Exhibit 4.6
EXECUTION COPY
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SECURITY AGREEMENT
By
QUEST CHEROKEE, LLC and QUEST RESOURCE CORPORATION,
as Borrowers
and
THE GUARANTORS PARTY HERETO
and
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
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Dated as of June 9, 2006
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TABLE OF CONTENTS
Page
PREAMBLE.....................................................................1
RECITALS.....................................................................1
AGREEMENT....................................................................2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS....................................................2
SECTION 1.2. INTERPRETATION................................................11
SECTION 1.3. RESOLUTION OF DRAFTING AMBIGUITIES............................12
SECTION 1.4. PERFECTION CERTIFICATE........................................12
ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS
SECTION 2.1. GRANT OF SECURITY INTEREST....................................12
SECTION 2.2. FILINGS.......................................................14
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 3.1. DELIVERY OF CERTIFICATED SECURITIES COLLATERAL................14
SECTION 3.2. PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL............15
SECTION 3.3. FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF
PERFECTED SECURITY INTEREST.................................15
SECTION 3.4. OTHER ACTIONS.................................................16
SECTION 3.5. JOINDER OF ADDITIONAL GUARANTORS..............................21
SECTION 3.6. SUPPLEMENTS; FURTHER ASSURANCES...............................21
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1. TITLE.........................................................22
SECTION 4.2. VALIDITY OF SECURITY INTEREST.................................22
SECTION 4.3. DEFENSE OF CLAIMS; TRANSFERABILITY OF PLEDGED COLLATERAL......23
SECTION 4.4. OTHER FINANCING STATEMENTS....................................23
SECTION 4.5. CHIEF EXECUTIVE OFFICE; CHANGE OF NAME; JURISDICTION OF
ORGANIZATION................................................23
SECTION 4.6. LOCATION OF INVENTORY AND EQUIPMENT...........................24
SECTION 4.7. DUE AUTHORIZATION AND ISSUANCE................................24
SECTION 4.8. CONSENTS, ETC.................................................24
SECTION 4.9. PLEDGED COLLATERAL............................................24
SECTION 4.10. INSURANCE.....................................................25
SECTION 4.11. PAYMENT OF TAXES; COMPLIANCE WITH LAWS; CONTESTING LIENS;
CLAIMS......................................................25
SECTION 4.12. ACCESS TO PLEDGED COLLATERAL, BOOKS AND RECORDS; OTHER
INFORMATION.................................................25
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1. PLEDGE OF ADDITIONAL SECURITIES COLLATERAL....................26
SECTION 5.2. VOTING RIGHTS; DISTRIBUTIONS; ETC.............................26
SECTION 5.3. DEFAULTS, ETC.................................................27
SECTION 5.4. CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF
EQUITY INTERESTS............................................28
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1. GRANT OF LICENSE..............................................28
SECTION 6.2. PROTECTION OF ADMINISTRATIVE AGENT'S SECURITY.................29
SECTION 6.3. AFTER-ACQUIRED PROPERTY.......................................29
SECTION 6.4. LITIGATION....................................................30
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ARTICLE VII
CERTAIN PROVISIONS CONCERNING ACCOUNTS
SECTION 7.1. MAINTENANCE OF RECORDS........................................31
SECTION 7.2. [RESERVED]....................................................31
SECTION 7.3. MODIFICATION OF TERMS, ETC....................................31
SECTION 7.4. COLLECTION....................................................31
ARTICLE VIII
TRANSFERS
SECTION 8.1. TRANSFERS OF PLEDGED COLLATERAL...............................32
ARTICLE IX
REMEDIES
SECTION 9.1. REMEDIES......................................................32
SECTION 9.2. NOTICE OF SALE................................................34
SECTION 9.3. WAIVER OF NOTICE AND CLAIMS...................................34
SECTION 9.4. CERTAIN SALES OF PLEDGED COLLATERAL...........................35
SECTION 9.5. NO WAIVER; CUMULATIVE REMEDIES................................36
SECTION 9.6. CERTAIN ADDITIONAL ACTIONS REGARDING INTELLECTUAL
PROPERTY....................................................37
ARTICLE X
PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS;
APPLICATION OF PROCEEDS
SECTION 10.1. PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS.......37
SECTION 10.2. APPLICATION OF PROCEEDS.......................................37
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. CONCERNING ADMINISTRATIVE AGENT...............................38
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SECTION 11.2. ADMINISTRATIVE AGENT MAY PERFORM; ADMINISTRATIVE AGENT
APPOINTED ATTORNEY-IN-FACT..................................39
SECTION 11.3. CONTINUING SECURITY INTEREST; ASSIGNMENT......................39
SECTION 11.4. TERMINATION; RELEASE..........................................40
SECTION 11.5. MODIFICATION IN WRITING.......................................40
SECTION 11.6. NOTICES.......................................................40
SECTION 11.7. GOVERNING LAW, CONSENT TO JURISDICTION AND SERVICE OF
PROCESS; WAIVER OF JURY TRIAL...............................40
SECTION 11.8. SEVERABILITY OF PROVISIONS....................................40
SECTION 11.9. EXECUTION IN COUNTERPARTS.....................................41
SECTION 11.10. BUSINESS DAYS...............................................41
SECTION 11.11. WAIVER OF STAY..............................................41
SECTION 11.12. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITION................41
SECTION 11.13. NO CLAIMS AGAINST ADMINISTRATIVE AGENT......................41
SECTION 11.14. NO RELEASE..................................................42
SECTION 11.15. INDEBTEDNESS ABSOLUTE.......................................42
SIGNATURES.................................................................S-1
EXHIBIT 1 Form of Issuer's Acknowledgment
EXHIBIT 2 Form of Securities Pledge Amendment
EXHIBIT 3 Form of Joinder Agreement
EXHIBIT 4 Form of Control Agreement Concerning Securities Accounts
EXHIBIT 5 Form of Control Agreement Concerning Deposit Accounts
EXHIBIT 6 Form of Copyright Security Agreement
EXHIBIT 7 Form of Patent Security Agreement
EXHIBIT 8 Form of Trademark Security Agreement
EXHIBIT 9 Form of Bailee's Letter
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SECURITY AGREEMENT
SECURITY AGREEMENT dated as of June 9, 2006 (as amended, amended and
restated, supplemented or otherwise modified from time to time in accordance
with the provisions hereof, the "Agreement") made by QUEST CHEROKEE, LLC, a
Delaware limited liability company and QUEST RESOURCE CORPORATION, a Nevada
corporation (the "Borrowers") and THE GUARANTORS LISTED ON THE SIGNATURE PAGES
HERETO (the "Original Guarantors") OR FROM TIME TO TIME PARTY HERETO BY
EXECUTION OF A JOINDER AGREEMENT (the "Additional Guarantors," and together with
the Original Guarantors, the "Guarantors"), as pledgors, assignors and debtors
(the Borrowers, together with the Guarantors, in such capacities and together
with any successors in such capacities, the "Pledgors," and each, a "Pledgor"),
in favor of GUGGENHEIM CORPORATE FUNDING, LLC, in its capacity as administrative
agent pursuant to the Third Lien Term Loan Agreement (as hereinafter defined),
as pledgee, assignee and secured party (in such capacities and together with any
successors in such capacities, the "Administrative Agent") for the benefit of
the Secured Parties, as defined below.
R E C I T A L S :
A. The Borrowers, the Administrative Agent and the lending
institutions listed therein (the "Lenders") have, in connection with the
execution and delivery of this Agreement, entered into that certain Third Lien
Term Loan Agreement, dated as of June 9, 2006 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Third Lien Term Loan
Agreement").
B. Each Original Guarantor has, pursuant to the Third Lien Term Loan
Agreement, unconditionally guaranteed the Indebtedness.
C. The Borrowers and each Original Guarantor will receive substantial
benefits from the execution, delivery and performance of the obligations under
the Third Lien Term Loan Agreement and the other Loan Documents and each is,
therefore, willing to enter into this Agreement.
D. Each Pledgor is or, as to Pledged Collateral (as hereinafter
defined) acquired by such Pledgor after the date hereof will be, the legal
and/or beneficial owner of the Pledged Collateral pledged by it hereunder.
E. This Agreement is given by each Pledgor in favor of the
Administrative Agent for the benefit of the Secured Parties (as hereinafter
defined) to secure the payment and performance of all of the Indebtedness (as
hereinafter defined).
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F. It is a condition to the obligations of the Lenders to make the
Loans under the Third Lien Term Loan Agreement that each Pledgor execute and
deliver the applicable Loan Documents, including this Agreement.
G. The Pledgors and Administrative Agent have entered into the Amended
and Restated Senior Credit Agreement, dated as of February 7, 2006, pursuant to
which the above parties have executed the "Amended and Restated Senior Security
Agreement," dated as of February 7, 2006, which amended and restated the
original Senior Secured Credit Agreement (the "Original Senior Secured Credit
Agreement") dated as of November 14, 2005.
H. The Pledgors and Administrative Agent have further entered into the
Amended and Restated Second Lien Term Loan Agreement, dated as of June 9, 2006,
pursuant to which the above parties have executed the "Amended and Restated
Second Lien Security Agreement," dated as of June 9, 2006, which amended and
restated the original Second Lien Term Loan Agreement dated as of November 14,
2005.
A G R E E M E N T :
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NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor and the Administrative Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions.
(a) Unless otherwise defined herein or in the Third Lien Term Loan
Agreement, capitalized terms used herein that are defined in the UCC shall have
the meanings assigned to them in the UCC.
(b) Terms used but not otherwise defined herein that are defined in
the Third Lien Term Loan Agreement shall have the meanings given to them in the
Third Lien Term Loan Agreement. Sections 1.04 and 1.05 of the Third Lien Term
Loan Agreement shall apply herein mutatis mutandis.
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(c) The following terms shall have the following meanings:
"Additional Guarantors" shall have the meaning assigned to such term
in the Preamble hereof.
"Additional Pledged Interests" shall mean, collectively, with respect
to each Pledgor, (i) all options, warrants, rights, agreements, additional
membership, partnership or other equity interests of whatever class of any
issuer of Initial Pledged Interests or any interest in any such issuer, together
with all rights, privileges, authority and powers of such Pledgor relating to
such interests in each such issuer or under any Organizational Document of any
such issuer, and the certificates, instruments and agreements representing such
membership, partnership or other interests and any and all interest of such
Pledgor in the entries on the books of any financial intermediary pertaining to
such membership, partnership or other equity interests from time to time
acquired by such Pledgor in any manner and (ii) all membership, partnership or
other equity interests, as applicable, of each limited liability company,
partnership or other entity (other than a corporation) hereafter acquired or
formed by such Pledgor and all options, warrants, rights, agreements, additional
membership, partnership or other equity interests of whatever class of such
limited liability company, partnership or other entity, together with all
rights, privileges, authority and powers of such Pledgor relating to such
interests or under any Organizational Document of any such issuer, and the
certificates, instruments and agreements representing such membership,
partnership or other equity interests and any and all interest of such Pledgor
in the entries on the books of any financial intermediary pertaining to such
membership, partnership or other interests, from time to time acquired by such
Pledgor in any manner.
"Additional Pledged Shares" shall mean, collectively, with respect to
each Pledgor, (i) all options, warrants, rights, agreements, additional shares
of capital stock of whatever class of any issuer of the Initial Pledged Shares
or any other equity interest in any such issuer, together with all rights,
privileges, authority and powers of such Pledgor relating to such interests
issued by any such issuer under any Organizational Document of any such issuer,
and the certificates, instruments and agreements representing such interests and
any and all interest of such Pledgor in the entries on the books of any
financial intermediary pertaining to such interests, from time to time acquired
by such Pledgor in any manner and (ii) all the issued and outstanding shares of
capital stock of each corporation hereafter acquired or formed by such Pledgor
and all options, warrants, rights, agreements or additional shares of capital
stock of whatever class of such corporation, together with all rights,
privileges, authority and powers of such Pledgor relating to such shares or
under any Organizational Document of such corporation, and the certificates,
instruments and agreements representing such shares and any and all interest of
such Pledgor in the entries on the books of any financial intermediary
pertaining to such shares, from time to time acquired by such Pledgor in any
manner.
"Administrative Agent" shall have the meaning assigned to such term in
the Preamble above.
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"Agreement" shall have the meaning assigned to such term in the
Preamble hereof.
"Amended and Restated Senior Security Agreement" shall have the
meaning set forth in Recital G.
"As-extracted collateral" shall mean (a) oil, gas, or other minerals
that are subject to a security interest that: (i) is created by a debtor having
an interest in the minerals before extraction; and (ii) attaches to the minerals
as extracted; or (b) accounts arising out of the sale at the wellhead or
minehead of oil, gas, or other minerals in which the debtor had an interest
before extraction.
"Bailee Letter" shall be an agreement in form substantially similar to
Exhibit 9 annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code, as amended
and any successor statute thereto.
"Borrowers" shall have the meaning assigned to such term in the
Preamble hereof.
"Claims" shall mean any and all property and other taxes, assessments
and special assessments, levies, fees and all governmental charges imposed upon
or assessed against, and landlords', carriers', mechanics', workmen's,
repairmen's, laborers', materialmen's, suppliers' and warehousemen's Liens and
other claims arising by operation of law against, all or any portion of the
Pledged Collateral.
"Collateral Account" shall mean a collateral account or sub-account
established and maintained by the Administrative Agent to collect proceeds of
collateral and all property from time to time on deposit in the Collateral
Account.
"Commodity Account Control Agreement" shall mean a commodity account
control agreement in a form that is reasonably satisfactory to the
Administrative Agent and Pledgor.
"Contested Liens" shall mean, collectively, any Liens incurred in
respect of any Claims to the extent that the amounts owing in respect thereof
are not yet delinquent or are being contested and otherwise comply with the
provisions of Section 4.11 hereof; provided, however, that such Liens shall in
all respects be subject and subordinate in priority to the Lien and security
interest created by this Agreement, except if and to the extent that the law or
regulation creating, permitting or authorizing such Lien provides that such Lien
must be superior to the Lien and security interest created and evidenced hereby.
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"Contracts" shall mean, collectively, with respect to each Pledgor,
all sale, service, performance, equipment or property lease contracts,
agreements and grants and all other contracts, agreements or grants (in each
case, whether written or oral, or third party or intercompany), between such
Pledgor and third parties, and all assignments, amendments, restatements,
supplements, extensions, renewals, replacements or modifications thereof.
"Control" shall mean (i) in the case of each Deposit Account,
"control," as such term is defined in Section 9-104 of the UCC, and (ii) in the
case of any Security Entitlement, "control," as such term is defined in Section
8-106 of the UCC and (iii) in the case of any Commodity Contract, "control," as
such term is defined in Section 9-106 of the UCC.
"Control Agreements" shall mean, collectively, the Deposit Account
Control Agreement, the Securities Account Control Agreement and the Commodity
Account Control Agreement.
"Copyrights" shall mean, collectively, with respect to each Pledgor,
all copyrights (whether statutory or common law, whether established or
registered in the United States or any other country or any political
subdivision thereof, whether registered or unregistered and whether published or
unpublished) and all copyright registrations and applications made by such
Pledgor, in each case, whether now owned or hereafter created or acquired by or
assigned to such Pledgor, together with any and all (i) rights and privileges
arising under applicable law with respect to such Pledgor's use of such
copyrights, (ii) reissues, renewals, continuations and extensions thereof, (iii)
income, fees, royalties, damages, claims and payments now or hereafter due
and/or payable with respect thereto, including damages and payments for past,
present or future infringements thereof, (iv) rights corresponding thereto
throughout the world and (v) rights to xxx for past, present or future
infringements thereof.
"Copyright Security Agreement" shall mean an agreement substantially
in the form annexed hereto as Exhibit 6.
"Deposit Account Control Agreement" shall mean an agreement
substantially in the form annexed hereto as Exhibit 5 or such other form that is
reasonably satisfactory to the Administrative Agent and Pledgor.
"Deposit Accounts" shall mean, collectively, with respect to each
Pledgor, (i) all "deposit accounts" as such term is defined in the UCC and in
any event shall include the Collateral Account and all accounts and sub-accounts
relating to any of the foregoing accounts and (ii) all cash, funds, checks,
notes and instruments from time to time on deposit in any of the accounts or
sub-accounts described in clause (i) of this definition.
"Distributions" shall mean, collectively, with respect to each
Pledgor, all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital or principal, income, interest, profits and
other property, interests (debt or equity) or proceeds,
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including as a result of a split, revision, reclassification or other like
change of the Pledged Securities, from time to time received, receivable or
otherwise distributed to such Pledgor in respect of or in exchange for any or
all of the Pledged Securities or Intercompany Notes.
"Excluded Property" shall mean Special Property other than the
following:
(a) the right to receive any payment of money (including Accounts,
General Intangibles and Payment Intangibles) or any other rights referred
to in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC to the extent that
such sections of the UCC are effective to limit the prohibitions which make
such property "Special Property"; and
(b) any Proceeds, substitutions or replacements of any Special
Property (unless such Proceeds, substitutions or replacements would
constitute Special Property).
"General Intangibles" shall mean, collectively, with respect to each
Pledgor, all "general intangibles," as such term is defined in the UCC, of such
Pledgor and, in any event, shall include (i) all of such Pledgor's rights, title
and interest in, to and under all insurance policies and Contracts, (ii) all
know-how and warranties relating to any of the Pledged Collateral or the
Mortgaged Property, (iii) any and all other rights, claims, choses-in-action and
causes of action of such Pledgor against any other person and the benefits of
any and all collateral or other security given by any other person in connection
therewith, (iv) all guarantees, endorsements and indemnifications on, or of, any
of the Pledged Collateral or any of the Mortgaged Property, (v) all lists,
books, records, correspondence, ledgers, printouts, files (whether in printed
form or stored electronically), tapes and other papers or materials containing
information relating to any of the Pledged Collateral or any of the Mortgaged
Property, including all customer or tenant lists, identification of suppliers,
data, plans, blueprints, specifications, designs, drawings, appraisals, recorded
knowledge, surveys, studies, engineering reports, test reports, manuals,
standards, processing standards, performance standards, catalogs, research data,
computer and automatic machinery software and programs and the like, field
repair data, accounting information pertaining to such Pledgor's operations or
any of the Pledged Collateral or any of the Mortgaged Property and all media in
which or on which any of the information or knowledge or data or records may be
recorded or stored and all computer programs used for the compilation or
printout of such information, knowledge, records or data, (vi) all licenses,
consents, permits, variances, certifications, authorizations and approvals,
however characterized, of any Governmental Authority (or any person acting on
behalf of a Governmental Authority) now or hereafter acquired or held by such
Pledgor pertaining to operations now or hereafter conducted by such Pledgor or
any of the Pledged Collateral or any of the Mortgaged Property including
building permits, certificates of occupancy, environmental certificates,
industrial permits or licenses and certificates of operation and (vii) all
rights to reserves, deferred payments, deposits, refunds, indemnification of
claims to the extent the foregoing relate to any Pledged Collateral or Mortgaged
Property and claims for tax or other refunds against any Governmental Authority
relating to any Pledged Collateral or any of the Mortgaged Property.
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"Goodwill" shall mean, collectively, with respect to each Pledgor, the
goodwill connected with such Pledgor's business including (i) all goodwill
connected with the use of and symbolized by any Trademark or Trademark License
in which such Pledgor has any interest, (ii) all know-how, trade secrets,
customer and supplier lists, proprietary information, inventions, methods,
procedures, formulae, descriptions, compositions, technical data, drawings,
specifications, name plates, catalogs, confidential information and the right to
limit the use or disclosure thereof by any person, pricing and cost information,
business and marketing plans and proposals, consulting agreements, engineering
contracts and such other assets which relate to such goodwill and (iii) all
product lines of such Pledgor's business.
"Guarantors" shall have the meaning assigned to such term in the
Preamble hereof.
"Initial Pledged Interests" shall mean, with respect to each Pledgor,
all membership, partnership or other equity interests (other than in a
corporation), as applicable, of each issuer described in Schedule 11 annexed to
the Perfection Certificate, together with all rights, privileges, authority and
powers of such Pledgor in and to each such issuer or under any Organizational
Document of each such issuer, and the certificates, instruments and agreements
representing such membership, partnership or other interests and any and all
interest of such Pledgor in the entries on the books of any financial
intermediary pertaining to such membership, partnership or other interests.
"Initial Pledged Shares" shall mean, collectively, with respect to
each Pledgor, the issued and outstanding shares of capital stock of each issuer
described in Schedule 11 annexed to the Perfection Certificate together with all
rights, privileges, authority and powers of such Pledgor relating to such
interests in each such issuer or under any Organizational Document of each such
issuer, and the certificates, instruments and agreements representing such
shares of capital stock and any and all interest of such Pledgor in the entries
on the books of any financial intermediary pertaining to the Initial Pledged
Shares.
"Instruments" shall mean, collectively, with respect to each Pledgor,
all "instruments," as such term is defined in Article 9, rather than Article 3,
of the UCC, and shall include all promissory notes, drafts, bills of exchange or
acceptances.
"Intellectual Property Collateral" shall mean, collectively, the
Patents, Trademarks, Copyrights, Licenses and Goodwill.
"Intercompany Notes" shall mean, with respect to each Pledgor, all
intercompany notes described in Schedule 12 annexed to the Perfection
Certificate and intercompany notes hereafter acquired by such Pledgor and all
certificates, instruments or agreements evidencing such intercompany notes, and
all assignments, amendments, restatements, supplements, extensions, renewals,
replacements or modifications thereof to the extent permitted pursuant to the
terms hereof.
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"Investment Property" shall mean a security, whether certificated or
uncertificated, Security Entitlement, Securities Account, Commodity Contract or
Commodity Account, excluding, however, the Securities Collateral.
"Joinder Agreement" shall mean an agreement substantially in the form
annexed hereto as Exhibit 3.
"Lenders" shall have the meaning assigned to such term in Recital A
hereof.
"Licenses" shall mean, collectively, with respect to each Pledgor, all
license and distribution agreements with, and covenants not to xxx, any other
party with respect to any Patent, Trademark or Copyright or any other patent,
trademark or copyright, whether such Pledgor is a licensor or licensee,
distributor or distributee under any such license or distribution agreement,
together with any and all (i) renewals, extensions, supplements and
continuations thereof, (ii) income, fees, royalties, damages, claims and
payments now and hereafter due and/or payable thereunder and with respect
thereto including damages and payments for past, present or future infringements
or violations thereof, (iii) rights to xxx for past, present and future
infringements or violations thereof and (iv) other rights to use, exploit or
practice any or all of the Patents, Trademarks or Copyrights or any other
patent, trademark or copyright.
"Mortgaged Property" shall have the meaning assigned to such term in
the Mortgages.
"Organizational Documents" shall mean, with respect to any person, (i)
in the case of any corporation, the certificate of incorporation and by-laws (or
similar documents) of such person, (ii) in the case of any limited liability
company, the certificate of formation and operating agreement (or similar
documents) of such person, (iii) in the case of any limited partnership, the
certificate of formation and limited partnership agreement (or similar
documents) of such person, (iv) in the case of any general partnership, the
partnership agreement (or similar document) of such person and (v) in any other
case, the functional equivalent of the foregoing.
"Original Guarantors" shall have the meaning assigned to such term in
the Preamble hereof.
"Original Senior Secured Credit Agreement" shall have the meaning
assigned to such term in Recital G hereof.
"Patents" shall mean, collectively, with respect to each Pledgor, all
patents issued or assigned to and all patent applications and registrations made
by such Pledgor (whether established or registered or recorded in the United
States or any other country or any political subdivision thereof), together with
any and all (i) rights and privileges arising under applicable law with respect
to such Pledgor's use of any patents, (ii) inventions and improvements
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described and claimed therein, (iii) reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof, (iv) income, fees,
royalties, damages, claims and payments now or hereafter due and/or payable
thereunder and with respect thereto including damages and payments for past,
present or future infringements thereof, (v) rights corresponding thereto
throughout the world and (vi) rights to xxx for past, present or future
infringements thereof.
"Patent Security Agreement" shall mean an agreement substantially in
the form annexed hereto as Exhibit 7.
"Perfection Certificate" shall mean that certain perfection
certificate dated November 14, 2005, executed and delivered by each Pledgor in
favor of the Administrative Agent for the benefit of the Secured Parties, and
each other Perfection Certificate (which shall be in form and substance
reasonably acceptable to the Administrative Agent) executed and delivered by the
applicable Guarantor in favor of the Administrative Agent for the benefit of the
Secured Parties contemporaneously with the execution and delivery of each
Joinder Agreement executed in accordance with Section 3.5 hereof, in each case,
as the same may be amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with the Third Lien Term Loan Agreement
or upon the reasonable request of the Administrative Agent.
"Pledge Amendment" shall have the meaning assigned to such term in
Section 5.1 hereof.
"Pledged Collateral" shall have the meaning assigned to such term in
Section 2.1 hereof.
"Pledged Interests" shall mean, collectively, the Initial Pledged
Interests and the Additional Pledged Interests; provided, however, that to the
extent applicable, Pledged Interests shall not include any interest which is not
required to be pledged pursuant to the Third Lien Term Loan Agreement.
"Pledged Securities" shall mean, collectively, the Pledged Interests,
the Pledged Shares and the Successor Interests.
"Pledged Shares" shall mean, collectively, the Initial Pledged Shares
and the Additional Pledged Shares.
"Pledgor" shall have the meaning assigned to such term in the Preamble
hereof.
"Secured Parties" shall mean, collectively, the Administrative Agent,
each other Agent, the Lenders, their Affiliates and each party to a Swap
Agreement that is included within the definition of Indebtedness.
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"Securities Account Control Agreement" shall mean an agreement
substantially in the form annexed hereto as Exhibit 4 or such other form that is
reasonably satisfactory to the Administrative Agent and Pledgor.
"Securities Collateral" shall mean, collectively, the Pledged
Securities, the Intercompany Notes and the Distributions.
"Special Property" shall mean:
(a) any permit, lease or license held by any Pledgor that validly
prohibits the creation by such Pledgor of a security interest therein;
(b) any permit, lease or license held by any Pledgor to the extent
that any Governmental Requirement applicable thereto prohibits the creation
of a security interest therein;
(c) Equipment owned by any Pledgor on the date hereof or hereafter
acquired that is subject to a Lien securing a Capital Lease or purchase
money obligation permitted to be incurred pursuant to the provisions of the
Third Lien Term Loan Agreement if the contract or other agreement in which
such Lien is granted (or the documentation providing for such Capital Lease
or purchase money obligation) validly prohibits the creation of any other
Lien on such Equipment; and
(d) cash and cash equivalents which secure obligations under any Swap
Agreement as permitted by Section 9.03(d) of the Third Lien Term Loan
Agreement and reimbursement obligations in connection with letters of
credit as permitted by Section 9.03(f);
(e) assets to the extent such assets were encumbered by Liens in
existence on November 14, 2005 and shown on Schedule 7.14 to the Original
Senior Secured Credit Agreement;
(f) assets to the extent such assets are encumbered by Liens securing
Permitted Refinancing Debt provided such assets constituted Special
Property prior to the applicable refinancing; and
(g) assets to the extent such assets are encumbered by Liens permitted
by Section 9.03(i) provided such assets are not Oil and Gas Properties and
further provided that the aggregate fair market value of such assets does
not exceed $4,000,000.
provided, however, that in each case described in clauses (a), (b) and (c) of
this definition, such property shall constitute "Special Property" only to
the extent and for so long as such permit, lease, license, contract or other
agreement or Governmental Requirement applicable thereto validly prohibits
the creation of a Lien on such property in favor of the Administrative Agent
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and, upon the termination of such prohibition (howsoever occurring), such
property shall cease to constitute "Special Property."
"Successor Interests" shall mean, collectively, with respect to each
Pledgor, all shares of each class of the capital stock of the successor
corporation or interests or certificates of the successor limited liability
company, partnership or other entity owned by such Pledgor (unless such
successor is such Pledgor itself) formed by or resulting from any consolidation
or merger in which any person listed in Schedule 1(a) annexed to the Perfection
Certificate is not the surviving entity, provided, however, that to the extent
applicable, Successor Interest shall not include any shares or interests which
are not required to be pledged pursuant to the Third Lien Term Loan Agreement.
"Third Lien Term Loan Agreement" shall have the meaning assigned to
such term in Recital A hereof.
"Trademarks" shall mean, collectively, with respect to each Pledgor,
all trademarks (including service marks), slogans, logos, certification marks,
trade dress, uniform resource locations (URL's), domain names, corporate names
and trade names, whether registered or unregistered, owned by or assigned to
such Pledgor and all registrations and applications for the foregoing (whether
statutory or common law and whether established or registered in the United
States or any other country or any political subdivision thereof), together with
any and all (i) rights and privileges arising under applicable law with respect
to such Pledgor's use of any trademarks, (ii) reissues, continuations,
extensions and renewals thereof, (iii) income, fees, royalties, damages and
payments now and hereafter due and/or payable thereunder and with respect
thereto, including damages, claims and payments for past, present or future
infringements thereof, (iv) rights corresponding thereto throughout the world
and (v) rights to xxx for past, present and future infringements thereof.
"Trademark Security Agreement" shall mean an agreement substantially
in the form annexed hereto as Exhibit 8.
"UCC" shall mean the Uniform Commercial Code as in effect on the date
hereof in the State of New York; provided, however, that if by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of the Administrative Agent's and the Secured Parties' security
interest in any item or portion of the Pledged Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, the term "UCC" shall mean the Uniform Commercial Code as in effect on
the date hereof in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions relating to such provisions.
SECTION 1.2. Interpretation. The rules of interpretation specified in
the Third Lien Term Loan Agreement (including Section 1.03 thereof) shall be
applicable to this Agreement.
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SECTION 1.3. Resolution of Drafting Ambiguities. Each Pledgor
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., the Administrative Agent) shall not be employed in the
interpretation hereof.
SECTION 1.4. Perfection Certificate. The Administrative Agent and each
Secured Party agree that the Perfection Certificate and all descriptions of
Pledged Collateral, schedules, amendments and supplements thereto are and shall
at all times remain a part of this Agreement.
ARTICLE II
GRANT OF SECURITY AND SECURED OBLIGATIONS
SECTION 2.1. Grant of Security Interest. As collateral security for
the payment and performance in full of all the Indebtedness, each Pledgor hereby
pledges and grants to the Administrative Agent for the benefit of the Secured
Parties, a lien on and security interest in and to all of the right, title and
interest of such Pledgor in, to and under the following property, wherever
located, whether now existing or hereafter arising or acquired from time to time
(collectively, the "Pledged Collateral"):
(i) all Accounts;
(ii) all Equipment, Goods, Inventory and Fixtures;
(iii) all Documents, Instruments and Chattel Paper;
(iv) all Letters of Credit and Letter-of-Credit Rights;
(v) all Securities Collateral;
(vi) all Collateral Accounts;
(vii) all Investment Property;
(viii) all Intellectual Property Collateral;
(ix) the Commercial Tort Claims described on Schedule 15 to the
Perfection Certificate;
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(x) all General Intangibles;
(xi) all Deposit Accounts;
(xii) all As-extracted collateral;
(xiii) all Supporting Indebtedness;
(xiv) all books and records relating to the Pledged Collateral;
and
(xv) to the extent not covered by clauses (i) through (xiv) of
this sentence, all other personal property of such Pledgor,
whether tangible or intangible, and all Proceeds and
products of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and
products of, each of the foregoing, and any and all Proceeds
of any insurance, indemnity, warranty or guaranty payable to
such Pledgor from time to time with respect to any of the
foregoing.
Notwithstanding anything to the contrary contained in clauses (i)
through (xv) above, the security interest created by this Agreement shall not
extend to, and the term "Pledged Collateral" shall not include, any Excluded
Property, and (i) the Pledgors shall from time to time (but no more frequently
than quarterly) at the request of the Administrative Agent give written notice
to the Administrative Agent identifying in reasonable detail the Special
Property (and stating in such notice that such Special Property constitutes
"Excluded Property") and shall provide to the Administrative Agent such other
information regarding the Special Property as the Administrative Agent may
reasonably request and (ii) from and after the Effective Date, no Pledgor shall
permit to become effective in any document creating, governing or providing for
any permit, lease or license, a provision that would prohibit the creation of a
Lien on such permit, lease or license in favor of the Administrative Agent
unless such Pledgor believes, in its reasonable judgment, that such prohibition
is usual and customary in transactions of such type.
The security interest granted under this Section 2 is third in
priority to the security interest in the Pledged Collateral granted to
Administrative Agent pursuant to the Amended and Restated Senior Security
Agreement and the Amended and Restated Second Lien Security Agreement. However,
each Pledgor and Administrative Agent agree that, as of the date on which the
first and second priority security interests in the Pledged Collateral (and any
subsequent first or second priority security interest in the Pledged Collateral
granted by Pledgors and to which Administrative Agent has given its prior
written consent, which consent shall be at the sole discretion of Administrative
Agent), terminate and are no longer in effect, then, as of such date, the
security interest granted by Pledgors under this Agreement shall be a first
priority security interest in the Pledged Collateral.
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SECTION 2.2. Filings. (a) Each Pledgor hereby irrevocably authorizes
the Administrative Agent at any time and from time to time to file in any
relevant jurisdiction any initial financing statements (including fixture
filings) and amendments thereto that contain the information required by Article
9 of the Uniform Commercial Code of each applicable jurisdiction for the filing
of any financing statement or amendment relating to the Pledged Collateral,
including (i) whether such Pledgor is an organization, the type of organization
and any organizational identification number issued to such Pledgor, (ii) any
financing or continuation statements or other documents without the signature of
such Pledgor where permitted by law, including the filing of a financing
statement describing the Pledged Collateral as "all assets in which the Pledgor
now owns or hereafter acquires rights" and (iii) in the case of a financing
statement filed as a fixture filing or covering Pledged Collateral constituting
oil, gas, minerals to be extracted, other As-extracted collateral or timber to
be cut, a sufficient description of the real property to which such Pledged
Collateral relates. Each Pledgor agrees to provide all information described in
the immediately preceding sentence to the Administrative Agent promptly upon
request.
(b) Each Pledgor hereby ratifies its authorization for the
Administrative Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto relating to the Pledged Collateral if filed
prior to the date hereof.
(c) Each Pledgor hereby further authorizes the Administrative Agent to
file filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any other
country), including this Agreement, the Copyright Security Agreement, the Patent
Security Agreement and the Trademark Security Agreement, or other documents for
the purpose of perfecting, confirming, continuing, enforcing or protecting the
security interest granted by such Pledgor hereunder, without the signature of
such Pledgor, and naming such Pledgor, as debtor, and the Administrative Agent,
as secured party.
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 3.1. Delivery of Certificated Securities Collateral. Each
Pledgor represents and warrants that all certificates, agreements or instruments
representing or evidencing the Securities Collateral in existence on the date
hereof have been delivered to the Administrative Agent pursuant to the terms of
the Amended and Restated Senior Security Agreement in suitable form for transfer
by delivery or accompanied by duly executed instruments of transfer or
assignment in blank and that the Administrative Agent has a third
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priority security interest therein. Each Pledgor hereby agrees that all
certificates, agreements or instruments representing or evidencing Securities
Collateral acquired by such Pledgor after the date hereof shall promptly upon
receipt thereof by such Pledgor be delivered to and held by or on behalf of the
Administrative Agent pursuant hereto, subject to the terms of the Intercreditor
Agreement. All certificated Securities Collateral shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Administrative Agent. The Administrative Agent shall have
the right, subject to the terms of the Intercreditor Agreement, at any time upon
the occurrence and during the continuance of any Event of Default, to endorse,
assign or otherwise transfer to or to register in the name of the Administrative
Agent or any of its nominees or endorse for negotiation any or all of the
Securities Collateral, without any indication that such Securities Collateral is
subject to the security interest hereunder. In addition, upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent shall
have the right, subject to the terms of the Intercreditor Agreement, at any time
to exchange certificates representing or evidencing Securities Collateral for
certificates of smaller or larger denominations.
SECTION 3.2. Perfection of Uncertificated Securities Collateral. Each
Pledgor represents and warrants that the Administrative Agent has a perfected
third priority security interest in all uncertificated Pledged Securities
pledged by it hereunder that are in existence on the date hereof. Each Pledgor
hereby agrees that if any of the Pledged Securities are at any time not
evidenced by certificates of ownership, then each applicable Pledgor shall, to
the extent permitted by applicable law and the terms of the Intercreditor
Agreement (i) if necessary or desirable to perfect a security interest in such
Pledged Securities, cause such pledge to be recorded on the equityholder
register or the books of the issuer, cause the issuer to execute and deliver to
the Administrative Agent an acknowledgment of the pledge of such Pledged
Securities substantially in the form of Exhibit 1 annexed hereto, execute any
customary pledge forms or other documents necessary or appropriate to complete
the pledge and give the Administrative Agent the right to transfer such Pledged
Securities under the terms hereof and, upon request, provide to the
Administrative Agent an opinion of counsel, in form and substance reasonably
satisfactory to the Administrative Agent, confirming such pledge and perfection
thereof and (ii) use its commercially reasonable efforts to cause such Pledged
Securities to become certificated and delivered to the Administrative Agent in
accordance with the provisions of Section 3.1.
SECTION 3.3. Financing Statements and Other Filings; Maintenance of
Perfected Security Interest. Each Pledgor represents and warrants that all
filings necessary to perfect the security interest granted by it to the
Administrative Agent in respect of the Pledged Collateral have been delivered to
the Administrative Agent in completed and, to the extent necessary or
appropriate, duly executed form for filing in each governmental, municipal or
other office specified in Schedule 7 annexed to the Perfection Certificate (to
the extent required to be listed on the schedules to the Perfection Certificate
as of the date this representation is made or deemed made). Each Pledgor agrees
that at the sole cost and expense of the Pledgors, (i) such
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Pledgor will maintain the security interest created by this Agreement in the
Pledged Collateral as a perfected third priority security interest and shall
defend such security interest against the claims and demands of all persons
except Liens permitted under the Third Lien Term Loan Agreement, (ii) such
Pledgor shall furnish to the Administrative Agent from time to time (but no more
frequently than quarterly) statements and schedules further identifying and
describing the Pledged Collateral and such other reports in connection with the
Pledged Collateral as the Administrative Agent may reasonably request, all in
reasonable detail and (iii) at any time and from time to time, upon the written
request of the Administrative Agent, such Pledgor shall promptly and duly
execute and deliver, and file and have recorded, such further instruments and
documents and take such further action as the Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and the rights and powers herein granted, including the filing
of any financing statements, continuation statements and other documents
(including this Agreement) under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interest
created hereby and the execution and delivery of Control Agreements, all in form
reasonably satisfactory to the Administrative Agent and in such offices
(including the United States Patent and Trademark Office and the United States
Copyright Office) wherever required by law to perfect, continue and maintain a
valid, enforceable, third priority security interest in the Pledged Collateral
as provided herein and to preserve the other rights and interests granted to the
Administrative Agent hereunder, as against third parties, with respect to the
Pledged Collateral.
SECTION 3.4. Other Actions. In order to further insure the attachment,
perfection and priority of, and the ability of the Administrative Agent to
enforce, the Administrative Agent's security interest in the Pledged Collateral,
each Pledgor represents and warrants (as to itself) as follows and agrees, in
each case at such Pledgor's own expense and in accordance with the terms of the
Intercreditor Agreement, to take the following actions with respect to the
following Pledged Collateral:
(a) Instruments and Tangible Chattel Paper. (i) No amounts payable
under or in connection with any of the Pledged Collateral are evidenced by
any Instrument or Tangible Chattel Paper other than such Instruments and
Tangible Chattel Paper listed in Schedule 12 annexed to the Perfection
Certificate (to the extent required to be listed on the schedules to the
Perfection Certificate as of the date this representation is made or deemed
made) and (ii) each Instrument and each item of Tangible Chattel Paper
listed in Schedule 12 annexed to the Perfection Certificate has been
properly endorsed, assigned and delivered to the Administrative Agent,
accompanied by instruments of transfer or assignment duly executed in
blank. If any amount then payable under or in connection with any of the
Pledged Collateral shall be evidenced by any Instrument or Tangible Chattel
Paper, and such amount, together with all amounts payable evidenced by any
Instrument or Tangible Chattel Paper not previously delivered to the
Administrative Agent exceeds $500,000 in the aggregate for all Pledgors,
the Pledgor acquiring such Instrument or Tangible Chattel Paper shall
forthwith endorse, assign and deliver the same
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to the Administrative Agent, accompanied by such instruments of transfer or
assignment duly executed in blank as the Administrative Agent may from time
to time specify.
(b) Deposit Accounts. (i) Each Pledgor has neither opened nor
maintains any Deposit Accounts other than the accounts listed in Schedule
16 annexed to the Perfection Certificate (to the extent required to be
listed on the schedules to the Perfection Certificate as of the date this
representation is made or deemed made) and (ii) the Administrative Agent
has a perfected third priority security interest in each Deposit Account
listed in Schedule 16 annexed to the Perfection Certificate by Control to
the extent a fully executed Deposit Account Control Agreement is in effect
covering such Deposit Account. No Pledgor shall hereafter establish and
maintain any Deposit Account unless (1) the applicable Pledgor shall have
given the Administrative Agent 30 days' prior written notice of its
intention to establish such new Deposit Account with a Bank, (2) such Bank
shall be reasonably acceptable to the Administrative Agent and (3) if
requested by the Administrative Agent, such Bank and such Pledgor shall
have duly executed and delivered to the Administrative Agent a Deposit
Account Control Agreement with respect to such Deposit Account. Each
Pledgor agrees that, with respect to each Deposit Account in existence on
the date hereof and at the time it establishes any additional Deposit
Accounts it shall (to the extent requested by the Administrative Agent)
enter into a duly authorized, executed and delivered Deposit Account
Control Agreement with respect to such Deposit Account. The Administrative
Agent agrees with each Pledgor that the Administrative Agent shall not give
any instructions directing the disposition of funds from time to time
credited to any Deposit Account or withhold any withdrawal rights from such
Pledgor with respect to funds from time to time credited to any Deposit
Account unless an Event of Default has occurred and is continuing. The
provisions of this Section 3.4(b) shall not apply to the Collateral
Account, or any other Deposit Account for which the Administrative Agent is
the Bank. No Pledgor shall grant Control of any Deposit Account to any
person other than the Administrative Agent.
(c) Investment Property. (i) Each Pledgor (1) has no Securities
Accounts or Commodity Accounts other than those listed in Schedule 16
annexed to the Perfection Certificate (to the extent required to be listed
on the schedules to the Perfection Certificate as of the date this
representation is made or deemed made) and the Administrative Agent has a
perfected third priority security interest in such Securities Accounts and
Commodity Accounts by Control, (2) does not hold, own or have any interest
in any certificated securities or uncertificated securities other than
those constituting Pledged Securities and those maintained in Securities
Accounts or Commodity Accounts listed in Schedule 16 annexed to the
Perfection Certificate (to the extent required to be listed on the
schedules to the Perfection Certificate as of the date this representation
is made or deemed made) and (3) as of the date hereof, has entered into a
duly authorized, executed and delivered Securities Account Control
Agreement or a Commodity Account Control Agreement with respect to each
Securities Account or
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Commodity Account listed in Schedule 16 annexed to the Perfection
Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated
securities constituting Investment Property, such Pledgor shall promptly
(a) endorse, assign and deliver the same to the Administrative Agent,
accompanied by such instruments of transfer or assignment duly executed in
blank, all in form and substance reasonably satisfactory to the
Administrative Agent or (b) deliver such securities into a Securities
Account with respect to which a Control Agreement is in effect in favor of
the Administrative Agent. If any securities now or hereafter acquired by
any Pledgor constituting Investment Property are uncertificated and are
issued to such Pledgor or its nominee directly by the issuer thereof, such
Pledgor shall promptly notify the Administrative Agent thereof and pursuant
to an agreement in form and substance reasonably satisfactory to the
Administrative Agent, either (a) cause the issuer to agree to comply with
instructions from the Administrative Agent as to such securities, without
further consent of any Pledgor or such nominee, (b) cause a Security
Entitlement with respect to such uncertificated security to be held in a
Securities Account with respect to which the Administrative Agent has
Control or (c) arrange for the Administrative Agent to become the
registered owner of the securities. Pledgor shall not hereafter establish
and maintain any Securities Account or Commodity Account with any
Securities Intermediary or Commodity Intermediary unless (1) the applicable
Pledgor shall have given the Administrative Agent 30 days' prior written
notice of its intention to establish such new Securities Account or
Commodity Account with such Securities Intermediary or Commodity
Intermediary, (2) such Securities Intermediary or Commodity Intermediary
shall be reasonably acceptable to the Administrative Agent and (3) such
Securities Intermediary or Commodity Intermediary, as the case may be, and
such Pledgor shall have duly executed and delivered a Control Agreement
with respect to such Securities Account or Commodity Account, as the case
may be. Each Pledgor shall accept any cash and Investment Property in trust
for the benefit of the Administrative Agent and within one (1) Business Day
of actual receipt thereof, deposit any cash or Investment Property and any
new securities, instruments, documents or other property by reason of
ownership of the Investment Property (other than payments of a kind
described in Section 7.4 hereof) received by it into a Deposit Account or
Securities Account subject to Administrative Agent's Control. The
Administrative Agent agrees with each Pledgor that the Administrative Agent
shall not give any Entitlement Orders or instructions or directions to any
issuer of uncertificated securities, Securities Intermediary or Commodity
Intermediary, and shall not withhold its consent to the exercise of any
withdrawal or dealing rights by such Pledgor, unless an Event of Default
has occurred and is continuing, or, after giving effect to any such
investment and withdrawal rights would occur. The provisions of this
Section 3.4(c) shall not apply to any Financial Assets credited to a
Securities Account for which the Administrative Agent is the
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Securities Intermediary. No Pledgor shall grant control over any Investment
Property to any person other than the Administrative Agent.
(iii) As between the Administrative Agent and the Pledgors, the
Pledgors shall bear the investment risk with respect to the Investment
Property and Pledged Securities, and the risk of loss of, damage to, or the
destruction of the Investment Property and Pledged Securities, whether in
the possession of, or maintained as a security entitlement or deposit by,
or subject to the control of, the Administrative Agent, a Securities
Intermediary, Commodity Intermediary, any Pledgor or any other person;
provided, however, that nothing contained in this Section 3.4(c) shall
release or relieve any Securities Intermediary or Commodity Intermediary of
its duties and obligations to the Pledgors or any other person under any
Control Agreement or under applicable law. Each Pledgor shall promptly pay
all Claims and fees of whatever kind or nature with respect to the
Investment Property and Pledged Securities pledged by it under this
Agreement. In the event any Pledgor shall fail to make such payment
contemplated in the immediately preceding sentence, the Administrative
Agent may do so for the account of such Pledgor and the Pledgors shall
promptly reimburse and indemnify the Administrative Agent from all costs
and expenses incurred by the Administrative Agent under this Section 3.4(c)
in accordance with Section 12.03 of the Third Lien Term Loan Agreement.
(d) Electronic Chattel Paper and Transferable Records. No amount under
or in connection with any of the Pledged Collateral is evidenced by any
Electronic Chattel Paper or any "transferable record" (as that term is
defined in Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act, or in Section 16 of the Uniform Electronic
Transactions Act as in effect in any relevant jurisdiction) other than such
Electronic Chattel Paper and transferable records listed in Schedule 12
annexed to the Perfection Certificate (to the extent required to be listed
on the schedules to the Perfection Certificate as of the date this
representation is made or deemed made). If any amount payable under or in
connection with any of the Pledged Collateral shall be evidenced by any
Electronic Chattel Paper or any transferable record, the Pledgor acquiring
such Electronic Chattel Paper or transferable record shall promptly notify
the Administrative Agent thereof and shall take such action as the
Administrative Agent may reasonably request to vest in the Administrative
Agent control under UCC Section 9-105 of such Electronic Chattel Paper or
control under Section 201 of the Federal Electronic Signatures in Global
and National Commerce Act or, as the case may be, Section 16 of the Uniform
Electronic Transactions Act, as so in effect in such jurisdiction, of such
transferable record. The requirement in the preceding sentence shall apply
to the extent that such amount, together with all amounts payable evidenced
by Electronic Chattel Paper or any transferable record in which the
Administrative Agent has not been vested control within the meaning of the
statutes described in this sentence exceeds $500,000 in the aggregate for
all Pledgors. The Administrative Agent agrees with such Pledgor that the
Administrative Agent will arrange, pursuant to procedures satisfactory to
the
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Administrative Agent and so long as such procedures will not result in the
Administrative Agent's loss of control, for the Pledgor to make alterations
to the Electronic Chattel Paper or transferable record permitted under UCC
Section 9-105 or, as the case may be, Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or Section 16 of the Uniform
Electronic Transactions Act for a party in control to allow without loss of
control, unless an Event of Default has occurred and is continuing or would
occur after taking into account any action by such Pledgor with respect to
such Electronic Chattel Paper or transferable record.
(e) Letter-of-Credit Rights. If any Pledgor is at any time a
beneficiary under a Letter of Credit now or hereafter issued in favor of
such Pledgor, such Pledgor shall promptly notify the Administrative Agent
thereof and such Pledgor shall, at the request of the Administrative Agent,
pursuant to an agreement in form and substance reasonably satisfactory to
the Administrative Agent, either (i) arrange for the issuer and any
confirmer of such Letter of Credit to consent to an assignment to the
Administrative Agent of the proceeds of any drawing under the Letter of
Credit or (ii) arrange for the Administrative Agent to become the
transferee beneficiary of such Letter of Credit, with the Administrative
Agent agreeing, in each case, that the proceeds of any drawing under the
Letter of Credit are to be applied in accordance with the terms of the
Intercreditor Agreement. The actions in the preceding sentence shall be
taken to the extent that the amount under such Letter of Credit, together
with all amounts under Letters of Credit for which the actions described
above in clause (i) and (ii) have not been taken, exceeds $500,000 in the
aggregate for all Pledgors.
(f) Commercial Tort Claims. As of the date hereof each Pledgor hereby
represents and warrants that it holds no Commercial Tort Claims other than
those listed in Schedule 15 annexed to the Perfection Certificate (to the
extent required to be listed on the schedules to the Perfection Certificate
as of the date this representation is made or deemed made). If any Pledgor
shall at any time hold or acquire a Commercial Tort Claim having a value
together with all other Commercial Tort Claims of all Pledgors in which the
Administrative Agent does not have a security interest in excess of
$500,000 in the aggregate, such Pledgor shall immediately notify the
Administrative Agent in writing signed by such Pledgor of the brief details
thereof and grant to the Administrative Agent in such writing a security
interest therein and in the Proceeds thereof, all upon the terms of this
Agreement, with such writing to be in form and substance reasonably
satisfactory to the Administrative Agent.
(g) Landlord's Access Agreements/Bailee Letters. Each Pledgor shall,
following the reasonable request of the Administrative Agent, use its
commercially reasonable efforts to obtain as soon as practicable after the
date of such request, with respect to each location required by the
Administrative Agent, where such Pledgor maintains Pledged Collateral, a
Bailee Letter and/or Landlord
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Access Agreement, as applicable, and use commercially reasonable efforts to
obtain a Bailee Letter, Landlord Access Agreement and/or landlord's lien
waiver, as applicable, from all such bailees and landlords, as applicable,
who from time to time have possession of Pledged Collateral in the ordinary
course of such Pledgor's business. A waiver of bailee's lien shall not be
required if the value of the Pledged Collateral held by such bailee is less
than $100,000, provided that the aggregate value of the Pledged Collateral
held by all bailees who have not delivered a Bailee Letter is less than
$500,000 in the aggregate.
(h) Motor Vehicles. Upon the request of the Administrative Agent, each
Pledgor shall deliver to the Administrative Agent originals of the
certificates of title or ownership for the motor vehicles (and any other
Equipment covered by Certificates of Title or ownership) owned by it with
the Administrative Agent listed as lienholder therein. Such requirement
shall apply to the Pledgors if any such motor vehicle (or any such other
Equipment) is valued at over $50,000.
SECTION 3.5. Joinder of Additional Guarantors. The Pledgors shall
cause each Subsidiary of Quest Resource Corporation which, from time to time,
after the date hereof shall be required to pledge any assets to the
Administrative Agent for the benefit of the Secured Parties pursuant to the
provisions of the Third Lien Term Loan Agreement, (a) to execute and deliver to
the Administrative Agent (i) a Joinder Agreement substantially in the form of
Exhibit 3 annexed hereto within thirty (30) Business Days on which it was
acquired or created and (ii) a Perfection Certificate, in each case, within
thirty (30) Business Days of the date on which it was acquired or created or (b)
in the case of a Subsidiary organized outside of the United States required to
pledge any assets to the Administrative Agent, execute and deliver such
documentation as the Administrative Agent shall reasonably request and, in each
case, upon such execution and delivery, such Subsidiary shall constitute a
"Guarantor" and a "Pledgor" for all purposes hereunder with the same force and
effect as if originally named as a Guarantor and Pledgor herein. The execution
and delivery of such Joinder Agreement shall not require the consent of any
Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Guarantor and Pledgor as a party to this Agreement.
SECTION 3.6. Supplements; Further Assurances. Each Pledgor shall take
such further actions, and execute and deliver to the Administrative Agent such
additional assignments, agreements, supplements, powers and instruments, as the
Administrative Agent may in its reasonable judgment deem necessary or
appropriate, wherever required by law, in order to perfect, preserve and protect
the security interest in the Pledged Collateral as provided herein and the
rights and interests granted to the Administrative Agent hereunder, to carry
into effect the purposes hereof or better to assure and confirm unto the
Administrative Agent the Pledged Collateral or permit the Administrative Agent
to exercise and enforce its rights, powers and remedies hereunder with respect
to any Pledged Collateral. Without limiting the generality of the foregoing,
each Pledgor shall make, execute, endorse, acknowledge, file or refile and/or
deliver to the Administrative Agent from time to time upon reasonable request
such lists, descriptions and designations of the Pledged Collateral, copies of
warehouse receipts, receipts in
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the nature of warehouse receipts, bills of lading, documents of title, vouchers,
invoices, schedules, confirmatory assignments, supplements, additional security
agreements, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments as the
Administrative Agent shall reasonably request. If an Event of Default has
occurred and is continuing, the Administrative Agent may institute and maintain,
subject to the terms of the Intercreditor Agreement, in its own name or in the
name of any Pledgor, such suits and proceedings as the Administrative Agent may
be advised by counsel shall be necessary or expedient to prevent any impairment
of the security interest in or the perfection thereof in the Pledged Collateral.
All of the foregoing shall be at the sole cost and expense of the Pledgors.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants as follows:
SECTION 4.1. Title. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to
this Agreement and Liens permitted under the Third Lien Term Loan Agreement,
such Pledgor owns and, as to Pledged Collateral acquired by it from time to time
after the date hereof, will own the rights in each item of Pledged Collateral
pledged by it hereunder free and clear of any and all Liens or claims of others
other than the Liens granted pursuant to the Amended and Restated Senior
Security Agreement and the Amended and Restated Second Lien Security Agreement
and Liens permitted under the Third Lien Term Loan Agreement. In addition, no
Liens or claims exist on the Securities Collateral, other than as permitted by
Section 9.03 of the Third Lien Term Loan Agreement. Such Pledgor has not filed,
nor authorized any third party to file a financing statement or other public
notice with respect to all or any part of the Pledged Collateral on file or of
record in any public office, except such as have been filed in favor of the
Administrative Agent pursuant to Liens granted under the Amended and Restated
Senior Security Agreement, the Amended and Restated Second Lien Security
Agreement, and this Agreement or as are permitted by the Third Lien Term Loan
Agreement or financing statements or public notices relating to the termination
statements listed on Schedule 9 to the Perfection Certificate. No person other
than the Administrative Agent has control or possession of all or any part of
the Pledged Collateral, except as permitted by the Third Lien Term Loan
Agreement and the Intercreditor Agreement.
SECTION 4.2. Validity of Security Interest. The security interest in
and Lien on the Pledged Collateral granted to the Administrative Agent for the
benefit of the Secured Parties hereunder constitutes (a) a legal and valid
security interest in all the Pledged Collateral
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securing the payment and performance of the Indebtedness, and (b) subject to the
filings and other actions described in Schedule 7 annexed to the Perfection
Certificate (to the extent required to be listed on the schedules to the
Perfection Certificate as of the date this representation is made or deemed
made), a perfected security interest in all the Pledged Collateral except for
the Pledged Securities. The security interest and Lien granted to the
Administrative Agent for the benefit of the Secured Parties pursuant to this
Agreement in and on the Pledged Collateral will at all times constitute a
perfected, continuing security interest therein, subject only to Liens granted
under the Amended and Restated Senior Security Agreement or the Amended and
Restated Second Lien Security Agreement and to Liens permitted under the Third
Lien Term Loan Agreement.
SECTION 4.3. Defense of Claims; Transferability of Pledged Collateral
Each Pledgor shall, at its own cost and expense, defend title to the Pledged
Collateral pledged by it hereunder and the security interest therein and Lien
thereon granted to the Administrative Agent and the priority thereof against all
claims and demands of all persons, at its own cost and expense, at any time
claiming any interest therein adverse to the Administrative Agent or any other
Secured Party other than Liens permitted under the Third Lien Term Loan
Agreement (other than Contested Liens). There is no agreement, and no Pledgor
shall enter into any agreement or take any other action, that would restrict the
transferability of any of the Pledged Collateral or otherwise impair or conflict
with such Pledgors' obligations or the rights of the Administrative Agent
hereunder.
SECTION 4.4. Other Financing Statements. It has not filed, nor
authorized any third party to file (nor will there be any) valid or effective
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Pledged Collateral other than financing statements and other
statements and instruments relating to the Liens granted under the Amended and
Restated Senior Security Agreement or the Amended and Restated Second Lien
Security Agreement and to Liens permitted under the Third Lien Term Loan
Agreement. So long as any of the Indebtedness remains unpaid, no Pledgor shall
execute, authorize or permit to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) relating to any Pledged Collateral, except financing
statements and other statements and instruments filed or to be filed in respect
of and covering the security interests granted by such Pledgor to the holder of
the Liens permitted under the Third Lien Term Loan Agreement.
SECTION 4.5. Chief Executive Office; Change of Name; Jurisdiction of
Organization. (a) It shall comply with the provisions of Section 7.16 of the
Third Lien Term Loan Agreement.
(b) The Administrative Agent may rely on opinions of counsel as to
whether any or all UCC financing statements of the Pledgors need to be amended
as a result of any of the changes to the information provided in Section 5.13(a)
of the Third Lien Term Loan Agreement.
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If any Pledgor fails to provide information to the Administrative Agent about
such changes on a timely basis, the Administrative Agent shall not be liable or
responsible to any party for any failure to maintain a perfected security
interest in such Pledgor's property constituting Pledged Collateral, for which
the Administrative Agent needed to have information relating to such changes.
The Administrative Agent shall have no duty to inquire about such changes if any
Pledgor does not inform the Administrative Agent of such changes, the parties
acknowledging and agreeing that it would not be feasible or practical for the
Administrative Agent to search for information on such changes if such
information is not provided by any Pledgor.
SECTION 4.6. Location of Inventory and Equipment. It shall not move
any Equipment or Inventory to any location other than one within the continental
United States until (i) it shall have given the Administrative Agent not less
than 30 days' prior written notice (in the form of an Officers' Certificate) of
its intention so to do, clearly describing such new location and providing such
other information in connection therewith as the Administrative Agent may
request and (ii) with respect to such new location, such Pledgor shall have
taken all action reasonably satisfactory to the Administrative Agent to maintain
the perfection and priority of the security interest of the Administrative Agent
for the benefit of the Secured Parties in the Pledged Collateral intended to be
granted hereby, including using commercially reasonable efforts to obtain
waivers of landlord's or warehousemen's and/or bailee's liens with respect to
such new location, if applicable, and if reasonably requested by the
Administrative Agent. Such Pledgor agrees to provide the Administrative Agent
with prompt notice following the movement of any Equipment or Inventory to any
location other than one that is listed in the relevant Schedules to the
Perfection Certificate.
SECTION 4.7. Due Authorization and Issuance. All of the Initial
Pledged Shares have been, and to the extent any Pledged Shares are hereafter
issued, such Pledged Shares will be, upon such issuance, duly authorized,
validly issued and fully paid and non-assessable. All of the Initial Pledged
Interests have been fully paid for, and there is no amount or other obligation
owing by any Pledgor to any issuer of the Initial Pledged Interests in exchange
for or in connection with the issuance of the Initial Pledged Interests or any
Pledgor's status as a partner or a member of any issuer of the Initial Pledged
Interests.
SECTION 4.8. Consents, etc. In the event that the Administrative Agent
desires to exercise any remedies, voting or consensual rights or
attorney-in-fact powers set forth in this Agreement and determines it necessary
to obtain any approvals or consents of any Governmental Authority or any other
person therefor, then, upon the reasonable request of the Administrative Agent,
such Pledgor agrees to use its best efforts to assist and aid the Administrative
Agent to obtain as soon as practicable any necessary approvals or consents for
the exercise of any such remedies, rights and powers.
SECTION 4.9. Pledged Collateral. All information set forth herein,
including the schedules annexed hereto, and all information contained in any
documents, schedules and lists heretofore delivered to any Secured Party,
including the Perfection Certificate and the
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schedules thereto, in connection with this Agreement, in each case, relating to
the Pledged Collateral, is accurate and complete in all material respects. The
Pledged Collateral described on the schedules annexed to the Perfection
Certificate constitutes all of the property of such type of Pledged Collateral
owned or held by the Pledgors.
SECTION 4.10. Insurance. In the event that the proceeds of any
insurance claim are paid after the Administrative Agent has exercised its right
to foreclose after an Event of Default, such Net Cash Proceeds shall be paid to
the Administrative Agent to satisfy any deficiency remaining after such
foreclosure.
SECTION 4.11. Payment of Taxes; Compliance with Laws; Contesting
Liens; Claims. Each Pledgor represents and warrants that all Claims imposed upon
or assessed against the Pledged Collateral have been paid and discharged except
to the extent such Claims constitute a Lien not yet due and payable which is a
Contested Lien or a Permitted Collateral Lien. Each Pledgor shall comply with
all laws applicable to the Pledged Collateral the failure to comply with which
would, individually or in the aggregate, have a Material Adverse Effect. Each
Pledgor may at its own expense contest the validity, amount or applicability of
any Claims so long as the contest thereof shall be conducted in accordance with,
and permitted pursuant to the provisions of, the Third Lien Term Loan Agreement.
Notwithstanding the foregoing provisions of this Section 4.11, (i) no contest of
any such obligation may be pursued by such Pledgor if such contest would expose
the Administrative Agent or any other Secured Party to (A) any possible criminal
liability or (B) any additional civil liability for failure to comply with such
obligations unless such Pledgor shall have furnished a bond or other security
therefor satisfactory to the Administrative Agent, or such Secured Party, as the
case may be and (ii) if at any time payment or performance of any obligation
contested by such Pledgor pursuant to this Section 4.11 shall become necessary
to prevent the imposition of remedies against the Pledged Collateral because of
non-payment, such Pledgor shall pay or perform the same in sufficient time to
prevent the imposition of remedies against the Pledged Collateral in respect of
such default or prospective default.
SECTION 4.12. Access to Pledged Collateral, Books and Records; Other
Information. Upon reasonable request to each Pledgor, the Administrative Agent,
its agents, accountants and attorneys shall have full and free access to visit
and inspect, as applicable, during normal business hours and such other
reasonable times as may be requested by the Administrative Agent all of the
Pledged Collateral and Mortgaged Property including all of the books,
correspondence and records of such Pledgor relating thereto. The Administrative
Agent and its representatives may examine the same, take extracts therefrom and
make photocopies thereof, and such Pledgor agrees to render to the
Administrative Agent, at such Pledgor's cost and expense, such clerical and
other assistance as may be reasonably requested by the Administrative Agent with
regard thereto. Such Pledgor shall, at any and all times, within a reasonable
time after written request by the Administrative Agent, furnish or cause to be
furnished to the Administrative Agent, in such manner and in such detail as may
be reasonably
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requested by the Administrative Agent, additional information with respect to
the Pledged Collateral.
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1. Pledge of Additional Securities Collateral. Each Pledgor
shall, upon obtaining any Pledged Securities or Intercompany Notes of any
person, accept the same in trust for the benefit of the Administrative Agent and
forthwith deliver to the Administrative Agent a pledge amendment, duly executed
by such Pledgor, in substantially the form of Exhibit 2 annexed hereto (each, a
"Pledge Amendment"), and the certificates and other documents required under
Section 3.1 and Section 3.2 hereof in respect of the additional Pledged
Securities or Intercompany Notes which are to be pledged pursuant to this
Agreement, and confirming the attachment of the Lien hereby created on and in
respect of such additional Pledged Securities or Intercompany Notes. Each
Pledgor hereby authorizes the Administrative Agent to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Securities or
Intercompany Notes listed on any Pledge Amendment delivered to the
Administrative Agent shall for all purposes hereunder be considered Pledged
Collateral.
SECTION 5.2. Voting Rights; Distributions; etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Securities Collateral or any part
thereof for any purpose not inconsistent with the terms or purposes hereof,
the Third Lien Term Loan Agreement or any other document evidencing the
Indebtedness; provided, however, that no Pledgor shall in any event
exercise such rights in any manner which could reasonably be expected to
have a Material Adverse Effect.
(ii) Each Pledgor shall be entitled to receive and retain, and to
utilize free and clear of the Lien hereof, any and all Distributions, but
only if and to the extent made in accordance with the provisions of the
Third Lien Term Loan Agreement; provided, however, that any and all such
Distributions consisting of rights or interests in the form of securities
shall be forthwith delivered
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to the Administrative Agent to hold as Pledged Collateral in accordance
with the terms of the Intercreditor Agreement, and shall, if received by
any Pledgor, be received in trust for the benefit of the Administrative
Agent, be segregated from the other property or funds of such Pledgor and
be forthwith delivered to the Administrative Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement).
(b) The Administrative Agent shall be deemed without further action or
formality to have granted to each Pledgor all necessary consents relating to
voting rights and shall, if necessary, upon written request of any Pledgor and
at the sole cost and expense of the Pledgors, from time to time execute and
deliver (or cause to be executed and delivered) to such Pledgor all such
instruments as such Pledgor may reasonably request in order to permit such
Pledgor to exercise the voting and other rights which it is entitled to exercise
pursuant to Section 5.2(a)(i) hereof and to receive the Distributions which it
is authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof.
(c) Upon the occurrence and during the continuance of any Event of
Default and at all times in accordance with the terms of the Intercreditor
Agreement:
(i) All rights of each Pledgor to exercise the voting and other
consensual rights it would otherwise be entitled to exercise pursuant to
Section 5.2(a)(i) hereof shall cease, and all such rights shall thereupon
become vested in the Administrative Agent, which shall thereupon have the
sole right to exercise such voting and other consensual rights.
(ii) All rights of each Pledgor to receive Distributions which it
would otherwise be authorized to receive and retain pursuant to Section
5.2(a)(ii) hereof shall cease and all such rights shall thereupon become
vested in the Administrative Agent, which shall thereupon have the sole
right to receive and hold as Pledged Collateral such Distributions.
(d) Each Pledgor shall, at its sole cost and expense, from time to
time execute and deliver to the Administrative Agent appropriate instruments as
the Administrative Agent may request in order to permit the Administrative Agent
to exercise the voting and other rights which it may be entitled to exercise
pursuant to Section 5.2(a)(i) hereof and to receive all Distributions which it
may be entitled to receive under Section 5.2(a)(ii) hereof.
(e) All Distributions which are received by any Pledgor contrary to
the provisions of Section 5.2(a)(ii) hereof shall be received in trust for the
benefit of the Administrative Agent, shall be segregated from other funds of
such Pledgor and shall immediately be paid over to the Administrative Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement).
SECTION 5.3. Defaults, etc. Such Pledgor is not in default in the
payment of any portion of any mandatory capital contribution, if any, required
to be made under any agreement to which such Pledgor is a party relating to the
Pledged Securities pledged by it, and such Pledgor is not in violation of any
other provisions of any such agreement to which such
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Pledgor is a party, or otherwise in default or violation thereunder. No
Securities Collateral pledged by such Pledgor is subject to any defense, offset
or counterclaim, nor have any of the foregoing been asserted or alleged against
such Pledgor by any person with respect thereto, and as of the date hereof,
there are no certificates, instruments, documents or other writings (other than
the Organizational Documents and certificates, if any, delivered to the
Administrative Agent) which evidence any Pledged Securities of such Pledgor.
SECTION 5.4. Certain Agreements of Pledgors As Issuers and Holders of
Equity Interests.
(a) In the case of each Pledgor which is an issuer of Securities
Collateral, such Pledgor agrees to be bound by the terms of this Agreement
relating to the Securities Collateral issued by it and will comply with such
terms insofar as such terms are applicable to it.
(b) In the case of each Pledgor which is a partner in a partnership,
limited liability company or other entity, such Pledgor hereby consents to the
extent required by the applicable Organizational Document to the pledge by each
other Pledgor, pursuant to the terms hereof, of the Pledged Interests in such
partnership, limited liability company or other entity and, upon the occurrence
and during the continuance of an Event of Default, to the transfer of such
Pledged Interests to the Administrative Agent or its nominee and to the
substitution of the Administrative Agent or its nominee as a substituted partner
or member in such partnership, limited liability company or other entity with
all the rights, powers and duties of a general partner or a limited partner or
member, as the case may be.
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1. Grant of License. For the purpose of enabling the
Administrative Agent, during the continuance of an Event of Default, to exercise
rights and remedies under Article IX hereof at such time as the Administrative
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, each Pledgor hereby grants to the Administrative Agent, to the
extent assignable, an irrevocable, non-exclusive license to use, assign, license
or sublicense any of the Intellectual Property Collateral now owned or hereafter
acquired by such Pledgor, wherever the same may be located. Such license shall
include access to all media in which any of the licensed items may be recorded
or stored and to all computer programs used for the compilation or printout
hereof.
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SECTION 6.2. Protection of Administrative Agent's Security. On a
continuing basis, each Pledgor shall, at its sole cost and expense, (i) promptly
following its becoming aware thereof, notify the Administrative Agent of (A) any
materially adverse determination in any proceeding in the United States Patent
and Trademark Office or the United States Copyright Office with respect to any
material Patent, Trademark or Copyright or (B) the institution of any proceeding
or any adverse determination in any federal, state or local court or
administrative body regarding such Pledgor's claim of ownership in or right to
use any of the Intellectual Property Collateral material to the use and
operation of the Pledged Collateral or Mortgaged Property, its right to register
such Intellectual Property Collateral or its right to keep and maintain such
registration in full force and effect, (ii) maintain and protect the
Intellectual Property Collateral material to the use and operation of the
Pledged Collateral or Mortgaged Property as presently used and operated and as
contemplated by the Third Lien Term Loan Agreement, (iii) not permit to lapse or
become abandoned any Intellectual Property Collateral material to the use and
operation of the Pledged Collateral or Mortgaged Property as presently used and
operated and as contemplated by the Third Lien Term Loan Agreement, and not
settle or compromise any pending or future litigation or administrative
proceeding with respect to such Intellectual Property Collateral, in each case
except as shall be consistent with commercially reasonable business judgment,
(iv) upon such Pledgor obtaining knowledge thereof, promptly notify the
Administrative Agent in writing of any event which may be reasonably expected to
materially and adversely affect the value or utility of the Intellectual
Property Collateral or any portion thereof material to the use and operation of
the Pledged Collateral or Mortgaged Property, the ability of such Pledgor or the
Administrative Agent to dispose of the Intellectual Property Collateral or any
portion thereof or the rights and remedies of the Administrative Agent in
relation thereto including a levy or threat of levy or any legal process against
the Intellectual Property Collateral or any portion thereof, (v) not license the
Intellectual Property Collateral other than licenses entered into by such
Pledgor in, or incidental to, the ordinary course of business, or amend or
permit the amendment of any of the licenses in a manner that materially and
adversely affects the right to receive payments thereunder, or in any manner
that would materially impair the value of the Intellectual Property Collateral
or the Lien on and security interest in the Intellectual Property Collateral
intended to be granted to the Administrative Agent for the benefit of the
Secured Parties, without the consent of the Administrative Agent, (vi)
diligently keep adequate records respecting the Intellectual Property Collateral
and (vii) furnish to the Administrative Agent from time to time upon the
Administrative Agent's request therefor reasonably detailed statements and
amended schedules further identifying and describing the Intellectual Property
Collateral and such other materials evidencing or reports pertaining to the
Intellectual Property Collateral as the Administrative Agent may from time to
time request.
SECTION 6.3. After-Acquired Property. If any Pledgor shall, at any
time before the Indebtedness have been paid in full (other than contingent
indemnification obligations which, pursuant to the provisions of the Third Lien
Term Loan Agreement or the Security Instruments, survive the termination
thereof), (i) obtain any rights to any additional Intellectual
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Property Collateral or (ii) become entitled to the benefit of any additional
Intellectual Property Collateral or any renewal or extension thereof, including
any reissue, division, continuation, or continuation-in-part of any Intellectual
Property Collateral, or any improvement on any Intellectual Property Collateral,
the provisions hereof shall automatically apply thereto and any such item
enumerated in clause (i) or (ii) of this Section 6.3 with respect to such
Pledgor shall automatically constitute Intellectual Property Collateral if such
would have constituted Intellectual Property Collateral at the time of execution
hereof and be subject to the Lien and security interest created by this
Agreement without further action by any party. Each Pledgor shall promptly (i)
provide to the Administrative Agent written notice of any of the foregoing and
(ii) confirm the attachment of the Lien and security interest created by this
Agreement to any rights described in clauses (i) and (ii) of the immediately
preceding sentence of this Section 6.3 by execution of an instrument in form
reasonably acceptable to the Administrative Agent and the filing of any
instruments or statements as shall be reasonably necessary to preserve, protect
or perfect the Administrative Agent's security interest in such Intellectual
Property Collateral. Further, each Pledgor authorizes the Administrative Agent
to modify this Agreement by amending Schedules 14(a) and 14(b) annexed to the
Perfection Certificate to include any Intellectual Property Collateral acquired
or arising after the date hereof of such Pledgor.
SECTION 6.4. Litigation. Unless there shall occur and be continuing
any Event of Default, each Pledgor shall have the right to commence and
prosecute in its own name, as the party in interest, for its own benefit and at
the sole cost and expense of the Pledgors, such applications for protection of
the Intellectual Property Collateral and suits, proceedings or other actions to
prevent the infringement, counterfeiting, unfair competition, dilution,
diminution in value or other damage as are necessary to protect the Intellectual
Property Collateral. Upon the occurrence and during the continuance of any Event
of Default, the Administrative Agent shall have the right but shall in no way be
obligated to file applications for protection of the Intellectual Property
Collateral and/or bring suit in the name of any Pledgor, the Administrative
Agent or the Secured Parties to enforce the Intellectual Property Collateral and
any license thereunder. In the event of such suit, each Pledgor shall, at the
reasonable request of the Administrative Agent, do any and all lawful acts and
execute any and all documents requested by the Administrative Agent in aid of
such enforcement and the Pledgors shall promptly reimburse and indemnify the
Administrative Agent for all costs and expenses incurred by the Administrative
Agent in the exercise of its rights under this Section 6.4 in accordance with
Section 12.03 of the Third Lien Term Loan Agreement. In the event that the
Administrative Agent shall elect not to bring suit to enforce the Intellectual
Property Collateral, each Pledgor agrees, at the reasonable request of the
Administrative Agent, to take all commercially reasonable actions necessary,
whether by suit, proceeding or other action, to prevent the infringement,
counterfeiting, unfair competition, dilution, diminution in value of or other
damage to any of the Intellectual Property Collateral by others and for that
purpose agrees to diligently maintain any suit, proceeding or other action
against any person so infringing necessary to prevent such infringement.
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ARTICLE VII
CERTAIN PROVISIONS CONCERNING ACCOUNTS
SECTION 7.1. Maintenance of Records. Each Pledgor shall keep and
maintain at its own cost and expense complete records of each Account, in a
manner consistent with prudent business practice, including records of all
payments received, all credits granted thereon, all merchandise returned and all
other documentation relating thereto. Each Pledgor shall, at such Pledgor's sole
cost and expense, upon the Administrative Agent's demand made at any time after
the occurrence and during the continuance of any Event of Default, deliver all
tangible evidence of Accounts, including all documents evidencing Accounts and
any books and records relating thereto to the Administrative Agent or to its
representatives (copies of which evidence and books and records may be retained
by such Pledgor). Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent may transfer a full and complete copy of any
Pledgor's books, records, credit information, reports, memoranda and all other
writings relating to the Accounts to and for the use by any person that has
acquired or is contemplating acquisition of an interest in the Accounts or the
Administrative Agent's security interest therein without the consent of any
Pledgor.
SECTION 7.2. [Reserved].
SECTION 7.3. Modification of Terms, etc. No Pledgor shall rescind or
cancel any obligations evidenced by any Account in excess of $250,000 or modify
any term thereof or make any adjustment with respect thereto except in the
ordinary course of business consistent with prudent business practice, or extend
or renew any such obligations except in the ordinary course of business
consistent with prudent business practice or compromise or settle any dispute,
claim, suit or legal proceeding relating thereto or sell any Account or interest
therein except in the ordinary course of business consistent with prudent
business practice without the prior written consent of the Administrative Agent.
Each Pledgor shall timely fulfill all obligations on its part to be fulfilled
under or in connection with the Accounts except where failure would not have a
Material Adverse Effect.
SECTION 7.4. Collection. Each Pledgor shall use commercially
reasonable efforts to collect from the Account Debtor of each of the Accounts,
as and when due in the ordinary course of business and consistent with prudent
business practice (including Accounts that are delinquent, such Accounts to be
collected in accordance with generally accepted commercial collection
procedures), any and all amounts owing under or on account of such Account, and
apply forthwith upon receipt thereof all such amounts as are so collected to the
outstanding balance of such Account, except that any Pledgor may, with respect
to an Account, allow in the ordinary course of business (i) a refund or credit
due as a result of returned or damaged or defective merchandise and (ii) such
extensions of time to pay amounts due in respect of Accounts and such other
modifications of payment terms or settlements in respect of Accounts
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as shall be commercially reasonable in the circumstances, all in accordance with
such Pledgor's ordinary course of business consistent with its collection
practices as in effect from time to time. The costs and expenses (including
attorneys' fees) of collection, in any case, whether incurred by any Pledgor,
the Administrative Agent or any Secured Party, shall be paid by the Pledgors.
ARTICLE VIII
TRANSFERS
SECTION 8.1. Transfers of Pledged Collateral. No Pledgor shall sell,
convey, assign or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral pledged by it hereunder except as permitted by the
Third Lien Term Loan Agreement.
ARTICLE IX
REMEDIES
SECTION 9.1. Remedies. Upon the occurrence and during the continuance
of any Event of Default the Administrative Agent may from time to time exercise
in respect of the Pledged Collateral, in addition to the other rights and
remedies provided for herein or otherwise available to it and at all times in
accordance with the terms of the Intercreditor Agreement, the following
remedies:
(a) Personally, or by agents or attorneys, immediately take possession
of the Pledged Collateral or any part thereof, from any Pledgor or any other
person who then has possession of any part thereof with or without notice or
process of law, and for that purpose may enter upon any Pledgor's premises where
any of the Pledged Collateral is located, remove such Pledged Collateral, remain
present at such premises to receive copies of all communications and remittances
relating to the Pledged Collateral and use in connection with such removal and
possession any and all services, supplies, aids and other facilities of any
Pledgor;
(b) Demand, xxx for, collect or receive any money or property at any
time payable or receivable in respect of the Pledged Collateral including
instructing the obligor or obligors on any agreement, instrument or other
obligation constituting part of the Pledged Collateral to make any payment
required by the terms of such agreement, instrument or other obligation directly
to the Administrative Agent, and in connection with any of the foregoing,
compromise, settle, extend the time for payment and make other modifications
with respect thereto; provided, however, that in the event that any
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such payments are made directly to any Pledgor, prior to receipt by any such
obligor of such instruction, such Pledgor shall segregate all amounts received
pursuant thereto in trust for the benefit of the Administrative Agent and shall
promptly (but in no event later than one (1) Business Day after receipt thereof)
pay such amounts to the Administrative Agent;
(c) Sell, assign, grant a license to use or otherwise liquidate, or
direct any Pledgor to sell, assign, grant a license to use or otherwise
liquidate, any and all investments made in whole or in part with the Pledged
Collateral or any part thereof, and take possession of the proceeds of any such
sale, assignment, license or liquidation;
(d) Take possession of the Pledged Collateral or any part thereof, by
directing any Pledgor in writing to deliver the same to the Administrative Agent
at any place or places so designated by the Administrative Agent, in which event
such Pledgor shall at its own expense: (A) forthwith cause the same to be moved
to the place or places designated by the Administrative Agent and therewith
delivered to the Administrative Agent, (B) store and keep any Pledged Collateral
so delivered to the Administrative Agent at such place or places pending further
action by the Administrative Agent and (C) while the Pledged Collateral shall be
so stored and kept, provide such security and maintenance services as shall be
necessary to protect the same and to preserve and maintain them in good
condition. Each Pledgor's obligation to deliver the Pledged Collateral as
contemplated in this Section 9.1(iv) is of the essence hereof. Upon application
to a court of equity having jurisdiction, the Administrative Agent shall be
entitled to a decree requiring specific performance by any Pledgor of such
obligation;
(e) Withdraw all moneys, instruments, securities and other property in
any bank, financial securities, deposit or other account of any Pledgor
constituting Pledged Collateral for application to the Indebtedness as provided
in Article X hereof;
(f) Retain and apply the Distributions to the Indebtedness as provided
in Article X hereof;
(g) Exercise any and all rights as beneficial and legal owner of the
Pledged Collateral, including perfecting assignment of and exercising any and
all voting, consensual and other rights and powers with respect to any Pledged
Collateral; and
(h) All the rights and remedies of a secured party on default under
the UCC, and the Administrative Agent may also in its sole discretion, without
notice except as specified in Section 9.2 hereof, sell, assign or grant a
license to use the Pledged Collateral or any part thereof in one or more parcels
at public or private sale, at any exchange, broker's board or at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as the
Administrative Agent may deem commercially reasonable. The Administrative Agent
or any other Secured Party or any of their respective Affiliates may be the
purchaser, licensee, assignee or recipient of any or all of the Pledged
Collateral at any such sale (to the extent permitted by law) and shall be
entitled, for the
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purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Pledged Collateral sold, assigned or licensed at such
sale, to use and apply any of the Indebtedness owed to such person as a credit
on account of the purchase price of any Pledged Collateral payable by such
person at such sale. Each purchaser, assignee, licensee or recipient at any such
sale shall acquire the property sold, assigned or licensed absolutely free from
any claim or right on the part of any Pledgor, and each Pledgor hereby waives,
to the fullest extent permitted by law, all rights of redemption, stay and/or
appraisal which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. The Administrative Agent
shall not be obligated to make any sale of Pledged Collateral regardless of
notice of sale having been given. The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. Each Pledgor hereby waives, to the
fullest extent permitted by law, any claims against the Administrative Agent
arising by reason of the fact that the price at which any Pledged Collateral may
have been sold, assigned or licensed at such a private sale was less than the
price which might have been obtained at a public sale, even if the
Administrative Agent accepts the first offer received and does not offer such
Pledged Collateral to more than one offeree.
SECTION 9.2. Notice of Sale. Each Pledgor acknowledges and agrees
that, to the extent notice of sale or other disposition of Pledged Collateral
shall be required by law, ten (10) days' prior notice to such Pledgor of the
time and place of any public sale or of the time after which any private sale or
other intended disposition is to take place shall be commercially reasonable
notification of such matters. No notification need be given to any Pledgor if it
has signed, after the occurrence of an Event of Default, a statement renouncing
or modifying any right to notification of sale or other intended disposition.
SECTION 9.3. Waiver of Notice and Claims. Each Pledgor hereby waives,
to the fullest extent permitted by applicable law, notice or judicial hearing in
connection with the Administrative Agent's taking possession or the
Administrative Agent's disposition of any of the Pledged Collateral, including
any and all prior notice and hearing for any prejudgment remedy or remedies and
any such right which such Pledgor would otherwise have under law, and each
Pledgor hereby further waives, to the fullest extent permitted by applicable
law: (i) all damages occasioned by such taking of possession, (ii) all other
requirements as to the time, place and terms of sale or other requirements with
respect to the enforcement of the Administrative Agent's rights hereunder and
(iii) all rights of redemption, appraisal, valuation, stay, extension or
moratorium now or hereafter in force under any applicable law. The
Administrative Agent shall not be liable for any incorrect or improper payment
made pursuant to this Article IX in the absence of gross negligence or willful
misconduct. Any sale of, or the grant of options to purchase, or any other
realization upon, any Pledged Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of the applicable
Pledgor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Pledgor and against any and all persons claiming or
attempting to claim the Pledged Collateral so sold, optioned or realized upon,
or any part thereof, from, through or under such Pledgor.
-35-
SECTION 9.4. Certain Sales of Pledged Collateral.
(a) Each Pledgor recognizes that, by reason of certain prohibitions
contained in law, rules, regulations or orders of any Governmental Authority,
the Administrative Agent may be compelled, with respect to any sale of all or
any part of the Pledged Collateral, to limit purchasers to those who meet the
requirements of such Governmental Authority. Each Pledgor acknowledges that any
such sales may be at prices and on terms less favorable to the Administrative
Agent than those obtainable through a public sale without such restrictions,
and, notwithstanding such circumstances, agrees that any such restricted sale
shall be deemed to have been made in a commercially reasonable manner and that,
except as may be required by applicable law, the Administrative Agent shall have
no obligation to engage in public sales.
(b) Each Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act, and applicable state securities laws, the
Administrative Agent may be compelled, with respect to any sale of all or any
part of the Securities Collateral and Investment Property, to limit purchasers
to persons who will agree, among other things, to acquire such Securities
Collateral or Investment Property for their own account, for investment and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges
that any such private sales may be at prices and on terms less favorable to the
Administrative Agent than those obtainable through a public sale without such
restrictions (including a public offering made pursuant to a registration
statement under the Securities Act), and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Securities Collateral or Investment Property for the period of time necessary to
permit the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities laws,
even if such issuer would agree to do so.
(c) Notwithstanding the foregoing, each Pledgor shall, upon the
occurrence and during the continuance of any Event of Default, at the reasonable
request of the Administrative Agent, for the benefit of the Administrative
Agent, cause any registration, qualification under or compliance with any
Federal or state securities law or laws to be effected with respect to all or
any part of the Securities Collateral as soon as practicable and at the sole
cost and expense of the Pledgors. Each Pledgor will use its commercially
reasonable efforts to cause such registration to be effected (and be kept
effective) and will use its commercially reasonable efforts to cause such
qualification and compliance to be effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Securities Collateral including registration under the Securities Act (or any
similar statute then in effect), appropriate qualifications under applicable
blue sky or other state securities laws and appropriate compliance with all
other requirements of any Governmental Authority. Each Pledgor shall use its
commercially reasonable efforts to cause the Administrative Agent to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, shall furnish to the
Administrative Agent such number of
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prospectuses, offering circulars or other documents incident thereto as the
Administrative Agent from time to time may request, and shall indemnify and
shall cause the issuer of the Securities Collateral to indemnify the
Administrative Agent and all others participating in the distribution of such
Securities Collateral against all claims, losses, damages and liabilities caused
by any untrue statement (or alleged untrue statement) of a material fact
contained therein (or in any related registration statement, notification or the
like) or by any omission (or alleged omission) to state therein (or in any
related registration statement, notification or the like) a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(d) If the Administrative Agent determines to exercise its right to
sell any or all of the Securities Collateral or Investment Property, upon
written request, the applicable Pledgor shall from time to time furnish to the
Administrative Agent all such information as the Administrative Agent may
request in order to determine the number of securities included in the
Securities Collateral or Investment Property which may be sold by the
Administrative Agent as exempt transactions under the Securities Act and the
rules of the Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
(e) Each Pledgor further agrees that a breach of any of the covenants
contained in this Section 9.4 will cause irreparable injury to the
Administrative Agent and other Secured Parties, that the Administrative Agent
and the other Secured Parties have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this
Section 9.4 shall be specifically enforceable against such Pledgor, and such
Pledgor hereby waives and agrees not to assert any defenses against an action
for specific performance of such covenants except for a defense that no Event of
Default has occurred and is continuing.
SECTION 9.5. No Waiver; Cumulative Remedies.
(a) No failure on the part of the Administrative Agent to exercise, no
course of dealing with respect to, and no delay on the part of the
Administrative Agent in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy; nor shall the
Administrative Agent be required to look first to, enforce or exhaust any other
security, collateral or guaranties. The remedies herein provided are cumulative
and are not exclusive of any remedies provided by law.
(b) In the event that the Administrative Agent shall have instituted
any proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Administrative Agent, then and in every such case, the Pledgors, the
Administrative Agent and each other Secured Party shall be restored to their
respective former positions and rights hereunder with respect to the Pledged
Collateral,
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and all rights, remedies and powers of the Administrative Agent and the other
Secured Parties shall continue as if no such proceeding had been instituted.
SECTION 9.6. Certain Additional Actions Regarding Intellectual
Property. If any Event of Default shall have occurred and be continuing, upon
the written demand of the Administrative Agent, each Pledgor shall execute and
deliver to the Administrative Agent an assignment or assignments of the
registered Patents, Trademarks and/or Copyrights and Goodwill and such other
documents as are necessary or appropriate to carry out the intent and purposes
hereof. Within five (5) Business Days of written notice thereafter from the
Administrative Agent, each Pledgor shall make available to the Administrative
Agent, to the extent within such Pledgor's power and authority, such personnel
in such Pledgor's employ on the date of the Event of Default as the
Administrative Agent may reasonably designate to permit such Pledgor to
continue, directly or indirectly, to produce, advertise and sell the products
and services sold by such Pledgor under the registered Patents, Trademarks
and/or Copyrights, and such persons shall be available to perform their prior
functions on the Administrative Agent's behalf.
ARTICLE X
PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS;
APPLICATION OF PROCEEDS
SECTION 10.1. Proceeds of Casualty Events and Collateral Dispositions.
The Pledgors shall take all actions required by the Third Lien Term Loan
Agreement and the Intercreditor Agreement with respect to any Net Cash Proceeds
of any Casualty Event or from the sale or disposition of any Pledged Collateral.
SECTION 10.2. Application of Proceeds. The proceeds received by the
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Collateral pursuant to the exercise by
the Administrative Agent of its remedies shall be applied, together with any
other sums then held by the Administrative Agent pursuant to this Agreement, in
accordance with the Third Lien Term Loan Agreement and the Intercreditor
Agreement.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Concerning Administrative Agent.
(a) The actions of the Administrative Agent hereunder are subject to
the provisions of the Third Lien Term Loan Agreement. The Administrative Agent
shall have the right hereunder to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking action
(including the release or substitution of the Pledged Collateral), in accordance
with this Agreement, Third Lien Term Loan Agreement and the Intercreditor
Agreement. The Administrative Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be liable for the negligence or misconduct of
any such agents or attorneys-in-fact selected by it in good faith. The
Administrative Agent may resign and a successor Administrative Agent may be
appointed in the manner provided in the Third Lien Term Loan Agreement. Upon the
acceptance of any appointment as the Administrative Agent by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent under this Agreement, and the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation, the provisions hereof shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement while it was the
Administrative Agent.
(b) The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if such Pledged Collateral is accorded treatment substantially
equivalent to that which the Administrative Agent, in its individual capacity,
accords its own property consisting of similar instruments or interests, it
being understood that neither the Administrative Agent nor any of the Secured
Parties shall have responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Securities Collateral, whether or not the Administrative Agent
or any other Secured Party has or is deemed to have knowledge of such matters or
(ii) taking any necessary steps to preserve rights against any person with
respect to any Pledged Collateral.
(c) The Administrative Agent shall be entitled to rely upon any
written notice, statement, certificate, order or other document or any telephone
message believed by it to be genuine and correct and to have been signed, sent
or made by the proper person, and, with respect to all matters pertaining to
this Agreement and its duties hereunder, upon advice of counsel selected by it.
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(d) If any item of Pledged Collateral also constitutes collateral
granted to the Administrative Agent under any other deed of trust, mortgage,
security agreement, pledge or instrument of any type, in the event of any
conflict between the provisions hereof and the provisions of such other deed of
trust, mortgage, security agreement, pledge or instrument of any type in respect
of such collateral, the Administrative Agent, in its sole discretion, shall
select which provision or provisions shall control.
SECTION 11.2. Administrative Agent May Perform; Administrative Agent
Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants
contained in this Agreement (including such Pledgor's covenants to (i) pay the
premiums in respect of all required insurance policies hereunder, (ii) pay
Claims, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any
obligations of such Pledgor under any Pledged Collateral) or if any
representation or warranty on the part of any Pledgor contained herein shall be
breached, the Administrative Agent may (but shall not be obligated to) do the
same or cause it to be done or remedy any such breach, and may expend funds for
such purpose; provided, however, that the Administrative Agent shall in no event
be bound to inquire into the validity of any tax, lien, imposition or other
obligation which such Pledgor fails to pay or perform as and when required
hereby and which such Pledgor does not contest in accordance in accordance with
the provisions of Section 4.11 hereof. Any and all amounts so expended by the
Administrative Agent shall be paid by the Pledgors in accordance with the
provisions of Section 12.03 of the Third Lien Term Loan Agreement. Neither the
provisions of this Section 11.2 nor any action taken by the Administrative Agent
pursuant to the provisions of this Section 11.2 shall prevent any such failure
to observe any covenant contained in this Agreement nor any breach of
representation or warranty from constituting an Event of Default. Each Pledgor
hereby appoints the Administrative Agent its attorney-in-fact, with full
authority in the place and stead of such Pledgor and in the name of such
Pledgor, or otherwise, from time to time in the Administrative Agent's
discretion to take any action and to execute any instrument consistent with the
terms of the Third Lien Term Loan Agreement, this Agreement and the other
Security Instruments which the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof if any Pledgor shall fail to perform
any covenants or agreements contained in this Agreement. The foregoing grant of
authority is a power of attorney coupled with an interest and such appointment
shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that
such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 11.3. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon the Pledgors, their respective successors and assigns and
(ii) inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and the other Secured
Parties and each of their respective successors, transferees and assigns. No
other persons (including any other creditor of any Pledgor) shall have any
interest herein or any right or benefit with respect hereto. Without limiting
the generality of the foregoing clause (ii), any Secured Party may assign or
otherwise transfer any indebtedness held by it secured by this Agreement to any
other person, and such other person shall thereupon become vested with all the
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benefits in respect thereof granted to such Secured Party, herein or otherwise,
subject however, to the provisions of the Third Lien Term Loan Agreement and any
Swap Agreement.
SECTION 11.4. Termination; Release. The Pledged Collateral shall be
released from the Lien of this Agreement in accordance with the provisions of
the Third Lien Term Loan Agreement. Upon termination hereof or any release of
Pledged Collateral in accordance with the provisions of the Third Lien Term Loan
Agreement, the Administrative Agent shall, upon the request and at the sole cost
and expense of the Pledgors, assign, transfer and deliver to Pledgor, against
receipt and without recourse to or warranty by the Administrative Agent except
as to the fact that the Administrative Agent has not encumbered the released
assets, such of the Pledged Collateral to be released (in the case of a release)
as may be in possession of the Administrative Agent and as shall not have been
sold or otherwise applied pursuant to the terms hereof, and, with respect to any
other Pledged Collateral, proper documents and instruments (including UCC-3
termination statements or releases) acknowledging the termination hereof or the
release of such Pledged Collateral, as the case may be.
SECTION 11.5. Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision hereof, nor consent to
any departure by any Pledgor therefrom, shall be effective unless the same shall
be made in accordance with the terms of the Third Lien Term Loan Agreement and
unless in writing and signed by the Administrative Agent. Any amendment,
modification or supplement of or to any provision hereof, any waiver of any
provision hereof and any consent to any departure by any Pledgor from the terms
of any provision hereof shall be effective only in the specific instance and for
the specific purpose for which made or given. Except where notice is
specifically required by this Agreement or any other document evidencing the
Indebtedness, no notice to or demand on any Pledgor in any case shall entitle
any Pledgor to any other or further notice or demand in similar or other
circumstances.
SECTION 11.6. Notices. Unless otherwise provided herein or in the
Third Lien Term Loan Agreement, any notice or other communication herein
required or permitted to be given shall be given in the manner and become
effective as set forth in the Third Lien Term Loan Agreement, as to any Pledgor,
addressed to it at the address of the Borrowers set forth in the Third Lien Term
Loan Agreement and as to the Administrative Agent, addressed to it at the
address set forth in the Third Lien Term Loan Agreement, or in each case at such
other address as shall be designated by such party in a written notice to the
other party complying as to delivery with the terms of this Section 11.6.
SECTION 11.7. Governing Law, Consent to Jurisdiction and Service of
Process; Waiver of Jury Trial. Section 12.09 of the Third Lien Term Loan
Agreement is incorporated herein, mutatis mutandis, as if a part hereof.
SECTION 11.8. Severability of Provisions. Any provision hereof which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective
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to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 11.9. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
SECTION 11.10. Business Days. In the event any time period or any date
provided in this Agreement ends or falls on a day other than a Business Day,
then such time period shall be deemed to end and such date shall be deemed to
fall on the next succeeding Business Day, and performance herein may be made on
such Business Day, with the same force and effect as if made on such other day.
SECTION 11.11. Waiver of Stay. Each Pledgor covenants (to the extent
it may lawfully do so) that in the event that such Pledgor or any property or
assets of such Pledgor shall hereafter become the subject of a voluntary or
involuntary proceeding under the Bankruptcy Code or such Pledgor shall otherwise
be a party to any federal or state bankruptcy, insolvency, moratorium or similar
proceeding to which the provisions relating to the automatic stay under Section
362 of the Bankruptcy Code or any similar provision in any such law is
applicable, then, in any such case, whether or not the Administrative Agent has
commenced foreclosure proceedings under this Agreement, such Pledgor shall not,
and each Pledgor hereby expressly waives their right to (to the extent it may
lawfully do so) at any time insist upon, plead or in any whatsoever, claim or
take the benefit or advantage of any such automatic stay or such similar
provision as it relates to the exercise of any of the rights and remedies
(including any foreclosure proceedings) available to the Administrative Agent as
provided in this Agreement, in any other Security Instrument or any other
document evidencing the Indebtedness. Each Pledgor further covenants (to the
extent it may lawfully do so) that it will not hinder, delay or impede the
execution of any power granted herein to the Administrative Agent, but will
suffer and permit the execution of every such power as though no law relating to
any stay or similar provision had been enacted.
SECTION 11.12. No Credit for Payment of Taxes or Imposition. Such
Pledgor shall not be entitled to any credit against the principal, premium, if
any, or interest payable under the Third Lien Term Loan Agreement, and such
Pledgor shall not be entitled to any credit against any other sums which may
become payable under the terms thereof or hereof, by reason of the payment of
any Tax on the Pledged Collateral or any part thereof.
SECTION 11.13. No Claims Against Administrative Agent. Nothing
contained in this Agreement shall constitute any consent or request by the
Administrative Agent, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Pledged Collateral or any part thereof, nor as giving any Pledgor any
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right, power or authority to contract for or permit the performance of any labor
or services or the furnishing of any materials or other property in such fashion
as would permit the making of any claim against the Administrative Agent in
respect thereof or any claim that any Lien based on the performance of such
labor or services or the furnishing of any such materials or other property is
prior to the Lien hereof.
SECTION 11.14. No Release. Nothing set forth in this Agreement shall
relieve any Pledgor from the performance of any term, covenant, condition or
agreement on such Pledgor's part to be performed or observed under or in respect
of any of the Pledged Collateral or from any liability to any person under or in
respect of any of the Pledged Collateral or shall impose any obligation on the
Administrative Agent or any other Secured Party to perform or observe any such
term, covenant, condition or agreement on such Pledgor's part to be so performed
or observed or shall impose any liability on the Administrative Agent or any
other Secured Party for any act or omission on the part of such Pledgor relating
thereto or for any breach of any representation or warranty on the part of such
Pledgor contained in this Agreement, the Third Lien Term Loan Agreement or the
other Loan Documents, or under or in respect of the Pledged Collateral or made
in connection herewith or therewith. The obligations of each Pledgor contained
in this Section 11.14 shall survive the termination hereof and the discharge of
such Pledgor's other obligations under this Agreement, the Third Lien Term Loan
Agreement and the other Loan Documents.
SECTION 11.15. Indebtedness Absolute. All obligations of each Pledgor
hereunder shall be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Pledgor;
(b) any lack of validity or enforceability of the Third Lien Term Loan
Agreement, any Swap Agreement or any other Loan Document, or any other agreement
or instrument relating thereto;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Indebtedness, or any other amendment or waiver
of or any consent to any departure from the Third Lien Term Loan Agreement, any
Swap Agreement or any other Loan Document or any other agreement or instrument
relating thereto;
(d) any pledge, exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any departure
from any guarantee, for all or any of the Indebtedness;
(e) any exercise, non-exercise or waiver of any right, remedy, power
or privilege under or in respect hereof, the Third Lien Term Loan Agreement, any
Swap Agreement
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or any other Loan Document except as specifically set forth in a waiver granted
pursuant to the provisions of Section 11.5 hereof; or
(f) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any Pledgor.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
S-1
IN WITNESS WHEREOF, the Pledgors and the Administrative Agent have
caused this Agreement to be duly executed and delivered by their duly
authorized officers as of the date first above written.
BLUESTEM PIPELINE, LLC, as a QUEST CHEROKEE OILFIELD SERVICE,
Pledgor LLC, as a Pledgor
By: Quest Cherokee, LLC, its sole By: Quest Cherokee, LLC, its
member sole member
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
X-X GAS GATHERING, L.L.C., as a QUEST ENERGY SERVICE, INC., as a
Pledgor Pledgor
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
PONDEROSA GAS PIPELINE COMPANY, QUEST OIL & GAS CORPORATION, as
INC., as a Pledgor a Pledgor
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
PRODUCERS SERVICE INCORPORATED, as STP CHEROKEE, INC., as a Pledgor
a Pledgor
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
QUEST CHEROKEE, LLC, as a Pledgor QUEST RESOURCE CORPORATION, as a
Pledgor
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Chief Executive Officer Title: Chief Executive Officer
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
EXHIBIT 1
[Form of]
ISSUER'S ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of a copy of that
certain security agreement (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Security Agreement;" capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Security Agreement), dated as of June 9, 2006, made by QUEST
CHEROKEE, LLC, a Delaware limited liability company and QUEST RESOURCE
CORPORATION, a Nevada corporation (collectively, the "Borrowers"), the
Guarantors party thereto and GUGGENHEIM CORPORATE FUNDING, LLC, as
Administrative Agent (in such capacity and together with any successors in such
capacity, the "Administrative Agent"), (ii) agrees promptly to note on its books
the security interests granted to the Administrative Agent and confirmed under
the Security Agreement, (iii) agrees that it will comply with instructions of
the Administrative Agent with respect to the applicable Securities Collateral
without further consent by the applicable Pledgor, (iv) agrees to notify the
Administrative Agent upon obtaining knowledge of any interest in favor of any
person in the applicable Securities Collateral that is adverse to the interest
of the Administrative Agent therein and (v) waives any right or requirement at
any time hereafter to receive a copy of the Security Agreement in connection
with the registration of any Securities Collateral thereunder in the name of the
Administrative Agent or its nominee or the exercise of voting rights by the
Administrative Agent or its nominee.
[ ]
By:
--------------------------------------
Name:
Title:
EXHIBIT 2
[Form of]
SECURITIES PLEDGE AMENDMENT
This Security Pledge Amendment, dated as of June [__], 2006, is
delivered pursuant to Section 5.1 of that certain security agreement (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Security Agreement;" capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Security
Agreement), dated as of June 9, 2006, made by QUEST CHEROKEE, LLC, a Delaware
limited liability company and QUEST RESOURCE CORPORATION, a Nevada corporation
(collectively, the "Borrowers"), the Guarantors party thereto and GUGGENHEIM
CORPORATE FUNDING, LLC, as Administrative Agent (in such capacity and together
with any successors in such capacity, the "Administrative Agent"). The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Security Agreement and that the Pledged Securities and/or Intercompany Notes
listed on this Pledge Amendment shall be deemed to be and shall become part of
the Pledged Collateral and shall secure all Indebtedness.
PLEDGED SECURITIES
CLASS NUMBER PERCENTAGE OF
OF STOCK OF SHARES ALL ISSUED CAPITAL
OR PAR CERTIFICATE OR OR OTHER EQUITY
ISSUER INTERESTS VALUE NO(S). INTERESTS INTERESTS OF ISSUER
------ --------- ----- ----------- --------- -------------------
INTERCOMPANY NOTES
PRINCIPAL DATE OF INTEREST MATURITY
ISSUER AMOUNT ISSUANCE RATE DATE
------ --------- -------- -------- --------
[ ],
as Pledgor
By:
------------------------------------
Name:
Title:
AGREED TO AND ACCEPTED:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
------------------------------
Name:
Title:
EXHIBIT 3
[Form of]
JOINDER AGREEMENT
[Name of New Pledgor]
[Address of New Pledgor]
[Date]
----------------------------
----------------------------
----------------------------
----------------------------
Ladies and Gentlemen:
Reference is made to that certain security agreement (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement;" capitalized terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Security Agreement), dated
as of June 9, 2006, made by QUEST CHEROKEE, LLC, a Delaware limited liability
company and QUEST RESOURCE CORPORATION, a Nevada corporation (collectively, the
"Borrowers"), the Guarantors party thereto and GUGGENHEIM CORPORATE FUNDING,
LLC, as Administrative Agent (in such capacity and together with any successors
in such capacity, the "Administrative Agent").
This letter supplements the Security Agreement and is delivered by the
undersigned, [ ] (the "New Pledgor"), pursuant to Section 3.5 of the
Security Agreement. The New Pledgor hereby agrees to be bound as a Guarantor and
as a Pledgor by all of the terms, covenants and conditions set forth in the
Security Agreement to the same extent that it would have been bound if it had
been a signatory to the Security Agreement on the execution date of the Security
Agreement. The New Pledgor also hereby agrees to be bound as a party by all of
the terms, covenants and conditions applicable to it set forth in the Guaranty
and in Articles VII, VIII and IX of the Third Lien Term Loan Agreement to the
same extent that it would have been bound if it had been a signatory to the
Third Lien Term Loan Agreement on the execution date of the Third Lien Term Loan
Agreement. Without limiting the generality of the foregoing, the New Pledgor
hereby grants and pledges to the Administrative Agent, as collateral security
for the full, prompt and complete payment and performance when due (whether at
stated maturity,
by acceleration or otherwise) of the Indebtedness, a Lien on and security
interest in, all of its right, title and interest in, to and under the Pledged
Collateral and expressly assumes all obligations and liabilities of a Guarantor
and Pledgor thereunder. The New Pledgor hereby makes each of the representations
and warranties and agrees to each of the covenants applicable to the Pledgors
contained in the Security Agreement and Article VII of the Third Lien Term Loan
Agreement.
Annexed hereto are supplements to each of the schedules to the
Security Agreement and the Third Lien Term Loan Agreement, as applicable, with
respect to the New Pledgor. Such supplements shall be deemed to be part of the
Security Agreement or the Third Lien Term Loan Agreement, as applicable.
This agreement and any amendments, waivers, consents or supplements
hereto may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original, but all such counterparts together shall
constitute one and the same agreement.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Pledgor has caused this letter agreement
to be executed and delivered by its duly authorized officer as of the date first
above written.
[NEW PLEDGOR]
By:
-----------------------------------
Name:
Title:
AGREED TO AND ACCEPTED:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By: ------------------------------
Name:
Title:
[Schedules to be attached]
EXHIBIT 4
[Form of]
CONTROL AGREEMENT CONCERNING SECURITIES ACCOUNTS
This Control Agreement Concerning Securities Accounts (this "Control
Agreement"), dated as of [ ], by and among [QUEST CHEROKEE, LLC][___________]
(the "Pledgor"), Guggenheim Corporate Funding, LLC (the "Administrative Agent")
and [ ] (the "Securities Intermediary"), is delivered pursuant to Section 3.4(c)
of that certain security agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Security Agreement"),
dated as of June 9, 2006, made by the Pledgor and each of the Guarantors listed
on the signature pages thereto in favor of GUGGENHEIM CORPORATE FUNDING, LLC, as
Administrative Agent, as pledgee, assignee and secured party (the
"Administrative Agent"). This Control Agreement is for the purpose of perfecting
the security interests of the Secured Parties granted by the Pledgor in the
Designated Accounts described below. All references herein to the "UCC" shall
mean the Uniform Commercial Code as in effect from time to time in the State of
New York. Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Security Agreement.
Section 1. Confirmation of Establishment and Maintenance of Designated
Accounts. The Securities Intermediary hereby confirms and agrees that (i) the
Securities Intermediary has established for the Pledgor and maintains the
account(s) listed in Schedule I annexed hereto (such account(s), together with
each such other securities account maintained by the Pledgor with the Securities
Intermediary collectively, the "Designated Accounts" and each a "Designated
Account"), (ii) each Designated Account will be maintained in the manner set
forth herein until termination of this Control Agreement, (iii) this Control
Agreement is the valid and legally binding obligation of the Securities
Intermediary, (iv) the Securities Intermediary is a "securities intermediary" as
defined in Article 8-102(a)(14) of the UCC, (v) each of the Designated Accounts
is a "securities account" as such term is defined in Section 8-501(a) of the UCC
and (vi) all securities or other property underlying any financial assets which
are credited to any Designated Account shall be registered in the name of the
Securities Intermediary, endorsed to the Securities Intermediary or in blank or
credited to another securities account maintained in the name of the Securities
Intermediary and in no case will any financial asset credited to any Designated
Account be registered in the name of the Pledgor, payable to the order of the
Pledgor or specially endorsed to the Pledgor, except to the extent the foregoing
have been specially endorsed to the Securities Intermediary or in blank.
Section 2. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of Investment Property credited to any Designated
Account shall be treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the UCC.
Section 3. Entitlement Order. If at any time the Securities
Intermediary shall receive an "entitlement order" (within the meaning of Section
8-102(a)(8) of the UCC) issued by the Administrative Agent and relating to any
financial asset maintained in one or more of the Designated Accounts, the
Securities Intermediary shall comply with such entitlement order without further
consent by the Pledgor or any other person. The Securities Intermediary shall
also comply with instructions directing the Securities Intermediary with respect
to the sale, exchange or transfer of financial assets held in each Designated
Account originated by a Pledgor, or any representative of, or investment manager
appointed by, a Pledgor until such time as the Administrative Agent delivers a
Notice of Sole Control pursuant to Section 9(i) to the Securities Intermediary.
Section 4. Subordination of Lien; Waiver of Set-Off. The Securities
Intermediary hereby agrees that any security interest in any Designated Account
it now has or subsequently obtains shall be subordinate to the security interest
of the Administrative Agent. The financial assets and other items deposited to
any Designated Account will not be subject to deduction, set-off, banker's lien,
or any other right in favor of any person other than the Secured Parties (except
that the Securities Intermediary may set off all amounts due to the Securities
Intermediary in respect of its customary fees and expenses for the routine
maintenance and operation of the Designated Accounts, including overdraft fees
and amounts advanced to settle authorized transactions).
Section 5. Choice of Law. Both this Control Agreement and the
Designated Accounts shall be governed by the laws of the State of New York.
Regardless of any provision in any other agreement, for purposes of the UCC, New
York shall be deemed to be the Securities Intermediary's jurisdiction and the
Designated Accounts (as well as the security entitlements related thereto) shall
be governed by the laws of the State of New York.
Section 6. Conflict with Other Agreements; Amendments. As of the date
hereof, there are no other agreements entered into between the Securities
Intermediary and the Pledgor with respect to any Designated Account or any
security entitlements or other financial assets credited thereto (other than
standard and customary documentation with respect to the establishment and
maintenance of such Designated Accounts). The Securities Intermediary and the
Pledgor will not enter into any other agreement with respect to any Designated
Account unless the Administrative Agent shall have received prior written notice
thereof. The Securities Intermediary and the Pledgor have not and will not enter
into any other agreement with respect to (i) creation or perfection of any
security interest in or (ii) control of security entitlements maintained in any
of the Designated Accounts or purporting to limit or condition the obligation of
the Securities Intermediary to comply with entitlement orders with respect to
financial assets credited to any Designated Account as set forth in Section 3
hereof without the prior written consent of the Administrative Agent acting in
its sole discretion. In the event of any conflict with respect to control over
any Designated Account between this Control Agreement (or any portion hereof)
and any other agreement now existing or hereafter entered into, the terms of
this
Control Agreement shall prevail. No amendment or modification of this Control
Agreement or waiver of any rights hereunder shall be binding on any party hereto
unless it is in writing and is signed by all the parties hereto.
Section 7. Certain Agreements.
(i) The Securities Intermediary has furnished to the Administrative
Agent the most recent account statement issued by the Securities Intermediary
with respect to each of the Designated Accounts and the financial assets and
cash balances held therein, identifying the financial assets held therein in a
manner acceptable to the Administrative Agent. Each such statement accurately
reflects the assets held in such Designated Account as of the date thereof.
(ii) The Securities Intermediary will, upon its receipt of each
supplement to the Security Agreement signed by the Pledgor and identifying one
or more financial assets as "Pledged Collateral," enter into its records,
including computer records, with respect to each Designated Account a notation
with respect to any such financial asset so that such records and reports
generated with respect thereto identify such financial asset as "Pledged."
(iii) The Administrative Agent has delivered to the Securities
Intermediary a list, signed by an authorized representative of the officers of
the Administrative Agent authorized to give approvals or instructions under this
Control Agreement (the "Authorized Representatives") and the Securities
Intermediary shall be entitled to rely on communications from any such
Authorized Representatives until the earlier of the termination of this Control
Agreement in accordance with the terms hereof and notification by an Authorized
Representative of a change in such list at any time.
Section 8. Notice of Adverse Claims. Except for the claims and
interest of the Securities Intermediary under Section 4, the Administrative
Agent and of the Pledgor in the financial assets maintained in the Designated
Account(s), the Securities Intermediary on the date hereof does not know of any
claim to, or security interest in, any Designated Account or in any financial
asset credited thereto and does not know of any claim that any person other than
the Administrative Agent has been given "control" (within the meaning of Section
8-106 of the UCC) of any Designated Account or any such financial asset. If the
Securities Intermediary becomes aware that any person is asserting any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process or any claim of control) against any
of the financial assets maintained in any Designated Account, the Securities
Intermediary promptly notify the Administrative Agent and the Pledgor thereof.
Section 9. Maintenance of Designated Accounts. In addition to the
obligations of the Securities Intermediary in Section 3 hereof, the Securities
Intermediary agrees to maintain the Designated Accounts as follows:
(i) Notice of Sole Control. If at any time the Administrative Agent
delivers to the Securities Intermediary a notice of sole control in
substantially the form set forth in Exhibit A attached hereto (the "Notice
of Sole Control") with respect to any Designated Account, the Securities
Intermediary agrees that, after receipt of such notice, it will take all
instructions with respect to such Designated Account solely from the
Administrative Agent and cease taking instructions from Pledgor, including,
without limitation, instructions for investment, distribution or transfer
of any financial asset maintained in any Designated Account. Permitting
settlement of trades pending at the time of receipt of such notice shall
not constitute a violation of the immediately preceding sentence.
(ii) Voting Rights. Until such time as the Securities Intermediary
receives a Notice of Sole Control, the Pledgor, or an investment manager on
behalf of the Pledgor, shall direct the Securities Intermediary with
respect to the voting of any financial assets credited to any Designated
Account.
(iii) Statements and Confirmations. The Securities Intermediary will
send copies of all statements and other correspondence (excluding routine
confirmations) concerning any Designated Account or any financial assets
credited thereto simultaneously to each of the Pledgor and the
Administrative Agent at the address set forth in Section 11 hereof. The
Securities Intermediary will provide to the Administrative Agent, upon the
Administrative Agent's request therefor from time to time and, in any
event, as of the last business day of each calendar month, a statement of
the market value of each financial asset maintained in each Designated
Account. The Securities Intermediary shall not change the name or account
number of any Designated Account without the prior written consent of the
Administrative Agent.
(iv) Bailee for Perfection. The Securities Intermediary acknowledges
that, in the event that it should come into possession of any certificate
representing any security or other assets held as financial assets in any
of the Designated Accounts, the Securities Intermediary shall retain
possession of the same for the benefit of the Administrative Agent and such
act shall cause the Securities Intermediary to be deemed a bailee for the
Administrative Agent, if necessary to perfect the Administrative Agent's
security interest in such securities or assets. The Securities Intermediary
hereby acknowledges its receipt of a copy of the Security Agreement, which
shall also serve as notice to the Securities Intermediary of a security
interest in collateral held by a bailee.
Section 10. Successors; Assignment. The terms of this Control
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective corporate successors and permitted assignees.
Section 11. Notices. Any notice, request or other communication
required or permitted to be given under this Control Agreement shall be in
writing and deemed to have been properly given when delivered in person, or when
sent by telecopy or other electronic means and
electronic confirmation of error free receipt is received or two (2) days after
being sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed to the party at the address set forth
below.
Pledgor: [ ]
[Address]
Attention:
Telecopy:
Telephone:
with copy to:
[ ]
[Address]
Attention:
Telecopy:
Telephone:
Securities
Intermediary: [ ]
[Address]
Attention:
Telecopy:
Telephone:
Administrative
Agent: Guggenheim Corporate Funding, LLC
[
-----------------------------
-----------------------------]
Attention:
Telecopy:
Telephone:
Any party may change its address for notices in the manner set forth
above.
Section 12. Termination. The rights and powers granted herein to the
Administrative Agent are powers coupled with an interest and will be affected
neither by the bankruptcy of the Pledgor nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until (i) the security interests of the Secured Parties with respect to the
financial assets maintained in the Designated Account(s) have been terminated
and an Authorized Representative has notified the Securities Intermediary of
such termination in writing or (ii) thirty days following the Securities
Intermediary's delivery of written notice of such termination to the Pledgor and
the Administrative Agent.
Section 13. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement,
other than those provisions held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
Section 14. Counterparts. This Control Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Control Agreement by signing
and delivering one or more counterparts.
[ ],
as Pledgor
By:
-------------------------------------
Name:
Title:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
[ ],
as Securities Intermediary
By:
-------------------------------------
Name:
Title:
SCHEDULE I
Designated Account(s)
---------------------
EXHIBIT A
[Letterhead of Guggenheim Corporate Funding, LLC]
[Date]
[Securities Intermediary]
[Address]
Attention:
Re: Notice of Sole Control
----------------------
Ladies and Gentlemen:
As referenced in Section 9(i) of the Control Agreement Concerning
Designated Accounts dated as of [ ], by and among [ ],
us and you (the "Control Agreement") (a copy of which is attached) we hereby
give you notice of our sole control over the financial assets maintained in the
Designated Account(s) referred to in the Control Agreement, account numbers:
________________ (the "Specified Designated Accounts"). You are hereby
instructed not to accept any direction, instruction or entitlement order with
respect to financial assets maintained in the Specified Designated Accounts from
any person other than the undersigned.
You are instructed to deliver a copy of this notice by facsimile
transmission to [Pledgor].
Very truly yours,
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
---------------------------------------
Name:
Title:
cc: [Pledgor]
EXHIBIT 5
[Form of]
CONTROL AGREEMENT CONCERNING DEPOSIT ACCOUNTS
This CONTROL AGREEMENT CONCERNING DEPOSIT ACCOUNTS (this "Control
Agreement"), dated as of [ ], by and among [QUEST CHEROKEE, LLC]
[_____________] (the "Pledgor"), GUGGENHEIM CORPORATE FUNDING, LLC (the
"Administrative Agent") and [ ] (the "Bank"), is delivered pursuant
to Section 3.4(b) of that certain security agreement (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Security
Agreement"), dated as of June 9, 2006, made by the Pledgor and each of the
Guarantors listed on the signature pages thereto in favor of GUGGENHEIM
CORPORATE FUNDING, LLC, as Administrative Agent, as pledgee, assignee and
secured party (the "Administrative Agent"). This Control Agreement is for the
purpose of perfecting the security interests of the Secured Parties granted by
the Pledgor in the Designated Accounts described below. All references herein to
the "UCC" shall mean the Uniform Commercial Code as in effect from time to time
in the State of New York. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Security Agreement.
Section 1. Confirmation of Establishment and Maintenance of Designated
Accounts. The Bank hereby confirms and agrees that (i) the Bank has established
for the Pledgor and maintains the deposit account(s) listed in Schedule 1
annexed hereto (such account(s), together with each such other deposit account
maintained by the Pledgor with the Bank collectively, the "Designated Accounts"
and each a "Designated Account"), (ii) each Designated Account will be
maintained in the manner set forth herein until termination of this Control
Agreement, (iii) the Bank is a "bank," as such term is defined in the UCC, (iv)
this Control Agreement is the valid and legally binding obligation of the Bank
and (v) each Designated Account is a "deposit account" as such term is defined
in Article 9 of the UCC.
Section 2. Control. The Bank shall comply with instructions originated
by the Administrative Agent without further consent of the Pledgor or any person
acting or purporting to act for the Pledgor being required, including, without
limitation, directing disposition of the funds in each Designated Account. The
Bank shall also comply with instructions directing the disposition of funds in
each Designated Account originated by the Pledgor or its authorized
representatives until such time as the Administrative Agent delivers a Notice of
Sole Control pursuant to Section 8(i) hereof to the Bank.
Section 3. Subordination of Lien; Waiver of Set-Off. The Bank hereby
agrees that any security interest in any Designated Account it now has or
subsequently obtains
shall be subordinate to the security interest of the Administrative Agent. The
funds deposited into any Designated Account will not be subject to deduction,
set-off, banker's lien, or any other right in favor of any person other than the
Secured Parties (except that the Bank may set off (i) all amounts due to the
Bank in respect of its customary fees and expenses for the routine maintenance
and operation of the Designated Accounts, including overdraft fees, and (ii) the
face amount of any checks or other items which have been credited to any
Designated Account but are subsequently returned unpaid because of uncollected
or insufficient funds).
Section 4. Choice of Law. Both this Control Agreement and the
Designated Account(s) shall be governed by the laws of the State of New York.
Regardless of any provision in any other agreement, for purposes of the UCC, New
York shall be deemed to be the Bank's jurisdiction and the Designated Account(s)
shall be governed by the law of the State of New York.
Section 5. Conflict with Other Agreements; Amendments. As of the date
hereof, there are no other agreements entered into between the Bank and the
Pledgor with respect to any Designated Account or any funds credited thereto
(other than standard and customary documentation with respect to the
establishment and maintenance of such Designated Accounts). The Bank and the
Pledgor will not enter into any other agreement with respect to any Designated
Account unless the Administrative Agent shall have received prior written notice
thereof. The Bank and the Pledgor have not and will not enter into any other
agreement with respect to control of the Designated Accounts or purporting to
limit or condition the obligation of the Bank to comply with any orders or
instructions with respect to any Designated Account as set forth in Section 2
hereof without the prior written consent of the Administrative Agent acting in
its sole discretion. In the event of any conflict with respect to control over
any Designated Account between this Control Agreement (or any portion hereof)
and any other agreement now existing or hereafter entered into, the terms of
this Control Agreement shall prevail. No amendment or modification of this
Control Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by all the parties hereto.
Section 6. Certain Agreements.
(i) The Bank has furnished to the Administrative Agent the most recent
account statement issued by the Bank with respect to each of the Designated
Accounts and the cash balances held therein. Each such statement accurately
reflects the assets held in such Designated Account as of the date thereof.
(ii) The Administrative Agent has delivered to the Bank a list, signed
by an authorized representative, of the officers of the Administrative
Agent authorized to give approvals or instructions under this Control
Agreement (the "Authorized Representatives") and the Bank shall be entitled
to rely on communications from any such Authorized Representatives until
the earlier of the termination of this Control
Agreement in accordance with the terms hereof and notification by an
Authorized Representative of a change in such list at any time.
Section 7. Notice of Adverse Claims. Except for the claims and
interest of the Bank under Section 3, the Secured Parties and of the Pledgor in
the Designated Account(s), the Bank on the date hereof does not know of any
claim to, or security interest in, any Designated Account or in any funds
credited thereto and does not know of any claim that any person other than the
Administrative Agent has been given control (within the meaning of Section 8-106
of the UCC) of any Designated Account or any such funds. If the Bank becomes
aware that any person is asserting any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process or any claim of control) against any funds in any Designated
Account, the Bank will promptly notify the Administrative Agent and the Pledgor
thereof.
Section 8. Maintenance of Designated Accounts. In addition to the
obligations of the Bank in Section 2 hereof, the Bank agrees to maintain the
Designated Accounts as follows:
(i) Notice of Sole Control. If at any time the Administrative Agent
delivers to the Bank a notice of sole control in substantially the form set
forth in Exhibit A attached hereto (the "Notice of Sole Control") with
respect to any Designated Account, the Bank agrees that, after receipt of
such notice, it will take all instruction with respect to such Designated
Account solely from the Administrative Agent and cease taking instructions
from the Pledgor, including, without limitation, instructions for
distribution or transfer of any funds in any Designated Account.
(ii) Statements and Confirmations. The Bank will send copies of all
statements and other correspondence (excluding routine confirmations)
concerning any Designated Account simultaneously to the Pledgor and the
Administrative Agent at the address set forth in Section 10 hereof. The
Bank will promptly provide to the Administrative Agent, upon request
therefor from time to time and, in any event, as of the last business day
of each calendar month, a statement of the cash balance in each Designated
Account. The Bank shall not change the name or account number of any
Designated Account without the prior written consent of the Administrative
Agent.
Section 9. Successors; Assignment. The terms of this Control Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective corporate successors and permitted assignees.
Section 10. Notices. Any notice, request or other communication
required or permitted to be given under this Control Agreement shall be in
writing and deemed to have been properly given when delivered in person, or when
sent by telecopy or other electronic means and electronic confirmation of error
free receipt is received or two (2) days after being sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth below.
Pledgor: [ ]
[Address]
Attention:
Telecopy:
Telephone:
with copy to:
[ ]
[Address]
Attention:
Telecopy:
Telephone:
Bank: [ ]
[ ]
[ ]
Attention:
Telecopy:
Telephone:
Administrative
Agent: Guggenheim Corporate Funding, LLC
[
-----------------------------
-----------------------------]
Attention:
Telecopy:
Telephone:
Any party may change its address for notices in the manner set forth
above.
Section 11. Termination. The rights and powers granted herein to the
Administrative Agent are powers coupled with an interest and will be affected
neither by the bankruptcy of the Pledgor nor by the lapse of time. The
obligations of the Bank hereunder shall continue in effect until (i) the
security interests of the Secured Parties with respect to the Designated
Account(s) have been terminated and an Authorized Representative has notified
the Bank of such termination in writing or (ii) thirty days following the Bank's
delivery of written notice of such termination to the Administrative Agent and
Pledgor.
Section 12. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement,
other than those provisions held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
Section 13. Counterparts. This Control Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Control Agreement by signing
and delivering one or more counterparts.
[ ]
By:
------------------------------------
Name:
Title:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
------------------------------------
Name:
Title:
[ ]
as Bank
By:
------------------------------------
Name:
Title:
SCHEDULE 1
Designated Account(s)
EXHIBIT A
[Letterhead of Guggenheim Corporate Funding, LLC]
[Date]
[Bank]
[Address]
Attention:
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Re: Notice of Sole Control
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Ladies and Gentlemen:
As referenced in Section 8(i) of the Control Agreement Concerning
Designated Accounts dated as of [ ], by and among [ ],
us and you (the "Control Agreement") (a copy of which is attached) we hereby
give you notice of our sole control over the Designated Account(s) referred to
in the Control Agreement, having account number(s):
___________________________________ (the "Specified Designated Accounts"). You
are hereby instructed not to accept any direction or instructions with respect
to the Specified Designated Accounts or any funds credited thereto from any
person other than the undersigned, unless otherwise ordered by a court of
competent jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to [Pledgor]
Very truly yours,
Guggenheim Corporate Funding, LLC,
as Administrative Agent
By:
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Name:
Title:
cc: [Pledgor]
EXHIBIT 6
[Form of]
COPYRIGHT SECURITY AGREEMENT
Copyright Security Agreement, dated as of [ ], by QUEST
CHEROKEE, LLC and QUEST RESOURCE CORPORATION, a Nevada corporation
(collectively, the "Borrowers") and each Guarantor listed on Schedule II hereto
(collectively, the "Original Guarantors," together with the Borrowers, the
"Pledgors"), in favor of GUGGENHEIM CORPORATE FUNDING, LLC, in its capacity as
Administrative Agent pursuant to the Third Lien Term Loan Agreement (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Pledgors are party to a Security Agreement of even date
herewith (the "Security Agreement") in favor of the Administrative Agent
pursuant to which the Pledgors are required to execute and deliver this
Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent, for the benefit of the Secured Parties, to enter into the
Third Lien Term Loan Agreement, the Pledgors hereby agree with the
Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Security Agreement and used herein have the meaning given to them
in the Security Agreement.
SECTION 2. Grant of Security Interest in Copyright Collateral. Each
Pledgor hereby pledges and grants to the Administrative Agent for the benefit of
the Secured Parties a lien on and security interest in and to all of its right,
title and interest in, to and under all the following Pledged Collateral of such
Pledgor:
(a) Copyrights of such Pledgor listed on Schedule I attached hereto;
and
(b) all Proceeds of any and all of the foregoing (other than Excluded
Property).
SECTION 3. Security Agreement. The security interest granted pursuant
to this Copyright Security Agreement is granted in conjunction with the security
interest granted to the Administrative Agent pursuant to the Security Agreement
and Pledgors hereby acknowledge and affirm that the rights and remedies of the
Administrative Agent with respect to the security
interest in the Copyrights made and granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein. In the event that any provision
of this Copyright Security Agreement is deemed to conflict with the Security
Agreement, the provisions of the Security Agreement shall control unless the
Administrative Agent shall otherwise determine.
SECTION 4. Termination. Upon the full performance of the Indebtedness,
the Administrative Agent shall execute, acknowledge, and deliver to each Pledgor
an instrument in writing in recordable form releasing the collateral pledge,
grant, assignment, lien and security interest in the Copyrights under this
Copyright Security Agreement.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized officer as of
the date first set forth above.
Very truly yours,
QUEST CHEROKEE, LLC
By:
-------------------------------------
Name:
Title:
QUEST RESOURCE CORPORATION
By:
-------------------------------------
Name:
Title:
[ORIGINAL GUARANTORS]1
By:
-------------------------------------
Name:
Title:
---------------------------
1 This document needs only to be executed by any Guarantor which owns a pledged
Copyright.
Accepted and Agreed:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
------------------------------
Name:
Title:
SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS
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Copyright Registrations:
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REGISTRATION
OWNER NUMBER TITLE
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Copyright Applications:
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OWNER TITLE
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SCHEDULE II
to
COPYRIGHT SECURITY AGREEMENT
ORIGINAL GUARANTORS
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NAME ADDRESS
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EXHIBIT 7
[Form of]
PATENT SECURITY AGREEMENT
Patent Security Agreement, dated as of [ ], by QUEST
CHEROKEE, LLC and QUEST RESOURCE CORPORATION, a Nevada corporation
(collectively, the "Borrowers") and each Guarantor listed on Schedule II hereto
(collectively, the "Original Guarantors," and together with the Borrowers, the
"Pledgors"), in favor of GUGGENHEIM CORPORATE FUNDING, LLC, in its capacity as
Administrative Agent pursuant to the Third Lien Term Loan Agreement (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
--------------------
WHEREAS, Pledgors are party to a Security Agreement of even date
herewith (the "Security Agreement") in favor of the Administrative Agent
pursuant to which the Pledgors are required to execute and deliver this Patent
Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent, for the benefit of the Secured Parties, to enter into the
Third Lien Term Loan Agreement, the Pledgors hereby agree with the
Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Security Agreement and used herein have the meaning given to them
in the Security Agreement.
SECTION 2. Grant of Security Interest in Patent Collateral. Each
Pledgor hereby pledges and grants to the Administrative Agent for the benefit of
the Secured Parties a lien on and security interest in and to all of its right,
title and interest in, to and under all the following Pledged Collateral of such
Pledgor:
(a) Patents of such Pledgor listed on Schedule I attached hereto; and
(b) all Proceeds of any and all of the foregoing (other than Excluded
Property).
SECTION 3. Security Agreement. The security interest granted pursuant
to this Patent Security Agreement is granted in conjunction with the security
interest granted to the Administrative Agent pursuant to the Security Agreement
and Pledgors hereby acknowledge and affirm that the rights and remedies of the
Administrative Agent with respect to the security interest in the Patents made
and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein. In the event that any provision of this
Patent Security Agreement is deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall control unless the Administrative
Agent shall otherwise determine.
SECTION 4. Termination. Upon the full performance of the Indebtedness,
the Administrative Agent shall execute, acknowledge, and deliver to each Pledgor
an instrument in writing in recordable form releasing the collateral pledge,
grant, assignment, lien and security interest in the Patents under this Patent
Security Agreement.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Patent Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
Very truly yours,
QUEST CHEROKEE, LLC
By:
--------------------------------------
Name:
Title:
QUEST RESOURCE CORPORATION
By:
--------------------------------------
Name:
Title:
[ORIGINAL GUARANTORS]2
By:
--------------------------------------
Name:
Title:
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2 This document needs only to be executed by any Guarantor which owns a pledged
Patent.
Accepted and Agreed:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
------------------------------------
Name:
Title:
SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS AND PATENT APPLICATIONS
--------------------------------------------
Patent Registrations:
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REGISTRATION
OWNER NUMBER NAME
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Patent Applications:
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OWNER APPLICATION
NUMBER NAME
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SCHEDULE II
to
PATENT SECURITY AGREEMENT
ORIGINAL GUARANTORS
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NAME ADDRESS
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EXHIBIT 8
[Form of]
TRADEMARK SECURITY AGREEMENT
Trademark Security Agreement, dated as of [ ], by QUEST
CHEROKEE, LLC and QUEST RESOURCE CORPORATION, a Nevada corporation
(collectively, the "Borrowers")and each Guarantor listed on Schedule II hereto
(collectively, the "Original Guarantors," together with the Borrowers, the
"Pledgors"), in favor of GUGGENHEIM CORPORATE FUNDING, LLC, in its capacity as
Administrative Agent pursuant to the Third Lien Term Loan Agreement (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
--------------------
WHEREAS, Pledgors are party to a Security Agreement of even date
herewith (the "Security Agreement") in favor of the Administrative Agent
pursuant to which the Pledgors are required to execute and deliver this
Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent, for the benefit of the Secured Parties, to enter into the
Third Lien Term Loan Agreement, the Pledgors hereby agree with the
Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Security Agreement and used herein have the meaning given to them
in the Security Agreement.
SECTION 2. Grant of Security Interest in Trademark Collateral. Each
Pledgor hereby pledges and grants to the Administrative Agent for the benefit of
the Secured Parties a lien on and security interest in and to all of its right,
title and interest in, to and under all the following Pledged Collateral of such
Pledgor:
(a) Trademarks of such Pledgor listed on Schedule I attached hereto;
(b) all Goodwill associated with such Trademarks; and
(c) all Proceeds of any and all of the foregoing (other than Excluded
Property).
SECTION 3. Security Agreement. The security interest granted pursuant
to this Trademark Security Agreement is granted in conjunction with the security
interest granted to the Administrative Agent pursuant to the Security Agreement
and Pledgors hereby acknowledge and affirm that the rights and remedies of the
Administrative Agent with respect to the security interest in the Trademarks
made and granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which are incorporated by reference herein as if fully
set
forth herein. In the event that any provision of this Trademark Security
Agreement is deemed to conflict with the Security Agreement, the provisions of
the Security Agreement shall control unless the Administrative Agent shall
otherwise determine.
SECTION 4. Termination. Upon the full performance of the Indebtedness,
the Administrative Agent shall execute, acknowledge, and deliver to each Pledgor
an instrument in writing in recordable form releasing the collateral pledge,
grant, assignment, lien and security interest in the Trademarks under this
Trademark Security Agreement.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
Very truly yours,
QUEST CHEROKEE, LLC
By:
------------------------------------
Name:
Title:
QUEST RESOURCE CORPORATION
By:
------------------------------------
Name:
Title:
[ORIGINAL GUARANTORS]3
By:
------------------------------------
Name:
Title:
Accepted and Agreed:
GUGGENHEIM CORPORATE FUNDING, LLC,
as Administrative Agent
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
---------------------------
3 This document needs only to be executed by any Guarantor which owns a pledged
Trademark.
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS
--------------------------------------------------
Trademark Registrations:
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REGISTRATION
OWNER NUMBER TRADEMARK
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Trademark Applications:
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OWNER APPLICATION
NUMBER TRADEMARK
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SCHEDULE II
to
TRADEMARK SECURITY AGREEMENT
ORIGINAL GUARANTORS
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EXHIBIT 9
FORM OF NOTICE TO BAILEE OF SECURITY INTEREST IN INVENTORY
CERTIFIED MAIL -- RETURN RECEIPT REQUESTED
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[ ], 200[ ]
TO: [Bailee's Name]
[Bailee's Address]
Re: [Borrowers]
Ladies and Gentlemen:
In connection with that certain Security Agreement, dated as of June
9, 2006 (the "Security Agreement"), made by QUEST CHEROKEE, LLC, QUEST RESOURCE
CORPORATION, the Guarantors party thereto and Guggenheim Corporate Funding, LLC
("Guggenheim") as Administrative Agent, we have granted to Guggenheim a security
interest in substantially all of our personal property, including our inventory.
This letter constitutes notice to you, and your signature below will
constitute your acknowledgment, of Guggenheim's continuing third priority
security interest in all goods with respect to which you are acting as bailee.
Until you are notified in writing to the contrary by Guggenheim, however, you
may continue to accept instructions from us regarding the delivery of goods
stored by you.
Your acknowledgment also constitutes a waiver and release, for
Guggenheim's benefit, of any and all claims, liens, including bailee's liens,
and demands of every kind which you have or may later have against such property
(including any right to include such property in any secured financing to which
you may become party).
In order to complete our records, kindly have a duplicate of this
letter signed by an officer of your company and return same to us at your
earliest convenience.
Receipt acknowledged, confirmed Very truly yours,
and approved:
[BAILEE] [APPLICABLE PLEDGOR]
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
cc: Guggenheim Corporate Funding, LLC
