SECURITY AGREEMENT dated as of July 30, 2007 among EVERGREEN ENERGY INC., EVERGREEN OPERATIONS, LLC KFX PLANT, LLC, KFX OPERATIONS, LLC, LANDRICA DEVELOPMENT COMPANY, BUCKEYE INDUSTRIAL MINING CO. and U.S. BANK NATIONAL ASSOCIATION, as Trustee and...
Exhibit 4.3
EXECUTION
COPY
dated
as of
July
30, 2007
among
EVERGREEN
OPERATIONS, LLC
KFX
PLANT, LLC,
KFX
OPERATIONS, LLC,
LANDRICA
DEVELOPMENT COMPANY,
BUCKEYE
INDUSTRIAL MINING CO.
and
U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee and Collateral Agent
TABLE
OF CONTENTS
_________________
SCHEDULES:
|
Schedule
1
|
Pledged Investment
Property and Deposit Accounts Owned by Original Lien
Grantors
|
EXHIBITS:
|
Exhibit
A
|
Security
Agreement Supplement
|
|
Exhibit
B
|
Perfection
Certificate
|
ii
THIS
SECURITY AGREEMENT (this
“Agreement”) is entered into as of July 30, 2007 (the
“Effective Date”) by EVERGREEN ENERGY INC., a Delaware
corporation (the “Issuer”), EVERGREEN OPERATIONS, LLC, a
Delaware limited liability company (“Evergreen Operations”),
KFX PLANT, LLC, a Wyoming limited liability company (“KFx
Plant”), KFX OPERATIONS, LLC, a Wyoming limited liability company
(“KFx Operations”), LANDRICA DEVELOPMENT COMPANY, a South
Dakota corporation (“Landrica”), and BUCKEYE INDUSTRIAL MINING
CO., an Ohio corporation (“Buckeye,” and together with
Evergreen Operations, KFx Plant, KFx Operations and Landrica, the
“Subsidiary Guarantors”) in favor of U.S. BANK NATIONAL
ASSOCIATION, in its capacity as Collateral Agent and Trustee (the
“Collateral Agent”) for the benefit of the Holders (as defined
below).
RECITALS
WHEREAS,
the Issuer, the Subsidiary Guarantors and the Collateral Agent, have entered
into an Indenture, dated as of July 30, 2007 (as amended, restated, supplemented
or otherwise modified from time to time, the “Indenture”),
providing for the issuance of the 8.00% Convertible Senior Notes due 2012 (the
“Notes”) of the Issuer, all as contemplated therein (with the
holders from time to time of Notes being referred to herein as the
“Holders” and, together with the Collateral Agent, as the
“Secured Parties”);
WHEREAS,
pursuant to Article 13 of the Indenture, each Subsidiary Guarantor has jointly
and severally guaranteed to the Secured Parties the payment when due of all
the
Secured Obligations (as hereinafter defined);
WHEREAS,
it is a condition precedent to the issuance of the Notes by the Issuer that
each
Lien Grantor shall have executed and delivered to the Collateral Agent this
Agreement;
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Section
1. Definitions.
(a) Terms
Defined in Indenture. Terms defined in the Indenture and not
otherwise defined in subsection (b) or (c) of this Section 1 have, as used
herein, the respective meanings provided for therein.
(b) Terms
Defined in UCC. As used herein, each of the following terms has
the meaning specified in the UCC:
|
Term
|
UCC
|
|
Authenticate
|
9-102
|
|
Certificated
Security
|
8-102
|
|
Deposit
Account
|
9-102
|
|
Entitlement
Holder
|
8-102
|
|
Entitlement
Order
|
8-102
|
|
Financial
Asset
|
8-102
& 103
|
|
Investment
Property
|
9-102
|
|
Securities
Account
|
8-501
|
|
Securities
Intermediary
|
8-102
|
|
Security
|
8-102
& 103
|
|
Security
Entitlement
|
8-102
|
|
Supporting
Obligations
|
9-102
|
|
Uncertificated
Security
|
8-102
|
(c) Additional
Definitions. The following additional terms, as used herein,
have the following meanings:
“Agreement”
has the meaning specified in the preamble hereto.
“Buckeye”
has the meaning specified in the preamble hereto.
“Cash
Collateral Accounts” mean, collectively, the Issuer Cash Collateral
Account and each of the Subsidiary Guarantor Cash Collateral
Accounts.
“Cash
Distributions” means dividends, interest and other distributions and
payments (including proceeds of liquidation, sale or other disposition) made
or
received in cash upon or with respect to any Collateral.
“Collateral”
has the meaning specified in Section 2(a).
“Collateral
Accounts” means the Cash Collateral Accounts, the Controlled Deposit
Accounts, the Controlled Securities Accounts and the Investment Property
Collateral Accounts.
“Collateral
Agent” has the meaning specified in the preamble hereto.
2
“Collateral
Price Trigger” has the meaning specified in the Indenture.
“Control”
has the following meanings:
(a) when
used with respect to any Security or Security Entitlement, the meaning specified
in UCC Section 8-106, and
(b) when
used with respect to any Deposit Account, the meaning specified in UCC Section
9-104.
“Controlled
Deposit Account” means a Deposit Account (i) that is subject to a
Deposit Account Control Agreement or (ii) as to which the Collateral Agent
is
the Depositary Bank’s “customer” (as defined in UCC Section 4-104).
“Controlled
Securities Account” means a Securities Account that (i) is maintained
in the name of a Lien Grantor at an office of a Securities Intermediary located
in the United States and (ii) together with all Financial Assets credited
thereto and all related Security Entitlements, is subject to a Securities
Account Control Agreement among such Lien Grantor, the Collateral Agent and
such
Securities Intermediary.
“Deposit
Account Control Agreement” means, with respect to any Deposit Account
of any Lien Grantor, a deposit account control agreement among such Lien
Grantor, the Collateral Agent and the relevant Depositary Bank, (i) providing
that such Depositary Bank will comply with instructions originated by the
Collateral Agent directing disposition of the funds in such Deposit Account
without further consent by such Lien Grantor and (ii) subordinating to the
relevant Transaction Lien all claims of the Depositary Bank to such Deposit
Account (except its right to deduct its normal operating charges and any
uncollected funds previously credited thereto), which agreement shall be in
form
and substance satisfactory to the Collateral Agent.
“Depositary
Bank” means a bank at which a Controlled Deposit Account is
maintained.
“Effective
Date” has the meaning specified in the preamble hereto.
“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any
way
to the environment, the preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or health
and safety matters.
3
“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of remediation, fines, penalties or indemnities),
of any Credit Party directly or indirectly resulting from or based on (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material, (c)
exposure to any Hazardous Material, (d) the release or threatened release of
any
Hazardous Material into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“Escrow
Amount” has the meaning specified in Section 8(b)(i).
“Evergreen
Operations” has the meaning specified in the preamble
hereto.
“Excluded
Accounts” has the meaning specified in Section 2(a).
“Federal
Government” means the federal government of the United States or any
agency or instrumentality thereof.
“Governmental
Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Hazardous
Materials” means all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other
substances or wastes of any nature regulated pursuant to any Environmental
Law.
“Holders”
has the meaning specified in the recitals hereto.
“Indenture”
has the meaning specified in the recitals hereto.
“Investment
Property Collateral Account” has the meaning specified in Section
9.
“Issuer”
has the meaning specified in the preamble hereto.
“Issuer
Cash Collateral Account” is the account named under the caption
“Issuer Cash Collateral Account” in Part IV of Schedule
1.
“KFx
Operations” has the meaning specified in the preamble
hereto.
4
“KFx
Plant” has the meaning specified in the preamble hereto.
“Landrica”
has the meaning specified in the preamble hereto.
“Lien
Grantors” means the Issuer and the Subsidiary Guarantors.
“Liquid
Investment” means a Permitted Investment (other than commercial paper)
that matures within 30 days after it is first included in the
Collateral.
“LLC
Interest” means a membership interest or similar interest in a limited
liability company.
“Notes”
has the meaning specified in the recitals hereto.
“Noteholder
Documents” means the Indenture, the Notes and the Security
Documents.
“Opinion
of Counsel” means a written opinion of legal counsel (who may be
counsel to a Lien Grantor or other counsel, in either case approved by the
Collateral Agent) addressed and delivered to the Collateral Agent.
“Original
Lien Grantor” means any Lien Grantor that grants a Lien on any of its
assets hereunder on the Effective Date.
“own”
refers to the possession of sufficient rights in property to grant a security
interest therein as contemplated by UCC Section 9-203, and
“acquire” refers to the acquisition of any such
rights.
“Partnership
Interest” means a partnership interest, whether general or
limited.
“Perfection
Certificate” means, with respect to any Lien Grantor, a certificate
substantially in the form of Exhibit B, completed and supplemented with the
schedules contemplated thereby to the satisfaction of the Collateral Agent,
and
signed by an officer of such Lien Grantor.
“Permitted
Investments” means investments in:
(a) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof
to
the extent such obligations are backed by the full faith and credit of the
United States), in each case maturing within one year from the date of
acquisition thereof;
5
(b) commercial
paper maturing within 270 days from the date of acquisition thereof and having,
at such date of acquisition, the highest credit rating obtainable from S&P
or from Moody’s;
(c) certificates
of deposit, banker’s acceptances and time deposits maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of
any
commercial bank organized under the laws of the United States or any State
thereof which has a combined capital and surplus and undivided profits of at
least $500,000,000; and
(d) fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above.
“Permitted
Liens” has the meaning specified in the Indenture.
“Pledged”,
when used in conjunction with any type of asset, means at any time an asset
of
such type that is included (or that creates rights that are included) in the
Collateral at such time.
“Pledged
Equity Interest” means the Equity Interests in Evergreen
Operations.
“Proceeds”
means all proceeds of, and all other profits, products, rents or receipts,
in
whatever form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition of, or other realization upon, any Collateral,
including all claims of the relevant Lien Grantor against third parties for
loss
of, damage to or destruction of, or for proceeds payable under, or unearned
premiums with respect to, policies of insurance in respect of, any Collateral,
and any condemnation or requisition payments with respect to any
Collateral.
“Securities
Account Control
Agreement” means, when used with respect to a Securities Account, a
securities account control agreement among the relevant Securities Intermediary,
the relevant Lien Grantor and the Collateral Agent to the effect that such
Securities Intermediary will comply with Entitlement Orders originated by the
Collateral Agent with respect to such Securities Account without further consent
by the relevant Lien Grantor, which agreement shall be in form and substance
satisfactory to the Collateral Agent.
6
“Security
Agreement Supplement” means a Security Agreement Supplement,
substantially in the form of Exhibit A, signed and delivered to the Collateral
Agent for the purpose of adding a Lien Grantor as a party hereto pursuant to
Section 23 and/or adding additional property to the Collateral.
“Security
Documents” has the meaning set forth in the Indenture.
“Security
Interest” has the meaning set forth 2(a).
“Secured
Obligations” has the meaning set forth 2(a).
“Secured
Parties” has
the meaning specified in the recitals hereto.
“Subsidiary
Guarantor Cash Collateral Account” has the meaning specified in Section
10.
“Subsidiary
Guarantors” has the meaning specified in the preamble.
“Termination
Date”
means for all Lien Grantors, the date which is the earlier to occur
of (a)
payment in full of the Secured Obligations (other than contingent indemnity
obligations) of all Lien Grantors or (b) the satisfaction of the Collateral
Price Trigger by the Issuer.
“Transaction
Liens” means the Liens granted by the Lien Grantors under the Security
Documents.
“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of
New York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any Transaction Lien on any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than New York, “UCC” means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or
priority.
(d) Terms
Generally. The definitions of terms herein (including those
incorporated by reference to the UCC or to another document) apply equally
to
the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun includes the corresponding masculine, feminine
and neuter forms. The words “include”,
“includes” and “including” shall be deemed to
be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context
requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time
amended,
7
supplemented
or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (ii)any reference herein to
any
Person shall be construed to include such Person’s successors and
assigns, (iii) the words “herein”,
“hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to
any particular provision hereof, (iv) all references herein to Sections,
Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits
and Schedules to, this Agreement and (v) the word
“property” shall be construed to refer to any and all tangible
and intangible assets and properties, including cash, securities, accounts
and
contract rights.
Section
2. Grant of Transaction
Liens.
(a) Each
Lien Grantor hereby collaterally assigns and pledges to the Collateral Agent,
its successors and assigns, for the ratable benefit of the Secured Parties,
and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, as security for the payment or
performance in full of the Obligations of such Grantor under the Noteholder
Documents (the “Secured Obligations”), a security interest (the
“Security Interest”) in all right, title and interest of such
Lien Grantor in, to and under any and all of the following assets and properties
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the “Collateral”):
(i) all
Deposit Accounts;
(ii) all
Pledged Equity Interests;
(iii) all
Investment Property other than Evergreen Operations Equity Interests in Buckeye,
Landrica, KFx Plant and KFx Operations;
(iv) all
of such Lien Grantor’s ownership interest in (1) its Collateral
Accounts, (2) all Financial Assets credited to its Collateral Accounts from
time to time and all Security Entitlements in respect thereof, (3) all cash
held in its Collateral Accounts from time to time and (4) all other money
in the possession of the Collateral Agent; and
(v) all
Proceeds of the Collateral described in the foregoing clauses (i) through
(iv);
provided
that the following property is excluded from the foregoing security
interests: (A) any Deposit Account or Securities Account
created in connection with one or more Projects (as defined in the Indenture)
and (B) any Deposit Account or Securities Account holding cash that has been
posted, segregated or
8
otherwise
set aside in connection with certain regulatory and contractual obligations,
including environmental remediation (clauses (A) and (B) collectively, the
“Excluded Accounts”) .
(b) With
respect to each right to payment or performance included in the Collateral
from
time to time, the Transaction Lien granted therein includes a continuing
security interest in (i) any Supporting Obligation that supports such
payment or performance and (ii) any Lien that (x) secures such right to
payment or performance or (y) secures any such Supporting
Obligation.
(c) The
Transaction Liens are granted as security only and shall not subject the
Collateral Agent or any other Secured Party to, or transfer or in any way affect
or modify, any obligation or liability of the Issuer with respect to any of
the
Collateral or any transaction in connection therewith.
Section
3. General Representations and
Warranties. (I) Each Original Lien Grantor represents and
warrants that:
(a) Such
Lien Grantor is duly organized, validly existing and in good standing under
the
laws of the jurisdiction identified as its jurisdiction of organization in
its
Perfection Certificate.
(b) Schedule
1 lists, as of the Effective Date, (i) all Securities owned by such Lien Grantor
that are Pledged pursuant to this Agreement, (ii) all Securities Accounts to
which Financial Assets are credited in respect of which such Lien Grantor owns
Security Entitlements, and (iii) all Deposit Accounts owned by such Lien
Grantor.
(c) Such
Lien Grantor has good and marketable title to all its Collateral (subject to
exceptions that are, in the aggregate, not material), free and clear of any
Lien
other than Permitted Liens.
(d) Such
Lien Grantor has not performed any acts that might prevent the Collateral Agent
from enforcing any of the provisions of the Security Documents or that would
limit the Collateral Agent in any such enforcement. No financing
statement, security agreement, mortgage or similar or equivalent document or
instrument covering all or part of the Collateral owned by such Lien Grantor
is
on file or of record in any jurisdiction in which such filing or recording
would
be effective to perfect or record a Lien on such Collateral, except financing
statements, mortgages or other similar or equivalent documents with respect
to
Permitted Liens. After the Effective Date, no Collateral owned by
such Lien Grantor will be in the possession or under the Control of any other
Person having a claim thereto or security interest therein, other than a
Permitted Lien.
9
(e) Such
Lien Grantor has delivered a Perfection Certificate to the Collateral
Agent. The information set forth therein is correct and complete as
of the Effective Date. Within 60 days after the Effective Date, such Lien
Grantor will furnish to the Collateral Agent a file search report from each
UCC
filing office listed in its Perfection Certificate, showing the filing made
at
such filing office to perfect the Transaction Liens on its
Collateral.
(f) When
UCC financing statements describing the Collateral have been filed in the
offices specified in such Perfection Certificate, the Transaction Liens will
constitute perfected security interests in the collateral described therein
owned by such Lien Grantor to the extent that a security interest therein may
be
perfected by filing pursuant to the UCC, prior to all Liens and rights of others
therein except Permitted Liens. Except for the filing of such UCC financing
statements, no registration, recordation or filing with any governmental body,
agency or official is required in connection with the execution or delivery of
the Security Documents or is necessary for the validity or enforceability
thereof or for the perfection or due recordation of the Transaction Liens or
for
the enforcement of the Transaction Liens.
(II) The
Issuer represents and warrants that:
(a) The
Issuer owns and holds the Pledged Equity Interests directly (i.e., not
through a Subsidiary, a Securities Intermediary or any other Person) as of
the
Effective Date.
(b) All
Pledged Equity Interests owned by the Issuer are owned by it free and clear
of
any Lien other than (g) the Transaction Liens and (h) any inchoate tax
liens. All shares of capital stock included in such Pledged Equity
Interests (including shares of capital stock in respect of which the Issuer
owns
a Security Entitlement) have been duly authorized and validly issued and are
fully paid and non-assessable. None of such Pledged Equity Interests
is subject to any option to purchase or similar right of any
Person. The Issuer is not and will not become a party to or otherwise
bound by any agreement (except the Noteholder Documents) which restricts in
any
manner the rights of any present or future holder of any Pledged Equity Interest
with respect thereto.
(III) Evergreen
Operations represents and warrants that:
(a) Evergreen
Operations hereby (i) acknowledges the security interest of the Collateral
Agent
in such Pledged Equity Interest granted by the Issuer hereunder, (ii) confirms
that it has not received notice of any other Lien (except Permitted Liens)
as of
the Effective Date in such Pledged Equity Interests (and has not agreed to
accept instructions from any other Person in respect of such Pledged Equity
Interests), (iii) agrees that it will comply with the instructions
with
10
respect
to such Pledged Equity Interests originated by the Collateral Agent without
further consent of the Issuer and (iv) otherwise agrees that it will be bound
by
the terms of this Agreement relating to the Pledged Equity Interests issued
by
it.
(b) Evergreen
Operations hereby consents to the extent required by applicable organizational
documents to the pledge by the Issuer, pursuant to the terms hereof, of the
Pledged Equity Interests, and upon the occurrence and during the continuance
of
an Event of Default, to the transfer of such Pledged Equity Interests to the
Collateral Agent or its nominee and to the substitution of the Collateral Agent
or its nominee as the substituted partner or member in such limited liability
company with all rights, powers and duties of a limited member.
Section
4. Further Assurances; General
Covenants. Each Lien Grantor covenants as
follows:
(a) Such
Lien Grantor will, from time to time, at the Issuer’s expense, execute, deliver,
file and record any statement, assignment, instrument, document, agreement
or
other paper and take any other action (including any filing of financing or
continuation statements under the UCC) that from time to time may be necessary
or desirable, or that the Collateral Agent may request, in order
to:
(i) create,
preserve, perfect, confirm or validate the Transaction Liens on such Lien
Grantor’s Collateral;
(ii) in
the case of Pledged Deposit Accounts and Pledged Investment Property, cause
the
Collateral Agent to have Control thereof;
(iii) enable
the Collateral Agent and the other Secured Parties to obtain the full benefits
of the Security Documents; or
(iv) enable
the Collateral Agent to exercise and enforce any of its rights, powers and
remedies with respect to any of such Lien Grantor’s Collateral.
To
the extent permitted by applicable law, such Lien Grantor authorizes the
Collateral Agent to execute and file such financing statements or continuation
statements without such Lien Grantor’s signature appearing
thereon. Such Lien Grantor agrees that a carbon, photographic,
photostatic or other reproduction of this Agreement or of a financing statement
is sufficient as a financing statement.
(b) Such
Lien Grantor will not (i) change its name or corporate structure, (ii)
change its location (determined as provided in UCC Section 9-307) or (iii)
become bound, as provided in UCC Section 9-203(d) or otherwise, by a security
agreement entered into by another Person, unless it shall
11
have
given the Collateral Agent prior notice thereof and delivered an Opinion of
Counsel with respect thereto in accordance with Section 4(c).
(c) At
least 30 days before it takes any action contemplated by Section 4(b), such
Lien
Grantor will, at the Issuer’s expense, cause to be delivered to the Collateral
Agent an Opinion of Counsel, in form and substance satisfactory to the
Collateral Agent, to the effect that (i) all financing statements and
amendments or supplements thereto, continuation statements and other documents
required to be filed or recorded in order to perfect and protect the Transaction
Liens against all creditors of and purchasers from such Lien Grantor after
it
takes such action (except any continuation statements specified in such Opinion
of Counsel that are to be filed more than six months after the date thereof)
have been filed or recorded in each office necessary for such purpose, (ii)
all fees and taxes, if any, payable in connection with such filings or
recordations have been paid in full and (iii) such action will not
adversely affect the perfection or priority of the Transaction Lien on any
Collateral to be owned by such Lien Grantor after it takes such action or the
accuracy of such Lien Grantor’s representations and warranties herein relating
to such Collateral.
(d) Such
Lien Grantor will not sell, lease, exchange, assign or otherwise dispose of,
or
grant any option with respect to, any of its Collateral (it being understood
that such Lien Grantor may withdraw, or direct the disposition of, funds held
in
any Collateral Account (except the Cash Collateral Accounts) subject to the
provisions of Section 9 hereto).
(e) Such
Lien Grantor will, promptly upon request, provide to the Collateral Agent all
information and evidence concerning such Lien Grantor’s Collateral that the
Collateral Agent may reasonably request from time to time to enable it to
enforce the provisions of the Security Documents.
(f) From
time to time upon request by the Collateral Agent, such Lien Grantor will,
at
the Issuer’s expense, cause to be delivered to the Secured Parties an Opinion of
Counsel satisfactory to the Collateral Agent as to such matters relating to
the
transactions contemplated hereby as the Collateral Agent may reasonably
request.
Section
5. Investment
Property. Each Lien Grantor represents, warrants and
covenants as follows:
(a) Certificated
Securities. On the Effective Date, (in the case of an Original
Lien Grantor) or the date on which it signs and delivers its first Security
Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor
will deliver to the Collateral Agent as Collateral hereunder all certificates
representing Pledged Certificated Securities owned by such Lien
Grantor.
12
Thereafter,
whenever such Lien Grantor acquires any other certificate representing a Pledged
Certificated Security in any Subsidiary Guarantor, such Lien Grantor will
immediately deliver such certificate to the Collateral Agent as Collateral
hereunder.
(b) Uncertificated
Securities. On the Effective Date, (in the case of an Original
Lien Grantor) or the date on which it signs and delivers its first Security
Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor
will enter into (and cause the relevant Subsidiary Guarantor to enter into)
an
Issuer Control Agreement in respect of each Pledged Uncertificated Security
then
by such Lien Grantor and deliver such Issuer Control Agreement to the Collateral
Agent (which shall enter into the same). In connection therewith,
such Lien Grantor shall caused to be delivered to the Collateral Agent an
Opinion of Counsel satisfactory to the Collateral Agent as to the creation
and
perfection of the security interests contemplated by this sub-clause (b) and
such other matters as the Collateral Agent may reasonably request. Thereafter,
whenever such Lien Grantor acquires any other Pledged Uncertificated Security
in
any Subsidiary Guarantor, such Lien Grantor will enter into (and cause the
relevant issuer to enter into) an Issuer Control Agreement in respect of such
Pledged Uncertificated Security and deliver such Issuer Control Agreement to
the
Collateral Agent (which shall enter into the same). The provisions of
this subsection are subject to Section 10(c).
(c) Security
Entitlements. Not later than 90 days from the Effective Date (in
the case of an Original Lien Grantor) or the date on which it signs and delivers
its first Security Agreement Supplement (in the case of any other Lien Grantor),
such Lien Grantor will, with respect to each Security Entitlement then owned
by
it, enter into (and cause the relevant Securities Intermediary to enter into)
a
Securities Account Control Agreement in respect of such Security Entitlement
and
the Securities Account to which the underlying Financial Asset is credited
and
will deliver such Securities Account Control Agreement to the Collateral Agent
(which shall enter into the same). In connection therewith, such Lien Grantor
shall caused to be delivered to the Collateral Agent an Opinion of Counsel
satisfactory to the Collateral Agent as to the creation and perfection of the
security interests contemplated by this sub-clause (c) and such other matters
as
the Collateral Agent may reasonably request. Thereafter, whenever such Lien
Grantor acquires any other Security Entitlement, such Lien Grantor will, as
promptly as practicable, cause the underlying Financial Asset to be credited
to
a Controlled Securities Account. The provisions of this subsection
are subject to Section 10(c).
(d) Perfection
as to Certificated Securities. When such Lien Grantor delivers
the certificate representing any Pledged Certificated Security owned by it
to
the Collateral Agent and complies with Section 5(h) in connection with
such
13
delivery, (i)
the Transaction Lien on such Pledged Certificated Security will be perfected,
subject to no prior Liens or rights of others, (ii) the Collateral Agent
will have Control of such Pledged Certificated Security and (iii) the
Collateral Agent will be a protected purchaser (within the meaning of UCC
Section 8-303) thereof.
(e) Perfection
as to Uncertificated Securities. When such Lien Grantor, the
Collateral Agent and the issuer of any Pledged Uncertificated Security owned
by
such Lien Grantor enter into an Issuer Control Agreement with respect
thereto, (i) the Transaction Lien on such Pledged Uncertificated Security
will be perfected, subject to no prior Liens or rights of others, (ii) the
Collateral Agent will have Control of such Pledged Uncertificated Security
and (iii) the Collateral Agent will be a protected purchaser (within the
meaning of UCC Section 8-303) thereof.
(f) Perfection
as to Security Entitlements. So long as the Financial Asset
underlying any Security Entitlement owned by such Lien Grantor is credited
to a
Controlled Securities Account or to its Investment Property Collateral
Account, (i) the Transaction Lien on such Security Entitlement will be
perfected, subject to no prior Liens or rights of others (except Liens and
rights of the relevant Securities Intermediary that are Permitted
Liens), (ii) the Collateral Agent will have Control of such Security
Entitlement and (iii) no action based on an adverse claim to such Security
Entitlement or such Financial Asset, whether framed in conversion, replevin,
constructive trust, equitable lien or other theory, may be asserted against
the
Collateral Agent or any other Secured Party.
(g) Agreement
as to Applicable Jurisdiction. In respect of all Security
Entitlements owned by such Lien Grantor, and all Securities Accounts to which
the related Financial Assets are credited, the Securities Intermediary’s
jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times
be located in the United States.
(h) Delivery
of Pledged Certificates. All Pledged Certificates, when
delivered to the Collateral Agent, will be in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment
in blank, with signatures appropriately guaranteed, all in form and substance
satisfactory to the Collateral Agent.
(i) Communications. Each
Lien Grantor will promptly give to the Collateral Agent copies of any notices
and other communications received by it with respect to (i) Pledged
Securities registered in the name of such Lien Grantor or its nominee
and (ii) Pledged Security Entitlements as to which such Lien Grantor is the
Entitlement Holder.
14
(j) Compliance
with Applicable Foreign Laws. If and so long as the Collateral
includes (i) any Investment Property issued by, a legal entity organized
under the laws of a jurisdiction outside the United States or (ii) any
Security Entitlement in respect of a Financial Asset issued by such a foreign
legal entity, the relevant Lien Grantor will take all such action as may be
required under the laws of such foreign jurisdiction to ensure that the
Transaction Lien on such Collateral ranks prior to all Liens and rights of
others therein. If and so long as the Collateral includes any Pledged
Uncertificated Security issued by such a foreign legal entity, the relevant
Lien
Grantor will comply with this subsection, and will not be required to comply
with Section 5(b), with respect thereto.
Section
6. Investment Property Collateral
Accounts. (a) At any time when an Event of Default has occurred
and is continuing, the Collateral Agent will establish, at an office located
in
the United States, a Securities Account with respect to each Lien Grantor (such
Lien Grantor’s “Investment Property Collateral Account”), in
the name and under the exclusive control of the Collateral Agent, to which
there
shall be credited from time to time (i) all Securities that are to be credited
thereto pursuant to Section 10(a) or any other provision of any Security
Document, (ii) any other Financial Assets that underlie Security Entitlements
included in such Lien Grantor’s Collateral and (iii) the cash proceeds
thereof. Each Investment Property Collateral Account will be operated
as provided in Section 9.
(b) The
Collateral Agent and each Lien Grantor agree (and will cause the relevant
Securities Intermediary, if other than the Collateral Agent, to agree)
that (i) such Lien Grantor’s Investment Property Collateral Account will be
a Securities Account, (ii) the Collateral Agent will be the Entitlement
Holder with respect thereto and (iii) all property (whether Investment
Property, financial asset, security, instrument, cash or other property)
credited to such account will be treated as Financial Assets.
Section
7. Controlled Deposit
Accounts. Each Lien Grantor represents, warrants and
covenants as follows:
(a) Not
later than 90 days from the Effective Date (in the case of an Original Lien
Grantor) or the date on which it signs and delivers its first Security Agreement
Supplement (in the case of any other Lien Grantor), such Lien Grantor will,
with
respect to each of such Lien Grantor’s Deposit Account (other than the Excluded
Accounts) enter into (and cause the relevant Depository Bank to enter into)
a
Deposit Account Control Agreement in respect of such Deposit Account and will
deliver such Deposit Account Control Agreement to the Collateral Agent (which
shall enter into the same). In connection therewith, such Lien Grantor shall
caused to be delivered to the Collateral Agent an Opinion of Counsel
satisfactory to the Collateral Agent as to the creation and perfection of the
security interests
15
contemplated
by this sub-clause (a) and such other matters as the Collateral Agent may
reasonably request.
(b) All
cash owned by such Lien Grantor will be deposited, upon or promptly after the
receipt thereof, in one or more Controlled Deposit Accounts. Each Controlled
Deposit Account will be operated as provided in Section 9.
(c) In
respect of each Controlled Deposit Account, the Depositary Bank’s jurisdiction
(determined as provided in UCC Section 9-304) will at all times be a
jurisdiction in which Article 9 of the Uniform Commercial Code is in
effect.
(d) So
long as the Collateral Agent has Control of a Controlled Deposit Account, the
Transaction Lien on such Controlled Deposit Account will be perfected, subject
to no prior Liens or rights of others (except the Depositary Bank’s right to
deduct its normal operating charges and any uncollected funds previously
credited thereto).
(e) Materiality
Exception. The Lien Grantors have the right not to comply with
the foregoing provisions of this Section with respect to Deposit Accounts having
total collected balances that do not at any time exceed $1,500,000 in the
aggregate for all Lien Grantors. However, if an Event of Default
occurs and is continuing, the Collateral Agent may terminate the foregoing
right
not to comply, or reduce the amount thereof, by giving at least 10 Business
Days’ notice of such termination or reduction to the relevant Lien
Grantors.
Section
8. Cash Collateral
Account. (a) (i) The Collateral Agent will establish with
respect to the Issuer, the Issuer Cash Collateral Account, in the name and
under
the exclusive control of the Collateral Agent, into which all amounts owned
by
Issuer that are to be deposited therein pursuant to the Noteholder Documents
shall be deposited from time to time, and (ii) if and when required for purposes
hereof, the Collateral Agent will establish with respect to each Subsidiary
Guarantor an account (each, a “Subsidiary Guarantor Cash Collateral
Account”), in the name and under the exclusive control of the
Collateral Agent, into which all amounts owned by such Subsidiary Guarantor
that
are to be deposited therein pursuant to the Noteholder Documents shall be
deposited from time to time. Each Cash Collateral Account will be
operated as provided in this Section.
(b) The
Collateral Agent shall deposit the following amounts, as and when received
by
it, as follows:
16
(i) on
the Effective Date, $18,000,000 (the “Escrow Amount”) to be
deposited into the Issuer’s Cash Collateral Account as required by Section
6.01(c) of the Indenture; and
(ii)
each
amount required by Section 5.13(a)(v) of the Indenture to be deposited into
Issuer’s Cash Collateral Account or such Subsidary Guarantor’s Cash Collateral
Account, as applicable; and
(iii)
each
amount
realized or otherwise received by the Collateral Agent with respect to the
assets of the Lien Grantors upon any exercise of remedies pursuant to any
Noteholder Document in the Issuer’s Cash Collateral Account or such Subsidiary
Guarantor’s Cash Collateral Account, as applicable.
(c) The
Collateral Agent shall maintain such records and/or establish such sub-accounts
as shall be required to enable it to identify the amounts held in the Cash
Collateral Accounts from time, as applicable. All withdrawals and application
of
amounts from the Cash Collateral Accounts shall be in accordance with this
Section 8, Section 9 and Article 5 or 6 of the Indenture.
(d) If
an Event of Default shall have occurred and is continuing, the Collateral Agent
may (a) liquidate any or all investments held in the Cash Collateral Accounts
and/or (b) withdraw any amounts held therein and apply such amounts as provided
in Article 6 of the Indenture.
(e) Upon
the termination of the Transaction Liens in accordance with Section 19(a)
hereof, to the extent that any amounts credited to such Cash Collateral Account
shall have not withdrawn by the Collateral Agent and applied in accordance
with
the terms of the Indenture, such amounts shall, at the relevant Lien Grantor’s
request, be withdrawn and returned to such Lien Grantor if and when permitted
by
the terms of the Indenture (it being understood that the Collateral Agent shall
be entitled to deduct such amounts owing to it under the Indenture or this
Agreement and any amounts returned to such Lien Grantor shall be net of the
foregoing amounts).
Section
9. Operation of Collateral
Accounts. (a) All Cash Distributions received with respect to assets
held in any Collateral Account shall be deposited therein promptly upon receipt
thereof.
(b) Funds
held in any Controlled Securities Account or Investment Property Collateral
Account may, until withdrawn, be invested and reinvested in such Permitted
Investments as the relevant Lien Grantor shall request from time
17
to
time; provided that, if an Event of Default shall have occurred and be
continuing, Collateral Agent may select such Permitted Investments.
(c) Funds
held in any Controlled Deposit Account or Cash Collateral Account may, until
withdrawn, be invested and reinvested in such Liquid Investments as the relevant
Lien Grantor shall request from time to time; provided that (i) if an
Event of Default shall have occurred and be continuing, Collateral Agent may
select such Liquid Investments and (ii) if such Liquid Investments are to
be held in a Securities Account, either (x) the Collateral Agent is the
Entitlement Holder with respect to such Liquid Investments or (y) the relevant
Entitlement Holder and the relevant Securities Intermediary shall have
theretofore entered into a Securities Account Control Agreement with respect
to
such Securities Account and delivered it to the Collateral Agent (which shall
enter into the same).
(d) With
respect to each Collateral Account (except a Cash Collateral Account, as to
which Section 8 applies), the Collateral Agent will instruct the relevant
Securities Intermediary or Depositary Bank that the relevant Lien Grantor may
withdraw, or direct the disposition of, funds held therein unless and until
the
Collateral Agent rescinds such instruction. The Collateral Agent will
not rescind such instructions unless an Event of Default shall have occurred
and
be continuing. With respect to each Cash Collateral Account, the Collateral
Agent will instruct the relevant Depository Bank that no funds therein may
be
withdrawn for any purpose or released to the relevant Lien Grantor unless such
instruction is given pursuant to the terms of the Indenture, provided that
in no
event shall the Escrow Amount be released to the Issuer until the
Collateral Agent notifies the Depository Bank that the Termination Date has
occurred.
(e) No
Lien Grantor will cause funds to be transferred from a Collateral Account to
any
other account owned by the Issuer or its Subsidiaries unless such other account
is a Collateral Account, provided that, subject to subsection (c)
above, a Lien Grantor may transfer funds from any Collateral Account (except
a
Cash Collateral Account) to any account that is not a Collateral Account unless,
immediately after such transfer, the aggregate amount held in all such accounts
that are not Collateral Accounts would exceed $1,500,000.
(f) If
an Event of Default shall have occurred and be continuing, the Collateral Agent
may (i) retain, or instruct the relevant Securities Intermediary or
Depositary Bank to retain, all cash and investments then held in any Collateral
Account, (ii) liquidate, or instruct the relevant Securities Intermediary or
Depositary Bank to liquidate, any or all investments held therein and/or (iii)
withdraw any amounts held therein and apply such amounts as provided in Section
14.
18
(g) If
immediately available cash on deposit in any Collateral Account is not
sufficient to make any distribution or withdrawal to be made pursuant hereto,
the Collateral Agent will cause to be liquidated, as promptly as practicable,
such investments held in or credited to such Collateral Account as shall be
required to obtain sufficient cash to make such distribution or withdrawal
and,
notwithstanding any other provision hereof, such distribution or withdrawal
shall not be made until such liquidation has taken place.
Section
10. Transfer Of Record
Ownership. (a)At any time when an Event of Default shall have
occurred and be continuing, the Collateral Agent may (and to the extent that
action by it is required, the relevant Lien Grantor, if directed to do so by
the
Collateral Agent, will as promptly as practicable):
(i) cause
each of the Pledged Security (or any portion thereof specified in such
direction) to be (x) transferred of record into the name of the Collateral
Agent
or its nominee or (y) credited to the relevant Lien Grantor’s Investment
Property Collateral Account; and
(ii) cause
the Financial Asset underlying each Pledged Security Entitlement to be credited
to the relevant Lien Grantor’s Investment Property Collateral
Account.
(b) Perfection
upon Transfer of Record Ownership. If and when any Pledged
Security (whether certificated or uncertificated) owned by such Lien Grantor
is
transferred of record into the name of the Collateral Agent or its nominee
pursuant to Section 10(a), (i) the Transaction Lien on such Pledged Security
will be perfected, subject to no prior Liens or rights of others, (ii) the
Collateral Agent will have Control of such Pledged Security and (iii) the
Collateral Agent will be a protected purchaser (within the meaning of UCC
Section 8-303) thereof. If and when any Pledged Security owned by
such Lien Grantor is credited to its Investment Property Collateral Account
pursuant to Section 10(a), Section 5(f) will apply to the resulting Security
Entitlement.
(c) Provisions
Inapplicable after Transfer of Record Ownership. If the
provisions of Section 10(a) are implemented, Sections 5(b) and 5(c) shall not
thereafter apply to (i) any Pledged Security that is registered in the name
of
the Collateral Agent or its nominee or (ii) any Security Entitlement in respect
of which the Collateral Agent or its nominee is the Entitlement
Holder.
(d) Communications
after Transfer of Record Ownership. The Collateral Agent will
promptly give to the relevant Lien Grantor copies of any notices and other
communications received by the Collateral Agent with respect to (i) Pledged
Securities registered in the name of the Collateral Agent or
19
its
nominee and (ii) Pledged Security Entitlements as to which the Collateral
Agent or its nominee is the Entitlement Holder.
Section
11. Right to Vote
Securities. (a) Unless an Event of Default shall have occurred
and be continuing, each Lien Grantor will have the right, from time to time,
to
vote and to give consents, ratifications and waivers with respect to any Pledged
Security owned by it and the Financial Asset underlying any Pledged Security
Entitlement owned by it, and the Collateral Agent will, upon receiving a written
request from such Lien Grantor, deliver to such Lien Grantor or as specified
in
such request such proxies, powers of attorney, consents, ratifications and
waivers in respect of any such Security that is registered in the name of the
Collateral Agent or its nominee or any such Pledged Security Entitlement as
to
which the Collateral Agent or its nominee is the Entitlement Holder, in each
case as shall be specified in such request and be in form and substance
satisfactory to the Collateral Agent. Unless an Event of Default
shall have occurred and be continuing, the Collateral Agent will have no right
to take any action which the owner of a Pledged Partnership Interest or Pledged
LLC Interest is entitled to take with respect thereto, except the right to
receive payments and other distributions to the extent provided
herein.
(b) If
an Event of Default shall have occurred and be continuing, the Collateral Agent
will have the right to the extent permitted by law (and, in the case of a
Pledged Partnership Interest or Pledged LLC Interest, by the relevant
partnership agreement, limited liability company agreement, operating agreement
or other governing document) to vote, to give consents, ratifications and
waivers and to take any other action with respect to the Pledged Investment
Property, the other Pledged Equity Interests (if any) and the Financial Assets
underlying the Pledged Security Entitlements, with the same force and effect
as
if the Collateral Agent were the absolute and sole owner thereof, and each
Lien
Grantor will take all such action as the Collateral Agent may reasonably request
from time to time to give effect to such right.
Section
12. Certain Cash
Distributions. Cash Distributions with respect to
assets held in a Collateral Account shall be deposited and held therein, or
withdrawn therefrom, as provided in Section 9. Cash Distributions
with respect to any Pledged Equity Interest that is not held in a Collateral
Account (whether held in the name of a Lien Grantor or in the name of the
Collateral Agent or its nominee) shall be deposited, promptly upon receipt
thereof, in a Controlled Deposit Account of the relevant Lien Grantor;
provided that, if an Event of Default shall have occurred and be
continuing, the Collateral Agent may deposit, or direct the recipient thereof
to
deposit, each such Cash Distribution in the relevant Lien Grantor’s Cash
Collateral Account.
20
Section
13. Remedies upon Event of
Default. (a) If an Event of Default shall have occurred and be
continuing, the Collateral Agent may exercise (or cause its sub-agents to
exercise) any or all of the remedies available to it (or to such sub-agents)
under the Security Documents.
(b) Without
limiting the generality of the foregoing, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise on behalf of
the
Secured Parties all the rights of a secured party under the UCC (whether or
not
in effect in the jurisdiction where such rights are exercised) with respect
to
the Collateral and, in addition, the Collateral Agent may, without being
required to give any notice, except as herein provided or as may be required
by
mandatory provisions of law, withdraw all cash held in the Collateral
Accounts and apply such cash as provided in Section 14 and, if there
shall be no such cash or if such cash shall be insufficient to pay all the
Secured Obligations in full, sell, lease, license or otherwise dispose of the
Collateral or any part thereof. Notice of any such sale or other
disposition shall be given to the relevant Lien Grantor(s) as required by
Section 16.
Section
14. Application of
Proceeds. (a) If an Event of Default shall have occurred
and be continuing, the Collateral Agent may apply (i) any cash held in the
Collateral Accounts and (ii) the proceeds of any sale or other disposition
of
all or any part of the Collateral (after payment of any amounts payable to
the
Collateral Agent pursuant to Section 9.06 of the Indenture) for the ratable
benefit of the Secured Parties against all or any part of the Secured
Obligations in accordance with the terms of the Indenture, as the case may
be. Any surplus of such cash or cash proceeds held by the Collateral
Agent and remaining on the Termination Date for the Issuer shall be paid over
to
the Issuer or to whomsoever may be lawfully entitled to receive such
surplus.
Section
15. Fees
and Expenses;
Indemnification. (a) The Issuer will forthwith upon demand
pay to the Collateral Agent:
(i) the
amount of any taxes that the Collateral Agent may have been required to pay
by
reason of the Transaction Liens or to free any Collateral from any other Lien
thereon;
(ii) the
amount of any and all reasonable out-of-pocket expenses, including transfer
taxes and reasonable fees and expenses of counsel and other experts, that the
Collateral Agent may incur in connection with (x) the administration or
enforcement of the Security Documents, including such expenses as are incurred
to preserve the value of the Collateral or the validity, perfection, rank or
value of any Transaction Lien, (y) the collection, sale or other disposition
of
any
21
Collateral
or (z) the exercise by the Collateral Agent of any of its rights or powers
under
the Security Documents;
(iii) the
amount of any fees that the Issuer shall have agreed in writing to pay to the
Collateral Agent and that shall have become due and payable in accordance with
such written agreement; and
(iv)
the amount required to indemnify the Collateral Agent for, or hold
it harmless and defend it against, any loss, liability or expense (including
the
reasonable fees and expenses of its counsel and any experts or sub-agents
appointed by it hereunder) incurred or suffered by the Collateral Agent in
connection with the Security Documents, except to the extent that such loss,
liability or expense arises from the Collateral Agent’s gross negligence or
willful misconduct or a breach of any duty that the Collateral Agent has under
this Agreement (after giving effect to Sections 17 and 18).
(b) If
any transfer tax, documentary stamp tax or other tax is payable in connection
with any transfer or other transaction provided for in the Security Documents,
the Issuer will pay such tax and provide any required tax stamps to the
Collateral Agent or as otherwise required by law.
(c) The
Issuer shall indemnify each of the Secured Parties, their respective affiliates
and the respective directors, officers, agents and employees of the foregoing
(each an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all liabilities, losses, damages, costs and expenses
of
any kind (including reasonable expenses of investigation by engineers,
environmental consultants and similar technical personnel and reasonable fees
and disbursements of counsel) arising out of, or in connection with any and
all
Environmental Liabilities. Without limiting the generality of the
foregoing, each Lien Grantor waives all rights for contribution and all other
rights of recovery with respect to liabilities, losses, damages, costs and
expenses arising under or related to Environmental Laws that it might have
by
statute or otherwise against any Indemnitee.
Section
16. Authority to Administer
Collateral. Each Lien Grantor irrevocably appoints the
Collateral Agent its true and lawful attorney, with full power of substitution,
in the name of such Lien Grantor, any Secured Party or otherwise, for the sole
use and benefit of the Secured Parties, but at the Issuer’s expense, to the
extent permitted by law to exercise, at any time and from time to time while
an
Event of Default shall have occurred and be continuing, all or any of the
following powers with respect to all or any of such Lien Grantor’s
Collateral:
22
(a) to
demand, xxx for, collect, receive and give acquittance for any and all monies
due or to become due upon or by virtue thereof,
(b) to
settle, compromise, compound, prosecute or defend any action or proceeding
with
respect thereto,
(c) to
sell, lease, license or otherwise dispose of the same or the proceeds or avails
thereof, as fully and effectually as if the Collateral Agent were the absolute
owner thereof, and
(d) to
extend the time of payment of any or all thereof and to make any allowance
or
other adjustment with reference thereto;
provided
that, the Collateral Agent will give the relevant Lien Grantor at least ten
days’ prior written notice of the time and place of any public sale thereof or
the time after which any private sale or other intended disposition thereof
will
be made. Any such notice shall (i) contain the information specified in UCC
Section 9-613, (ii) be Authenticated and (iii) be sent to the parties
required to be notified pursuant to UCC Section 9-611(c); provided
that, if the Collateral Agent fails to comply with this sentence in any respect,
its liability for such failure shall be limited to the liability (if any)
imposed on it as a matter of law under the UCC.
Section
17. Limitation on Duty in Respect of
Collateral. Beyond the exercise of reasonable care in
the custody and preservation thereof, the Collateral Agent will have no duty
as
to any Collateral in its possession or control or in the possession or control
of any sub-agent or bailee or any income therefrom or as to the preservation
of
rights against prior parties or any other rights pertaining
thereto. The Collateral Agent will be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession or control if such Collateral is accorded treatment substantially
equal to that which it accords its own property, and will not be liable or
responsible for any loss or damage to any Collateral, or for any diminution
in
the value thereof, by reason of any act or omission of any sub-agent or bailee
selected by the Collateral Agent in good faith, except to the extent that such
liability arises from the Collateral Agent’s gross negligence or willful
misconduct.
Section
18. General Provisions Concerning the
Collateral Agent. (a) Authority. The
Collateral Agent is authorized to take such actions and to exercise such powers
as are delegated to the Collateral Agent by the terms of the Security Documents,
together with such actions and powers as are reasonably incidental
thereto.
(b) Rights
and Powers as a Secured Party. The bank serving as the
Collateral Agent shall, in its capacity as a Secured Party, have the same rights
and
23
powers
as any other Secured Party and may exercise the same as though it were not
the
Collateral Agent. Such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with the
Issuer, its Subsidiaries or Affiliate thereof as if it were not the Collateral
Agent hereunder.
(c) Limited
Duties and Responsibilities. The Collateral Agent shall not have
any duties or obligations under the Security Documents except those expressly
set forth therein. Without limiting the generality of the
foregoing, (i) the Collateral Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether an Event of Default has occurred
and is continuing, (ii) the Collateral Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Noteholder
Documents that the Collateral Agent is required in writing to exercise by the
Noteholders, and (iii) except as expressly set forth in the Noteholder
Documents, the Collateral Agent shall not have any duty to disclose, and shall
not be liable for any failure to disclose, any information relating to the
Issuer or its Subsidiaries that is communicated to or obtained by the bank
serving as Collateral Agent or any of its Affiliates in any
capacity. The Collateral Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Noteholders
(or such other number or percentage of the Noteholders as shall be necessary
under the circumstances as provided in the Indenture) or in the absence of
its
own gross negligence or wilful misconduct. The Collateral Agent shall not be
responsible for the existence, genuineness or value of any Collateral or for
the
validity, perfection, priority or enforceability of any Transaction Lien,
whether impaired by operation of law or by reason of any action or omission
to
act on its part under the Security Documents. The Collateral Agent shall be
deemed not to have knowledge of any Event of Default unless and until written
notice thereof is given to the Collateral Agent by the Issuer or a Secured
Party, and the Collateral Agent shall not be responsible for or have any duty
to
ascertain or inquire into (A) any statement, warranty or representation
made in or in connection with any Security Document, (B) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (C) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Security
Document, (D) the validity, enforceability, effectiveness or genuineness of
any Security Document or any other agreement, instrument or document,
or (E) the satisfaction of any condition set forth in any Security
Document.
(d) Authority
to Rely on Certain Writings, Statements and Advice. The
Collateral Agent shall be entitled to rely on, and shall not incur any liability
for relying on, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or
24
sent
by the proper Person. The Collateral Agent also may rely on any
statement made to it orally or by telephone and believed by it to be made by
the
proper Person, and shall not incur any liability for relying
thereon. The Collateral Agent may consult with legal counsel (who may
be counsel for the Issuer), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountant or
expert.
(e) Information
as to Secured Obligations and Actions by Secured Parties. For
all purposes of the Security Documents, the Collateral Agent will be entitled
to
rely on information from (i) its own records for information as to the Secured
Obligations outstanding under the Indenture and actions taken by the holders
thereof, (ii) any Secured Party for information as to its Secured Obligations
and actions taken by it, and (iii) the Issuer, to the extent that the Collateral
Agent has not obtained information from the foregoing sources.
(f) The
Collateral Agent may refuse to act on any notice, consent, direction or
instruction from any Secured Parties or any agent, trustee or similar
representative thereof that, in the Collateral Agent’s opinion, (i) is
contrary to law or the provisions of any Security Document, (ii) may expose
the
Collateral Agent to liability (unless the Collateral Agent shall have been
indemnified, to its reasonable satisfaction, for such liability by the Secured
Parties that gave such notice, consent, direction or instruction) or (iii)
is unduly prejudicial to Secured Parties not joining in such notice, consent,
direction or instruction.
Section
19. Termination of Transaction Liens;
Release of Collateral. (a) On the Termination Date, the
Transaction Liens granted by each Lien Grantor shall automatically terminate
and
all rights to the Collateral of such Lien Grantor shall revert to such Lien
Grantor.
(b) Upon
any termination of the Transaction Liens, the Collateral Agent will, at the
expense of the relevant Lien Grantor, execute and deliver to such Lien Grantor
such documents as such Lien Grantor shall reasonably request to evidence the
termination of such Transaction Lien or the release of such Collateral, as
the
case may be.
Section
20. Notices. Each
notice, request or other communication given to any party hereunder shall be
in
writing (which term includes facsimile or other electronic transmission) and
shall be effective (i) when delivered to such party at its address specified
below, (ii) when sent to such party by facsimile or other electronic
transmission, addressed to it at its facsimile number or electronic address
specified below, and such party sends back an electronic confirmation of receipt
or (iii) ten days after being sent to such party by certified or registered
United States mail, addressed to it at its address specified on its signature
page, with first class or airmail postage prepaid. Any party may change its
address, facsimile number and/or e-mail address for purposes of this Section
by
giving
25
notice
of such change to the Collateral Agent and the Lien Grantors in the manner
specified above.
Section
21. No
Implied Waivers; Remedies Not
Exclusive. No failure by the Collateral Agent or any
Secured Party to exercise, and no delay in exercising and no course of dealing
with respect to, any right or remedy under any Security Document shall operate
as a waiver thereof; nor shall any single or partial exercise by the Collateral
Agent or any Secured Party of any right or remedy under any Noteholder Document
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies specified in the Noteholder
Documents are cumulative and are not exclusive of any other rights or remedies
provided by law.
Section
22. Successors and
Assigns. This Agreement is for the benefit of the
Collateral Agent and the Secured Parties. If all or any part of any
Secured Party’s interest in any Secured Obligation is assigned or otherwise
transferred, the transferor’s rights hereunder, to the extent applicable to the
obligation so transferred, shall be automatically transferred with such
obligation. This Agreement shall be binding on the Lien Grantors and
their respective successors and assigns.
Section
23. Amendments, Waivers and
Additional Lien Grantors.
(a) No
amendment to or waiver of any provision of this Agreement nor consent to any
departure by any Lien Grantor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Collateral Agent and, with
respect to any such amendment, by each Lien Grantor, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. This Agreement shall be construed as a
separate agreement with respect to each Lien Grantor and may be amended,
modified, supplemented, waived or released with respect to any Lien Grantor
without the approval of any other Lien Grantor and without affecting the
obligations of any other Lien Grantor hereunder.
(b) Upon
execution and delivery by the Collateral Agent and any Person of a Security
Agreement Supplement, such Person shall become a Lien Grantor hereunder with
the
same force and effect as if originally named as a Lien Grantor
herein. The execution and delivery of any such Security Agreement
Supplement shall not require the consent of any other Lien Grantor
hereunder. The rights and obligations of each Lien Grantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Grantor as a party to this Agreement.
26
(c) Upon
the delivery by the Issuer and any other Lien Grantor of a Security Agreement
Supplement certifying supplements to the Schedules hereto in respect of any
Lien
Grantor, such schedule supplements shall be incorporated into and become a
part
of and supplement the Schedules hereto and the Collateral Agent may attach
such
schedule supplements to such Schedules, and each reference to the Schedules
shall mean and be a reference to such Schedules, as supplemented pursuant to
any
such Security Agreement Supplement. For the avoidance of doubt, the
delivery of any Security Agreement Supplement shall not effect any release
of
the security interest granted by any Lien Grantor hereunder unless and until
such release shall be effective pursuant to Section 19.
Section
24. Choice of
Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any jurisdiction other than the State of New York are
governed by the laws of such jurisdiction.
Section
25. Waiver of Jury
Trial. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY
SECURITY DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section
26. Severability. If any provision of
any Security Document is invalid or unenforceable in any jurisdiction, then,
to
the fullest extent permitted by law, (i) the other provisions of the Security
Documents shall remain in full force and effect in such jurisdiction and shall
be liberally construed in favor of the Collateral Agent and the Secured Parties
in order to carry out the intentions of the parties thereto as nearly as may
be
possible and (ii) the invalidity or unenforceability of such provision in such
jurisdiction shall not affect the validity or enforceability thereof in any
other jurisdiction.
27
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Vice President and Chief Financal Officer | |
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
|
US
BANK NATIONAL ASSOCIATION, as
Trustee and Collateral Agent
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
|
Name:
|
Xxxxxxx Xxxxxxxx | |
|
Title:
|
Vice President | |
U.S.
Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention:
Corporate Trust Services
(Evergreen
8.00% Convertible Secured Notes due 2012)
Fax: (000) 000-0000
Guarantors:
|
EVERGREEN
OPERATIONS, LLC
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx
X. Xxxxx
|
|
|
Title:
|
Vice President and Chief Financial Officer | |
Evergreen
Operations, LLC
c/o
Evergreen Energy Inc.
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
Guarantors:
|
KFX
PLANT, LLC
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Vice President and Chief Financial Officer | |
KFx
Plant, LLC
c/o
Evergreen Energy Inc.
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
Guarantors:
|
KFX
OPERATIONS, LLC
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Vice President and Chief Financial Officer | |
KFx
Operations, LLC
c/o
Evergreen Energy Inc.
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
Guarantors:
|
LANDRICA
DEVELOPMENT COMPANY
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Vice President and Chief Financial Officer | |
Landrica
Development Company
c/o
Evergreen Energy Inc.
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
Guarantors:
|
BUCKEYE
INDUSTRIAL MINING CO.
|
||
|
By:
|
Xxxxx X. Xxxxx | |
|
Name:
|
Xxxxx X. Xxxxx | |
|
Title:
|
Vice President and Chief Financial Officer | |
Buckeye
Industrial Mining Co.
c/o
Evergreen Energy Inc.
0000
00xx Xxxxxx,
Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile
No.: (000) 000-0000
SCHEDULE
1
PLEDGED
INVESTMENT PROPERTY AND DEPOSIT ACCOUNTS
OWNED
BY ORIGINAL LIEN GRANTORS
(as
of the Effective Date)
PART
1 — Securities
|
Issuer
|
Jurisdiction
of
Organization
|
Owner
of Securities
|
Amount
Owned
|
Type
of
Security
|
||||
PART
2 — Securities Accounts
The
Original Lien Grantors own Security Entitlements with respect to Financial
Assets credited to the following Securities Accounts:1
|
Owner
|
Securities
Intermediary
|
Account
Number
|
||
_____________________
1 If
any
such Securities Account holds material long-term investments and is not a
trading account, more detailed information as to such investments could
appropriately be required to be disclosed in this
Schedule.
S-2-1
PART
3 — Deposit Accounts
The
Original Lien Grantors own the following Deposit Accounts:
|
Lien
Grantor
|
Account
Bank
|
Account
Number
|
||
Part
4 – Issuer Cash Collateral
Account
|
Issuer
|
Account
Bank
|
Account
Number
|
||
S-2-2
EXHIBIT
A
to
Security Agreement
SECURITY
AGREEMENT SUPPLEMENT
SECURITY
AGREEMENT SUPPLEMENT dated as of _______, ____, between [NAME OF LIEN GRANTOR]
(the “Lien Grantor”) and US BANK NATIONAL ASSOCIATION, as
Collateral Agent.
WHEREAS,
Evergreen Energy Inc., the other lien grantors named therein, and the Collateral
Agent, have entered into an Indenture, dated as of July 30, 2007 (as amended,
restated, supplemented or otherwise modified from time to time, the
“Indenture”), providing for the issuance of the 8.00%
Convertible Senior Notes due 2012 (the “Notes”) of the Issuer,
all as contemplated therein (with the holders from time to time of Notes being
referred to herein as the “Holders” and, together with the
Collateral Agent, as the “Secured Parties”);
WHEREAS,
pursuant to Section 13 of the Indenture, each Lien Grantor (other than the
Issuer) has jointly and severally guaranteed to the Secured Parties the payment
when due of all the Secured Obligations (as hereinafter defined);
WHEREAS,
[name of Lien Grantor] desires to become [is] a party to the Security Agreement
as a Lien Grantor thereunder;2
and
WHEREAS,
terms defined in the Security Agreement (or whose definitions are incorporated
by reference in Section
1of the Security Agreement) and not otherwise defined herein have, as
used herein, the respective meanings provided for therein;
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Grant
of Transaction Liens. (a) In order to secure the Secured
Obligations, the Lien Grantor grants to the Collateral Agent for the benefit
of
the Secured Parties a continuing security interest in all the following property
of the Lien Grantor, whether now owned or existing or hereafter acquired or
arising and regardless of where located (the “New
Collateral”):
2 If
the
Lien Grantor is the Borrower, delete this recital and Section 1
hereof.
A-1
[describe
property being added to the Collateral]
(b) With
respect to each right to payment or performance included in the Collateral
from
time to time, the Transaction Lien granted therein includes a continuing
security interest in (i) any Supporting Obligation that supports such
payment or performance and (ii) any Lien that (x) secures such right to
payment or performance or (y) secures any such Supporting
Obligation.
(c) The
foregoing Transaction Liens are granted as security only and shall not subject
the Collateral Agent or any other Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of the Lien Grantor with respect
to any of the New Collateral or any transaction in connection
therewith.
2. Delivery
of Collateral. Concurrently with delivering this Security
Agreement Supplement to the Collateral Agent, the Lien Grantor is complying
with
the provisions of Section
5 of the Security Agreement with respect to Investment Property, in each
case if and to the extent included in the New Collateral at such
time.
3. Party
to Security Agreement. Upon delivering this Security Agreement
Supplement to the Collateral Agent, the Lien Grantor will become a party to
the
Security Agreement and will thereafter have all the rights and obligations
of a
Lien Grantor thereunder and be bound by all the provisions thereof as fully
as
if the Lien Grantor were one of the original parties thereto.
4. Address
of Lien Grantor. The address, facsimile number and e-mail
address of the Lien Grantor for purposes of of the Security Agreement are as
set
forth on its signature page appended to this Supplement3.
5. Representations
and Warranties.4 The
Lien Grantor is a corporation duly organized, validly existing and in good
standing under the laws of [jurisdiction of organization].
(a) The
Lien Grantor has delivered a Perfection Certificate to the Collateral
Agent. The information set forth therein is correct and
4 Modify
as
needed if the Lien Grantor is not a corporation.
A-2
complete
as of the date hereof. Within 60 days after the date hereof, the Lien
Grantor will furnish to the Collateral Agent a file search report from each
UCC
filing office listed in such Perfection Certificate, showing the filing made
at
such filing office to perfect the Transaction Liens on the New
Collateral.
(b) The
execution and delivery of this Security Agreement Supplement by the Lien Grantor
and the performance by it of its obligations under the Security Agreement as
supplemented hereby are within its corporate or other powers, have been duly
authorized by all necessary corporate or other action, require no action by
or
in respect of, or filing with, any governmental body, agency or official and
do
not contravene, or constitute a default under, any provision of applicable
law
or regulation or of its organizational documents, or of any agreement, judgment,
injunction, order, decree or other instrument binding upon it or result in
the
creation or imposition of any Lien (except a Transaction Lien) on any of its
assets.
(c) The
Security Agreement as supplemented hereby constitutes a valid and binding
agreement of the Lien Grantor, enforceable in accordance with its terms, except
as limited by (i) applicable bankruptcy, insolvency, fraudulent conveyance
or other similar laws affecting creditors’ rights generally and (ii)
general principles of equity.
(d) Each
of the representations and warranties set forth in Sections 3
through 10
of the Security Agreement is true as applied to the Lien Grantor and the New
Collateral. For purposes of the foregoing sentence, references in
said Sections to a “Lien Grantor” shall be deemed to refer to the Lien Grantor,
references to Schedules to the Security Agreement shall be deemed to refer
to
the corresponding Schedules to this Security Agreement Supplement, references
to
“Collateral” shall be deemed to refer to the New Collateral, and references to
the “Effective Date” shall be deemed to refer to the date on which the Lien
Grantor signs and delivers this Security Agreement Supplement.
6. Governing
Law. This Security Agreement Supplement shall be construed in
accordance with and governed by the laws of the State of New York.
A-3
IN
WITNESS WHEREOF, the parties hereto have caused this Security Agreement
Supplement to be duly executed by their respective authorized officers as of
the
day and year first above written.
|
[NAME
OF LIEN GRANTOR]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
US
BANK NATIONAL ASSOCIATION, as Collateral Agent
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
A-4
Schedule
1
to
Security Agreement
Supplement
PLEDGED
EQUITY INTERESTS
OWNED
BY LIEN GRANTOR
|
Issuer
|
Jurisdiction
of
Organization
|
Percentage
Owned
|
Number
of
Shares
or Units
|
|||
A-5
Schedule
2
to
Security Agreement
Supplement
INVESTMENT
PROPERTY AND DEPOSIT ACCOUNTS
(other
than Equity Interests in Subsidiaries and Affiliates)
OWNED
BY LIEN GRANTOR
PART
1 — Securities
|
Issuer
|
Jurisdiction
of
Organization
|
Amount
Owned
|
Type
of Security
|
|||
PART
2 — Securities Accounts
The
Lien Grantor owns Security Entitlements with respect to Financial Assets
credited to the following Securities Accounts:5
|
Securities
Intermediary
|
Account
Number
|
|
5 If
any
such Securities Account holds material long-term investments and is not a
trading account, more detailed information as to such investments could
appropriately be required to be disclosed in this Schedule.
A-6
PART
3 — Deposit Accounts
The
Lien Grantor owns the following Deposit Accounts:
|
Lien
Grantor
|
Account
Bank
|
Account
Number
|
||
A-7
EXHIBIT
B
to
Security Agreement
PERFECTION
CERTIFICATE
The
undersigned is a duly authorized officer of [NAME OF LIEN GRANTOR] (the
“Lien Grantor”). With reference to the Security
Agreement dated as of July [__], 2007 among EVERGREEN ENERGY INC.,
EVERGREEN OPERATIONS, LLC, KFX PLANT, LLC, KFX OPERATIONS, LLC, LANDRICA
DEVELOPMENT COMPANY, BUCKEYE INDUSTRIAL MINING CO. and US BANK
NATIONAL ASSOCIATION, as Collateral Agent (terms defined therein being used
herein as therein defined), the undersigned certifies to the Collateral Agent
and each other Secured Party as follows:
A. Information
Required for Filings and Searches for Prior Filings.
1. Jurisdiction
of Organization. The Lien Grantor is a corporation6
organized under the laws of ___________.
2. Name. The
exact [corporate] name of the Lien Grantor as it appears in its [certificate
of
incorporation] is as follows:
3. Prior
Names; Predecessors. Set forth below is each other corporate
name that the Lien Grantor has had since its organization, together with the
date of the relevant change:
(a) Except
as set forth in Schedule I hereto, the Lien Grantor has not changed its
corporate structure7
in any way within the past five years.
____________________
7 Changes
in corporate structure would include mergers and consolidations, as well
as any
change in the Lien Grantor’s form of organization. If any such change
has occurred, include in Schedule I the information required by Part A of
this
certificate as to each constituent party to a merger or consolidation and
any
other predecessor organization.
B-1
4. Organizational
ID Number. Set forth below is the Organizational Identification
Number, if any, issued by the jurisdiction of organization of the Lien
Grantor.
5. Chief
Executive Office. The chief executive office of the Lien Grantor
(or its place of business if there is only one) is located at the following
address:
|
Mailing
Address
|
County
|
State
|
||
B. Search
Reports.
Attached
hereto as Schedule II is a true copy of a file search report from the central
UCC filing office in each jurisdiction identified in Part A
above with respect to each name set forth in Part A–2and
Part A–3
above.
IN
WITNESS WHEREOF, I have hereunto set my hand this __ day of __________,
____.
|
Name:
|
|
|
Title:
|
|
B-2
SCHEDULE
I
CORPORATE
STRUCTURE CHANGES
SCHEDULE
II
LIEN
SEARCHES
