Exhibit 10.2
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT dated as of May 26,
1998 made by PHP HEALTHCARE CORPORATION, a Delaware corporation (the
"Borrower"), each of the other Persons listed on the signature pages hereof
under the caption "Grantors" and the Additional Grantors (as defined in Section
25(c)) (the Borrower, the other Persons so listed and the Additional Grantors
being, collectively, the "Grantors") to NationsBank, N.A. ("NationsBank"), as
administrative agent (the "Administrative Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS.
(1) The Borrower entered into a Credit Agreement dated as of
October 31, 1997, as heretofore amended (as so amended, the "Existing Credit
Agreement") with the banks, financial institutions and other institutional
lenders party thereto (the "Existing Lenders") and NationsBank as administrative
agent (the "Existing Administrative Agent"). In connection with the Existing
Credit Agreement, the Grantors entered into a Security Agreement dated as of
October 31, 1997 (the "Existing Security Agreement") in favor of the Existing
Administrative Agent.
(2) The Borrower has entered into an Amended and Restated
Credit Agreement dated as of May 26, 1998 (said Agreement, as it may hereafter
be amended or otherwise modified from time to time, being the "Credit
Agreement"; the terms defined therein and not otherwise defined herein being
used herein as therein defined) with the banks, financial institutions and other
institutional lenders party thereto (the "Lenders"), NationsBank, as initial
issuing bank and the Administrative Agent.
(3) Each Grantor is the owner of the shares (the "Pledged
Shares") of stock set forth opposite such Grantor's name in Part I of Schedule I
hereto and issued by the corporations named therein and of the indebtedness (the
"Pledged Debt") set forth opposite such Grantor's name in Part II of said
Schedule I and issued by the obligors named therein.
(4) The Borrower has opened a non-interest bearing cash
collateral account (the "Cash Collateral Account") with NationsBank at its
office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Account No.
375-052-7254, in the name of the Borrower but under the sole control and
dominion of the Administrative Agent and subject to the terms of this Agreement.
(5) The Borrower has opened a non-interest bearing cash
collateral account (the "L/C Cash Collateral Account") with NationsBank at its
office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Account No.
375-089-7418, in the name of the Borrower but under the sole control and
dominion of the Administrative Agent and subject to the terms of this Agreement.
(6) It is a condition precedent to the effectiveness of the
Credit Agreement, that the Grantors shall have amended and restated the Existing
Security Agreement as set forth herein.
NOW THEREFORE, in consideration of the premises and in order
to induce the Lender Parties to enter into the Credit Agreement, each of the
Grantors hereby agrees with the Administrative Agent for its benefit and the
ratable benefit of the Secured Parties to amend and restate the Existing
Security Agreement as follows:
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Section 1. Grant of Security. Each of the Grantors hereby
assigns and pledges to the Administrative Agent for its benefit and the ratable
benefit of the Secured Parties, and hereby grants to the Administrative Agent
for its benefit and the ratable benefit of the Secured Parties a security
interest in, the following (collectively, the "Collateral"):
(a) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all equipment in all of its
forms, wherever located, now or hereafter existing, all fixtures and
all parts thereof and all accessions thereto (any and all such
equipment, fixtures, parts and accessions being the "Equipment");
(b) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all inventory in all of its
forms, wherever located, now or hereafter existing (including, but not
limited to, (i) all raw materials and work in process therefor,
finished goods thereof and materials used or consumed in the
manufacture or production thereof, (ii) goods in which such Grantor has
an interest in mass or a joint or other interest or right of any kind
(including, without limitation, goods in which such Grantor has an
interest or right as consignee) and (iii) goods that are returned to or
repossessed by such Grantor), and all accessions thereto and products
thereof and documents therefor (any and all such inventory, accessions,
products and documents being the "Inventory");
(c) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all accounts, contract
rights, chattel paper, instruments, deposit accounts, general
intangibles and other obligations of any kind, now or hereafter
existing, whether or not arising out of or in connection with the sale
or lease of goods or the rendering of services, and all rights now or
hereafter existing in and to all security agreements, leases and other
contracts securing or otherwise relating to any such accounts, contract
rights, chattel paper, instruments, deposit accounts, general
intangibles or obligations (any and all such accounts, contract rights,
chattel paper, instruments, deposit accounts, general intangibles and
obligations, to the extent not referred to in clause (d), (e) or (f)
below, being the "Receivables", and any and all such leases, security
agreements and other contracts being the "Related Contracts");
(d) all of the following (the "Security Collateral"):
(i) the Pledged Shares and the certificates
representing the Pledged Shares, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares;
(ii) the Pledged Debt and the instruments evidencing
the Pledged Debt, and all interest, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the Pledged Debt;
(iii) all additional shares of stock of any issuer of
the Pledged Shares from time to time acquired by such Grantor
in any manner, and the certificates representing such
additional shares, and all dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of such shares;
(iv) all additional indebtedness from time to time
owed to such Grantor by any obligor of the Pledged Debt and
the instruments evidencing such indebtedness, and all
interest, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such indebtedness; and
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(v) all of such Grantor's right, title and interest
in and to the membership interests in any Person and all
dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such membership interests.
(e) all of such Grantor's right, title and interest in and to
each of the agreements listed on Schedule II, and each Hedge Agreement
to which such Grantor is now or may hereafter become a party, in each
case as such agreements may be amended or otherwise modified from time
to time (collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of such Grantor to receive moneys due and to
become due under or pursuant to the Assigned Agreements, (ii) all
rights of such Grantor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Agreements, (iii)
claims of such Grantor for damages arising out of or for breach of or
default under the Assigned Agreements and (iv) the right of such
Grantor to terminate the Assigned Agreements, to perform thereunder and
to compel performance and otherwise exercise all remedies thereunder
(all such Collateral being the "Agreement Collateral");
(f) all of the following (collectively, the "Account
Collateral"):
(i) the Cash Collateral Account, all funds held
therein and all certificates and instruments, if any, from
time to time representing or evidencing the Cash Collateral
Account;
(ii) the L/C Cash Collateral Account, all funds held
therein and all certificates and instruments, if any, from
time to time representing or evidencing the L/C Cash
Collateral Account;
(iii) all Lockbox Accounts (as hereinafter defined),
all funds held therein and all certificates and instruments,
if any, from time to time representing or evidencing the
Lockbox Accounts;
(iv) all other deposit accounts of such Grantor, all
funds held therein and all certificates and instruments, if
any, from time to time representing or evidencing such deposit
accounts;
(v) all Collateral Investments (as hereinafter
defined) from time to time and all certificates and
instruments, if any, from time to time representing or
evidencing the Collateral Investments;
(vi) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the
Administrative Agent for or on behalf of such Grantor in
substitution for or in addition to any or all of the then
existing Account Collateral; and
(vii) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the then existing Account Collateral; and
(g) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of
the types described in clauses (a) - (f) of this Section 1) and, to the
extent not otherwise included, all (i) payments under insurance
(whether or not the Administrative Agent
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is the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral and (ii) cash.
Section 2. Security for Obligations. This Agreement secures
the payment of all Obligations of each Grantor now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or otherwise
(all such Obligations being the "Secured Obligations"). Without limiting the
generality of the foregoing, this Agreement secures the payment of all amounts
that constitute part of the Secured Obligations and would be owed by each
Grantor to the Administrative Agent or the Secured Parties under the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such Grantor.
Section 3. Grantors Remain Liable. Anything herein to the
contrary notwithstanding, (a) each Grantor shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral and (c) neither the Administrative Agent nor any
Secured Party shall have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall the
Administrative Agent or any Secured Party be obligated to perform any of the
obligations or duties of any Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
Section 4. Delivery of Security Collateral and Account
Collateral. All certificates or instruments representing or evidencing Security
Collateral or Account Collateral shall be delivered to and held by or on behalf
of the Administrative Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to the Administrative Agent. The Administrative Agent shall have
the right, at any time after the occurrence and during the continuance of an
Event of Default, in its discretion and without notice to any Grantor, to
transfer to or to register in the name of the Administrative Agent or any of its
nominees any or all of the Security Collateral and Account Collateral, subject
only to the revocable rights specified in Section 14(a). In addition, the
Administrative Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Security Collateral or Account
Collateral for certificates or instruments of smaller or larger denominations.
Section 5. Maintaining the Cash Collateral Account and the L/C
Cash Collateral Account. So long as any Advance shall remain unpaid, any Letter
of Credit shall be outstanding or any Secured Party shall have any Commitment
under the Credit Agreement:
(a) The Borrower will maintain the Cash Collateral Account and
the L/C Cash Collateral Account with NationsBank.
(b) It shall be a term and condition of each of the Cash
Collateral Account and the L/C Cash Collateral Account, notwithstanding
any term or condition to the contrary in any other agreement relating
to the Cash Collateral Account or the L/C Cash Collateral Account, as
the case may be, and except as otherwise provided by the provisions of
Section 8 and Section 21, that no amount (including interest on
Collateral Investments) shall be paid or released to or for the account
of, or withdrawn by or for the account of, any Grantor or any other
Person from the Cash Collateral Account or the L/C Cash Collateral
Account, as the case may be.
The Cash Collateral Account and the L/C Cash Collateral Account shall be subject
to such applicable laws, and such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other appropriate
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banking or governmental authority, as may now or hereafter be in effect.
Section 6. Maintaining the Lockbox Accounts. So long as any
Advance shall remain unpaid, any Letter of Credit shall be outstanding or any
Secured Party shall have any Commitment under the Credit Agreement:
(a) Each Grantor shall maintain lockboxes and blocked deposit
accounts ("Lockbox Accounts") only with banks ("Lockbox Banks") that
have entered into letter agreements in substantially the form of
Exhibit A with such Grantor and the Administrative Agent ("Lockbox
Letters").
(b) Each Grantor shall immediately instruct each Person
obligated at any time to make any payment to such Grantor for any
reason (an "Obligor") to make such payment to a Lockbox Account or to
the Cash Collateral Account and shall pay to the Administrative Agent
for deposit in the Cash Collateral Account, at the end of each Business
Day, all proceeds of Collateral and all other cash of such Grantor in
excess of $500,000 in the aggregate; provided, however, that D.C.
Chartered Health Plan, Inc. may keep on deposit in a deposit account
any amount that is required to be kept on deposit by it by its
governmental regulatory authority.
(c) Each Grantor shall instruct each Lockbox Bank maintained
by such Grantor to transfer to the Cash Collateral Account, at the end
of each Business Day, in same day funds, an amount equal to the credit
balance of the Lockbox Account in such Lockbox Bank.
(d) Upon any termination of any Lockbox Letter or other
agreement with respect to the maintenance of a Lockbox Account by any
Grantor or any Lockbox Bank, such Grantor shall immediately notify all
Obligors that were making payments to such Lockbox Account to make all
future payments to another Lockbox Account or to the Cash Collateral
Account. Each Grantor agrees to terminate any or all Lockbox Accounts
and Lockbox Letters upon request by the Administrative Agent.
Section 7. Investing of Amounts in the Cash Collateral Account
and the L/C Cash Collateral Account. If requested by the Borrower, the
Administrative Agent will, subject to the provisions of Section 8 and Section
21, from time to time (a) invest amounts on deposit in the Cash Collateral
Account and the L/C Cash Collateral Account in such Cash Equivalents in the name
of the Administrative Agent as the Borrower may select and the Administrative
Agent may approve and (b) invest interest paid on the Cash Equivalents referred
to in clause (a) above, and reinvest other proceeds of any such Cash Equivalents
that may mature or be sold, in each case in such Cash Equivalents in the name of
the Administrative Agent as the Borrower may select and the Administrative Agent
may approve (the Cash Equivalents referred to in clauses (a) and (b) above being
collectively "Collateral Investments"). Interest and proceeds that are not
invested or reinvested in Collateral Investments as provided above shall be
deposited and held in the Cash Collateral Account or the L/C Cash Collateral
Account, as the case may be.
Section 8. Release of Amounts. So long as no Default shall
have occurred and be continuing, the Administrative Agent will pay and release
to the Borrower or at its order and at the request of the Borrower, the amount,
if any, by which the credit balance of the Cash Collateral Account exceeds the
aggregate unpaid principal amount of the Revolving Credit Advances.
Section 9. Representations and Warranties. Each Grantor
represents and warrants as follows:
(a) All of such Grantor's Equipment and Inventory are located
at one or more of the places specified in Schedule III hereto. The
chief place of business and chief executive office of such Grantor and
the office where such Grantor keeps its records concerning the
Receivables, and the original copies
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of each Assigned Agreement and all originals of all chattel paper that
evidence Receivables, are located at the address specified below the
name of such Grantor on the signature pages hereof (or in the case of
any Additional Grantor at the address listed below the name of such
Additional Grantor on the signature page of the Security Agreement
Supplement (as defined in Section 25(c)) executed and delivered by
such Additional Grantor). Original copies of each Assigned Agreement
and all originals of all chattel paper that evidence Receivables have
been delivered to the Administrative Agent. None of the Receivables or
Agreement Collateral is evidenced by a promissory note or other
instrument unless the same has been delivered to the Administrative
Agent.
(b) Such Grantor is the legal and beneficial owner of the
Collateral pledged by such Grantor hereunder free and clear of any
Lien, except for the security interest created by this Agreement and
Permitted Liens. No effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file
in any recording office, except such as may have been filed in favor of
the Administrative Agent relating to this Agreement or as permitted by
the Credit Agreement. Each Grantor has no trade names other than the
trade names listed on Schedule IV.
(c) Such Grantor has possession and control of the Equipment
and Inventory pledged by such Grantor hereunder.
(d) The Pledged Shares pledged by such Grantor hereunder have
been duly authorized and validly issued and are fully paid and
non-assessable. The Pledged Debt pledged by such Grantor hereunder has
been duly authorized, authenticated or issued and delivered, is the
legal, valid and binding obligation of the issuers thereof and is not
in default.
(e) Except as disclosed in the Credit Agreement, the Pledged
Shares pledged by such Grantor hereunder constitute the percentage of
the issued and outstanding shares of stock of the issuers thereof
indicated on Schedule I. The Pledged Debt pledged by such Grantor
hereunder is outstanding in the principal amount indicated on Schedule
I.
(f) The Assigned Agreements to which such Grantor is a party,
true and complete copies of which have been furnished to each Secured
Party, have been (to the best knowledge of such Grantor, in the case of
any parties other than such Grantor) duly authorized, executed and
delivered by all parties thereto, have not been amended or otherwise
modified, are in full force and effect and are binding upon and
enforceable against all parties thereto in accordance with their terms
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect that affect creditors' rights generally, general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness) whether such
principles are considered in a proceeding in equity or at law, and the
application of any fraudulent conveyance, fraudulent transfer,
fraudulent obligation, or preferential transfer or any law governing
the distribution of assets of any Person. To the best knowledge of such
Grantor, there exists no default under any Assigned Agreement to which
such Grantor is a party by any party thereto. Each party to the
Assigned Agreements to which such Grantor is a party (other than such
Grantor) has executed and delivered to such Grantor a consent, in
substantially the form of Exhibit B, to the assignment of the Agreement
Collateral to the Administrative Agent pursuant to this Agreement.
(g) Such Grantor has no Lockbox Accounts or other deposit
accounts other than the Lockbox Accounts listed below such Grantor's
name on Schedule V and the permitted unblocked accounts listed below
such Grantor's name on Schedule VI. Such Grantor has instructed all
existing Obligors to make all payments to either a Lockbox Account or
the Cash Collateral Account.
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(h) This Agreement, the pledge of the Security Collateral by
such Grantor pursuant hereto and the pledge and assignment of the
Account Collateral by such Grantor pursuant hereto create a valid first
priority security interest in the Collateral of such Grantor (subject
only to Permitted Liens and Liens permitted by Section 5.02(a)(iii),
(vii), (viii) or (ix of the Credit Agreement)), securing the payment of
the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken.
(i) No consent of any other Person (except consents already
obtained) and no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or other third party is required either (i) for the grant by such
Grantor of the assignment and security interest granted hereby, for the
pledge by such Grantor of the Security Collateral pursuant hereto or
for the execution, delivery or performance of this Agreement by such
Grantor, (ii) for the perfection or maintenance of the pledge,
assignment and security interest created hereby (including the first
priority nature of such pledge, assignment or security interest (except
as set forth in Section 9(h) above), except for the filing of financing
and continuation statements under the Uniform Commercial Code, which
financing statements have been duly filed, or (iii) for the exercise by
the Administrative Agent of its voting or other rights provided for in
this Agreement or the remedies in respect of the Collateral pursuant to
this Agreement, except (i) as may be required in connection with the
disposition of any portion of the Security Collateral by laws affecting
the offering and sale of securities generally, (ii) the approval of the
Commissioner of Insurance and Securities as to the Pledged Shares
issued by D.C. Chartered Health Plan, Inc. and (iii) the approval of
the Bureau of Insurance as to the Pledged Shares issued by Virginia
Chartered Health Plan, Inc.
(j) The Inventory has been produced by such Grantor in
compliance with all requirements of the Fair Labor Standards Act.
Section 10. Further Assurances. (a) Each Grantor agrees that
from time to time, at its own expense, such Grantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Administrative Agent may reasonably
request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, each Grantor will: (i) xxxx conspicuously each document included in
the Inventory pledged by such Grantor hereunder, each chattel paper included in
the Receivables pledged by such Grantor hereunder, each Related Contract pledged
by such Grantor hereunder, each Assigned Agreement to which such Grantor is a
party and, at the request of the Administrative Agent, each of its records
pertaining to the Collateral with a legend, in form and substance satisfactory
to the Administrative Agent, indicating that such document, chattel paper,
Related Contract, Assigned Agreement or Collateral is subject to the security
interest granted hereby; (ii) if any Collateral shall be evidenced by a
promissory note or other instrument or chattel paper, deliver and pledge to the
Administrative Agent hereunder such note or instrument or chattel paper duly
indorsed and accompanied by duly executed instruments of transfer or assignment,
all in form and substance reasonably satisfactory to the Administrative Agent;
and (iii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Administrative Agent may reasonably request, in order to
perfect and preserve the pledge, assignment and security interest granted or
purported to be granted hereby.
(b) Each Grantor hereby authorizes the Administrative Agent to
file one or more financing or continuation statements, and amendments thereto,
relating to all or any part of the Collateral pledged by such Grantor hereunder
without the signature of such Grantor where permitted by law. 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.
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(c) Each Grantor will furnish to the Administrative Agent from
time to time statements and schedules further identifying and describing the
Collateral pledged by such Grantor hereunder and such other reports in
connection with the Collateral pledged by such Grantor hereunder as the
Administrative Agent may reasonably request, all in reasonable detail.
Section 11. As to Equipment and Inventory. (a) Each Grantor
shall keep the Equipment and Inventory (other than Inventory sold in the
ordinary course of business) pledged by such Grantor hereunder at the places
therefor specified in Section 9(a) or, upon 30 days' prior written notice to the
Administrative Agent, at such other places in a jurisdiction where all action
required by Section 10 shall have been taken with respect to such Equipment and
Inventory.
(b) Each Grantor shall cause the Equipment pledged by such
Grantor hereunder to be maintained and preserved in the same condition, repair
and working order as exists on the date hereof or, with respect to Equipment
acquired after the date hereof, as when new, ordinary wear and tear excepted,
and in accordance with any manufacturer's manual, and shall forthwith, or in the
case of any material loss or damage to any of such Equipment as quickly as
practicable after the occurrence thereof, make or cause to be made all repairs,
replacements and other improvements in connection therewith that are necessary
or desirable to such end. Each Grantor shall promptly furnish to the
Administrative Agent a statement respecting any material loss or damage to any
of the Equipment pledged by such Grantor hereunder.
(c) Each Grantor shall 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 pledged by such Grantor hereunder, except as permitted
by the provisions of the Credit Agreement. In producing the Inventory pledged by
such Grantor hereunder, each Grantor shall comply with all requirements of the
Fair Labor Standards Act.
Section 12. Insurance. (a) Each Grantor shall, at its own
expense, maintain insurance with respect to the Equipment and Inventory pledged
by such Grantor hereunder in such amounts, against such risks, in such form and
with such insurers, as shall be reasonably satisfactory to the Administrative
Agent from time to time. Each such policy shall provide for all losses to be
paid on behalf of the Administrative Agent and such Grantor as their interests
may appear, and each policy for property damage insurance shall provide for all
losses (except for losses of less than $250,000 per occurrence) to be paid
directly to the Administrative Agent. Each such policy shall in addition (i)
name such Grantor and the Administrative Agents as insured parties thereunder
(without any representation or warranty by or obligation upon the Administrative
Agent) as their interests may appear, (ii) contain the agreement by the insurer
that any loss thereunder shall be payable to the Administrative Agent
notwithstanding any action, inaction or breach of representation or warranty by
such Grantor, (iii) provide that there shall be no recourse against the
Administrative Agent for payment of premiums or other amounts with respect
thereto and (iv) provide that at least 10 days' prior written notice of
cancellation or of lapse shall be given to the Administrative Agent by the
issuer. Each Grantor shall, if so requested by the Administrative Agent, deliver
to the Administrative Agent original or duplicate policies of such insurance
and, as often as the Administrative Agent may reasonably request, a report of a
reputable insurance broker with respect to such insurance. Further, each Grantor
shall, at the request of the Administrative Agent, duly exercise and deliver
instruments of assignment of such insurance policies to comply with the
requirements of Section 10 and cause the insurers to acknowledge notice of such
assignment.
(b) Reimbursement under any liability insurance maintained by
any Grantor pursuant to this Section 12 may be paid directly to the Person who
shall have incurred liability covered by such insurance. In case of any loss
involving damage to Equipment or Inventory when subsection (c) of this Section
12 is not applicable, the Grantor that owns such Equipment or Inventory shall
make or cause to be made the necessary repairs to or
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replacements of such Equipment or Inventory, and any proceeds of insurance
maintained by such Grantor pursuant to this Section 12 shall be paid to such
Grantor as reimbursement for the costs of such repairs or replacements.
(c) Upon the occurrence and during the continuance of any
Default or the actual or constructive total loss (in excess of $250,000 per
occurrence) of any Equipment or Inventory, all insurance payments in respect of
such Equipment or Inventory shall be paid to and applied by the Administrative
Agent as specified in Section 21(b).
Section 13. Place of Perfection; Records; Collection of
Receivables. (a) Each Grantor shall keep its chief place of business and chief
executive office and the office where it keeps its records concerning the
Collateral, and the original copies of the Assigned Agreements to which such
Grantor is a party and all originals of all chattel paper that evidence
Receivables pledged by such Grantor hereunder, at the location therefor
specified in Section 9(a) or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction where all
actions required by Section 10 shall have been taken with respect to the
Collateral. Each Grantor will hold and preserve such records, Assigned
Agreements and chattel paper and will permit representatives of the
Administrative Agent at any time during normal business hours to inspect and
make abstracts from such records and chattel paper.
(b) Except as otherwise provided in this subsection (b), each
Grantor shall continue to collect, at its own expense, all amounts due or to
become due such Grantor under the Receivables. In connection with such
collections, each Grantor may take (and, at the Administrative Agent's
direction, shall take) such action as such Grantor or the Administrative Agent
may deem necessary or advisable to enforce collection of the Receivables pledged
by such Grantor hereunder; provided, however, that the Administrative Agent
shall have the right at any time, upon the occurrence and during the continuance
of an Event of Default and upon written notice to such Grantor of its intention
to do so, to notify the Obligors under any Receivables of the assignment of such
Receivables to the Administrative Agent and to direct such Obligors to make
payment of all amounts due or to become due to such Grantor thereunder directly
to the Administrative Agent and, upon such notification and at the expense of
such Grantor, to enforce collection of any such Receivables, and to adjust,
settle or compromise the amount or payment thereof, in the same manner and to
the same extent as such Grantor might have done. After receipt by any Grantor of
the notice from the Administrative Agent referred to in the proviso to the
preceding sentence, (i) all amounts and proceeds (including instruments)
received by such Grantor in respect of such Receivables shall be received in
trust for the benefit of the Administrative Agent hereunder, shall be segregated
from other funds of such Grantor and shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any necessary
indorsement) to be deposited in the Cash Collateral Account and either (A)
released to such Grantor on the terms set forth in Section 8 so long as no
Default shall have occurred and be continuing or (B) if any Event of Default
shall have occurred and be continuing, applied as provided by Section 21(b) and
(ii) such Grantor shall not adjust, settle or compromise the amount or payment
of any such Receivable pledged by such Grantor hereunder, release wholly or
partly any Obligor thereof, or allow any credit or discount thereon.
Section 14. Voting Rights; Dividends; Etc. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security
Collateral pledged by such Grantor hereunder or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the
other Loan Documents; provided, however, that each Grantor shall not
exercise or refrain from exercising any such right if, in the
Administrative Agent's judgment, such action would have a material
adverse effect on the value of the Security Collateral or any part
thereof.
10
(ii) Each Grantor shall be entitled to receive and retain any
and all dividends and interest paid in respect of the Security
Collateral pledged by such Grantor hereunder; provided, however, that
any and all
(A) dividends and interest paid or payable other than
in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of,
or in exchange for, any Security Collateral,
(B) dividends and other distributions paid or payable
in cash in respect of any Security Collateral in connection
with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in-surplus and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange
for, any Security Collateral
shall be, and shall be forthwith delivered to the Administrative Agent
to hold as, Security Collateral and shall, if received by such Grantor,
be received in trust for the benefit of the Administrative Agent, be
segregated from the other property or funds of such Grantor and be
forthwith delivered to the Administrative Agent as Security Collateral
in the same form as so received (with any necessary indorsement).
(iii) The Administrative Agent shall execute and deliver (or
cause to be executed and delivered) to each Grantor all such proxies
and other instruments as such Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and other
rights that it is entitled to exercise pursuant to paragraph (i) above
and to receive the dividends or interest payments that it is authorized
to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would
otherwise be entitled to exercise pursuant to Section 14(a)(i) shall,
upon notice to the Borrower by the Administrative Agent, cease and (y)
to receive the dividends and interest payments that it would otherwise
be authorized to receive and retain pursuant to Section 14(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested
in the Administrative Agent, which shall thereupon have the sole right
to exercise or refrain from exercising such voting and other consensual
rights and to receive and hold as Security Collateral such dividends
and interest payments.
(ii) All dividends and interest payments that are received by
any Grantor contrary to the provisions of paragraph (i) of this Section
14(b) shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other funds of such Grantor and shall
be forthwith paid over to the Administrative Agent as Security
Collateral in the same form as so received (with any necessary
indorsement).
Section 15. As to the Assigned Agreements. (a) Each Grantor
shall at its expense:
(i) perform and observe all the terms and provisions of the
Assigned Agreements to which such Grantor is a party to be performed or
observed by it, use reasonable efforts to maintain such Assigned
Agreements in full force and effect, use reasonable efforts to enforce
such Assigned Agreements in accordance with their terms and take all
such action to such end as may be from time to time reasonably
requested by the Administrative Agent; and
11
(ii) furnish to the Administrative Agent promptly upon receipt
thereof copies of all notices, requests and other documents received by
such Grantor under or pursuant to the Assigned Agreements to which such
Grantor is a party, and from time to time (A) furnish to the
Administrative Agent such information and reports regarding the
Collateral pledged by such Grantor hereunder as the Administrative
Agent may reasonably request and (B) upon request of the Administrative
Agent make to each other party to any such Assigned Agreement such
demands and requests for information and reports or for action as such
Grantor is entitled to make thereunder.
(b) Each Grantor agrees that it shall not:
(i) cancel or terminate any Assigned Agreement to which such
Grantor is a party or consent to or accept any cancellation or
termination thereof;
(ii) amend or otherwise modify any Assigned Agreement to which
such Grantor is a party or give any consent, waiver or approval
thereunder;
(iii) waive any default under or breach of any Assigned
Agreement to which such Grantor is a party;
(iv) consent to or permit or accept any prepayment of amounts
to become due under or in connection with any Assigned Agreement to
which such Grantor is a party, except as expressly provided therein; or
(v) take any other action in connection with any Assigned
Agreement to which such Grantor is a party that would materially impair
the value of the interest or rights of such Grantor thereunder or that
would materially impair the interest or rights of the Administrative
Agent.
Section 16. Payments Under the Assigned Agreements and the
Material Contracts. (a) Each Grantor agrees, and has effectively so instructed
(or will, within five Business Days following the Closing Date, effectively so
instruct) each other party to each Assigned Agreement and each Material Contract
to which such Grantor is a party, that all payments due or to become due under
or in connection with such Assigned Agreement shall be made directly to the Cash
Collateral Account or to a Lockbox Account.
(b) Except as set forth in Section 21, all moneys received or
collected pursuant to subsection (a) above shall be applied as set forth in
Section 8.
Section 17. Transfers and Other Liens; Additional Shares. (a)
Each Grantor agrees that it shall not, other than in accordance with the terms
of the Credit Agreement, (i) sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the
Collateral, except sales of Inventory pledged by such Grantor hereunder in the
ordinary course of business, or (ii) create or suffer to exist any Lien upon or
with respect to any of the Collateral except for the pledge, assignment and
security interest created by this Agreement.
(b) Each Grantor agrees that it shall (i) cause each issuer of
the Pledged Shares pledged by such Grantor hereunder not to issue any stock or
other securities in addition to or in substitution for the Pledged Shares issued
by such issuer, except to such Grantor, and (ii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any and all additional
shares of stock or other securities owned by such Grantor of each issuer of the
Pledged Shares.
Section 18. Administrative Agent Appointed Attorney-in-Fact.
Each Grantor hereby
12
irrevocably appoints the Administrative Agent such Grantor's attorney-in-fact,
with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time in the Administrative Agent's
discretion upon the occurrence and during the continuance of an Event of
Default, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to the
Administrative Agent pursuant to Section 12,
(b) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(c) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
or (b) above, and
(d) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce compliance with the terms and conditions of any Assigned
Agreement or the rights of the Administrative Agent with respect to any
of the Collateral.
Section 19. Administrative Agent May Perform. If any Grantor
fails to perform any agreement contained herein, the Administrative Agent may
itself perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Grantor under Section 23(b).
Section 20. The Administrative Agent's Duties. The powers
conferred on the Administrative 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 Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Security Collateral, whether or not the
Administrative Agent or any Secured Party has or is deemed to have knowledge of
such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which NationsBank accords its
own property.
Section 21. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect
in the State of New York at such time (the "New York Uniform Commercial
Code") (whether or not the New York Uniform Commercial Code applies to
the affected Collateral) and also may (i) require any or all of the
Grantors to, and each Grantor hereby agrees that it will at its expense
and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral pledged by such Grantor hereunder as directed by
the Administrative Agent and make it available to the Administrative
Agent at a place to be designated by the Administrative Agent that is
reasonably convenient to both parties and (ii) without notice except as
specified below, sell the Collateral pledged by such Grantor hereunder
or any part thereof in one or more parcels at public or private sale,
at any of the Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the
Administrative Agent may deem
13
commercially reasonable. Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to
such Grantor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given.
The Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place
to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon all
or any part of the Collateral may, in the discretion of the
Administrative Agent, be held by the Administrative Agent as collateral
for, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Administrative Agent pursuant to Section 23)
in whole or in part by the Administrative Agent for the ratable benefit
of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any
surplus of such cash or cash proceeds held by the Administrative Agent
and remaining after payment in full of all the Secured Obligations
shall be paid over to the applicable Grantor or to whomsoever may be
lawfully entitled to receive such surplus.
(c) The Administrative Agent may exercise any and all rights
and remedies of any Grantor under or in connection with the Assigned
Agreements or otherwise in respect of the Collateral, including,
without limitation, any and all rights of any Grantor to demand or
otherwise require payment of any amount under, or performance of any
provision of, any Assigned Agreement.
(d) All payments received by any Grantor under or in
connection with any Assigned Agreement or otherwise in respect of the
Collateral shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other funds of such
Grantor and shall be forthwith paid over to the Administrative Agent in
the same form as so received (with any necessary indorsement).
(e) The Administrative Agent may, without notice to any
Grantor except as required by law and at any time or from time to time,
charge, set-off and otherwise apply all or any part of the Secured
Obligations against the Cash Collateral Account or the L/C Cash
Collateral Account or any part thereof.
Section 22. Registration Rights. If the Administrative Agent
shall determine to exercise its right to sell all or any of the Security
Collateral pursuant to Section 21, each Grantor agrees that, upon request of the
Administrative Agent, such Grantor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Security
Collateral pledged by such Grantor hereunder contemplated to be sold
and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other
acts and things, as may be necessary or, in the opinion of the
Administrative Agent, advisable to register such Security Collateral
under the provisions of the Securities Act of 1933, as from time to
time amended (the "Securities Act"), to cause the registration
statement relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be furnished and
to make all amendments and supplements thereto and to the related
prospectus that, in the opinion of the Administrative Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
(b) use its reasonable efforts to qualify the Security
Collateral pledged by such Grantor hereunder under the state securities
or "Blue Sky" laws and to obtain all necessary governmental approvals
for the sale of such Security Collateral, as requested by the
Administrative Agent;
14
(c) cause each such issuer of the Security Collateral pledged
by such Grantor hereunder to make available to its security holders, as
soon as practicable, an earnings statement that will satisfy the
provisions of Section 11(a) of the Securities Act;
(d) provide the Administrative Agent with such other
information and projections as may be necessary or, in the opinion of
the Administrative Agent, advisable to enable the Administrative Agent
to effect the sale of the Security Collateral pledged by such Grantor
hereunder; and
(e) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Security Collateral pledged
by such Grantor hereunder or any part thereof valid and binding and in
compliance with applicable law.
The Administrative Agent is authorized, in connection with any sale of the
Security Collateral pursuant to Section 21, to deliver or otherwise disclose to
any prospective purchaser of the Security Collateral (i) any registration
statement or prospectus, and all supplements and amendments thereto, prepared
pursuant to clause (a) above, (ii) any information and projections provided to
it pursuant to clause (d) above and (iii) any other information in its
possession relating to the Security Collateral.
Section 23. Indemnity and Expenses. (a) Each Grantor agrees to
indemnify the Administrative Agent from and against any and all claims, losses
and liabilities growing out of or resulting from this Agreement (including,
without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting from the Administrative Agent's gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction.
(b) The Borrower will upon demand pay to the Administrative
Agent the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, that the
Administrative Agent may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Administrative Agent or the
Secured Parties hereunder or (iv) the failure by any Grantor to perform or
observe any of the provisions hereof.
Section 24. Security Interest Absolute. The obligations of
each Grantor under this Agreement are independent of the Secured Obligations,
and a separate action or actions may be brought and prosecuted against any
Grantor to enforce this Agreement, irrespective of whether any action is brought
against the Borrower or any other Loan Party or whether the Borrower is joined
in any such action or actions. All rights of the Administrative Agent and the
pledge, assignment and security interest hereunder, and all obligations of the
each Grantor hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or any
other amendment or waiver of or any consent to any departure from any
Loan Document, including, without limitation, any increase in the
Secured Obligations resulting from the extension of additional credit
to the Borrower, any other Loan Party, or any of their subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Secured
Obligations;
15
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Secured Obligations or any other assets of any Grantor or any of their
subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Grantor or any of their subsidiaries; or
(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor or a third party
grantor of a security interest.
Section 25. Amendments; Waivers; Etc. (a) No amendment or
waiver of any provision of this Agreement, and no consent to any departure by
any Grantor herefrom, shall in any event be effective unless the same shall be
in writing and signed by each Grantor and the Administrative Agent, 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 Administrative Agent to
exercise, and no delay in exercising any right hereunder, 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.
(c) Upon the execution and delivery by any Person of a
supplement to this Agreement, in each case in substantially the form of Exhibit
C hereto (each a "Security Agreement Supplement"), (i) such Person shall be
referred to as an "Additional Grantor" and shall be and become a Grantor, and
each reference in this Agreement to an "Additional Grantor" or a "Grantor" shall
also mean and be a reference to such Additional Grantor and each reference in
any other Loan Document to a "Grantor" or a "Loan Party" shall also mean and be
a reference to such Additional Grantor, and (ii) the schedule supplements
attached to each Security Agreement Supplement shall be incorporated into and
become a part of and supplement the Schedules to this Agreement, as appropriate,
and the Administrative Agent may attach such supplements to such Schedules, and
each reference to such Schedules shall mean and be a reference to such
Schedules, as supplemented pursuant hereto.
Section 26. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telegraphed, telecopied,
telexed, cabled or delivered if to any Grantor, addressed to it at the address
set forth below its name on the signature pages hereof, if to any Additional
Grantor, addressed to it at the address set forth below its name on the
signature pages to the Security Agreement Supplement executed and delivered by
such Additional Grantor, if to the Administrative Agent, addressed to it at its
address set forth in Section 8.02 of the Credit Agreement or, as to any party,
at such other address as shall be designated by such party in a written notice
to the Grantors and the Administrative Agent. All such notices and other
communications shall, when mailed, telecopied, telegraphed, telexed or cabled,
respectively, be effective three days after being deposited in the mails or, if
sent by overnight courier, on the day following the day of delivery to the
overnight courier, or when telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
addressed as aforesaid.
Section 27. Continuing Security Interest; Assignments under
the Credit Agreement. This Agreement shall create a continuing security interest
in the Collateral and shall (a) remain in full force and effect until the later
of the payment in full in cash of the Secured Obligations and the Termination
Date, (b) be binding upon each Grantor, its successors and assigns and (c)
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent, the Secured Parties and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
Commitment, the Advances owing to it and the
16
Note or Notes held by it to any other Person), and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, in each case as provided in Section 8.07 of the
Credit Agreement.
Section 28. Release and Termination. (a) Upon any sale, lease,
transfer or other disposition of any item of Collateral in accordance with the
terms of the Loan Documents (other than sales of Inventory in the ordinary
course of business), the Administrative Agent will, at the expense of the
Grantor pledging such item of Collateral hereunder, execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence the
release of such item of Collateral from the assignment and security interest
granted hereby; provided, however, that (i) at the time of such request and such
release no Default shall have occurred and be continuing, (ii) such Grantor
shall have delivered to the Administrative Agent, at least ten days prior to the
date of the proposed release, a written request for release describing the item
of Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, including the price thereof and any expenses in connection
therewith, together with a form of release for execution by the Administrative
Agent and a certification by such Grantor to the effect that the transaction is
in compliance with the Loan Documents and as to such other matters as the
Administrative Agent may request, and (iii) the proceeds of any such sale,
lease, transfer or other disposition required to be applied in accordance with
Section 2.06 of the Credit Agreement shall be paid to, or in accordance with the
instructions of, the Administrative Agent at the closing.
(b) Upon the later of the payment in full in cash of the
Secured Obligations and the Termination Date, the pledge, assignment and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the appropriate Grantor. Upon any such termination,
the Administrative Agent will, at such Grantor's expense, execute and deliver to
such Grantor such documents as such Grantor shall reasonably request to evidence
such termination.
Section 29. The Mortgages. In the event that any of the
Collateral hereunder is also subject to a valid and enforceable Lien under the
terms of any Mortgage and the terms of such Mortgage are inconsistent with the
terms of this Agreement, then with respect to such Collateral, the terms of such
Mortgage shall be controlling in the case of fixtures and leases, letting and
licenses of, and contracts and agreements relating to the lease of real
property, and the terms of this Agreement shall be controlling in the case of
all other Collateral.
Section 30. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any particular Collateral are
governed by the laws of a jurisdiction other than the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms used in Article 9 of
the New York Uniform Commercial Code are used herein as therein defined.
IN WITNESS WHEREOF, each Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
GRANTORS
PHP HEALTHCARE CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
and CFO
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
HEALTH COST CONSULTANTS, INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Treasurer
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
PHP LOUISIANA, INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Treasurer
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
PHP NJ MSO, INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Treasurer
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
PINNACLE HEALTH ENTERPRISES, L.L.C.
By PHP HEALTHCARE CORPORATION
as Member
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
and CFO
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
By PHP NJ MSO, Inc.
as Member
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Treasurer
Address: 00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
