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EXHIBIT 4.9
COLLATERAL AGENCY AGREEMENT
This COLLATERAL AGENCY AGREEMENT (this "AGREEMENT"), dated as
of February 9, 1999, is made between AIF II, L.P., a Delaware limited
partnership ("AIF"), ARTEMIS AMERICA PARTNERSHIP, a Delaware limited partnership
("AAP") (AIF and AAP are collectively referred to herein as the "PARTICIPATING
HOLDERS", which term shall include any future holder of any Modified Notes as
defined below), U.S. BANK TRUST NATIONAL ASSOCIATION (f/k/a First Trust National
Association), a national banking association, as collateral agent for the
Participating Holders (in such capacity, the "COLLATERAL AGENT"), and BROOKE
(OVERSEAS) LTD. (the "PLEDGOR").
WHEREAS, BGLS Inc., a Delaware corporation (the "COMPANY"),
has entered into the Indenture (the "INDENTURE") dated as of January 1, 1996
between the Company and State Street Bank and Trust Company (the "Trustee");
WHEREAS, pursuant to the terms and conditions of the Amended
and Restated Standstill Agreement dated as of even date herewith among the
Company and the Participating Holders (the "STANDSTILL AGREEMENT"), the
Participating Holders have agreed to defer the payment of interest due to the
Participating Holders under the Indenture until the occurrence of a Termination
Event (as defined in the Standstill Agreement);
WHEREAS, pursuant to the Amended and Restated Limited Recourse
Guarantee Agreement (the "GUARANTEE"), dated as of even date herewith, between
the Pledgor and the Collateral Agent, the Pledgor has agreed to guarantee for
the benefit of the Participating Holders the Company's obligations under the
Series B Senior Secured Notes; and
WHEREAS, pursuant to the Amended and Restated Pledge
Agreement, dated as of even date herewith (the "PLEDGE AGREEMENT"), among the
Pledgor and the Collateral Agent, the Pledgor has agreed to pledge certain
securities to the Collateral Agent for the benefit of the Participating Holders
to secure its obligation under the Guarantee;
WHEREAS, the Participating Holders and the Pledgor wish to
appoint the Collateral Agent to act on their behalf in accordance with the
provisions of this Agreement, the Pledge Agreement and the Guarantee.
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions and Interpretation.
(a) CERTAIN DEFINED TERMS. Unless otherwise defined, all
capitalized terms used in this Agreement that are defined in the Indenture or
the Pledge Agreement (including those terms incorporated by reference) shall
have the respective meanings assigned to them in the Indenture, the Pledge
Agreement or the Guarantee. In addition, the following terms shall have the
following meanings under this Agreement:
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"MAJORITY PARTICIPATING HOLDERS" shall mean Participating Holders
holding at least 50.1% in principal amount of the Modified Notes.
"MODIFIED NOTES" shall mean the $97,239,000 in principal amount of
Senior Secured Notes (CUSIP Number 055432 AC24) held by the
Participating Holders.
(b) INTERPRETATION. In this Agreement, unless otherwise
indicated, the singular includes the plural and plural the singular; words
importing either gender include the other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to this Agreement; references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments, extensions and other modifications to such instruments;
and references to Persons include their respective permitted successors and
assigns and, in the case of governmental Persons, Persons succeeding to their
respective functions and capacities.
Section 2. PLEDGE AGREEMENT AND GUARANTEE.
(a) If any Termination Event shall have occurred and be
continuing, upon the written request of the Majority Participating Holders, the
Collateral Agent, on behalf of the Participating Holders, shall be permitted and
is hereby authorized to take any and all actions and to exercise any and all
rights, remedies and options, which it may have under the Pledge Agreement and
the Guarantee.
(b) The Collateral Agent shall distribute the proceeds of any
sale, disposition or other realization by the Collateral Agent or by any
Participating Holder upon all or any portion of the Collateral pursuant to the
Pledge Agreement (subject to the terms and limitations thereof), in the order of
priorities set forth in Section 5.04 of the Pledge Agreement.
(c) The Collateral Agent shall distribute all Guaranteed
Obligations paid by the Pledgor under the Guarantee pursuant to the Guarantee
(subject to the terms and limitations thereof).
Section 3. APPOINTMENT AND DUTIES OF COLLATERAL AGENT.
(a) Each of the Participating Holders and Pledgor hereby
designates and appoints U.S. Bank Trust National Association to act as the
Collateral Agent under the Pledge Agreement and Guarantee, and authorizes the
Collateral Agent to take such actions on its behalf under the provisions of the
Pledge Agreement and Guarantee and to exercise such powers and perform such
duties as are expressly delegated to the Collateral Agent by the terms of the
Pledge Agreement and Guarantee, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in the Pledge Agreement, the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth in the Pledge
Agreement and Guarantee, and no implied covenants, functions or responsibilities
fiduciary or otherwise shall be read into the Pledge Agreement or the Guarantee
or otherwise exist against the Collateral Agent.
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(b) The Collateral Agent will give notice to the Participating
Holders of any action to be taken by it under the Pledge Agreement or the
Guarantee; such notice shall be given prior to the taking of such action unless
the Collateral Agent determines that to do so would be detrimental to the
interests of the Participating Holders, in which event such notice shall be
given promptly after the taking of such action.
(c) Notwithstanding anything to the contrary in the Pledge
Agreement or the Guarantee, the Collateral Agent shall not be required to
exercise any discretionary rights or remedies under the Pledge Agreement or the
Guarantee or give any consent under the Pledge Agreement or the Guarantee or
enter into any agreement amending, modifying, supplementing or waiving any
provision of the Pledge Agreement or the Guarantee unless it shall have been
directed to do so by the Majority Participating Holders.
(d) Notwithstanding any other provisions contained herein, the
Collateral Agent shall not be required to take any actions, exercise any
remedies or enforce any rights under the Pledge Agreement or the Guarantee if it
shall have a reasonable basis for concluding there is a material risk that it
would not be paid or reimbursed for its fees, costs, expenses and/or advances
resulting from such action, remedy exercise or enforcement, unless the
Collateral Agent shall have received indemnification for such fees, costs,
expenses and advances which is reasonably satisfactory to the Collateral Agent;
provided, however, that the foregoing provisions of this paragraph (d) shall not
be applicable to the Collateral Agent's duty to maintain possession and safekeep
the physical certificates evidencing Equity Collateral, and the related
certificate powers, that have been delivered to the Collateral Agent pursuant to
the Pledge Agreement.
Section 4. RIGHTS OF COLLATERAL AGENT.
(a) The Collateral Agent may execute any of its duties under
the Pledge Agreement and the Guarantee by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties.
(b) Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable to the Participating Holders for any action lawfully taken or omitted to
be taken by it under or in connection with the Pledge Agreement or the Guarantee
(except for its gross negligence or willful misconduct), or (ii) responsible in
any manner to the Participating Holders for any recitals, statements,
representations or warranties made by the Company or the Pledgor or any
representative thereof contained in any document, certificate, or report in
connection with the transaction contemplated by the Standstill Agreement or this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any document, certificate, or report in connection with the
transaction contemplated by the Standstill Agreement or this Agreement or for
any failure of the Company or the Pledgor to perform its obligations thereunder.
The Collateral Agent as such shall not be under any obligation to any
Participating Holder to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, any
document, certificate, or report in connection with the transaction contemplated
by the Standstill Agreement or this Agreement, or to inspect the properties,
books or records of the Company or the Pledgor.
(c) The Collateral Agent shall be entitled to rely
conclusively upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy,
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telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Collateral Agent.
(d) The Company will pay to the Collateral Agent from time to
time, and the Collateral Agent shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which shall be agreed to from time to
time by the Company and the Collateral Agent) and the Company further agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
out-of-pocket expenses, including the reasonable fees and expenses of its
counsel (and any local counsel) and of any experts and agents, which the
Collateral Agent may incur in connection with (x) the administration of the
Pledge Agreement and the Guarantee, (y) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, (z)
the exercise or enforcement (whether through negotiations, legal proceedings or
otherwise) of any of the rights of the Collateral Agent or the Participating
Holders under the Pledge Agreement or the Guarantee or (iv) the failure by the
Company or the Pledgor to perform or observe any of the provisions of the Pledge
Agreement or the Guarantee.
(e) The Company agrees to deliver to the Collateral Agent,
concurrently with the delivery thereof to the Trustee, duplicates or copies of
all notices, requests, documents and other instruments delivered by such Person
to the Trustee under or pursuant to the Indenture.
Section 5. INDEMNIFICATION. Each of the Company and the
Pledgor agrees to indemnify the Collateral Agent, its officers, directors,
employees, representatives, attorneys and agents for, and hold it harmless
against, any claim, demand, expense (including but not limited to reasonable
attorneys' fees) loss or liability incurred by it without negligence or bad
faith on its part, arising out of or in connection with its rights and duties
hereunder or under the Pledge Agreement or Guarantee. The Collateral Agent shall
notify the Company and the Pledgor promptly of any claim asserted against the
Collateral Agent for which it may seek indemnity, and shall consult with the
Company and the Pledgor in respect of any material development in connection
with any such claim. The Collateral Agent shall not unreasonably settle any such
claim. The Company need not reimburse any expense or indemnify against any loss
or liability to the extent incurred by the Collateral Agent through its
negligence or bad faith.
Section 6. RESIGNATION OR REMOVAL OF THE COLLATERAL AGENT. The
Collateral Agent may resign as Collateral Agent upon ten days' notice to the
Participating Holders, the Company and the Pledgor and may be removed at any
time with or without cause by the Majority Participating Holders, with any such
resignation or removal to become effective only upon the appointment of a
successor Collateral Agent under this SECTION 6. If the Collateral Agent shall
resign or be removed as Collateral Agent, then the Majority Participating
Holders shall (and if no such successor shall have been appointed within 30 days
of the Collateral Agent's resignation or removal, the Collateral Agent may)
appoint a successor agent for the Participating Holders, which successor agent
shall be reasonably acceptable to the Company and the Pledgor, whereupon such
successor agent shall succeed to the rights, powers and duties of the Collateral
Agent, and the term "Collateral Agent" shall mean such successor agent effective
upon its appointment, and the former Collateral Agent's rights, powers and
duties as Collateral Agent shall be terminated, without any other or further act
or deed on the part of such former Collateral Agent (except that the former
Collateral Agent shall deliver all Collateral then in its possession
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to the successor Collateral Agent). After resignation or removal hereunder as
Collateral Agent, the provisions of this Agreement shall inure to the former
Collateral Agent's benefit as to any actions taken or omitted to be taken by it
while it was Collateral Agent.
Section 7. NO IMPAIRMENTS OF OTHER RIGHTS. Nothing in this
Agreement is intended or shall be construed to impair, diminish or otherwise
adversely affect any other right the Participating Holders may have or may
obtain against the Company or the Pledgor.
Section 8. MISCELLANEOUS.
(a) WAIVER. No failure on the part of the Collateral Agent,
the Participating Holders, the Company or the Pledgor to exercise and no delay
in exercising, and no course of dealing with respect to, any right, remedy,
power or privilege under this Agreement shall operate as a waiver of such right,
remedy, power or privilege, nor shall any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude any other or
further exercise of any such right, remedy, power or privilege or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
(b) NOTICES. All notices and communications to be given under
this Agreement shall be given or made in writing to the intended recipient at
the address specified below or, as to any party, at such other address as shall
be designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telex or telecopier, delivered to the telegraph
or cable office or personally delivered or, in the case of a mailed notice, upon
receipt, in each case, given or addressed as provided or required to be provided
in this SECTION 8(b). In addition, upon any transfer of any Modified Notes, the
transferee shall be required to deliver to the Collateral Agent and the Pledgor,
the name and address of such transferee and the principal amount of Modified
Notes held by such transferee.
To the Collateral Agent: U.S. Bank Trust National Association
000 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxxx
To the Pledgor: Brooke (Overseas) Ltd.
000 X.X. Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
(c) AMENDMENTS, ETC. Any provision of this Agreement may be
modified, supplemented or waived only by an instrument in writing duly executed
by the Pledgor and the Collateral Agent with the consent of the Majority
Participating Holders. Any such modification,
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supplement or waiver shall be for such period and subject to such conditions as
shall be specified in the instrument effecting the same and shall be binding
upon the Collateral Agent and each of the other parties hereto, and any such
waiver shall be effective only in the specific instance and for the purposes for
which given.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Pledgor, the Collateral Agent, the
Participating Holders and their respective successors and permitted transferees
or assigns, including, without limitation future holders of any Modified Notes.
The Collateral Agent shall not assign or transfer its rights under this
Agreement without the prior written consent of the Majority Participating
Holders and the Pledgor.
(e) TERMINATION. This Agreement shall remain in full force and
effect until the Company delivers final payment in full in cash of all of the
Secured Obligations and all other amounts owing to the Collateral Agent and the
Participating Holders hereunder at which point it shall terminate automatically
with all Collateral to be returned as promptly as practicable thereafter by the
Collateral Agent to the Pledgor.
(f) SURVIVAL. All representations and warranties made in this
Agreement or in any certificate or other document delivered pursuant to or in
connection with this Agreement shall survive the execution and delivery of this
Agreement or such certificate or other document (as the case may be) or any
deemed repetition of any such representation or warranty.
(g) AGREEMENTS SUPERSEDED. This Agreement supersedes all prior
agreements and understandings, written or oral, among the parties with respect
to the subject matter of this Agreement.
(h) SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(i) CAPTIONS. The table of contents and captions and section
headings appearing in this Agreement are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
(j) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart.
(k) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
COLLATERAL AGENT:
U.S. BANK TRUST NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
PARTICIPATING HOLDERS:
AIF II, L.P.
By APOLLO ADVISORS, L.P.
MANAGING GENERAL PARTNER
By APOLLO CAPITAL MANAGEMENT, INC.
GENERAL PARTNER
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ARTEMIS AMERICA PARTNERSHIP
By LION ADVISORS, L.P.
ATTORNEY-IN-FACT
By LION CAPITAL MANAGEMENT, INC.
GENERAL PARTNER
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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PLEDGOR:
BROOKE (OVERSEAS) LTD.
Name: /s/ Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
ACKNOWLEDGED AND AGREED:
BGLS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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