this
Agreement. Each of the Lenders agrees that any copy of this
Agreement signed by it and transmitted by telecopier for delivery to the
Collateral Agent shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence.
(e) Address for Notices.
Any notice or other communication under the provisions of this Agreement shall
be given in writing and delivered in person, by reputable overnight courier or
delivery service, by facsimile machine (receipt confirmed) with a copy sent by
first class mail on the date of transmissions, or by registered or certified
mail, return receipt requested, directed to such party’s addresses set
forth below (or to any new address of which any party hereto shall have informed
the others by the giving of notice in the manner provided herein):
In the
case of the Collateral Agent, to:
Collateral
Agents, LLC
000 Xxxx
00xx Xxxxxx,
Xxxxx 0000
Xxx Xxxx,
XX 00000
Attn:
General Counsel
Fax:
(000) 000-0000
In the
case of the Lenders, to:
To the
address and telecopier number set forth on
Schedule
I hereto.
In the
case of Parent, Guarantor and Pledgors, to:
China
Yongxin Pharmaceuticals, Inc.
000
Xxxxxx Xxxxx
Xxxx xx
Xxxxxxxx, XX 00000
Attn:
Xxxxxxx Xxx, CEO
Fax:
(000) 000-0000
With a
copy by facsimile only to:
Xxxxxxxxxx
& Xxxxx, LLP
00000
Xxxxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxx Xxxxx, Esq.
Fax:
(000) 000-0000
If to
Parent, Guarantor, Lender or Collateral Agent,
with a
copy by telecopier only to:
Grushko
& Xxxxxxx, P.C.
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
(f) Amendments and Modification;
Additional Lender. No provision hereof shall be modified,
altered, waived or limited except by written instrument expressly referring to
this Agreement and to such provision, and executed by the parties
hereto. Any transferee of a Note who acquires a Note after the date
hereof will become a party hereto by signing the signature page and sending an
executed copy of this Agreement to the Collateral Agent and receiving a signed
acknowledgement from the Collateral Agent.
(g) Fee. Upon
the execution of this agreement, Parent will pay the Collateral Agent a fee of
$5,000 for agreeing to act as Collateral Agent hereunder and for reading and
becoming familiar with the Borrower Documents. Upon the occurrence of an
Event of Default, the Lenders collectively shall pay the Collateral Agent the
sum of $10,000 on account, to apply against an hourly fee of $500 to be paid to
the Collateral Agent by the Lenders for services rendered pursuant to this
Agreement. All payments due to the Collateral Agent under this
Agreement including reimbursements must be paid when billed. The
Collateral Agent may refuse to act on behalf of or make a distribution to any
Lender who is not current in payments to the Collateral Agent. Payments
required pursuant to this Agreement shall be pari passu to the
Lenders’ interests in the Notes. The Collateral Agent is hereby authorized
to deduct any sums due the Collateral Agent from a Lender from such Lender’s
interest in sums distributable to such Lender from Collateral in the Collateral
Agent’s possession.
(h) Collateral
Agent may generally engage in any kind of business with any party hereto or any
subsidiary, representative, agent or affiliate thereof as if it had not entered
into this Agreement. Collateral Agent and its affiliates and their officers,
directors, employees, and agents (including legal counsel) may now or hereafter
be engaged in one or more other transactions with any party hereto or act as
trustee, agent or representative of any party hereto (collectively, the "Other Activities") not the subject
of the Borrower Documents. Without limiting the forgoing, Collateral Agent and
its affiliates and their officers, directors, employees, and agents (including
legal counsel) shall not be responsible to account to any party hereto for such
other activities.
(i) Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
(j) Successors and
Assigns. Whenever in this Agreement reference is made to any
party, such reference shall be deemed to include the successors, assigns, heirs
and legal representatives of such party. No party hereto may transfer
any rights under this Agreement, unless the transferee agrees to be bound by,
and comply with all of the terms and provisions of this Agreement, as if an
original signatory hereto on the date hereof.
(k) Captions: Certain
Definitions. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the purposes of
convenience; such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement. As used in this Agreement the term
“person” shall
mean and include an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization and a
government or any department or agency thereof.
(l) Severability. In
the event that any term or provision of this Agreement shall be finally
determined to be superseded, invalid, illegal or otherwise unenforceable
pursuant to applicable law by an authority having jurisdiction and venue, that
determination shall not impair or otherwise affect the validity, legality or
enforceability (i) by or before that authority of the remaining terms and
provisions of this Agreement, which shall be enforced as if the unenforceable
term or provision were deleted, or (ii) by or before any other authority of any
of the terms and provisions of this Agreement.
(m) Entire
Agreement. This Agreement contains the entire agreement of the
parties and supersedes all other agreements and understandings, oral or written,
with respect to the matters contained herein.
(n) Schedules. The
Collateral Agent is authorized to annex hereto any schedules referred to
herein.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
Parent
acknowledges the execution of the foregoing Collateral Agent Agreement and
agrees to cooperate with the Lenders and Collateral Agent and further agrees not
to take any action or suffer inaction inconsistent with the Lenders’ and
Collateral Agent’s lawful rights under the Transaction Documents.
IN WITNESS WHEREOF, the
parties hereto have caused this Collateral Agent Agreement to be duly executed
as of the date first written above.
“PARENT”
CHINA
YONGXIN PHARMACEUTICALS, INC.
a
Delaware corporation
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By:
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Its:
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COLLATERAL
AGENT:
COLLATERAL
AGENTS, LLC
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By:
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Name:
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Title:
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OMNIBUS
GUARANTOR SIGNATURE PAGE TO
Guarantor
acknowledges the execution of the foregoing Collateral Agent Agreement and
agrees to cooperate with the Lenders and Collateral Agent and further agrees not
to take any action or suffer inaction inconsistent with the Lenders’ and
Collateral Agent’s lawful rights under the Transaction Documents.
The
undersigned, hereby executes and delivers the Collateral Agent Agreement to
which this signature page is attached and agrees to be bound by the Collateral
Agent Agreement on the date set forth on the first page of the Collateral Agent
Agreement. This counterpart signature page, together with all counterparts of
the Collateral Agent Agreement and signature pages of the other parties named
therein, shall constitute one and the same instrument in accordance with the
terms of the Collateral Agent Agreement.
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[Print
Name of Guarantor]
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[Signature]
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Name:
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Title:
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Mailing
Address:
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Telephone
No.:__________________________
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Facsimile
No:____________________________
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Email
Address:___________________________
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(City,
State and Zip)
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OMNIBUS
PLEDGOR SIGNATURE PAGE TO
COLLATERAL
AGENT AGREEMENT
Pledgor
acknowledges the execution of the foregoing Collateral Agent Agreement and
agrees to cooperate with the Lenders and Collateral Agent and further agrees not
to take any action or suffer inaction inconsistent with the Lenders’ and
Collateral Agent’s lawful rights under the Transaction
Documents.
The
undersigned, hereby executes and delivers the Collateral Agent Agreement to
which this signature page is attached and agrees to be bound by the Collateral
Agent Agreement on the date set forth on the first page of the Collateral Agent
Agreement. This counterpart signature page, together with all counterparts of
the Collateral Agent Agreement and signature pages of the other parties named
therein, shall constitute one and the same instrument in accordance with
the terms of the Collateral Agent Agreement.
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[Print
Name of Pledgor]
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[Signature]
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Name:
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Title:
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Mailing
Address:
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Telephone
No.:__________________________
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Facsimile
No:____________________________
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Email
Address:___________________________
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(City,
State and Zip)
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OMNIBUS
LENDER SIGNATURE PAGE TO
COLLATERAL
AGENT AGREEMENT
The
undersigned, in its capacity as a Lender, hereby executes and delivers the
Collateral Agent Agreement to which this signature page is attached and agrees
to be bound by the Collateral Agent Agreement on the date set forth on the first
page of the Collateral Agent Agreement. This counterpart signature page,
together with all counterparts of the Collateral Agent Agreement and signature
pages of the other parties named therein, shall constitute one and the same
instrument in accordance with the terms of the Collateral Agent
Agreement.
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[Print
Name of Lender]
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[Name
of Co-Lender, if applicable]
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[Signature]
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[Signature]
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Name:
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Name:
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Title:
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Title:
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Mailing
Address:
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Telephone
No.:_____________________________
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Facsimile
No:_______________________________
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Email
Address:______________________________
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(City,
State and Zip)
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SCHEDULE
I
LENDERS
EXCALIBUR
SPECIAL OPPORTUNITIES LP
EXCALIBUR
SPECIAL OPPORTUNITIES LP
FOURTH
STREET HOLDINGS, LP
XXXXXX X.
XXXX
XXXXX X.
XXXXXXX
SCHEDULE
II
GUARANTORS
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1)
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Changchun
Yongxin Dirui Medical Co., Ltd.
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2)
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Jilin
Province Yongxin Chain Drugstore
Ltd.
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3)
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Jilin
Dingjian Natural & Health Products Co., Ltd.
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4)
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Tianjin
Jingyongxin Chain Drugstore Ltd.
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5)
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Baishan
Caoantang Chain Drugstore Ltd.
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SCHEDULE
III
There was
only one executed Collateral Agent Agreement dated January 22,
2010. The Collateral Agent Agreement was executed by and between the
Company and Collateral Agents, LLC (the “Collateral Agent”).
The text
of the Collateral Agent Agreement is incorporated by reference from Exhibit 10.9
to the Company’s Current Report on Form 8-K filed with the Securities and
Exchange Commission on January 26, 2010.
