SECURITY AGREEMENT
EXHIBIT
10.4
THIS
SECURITY AGREEMENT (as amended from time to time, this "Agreement")
dated
as of May 1, 2008 is made by (i) GFN AUSTRALASIA FINANCE PTY LTD, an Australian
corporation ("Company"),
and
(ii) the Subsidiaries of the Company that may from time to time become party
hereto (collectively, the "Grantors")
in
favor of BISON CAPITAL AUSTRALIA, L.P., a Delaware limited partnership
("Bison")
("Purchaser").
W
I T N E
S S E T H:
WHEREAS,
Company intends to deliver to Purchaser a Secured Senior Subordinated Promissory
Note dated as of even date herewith (the “Note”)
and to
enter into that certain First Amendment to Securities Purchase Agreement dated
as of even date herewith and that certain First Amendment to Shareholders
Agreement dated as of even date herewith (collectively, the “Transactions”).
Execution, delivery and performance of this Agreement is one of the conditions
to Bison's obligation to consummate the Transactions;
WHEREAS,
Company, Purchaser and the Grantors entered into that certain Securities
Purchase Agreement dated as of September 13, 2007 (the “Purchase
Agreement”);
WHEREAS,
in order to induce Purchaser to enter into the Transactions, each Grantor has
agreed to grant a continuing Lien on the Collateral (as hereinafter defined)
to
secure the Obligations to Purchaser (as hereinafter defined).
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED
TERMS.
The
following terms shall have the following respective meanings:
"Account
Debtor"
means
an account debtor as defined in the UCC.
"Accounts"
means
all of each Grantor's now owned or hereafter acquired or arising accounts,
as
defined in the UCC, including any rights to payment for the sale or lease of
goods or rendition of services, whether or not they have been earned by
performance, and all medical receivables.
"Assigned
Contracts"
means,
collectively, all of each Grantor's rights and remedies under, and all moneys
and claims for money due or to become due to such Grantor under any material
contracts, and any and all amendments, supplements, extensions, and renewals
thereof including all rights and claims of such Grantor now or hereafter
existing: (i) under any insurance, indemnities, warranties, and guarantees
provided for or arising out of or in connection with any of the foregoing
agreements; (ii) for any damages arising out of or for breach or default under
or in connection with any of the foregoing contracts; (iii) to all other amounts
from time to time paid or payable under or in connection with any of the
foregoing agreements; or (iv) to exercise or enforce any and all covenants,
remedies, powers and privileges thereunder.
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"Chattel
Paper"
means
all of each Grantor's now owned or hereafter acquired chattel paper, as defined
in the UCC, including electronic chattel paper.
"Documents"
means
all documents, as defined in the UCC, including bills of lading, warehouse
receipts or other documents of title, now owned or hereafter acquired by each
Grantor.
"Equipment"
means
all of each Grantor's now owned and hereafter acquired machinery, equipment,
furniture, furnishings, fixtures, and other tangible personal property (except
Inventory), including embedded software, office equipment, as well as all of
such types of property leased by such Grantor and all of such Grantor's rights
and interests with respect thereto under such leases (including, without
limitation, options to purchase); together with all present and future additions
and accessions thereto, replacements therefor, component and auxiliary parts
and
supplies used or to be used in connection therewith, and all substitutes for
any
of the foregoing, and all manuals, drawings, instructions, warranties and rights
with respect thereto; wherever any of the foregoing is located.
"Event
of Default"
has the
meaning set forth in Section 19 of this Agreement.
"General
Intangibles"
means
all of each Grantor's now owned or hereafter acquired general intangibles (as
defined in the UCC), choses in action and causes of action and all other
intangible personal property of such Grantor of every kind and nature (other
than Accounts), including, without limitation, all contract rights, payment
intangibles, Proprietary Rights, corporate or other business records,
inventions, designs, blueprints, plans, specifications, patents, patent
applications, trademarks, service marks, trade names, trade secrets, goodwill,
copyrights, computer software, customer lists, registrations, licenses,
franchises, tax refund claims, any funds which may become due to such Grantor
in
connection with the termination of any employee benefit plan or any rights
thereto and any other amounts payable to such Grantor from any employee benefit
plan, rights and claims against carriers and shippers, rights to
indemnification, business interruption insurance and proceeds thereof, property,
casualty or any similar type of insurance and any proceeds thereof, proceeds
of
insurance covering the lives of key employees on which such Grantor is
beneficiary, rights to receive dividends, distributions, cash, Instruments
and
other property in respect of or in exchange for pledged equity interests or
Investment Property and any letter of credit, guarantee, claim, security
interest or other security held by or granted to such Grantor.
"Instruments"
means
all instruments, as defined in the UCC, now owned or hereafter acquired by
each
Grantor.
"Inventory"
means
all of each Grantor's now owned and hereafter acquired inventory (as defined
in
the UCC), goods (as defined in the UCC) and merchandise, wherever located,
to be
furnished under any contract of service or held for sale or lease, all returned
goods, raw materials, work-in-process, finished goods (including embedded
software), other materials and supplies of any kind, nature or description
which
are used or consumed in such Grantor's business or used in connection with
the
packing, shipping, advertising, selling or finishing of such goods, merchandise,
and all documents of title or other Documents representing
them.
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"Investment
Property"
means
all of each Grantor's right, title and interest in and to any and all:
(a) securities whether certificated or uncertificated; (b) securities
entitlements; (c) securities accounts; (d) commodity contracts; or
(e) commodity accounts.
"Letter-of-Credit
Rights"
means
all of each Grantor's right, title and interest in and to any and all
letter-of-credit rights, as defined in the UCC.
"Obligations
to Purchaser"
has the
meaning set forth in the Purchase Agreement.
"Payment
Account"
means
each bank account, if any, established pursuant to this Agreement, to which
the
proceeds of Accounts and other Collateral are deposited or credited, and which
is maintained in the name of Purchaser or a Grantor, as Purchaser may determine,
on terms acceptable to Purchaser.
"Proprietary
Rights"
means
all of each Grantor's now owned and hereafter arising or acquired: licenses,
franchises, permits, patents, patent rights, copyrights, works which are the
subject matter of copyrights, trademarks, service marks, trade names, trade
styles, patent, trademark and service xxxx applications, and all licenses and
rights related to any of the foregoing; all other rights under any of the
foregoing; all extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing; and all rights to xxx for past,
present and future infringement of any of the foregoing.
"Supporting
Obligations"
means
all supporting obligations, as defined in the UCC.
"Tort
Claims"
means
each Grantor's claims in tort now existing or hereafter arising, including,
without limitation, any commercial tort claim (as defined in the
UCC).
"UCC"
means
the Uniform Commercial Code, as in effect from time to time, of the State of
California or of any other state the laws of which are required as a result
thereof to be applied in connection with the issue of perfection of security
interests.
All
other
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Purchase Agreement. All other undefined terms contained in this
Agreement, unless the context indicates otherwise, have the meanings provided
for by the UCC to the extent the same are used or defined therein.
2. GRANT
OF LIEN.
(a) As
security for all Obligations to Purchaser, each Grantor hereby grants to
Purchaser a continuing first priority (subject to the proper filing of financing
statements), security interest in, lien on, assignment of and right of set-off
against, all assets of each Grantor of any kind, whether now owned or existing
or hereafter acquired or arising, regardless of where located (the "Collateral"),
including, without limitation, the following:
(i) all
Accounts;
(ii) all
Inventory;
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(iii) all
contract rights, including Assigned Contracts;
(iv) all
Chattel Paper;
(v) all
Documents;
(vi) all
Instruments;
(vii) all
Supporting Obligations;
(viii) all
General Intangibles;
(ix) all
Equipment;
(x) all
Investment Property;
(xi) all
Letter-of-Credit Rights;
(xii) all
money, cash, cash equivalents, securities and other property of any kind of
such
Grantor held directly or indirectly by Grantor;
(xiii) all
of
such Grantor's deposit accounts, credits, and balances with any financial
institution with which such Grantor maintains deposits, including any Payment
Accounts;
(xiv) all
Tort
Claims;
(xv) all
books, records and other property related to or referring to any of the
foregoing, including books, records, account ledgers, data processing records,
computer software and other property and General Intangibles at any time
evidencing or relating to any of the foregoing; and
(xvi) all
accessions to, substitutions for and replacements, products and proceeds of
any
of the foregoing, including, but not limited to, proceeds of any insurance
policies, claims against third parties, and condemnation or requisition payments
with respect to all or any of the foregoing.
(b) All
of
the Obligations to Purchaser shall be secured by all of the
Collateral.
3. PERFECTION AND PROTECTION OF SECURITY INTEREST.
(a) Each
Grantor shall, at its expense, perform all steps requested by Purchaser at
any
time to perfect, maintain, protect, and enforce Purchaser's Liens, including:
(i) filing financing or continuation statements, and amendments thereof, in
form
and substance reasonably satisfactory to Purchaser; (ii) delivering to
Purchaser the originals of all Instruments, Documents, and Chattel Paper, and
all other Collateral of which Purchaser reasonably determines it should have
physical possession in order to perfect and protect Purchaser's security
interest therein, duly pledged, endorsed or assigned to Purchaser without
restriction; (iii) delivering to Purchaser warehouse receipts covering any
portion of the Collateral located in warehouses and for which warehouse receipts
are issued and certificates of title covering any portion of the Collateral
for
which certificates of title have been issued; (iv) when an Event of Default
has occurred and is continuing, transferring Inventory to warehouses or other
locations designated by Purchaser; (v) placing notations on such Grantor's
books of account to disclose Purchaser's security interest; (vi) obtaining
control agreements from securities intermediaries with respect to financial
assets in the possession of securities intermediaries; (vii) assigning and
delivering to Purchaser all Supporting Obligations, including letters of credit
on which such Grantor is named as beneficiary with the written consent of the
issuer thereof; and (viii) taking such other steps as are reasonably deemed
necessary or desirable by Purchaser to maintain and protect Purchaser's Liens.
To the extent permitted by applicable law, Purchaser may file, without such
Grantor's signature, one or more financing statements disclosing Purchaser's
Liens. Each Grantor agrees that a carbon, photographic, photo static, or other
reproduction of this Agreement or of a financing statement is sufficient as
a
financing statement.
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(b) If
any
Collateral exceeding
$100,000 in value is at any time in the possession or control of any
warehouseman, bailee or any Grantor's agents or processors, then such Grantor
shall notify Purchaser thereof and shall obtain a bailee letter acknowledged
by
the bailee that notifies such Person of Purchaser's security interest in such
Collateral and instructs such Person to hold all such Collateral for Purchaser's
account subject to Purchaser's instructions. If at any time any Collateral
exceeding $100,000 in value is located in any operating facility of a Grantor
that is leased by such Grantor, then the Grantor shall obtain written landlord
lien waivers or subordinations, in form and substance reasonably satisfactory
to
Purchaser, that waives or subordinates all present and future Liens which the
owner or lessor of such premises may be entitled to assert against the
Collateral.
(c) From
time
to time, each Grantor shall, upon Purchaser's request, execute and deliver
confirmatory written instruments pledging to Purchaser the Collateral, but
such
Grantor's failure to do so shall not affect or limit any security interest
or
any other rights of Purchaser in and to the Collateral with respect to such
Grantor. So long as the Purchase Agreement is in effect and until all
Obligations to Purchaser have been fully satisfied, Purchaser's Liens shall
continue in full force and effect in all Collateral (whether or not deemed
eligible as the basis for any advance, loan, extension of credit, or other
financial accommodation).
(d) Each
Grantor hereby represents and warrants to Purchaser that, as of the date hereof
and to each Grantor's knowledge, such Grantor has no Tort Claims, except as
set
forth on Schedule IV.
Each
Grantor shall notify Purchaser on no less than a quarterly basis of any Tort
Claims known to such Grantor and which arise following the date hereof and
such
Tort Claims shall be added to Schedule IV.
4. LOCATION OF COLLATERAL.
Each
Grantor represents and warrants to Purchaser that: (a) Schedule I
is a
correct and complete list of such Grantor's chief executive office, the location
of its books and records, the locations of the Collateral, and the locations
of
all of its other places of business; and (b) Schedule I
correctly identifies any of such facilities and locations that are not owned
by
such Grantor and sets forth the names of the owners and lessors or sublessors
of
such facilities and locations. Each Grantor covenants and agrees that it will
not (i) maintain any Collateral at any location other than those locations
listed for such Grantor on Schedule I,
(ii) otherwise change or add to any of such locations, or (iii) change
the location of its chief executive office from the location identified in
Schedule I,
unless
(with respect to each of clauses (i) through (iii)) such Grantor gives Purchaser
at least thirty (30) days' prior written notice thereof and executes any
and all financing statements and other documents that Purchaser reasonably
requests in connection therewith. Without limiting the foregoing, each Grantor
represents that all of its Inventory (other than Inventory in transit) is,
and
covenants that all of its Inventory will be, located either (A) on premises
owned by a Grantor, (B) on premises leased by a Grantor, provided that
Purchaser has received an executed landlord waiver from the landlord of such
premises in form and substance satisfactory to Purchaser, or (C) in a
warehouse or with a bailee, provided that Purchaser has received an executed
bailee letter from the applicable Person in form and substance satisfactory
to
Purchaser.
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5. JURISDICTION
OF ORGANIZATION; CHANGES.
Each
Grantor's name as it appears in official filings in the state of its
incorporation or other organization, the type of entity of each Grantor
(including corporation, partnership, limited partnership or limited liability
company), organizational identification number issued by each Grantor's state
of
incorporation or organization or a statement that no such number has been issued
and each Grantor's state of organization or incorporation, are set forth in
Schedule II
hereto.
Each Grantor has only one state of incorporation or organization. The Grantors
may amend Schedule
II
in
connection with and pursuant to certain transactions permitted by the Purchase
Agreement.
6. TITLE
TO, LIENS ON, AND SALE AND USE OF COLLATERAL.
Each
Grantor shall (a) use, store, and maintain the Collateral with all reasonable
care in all material respects, ordinary wear and tear excepted, and (b) shall
use such Collateral for lawful purposes only.
7. APPRAISALS.
Each
Grantor shall, at its expense and upon Purchaser's request, provide Purchaser
with appraisals or updates thereof of any or all of the Collateral from an
appraiser, and prepared on a basis satisfactory to Purchaser, such appraisals
and updates to include, without limitation, information required by applicable
law and regulation and by the internal policies of Purchaser.
8. ACCESS
AND EXAMINATION.
(a)
Purchaser may at all reasonable times have access to, examine, audit, make
extracts from or copies of and inspect any or all of a Grantor's records, files,
and books of account and the Collateral, and, so long as there is no
unreasonable interference with such Grantor's business, discuss such Grantor's
affairs with such Grantor's officers and management; (b) each Grantor will
deliver to Purchaser any instrument necessary for Purchaser to obtain records
from any service bureau maintaining records for such Grantor; (c) Purchaser
may,
at a Grantor's expense, make copies of all of such Grantor's books and records,
or require such Grantor to deliver such copies to Purchaser; (d) Purchaser
may,
without expense to Purchaser, use such of the Grantors' respective personnel,
supplies, and real property as may be reasonably necessary for maintaining
or
enforcing Purchaser's Liens. Purchaser shall have the right, at any time, in
Purchaser's name or in the name of a nominee of Purchaser, to verify the
validity, amount or any other matter relating to the Accounts, Inventory, or
other Collateral, by mail, telephone, or otherwise.
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9. COLLATERAL
REPORTING.
Each
Grantor shall provide Purchaser with reports with respect to the Collateral
as
Purchaser reasonably requests.
10. COLLECTION
OF ACCOUNTS; PAYMENTS.
(a) If
sales
of Inventory are made or services are rendered for cash, such Grantor shall
immediately deliver to Purchaser or deposit into a Payment Account the cash
which such Grantor receives for such sales.
(b) All
payments, including immediately available funds received by Purchaser at a
bank
account designated by it, will be Purchaser's sole property for its benefit
and
will be credited to the repayment of the Obligations to Purchaser to the extent
of such funds received one (1) Business Day after Purchaser's receipt of
immediately available funds.
(c) In
the
event the Grantors repay all of the Obligations to Purchaser upon the
termination of the Purchase Agreement or upon acceleration of the Obligations
to
Purchaser, other than through Purchaser's receipt of payments on account of
the
Accounts or proceeds of the other Collateral, such payment will be credited
(conditioned upon final collection) to the Grantors' account one (1)
Business Day after Purchaser's receipt of immediately available
funds.
11. INVENTORY;
PERPETUAL INVENTORY.
Each
Grantor represents and warrants to Purchaser and agrees with Purchaser that
all
of the Inventory owned by such Grantor is and will be held for sale or lease,
or
to be furnished in connection with the rendition of services, in the ordinary
course of such Grantor's business, and is and will be fit for such purposes.
Each Grantor will keep its Inventory in good and marketable condition, except
for damaged or defective goods arising in the ordinary course of such Grantor's
business. Each Grantor will not, without the prior written consent of Purchaser,
acquire or accept any Inventory on consignment or approval. Each Grantor will
conduct a physical count of the Inventory at least once per fiscal year of
the
Company, and after and during the continuation of an Event of Default, at such
other times as Purchaser requests. Notwithstanding the foregoing sentence,
a
Grantor's obligation to conduct a yearly physical count of the Inventory shall
be satisfied for such year if such Grantor conducts an appraisal (in such year)
of the Inventory for the Purchaser (though the obligation to conduct a physical
count at such times as Purchaser requests during an Event of Default shall
not
be affected by this sentence). Each
Grantor will maintain a perpetual inventory reporting system at all times.
Each
Grantor will not, without Purchaser's written consent, sell any Inventory on
a
xxxx-and-hold, guaranteed sale, sale and return, sale on approval, consignment,
or other repurchase or return basis.
12. EQUIPMENT.
(a) Each
Grantor represents and warrants to Purchaser and agrees with Purchaser that
all
of the Equipment owned by such Grantor is and will be used or held for use
in
such Grantor's business, and is and will be fit for such purposes. Each Grantor
shall keep and maintain its Equipment in good operating condition and repair
(ordinary wear and tear excepted) and shall make all necessary replacements
thereof.
(b) Each
Grantor shall promptly inform Purchaser of any material additions to or
deletions from the Equipment. Each Grantor shall not permit any Equipment to
become a fixture with respect to real property or to become an accession with
respect to other personal property with respect to which real or personal
property Purchaser does not have a Lien. Each Grantor will not, without
Purchaser's prior written consent, alter or remove any identifying symbol or
number on any of such Grantor's Equipment constituting
Collateral.
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(c) A
Grantor
may sell or dispose of old or obsolete Equipment in the ordinary course of
business.
(d) Except
as
set forth in the Purchase Agreement, each Grantor shall not, without Purchaser's
prior written consent, sell, lease as a lessor, or otherwise dispose of any
of
such Grantor's Equipment.
13. ASSIGNED
CONTRACTS.
Each
Grantor shall fully perform all of its obligations under each of the Assigned
Contracts, and shall enforce all of its rights and remedies thereunder;
provided, however, that such Grantor shall not take any action or fail to take
any action with respect to its Assigned Contracts which would cause the
termination of a material Assigned Contract. Notwithstanding the foregoing
sentence, each Grantor may take such action as is appropriate in a good faith
dispute with respect to an Assigned Contract (including electing not to comply
with the terms of an Assigned Contract). Without
limiting the generality of this Section, such Grantor shall take all action
necessary or appropriate to permit, and shall not take any action which would
have any materially adverse effect upon, the full enforcement of all
indemnification rights under its Assigned Contracts. Each Grantor shall notify
Purchaser in writing, promptly after any Grantor becomes aware thereof, of
any
event or fact which could give rise to a material claim by it for
indemnification under any of its Assigned Contracts, and shall diligently pursue
such right and report to Purchaser on all further developments with respect
thereto. If an Event of Default has occurred and is continuing, each Grantor
shall remit directly to Purchaser for application to the Obligations to
Purchaser in such order as Purchaser shall determine, all amounts received
by
such Grantor as indemnification or otherwise pursuant to its Assigned Contracts.
If an Event of Default has occurred and is continuing, Purchaser may directly
enforce such right in its own or such Grantor's name and may enter into such
settlements or other agreements with respect thereto as Purchaser shall
determine. In any suit, proceeding or action brought by Purchaser under any
Assigned Contract for any sum owing thereunder or to enforce any provision
thereof, such Grantor shall indemnify and hold Purchaser harmless from and
against all expense, loss or damage suffered by reason of any defense, setoff,
counterclaims, recoupment, or reduction of liability whatsoever of the obligor
thereunder arising out of a breach by such Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing from such Grantor to or in favor of such obligor or its successors.
Notwithstanding any provision hereof to the contrary, such Grantor shall at
all
times remain liable to observe and perform all of its duties and obligations
under its Assigned Contracts, and Purchaser's exercise of any of its rights
with
respect to the Collateral shall not release such Grantor from any of such duties
and obligations. Purchaser shall not be obligated to perform or fulfill any
of
such Grantor's duties or obligations under its Assigned Contracts or to make
any
payment thereunder, or to make any inquiry as to the nature or sufficiency
of
any payment or property received by it thereunder or the sufficiency of
performance by any party thereunder, or to present or file any claim, or to
take
any action to collect or enforce any performance, any payment of any amounts,
or
any delivery of any property.
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14. RIGHT TO CURE.
Purchaser may, in its discretion, pay any amount or do any act required of
such
Grantor hereunder, under the Purchase Agreement or under any Related Agreement
in order to preserve, protect, maintain or enforce the Obligations to Purchaser,
the Collateral or Purchaser's Liens therein, if such Grantor, after notice
thereof and within the applicable cure period, fails to pay or do, including
payment of any judgment against such Grantor, any insurance premium, any
warehouse charge, any finishing or processing charge, any landlord's or bailee's
claim, and any other Lien upon or with respect to the Collateral. All payments
that Purchaser makes under this Section 14
and all
out-of-pocket costs and expenses that Purchaser pays or incurs in connection
with any action taken by it hereunder shall be charged to such Grantor's account
and shall be deemed included in the Obligations to Purchaser. Any payment made
or other action taken by Purchaser under this Section 14
shall be
without prejudice to any right to assert an Event of Default hereunder and
to
proceed thereafter as herein provided.
15. POWER OF ATTORNEY.
Each
Grantor hereby appoints Purchaser and its designee as such Grantor's
attorney-in-fact in its place and stead, with power: (a) to endorse such
Grantor's name on any checks, notes, acceptances, money orders, or other forms
of payment or security that come into Purchaser's possession; (b) to sign
such Grantor's name on any invoice, xxxx of lading, warehouse receipt or other
negotiable or non-negotiable Document constituting Collateral, on drafts against
customers, on assignments of Accounts, on notices of assignment, financing
statements and other public records and to file any such financing statements
by
electronic means with or without a signature as authorized or required by
applicable law or filing procedure; (c) so long as any Event of Default has
occurred and is continuing, to notify the post office authorities to change
the
address for delivery of such Grantor's mail to an address designated by
Purchaser and to receive, open and dispose of all mail addressed to such
Grantor; (d) to send requests for verification of Accounts to customers or
Account Debtors; (e) to complete in such Grantor's name or Purchaser's name,
any
order, sale or transaction, obtain the necessary Documents in connection
therewith, and collect the proceeds thereof; (f) to clear Inventory through
customs in such Grantor's name, Purchaser's name or the name of Purchaser's
designee, and to sign and deliver to customs officials powers of
attorney-in-fact in the Grantor's name for such purpose; and (g) to do all
things necessary in the sole judgment of Purchaser to carry out the Purchase
Agreement and this Agreement. Each Grantor ratifies and approves all acts of
such attorney-in-fact. Neither Purchaser nor its attorneys-in-fact will be
liable for any acts or omissions or for any error of judgment or mistake of
fact
or law except for their gross negligence or willful misconduct. This power,
being coupled with an interest, is irrevocable until the Purchase Agreement
has
been terminated and all Obligations to Purchaser have been fully
satisfied.
16. PURCHASER'S
RIGHTS, DUTIES AND LIABILITIES.
(a) Each
Grantor assumes all responsibility and liability arising from or relating to
the
use, sale or other disposition of the Collateral. The Obligations to Purchaser
shall not be affected by any failure of Purchaser to take any steps to perfect
Purchaser's Liens or to collect or realize upon the Collateral, nor shall loss
of or damage to the Collateral release such Grantor from any of the Obligations
to Purchaser. Following the occurrence and during the continuation of an Event
of Default, Purchaser may (but shall not be required to), without notice to
or
consent from the Grantors, xxx upon or otherwise collect, extend the time for
payment of, modify or amend the terms of, compromise or settle for cash, credit,
or otherwise upon any terms, grant other indulgences, extensions, renewals,
compositions, or releases, and take or omit to take any other action with
respect to the Collateral, any security therefor, any agreement relating
thereto, any insurance applicable thereto, or any Person liable directly or
indirectly in connection with any of the foregoing, without discharging or
otherwise affecting the liability of any Grantor for the Obligations to
Purchaser or under the Purchase Agreement or any other agreement now or
hereafter existing between Purchaser and such Grantor.
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(b) Purchaser
shall use reasonable care with respect to the Collateral in its possession
or
under its control. Purchaser shall not have any other duty as to any Collateral
in its possession or control or in the possession or control of nominee of
Purchaser, or any income thereon or as to the preservation of rights against
prior parties or any other rights pertaining thereto.
(c) It
is
expressly agreed by each Grantor that, anything herein to the contrary
notwithstanding, such Grantor shall remain liable under each of its contracts
and each of its licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Purchaser shall
not
have any obligation or liability under any contract or license by reason of
or
arising out of this Agreement or the granting herein of a Lien thereon or the
receipt by Purchaser of any payment relating to any contract or license pursuant
hereto. Purchaser shall not be required or obligated in any manner to perform
or
fulfill any of the obligations of any Grantor under or pursuant to any contract
or license, or to make any payment, or to make any inquiry as to the nature
or
the sufficiency of any payment received by it or the sufficiency of any
performance by any party under any contract or license, or to present or file
any claims, or to take any action to collect or enforce any performance or
the
payment of any amounts which may have been assigned to it or to which it may
be
entitled at any time or times.
(d) Purchaser
may at any time after a Default or Event of Default shall have occurred and
be
continuing, without prior notice to any Grantor, notify Account Debtors, parties
to the Assigned Contracts and obligors in respect of Instruments and Chattel
Paper, that the Accounts and the right, title and interest of such Grantor
in
and under such Assigned Contracts, Instruments and Chattel Paper have been
assigned to Purchaser, and that payments shall be made directly to Purchaser
for
its own benefit. Upon the request of Purchaser, such Grantor shall so notify
Account Debtors, parties to Assigned Contracts and obligors in respect of
Instruments and Chattel Paper. So long as an Event of Default has occurred
and
is continuing, such defaulting Grantor, at Purchaser's request, shall also
execute and deliver to Purchaser such documents as Purchaser shall require
to
grant Purchaser access to any post office box in which collections of Accounts
are received.
17. PROPRIETARY
RIGHTS COLLATERAL.
(a) None
of
the Grantors has any interest in, or title to, any Proprietary Rights except
as
set forth in Schedule III
hereto.
This Agreement is effective to create a valid and continuing Lien on and, upon
filing of this Agreement with the United States Copyright Office and the United
States Patent and Trademark Office, perfected Liens in favor of Purchaser on
each Grantor's Proprietary Rights and such perfected Liens are enforceable
as
such as against any and all creditors of and purchasers from such Grantor.
Upon
filing of this Agreement with the United States Copyright Office and the United
States Patent and Trademark Office and the filing of appropriate financing
statements, all action necessary or desirable to protect and perfect Purchaser's
Lien on such Grantor's Proprietary Rights shall have been duly
taken.
-10-
(b) Each
Grantor shall notify Purchaser immediately if it knows that any application
or
registration relating to any Proprietary Right (now or hereafter existing)
may
become abandoned or dedicated, or of any adverse determination or development
(including the institution of, or any such determination or development in,
any
proceeding in the United States Patent and Trademark Office, the United States
Copyright Office or any court) regarding such Grantor's ownership of any
Proprietary Right, its right to register the same, or to keep and maintain
the
same.
(c) In
no
event shall any Grantor, either directly or through Purchaser, employee,
licensee or designee, file an application for the registration of any
Proprietary Right with the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency without giving Purchaser
prior written notice thereof, and, upon request of Purchaser, such Grantor
shall
execute and deliver any and all amendments to this Agreement or any and all
additional intellectual property security agreements as Purchaser may request
to
evidence Purchaser's Lien on such Proprietary Right and the General Intangibles
of such Grantor relating thereto or represented thereby.
(d) Each
Grantor shall take all actions necessary or requested by Purchaser to maintain
and pursue each application, to obtain the relevant registration and to maintain
the registration of each of the Proprietary Rights (now or hereafter existing),
including the filing of applications for renewal, affidavits of use, affidavits
of noncontestability and opposition and interference and cancellation
proceedings.
(e) In
the
event that any of the Proprietary Rights Collateral is infringed upon, or
misappropriated or diluted by a third party, each Grantor shall notify Purchaser
promptly after such Grantor learns thereof. Each Grantor shall take all
reasonably necessary action to protect such affected Proprietary Rights
Collateral (including, for example and without limitation, suing for
infringement, misappropriation or dilution and otherwise attempting to recover
any and all damages for such infringement, misappropriation or
dilution).
18. INDEMNIFICATION.
In any
suit, proceeding or action brought by Purchaser relating to any Account, Chattel
Paper, Assigned Contract, Document, General Intangible or Instrument for any
sum
owing thereunder or to enforce any provision of any Account, Chattel Paper,
Assigned Contract, Document, General Intangible or Instrument, each Grantor
will
save, indemnify and keep Purchaser harmless from and against all expense
(including, without limitation, reasonable attorneys' fees and expenses), loss
or damage suffered by reason of any defense, setoff, counterclaim, recoupment
or
reduction of liability whatsoever of the obligor thereunder, arising out of
a
breach by such Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favor of,
such
obligor or its successors from such Grantor, except to the extent such expense,
loss, or damage is attributable to the gross negligence or willful misconduct
of
Purchaser.
-11-
19. EVENTS
OF DEFAULT.
Each
Grantor shall be in default under this Agreement upon the happening of any
of
the following events or conditions (each, an "Event
of Default"):
(i) any of the Grantors breaches any of its representations, warranties,
covenants, agreements or obligations hereunder; (ii) an Event of Default
(as defined in the Purchase Agreement) occurs under the Purchase Agreement
or
any of the Related Agreements; (iii) any event which results in the
acceleration of the maturity in the indebtedness of any of the Grantors to
others under any indenture, agreement or undertaking; (iv) dissolution,
termination of existence, insolvency, business failure, appointment of a
receiver of any part of the property of, assignment for the benefit of creditors
by, or the commencement of any proceeding under any bankruptcy or insolvency
laws by or against any of the Grantors; (v) sale
(except as provided herein or in the Purchase Agreement or Related Agreements)
or attempted sale of any of the Collateral, or (vi) Purchaser's security
interest in the Collateral is not, or is asserted not to be, a valid, perfected
and continuing security interest.
20. REMEDIES;
RIGHTS UPON DEFAULT.
(a) In
addition to all other rights and remedies granted to it under the law (and
at
equity) and under this Agreement, the Purchase Agreement, the other Related
Agreements and under any other instrument or agreement securing, evidencing
or
relating to any of the Obligations to Purchaser, if any Event of Default has
occurred and is continuing, Purchaser may exercise all rights and remedies
of a
secured party under the UCC. Without limiting the generality of the foregoing,
each Grantor expressly agrees that in any such event Purchaser, without demand
of performance or other demand, advertisement or notice of any kind (except
the
notice specified below of time and place of public or private sale) to or upon
such Grantor or any other Person (all and each of which demands, advertisements
and notices are hereby expressly waived to the maximum extent permitted by
the
UCC and other applicable law), may forthwith enter upon the premises of such
Grantor where any Collateral is located through self-help, without judicial
process, without first obtaining a final judgment or giving such Grantor or
any
other Person notice and opportunity for a hearing on Purchaser's claim or action
and may collect, receive, assemble, process, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease, assign, give
an
option or options to purchase, or sell or otherwise dispose of and deliver
said
Collateral (or contract to do so), or any part thereof, in one or more parcels
at a public or private sale or sales, at any exchange at such prices as it
may
deem acceptable, for cash or on credit or for future delivery without assumption
of any credit risk. Purchaser shall have the right upon any such public sale
or
sales and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of said Collateral so sold, free of any right
or equity of redemption, which equity of redemption such Grantor hereby
releases. Such sales may be adjourned and continued from time to time with
or
without notice. Purchaser shall have the right to conduct such sales on such
Grantor's premises or elsewhere and shall have the right to use such Grantor's
premises without charge for such time or times as Purchaser deems necessary
or
advisable.
-12-
(b) If
an
Event of Default shall have occurred, each Grantor further agrees, at
Purchaser's request, to assemble the Collateral and make it available to
Purchaser at places which Purchaser shall select, whether at such Grantor's
premises or elsewhere. Until Purchaser is able to effect a sale, lease, or
other
disposition of the Collateral, Purchaser shall have the right to hold or use
the
Collateral, or any part thereof, to the extent that it deems appropriate for
the
purpose of preserving the Collateral or its value or for any other purpose
deemed appropriate by Purchaser. Purchaser shall have no obligation to such
Grantor to maintain or preserve the rights of such Grantor as against third
parties with respect to the Collateral while the Collateral is in the possession
of Purchaser. Purchaser may, if it so elects, seek the appointment of a receiver
or keeper to take possession of the Collateral and to enforce any of Purchaser's
remedies, with respect to such appointment without prior notice or hearing
as to
such appointment. Purchaser shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the Obligations to
Purchaser, as provided in the Purchase Agreement, and only after so paying
over
such net proceeds, and after the payment by Purchaser of any other amount
required by any provision of law, need Purchaser account for the surplus, if
any, to such Grantor. To the maximum extent permitted by applicable law, each
Grantor waives all claims, damages, and demands against Purchaser arising out
of
the repossession, retention or sale of the Collateral except such as arise
solely out of the gross negligence or willful misconduct of Purchaser. Each
Grantor agrees that ten (10) days prior notice by Purchaser of the time and
place of any public sale or of the time after which a private sale may take
place is reasonable notification of such matters. Each Grantor shall remain
liable for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all Obligations to Purchaser, including
any
attorneys' fees or other expenses incurred by Purchaser to collect such
deficiency.
(c) Except
as
otherwise specifically provided herein, each Grantor hereby waives presentment,
demand, protest or any notice (to the maximum extent permitted by applicable
law) of any kind in connection with this Agreement or any
Collateral.
21. GRANT
OF LICENSE TO USE PROPRIETARY RIGHTS.
For the
purpose of enabling Purchaser to exercise rights and remedies under Section 20 (including,
without limiting the terms of Section 20,
in
order to take possession of, hold, preserve, process, assemble, prepare for
sale, market for sale, sell or otherwise dispose of the Collateral) at such
time
as Purchaser shall be lawfully entitled to exercise such rights and remedies,
each Grantor hereby grants to Purchaser an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to such Grantor)
to use, license or sublicense any Proprietary Rights now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including
in
such license access to all media in which any of the licensed items may be
recorded, maintained or stored and to all computer software and programs used
for the compilation or printout thereof.
22. MISCELLANEOUS.
(a) Reinstatement.
This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against any Grantor for liquidation or
reorganization, should such Grantor become insolvent or make an assignment
for
the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of such Grantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations to Purchaser, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Obligations to
Purchaser, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In
the
event that any payment, or any part thereof, is rescinded, reduced, restored
or
returned, the Obligations to Purchaser shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or
returned.
-13-
(b) Notices.
Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall
or
may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give and serve upon any other party
any
communication with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be given in the manner, and deemed received, as provided for in the
Purchase Agreement.
(c) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining provisions
of this Agreement. This Agreement is to be read, construed and applied together
with the Purchase Agreement and the Related Agreements which, taken together,
set forth the complete understanding and agreement of Purchaser and each Grantor
with respect to the matters referred to herein and therein.
(d) No
Waiver; Cumulative Remedies.
Neither
Purchaser nor any of the Grantors shall by any act, delay, omission or otherwise
be deemed to have waived any of its rights or remedies hereunder, and no waiver
shall be valid unless in writing, signed by the waiving party and then only
to
the extent set forth therein. A waiver by the Purchaser or any Grantors of
any
right or remedy hereunder on any one occasion shall not be construed as a bar
to
any right or remedy which the waiving party would otherwise have had on any
future occasion. No failure to exercise, nor any delay in exercising on the
part
of Purchaser or any of the Grantors, any right, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right, power or privilege hereunder preclude any other or future exercise
thereof or the exercise of any other right, power or privilege. The rights
and
remedies hereunder provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights and remedies provided by
law.
None of the terms or provisions of this Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by
Purchaser and each Grantor.
(e) Limitation
by Law.
All
rights, remedies and powers provided in this Agreement may be exercised only
to
the extent that the exercise thereof does not violate any applicable provision
of law, and all the provisions of this Agreement are intended to be subject
to
all applicable mandatory provisions of law that may be controlling and to be
limited to the extent necessary so that they shall not render this Agreement
invalid, unenforceable, in whole or in part, or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
(f) Termination
of this Agreement.
Subject
to Section 22(a),
this
Agreement shall terminate upon the indefeasible payment and performance in
full
in immediately available funds of all Obligations to Purchaser.
-14-
(g) Successors
and Assigns.
This
Agreement and all obligations of each Grantor hereunder shall be binding upon
the successors and assigns of such Grantor (including any debtor-in-possession
on behalf of such Grantor) and shall, together with the rights and remedies
of
Purchaser hereunder, inure to the benefit of Purchaser, all future holders
of
any instrument evidencing any of the Obligations to Purchaser and their
respective successors and assigns. No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or
instrument evidencing the Obligations to Purchaser or any portion thereof or
interest therein shall in any manner affect the Lien granted to Purchaser
hereunder. No Grantor may assign, sell, hypothecate or otherwise transfer any
interest in or obligation under this Agreement.
(h) Counterparts.
This
Agreement may be executed in any number of separate counterparts, each of which
shall collectively and separately constitute one and the same
agreement.
(i) Governing
Law.
THIS
PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA APPLICABLE
TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT REGARD TO THE CHOICE
OF
LAW OR CONFLICTS OF LAW PROVISIONS THEREOF).
(j) Jurisdiction,
Etc.
(i) Each
of
the parties hereby consents and agrees that all actions, suits or other
proceedings arising under or in connection with this Pledge Agreement shall
be
tried and litigated in state or federal courts located in Los Angeles,
California, which courts shall have exclusive jurisdiction to hear and determine
any and all claims, controversies and disputes arising out of or related to
this
Pledge Agreement. Notwithstanding the foregoing, nothing contained in this
Section shall preclude the Purchaser from bringing any action, suit or other
proceeding in the courts of any other location to enforce its rights
hereunder.
(ii) Each
of
the parties hereby (A) irrevocably submits to the jurisdiction of any such
court
and consents in advance to such jurisdiction in any action, suit or other
proceeding commenced in any such court, (B) waives any right it may have to
assert the doctrine of forum
non conveniens
or any
objection that such person may have based upon lack of personal jurisdiction
or
improper venue, and (C) consents to the granting of such legal or equitable
relief as is deemed appropriate by such court. Each of the parties hereby waives
personal service of the summons, complaint or other process issued in any such
action, suit or other proceeding and agrees that service of such summons,
complaint and other process may be made by registered or certified mail
addressed to such party at the address set forth in the Purchase Agreement
and
that service so made shall be deemed completed upon the earlier of such person's
actual receipt thereof or five (5) days after deposit in the United States
mail,
proper postage prepaid.
(iii) To
the
extent permitted under the applicable laws of any such jurisdiction, the
Guarantors hereby waive, in respect of any such action, suit or other
proceeding, the jurisdiction of any other court or courts that now or hereafter,
by reason of such person's present or future domicile, or otherwise, may be
available to it.
-15-
(k) Section
Titles.
The
Section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto.
(l) No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. In the event an ambiguity or question of intent or interpretation
arises under any provision of this Agreement, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
(m) Entire
Agreement.
This
Agreement, together with the Purchase Agreement and the Related Agreements,
contain the entire agreement of the parties with respect to the subject matter
hereof, and supersede all prior agreements, representation and warranties,
written or oral, with respect thereto.
(n) Advice
of Counsel.
Each of
the parties represents to each other party hereto that it has discussed this
Agreement with its counsel.
(o) Benefit
of Purchaser.
All
Liens granted or contemplated hereby shall be for the benefit of Purchaser,
and
all proceeds or payments realized from Collateral in accordance herewith
(including, without limitation, any amounts on deposit in a Payment Account)
may
either, at the sole discretion of Purchaser, (i) be deposited into a
Payment Account or (ii) be applied to the Obligations to Purchaser in such
order as Purchaser may elect, in its sole discretion.
(p) Suretyship
Waivers and Consents.
The
obligations of each Grantor are independent of the obligations of each other
Grantor. Each Grantor expressly waives any right to require Purchaser to proceed
against any other Grantor, to proceed against or exhaust any Collateral or
any
other security for the Obligations to Purchaser or to pursue any remedy
Purchaser may have at any time. Each Grantor agrees that Purchaser may proceed
against any one or more Grantor and/or the Collateral in such order and manner
as Purchaser shall determine in its sole and absolute discretion. A separate
action or actions may be brought and prosecuted against any one or more Grantor
whether an action is brought or prosecuted against any other Grantor or with
respect to any Collateral or whether any other person shall be joined in any
such action or actions. Each Grantor expressly waives the benefit of any statute
of limitations affecting its liability under this Agreement or the enforcement
of the Obligations to Purchaser or any rights of Purchaser created or granted
under this Agreement or the Purchase Agreement. Purchaser's rights hereunder
shall be reinstated and revived, and the obligations and liability of each
Grantor hereunder shall continue, with respect to any amount at any time paid
on
account of the Obligations to Purchaser which thereafter shall be required
to be
restored or returned by Purchaser upon the bankruptcy, insolvency or
reorganization of any Grantor, or otherwise, all as though such amount had
not
been paid.
-16-
(i) Each
Grantor expressly waives any and all suretyship defenses now or hereafter
arising or asserted, including (A) any disability or other defense of any
other Grantor or with respect to the Obligations to Purchaser; (B) the
cessation for any cause whatsoever of liability of any of the other Grantor,
and
(C) any act or omission of Purchaser or others that directly
or
indirectly results in or aids the discharge or release of any other Grantor
or
the Obligations to Purchaser or any Collateral or any guaranty therefor by
operation of law or otherwise. Without limiting the generality of any other
waiver or other provision set forth in this Agreement, each Grantor hereby
waives, to the maximum extent such waiver is permitted by law, any and all
benefits, defenses to payment or performance, or any right to partial or
complete exoneration arising directly or indirectly under any one or more of
California Civil Code Sections 2787 TO 2855 inclusive, and all successor
sections.
(ii) Each
Grantor waives any and all rights and provisions of California Code of Civil
Procedure sections 580a, 580b, 580d and 726, including, but not limited to
any
provision thereof that: (A) may
limit
the time period for Purchaser to commence a lawsuit against any Grantor to
collect any Obligations to Purchaser owing by any Grantor to Purchaser; (B)
may
entitle any Grantor to a judicial or nonjudicial determination of any deficiency
owed by such Grantor to Purchaser, or to otherwise limit Purchaser's right
to
collect a deficiency based on the fair market value of such real property
security; (C) may limit Purchaser's right to collect a deficiency judgment
after
a sale of any real property securing the Obligations to Purchaser; (D) may
require Purchaser to take only one action to collect the Obligations to
Purchaser or that may otherwise limit the remedies available to Purchaser to
collect the Obligations to Purchaser. This waiver means, among other things:
(1)
Purchaser may collect from the Grantors without first foreclosing on any real
or
personal property collateral pledged by the Grantors; and (2) if Purchaser
forecloses on any real property collateral pledged by the Grantors: (A) the
amount of the Obligations to Purchaser may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the collateral
is
worth more than the sale price, and (B) Purchaser may collect from the Grantors
even if Purchaser, by foreclosing on the real property collateral, has destroyed
any right any Grantor may have to collect from any other Grantor. This is an
unconditional and irrevocable waiver of any rights and defenses the Grantors
may
have because any of the Obligations to Purchaser is secured by real property.
These rights and defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d, or 726 of the California Code
of
Civil Procedure.
(iii) Each
Grantor agrees that any amounts received by Purchaser from whatever source
on
account of the Obligations to Purchaser may be applied by Purchaser toward
the
payment of such of the Obligations to Purchaser and in such order of application
as Purchaser may from time to time elect; and notwithstanding any payments
made
by any Grantor, and, until Purchaser shall have been fully and finally paid,
such Grantor shall have no right of subrogation, reimbursement, exoneration,
indemnity, contribution or any other rights that would result in such Grantor
being deemed a creditor of any other Grantor under the federal Bankruptcy Code
or any other law or for any other purpose and such Grantor hereby irrevocably
waives all such rights, the right to assert any such rights and any right to
enforce any remedy which Purchaser now or may hereafter have against any Grantor
and hereby waives any benefit of and any right to participate in, any security
now or hereafter held by Purchaser, whether any of the foregoing rights arise
in
equity, at law or by contract.
-17-
(iv) Each
Grantor represents and warrants to Purchaser that it has established adequate
means of obtaining from each other Grantor and their affiliates, on a continuing
basis, financial and other information pertaining to the businesses, operations
and condition (financial and otherwise) of each other Grantor, their affiliates
and their properties, and each Grantor now is and hereafter will be completely
familiar with the businesses, operations and condition (financial and otherwise)
of each other Grantor, their affiliates and their
properties. Each Grantor hereby expressly waives and relinquishes any duty
on
the part of Purchaser (should any such duty exist) to disclose to any Grantor
any matter, fact or thing related to the businesses, operations or condition
(financial or otherwise) of each Grantor, their affiliates or their properties,
whether now known or hereafter known by Purchaser.
(v) Each
Grantor represents and warrants that each of the waivers set forth herein are
made with each Grantor's full knowledge of their significance and consequences,
and that under the circumstances the waivers are reasonable and not contrary
to
public policy or law. If any of said waivers are determined to be contrary
to
any applicable law or public policy, such waivers shall be effective only to
the
maximum extent permitted by law.
[Signature
Page Follows]
-18-
IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed and delivered by
its
duly authorized officer as of the date first set forth above.
|
GFN
AUSTRALASIA FINANCE PTY LTD
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
"Purchaser"
|
|
|
BISON
CAPITAL AUSTRALIA, L.P.
|
|
|
By:
|
Bison
Capital Australia GP, LLC,
|
|
its
general partner
|
|
|
By:
|
|
|
Managing
Member
|
|
-19-
SCHEDULE
I
to
LOCATION
OF COLLATERAL
|
Credit Party
|
Location of Chief
Executive Office
|
Location of Books and
Records; Location of
Collateral
|
Location of All Other
Places of Business
|
Location of Leased
Facilities and Name of
Lessor/Sublessor
|
|||||||||
-1-
SCHEDULE
II
to
NAME;
TYPE OF ENTITY; ORGANIZATIONAL IDENTIFICATION NO.; JURISDICTION OF INCORPORATION
OR ORGANIZATION
|
Credit
Party
|
Type
of Entity
|
Organizational
Identification
Number
(if
any)
|
State
of
Organization
|
|||||||
-2-
SCHEDULE
III
to
PROPRIETARY
RIGHTS
-3-
SCHEDULE
IV
to
TORT
CLAIMS
-4-
