PLEDGE AND SECURITY AGREEMENT
Exhibit
10.5
This
PLEDGE
AND SECURITY AGREEMENT
(as the
same may be amended, restated or otherwise modified, this “Agreement”)
is
made as of March 14, 2007, between XXXXXXXX
XXXXX CO.,
a Utah
corporation with a place of business at 0000 Xxxx Xxxxxxx Xxxx., Xxxx Xxxx
Xxxx,
Xxxx 00000 (“Pledgor”),
and
JPMORGAN CHASE BANK, N.A.,
a
national banking association with offices at 00 Xxxx Xxxxxxxx, Xxxxx 000,
Xxxx
Xxxx Xxxx, Xxxx, 00000 (“Collateral
Agent”),
not
in its individual capacity, but solely as collateral agent for JPMORGAN
CHASE BANK, N.A.,
a
national banking association (“Chase”),
and
ZIONS
FIRST NATIONAL BANK,
a
national banking association (“Zions”
and,
together with Chase, individually and collectively, as the context requires,
the
“Lender”),
in
conjunction with the Loan made to Pledgor by Lender pursuant to the Loan
Agreement.
Pledgor
understands that Lender is willing to grant the Loan to Pledgor only upon
certain conditions, one of which is that Pledgor execute and deliver this
Agreement and this Agreement is being executed and delivered in consideration
of
each of the Obligations (as defined below) granted to Pledgor by Lender and
for
other valuable considerations.
For
good
and valuable consideration, receipt of which is hereby acknowledged, Pledgor
and
Collateral Agent hereby agree as follows:
1. Definitions.
Except
as otherwise provided herein, terms defined in the Chase Loan Agreement shall
have the same meanings when used herein. Terms defined in the singular shall
have the same meaning when used in the plural and vice versa. Terms defined
in
the Uniform Commercial Code which are used herein shall have the meanings
set
forth in the Uniform Commercial Code, except as expressly defined otherwise.
As
used herein, the term:
“Chase
Loan”
means
the revolving line of credit extended by Chase to Pledgor pursuant and subject
to the Chase Note, the Chase Loan Agreement and the other Chase Loan
Documents.
“Chase
Loan Documents”
means,
collectively, the Chase Loan Agreement, the Chase Note, and all other documents
that from time to time govern or evidence the Chase Obligations or secure
payment or performance thereof, as such documents may be amended or modified
from time to time.
“Chase Loan Agreement”
means
that certain Revolving Line of Credit Agreement of even date herewith by
and
between Pledgor and Chase, as the same may be amended or modified from time
to
time.
“Chase
Note”
means
that certain Secured Promissory Note of even date herewith executed by Pledgor
and payable to Chase in the maximum principal amount of $18,000,000, as the
same
may be amended or modified from time to time.
“Chase Obligations”
means:
(a) the Obligations, as such term is defined in the Chase Loan Agreement;
(b) transactions in which the documents evidencing the indebtedness refer
to this grant of security interest as providing security therefor; (c) the
payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this Agreement; and (d) the performance
of
the covenants and agreements of Pledgor contained in this
Agreement.
“Collateral”
means
the following, wherever located, now owned or existing or hereafter acquired
or
created: (a) THREE THOUSAND FOUR HUNDRED NINETY-TWO (3,492) common shares
of
XXXXXXXX
XXXXX PRINTING, INC.,
a Utah
corporation (“Printing”),
evidenced by Certificate No. 33, and all other equity interests of Pledgor
in
Printing now owned or acquired in the future; (b) ONE HUNDRED SEVENTY-SIX
THOUSAND TWO HUNDRED FIFTY (176,250) common shares of FRANKLIN
DEVELOPMENT CORPORATION
(“Development”),
evidenced by Certificate No. 42, and all other equity interests of Pledgor
in
Development now owned or acquired in the future; (c) ONE HUNDRED THOUSAND
(100,000) common shares of XXXXXXXX
XXXXX TRAVEL, INC.,
a Utah
corporation (“Travel”),
evidenced by Certificate No. 2, and all other equity interests of Pledgor
in
Travel now owned or acquired in the future; (d) ONE HUNDRED THOUSAND (100,000)
common shares of XXXXXXXX
XXXXX CATALOG SALES, INC.,
a Utah
corporation (“Catalog”),
evidenced by Certificate No. 2, and all other equity interests of Pledgor
in
Catalog now owned or acquired in the future; (e) ONE HUNDRED THOUSAND (100,000)
common shares of XXXXXXXX
XXXXX CLIENT SALES, INC.,
a Utah
corporation (“Client”),
evidenced by Certificate No. 2, and all other equity interests of Pledgor
in
Client now owned or acquired in the future; (f) ONE HUNDRED THOUSAND (100,000)
common shares of XXXXXXXX
XXXXX PRODUCT SALES, INC.,
a Utah
corporation (“Product”),
evidenced by Certificate No. 2, and all other equity interests of Pledgor
in
Product now owned or acquired in the future; (Printing, Development, Travel,
Catalog, Client and Product are collectively referred to as the “Issuer”);
(g)
all proceeds of the foregoing, including, without limitation, (i) any and
all
equity interests of the Issuer issued in replacement thereof; (ii) any and
all
equity interests of the Issuer issued as a dividend or issued in connection
with
any increase or decrease of capital, reclassification, merger, consolidation,
sale of assets, combination of shares, split, spin-off or split-off; (iii)
any
and all options, warrants, or rights applicable to the equity interests of
the
Issuer, whether as an addition to, or in substitution or exchange for any
of
said shares and equity interests or otherwise; and (iv) any and all dividends
or
distributions on the foregoing described equity interests, whether payable
in
cash or in property, excluding those made with Collateral Agent’s or Lender’s
consent or those that are not inconsistent with any restrictions imposed
by
Collateral Agent or Lender.
“Default Rate”
means
the default interest rate provided in the Note.
“Event
of Default”
means
the failure of Debtor to pay or perform any of the Obligations as and when
due
to be paid or performed under the terms of the Loan Documents.
“Intercreditor
Agreement”
means
that certain Intercreditor Agreement of even date herewith by and among
Collateral Agent and Lender, as the same may be amended or modified from
time to
time.
“Loan”
means,
individually and collectively, as the context requires, the Chase Loan and
the
Zions Loan.
“Loan
Agreement”
means,
individually and collectively, as the context requires, the Chase Loan Agreement
and the Zions Loan Agreement.
“Loan
Documents”
means,
individually and collectively, as the context requires, the Chase Loan Documents
and the Zions Loan Documents.
“Note”
means,
individually and collectively, as the context requires, the Chase Note and
the
Zions Note.
“Obligations”
means,
individually and collectively, as the context requires, the Chase Obligations
and the Zions Obligations.
“Organizational
Documents”
means
the Articles of Incorporation of Pledgor, as filed with the predecessor filing
office to the Utah Department of Commerce, Division of Corporations and
Commercial Code on December 2, 1983, and the Amended and Restated Bylaws
of
Pledgor, dated effective as of January 11, 2002, and all modifications and
amendments to those documents, pursuant to which Pledgor has been formed
and
exists.
“Security
Agreement”
means
that certain Security Agreement of even date herewith among Pledgor, Guarantors,
and Collateral Agent, as the same may be amended or modified from time to
time.
“Uniform Commercial Code”
means
the Uniform Commercial Code as adopted now or in the future in the State
of
Utah.
“Zions
Loan”
means
the revolving line of credit extended by Zions to Pledgor pursuant and subject
to the Zions Note, the Zions Loan Agreement and the other Zions Loan
Documents.
“Zions
Loan Agreement”
means
that certain Revolving Line of Credit Agreement of even date herewith by
and
between Pledgor and Zions, as the same may be amended or modified from time
to
time.
“Zions
Loan Documents”
means,
collectively, the Zions Loan Agreement, the Zions Note, and all other documents
that from time to time govern or evidence the Zions Obligations or secure
payment or performance thereof, as such documents may be amended or modified
from time to time.
“Zions
Note”
means
that certain Secured Promissory Note of even date herewith executed by Pledgor
and payable to Zions in the maximum principal amount of $7,000,000, as the
same
may be amended or modified from time to time.
“Zions Obligations”
means:
(a) the Obligations, as such term is defined in the Zions Loan Agreement;
(b) transactions in which the documents evidencing the indebtedness refer
to this grant of security interest as providing security therefor; (c) the
payment of all other sums, with interest thereon, advanced in accordance
herewith to protect the security of this Agreement; and (d) the performance
of
the covenants and agreements of Pledgor contained in this
Agreement.
2. Grant
of Security Interest.
Pledgor
hereby grants to Collateral Agent a security interest in the Collateral.
Pledgor
and Collateral Agent acknowledge their mutual intent that all security interests
contemplated herein are given as a contemporaneous exchange for new value
to
Pledgor, regardless of when advances to Pledgor are actually made or when
the
Collateral is created or acquired.
3. Debts
Secured.
The
security interest granted by this Agreement shall secure all of Pledgor’s
present and future debts, obligations, and liabilities of whatever nature
to
Lender or Collateral Agent, including, without limitation, the Obligations.
4. Representations,
Warranties and Covenants.
Pledgor
represents and warrants to Collateral Agent as follows: (a) Pledgor is a
corporation duly organized under the laws of the State of Utah, (b) Pledgor
is
duly qualified to do business in each jurisdiction where the conduct of its
business requires qualification and where failure to so qualify would result
in
a Material Adverse Change, (c) Pledgor has the full power and authority to
own
its properties and to conduct the business in which it engages and to enter
into
and perform its obligations under this Agreement, (d) the execution, delivery,
and performance by Pledgor of this Agreement have been duly authorized by
all
necessary action on the part of Pledgor and are not inconsistent with Pledgor’s
Organizational Documents or any resolution of Pledgor, do not and will not
contravene any provision of, or constitute a default under, any indenture,
mortgage, contract, or other instrument to which Pledgor is a party or by
which
it is bound except to the extent that any such contravention or default would
not cause a Material Adverse Change, and that upon execution and delivery
hereof
and thereof, this Agreement will constitute legal, valid, and binding agreements
and obligations of Pledgor, enforceable in accordance with their respective
terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar Requirements of Laws affecting creditors’
rights generally and by principles of equity, and (e) the organizational
identification number assigned to Pledgor by its state of organization is
set
forth in the Security Agreement.
5. Representations
and Warranties Concerning Collateral.
Pledgor
further represents and warrants to Collateral Agent as follows: (a) the
Collateral is not subject to any purchase agreement, voting trust or other
agreement affecting, restricting, or limiting the sale, transfer, disposition
or
voting rights concerning said shares and equity interests, other than as
provided in the Organizational Documents of Pledgor and as permitted under
the
Loan Agreement, (b) Pledgor is the sole owner of the Collateral, (c) as of
the
date of this Agreement, Pledgor is the owner of (i) THREE THOUSAND FOUR HUNDRED
NINETY-TWO (3,492) common shares of Printing, which constitute one hundred
percent (100%) of the issued and outstanding common shares of Printing; (ii)
ONE
HUNDRED SEVENTY-SIX THOUSAND TWO HUNDRED FIFTY (176,250) common shares of
Development, which constitute one hundred percent (100%) of the issued and
outstanding common shares of Development; (iii) ONE HUNDRED THOUSAND (100,000)
common shares of Travel, which constitute one hundred percent (100%) of the
issued and outstanding common shares of Travel; (iv) ONE HUNDRED THOUSAND
(100,000) common shares of Catalog, which constitute one hundred percent
(100%)
of the issued and outstanding common shares of Catalog; (v) ONE HUNDRED THOUSAND
(100,000) common shares of Client, which constitute one hundred percent (100%)
of the issued and outstanding common shares of Client; and (vi) ONE HUNDRED
THOUSAND (100,000) common shares of Product, which constitute one hundred
percent (100%) of the issued and outstanding common shares of Product, and
(d)
the Collateral is not subject to any security interest, lien, prior assignment
or other encumbrance of any nature whatsoever except Permitted
Exceptions.
6. Covenants
Concerning Collateral.
Pledgor
covenants that: (a) Pledgor will keep the Collateral free and clear of any
and
all security interests, liens, assignments or other encumbrances, except
Permitted Exceptions, as provided in the Loan Agreement and as provided in
the
Organizational Documents of Pledgor, (b)
Pledgor will not sell or transfer the Collateral without the prior written
consent of Collateral Agent unless such sale or transfer does not cause a
Material Adverse Change, (c)
Pledgor hereby authorizes Collateral Agent to file financing statements
concerning the Collateral, (d) Pledgor will execute and deliver any documents
(properly endorsed, if necessary) reasonably requested by Collateral Agent
for
perfection or enforcement of any security interest or lien in the Collateral,
give good faith, diligent cooperation to Collateral Agent, and perform such
other acts reasonably requested by Collateral Agent for perfection and
enforcement of any security interest or lien in the Collateral, including,
without limitation, obtaining control for purposes of perfection; Collateral
Agent is authorized to file, record, or otherwise utilize such documents
as it
deems necessary to perfect and/or enforce any security interest or lien granted
hereunder, (e) Pledgor will deliver any and all stock certificates or similar
instruments evidencing the Collateral to Collateral Agent at the time of
execution of this Agreement, and (f) during the continuance of an Event of
Default and except as otherwise expressly provided herein, Pledgor will promptly
deliver to Collateral Agent all written notices, dividends, certificates,
and
other documents constituting or relating to the Collateral, which are received
during the continuance of such Event of Default and will promptly give
Collateral Agent written notice of any other notices which are received during
the continuance of such Event of Default by Pledgor with respect to the
Collateral.
7. Transfer
of Ownership.
Pledgor
agrees to execute and deliver to Collateral Agent, at the time of execution
of
this Agreement, Transfer Powers in a form reasonably acceptable to Collateral
Agent. The Transfer Powers may contain blanks or otherwise be incomplete
but
shall nonetheless be binding and effective. Collateral Agent is hereby
irrevocably authorized, and Pledgor hereby irrevocably makes, constitutes
and
appoints Collateral Agent as its true and lawful attorney in fact, with full
power of substitution, to fill in such blanks and otherwise complete the
Transfer Powers, now or at any time in the future, such power to be exercised
only upon the occurrence and during the continuance of an Event of Default.
Collateral Agent may deliver the Transfer Powers as Collateral Agent deems
appropriate in connection with any transfer of the Collateral pursuant to
this
Agreement.
Pledgor
hereby makes, constitutes and appoints Collateral Agent as its true and lawful
attorney in fact, with full power of substitution, to transfer the Collateral
on
the books of the issuing entity or any transfer agent to the name of any
transferee upon foreclosure of this security interest.
Collateral
Agent shall not be under any obligation to exercise any of such rights or
privileges.
Pledgor
agrees to give full cooperation and to use its best efforts to cause any
issuer,
transfer agent, or registrar of the Collateral to take all such actions and
to
execute all such documents as may be necessary or appropriate to effect any
sale, transfer or other disposition of the Collateral upon the occurrence
of and
during the continuance of an Event of Default.
Pledgor
acknowledges that a breach of any of the covenants contained in this Section
may
cause irreparable injury to Collateral Agent, that Collateral Agent will
have no
adequate remedy at law with respect to such breach, and, as a consequence,
that
the covenants in this Section shall be specifically enforceable.
8. Collection
of Dividends.
During
the term of this Agreement, Pledgor is authorized to collect all dividends,
distributions, payments and other amounts that may be or become payable on
any
of the Collateral so long as no Event of Default has occurred and is continuing.
Upon occurrence of an Event of Default and during the continuance of an Event
of
Default, Collateral Agent is authorized to collect all dividends, distributions,
payments or other amounts that may be or become payable on any of the
Collateral. Such amounts collected shall be distributed ratably to each Lender
and applied by each Lender to the indebtedness secured hereby. Collateral
Agent
shall be under no obligation to collect any such amounts.
9. Voting
Rights.
So long
as no Event of Default has occurred and is continuing, Pledgor shall have
the
right, where applicable, to vote the Collateral on all corporate questions,
or
otherwise exercise such similar rights as may arise from the Collateral.
Upon
the occurrence of an Event of Default and during the continuance of an Event
of
Default, such right shall, at the sole option of Collateral Agent, terminate
whereupon Collateral Agent may exercise all such rights. Pledgor agrees to
appoint Collateral Agent as its proxy, and to execute such additional documents
as are necessary to effect the same, pursuant to the Organizational
Documents of
Pledgor.
10. Exercise
of Options.
In the
event that during the term of this Agreement subscription warrants or any
other
rights or options shall be issued in connection with the Collateral, such
warrants, rights and options shall constitute part of the Collateral. If
such
subscription warrants or other rights or options shall expire during the
term of
this Agreement and Pledgor has not elected to exercise such warrants or options,
Collateral Agent may elect (without any duty to do so) to exercise such
warrants, rights and options at its own expense and to the extent assignable,
Pledgor will assign its rights thereunder. All new shares or other equity
interests so acquired shall be subject to and held under the terms hereof
as
Collateral.
11. Duty
of Collateral Agent.
Beyond
the exercise of reasonable care to assure safe custody of the certificates
evidencing the Collateral while held hereunder, Collateral Agent shall have
no
duty or liability to preserve rights pertaining to the Collateral.
12. Right
to Perform for Pledgor.
Collateral Agent may, in its sole discretion and without any duty to do so,
elect to discharge taxes, tax liens, security interests, or any other
encumbrance upon the Collateral (other than Permitted Exceptions), perform
any
duty or obligation of Pledgor and pay filing, recording, insurance and other
charges payable by Pledgor provided herein if Pledgor fails to do so. Any
such
payments advanced by Collateral Agent shall be repaid by Pledgor upon demand,
together with interest thereon from the date of the advance until repaid,
both
before and after judgment, at the Default Rate.
13. Default.
Time is
of the essence of this Agreement. No course of dealing or any delay or failure
to assert any Event of Default shall constitute a waiver of that Event of
Default or of any prior or subsequent Event of Default.
14. Remedies.
Upon
the occurrence of an Event of Default and during the continuance of an Event
of
Default, Collateral Agent shall have the following rights and remedies, in
addition to all other rights and remedies existing at law, in equity, or
by
statute or provided in the Loan Documents: (a) Collateral Agent shall have
all
the rights and remedies available under the Uniform Commercial Code; and
(b)
Collateral Agent may sell or otherwise dispose of any or all of the Collateral
and, after deducting any costs or expenses incurred by Collateral Agent in
connection with such sale or disposition, including, without limitation,
attorneys’ fees, ratably distribute the remainder to each Lender to pay, or to
hold as a reserve against, the obligations secured by this Agreement.
Pledgor
shall be liable for all deficiencies owing on any obligation secured by this
Agreement after liquidation of the Collateral. Collateral Agent shall not
have
any obligation to prepare any Collateral for sale or other
disposition.
The
rights and remedies herein conferred are cumulative and not exclusive of
any
other rights and remedies and shall be in addition to every other right,
power
and remedy herein specifically granted or hereafter existing at law, in equity,
or by statute which Collateral Agent might otherwise have, and any and all
such
rights and remedies may be exercised from time to time and as often and in
such
order as Collateral Agent may deem expedient. No delay or omission in the
exercise of any such right, power or remedy or in the pursuance of any remedy
shall impair any such right, power or remedy or be construed to be a waiver
thereof or of any default or to be an acquiescence therein.
Regardless
of the occurrence of any Event of Default, Pledgor agrees to pay all expenses,
including reasonable attorneys fees and legal expenses, incurred by Collateral
Agent in any bankruptcy proceeding of any type involving Pledgor, the
Collateral, or this Agreement, including, without limitation, expenses incurred
in modifying or lifting the automatic stay, determining adequate protection,
use
of cash collateral, or relating to any plan of reorganization.
15. Suretyship
Waivers by Pledgor.
Pledgor
waives demand, notice, protest, notice of acceptance of this Agreement, notice
of loans made, credit extended, Collateral received or delivered or other
action
taken in reliance hereon and all other demands and notices of any description.
With respect to both the Obligations and the Collateral, Pledgor assents
to any
extension or postponement of the time of payment or any other indulgence,
to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner
and at
such time or times as Collateral Agent may deem advisable. Collateral Agent
shall have no duty as to the collection or protection of the Collateral or
any
income therefrom, the preservation of rights against prior parties, or the
preservation of any rights pertaining thereto beyond the safe custody thereof
as
set forth in Section
11
above.
Pledgor further waives any and all other suretyship defenses.
16. CHOICE
OF LAW.
THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER SHALL BE GOVERNED BY
AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH WITHOUT GIVING
EFFECT
TO CONFLICT OF LAWS PRINCIPLES. THE PARTIES AGREE THAT ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE AND FEDERAL COURTS LOCATED
IN
THE COUNTY OF SALT LAKE, STATE OF UTAH OR, IN ANY OTHER COURT IN WHICH A
PARTY
SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF PLEDGOR AND COLLATERAL
AGENT WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH
MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE
TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ANY STATE OR FEDERAL COURT LOCATED IN
THE
COUNTY OF SALT LAKE, STATE OF UTAH.
17. WAIVER
OF JURY TRIAL.
EACH OF
PLEDGOR AND COLLATERAL AGENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED UPON CONTRACT, TORT OR ANY
OTHER
THEORY). EACH OF PLEDGOR AND COLLATERAL AGENT (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
18. WAIVER
OF SPECIAL DAMAGES. TO
THE
EXTENT PERMITTED BY APPLICABLE LAW, PLEDGOR SHALL NOT ASSERT, AND HEREBY
WAIVES,
ANY CLAIM AGAINST COLLATERAL AGENT ON ANY THEORY OF LIABILITY, FOR SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT
OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS, THE
LOAN
OR THE USE OF THE PROCEEDS THEREOF.
19. MISCELLANEOUS
WAIVERS.
WITH
RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH,
A
“PROCEEDING”),
PLEDGOR IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS HAVING JURISDICTION IN THE CITY OF SALT LAKE, COUNTY OF SALT LAKE
AND
STATE OF UTAH, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME
TO THE
LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM
THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER
WAIVES
THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES
NOT
HAVE JURISDICTION OVER SUCH PARTY. NOTHING IN THIS AGREEMENT SHALL PRECLUDE
COLLATERAL AGENT FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR
WILL
THE BRINGING OF A PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE
BRINGING OF A PROCEEDING IN ANY OTHER JURISDICTION. PLEDGOR FURTHER AGREES
AND
CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED
FOR
UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY UTAH
STATE
OR UNITED STATES COURT SITTING IN THE CITY OF SALT LAKE AND COUNTY OF SALT
LAKE
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO PLEDGOR AT THE ADDRESS INDICATED IN THE GUARANTY, AND SERVICE SO MADE
SHALL
BE COMPLETE UPON RECEIPT; EXCEPT
THAT IF
PLEDGOR SHALL REFUSE TO ACCEPT DELIVERY, SERVICE SHALL BE DEEMED COMPLETE
FIVE
(5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
20. Indemnification.
Pledgor
shall indemnify Collateral Agent for any and all claims and liabilities,
and for
damages which may be awarded or incurred by Collateral Agent, and for all
reasonable attorneys fees, legal expenses, and other out-of-pocket expenses
incurred in defending such claims, arising from or related in any manner
to the
negotiation, execution, or performance by Collateral Agent of this Agreement,
but excluding any such claim based upon breach or default by Collateral Agent
or
gross negligence or willful misconduct of Collateral Agent.
Collateral
Agent shall have the sole and complete control of the defense of any such
claims. Collateral Agent is hereby authorized to settle or otherwise compromise
any such claims as Collateral Agent in good faith determines shall be in
Collateral Agent’s best interest.
21. Notices.
All
notices or demands by any party hereto shall be in writing and shall be sent
as
provided in the Chase Loan Agreement.
22. General.
This
Agreement is made for the sole and exclusive benefit of Pledgor, Lender and
Collateral Agent and is not intended to benefit any other third party, other
than Lender. No such third party may claim any right or benefit or seek to
enforce any term or provision of this Agreement.
If
the
incurring of any debt by Pledgor, or the payment of any money or transfer
of
property to Collateral Agent or Lender by or on behalf of Pledgor should
for any
reason subsequently be determined to be “voidable” or “avoidable” in whole or in
part within the meaning of any state or federal law (collectively “voidable
transfers”), including, without limitation, fraudulent conveyances or
preferential transfers under the United States Bankruptcy Code or any other
federal or state law, and Collateral Agent or Lender is required to repay
or
restore any voidable transfers or the amount or any portion thereof, or upon
the
advice of Collateral Agent’s or Lender’s counsel is advised to do so, then, as
to any such amount or property repaid or restored, including all reasonable
costs, expenses, and attorneys fees of Collateral Agent or Lender related
thereto, the liability of Pledgor, and each of them, and this Agreement,
shall
automatically be revived, reinstated and restored and shall exist as though
the
voidable transfers had never been made.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
All
references in this Agreement to the singular shall be deemed to include the
plural if the context so requires and vice versa. References in the collective
or conjunctive shall also include the disjunctive unless the context otherwise
clearly requires a different interpretation.
All
agreements, representations, warranties and covenants made by Pledgor shall
survive the execution and delivery of this Agreement, the filing and
consummation of any bankruptcy proceedings, and shall continue in effect
so long
as any Obligation or any obligation to Collateral Agent contemplated by this
Agreement is outstanding and unpaid. All agreements, representations, warranties
and covenants in this Agreement shall bind the party making the same and
its
heirs and successors, and shall be to the benefit of and be enforceable by
each
party for whom made and their respective heirs, successors and
assigns.
This
Agreement may be executed in several counterparts, without the requirement
that
all parties sign each counterpart. Each of the counterparts shall be an original
but all of which together shall constitute one and the same
instrument.
This
Agreement constitutes the entire agreement between Pledgor and Collateral
Agent
as to the subject matter hereof and may not be altered or amended except
by
written agreement signed by Pledgor and Collateral Agent. All other prior
and
contemporaneous agreements, arrangements, and understandings between the
parties
hereto as to the subject matter hereof are, except as otherwise expressly
provided herein, rescinded.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
| XXXXXXXX XXXXX CO. | ||
| |
|
a
Utah
corporation |
| By: | /s/ XXXXXXX XXXXXX | |
|
Name: Xxxxxxx Xxxxxx |
||
|
Title:
Treasurer and Vice President of Investor Relations
"Pledgor"
|
||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
a national
banking association |
| By: | /s/ XXXX X. XXXXXXX | |
|
Name: Xxxx X. Xxxxxxx |
||
|
Title:
Senior Vice President
"Collateral
Agent"
|
||
