AMENDED AND RESTATED COLLATERAL AGENCY AND SECURITY AGREEMENT
AMENDED
AND RESTATED COLLATERAL AGENCY AND SECURITY AGREEMENT
AMENDED AND RESTATED COLLATERAL
AGENCY AND SECURITY AGREEMENT, dated as of April 24, 2008 (this “Agreement”) made by Firepond,
Inc., a Delaware corporation (the “Company”), in favor of THE
BANK OF NEW YORK, a New York banking corporation, in its capacity as collateral
agent for the Holders (as defined below) (in such capacity and together with its
successors in such capacity, the “Collateral
Agent”).
W I T N E S S E T
H:
WHEREAS,
the Company and The Bank of New York, as Trustee (the “Trustee”) are parties to an
Indenture, dated as of January 24, 2007 (as the same was amended and modified by
Supplemental Indenture No. 1 dated August 1, 2007 and Supplemental
Indenture No. 2 dated February 5, 2008, the “Indenture”), providing,
subject to the terms and conditions thereof, for the issuance by the Company of
certain “Notes” (as defined in the Indenture) (as such Notes may be amended,
restated, replaced, or otherwise modified from time to time in accordance with
the terms thereof, collectively, the “Existing Notes”);
WHEREAS,
the Company is entering into (i) the Amended and Restated Senior Secured
Convertible Notes (the “Amended
Cap Notes”) and (ii) the Amendment and Exchange Agreements, dated as
of the date hereof with each Investor (as defined therein) (each as amended,
restated or otherwise modified from time to time, an “Exchange Agreement” or
collectively the “Exchange
Agreements”), pursuant to which, among other things, the Company shall
exchange such Investor’s Existing Notes for the “Amended Cap Notes” (as such
Amended Cap Notes may be amended, restated, replaced or otherwise modified from
time to time in accordance with the terms thereof, collectively, the “Notes”) and the Indenture
shall be terminated;
WHEREAS,
contemporaneously with the consummation of the transactions contemplated by the
Indenture, the Company entered into a Security Agreement, dated as of January
24, 2007, in favor of the Collateral Agent (the “Existing Security Agreement”);
and
WHEREAS,
it is a condition precedent to the Investor exchanging the Existing Notes for
the Amended Cap Notes pursuant to the Exchange Agreement that the Company shall
amend and restate the Existing Security Agreement to secure all of the Company’s
obligations under the Notes.
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Investors to enter into the Exchange Agreements, the Company
agrees with the Collateral Agent, for the benefit of the Investors and the
Holders, as follows:
SECTION
1. Definitions.
(a) All terms
used in this Agreement and the recitals hereto which are defined in the Exchange
Agreements, the Notes or in Articles 8 or 9 of the Uniform Commercial Code
(the “Code”) as in effect from time to time in the State of New York, and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein; provided that terms used herein which are defined in the Code as
in effect in the State of New York on the date hereof shall continue to have the
same meaning notwithstanding any replacement or amendment of such
statute.
(b) The
following terms shall have the respective meanings provided for in the Code:
“Accounts”, “Cash Proceeds”, “Chattel Paper”, “Commercial Tort Claim”,
“Commodity Account”, “Commodity Contracts”, “Deposit Account”, “Documents”,
“Equipment”, “Fixtures”, “General Intangibles”, “Goods”, “Instruments”,
“Inventory”, “Investment Property”, “Letter-of-Credit Rights”, “Noncash
Proceeds”, “Payment Intangibles”, “Proceeds”, “Promissory Notes”, “Security”,
“Record”, “Security Account”, “Software”, and “Supporting
Obligations”.
(c) As used
in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and
plural forms of such terms:
“Cash Interest Prepayment
Amount” means the amount of interest prepaid on the Notes pursuant to the
Exchange Agreements.
“Copyright Licenses” means all
licenses, contracts or other agreements, whether written or oral, naming the
Company as licensee or licensor and providing for the grant of any right to use
or sell any works covered by any copyright (including, without limitation, all
Copyright Licenses set forth in Schedule II
hereto).
“Copyrights” means all domestic
and foreign copyrights, whether registered or not, including, without
limitation, all copyright rights throughout the universe (whether now or
hereafter arising) in any and all media (whether now or hereafter developed), in
and to all original works of authorship fixed in any tangible medium of
expression, acquired or used by the Company, all applications, registrations and
recordings thereof (including, without limitation, applications, registrations
and recordings in the United States Copyright Office or in any similar office or
agency of the United States or any other country or any political subdivision
thereof), and all reissues, divisions, continuations, continuations in part and
extensions or renewals thereof.
“CWC” means CWC Holdings, LLC,
a Texas limited liability company.
“Event of Default” shall have
the meaning set forth in the Notes.
“Holders” means the holders of
the Notes.
“Insolvency Proceeding” means
any proceeding commenced by or against any Person under any provision of the
Bankruptcy Code (Chapter 11 of Title 11 of the United States Code) or
under any other bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, or extensions generally
with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief.
“Intellectual Property” means
the Copyrights, Trademarks and Patents.
“Licenses” means the Copyright
Licenses, the Trademark Licenses and the Patent Licenses.
“Lien” means any mortgage, deed
of trust, pledge, lien (statutory or otherwise), security interest, charge or
other encumbrance or security or preferential arrangement of any nature,
including, without limitation, any conditional sale or title retention
arrangement, any capitalized lease and any assignment, deposit arrangement or
financing lease intended as, or having the effect of, security.
“Patent Licenses” means all
licenses, contracts or other agreements, whether written or oral, naming the
Company as licensee or licensor and providing for the grant of any right to
manufacture, use or sell any invention covered by any Patent (including, without
limitation, all Patent Licenses set forth in Schedule II
hereto).
“Patents” means all domestic
and foreign letters patent, design patents, utility patents, industrial designs,
inventions, trade secrets, ideas, concepts, methods, techniques, processes,
proprietary information, technology, know-how, formulae, rights of publicity and
other general intangibles of like nature, now existing or hereafter acquired
(including, without limitation, all domestic and foreign letters patent, design
patents, utility patents, industrial designs, inventions, trade secrets, ideas,
concepts, methods, techniques, processes, proprietary information, technology,
know-how and formulae described in Schedule II
hereto), all applications, registrations and recordings thereof (including,
without limitation, applications, registrations and recordings in the United
States Patent and Trademark Office, or in any similar office or agency of the
United States or any other country or any political subdivision thereof), and
all reissues, divisions, continuations, continuations in part and extensions or
renewals thereof.
“Permitted Liens” means
(i) Liens for taxes not yet due and payable; (ii) unrecorded workmen’s
and servicemen’s liens in the ordinary course of business; (iii) Liens
securing purchase money security obligations not in excess of $500,000 in the
aggregate; (iv) Liens held by the Collateral Agent to secure the
Obligations; or (v) Liens in support of the Permitted Indebtedness (as
defined in the Notes).
“Person” means an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and a government or any
department or agency thereof.
“Required Holders” means the
holders of the Notes representing at least a majority of the aggregate principal
amount of the Notes then outstanding.
“Special Purpose Acquisition
Subsidiary” means any Subsidiary that has been acquired by the Company,
or any Subsidiary of the Company that is formed for the purpose of making an
acquisition.
“Subsidiary” means, in respect
of any Person, (a) any corporation or other business entity of which 50% or
more of the total voting power of shares of capital stock or other equity
interest entitled (without regard to the occurrence of any contingence) to vote
in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such Person or one or more of the
subsidiaries of that Person (or a combination thereof) and (b) any
partnership (i) the sole partner or managing general partner of which is
such Person or a subsidiary of such Person or (ii) the only general
partners of which are such Person or of one or more subsidiaries of such Person
(or any combination thereof); provided, however, that in no
event shall CWC be deemed a Subsidiary of the Company.
“Trademark Licenses” means all
licenses, contracts or other agreements, whether written or oral, naming the
Company as licensor or licensee and providing for the grant of any right
concerning any Trademark, together with any goodwill connected with and
symbolized by any such trademark licenses, contracts or agreements and the right
to prepare for sale or lease and sell or lease any and all Inventory now or
hereafter owned by the Company and now or hereafter covered by such licenses
(including, without limitation, all Trademark Licenses described in Schedule II
hereto).
“Trademarks” means all domestic
and foreign trademarks, service marks, collective marks, certification marks,
trade names, business names, d/b/a’s, Internet domain names, trade styles,
designs, logos and other source or business identifiers and all general
intangibles of like nature, now or hereafter owned, adopted, acquired or used by
the Company (including, without limitation, all domestic and foreign trademarks,
service marks, collective marks, certification marks, trade names, business
names, d/b/a’s, Internet domain names, trade styles, designs, logos and other
source or business identifiers described in Schedule II
hereto), all applications, registrations and recordings thereof (including,
without limitation, applications, registrations and recordings in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof), and all reissues, extensions or renewals thereof, together
with all goodwill of the business symbolized by such marks and all customer
lists, formulae and other Records of the Company relating to the distribution of
products and services in connection with which any of such marks are
used.
“Transaction Documents” shall
have the meaning provided to such term in the Exchange Agreement.
SECTION
2. Grant of Security
Interest.
As
collateral security for all of the “Obligations” (as defined in Section 3
hereof), the Company hereby pledges and assigns to the Collateral Agent for the
benefit of the Holders, and grants to the Collateral Agent for the benefit of
the Holders a continuing security interest in, all personal property of the
Company, wherever located and whether now or hereafter existing and whether now
owned or hereafter acquired, of every kind and description, tangible or
intangible (collectively, the “Collateral”), including,
without limitation, the following:
(a) all
Accounts, except as otherwise provided for in this Agreement;
(b) all
equity interests in Subsidiaries of the Company after the date
hereof;
(c) all
Chattel Paper (whether tangible or electronic);
(d) the
Commercial Tort Claims specified on Schedule VI
hereto;
(e) all
Deposit Accounts, all cash, and all other property from time to time deposited
therein and the monies and property in the possession or under the control of
the Collateral Agent or any Holder or any affiliate, representative, agent or
correspondent of the Collateral Agent or Holder;
(f) all
Documents;
(g) all
Equipment;
(h) all
Fixtures;
(i) all
General Intangibles (including, without limitation, all Payment
Intangibles);
(j) all
Goods;
(k) all
Instruments (including, without limitation, Promissory Notes and each
certificated Security);
(l) all
Inventory;
(m) all
Investment Property;
(n) all
Copyrights, Patents and Trademarks, and all Licenses;
(o) all
Letter-of-Credit Rights;
(p) all
Supporting Obligations;
(q) all other
tangible and intangible personal property of the Company (whether or not subject
to the Code), including, without limitation, all bank and other accounts and all
cash and all investments therein, all proceeds, products, offspring, accessions,
rents, profits, income, benefits, substitutions and replacements of and to any
of the property of the Company described in the preceding clauses of this Section 2
(including, without limitation, any proceeds of insurance thereon and all causes
of action, claims and warranties now or hereafter held by the Company in respect
of any of the items listed above), and all books, correspondence, files and
other Records, including, without limitation, all tapes, desks, cards, Software,
data and computer programs in the possession or under the control of the Company
or any other Person from time to time acting for the Company that at any time
evidence or contain information relating to any of the property described in the
preceding clauses of this Section 2 or are
otherwise necessary or helpful in the collection or realization thereof;
and
(r) all
Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any
and all of the foregoing Collateral;
in each
case howsoever the Company’s interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
Notwithstanding
the foregoing, the parties agree that “Collateral” shall exclude the following:
(i) any cash amounts paid to the Collateral Agent on the date hereof,
(ii) any Cash Interest Prepayment Amount paid on the date hereof to any of
the investors signatory to the Exchange Agreements (the “Investors”) and (iii) the
Company’s interest in CWC.
SECTION
3. Security for
Obligations.
The
security interest created hereby in the Collateral constitutes continuing
collateral security for all of the following obligations, whether now existing
or hereafter incurred (collectively, the “Obligations”):
(a) the
payment by the Company, as and when due and payable (by scheduled maturity,
required prepayment, acceleration, demand or otherwise), of all amounts from
time to time owing by it in respect of the Notes and the other Transaction
Documents, and
(b) the due
performance and observance by the Company of all of its other obligations from
time to time existing in respect of any of the Transaction Documents, including
without limitation, with respect to any conversion or redemption rights of the
Holders under the Notes, for so long as the Notes are outstanding.
SECTION
4. Representations and
Warranties.
The
Company represents and warrants as follows:
(a) Schedule I
hereto sets forth (i) the exact legal name of the Company, and
(ii) the organizational identification number of the Company or states that
no such organizational identification number exists.
(b) There is
no pending or notice threatening any action, suit, proceeding or claim affecting
the Company before any governmental authority or any arbitrator, or any order,
judgment or award by any governmental authority or arbitrator, that may
adversely affect the grant by the Company, or the perfection, of the security
interest purported to be created hereby in the Collateral, or the exercise by
the Collateral Agent of any of its rights or remedies hereunder.
(c) All
Federal, state and local tax returns and other reports required by applicable
law to be filed by the Company have been filed, or extensions have been
obtained, and all taxes, assessments and other governmental charges imposed upon
the Company or any property of the Company (including, without limitation, all
federal income and social security taxes on employees’ wages) and which have
become due and payable on or prior to the date hereof have been paid, except to
the extent contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or Lien resulting from the non-payment thereof
and with respect to which adequate reserves have been set aside for the payment
thereof in accordance with generally accepted accounting principles consistently
applied (“GAAP”).
(d) All
Equipment, Fixtures, Goods and Inventory of the Company now existing are, and
all Equipment, Fixtures, Goods and Inventory of the Company hereafter existing
will be, located and/or based at the addresses specified therefor in Schedule III
hereto, except that the Company will give the Collateral Agent not less than
30 days’ prior written notice of any change of the location of any such
Collateral, other than to locations set forth on Schedule III and
with respect to which the Company, on behalf of the Collateral Agent, has filed
financing statements and otherwise fully perfected the Collateral Agent’s Liens
thereon. The Company’s chief place of business and chief executive office, the
place where the Company keeps its Records concerning Accounts and all originals
of all Chattel Paper are located at the addresses specified therefor in Schedule III
hereto. None of the Accounts is evidenced by Promissory Notes or other
Instruments. Set forth in Schedule IV
hereto is a complete and accurate list, as of the date of this Agreement, of
(i) each Promissory Note and other Instrument owned by the Company and
(ii) each Deposit Account, Securities Account and Commodities Account of
the Company, together with the name and address of each institution at which
each such Account is maintained, the account number for each such Account and a
description of the purpose of each such Account. Set forth in Schedule I
hereto is a complete and correct list of each trade name used by the Company and
the name of, and each trade name used by, each person from which the Company has
acquired any substantial part of the Collateral.
(e) The
Company has delivered to the Collateral Agent complete and correct copies of
each License described in Schedule II
hereto, including all schedules and exhibits thereto, which represents all of
the Licenses existing on the date of this Agreement. Each such License sets
forth the entire agreement and understanding of the parties thereto relating to
the subject matter thereof, and there are no other agreements, arrangements or
understandings, written or oral, relating to the matters covered thereby or the
rights of the Company or any of its affiliates in respect thereof. Each material
License now existing is, and any material License entered into in the future
will be, the legal, valid and binding obligation of the parties thereto,
enforceable against such parties in accordance with its terms. No default under
any material License by any such party has occurred, nor does any defense,
offset, deduction or counterclaim exist thereunder in favor of any such
party.
(f) The
Company owns and controls, or otherwise possesses adequate rights to use, all
Trademarks, Patents and Copyrights, which are the only trademarks, patents,
copyrights, inventions, trade secrets, proprietary information and technology,
know-how, formulae, rights of publicity necessary to conduct its business in
substantially the same manner as conducted as of the date hereof. Schedule II
hereto sets forth a true and complete list of all registered Copyrights, issued
Patents, Trademarks, and Licenses actually owned or used by the Company as of
the date hereof. To the best knowledge of the Company except as otherwise
disclosed on Schedule II
hereto, all such Intellectual Property of the Company is subsisting and in full
force and effect, has not been adjudged invalid or unenforceable, is valid and
enforceable and has not been abandoned in whole or in part. Except as set forth
in Schedule II, no
such Intellectual Property is the subject of any licensing or franchising
agreement. The Company has no knowledge of any conflict with the rights of
others to any Intellectual Property and, to the best knowledge of the Company,
the Company is not now infringing or in conflict with any such rights of others
in any material respect, and to the best knowledge of the Company, no other
Person is now infringing or in conflict in any material respect with any such
properties, assets and rights owned or used by the Company. The Company has not
received any notice that it is violating or has violated the trademarks,
patents, copyrights, inventions, trade secrets, proprietary information and
technology, know-how, formulae, rights of publicity or other intellectual
property rights of any third party.
(g) The
Company is the sole and exclusive owner of, or otherwise has and will have
adequate rights in, the Collateral free and clear of any Liens, except for
Permitted Liens on any Collateral. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording or filing office except such as may have been filed in
favor of the Collateral Agent relating to this Agreement or with respect to
Permitted Liens.
(h) The
exercise by the Collateral Agent of any of its rights and remedies hereunder
will not contravene any law or any contractual restriction binding on or
otherwise affecting the Company or any of its properties and will not result in
or require the creation of any Lien, upon or with respect to any of its
properties.
(i) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other regulatory body, or any other Person, is
required for (i) the grant by the Company, or the perfection, of the
security interest purported to be created hereby in the Collateral, or
(ii) the exercise by the Collateral Agent of any of its rights and remedies
hereunder, except (A) for the filing under the Uniform Commercial Code as
in effect in the applicable jurisdiction of the financing statements, all of
which financing statements, have been duly filed and are in full force and
effect, (B) with respect to the perfection of the security interest created
hereby in the Intellectual Property, for the recording of the appropriate
Assignment for Security, substantially in the form of Exhibit A
hereto, as applicable, in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, and (C) with respect to the
perfection of the security interest created hereby in foreign Intellectual
Property and Licenses, for registrations and filings in jurisdictions located
outside of the United States and covering rights in such jurisdictions relating
to the Intellectual Property and Licenses.
(j) This
Agreement creates in favor of the Collateral Agent a legal, valid and
enforceable security interest in the Collateral, as security for the
Obligations.
(k) As of the
date hereof, the Company does not hold any Commercial Tort Claims nor is aware
of any such pending claims, except for such claims described in Schedule VI.
SECTION
5. Covenants as to the
Collateral»
. So long
as any of the Obligations shall remain outstanding, unless the Collateral Agent
shall otherwise consent in writing, after the approval of the Required
Holders:
(a) Further
Assurances. The Company will at its expense, at any time and
from time to time, promptly execute and deliver all further instruments and
documents and take all further action as is necessary or otherwise as the
Collateral Agent may reasonably request (such request to be made at the written
direction of the Required Holders) in order to: (i) perfect and protect the
security interest purported to be created hereby; (ii) enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder in
respect of the Collateral; or (iii) otherwise effect the purposes of this
Agreement, including, without limitation: (A) marking conspicuously all
Chattel Paper and each License and each of its Records pertaining to the
Collateral with a legend, indicating that such Chattel Paper, License or
Collateral is subject to the security interest created hereby,
(B) delivering and pledging to the Collateral Agent hereunder each
Promissory Note, Security, Chattel Paper or other Instrument, now or hereafter
owned by the Company, duly endorsed and accompanied by executed instruments of
transfer or assignment, (C) executing and filing (to the extent, if any,
that the Company’s signature is required thereon) or authenticating the filing
of, such financing or continuation statements, or amendments thereto, as may be
necessary or desirable or that the Collateral Agent may request in order to
perfect and preserve the security interest purported to be created hereby,
(D) furnishing to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral in each case as the Collateral Agent
may reasonably request, all in reasonable detail, (E) if any Collateral
shall be in the possession of a third party, notifying such Person of the
Collateral Agent’s security interest created hereby and obtaining a written
acknowledgment from such Person that such Person holds possession of the
Collateral for the benefit of the Collateral Agent, (F) if at any time
after the date hereof, the Company acquires or holds any Commercial Tort Claim,
promptly notifying the Collateral Agent in a writing signed by the Company
setting forth a brief description of such Commercial Tort Claim and granting to
the Collateral Agent a security interest therein and in the proceeds thereof,
which writing shall incorporate the provisions hereof, (G) upon the
acquisition after the date hereof by the Company of any motor vehicle or other
Equipment subject to a certificate of title or ownership (other than a motor
vehicle or Equipment that is subject to a purchase money security interest),
causing the Collateral Agent to be listed as the lienholder on such certificate
of title or ownership and delivering evidence of the same to the Collateral
Agent; and (H) taking all actions required by any earlier versions of the
Code or by other law, as applicable, in any relevant Code jurisdiction, or by
other law as applicable in any foreign jurisdiction.
(b) Location of Equipment and
Inventory. The Company will keep the Equipment and Inventory at the
locations specified therefor in Schedule III
hereof or, at such other locations in the United States; provided that the
Company shall provide the Collateral Agent with a new Schedule V
hereto indicating each new location of the Equipment and Inventory within
five (5) business days of any such change in location.
(c) Condition of
Equipment. The Company will maintain or cause the Equipment
(necessary or useful to its business) to be maintained and preserved in good
condition, repair and working order, ordinary wear and tear and insured casualty
excepted, and will forthwith, or in the case of any loss or damage to any
Equipment of the Company within a commercially reasonable time after the
occurrence thereof, make or cause to be made all repairs, replacements and other
improvements in connection therewith which are necessary or desirable,
consistent with past practice, or which the Collateral Agent may request to such
end. The Company will promptly furnish to the Collateral Agent a written
statement describing in reasonable detail any such loss or damage in excess of
$150,000 to any Equipment.
(d) Taxes,
Etc. The Company agrees to pay promptly when due all property
and other taxes, assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and supplies) against, the
Equipment and Inventory, except to the extent the validity thereof is being
contested in good faith by proper proceedings which stay the imposition of any
penalty, fine or Lien resulting from the non-payment thereof and with respect to
which adequate reserves in accordance with GAAP have been set aside for the
payment thereof.
(e) Insurance.
(i) The
Company will, at its own expense, maintain insurance (including, without
limitation, commercial general liability and property insurance) with respect to
the Equipment and Inventory in such amounts, against such risks, in such form
and with responsible and reputable insurance companies or associations as is
required by any governmental authority having jurisdiction with respect thereto
or as is carried generally in accordance with sound business practice by
companies in similar businesses similarly situated. Each such policy for
liability insurance shall provide for all losses to be paid on behalf of the
Collateral Agent and the Company as their respective interests may appear, and
each policy for property damage insurance shall provide for all losses to be
adjusted with, and paid directly to, the Collateral Agent. Each such policy
shall in addition (A) name the Collateral Agent as an additional insured
party thereunder (without any representation or warranty by or obligation upon
the Collateral Agent) as its interests may appear, (B) contain an agreement
by the insurer that any loss thereunder shall be payable to the Collateral Agent
on its own account notwithstanding any action, inaction or breach of
representation or warranty by the Company, (C) provide that there shall be
no recourse against the Collateral Agent for payment of premiums or other
amounts with respect thereto, and (D) provide that at least 30 days’
prior written notice of cancellation, lapse, expiration or other adverse change
shall be given to the Collateral Agent by the insurer. The Company will, if so
requested by the Collateral Agent, deliver to the Collateral Agent original or
duplicate policies of such insurance and, as often as the Collateral Agent may
reasonably request, a report of a reputable insurance broker with respect to
such insurance. The Company will also, at the request of the Collateral Agent,
following a written request to the Collateral Agent by the Required Holders,
execute and deliver instruments of assignment of such insurance policies and
cause the respective insurers to acknowledge notice of such
assignment.
(ii) Reimbursement
under any liability insurance maintained by the Company pursuant to this Section 5(e) may
be paid directly to the Person who shall have incurred liability covered by such
insurance. In the case of any loss involving damage to Equipment or Inventory,
any proceeds of insurance maintained by the Company pursuant to this Section 5(e)
shall be paid to the Collateral Agent (except as to which paragraph (iii)
of this Section 5(e) is
not applicable), the Company will make or cause to be made the necessary repairs
to or replacements of such Equipment or Inventory, and any proceeds of insurance
maintained by the Company pursuant to this Section 5(e)
shall be paid by the Collateral Agent to the Company, at the written request of
the Company, as reimbursement for the costs of such repairs or
replacements.
(iii) All
insurance payments in respect of such Equipment or Inventory shall be paid to
the Collateral Agent and applied as specified in Section 7(b)
hereof.
(f) Provisions Concerning the
Accounts and the Licenses.
(i) The
Company will (A) give the Collateral Agent at least 30 days’ prior
written notice of any change in the Company’s name, identity or organizational
structure, (B) maintain its jurisdiction of incorporation as set forth in
Schedule I
hereto, (C) immediately notify the Collateral Agent, in writing, upon
obtaining an organizational identification number, if on the date hereof the
Company did not have such identification number, and (D) keep adequate
records concerning the Accounts and Chattel Paper and permit representatives of
the Collateral Agent during normal business hours on reasonable notice to the
Company, to inspect and make abstracts from such Records and Chattel
Paper.
(ii) The
Company will, except as otherwise provided in this subsection (f), continue
to collect, at its own expense, all amounts due or to become due under the
Accounts. In connection with such collections, the Company may (and, at the
Collateral Agent’s direction (such direction to be given at the written request
of the Required Holders), will) take such action as the Company or the
Collateral Agent may reasonably deem necessary or advisable to enforce
collection or performance of the Accounts; provided, however, that the
Collateral Agent shall have the right at any time, upon the occurrence and
during the continuance of an Event of Default, to notify the account debtors or
obligors under any Accounts of the assignment of such Accounts to the Collateral
Agent and to direct such account debtors or obligors to make payment of all
amounts due or to become due to the Company thereunder directly to the
Collateral Agent or its designated agent and, upon such notification and at the
expense of the Company and to the extent permitted by law, to enforce collection
of any such Accounts and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as the Company might have
done. After receipt by the Company of a notice from the Collateral Agent that an
Event of Default has occurred and that the Collateral Agent has notified,
intends to notify, or has enforced or intends to enforce the Company ‘s rights
against the account debtors or obligors under any Accounts as referred to in the
proviso to the immediately preceding sentence, (A) all amounts and proceeds
(including Instruments) received by the Company in respect of the Accounts shall
be received in trust for the benefit of the Collateral Agent hereunder, shall be
segregated from other funds of the Company and shall be forthwith paid over to
the Collateral Agent in the same form as so received (with any necessary
endorsement) to be held as cash collateral and applied as specified in Section 7(b)
hereof, and (B) the Company will not adjust, settle or compromise the
amount or payment of any Account or release wholly or partly any account debtor
or obligor thereof or allow any credit or discount thereon. In addition, upon
the occurrence and during the continuance of an Event of Default, the Collateral
Agent may and, at the written request of the Required Holders, shall direct any
or all of the banks and financial institutions with which the Company either
maintains a Deposit Account or a lockbox or deposits the proceeds of any
Accounts to send immediately to the Collateral Agent by wire transfer (to such
account as the Collateral Agent shall specify, or in such other manner as the
Collateral Agent shall direct) all or a portion of such securities, cash,
investments and other items held by such institution. Any such securities, cash,
investments and other items so received by the Collateral Agent shall (in the
sole and absolute discretion of the Collateral Agent) be held as additional
Collateral for the Obligations or distributed in accordance with Section 7
hereof.
(iii) Upon the
occurrence and during the continuance of any breach or default under any
material License referred to in Schedule II
hereto by any party thereto other than the Company, the Company will, promptly
after obtaining knowledge thereof, give the Collateral Agent written notice of
the nature and duration thereof, specifying what action, if any, it has taken
and proposes to take with respect thereto and thereafter will take reasonable
steps to protect and preserve its rights and remedies in respect of such breach
or default, or will obtain or acquire an appropriate substitute
License.
(iv) The
Company will, at its expense, promptly deliver to the Collateral Agent a copy of
each notice or other communication received by it by which any other party to
any material License referred to in Schedule II
hereto purports to exercise any of its rights or affect any of its obligations
thereunder, together with a copy of any reply by the Company
thereto.
(v) The
Company will exercise promptly and diligently each and every right which it may
have under each material License (other than any right of termination) and will
duly perform and observe in all respects all of its obligations under each
material License and will take all action reasonably necessary to maintain such
Licenses in full force and effect. The Company will not, without the prior
written consent of the Collateral Agent (to be given at the written direction of
the Required Holders), cancel, terminate, amend or otherwise modify in any
respect, or waive any provision of, any material License referred to in Schedule II
hereto.
(g) Transfers and Other
Liens.
(i) The
Company will not sell, assign (by operation of law or otherwise), lease,
license, exchange or otherwise transfer or dispose of any of the Collateral,
except (A) Inventory in the ordinary course of business, and
(B) worn-out or obsolete assets not necessary to the business.
(ii) The
Company will not create, suffer to exist or grant any Lien upon or with respect
to any Collateral other than a Permitted Lien.
(h) Intellectual
Property.
(i) If
applicable, the Company shall, upon the Collateral Agent’s written request,
following a request to the Collateral Agent by the Required Holders, duly
execute and deliver the applicable Assignment for Security in the form attached
hereto as Exhibit A. The
Company (either itself or through licensees) will, and will cause each licensee
thereof to, take all action necessary to maintain all of the Intellectual
Property in full force and effect, including, without limitation, using the
proper statutory notices and markings and using the Trademarks on each
applicable trademark class of goods in order to so maintain the Trademarks in
full force and free from any claim of abandonment for non-use, and the Company
will not (nor permit any licensee thereof to) do any act or knowingly omit to do
any act whereby any Intellectual Property may become invalidated; provided, however, that so long
as no Event of Default has occurred and is continuing, the Company shall not
have an obligation to use or to maintain any Intellectual Property (A) that
relates solely to any product or work, that has been, or is in the process of
being, discontinued, abandoned or terminated, (B) that is being replaced
with Intellectual Property substantially similar to the Intellectual Property
that may be abandoned or otherwise become invalid, so long as the failure to use
or maintain such Intellectual Property does not materially adversely affect the
validity of such replacement Intellectual Property and so long as such
replacement Intellectual Property is subject to the Lien created by this
Agreement or (C) that is substantially the same as another Intellectual
Property that is in full force, so long the failure to use or maintain such
Intellectual Property does not materially adversely affect the validity of such
replacement Intellectual Property and so long as such other Intellectual
Property is subject to the Lien and security interest created by this Agreement.
The Company will cause to be taken all necessary steps in any proceeding before
the United States Patent and Trademark Office and the United States Copyright
Office or any similar office or agency in any other country or political
subdivision thereof to maintain each registration of the Intellectual Property
(other than the Intellectual Property described in the proviso to the
immediately preceding sentence), including, without limitation, filing of
renewals, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings and payment of maintenance fees,
filing fees, taxes or other governmental fees. If any Intellectual Property
(other than Intellectual Property described in the proviso to the first sentence
of subsection (i) of this clause (h)) is infringed, misappropriated,
diluted or otherwise violated in any material respect by a third party, the
Company shall (x) upon learning of such infringement, misappropriation,
dilution or other violation, promptly notify the Collateral Agent, in writing,
and (y) to the extent the Company shall deem appropriate under the
circumstances, promptly xxx for infringement, misappropriation, dilution or
other violation, seek injunctive relief where appropriate and recover any and
all damages for such infringement, misappropriation, dilution or other
violation, or take such other actions as the Company shall deem appropriate
under the circumstances to protect such Intellectual Property. The Company shall
furnish to the Collateral Agent from time to time upon its request statements
and schedules further identifying and describing the Intellectual Property and
Licenses and such other reports in connection with the Intellectual Property and
Licenses as the Collateral Agent may reasonably request (such request to be made
at the written request of any Holder), all in reasonable detail and promptly
upon request of the Collateral Agent, following receipt by the Collateral Agent
of any such statements, schedules or reports, the Company shall modify this
Agreement by amending Schedule II
hereto, as the case may be, to include any Intellectual Property and License, as
the case may be, which becomes part of the Collateral under this Agreement and
shall execute and authenticate such documents and do such acts as shall be
necessary to subject such Intellectual Property and Licenses to the Lien and
security interest created by this Agreement. Notwithstanding anything herein to
the contrary, upon the occurrence and during the continuance of an Event of
Default, the Company may not abandon or otherwise permit any Intellectual
Property to become invalid without the prior written consent of the Collateral
Agent (to be given at the written direction of the Required Holders), and if any
Intellectual Property is infringed, misappropriated, diluted or otherwise
violated in any material respect by a third party, the Company will take such
action as appropriate under the circumstances to protect such Intellectual
Property.
(ii) In no
event shall the Company, either itself or through any agent, employee, licensee
or designee, file an application for the registration of any Trademark or
Copyright or the issuance of any Patent with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, or in any
similar office or agency of the United States or any country or any political
subdivision thereof unless it gives the Collateral Agent prior written notice
thereof. Upon request of the Collateral Agent, the Company shall execute,
authenticate and deliver any and all assignments, agreements, instruments,
documents and papers as the Collateral Agent may reasonably request, following a
request to the Collateral Agent by the Required Holders, to evidence the
Collateral Agent’s security interest hereunder in such Intellectual Property and
the General Intangibles of the Company relating thereto or represented thereby,
and the Company hereby appoints the Collateral Agent its attorney-in-fact to
execute and/or authenticate and file all such writings for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed, and
such power (being coupled with an interest) shall be irrevocable until the
indefeasible payment in full in cash of all of the Obligations in full and the
termination of each of the Transaction Documents.
(i) Deposit, Commodities and
Securities Accounts. Upon the Collateral Agent’s written request,
following a request to the Collateral Agent by the Required Holders, the Company
shall cause each bank and other financial institution with an account referred
to in Schedule IV
hereto to execute and deliver to the Collateral Agent a control agreement, in
form and substance reasonably satisfactory to the Collateral Agent, duly
executed by the Company and such bank or financial institution, or enter into
other arrangements, pursuant to which such institution shall irrevocably agree,
inter alia, that
(i) it will comply at any time with the instructions originated by the
Collateral Agent to such bank or financial institution directing the disposition
of cash, Commodity Contracts, Securities, Investment Property and other items
from time to time credited to such account, without further consent of the
Company, which instructions the Collateral Agent will not give to such bank or
other financial institution in the absence of a continuing Event of Default,
(ii) all cash, Commodity Contracts, securities, Investment Property and
other items of the Company deposited with such institution shall be subject to a
perfected, first priority security interest in favor of the Collateral Agent,
(iii) any right of set off, banker’s Lien or other similar Lien, security
interest or encumbrance shall be fully waived as against the Collateral Agent,
and (iv) upon receipt of written notice from the Collateral Agent during
the continuance of an Event of Default, such bank or financial institution shall
immediately send to the Collateral Agent by wire transfer (to such account as
the Collateral Agent shall specify, or in such other manner as the Collateral
Agent shall direct) all such cash, the value of any Commodity Contracts,
Securities, Investment Property and other items held by it. The Company shall
not make or maintain any Deposit Account, Commodity Account or Securities
Account except for the accounts set forth in Schedule IV
hereto. The provisions of this paragraph 5(i) shall not apply to
(i) Deposit Accounts for which the Collateral Agent is the depositary and
(ii) Deposit Accounts specially and exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of the
Company’s salaried employees.
(j) Motor
Vehicles.
(i) The
Company shall deliver to the Collateral Agent originals of the certificates of
title or ownership for all motor vehicles owned by it with a blue book value
equal or in excess of $50,000, with the Collateral Agent listed as lienholder,
for the benefit of the Holders.
(ii) The
Company hereby appoints the Collateral Agent as its attorney-in-fact, effective
the date hereof and terminating upon the termination of this Agreement, for the
purpose of (A) executing on behalf of the Company title or ownership
applications for filing with appropriate state agencies to enable motor vehicles
now owned or hereafter acquired by the Company to be retitled and the Collateral
Agent listed as lienholder thereof, (B) filing such applications with such
state agencies, and (C) executing such other documents and instruments on
behalf of, and taking such other action in the name of, the Company as may be
necessary or advisable to accomplish the purposes hereof (including, without
limitation, for the purpose of creating in favor of the Collateral Agent a
perfected Lien on the motor vehicles and exercising the rights and remedies of
the Collateral Agent hereunder). This appointment as attorney-in-fact is coupled
with an interest and is irrevocable until all of the Obligations are
indefeasibly paid in full in cash and after all Transaction Documents have been
terminated.
(iii) Any
certificates of title or ownership delivered pursuant to the terms hereof shall
be accompanied by odometer statements for each motor vehicle covered
thereby.
(iv) So long
as no Event of Default shall have occurred and be continuing, upon the request
of the Company, the Collateral Agent shall execute and deliver to the Company
such instruments as the Company shall reasonably request, in form and substance
satisfactory to the Collateral Agent, to remove the notation of the Collateral
Agent as lienholder on any certificate of title for any motor vehicle; provided, however, that any
such instruments shall be delivered, and the release effective, only upon
receipt by the Collateral Agent of a certificate from the Company stating that
such motor vehicle is to be sold or has suffered a casualty loss (with title
thereto passing to the casualty insurance company therefor in settlement of the
claim for such loss) and the amount that the Company will receive as sale
proceeds or insurance proceeds. Any proceeds of such sale or casualty loss shall
be paid to the Collateral Agent hereunder immediately upon receipt, to be
applied to the Obligations then outstanding.
(k) Control. The Company
hereby agrees to take any or all action that may be necessary or desirable or
that the Collateral Agent may reasonably request (such request to be made at the
written direction of the Required Holders) in order for the Collateral Agent to
obtain control in accordance with Sections 9-105 - 9-107 of the Code with
respect to the following Collateral: (i) Electronic Chattel Paper,
(ii) Investment Property, and (iii) Letter-of-Credit
Rights.
(l) Intentionally
Deleted.
(m) Future Subsidiaries.
If the Company shall hereafter create or acquire any Subsidiary, simultaneously
with the creation or acquisition of such Subsidiary, the Company shall cause
such Subsidiary to become a party to this Agreement as a grantor hereunder, and
to duly execute and deliver a guaranty of the Obligations in favor of the
Holders in form and substance reasonably acceptable to the Required Holders and
to duly execute and/or deliver such opinions of counsel and other documents, in
form and substance reasonably acceptable to the Required Holders, as the
Required Holders shall reasonably request with respect thereto; provided, however, that this
subsection (m) shall not apply to any Subsidiary for which the Company has
provided notice to the Holders at the time of the formation thereof that such
Subsidiary is a Special Purpose Acquisition Subsidiary. The Company hereby
agrees that it shall not make capital contributions in excess of $10,000 in cash
or property of equivalent value (or some combination thereof) to any such
Special Purpose Acquisition Subsidiary.
SECTION
6. Additional Provisions
Concerning the Collateral.
(a) The
Company hereby (i) authorizes the Collateral Agent to cause the filing of
one or more Code financing or continuation statements, and amendments thereto,
relating to the Collateral and (ii) ratifies such authorization to the
extent that the Collateral Agent has filed any such financing or continuation
statements, or amendments thereto, prior to the date hereof. A photocopy or
other reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law. Notwithstanding the foregoing, the Company shall at all
times maintain perfected the security interest granted hereunder without further
act on the part of the Collateral Agent.
(b) The
Company hereby irrevocably appoints the Collateral Agent as its attorney-in-fact
and proxy, with full authority in the place and stead of the Company and in the
name of the Company or otherwise, so long as an Event of Default shall have
occurred and is continuing, to take any action and to execute any instrument,
from time to time, which the Required Holders may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of the Company
under Section 5
hereof), including, without limitation, (i) to obtain and adjust insurance
required to be paid to the Collateral Agent pursuant to Section 5(e)
hereof, (ii) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any Collateral, (iii) to receive, endorse, and collect any
drafts or other instruments, documents and chattel paper in connection with
clause (i) or (ii) above, (iv) to file any claims or take any action
or institute any proceedings which the Required Holders may deem necessary or
desirable for the collection of any Collateral or otherwise to enforce the
rights of the Collateral Agent and the Holders with respect to any Collateral,
and (v) to execute assignments, licenses and other documents to enforce the
rights of the Collateral Agent and the Holders with respect to any Collateral.
This power is coupled with an interest and is irrevocable until all of the
Obligations are indefeasibly paid in full in cash.
(c) For the
purpose of enabling the Collateral Agent to exercise rights and remedies
hereunder, at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, the Company hereby
grants to the Collateral Agent, to the extent assignable, an irrevocable,
non-exclusive license (exercisable without payment of royalty or other
compensation to the Company) to use, assign, license or sublicense any
Intellectual Property now owned or hereafter acquired by the Company, wherever
the same may be located, including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to all
computer programs used for the compilation or printout thereof. Notwithstanding
anything contained herein to the contrary, but subject to any provisions of the
Notes that limit the right of the Company to dispose of its property and Section 5(h)
hereof, so long as no Event of Default shall have occurred and be continuing,
the Company may exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in
the ordinary course of its business. In furtherance of the foregoing, unless an
Event of Default shall have occurred and be continuing, the Collateral Agent
shall from time to time, upon the request of the Company, execute and deliver
any instruments, certificates or other documents, in the form and substance
satisfactory to the Collateral Agent, which the Company shall have certified are
appropriate (in the Company’s judgment) to allow it to take any action permitted
above (including relinquishment of the license provided pursuant to this
clause (c) as to any Intellectual Property). Further, upon the indefeasible
payment in full in cash of all of the Obligations, the Collateral Agent (subject
to Section 10(e)
hereof) shall release and reassign to the Company all of the Collateral Agent’s
right, title and interest in and to the Intellectual Property, and the Licenses,
all without recourse, representation or warranty whatsoever. The exercise of
rights and remedies hereunder by the Collateral Agent shall not terminate the
rights of the holders of any licenses or sublicenses theretofore granted by the
Company in accordance with the second sentence of this clause (c). The
Company hereby releases the Collateral Agent from any claims, causes of action
and demands at any time arising out of or with respect to any actions taken or
omitted to be taken by the Collateral Agent under the powers of attorney granted
herein other than actions taken or omitted to be taken through the Collateral
Agent’s own gross negligence or willful misconduct, as determined by a final
determination of a court of competent jurisdiction.
(d) If the
Company fails to perform any agreement contained herein, the Collateral Agent
may (but is under no obligation to) itself perform, or cause performance of,
such agreement or obligation, in the name of the Company or the Collateral
Agent, and the expenses of the Collateral Agent incurred in connection therewith
shall be payable by the Company pursuant to Section 8 hereof
and shall be secured by the Collateral.
(e) The
powers conferred on the Collateral Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
(f) Notwithstanding
anything in this Agreement to the contrary and for the avoidance of doubt, the
Collateral Agent shall have no duty to act outside of the United States in
respect of any Collateral located in a jurisdiction other than the United
States.
SECTION
7. Remedies Upon Event of
Default.
If any
Event of Default shall have occurred and be continuing:
(a) The
Collateral Agent may exercise in respect of the Collateral, in addition to any
other rights and remedies provided for herein or otherwise available to it, all
of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may
(i) take absolute control of the Collateral, including, without limitation,
transfer into the Collateral Agent’s name or into the name of its nominee or
nominees (to the extent the Collateral Agent has not theretofore done so) and
thereafter receive, for the benefit of the Collateral Agent, all payments made
thereon, give all consents, waivers and ratifications in respect thereof and
otherwise act with respect thereto as though it were the outright owner thereof,
(ii) require the Company to, and the Company hereby agrees that it will at
its expense and upon request of the Collateral Agent forthwith, assemble all or
part of its respective Collateral as directed by the Collateral Agent and make
it available to the Collateral Agent at a place or places to be designated by
the Collateral Agent that is reasonably convenient to both parties, and the
Collateral Agent may enter into and occupy any premises owned or leased by the
Company where the Collateral or any part thereof is located or assembled for a
reasonable period in order to effectuate the Collateral Agent’s rights and
remedies hereunder or under law, without obligation to the Company in respect of
such occupation, and (iii) without notice except as specified below and
without any obligation to prepare or process the Collateral for sale,
(A) sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Collateral 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 Collateral Agent may deem commercially reasonable and/or
(B) lease, license or dispose of the Collateral or any part thereof upon
such terms as the Collateral Agent may deem commercially reasonable. The Company
agrees that, to the extent notice of sale or any other disposition of its
respective Collateral shall be required by law, at least ten (10) days’
notice to the Company of the time and place of any public sale or the time after
which any private sale or other disposition of its respective Collateral is to
be made shall constitute reasonable notification. The Collateral Agent shall not
be obligated to make any sale or other disposition of any Collateral regardless
of notice of sale having been given. The Collateral 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. The Company hereby waives any claims against
the Collateral Agent and the Holders arising by reason of the fact that the
price at which its respective Collateral may have been sold at a private sale
was less than the price which might have been obtained at a public sale or was
less than the aggregate amount of the Obligations, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral to more than
one offeree, and waives all rights that such the Company may have to require
that all or any part of such Collateral be marshalled upon any sale (public or
private) thereof. The Company hereby acknowledges that (i) any such sale of
its respective Collateral by the Collateral Agent shall be made without
warranty, (ii) the Collateral Agent may specifically disclaim any
warranties of title, possession, quiet enjoyment or the like, and
(iii) such actions set forth in clauses (i) and (ii) above shall not
adversely effect the commercial reasonableness of any such sale of Collateral.
In addition to the foregoing, (1) upon written notice to the Company from
the Collateral Agent (to be given at the direction of the Required Holders), the
Company shall cease any use of the Intellectual Property or any trademark,
patent or copyright similar thereto for any purpose described in such notice;
(2) the Collateral Agent may, at any time and from time to time, upon
10 days’ prior notice to the Company, license, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any of the
Intellectual Property, throughout the universe for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and (3) the Collateral Agent may, at any time,
pursuant to the authority granted in Section 6 hereof
(such authority being effective upon the occurrence and during the continuance
of an Event of Default), execute and deliver on behalf of the Company, one or
more instruments of assignment of the Intellectual Property (or any application
or registration thereof), in form suitable for filing, recording or registration
in any country.
(b) Any cash
held by the Collateral Agent as Collateral and all Cash Proceeds received by the
Collateral Agent in respect of any sale of or collection from, or other
realization upon, all or any part of the Collateral shall, at the written
direction of the Required Holders, be held by the Collateral Agent as collateral
for, and/or then or at any time thereafter applied (after payment of any amounts
payable to the Collateral Agent pursuant to Section 8
hereof) in whole or in part by the Collateral Agent against, all or any part of
the Obligations in such order as the Required Holders shall direct, in writing.
Any surplus of such cash or Cash Proceeds held by the Collateral Agent and
remaining after the indefeasible payment in full in cash of all of the
Obligations shall be paid over to whomsoever shall be lawfully entitled to
receive the same or as a court of competent jurisdiction shall
direct.
(c) In the
event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Collateral Agent and the Holders
are legally entitled, the Company shall be liable for the deficiency, together
with interest thereon at the highest rate specified in any of the applicable
Transaction Documents for interest on overdue principal thereof or such other
rate as shall be fixed by applicable law, together with the costs of collection
and the reasonable fees, costs, expenses and other client charges of any
attorneys employed by the Collateral Agent to collect such
deficiency.
(d) The
Company hereby acknowledges that if the Collateral Agent complies with any
applicable state, provincial or federal law requirements in connection with a
disposition of the Collateral, such compliance will not adversely affect the
commercial reasonableness of any sale or other disposition of the
Collateral.
(e) The
Collateral Agent shall not be required to marshal any present or future
collateral security (including, but not limited to, this Agreement and the
Collateral) for, or other assurances of payment of, the Obligations or any of
them or to resort to such collateral security or other assurances of payment in
any particular order, and all of the Collateral Agent’s rights hereunder and in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that the Company lawfully may, the Company hereby agrees that it will
not invoke any law relating to the marshalling of collateral which might cause
delay in or impede the enforcement of the Collateral Agent’s rights under this
Agreement or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that it lawfully may, the Company hereby irrevocably waives the
benefits of all such laws.
SECTION
8. Indemnity and
Expenses.
(a) The
Company agrees, to defend, protect, indemnify and hold the Collateral Agent, and
each of its officers, directors, employees and agents, and each of the Holders
harmless from and against any and all claims, damages, losses, liabilities,
obligations, penalties, fees, costs and expenses (including, without limitation,
reasonable legal fees, costs, expenses, and disbursements of such Person’s
counsel) to the extent that they arise out of or otherwise result from this
Agreement (including, without limitation, enforcement of this Agreement), except
claims, losses or liabilities resulting solely and directly from such Person’s
own gross negligence or willful misconduct, as determined by a final judgment of
a court of competent jurisdiction.
(b) The
Company agrees to upon demand pay to the Collateral Agent the amount of any and
all costs and expenses, including the reasonable fees, costs, expenses and
disbursements of counsel for the Collateral Agent and of any experts and agents
(including, without limitation, any Person which may act as agent of the
Collateral Agent), which the Collateral Agent may incur in connection with
(i) the preparation, negotiation, execution, delivery, recordation,
administration, amendment, waiver or other modification or termination of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale
of, collection from, or other realization upon, any Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent hereunder
(including, but not limited to, any fees and expenses incurred by the Collateral
Agent in connection with any bankruptcy proceeding), or (iv) the failure by
the Company to perform or observe any of the provisions hereof.
(c) The
agreements in this Section 8 shall
survive repayment of the Obligations and removal or resignation of the
Collateral Agent.
SECTION
9. Immunities of the Collateral
Agent.
(a) No Implied
Duty. The Collateral Agent will not have any fiduciary duties
nor will it have responsibilities or obligations other than those expressly
assumed by it in this Agreement and the other Transaction
Documents. The Collateral Agent will not be required to take any
action that is contrary to applicable law or any provision of this Agreement or
the other Transaction Documents.
(b) Appointment of Agents and
Advisors. The Collateral Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, accountants, appraisers or other experts or advisors
selected by it in good faith as it may reasonably require and will not be
responsible for any misconduct or negligence on the part of any of
them. The Collateral Agent may consult with counsel of its selection
and the advice of such counsel or any opinion of counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(c) Other
Agreements. The Collateral Agent has accepted and is bound by
the Transaction Documents executed by the Collateral Agent as of the date of
this Agreement and, as directed in writing by the Required Holders, the
Collateral Agent shall execute additional Transaction Documents delivered to it
after the date of this Agreement; provided, however, that such
additional Transaction Documents do not adversely affect the rights, privileges,
benefits and immunities of the Collateral Agent. The Collateral Agent
will not otherwise be bound by, or be held obligated by, the provisions of any
credit agreement, indenture or other agreement governing the Obligations (other
than this Agreement and the other Transaction Documents to which the Collateral
Agent is a party).
(d) Solicitation of
Instructions.
(i) The
Collateral Agent may at any time solicit written confirmatory instructions from
the Required Holders, an Officers’ Certificate of the Company or an order of a
court of competent jurisdiction, as to any action that it may be requested or
required to take, or that it may propose to take, in the performance of any of
its obligations under this Agreement or the other Transaction
Documents.
(ii) No
written direction given to the Collateral Agent by the Required Holders or the
Company that in the sole judgment of the Collateral Agent imposes, purports to
impose or might reasonably be expected to impose upon the Collateral Agent any
obligation or liability not set forth in or arising under this Agreement and the
other Transaction Documents will be binding upon the Collateral Agent unless the
Collateral Agent elects, at its sole option, to accept such
direction.
(e) Limitation of
Liability. The Collateral Agent will not be responsible or
liable for any action taken or omitted to be taken by it hereunder or under any
other Transaction Document, except for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction. In no
event shall the Collateral Agent be responsible or liable for special, indirect,
or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Collateral Agent has
been advised of the likelihood of such loss or damage and regardless of the form
of action.
(f) Documents in Satisfactory
Form. The Collateral Agent will be entitled to require that
all agreements, certificates, opinions, instruments and other documents at any
time submitted to it, including those expressly provided for in this Agreement,
be delivered to it in a form and with substantive provisions reasonably
satisfactory to it.
(g) Entitled to
Rely. The Collateral Agent may seek and conclusively rely
upon, and shall be fully protected in conclusively relying upon, any judicial
order or judgment, upon any advice, opinion or statement of legal counsel,
independent consultants and other experts selected by it in good faith and upon
any certification, instruction, notice or other writing delivered to it by the
Company or the Required Holders in compliance with the provisions of this
Agreement without being required to determine the authenticity thereof or the
correctness of any fact stated therein or the propriety or validity of service
thereof. The Collateral Agent may act in reliance upon any instrument
comporting with the provisions of this Agreement or any signature reasonably
believed by it to be genuine and may assume that any person purporting to give
notice or receipt or advice or make any statement or execute any document in
connection with the provisions hereof or the other Transaction Documents has
been duly authorized to do so.
(h) Event of
Default. The Collateral Agent will not be required to inquire
as to the occurrence or absence of any Event of Default and will not be affected
by or required to act upon any notice or knowledge as to the occurrence of any
Event of Default unless and until it is directed, in writing, by the Required
Holders.
(i) Actions by Collateral
Agent. As to any matter not expressly provided for by this
Agreement or the other Transaction Documents, the Collateral Agent will act or
refrain from acting as directed by the Required Holders and will be fully
protected if it does so, and any action taken, suffered or omitted pursuant to
hereto or thereto shall be binding on all Holders.
(j) Security or Indemnity in
favor of the Collateral Agent. The Collateral Agent will not
be required to advance or expend any funds or otherwise incur any financial
liability in the performance of its duties or the exercise of its powers or
rights hereunder unless it has been provided with security or indemnity
reasonably satisfactory to it against any and all liability or expense which may
be incurred by it by reason of taking or continuing to take such
action. The Collateral Agent shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement at the request or
direction of any of the Holders pursuant to this Agreement, unless such Holders
shall have offered to the Collateral Agent security or indemnity satisfactory to
the Collateral Agent against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(k) Rights of the Collateral
Agent. In the event of any conflict between any terms and
provisions set forth in this Agreement and those set forth in any other
Transaction Document, the terms and provisions of this Agreement shall supersede
and control the terms and provisions of such other Transaction
Document. In the event there is any bona fide, good faith
disagreement between the other parties to this Agreement or any of the other
Transaction Documents resulting in adverse claims being made in connection with
Collateral held by the Collateral Agent and the terms of this Agreement or any
of the other Transaction Documents do not unambiguously mandate the action the
Collateral Agent is to take or not to take in connection therewith under the
circumstances then existing, or the Collateral Agent is in doubt as to what
action it is required to take or not to take hereunder or under the other
Transaction Documents, it will be entitled to refrain from taking any action
(and will incur no liability for doing so) until directed otherwise in writing
by the Required Holders or by order of a court of competent
jurisdiction.
(l) Limitations on Duty of
Collateral Agent in Respect of Collateral.
(i) Beyond
the exercise of reasonable care in the custody of Collateral in its possession,
the Collateral Agent will have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Collateral Agent will not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any liens on the Collateral. The
Collateral Agent will be deemed to have exercised reasonable care in the custody
of the Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property, and the
Collateral Agent will not be liable or responsible for any loss or diminution in
the value of any of the Collateral by reason of the act or omission of any
carrier, forwarding agency or other agent or bailee selected by the Collateral
Agent in good faith.
(ii) The
Collateral Agent will not be responsible for the existence, genuineness or value
of any of the Collateral or for the validity, perfection, priority or
enforceability of the liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes gross
negligence or willful misconduct on the part of the Collateral Agent, for the
validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of any Pledgor to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or liens upon the Collateral or otherwise as to the maintenance of
the Collateral. The Collateral Agent hereby disclaims any
representation or warranty to the present and future holders of the Obligations
concerning the perfection of the Liens granted hereunder or in the value of any
of the Collateral.
(m) Assumption of Rights, Not
Assumption of Duties. Notwithstanding anything to the contrary
contained herein:
(i) each of
the parties thereto will remain liable under each of the Transaction Documents
(other than this Agreement) to the extent set forth therein to perform all of
their respective duties and obligations thereunder to the same extent as if this
Agreement had not be executed;
(ii) the
exercise by the Collateral Agent of any of its rights, remedies or powers
hereunder will not release such parties from any of their respective duties or
obligations under the other Transaction Documents; and
(iii) the
Collateral Agent will not be obligated to perform any of the obligations or
duties of any of the parties thereunder other than the Collateral
Agent.
(n) No Liability for Clean Up of
Hazardous Materials. In the event that the Collateral Agent is
required to acquire title to an asset for any reason, or take any managerial
action of any kind in regard thereto, in order to carry out any fiduciary or
trust obligation for the benefit of another, which in the Collateral Agent’s
sole discretion may cause the Collateral Agent to be considered an “owner or
operator” under any environmental laws or otherwise cause the Collateral Agent
to incur, or be exposed to, any environmental liability or any liability under
any other federal, state or local law, the Collateral Agent reserves the right,
instead of taking such action, either to resign as Collateral Agent or to
arrange for the transfer of the title or control of the asset to a court
appointed receiver. The Collateral Agent will not be liable to any
person for any environmental liability or any environmental claims or
contribution actions under any federal, state or local law, rule or regulation
by reason of the Collateral Agent’s actions and conduct as authorized, empowered
and directed hereunder or relating to any kind of discharge or release or
threatened discharge or release of any hazardous materials into the
environment.
SECTION
10. Resignation or Removal of
Collateral Agent.
(a) Resignation or Removal of
Collateral Agent. Subject to the appointment of a successor
Collateral Agent as provided in clause (b) below and the acceptance of such
appointment by the successor Collateral Agent:
(i) the
Collateral Agent may resign at any time by giving not less than 30 days’
notice of resignation to each Holder and the Company; and
(ii) the
Collateral Agent may be removed at any time, with or without cause, by notice,
in writing, from the Required Holders.
(b) Appointment of Successor
Collateral Agent. Upon any such resignation or removal, a
successor Collateral Agent may be appointed by the Required
Holders. If no successor Collateral Agent has been so appointed and
accepted such appointment within 30 days after the predecessor Collateral
Agent gave notice of resignation or was removed, the retiring Collateral Agent
may (at the expense of the Company), at its option, petition a court of
competent jurisdiction for appointment of a successor Collateral
Agent. The Collateral Agent will fulfill its obligations hereunder
until a successor Collateral Agent has accepted its appointment as Collateral
Agent and the provisions of clause (c) have been satisfied.
(c) Succession. When
the Person so appointed as successor Collateral Agent accepts such
appointment:
(i) such
Person will succeed to and become vested with all the rights, powers, privileges
and duties of the predecessor Collateral Agent, and the predecessor Collateral
Agent will be discharged from its duties and obligations hereunder;
and
(ii) the
predecessor Collateral Agent will (at the expense of the Company) upon payment
of all amounts owed it hereunder, promptly transfer all liens and collateral
security and other property within its possession or control to the possession
or control of the successor Collateral Agent and will execute instruments and
assignments as may be necessary or desirable or reasonably requested by the
successor Collateral Agent to transfer to the successor Collateral Agent all
liens, interests, rights, powers and remedies of the predecessor Collateral
Agent in respect of the Transaction Documents. Thereafter the predecessor
Collateral Agent will remain entitled to enforce the immunities granted to it in
Section 9
and the provisions set forth in Section 8.
(d) Merger, Conversion or
Consolidation of Collateral Agent. Any person into which the
Collateral Agent may be merged or converted or with which it may be
consolidated, or any person resulting from any merger, conversion or
consolidation to which the Collateral Agent shall be a party, or any person
succeeding to all or substantially all the corporate trust business of the
Collateral Agent shall be the successor of the Collateral Agent pursuant to
clause (d) above, provided that (i) without the execution or filing of
any paper with any party hereto or any further act on the part of any of the
parties hereto, except where an instrument of transfer or assignment is required
by law to effect such succession, anything herein to the contrary
notwithstanding.
SECTION
11. Notices,
Etc.
All
notices and other communications provided for hereunder shall be in writing and
shall be mailed (by certified mail, postage prepaid and return receipt
requested), telecopied or delivered, if to the Company at its address specified
below and if to the Collateral Agent to it, at its address specified below; or
as to any such Person, at such other address as shall be designated by such
Person in a written notice to such other Person complying as to delivery with
the terms of this Section 11. All
such notices and other communications shall be effective if sent by certified
mail, return receipt requested, when received.
SECTION
12. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by the parties hereto, and no waiver of any provision of this
Agreement, and no consent to any departure by the Company therefrom, shall be
effective unless it is in writing and signed by the Collateral Agent and the
Required Holders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No
failure on the part of the Collateral Agent to exercise, and no delay in
exercising, any right hereunder or under any of the other Transaction Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Collateral Agent or any Holder
provided herein and in the other Transaction Documents are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law. The
rights of the Collateral Agent or any Holder under any of the other Transaction
Documents against any party thereto are not conditional or contingent on any
attempt by such Person to exercise any of its rights under any of the other
Transaction Documents against such party or against any other Person, including
but not limited to, the Company.
(c) All
rights of the Collateral Agent hereunder, the security interest created hereby
and all obligations of the Company hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of any
Transaction Document, any agreement with respect to any of the Obligations or
any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to
any departure from any Transaction Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on
other collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Company in respect of the
Obligations or this Agreement.
(d) Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(e) This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the indefeasible payment in
full in cash of the Obligations, and (ii) be binding on the Company and all
other Persons who become bound as debtor to this Agreement in accordance with
Section 9-203(d) of the Code and shall inure, together with all rights and
remedies of the Collateral Agent and the Holders hereunder, to the benefit of
the Collateral Agent and the Holders and their respective permitted successors,
transferees and assigns. Without limiting the generality of clause (ii) of
the immediately preceding sentence, without notice to the Company, the
Collateral Agent and the Holders may assign or otherwise transfer their rights
and obligations under this Agreement and any of the other Transaction Documents
to any other Person (subject to the terms of the Transaction Documents) and such
other Person shall thereupon become vested with all of the benefits in respect
thereof granted to the Collateral Agent and the Holders herein or otherwise.
Upon any such assignment or transfer, all references in this Agreement to the
Collateral Agent or any such Holder shall mean the assignee of the Collateral
Agent or such Holder. None of the rights or obligations of the Company hereunder
may be assigned or otherwise transferred and any such assignment or transfer
without the consent of the Collateral Agent shall be null and void.
(f) Upon the
indefeasible payment in full in cash of the Obligations, (i) this Agreement
and the security interests created hereby shall terminate and all rights to the
Collateral shall revert to the Company, and (ii) the Collateral Agent will,
upon the Company’s written request and at the Company’s expense, (A) return
to the Company such of the Collateral as shall not have been sold or otherwise
disposed of or applied pursuant to the terms hereof, and (B) execute and
deliver to the Company such documents as the Company shall reasonably request
(in form and substance satisfactory to the Collateral Agent) to evidence such
termination, all without any representation, warranty or recourse
whatsoever.
(g) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND
THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED
HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(h) ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT
RELATED THERETO MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE
COUNTY OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND APPELLATE COURTS THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION, SUIT OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
(i) EACH OF
THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE PARTIES
HERETO.
(j) The
Company irrevocably consents to the service of process of any of the aforesaid
courts in any such action, suit or proceeding by the mailing of copies thereof
by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Company at its address provided herein, such service to
become effective ten (10) days after such mailing.
(k) Nothing
contained herein shall affect the right of the Collateral Agent to serve process
in any other manner permitted by law or commence legal proceedings or otherwise
proceed against the Company or any property of the Company in any other
jurisdiction.
(l) The
Company irrevocably and unconditionally waives any right it may have to claim or
recover in any legal action, suit or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
(m) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(n) This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together constitute one in the same
Agreement.
(o) In
connection with its appointment and acting hereunder, the Collateral Agent is
entitled to all rights, privileges, protections, benefits, immunities and
indemnities provided to it as Collateral Agent under the other Transaction
Documents.
(p) In no
event shall the Collateral Agent be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including without
limitation strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of god, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Collateral Agent
shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
(q) The
parties hereto hereby acknowledge and agree that this Agreement shall amend,
restate, modify, extend, renew and continue the terms and provisions contained
in the Existing Security Agreement and shall not extinguish or release the
Company from any liability under the Existing Security Agreement or otherwise
constitute a novation of its obligations thereunder.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed and
delivered by its officer thereunto duly authorized, as of the date first above
written.
THE
COMPANY:
By:
Name:
Title:
Address:
ACCEPTED
BY:
THE BANK
OF NEW YORK, as Collateral Agent
By:
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx,
XX 00000
