EXECUTION COPY
AMENDED AND RESTATED COLLATERAL AGENT AGREEMENT
by and among
BUILDING MATERIALS CORPORATION OF AMERICA
AND EACH OTHER GRANTOR A PARTY HERETO,
THE 2003 ADMINISTRATIVE AGENT,
AND
EACH SENIOR NOTE TRUSTEE A PARTY HERETO
and
CITIBANK, N.A., AS COLLATERAL AGENT
--------------------------------
Dated as of July 9, 2003
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND OTHER MATTERS................................3
Section 1.1 Definitions.........................................3
Section 1.2 Interpretation......................................9
SECTION 2. CERTAIN OBLIGATIONS AND DUTIES OF THE COLLATERAL AGENT AND
THE GRANTORS; POWERS OF ATTORNEY......................................9
Section 2.1 Authorization to Execute Security Documents.........9
Section 2.2 Certain Representations and Warranties of the
Collateral Agent....................................9
Section 2.3 Actions............................................10
Section 2.4 Additional Security Documents......................11
Section 2.5 Powers of Attorney to the Collateral Agent
and to BMCA........................................11
Section 2.6 Copies of Letters and Documents....................12
SECTION 3. ACTIONABLE DEFAULTS; REMEDIES...............................12
Section 3.1 Actionable Default.................................12
Section 3.2 Remedies...........................................13
Section 3.3 Right to Initiate Judicial Proceedings, etc........13
Section 3.4 Appointment of a Receiver..........................14
Section 3.5 Exercise of Powers.................................14
Section 3.6 Remedies Not Exclusive.............................14
Section 3.7 Waiver of Certain Rights...........................15
Section 3.8 Limitation on Collateral Agent's Duties in
Respect of Collateral..............................15
Section 3.9 Limitation by Law..................................15
Section 3.10 Absolute Rights of the Beneficiaries...............15
SECTION 4. COLLATERAL ACCOUNT; APPLICATION OF MONEYS...................16
Section 4.1 The Collateral Account.............................16
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Section 4.2 Grant of Security Interest; Control of
Collateral Account.................................16
Section 4.3 Investment of Funds Deposited in
Collateral Account.................................17
Section 4.4 Application of Investments.........................18
SECTION 5. AGREEMENTS WITH THE COLLATERAL AGENT........................21
Section 5.1 Delivery of Documents..............................21
Section 5.2 Information as to Beneficiaries....................21
Section 5.3 Compensation and Expenses..........................22
Section 5.4 Stamp and Other Similar Taxes......................22
Section 5.5 Filing Fees, Excise Taxes, etc.....................22
Section 5.6 Indemnification....................................22
Section 5.7 Further Assurances.................................23
SECTION 6. COLLATERAL AGENT............................................23
Section 6.1 Acceptance of Duties...............................23
Section 6.2 Exculpatory Provisions.............................23
Section 6.3 Delegation of Duties; Appointment of
Administrative Agent as Sub-Agent..................25
Section 6.4 Reliance by Collateral Agent.......................25
Section 6.5 Limitations on Duties of the Collateral Agent......27
Section 6.6 Moneys Held By Collateral Agent....................27
Section 6.7 Resignation and Removal of the Collateral Agent....27
Section 6.8 Status of Successors to the Collateral Agent.......28
Section 6.9 Merger of the Collateral Agent.....................29
Section 6.10 Additional Co-Collateral Agents; Separate
Collateral Agents..................................29
SECTION 7. RELEASE OF COLLATERAL.......................................30
Section 7.1 Conditions to Release of Collateral................30
Section 7.2 Actions Following Release of the Collateral........32
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SECTION 8. AGREEMENTS AMONG BENEFICIARIES..............................32
Section 8.1 Other Agreements Among Beneficiaries...............32
Section 8.2 Payment of Collateral Agent's Fees.................33
Section 8.3 Invalidation of Payments...........................33
SECTION 9. OTHER PROVISIONS............................................33
Section 9.1 Amendments, Supplements and Waivers................33
Section 9.2 Notices............................................34
Section 9.3 Severability.......................................34
Section 9.4 Dealings with the Grantors.........................34
Section 9.5 Claims Against the Collateral Agent................34
Section 9.6 Binding Effect.....................................34
Section 9.7 Conflict with Other Agreements.....................35
Section 9.8 Governing Law......................................35
Section 9.9 Counterparts.......................................35
Section 9.10 CONSENT TO JURISDICTION..........................35
Section 9.11 WAIVER OF JURY TRIAL.............................37
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AMENDED AND RESTATED COLLATERAL AGENT AGREEMENT
AMENDED AND RESTATED COLLATERAL AGENT AGREEMENT (this "AGREEMENT"),
dated as of July 9, 2003, by and among BUILDING MATERIALS CORPORATION OF
AMERICA, a Delaware corporation ("BMCA" or the "BORROWER"), each Subsidiary of
BMCA a party hereto, each Senior Note Trustee (as defined in Recital B), the
2003 Administrative Agent (as defined in Recital C) and CITIBANK, N.A., a
national banking association, as collateral agent (in such capacity, together
with any successors and assigns, the "COLLATERAL AGENT").
RECITALS:
(A) Reference is made to the Collateral Agent Agreement (the
"2000 COLLATERAL AGENT AGREEMENT"), dated as of December 22, 2000 by and among
BMCA, each Subsidiary of BMCA party thereto, each beneficiary specified therein,
and The Bank of New York, as collateral agent thereunder.
(B) Reference is also made to:
(i) the Indenture, dated as of December 9, 1996, between BMCA
and The Bank of New York, as trustee (the "2006 TRUSTEE"), pursuant to
which 8 5/8% senior notes due 2006 were issued, as supplemented by
Supplements dated as of January 1, 1999 and December 4, 2000 (the "2006
INDENTURE"),
(ii) the Indenture, dated as of October 20, 1997, between BMCA
and The Bank of New York, as trustee (the "2007 TRUSTEE"), pursuant to
which 8% senior notes due 2007 were issued, as supplemented by Supplements
dated as of January 1, 1999 and December 4, 2000 (the "2007 INDENTURE"),
(iii) the Indenture, dated as of July 17, 1998, between BMCA and
The Bank of New York, as trustee (the "2005 TRUSTEE"), pursuant to which
7.75% senior notes due 2005 were issued, as supplemented by Supplements
dated as of January 1, 1999 and December 4, 2000 (the "2005 Indenture"),
(iv) the Indenture, dated as of December 3, 1998, between BMCA
and The Bank of New York, as trustee (the "2008 TRUSTEE"), pursuant to
which 8.00% senior notes due 2008 were issued, as supplemented by
Supplements dated as of January 1, 1999 and December 4, 2000 (the "2008
INDENTURE"), and
(v) the Indenture, dated as of July 5, 2000, between BMCA and
The Bank of New York, as trustee (the "2002 TRUSTEE", and collectively with
the 2006 Trustee, the 2007 Trustee, the 2005 Trustee and the 2008 Trustee,
the "SENIOR NOTE TRUSTEES"), pursuant to which the 10.50% senior notes due
2002 were issued, as supplemented by a Supplement, dated as of December 4,
2000 (the "2002 INDENTURE", and collectively with the 2006 Indenture, the
2007 Indenture, the 2005 Indenture and the 2008 Indenture, the "SENIOR NOTE
INDENTURES"). Payment of each Senior Note issued under each Senior Note
Indenture is guaranteed by certain Subsidiaries of BMCA (each, a "SENIOR
NOTE GUARANTOR") pursuant to Guaranties ("SENIOR NOTE GUARANTIES") executed
in
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connection therewith or thereafter with respect thereto. The senior notes
issued pursuant to the Senior Note Indentures (the "SENIOR NOTES") are and
will be, from time to time, held by various holders (collectively, the
"NOTEHOLDERS").
(C) Reference is further made to the Credit Agreement, dated as
of July 9, 2003 (as such agreement may be amended, amended and restated,
modified, refinanced in full, replaced or otherwise supplemented, the "2003
CREDIT AGREEMENT"), among BMCA, the lenders from time to time party thereto
(each, together with any lender under any credit agreement which amends and
restates, replaces or refinances in full the 2003 Credit Agreement, a "2003
LENDER" and, collectively, the "2003 LENDERS"), Citicorp USA, Inc. ("CUSA"), as
Administrative Agent (in such capacity, together with any successors and assigns
and any administrative agent under any credit facility which amends and
restates, replaces or refinances in full the 2003 Credit Agreement, the "2003
ADMINISTRATIVE AGENT"), Initial Issuing Bank, Initial Swing Line Bank and
Collateral Monitoring Agent, Citigroup Global Markets Inc., as Lead Arranger and
Book Manager, Deutsche Bank Securities, Inc., as Syndication Agent, and the CIT
Group Business/Credit, Inc., Congress Financial Corporation, and JPMorgan Chase
Bank, as Co-Documentation Agents, under which the 2003 Lenders have agreed to
make or participate in the making of revolving credit loans and swing line loans
(collectively, together with any loans under any credit agreement which amends
and restates, replaces or refinances in full the 2003 Credit Agreement, the
"2003 LOANS") to the Borrower upon the terms and subject to the conditions
specified in the 2003 Credit Agreement. In addition, the Issuing Bank has agreed
to issue Letters of Credit (together with any letters of credit issued under any
credit agreement, which amends and restates, replaces or refinances in full the
2003 Credit Agreement, the "2003 LETTERS OF CREDIT") for the account of the
Borrower, and the 2003 Lenders have agreed to participate therein, upon the
terms and subject to the conditions specified in the 2003 Credit Agreement.
Certain Subsidiaries of the Borrower (the "2003 GUARANTORS") have guaranteed the
payment of the obligations of the Borrower under the 2003 Credit Agreement,
including the 2003 Loans, the 2003 Letters of Credit, pursuant to a subsidiary
guaranty or supplements to such Subsidiary Guaranties executed and delivered in
connection with the 2003 Credit Agreement.
(D) In consideration for the execution and delivery of the 2003
Credit Agreement by the 2003 Administrative Agent and the 2003 Lenders, the
Borrower, the 2003 Guarantors and the other Subsidiaries of the Borrower that
are signatories thereto have executed and delivered the Security Agreement (as
hereinafter defined) with the Collateral Agent to secure, subject to the terms
and conditions of this Agreement and the Security Documents (as hereinafter
defined), the payment of the Secured Debt (as hereinafter defined).
(E) The execution, delivery and effectiveness of the 2003 Credit
Agreement, are conditioned upon this Agreement having been duly executed and
delivered and the 2000 Collateral Agent Agreement having been amended and
restated as set forth herein.
COLLATERAL AGENCY:
To secure the payment, observance and performance of the Secured Debt
and in consideration of the premises and the mutual agreements set forth herein,
the Collateral Agent does hereby acknowledge and accept that it holds as
Collateral Agent, to the extent actually
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received as Collateral Agent, pursuant to this Agreement, all of the following
(and each Grantor does hereby consent thereto):
(A) the Security Agreement and the Mortgages and the Liens
granted to the Collateral Agent thereunder;
(B) the UCC financing statements required to be delivered
pursuant to the 2003 Credit Agreement;
(C) each agreement entered into and delivered, from time to
time, pursuant to Sections 2.4, 5.7 or 9.1(b) and the collateral granted to the
Collateral Agent thereunder;
(D) the Guaranties;
(E) the Collateral Agreement Collateral (as hereinafter
defined); and
(F) the Proceeds (as hereinafter defined) of each of the
foregoing.
The foregoing Security Documents and the Collateral (as hereinafter
defined) and the Proceeds of any and all thereof (the right, title and interest
of the Collateral Agent in the Security Documents and the Collateral and such
Proceeds being hereinafter referred to as the "SECURED DEBT COLLATERAL").
The Collateral Agent hereby holds the Collateral under and subject to
the terms and conditions set forth herein and in the Security Documents, and for
the benefit of the Beneficiaries (as hereinafter defined) and for the
enforcement of the payment of all Secured Debt, and for the performance of and
compliance with the covenants and conditions of this Agreement, the Senior Note
Indentures, the 2003 Credit Agreement, each other Credit Document (as
hereinafter defined) and each of the Security Documents.
If the Grantors, or their successors or assigns, shall satisfy all of
the conditions set forth in Section 7 with respect to all or any part of the
Collateral, as the case may be, then (i) if with respect to all of the
Collateral, this Agreement, and the rights assigned in the Security Documents,
shall cease and be void or (ii) if with respect to part of the Collateral, this
Agreement, and the rights assigned in the Security Documents, shall cease and be
void with respect to such part of the Collateral; otherwise they shall remain
and be in full force and effect.
SECTION 1. DEFINITIONS AND OTHER MATTERS.
Section 1.1 DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACCELERATION DEFAULT": defined in the Security Agreement.
"ACH OBLIGATIONS": defined in the Security Agreement.
"ACTIONABLE DEFAULT": defined in the Security Agreement.
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"AFFILIATE": defined in the Security Agreement.
"APPROVED BANK": any bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating from (i) Standard &
Poor's is at least A-1 or the equivalent thereof or (ii) Moody's is at least P-1
or the equivalent thereof.
"BANKRUPTCY CODE": the federal Bankruptcy Code.
"BENEFICIARY": each Secured Party.
"BMCA BANKRUPTCY": defined in Section 4.4(b).
"BORROWER OBLIGATIONS": defined in the Security Agreement.
"BUSINESS DAY": (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such State are required or authorized by
law or other governmental action to close, and (ii) a day of the year on which
the Collateral Agent is not required or authorized to close.
"COLLATERAL": defined in the Security Agreement.
"COLLATERAL ACCOUNT": defined in Section 4.1 which definition shall
include any sub-accounts created thereunder.
"COLLATERAL AGENT": Citibank, N.A., a national banking association,
and its successors and assigns as provided herein, in its capacity as collateral
agent for the benefit of the Beneficiaries.
"COLLATERAL AGENT'S FEES": all fees, costs and expenses of the
Collateral Agent of the types described in Sections 5.3, 5.4, 5.5 and 5.6.
"COLLATERAL AGENT'S LIENS": all liens and security interests against
the Secured Debt Collateral which result from (i) claims against the Collateral
Agent unrelated to the transactions contemplated by this Agreement and the
Security Documents or (ii) affirmative acts by the Collateral Agent creating a
lien or security interest other than as contemplated by this Agreement.
"COLLATERAL AGREEMENT COLLATERAL": defined in Section 4.2(a).
"CREDIT DOCUMENT": defined in the Security Agreement.
"CREDIT PARTY": defined in the Security Agreement.
"DEBT INSTRUMENT": defined in the Security Agreement.
"DEPOSIT ACCOUNTS": defined in the Security Agreement.
"DEPOSITARY CONTROL AGREEMENT": defined in the Security Agreement.
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"DISTRIBUTION DATES": the Business Days fixed by the Collateral Agent
(the first of which shall occur as soon as practicable after a Notice of Default
has been given by the Required Lender Representative, but in no event more than
ninety days after the giving by the Required Lender Representative of a Notice
of Default which has not theretofore been withdrawn and the balance of which
shall, so long as such Notice of Default shall not have been withdrawn by the
Required Lender Representative, be on each succeeding Business Day thereafter)
for the distribution of all moneys held by the Collateral Agent in the
Collateral Account.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"GRANTORS": defined in the Security Agreement.
"GUARANTIES": defined in the Security Agreement.
"GUARANTOR OBLIGATIONS": defined in the Security Agreement.
"HEDGE OBLIGATIONS": defined in the Security Agreement.
"JUNIOR OBLIGATIONS": defined in the Security Agreement.
"LENDER": defined in the Security Agreement.
"LENDER REPRESENTATIVE": the 2003 Administrative Agent, or each Senior
Note Trustee, as the case may be.
"LOANS": defined in the Security Agreement.
"MOODY'S": Moody's Investors Service, Inc. and any successor thereto
that is a nationally recognized rating agency or, if neither Moody's Investors
Service, Inc. nor any such successor shall be in the business of rating senior
unsecured long-term debt, a nationally recognized rating agency in the United
States selected by the Collateral Agent.
"1999 ADMINISTRATIVE AGENT": The Bank of New York, as administrative
agent under the 1999 Credit Agreement.
"1999 CREDIT AGREEMENT": the Amended and Restated Credit Agreement,
dated as of December 4, 2000 among BMCA, the lenders from time to time party
thereto, Fleet National Bank, as documentation agent, Bear Stearns Corporate
Lending, as syndication agent, and The Bank of New York, as administrative agent
and swing line lender.
"1999 DISTRIBUTION AMOUNTS": with respect to each 1999 Lender, the
difference (if positive) between the principal amount of the 1999 Loans on the
Petition Date and the principal amount of the 1999 Loans on the Sharing Date,
provided however, if a reorganization plan or other similar plan or order
confirmed or otherwise approved in a BMCA Bankruptcy
6
provides for the full payment of the principal amount of the 1999 Loans then the
1999 Distribution Amount shall be the principal amount of the 1999 Loans on the
Petition Date.
"1999 LENDER": each lender from time to time party to the 1999 Credit
Agreement.
"1999 LIENS": the first-priority liens granted by the 1999 Security
Agreement in favor of the 1999 Lenders or any lien subsequently granted to any
1999 Lender (solely in its capacity as a 1999 Lender) in a BMCA Bankruptcy.
"1999 LOANS": the revolving credit loans and swing line loans made to
BMCA under the 1999 Credit Agreement.
"1999 SECURITY AGREEMENT": the security agreement dated as of December
22, 2000, executed by and among the grantors and the collateral agent specified
therein.
"1999 SHARING PAYMENT": with respect to each 1999 Lender, an amount
equal to its 1999 Distribution Amounts multiplied by the 1999 Sharing Percentage
multiplied by one-third, but in no event shall the 1999 Sharing Payment of such
1999 Lender exceed one-third of the outstanding principal balance of the 1999
Loans of such 1999 Lender on the Petition Date. If the 1999 Loans shall have
been satisfied in whole or in part with consideration other than or in addition
to cash, the 1999 Sharing Payment shall be made with a ratable amount of the
consideration so received.
"1999 SHARING PERCENTAGE": a fraction, (x) the numerator of which is
the outstanding principal amount of the Senior Notes on the Petition Date and
(y) the denominator of which is the sum of (i) the outstanding principal amount
of the 1999 Loans at such time and (ii) such outstanding principal amount of the
Senior Notes at such time.
"NOTEHOLDERS": defined in Recital B.
"NOTICE OF ACCELERATION DEFAULT": defined in the Security Agreement.
"NOTICE OF ACTIONABLE DEFAULT": a written certification to the
Collateral Agent and the Borrower (i) from the 2003 Administrative Agent,
certifying that an Actionable Default has occurred with respect to the 2003
Obligations or (ii) from a Senior Note Trustee certifying that an Actionable
Default has occurred under the Senior Note Indenture in respect of which it acts
as Senior Note Trustee.
"NOTICE OF DEFAULT": a Notice of Acceleration Default or a Notice of
Actionable Default, as the case may be.
"OBLIGATIONS": defined in the Security Agreement.
"PERSON": defined in the Security Agreement.
"PETITION DATE": the date on which a bankruptcy petition shall have
been filed with respect to BMCA commencing a BMCA Bankruptcy.
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"PRIORITY FEES AND EXPENSES": the total fees and expenses incurred by
the Priority Holders in connection with the collection or enforcement of all
Priority Obligations except for the ACH Obligations and the Hedge Obligations.
"PRIORITY HOLDERS": the holders of the Priority Obligations.
"PRIORITY OBLIGATIONS": defined in the Security Agreement.
"PROCEEDS": defined in the Security Agreement.
"QUALIFIED DEPOSITARY INSTITUTION": defined in the Security Agreement.
"REQUIRED LENDER REPRESENTATIVE": defined in the Security Agreement.
"RESPONSIBLE OFFICER": with respect to any Person, the Chairman of the
Board, the President, the Chief Financial Officer, the Chief Executive Officer
or the Treasurer of such Person.
"SECURED DEBT": defined in the Security Agreement.
"SECURED DEBT COLLATERAL": defined on page 3 under the section titled
"COLLATERAL AGENCY".
"SECURED PARTIES": defined in the Security Agreement.
"SECURITY AGREEMENT": the Amended and Restated Security Agreement
executed by and among the Grantors and the Collateral Agent, dated as of the
date hereof (as such agreement may be amended, amended and restated, modified,
replaced or otherwise supplemented).
"SECURITY DOCUMENTS": defined in the Security Agreement.
"SENIOR NOTE DISTRIBUTION AMOUNT": with respect to each Noteholder,
the distribution received by such Noteholder on its Unsecured Equivalent Claim.
If the distribution received by the Noteholders with respect to their claims
consists in whole or in part of consideration other than or in addition to cash,
the Senior Note Distribution Amount shall be made with a ratable amount of the
consideration so received.
"SENIOR NOTE EVENT OF DEFAULT" defined in the Security Agreement.
"SENIOR NOTE GUARANTIES": defined in Recital B.
"SENIOR NOTE GUARANTOR": defined in Recital B.
"SENIOR NOTE INDENTURES": defined in Recital B.
"SENIOR NOTE LIEN AVOIDANCE": the liens granted by the 1999 Security
Agreement in favor of the Noteholders are avoided or set aside pursuant to a
final non-appealable order of a court of competent jurisdiction pursuant to
applicable law, which order
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shall not have resulted from the "bad conduct" or "unclean hands" of any Senior
Note Trustee or any Noteholder or as a result of any action brought by any
Senior Note Trustee or any Noteholder seeking such relief. The negotiation for,
and acceptance of, the liens granted by the 1999 Security Agreement shall not
constitute "bad conduct" or "unclean hands" for purposes of this section.
"SENIOR NOTE OBLIGATIONS": defined in the Security Agreement.
"SENIOR NOTE TRUSTEES": defined in Recital B.
"SENIOR NOTES": defined in Recital B.
"SHARING DATE": ninety days after Noteholders receive distributions
with respect to their claims under the Senior Notes pursuant to a reorganization
plan or other similar plan or order confirmed or otherwise approved in a BMCA
Bankruptcy.
"STANDARD & POOR'S": Standard & Poor's, a division of The McGraw-Hill
Companies, Inc., and any successor thereto that is a nationally recognized
rating agency or, if neither such division nor any such successor shall be in
the business of rating senior unsecured long-term debt, a nationally recognized
rating agency in the United States selected by the Collateral Agent.
"2000 COLLATERAL AGENT AGREEMENT": defined in Recital A.
"2008 INDENTURE": defined in Recital B.
"2008 TRUSTEE": defined in Recital B.
"2005 INDENTURE": defined in Recital B.
"2005 TRUSTEE": defined in Recital B.
"2007 INDENTURE": defined in Recital B.
"2007 TRUSTEE": defined in Recital B.
"2006 INDENTURE": defined in Recital B.
"2006 TRUSTEE": defined in Recital B.
"2003 ADMINISTRATIVE AGENT": defined in Recital C.
"2003 CREDIT AGREEMENT": defined in Recital C..
"2003 GUARANTOR": defined in Recital C.
"2003 LENDER": defined in Recital C.
"2003 OBLIGATIONS": defined in the Security Agreement.
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"2002 INDENTURE": defined in Recital B.
"2002 TRUSTEE": defined in Recital B.
"UNSECURED EQUIVALENT CLAIM": for each Noteholder, a portion of the
amount of its allowed unsecured claim with respect to its Senior Notes which
equals the amount of the 1999 Sharing Payment received by such Noteholder.
Section 1.2 INTERPRETATION. Capitalized terms used herein (including
the preamble and recitals hereto) and not otherwise defined herein shall have
the meanings ascribed thereto in the Security Agreement. The definitions of
terms used herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise, (i) any
definition of or reference herein to any agreement (including this Agreement),
instrument or other document, and to any exhibit or schedule thereto, shall be
construed as referring to such agreement, instrument or other document, and any
exhibit or schedule thereto (including any Exhibit or Schedule hereto), as from
time to time amended, supplemented or otherwise modified, (ii) any definition of
or reference to any law shall be construed as referring to such law as from time
to time amended and any successor thereto and the rules and regulations
promulgated from time to time thereunder, (iii) any reference herein to any
Person shall be construed to include such Person's successors and assigns, (iv)
the words "herein", "hereof" and "hereunder", and words of similar import, shall
be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (v) all references herein to Articles, Sections,
Exhibits and Schedules, Recitals and paragraphs shall be construed to refer to
Articles, Sections, and Exhibits and Schedules, Recitals and paragraphs of or
to, this Agreement and (vi) the words "asset" and "property" shall be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect. All references herein
to provisions of the UCC shall include all successor provisions under any
subsequent version or amendment to any Article of the UCC.
SECTION 2. CERTAIN OBLIGATIONS AND DUTIES OF THE COLLATERAL AGENT AND
THE GRANTORS; POWERS OF ATTORNEY.
Section 2.1 AUTHORIZATION TO EXECUTE SECURITY DOCUMENTS. The
Collateral Agent shall execute and deliver each of the Security Documents
requiring execution and delivery by it and shall accept delivery from each
Grantor of those Security Documents which do not require the Collateral Agent's
execution.
Section 2.2 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE COLLATERAL
AGENT. The Collateral Agent, in its capacity as Collateral Agent hereunder, and
Citibank, N.A., in its individual capacity, each represent and warrant to the
Beneficiaries as follows:
10
(a) Citibank, N.A., is a national banking association duly formed,
validly existing and in good standing under the laws of the United States
of America and has all requisite power and authority to enter into and
perform its obligations under this Agreement and the Security Documents to
which it is a party.
(b) The execution, delivery and performance by the Collateral Agent
of this Agreement and the Security Documents to which it is a party have
been duly authorized by all necessary corporate action on the part of
Citibank, N.A.
(c) There are no Collateral Agent's Liens and Citibank, N.A., in its
individual capacity, has no liens or security interests against the Secured
Debt Collateral.
(d) To its knowledge, there are no actions or proceedings pending or
threatened against it before any Governmental Authority (i) which question
the validity or enforceability of this Agreement or any Security Documents
to which it is a party; or (ii) which relate to the banking or trust powers
of Citibank, N.A. and which, if determined adversely to the position of
Citibank, N.A., would materially and adversely affect the ability of
Citibank, N.A. or the Collateral Agent to perform their respective
obligations under this Agreement or any of the Security Documents to which
any one or more of them is a party.
(e) This Agreement and each of the Security Documents to which the
Collateral Agent is a party have been duly executed and delivered by the
Collateral Agent (assuming, with respect to the Security Documents, that
this Agreement has been duly authorized, executed and delivered by the
other parties hereto) and are the legal, valid and binding obligations of
the Collateral Agent enforceable in accordance with their terms, except to
the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(f) No UCC financing statements or other filings or recordations have
been filed by or against Citibank, N.A. in its individual capacity with
respect to any of the Collateral.
Section 2.3 ACTIONS. Control of the Collateral Agent.
(a) Subject to Sections 2.3(b) and 2.3(c) and except as otherwise
provided in Section 2.3(d) and in the Security Agreement, the Collateral
Agent shall take such action with respect to the Collateral and the
Security Documents (including, but not limited to, exercising the rights
and remedies provided in Section 3) as is requested in writing by and only
by the Required Lender Representative. Notwithstanding the foregoing, the
Collateral Agent shall not be obligated to take any action which is in
conflict with any provisions of law or of this Agreement or the Security
Documents or with respect to which the Collateral Agent has not received
adequate security or indemnity as provided in Section 6.4(d). Following the
receipt by the Collateral Agent of a Notice of Default
11
from the Required Lender Representative, and so long as such Notice of
Default has not been withdrawn by the Required Lender Representative, the
Collateral Agent shall not take any action to enforce the security interest
in the Collateral or foreclose on any Lien thereon unless the Collateral
Agent has received instructions to do so in the manner provided in this
Section 2.3.
(b) The Collateral Agent shall not be obligated to follow any written
directions received pursuant to Section 2.3(a) to the extent the Collateral
Agent has received an opinion of independent counsel to the Collateral
Agent to the effect that such written directions are in conflict with any
provisions of law or this Agreement, provided, however, that under no
circumstances shall the Collateral Agent be liable for following the
written instructions of the Required Lender Representative at such times as
such parties have the authority to act as herein provided.
(c) Nothing in this Section 2.3 shall impair the right of the
Collateral Agent to take or omit to take any action not inconsistent with
any direction of the Required Lender Representative.
(d) The Collateral Agent shall have no duty to inquire into,
investigate or ascertain the performance by any Grantor of any of the
covenants or agreements of any Grantor contained herein or in any other
agreement or document, including, without limitation, any of the agreements
and covenants contained in Section 3.4(d) of the Security Agreement.
Section 2.4 ADDITIONAL SECURITY DOCUMENTS. In the event that a Grantor
acquires any interest in any Collateral which is not covered by a Security
Document in a manner which will perfect the Collateral Agent's lien upon and
first priority security interest in such Collateral without further act or deed
of the Collateral Agent, at the time such interest in such Collateral is
acquired, to the extent that such security interest may be perfected by the
execution and/or filing of a Security Document, then such Grantor shall
immediately prepare, execute and deliver to the Collateral Agent such Security
Documents, in form and substance similar to the Security Documents heretofore
executed and delivered by the Grantors, as are necessary to perfect the
Collateral Agent's lien upon and security interest in such Collateral. If the
signature of the Collateral Agent is required on any such Security Document,
such Grantor shall present such Security Document to the Required Lender
Representative and the Required Lender Representative will forward such Security
Document to the Collateral Agent for signature and the Collateral Agent shall
execute such Security Document and endeavor to cause such Security Document to
be filed or recorded with the public filing and/or recording offices designated
by the Required Lender Representative as required or advisable to perfect or
protect the Collateral Agent's lien upon and security interest in such
Collateral.
Section 2.5 POWERS OF ATTORNEY TO THE COLLATERAL AGENT AND TO BMCA.
(a) Each Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the name of such Grantor or the name of such attorney-in-fact
for the purpose of signing documents and taking other
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action to perfect, promote and protect the liens and security interests of
the Collateral Agent in the Collateral. Such power of attorney is a power
coupled with an interest, shall be irrevocable and shall not first require
the Collateral Agent to have received a Notice of Default.
(b) Each other Grantor hereby irrevocably constitutes and appoints
BMCA and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full power and authority in the
name of such Grantor or in its own name, from time to time in BMCA's
discretion, to take or omit taking any and all actions hereunder for the
purpose of carrying out the terms of this Agreement and any of the Security
Documents, to receive and give all notices to be given by or received by
such Grantor, to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes hereof and, without
limiting the generality of the foregoing, hereby grants to BMCA the power
and right on behalf of such Grantor, without assent by such Grantor, to
bind such Grantor in all respects hereunder and under any of the Security
Documents, with the intent that all action taken by BMCA on behalf of such
Grantor shall be binding upon and inure to the benefit of such Grantor as
effectively as if such action were taken directly by such Grantor. Each
such power of attorney is a power coupled with an interest and shall be
irrevocable until all of the Obligations are paid in full in cash.
Section 2.6 COPIES OF LETTERS AND DOCUMENTS. The Collateral Agent
shall promptly provide the Required Lender Representative copies of any letters
or documents it receives in connection with any Deposit Account, including, but
not limited to, letters and documents related to the termination or opening of
any Deposit Account. In addition, the Collateral Agent shall provide to any
Lender Representative, upon such Lender Representative's request, copies of any
letters or documents the Collateral Agent receives from any Grantor or any other
Person in connection with this Agreement, including additional Security
Documents.
SECTION 3. ACTIONABLE DEFAULTS; REMEDIES.
Section 3.1 ACTIONABLE DEFAULT.
(a) Upon actual receipt by an officer of Citibank, N.A.'s corporate
trust department of a Notice of Default from the Required Lender
Representative, the Collateral Agent shall, within five Business Days
thereafter, send a copy thereof to each Lender Representative and shall
notify each Lender Representative, in the manner provided in Section 9.2,
that a Notice of Default has been received by the Collateral Agent. Upon
receipt of any written directions pursuant to Section 2.3(a), the
Collateral Agent shall, within five Business Days thereafter, send a copy
thereof to each Lender Representative.
(b) The Required Lender Representative giving a Notice of Default
shall be entitled to withdraw it by delivering written notice of withdrawal
to the Collateral Agent (i) before the Collateral Agent takes any action to
exercise any remedy with respect to the Collateral or (ii) thereafter, if
BMCA otherwise indemnifies the Collateral Agent and the Beneficiaries (in a
manner satisfactory to the Collateral Agent and the Lender
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Representatives in their sole discretion) with respect to all costs and
expenses incurred by the Collateral Agent and the Beneficiaries in
connection with reversing all actions the Collateral Agent has taken to
exercise any remedy or remedies with respect to the Collateral. The
Collateral Agent shall immediately notify BMCA as to the receipt and
contents of any such notice of withdrawal and shall promptly notify each
Lender Representative, in the manner provided in Section 9.2, of the
withdrawal of any Notice of Default and shall promptly send a copy of any
such notice of withdrawal to each Lender Representative.
Section 3.2 REMEDIES.
(a) Upon receipt of a Notice of Default from the Required Lender
Representative, and irrespective of whether the Collateral Agent has
delivered notices to the Lender Representatives pursuant to Section 3.1(a),
the Collateral Agent shall exercise the rights and remedies provided in
this Section 3 and the rights and remedies provided in any of the Security
Documents in accordance with instructions of the Required Lender
Representative.
(b) Each Grantor hereby waives presentment, demand, protest or any
notice (to the extent permitted by applicable law and except as otherwise
expressly provided in this Agreement) of any kind in connection with this
Agreement, any Collateral or any Security Document.
(c) Each Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the name of such Grantor or in its own name, from time to time
in the Collateral Agent's discretion, during the continuation of any
Actionable Default or Acceleration Default, for the purpose of carrying out
the terms of this Agreement and any of the Security Documents and hereby
gives the Collateral Agent the power and right on behalf of such Grantor,
without assent by such Grantor, to the extent permitted by applicable law,
to do the following:
(i) to ask for, demand, sue for, collect, receive and
give acquittance for any and all moneys due or to become due with
respect to the Collateral,
(ii) to receive, take, indorse, assign and deliver any
and all checks, notes, drafts, acceptances, documents and other
negotiable and nonnegotiable instruments, documents and chattel paper
taken or received by the Collateral Agent in connection herewith and
therewith,
(iii) to commence, file, prosecute, defend, settle,
compromise or adjust any claim, suit, action or proceeding with
respect to the Collateral, and
(iv) to sell, transfer, assign or otherwise deal in or
with the Collateral or any part thereof pursuant to the terms and
conditions hereunder and thereunder.
Section 3.3 RIGHT TO INITIATE JUDICIAL PROCEEDINGS, ETC.
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(a) Even if the Collateral Agent has not received a Notice of Default
from the Required Lender Representative, the Collateral Agent shall
nevertheless have the right and power to institute and maintain such suits
and proceedings as it may deem appropriate to protect and enforce the
rights vested in it by this Agreement and each Security Document; provided,
however, that as set forth in Section 2.3(a), foreclosure of the liens and
security interests in the Collateral may not be commenced prior to the
Collateral Agent's receipt of a Notice of Default and instructions from the
Required Lender Representative.
(b) If and only if the Collateral Agent shall have received a Notice
of Default from the Required Lender Representative and during such time as
such Notice of Default shall not have been withdrawn, the Collateral Agent
may, either after entry or without entry, proceed by suit or suits at law
or in equity to foreclose upon the Collateral and to sell all or, from time
to time, any of the Secured Debt Collateral under the judgment or decree of
a court of competent jurisdiction.
Section 3.4 APPOINTMENT OF A RECEIVER. If a receiver of the Secured
Debt Collateral shall be required to be appointed in any judicial proceeding,
Citibank, N.A. may be appointed as such receiver. Notwithstanding the
appointment of a receiver, the Collateral Agent shall be entitled to retain
possession and control of all cash held by or deposited with it or its agents
pursuant to any provision of this Agreement or any Security Document.
Section 3.5 EXERCISE OF POWERS. All of the powers, remedies and rights
of the Collateral Agent as set forth in this Agreement may be exercised by the
Collateral Agent in respect of any Security Document as though set forth at
length therein and all the powers, remedies and rights of the Collateral Agent
as set forth in any Security Document may be exercised from time to time as
herein and therein provided.
Section 3.6 REMEDIES NOT EXCLUSIVE.
(a) No remedy conferred upon or reserved to the Collateral Agent
herein or in the Security Documents is intended to be exclusive of any
other remedy or remedies, but every such remedy shall be cumulative and
shall be in addition to every other remedy conferred herein or in any of
the Security Documents or now or hereafter existing at law or in equity or
by statute.
(b) No delay or omission of the Collateral Agent to exercise any
right, remedy or power accruing upon any Actionable Default shall impair
any such right, remedy or power or shall be construed to be a waiver of any
such Actionable Default or an acquiescence therein; and every right, power
and remedy given by this Agreement or any Security Document to the
Collateral Agent may be exercised from time to time.
(c) In case the Collateral Agent shall have proceeded to enforce any
right, remedy or power under this Agreement or any Security Document and
the proceeding for the enforcement thereof shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Collateral Agent, then and in every such case the Grantors, the Collateral
Agent and the Beneficiaries shall, subject to any effect of or
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determination in such proceeding, severally and respectively be restored to
their former positions and rights hereunder and under such Security
Document with respect to the Secured Debt Collateral and in all other
respects, and thereafter all rights, remedies and powers of the Collateral
Agent shall continue as though no such proceeding had been taken.
(d) All rights of action and rights to assert claims upon or under
this Agreement and the Security Documents may be enforced by the Collateral
Agent without the possession of any Debt Instrument or the production
thereof in any trial or other proceeding relative thereto, and any such
suit or proceeding instituted by the Collateral Agent shall be brought in
its name as Collateral Agent and any recovery of judgment shall be held as
part of the Secured Debt Collateral.
Section 3.7 WAIVER OF CERTAIN RIGHTS. Each Grantor, to the extent it
may lawfully do so, on behalf of itself and all who may claim from, through or
under it, including, without limitation, any and all subsequent creditors,
vendees, assignees and lienors, expressly waives and releases any, every and all
rights to demand or to have any marshaling of the Secured Debt Collateral upon
any sale, whether made under any power of sale granted under the Security
Documents, or pursuant to judicial proceedings or upon any foreclosure or any
enforcement of this Agreement or the Security Documents and consents and agrees
that all the Secured Debt Collateral may at any such sale be offered and sold as
an entirety. In no event, however, does any Grantor waive any obligations of the
Collateral Agent under applicable law to dispose of the Secured Debt Collateral
in a commercially reasonable manner.
Section 3.8 LIMITATION ON COLLATERAL AGENT'S DUTIES IN RESPECT OF
COLLATERAL. Beyond its duties set forth in this Agreement as to the custody
thereof and the accounting to the Grantors and the Required Lender
Representatives for moneys received by it hereunder, the Collateral Agent shall
not have any duty to the Grantors or the Beneficiaries as to any Collateral in
its possession or control or in the possession or control of any agent or
nominee of it or any income thereon or as to the preservation of rights against
prior parties or any other rights pertaining thereto. To the extent, however,
that the Collateral Agent or an agent or nominee of the Collateral Agent
maintains possession or control of any of the Collateral or the Security
Documents at any office of a Grantor, the Collateral Agent shall, or shall
instruct such agent or nominee to, grant such Grantor the access to such
Collateral or Security Documents which such Grantor requires for the conduct of
its business, as permitted by the Credit Documents, so long as the Collateral
Agent shall not have received a Notice of Default from the Required Lender
Representative.
Section 3.9 LIMITATION BY LAW. All the provisions of this Section 3
are intended to be subject to all applicable mandatory provisions of law which
may be controlling in the premises and to be limited to the extent necessary so
that they will not render this Agreement invalid or unenforceable in whole or in
part.
Section 3.10 ABSOLUTE RIGHTS OF THE BENEFICIARIES. Notwithstanding any
other provision of this Agreement or any provision of any Security Document,
neither the right of each Beneficiary, which is absolute and unconditional, to
receive payments of the Secured Debt held by such Beneficiary on or after the
due date thereof as therein expressed, to institute suit for the
16
enforcement of such payment on or after such due date, or to assert its position
and views as a secured or unsecured creditor in, and to otherwise exercise any
right (other than the right to enforce the security interest in the Collateral,
which shall in all circumstances be exercisable only by the Collateral Agent and
only as provided in this Agreement and the Security Documents) which such
Beneficiary may have in connection with, a case under the Bankruptcy Code in
which a Grantor is a debtor, nor the obligation of each Grantor, which is also
absolute and unconditional, to pay the Secured Debt owing by such Grantor to
each Beneficiary at the time and place expressed therein shall be impaired or
affected without the consent of such Beneficiary.
SECTION 4. COLLATERAL ACCOUNT; APPLICATION OF MONEYS.
Section 4.1 THE COLLATERAL ACCOUNT. On the date hereof (or such later
date specified by the Required Lender Representative, as long as such later date
is no more than 30 days subsequent to the date hereof) there shall be
established and, at all times thereafter there shall be maintained by the
Collateral Agent an account which shall be entitled the "Collateral Account"
(the "COLLATERAL ACCOUNT"). The Collateral Agent may establish and maintain one
or more sub-accounts under the Collateral Account, each of which shall
constitute a part of the Collateral Account. All moneys which are received by
the Collateral Agent with respect to the Collateral at any time after a Notice
of Default shall have been given to the Collateral Agent by the Required Lender
Representative and shall not have been withdrawn shall be deposited in the
Collateral Account and thereafter shall be held, applied and/or disbursed by the
Collateral Agent in accordance with the terms of this Agreement; PROVIDED,
HOWEVER, that certain amounts that are to be paid by the Collateral Agent to the
2003 Administrative Agent shall be paid directly to the Lender Representative
for the account of each holder of the applicable Priority Obligations (rather
than being disbursed through the Collateral Account) as provided in Section
3.4(d)(i) of the Security Agreement.
Section 4.2 GRANT OF SECURITY INTEREST; CONTROL OF COLLATERAL ACCOUNT.
(a) To secure the prompt and complete payment, when due, and the
observance and performance of all Secured Debt, each Grantor hereby assigns
and pledges to the Collateral Agent and grants to the Collateral Agent a
security interest in all of the right, title and interest of such Grantor
in and to the following, whether presently existing or hereafter arising or
acquired (the "COLLATERAL AGREEMENT COLLATERAL"): the Collateral Account,
all cash deposited therein, all certificates and instruments, if any, from
time to time representing the Collateral Account; all investments from time
to time made pursuant to Section 4.3, all notes, certificates of deposit
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Collateral Agent in substitution for, or in addition to,
any or all of the then existing Collateral Agreement Collateral; all
interest, dividends, cash, instruments, and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the then existing Collateral Agreement
Collateral; and to the extent not covered above, all Proceeds of and any
collections, earnings and accruals with respect to any or all of the
foregoing (whether the same are acquired before or after the commencement
of a case under the Bankruptcy Code by or against such Grantor as a
debtor).
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(b) All right, title and interest in and to the Collateral Account
shall vest in the Collateral Agent, and funds on deposit in the Collateral
Account and other Collateral Agreement Collateral shall constitute part of
the Secured Debt Collateral. The Collateral Account shall be subject to the
exclusive dominion and control of the Collateral Agent.
Section 4.3 INVESTMENT OF FUNDS DEPOSITED IN COLLATERAL ACCOUNT. The
Collateral Agent shall invest and reinvest, but only in accordance with the
instructions of the Required Lender Representative specifying the particular
investment, moneys on deposit in the Collateral Account at any time in any of
the following investments:
(i) securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in full support thereof) having maturities of not more than six
months from the date of acquisition;
(ii) dollar denominated domestic and eurodollar time deposits,
certificates of deposit and bankers acceptances of (x) any Lender or (y)
any Approved Bank, in any such case with maturities of not more than six
months from the date of acquisition;
(iii) commercial paper issued by any Approved Bank or by the parent
company of any Approved Bank and commercial paper issued by, or guaranteed
by, any industrial or financial company which at the time of acquisition
has an unsecured non-credit supported short-term commercial paper rating of
at least A-1 or the equivalent by Standard & Poor's or at least P-1 or the
equivalent by Moody's, or guaranteed by any industrial or financial company
with a long term unsecured non-credit supported senior debt rating of at
least A or A-2, or the equivalent, by Standard & Poor's or Moody's, as the
case may be, and in each case maturing within six months after the date of
acquisition; or
(iv) any money market fund as may be selected by the Required Lender
Representative, having a rating in the highest investment category granted
thereby by a recognized credit rating agency at the time of acquisition,
including any fund for which the Collateral Agent or an Affiliate of the
Collateral Agent serves as an investment advisor, administrator,
shareholder serving agent, custodian or sub-custodian, notwithstanding that
(A) the Collateral Agent or an Affiliate of the Collateral Agent charges
and collects fees and expenses from such funds for services rendered
(provided that such charges, fees and expenses are on terms consistent with
terms negotiated at arm's-length) and (B) the Collateral Agent charges and
collects fees and expenses for services rendered, pursuant to this
Agreement;
PROVIDED, HOWEVER, that in order to provide the Collateral Agent with a
perfected security interest therein, each Grantor shall take such steps as shall
be required by the Required Lender Representative to perfect the security
interest therein. All such investments and the interest and income received
thereon and therefrom and the net proceeds realized on the sale thereof shall be
held in the Collateral Account as part of the Secured Debt Collateral.
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The Collateral Agent shall have the power to sell or liquidate the
foregoing investments whenever the Collateral Agent shall be required to release
the moneys on deposit in the Collateral Account pursuant to the terms hereof.
The Collateral Agent shall have no responsibility or liability whatsoever for
(i) any investment losses resulting from the investment, reinvestment or
liquidation of the moneys on deposit in the Collateral Account or (ii) for
monitoring the credit ratings of any investment. The Required Lender
Representative shall be responsible for instructing the Collateral Agent with
respect to any change in investment should the credit rating in respect of any
investment at any time fall below the level acceptable to the Required Lender
Representative. Any interest or other income received on such investment and
reinvestment of the moneys on deposit the Collateral Account shall become part
of the moneys on deposit in the Collateral Account and be allocated pursuant to
Section 4.4 hereof.
Section 4.4 APPLICATION OF INVESTMENTS.
(a) From and after the receipt by the Collateral Agent of a Notice of
Default by the Required Lender Representative, and for as long as such
Notice of Default shall not have been withdrawn, funds and other
investments held in the Collateral Account shall be sold or otherwise
liquidated from time to time and the proceeds thereof shall, to the extent
available for distribution, be distributed by the Collateral Agent on the
first and each succeeding Distribution Date as follows:
FIRST: To the Collateral Agent in an amount equal to the
Collateral Agent's Fees which are unpaid as of such Distribution Date,
and to the applicable Lender Representative for the account of any
Beneficiary which has theretofore advanced or paid any such Collateral
Agent's Fees in an amount equal to the amount thereof so advanced or
paid by such Beneficiary prior to such Distribution Date; provided,
however, that nothing herein is intended to relieve any Grantor of its
obligation to pay such costs, fees, expenses and liabilities from
funds outside of the Collateral Account;
SECOND: To the applicable Lender Representative for the
account of each Priority Holder in an amount equal to the Priority
Fees and Expenses due to such Priority Holder, and in case such moneys
shall be insufficient to pay in full the Priority Fees and Expenses,
then to the payment thereof ratably (without priority of any one over
any other) to the applicable Lender Representative for the account of
each such Priority Holder in proportion to the unpaid amounts thereof
determined on the day before the relevant Distribution Date;
THIRD: To the applicable Lender Representative for the
account of each Priority Holder in an amount equal to the unpaid
interest on, and letter of credit fees in respect of, the Priority
Obligations (other than the ACH Obligations and the Hedge
Obligations), due to such Priority Holder, and in case such moneys
shall be insufficient to pay in full such interest, then to the
payment thereof ratably (without priority of any one over any other)
to the applicable Lender Representative for the account of each such
Priority Holder in proportion to the unpaid amounts thereof determined
on the day before the relevant Distribution Date;
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FOURTH: To the applicable Lender Representative for the
account of each Priority Holder in an amount equal to the unpaid
principal of the Priority Obligations (other than the ACH Obligations
and the Hedge Obligations) (but excluding therefrom any penalties,
premiums, commitment fees, breakage fees or similar types of fees) due
to such Priority Holder, and with respect to any outstanding Letters
of Credit issued by such Priority Holder, the Collateral Agent shall
withhold and retain in the Collateral Account for each such Priority
Holder the undrawn face amount of such Letters of Credit and, in case
such moneys shall be insufficient to pay in full such principal and to
secure such Letters of Credit, then to the payment to each such
Priority Holder and to secure each such Letter of Credit ratably
(without priority of one over the other) in proportion to the unpaid
amounts thereof and the undrawn face amounts of such Letters of Credit
determined on the day before the relevant Distribution Date (provided
that if any undrawn Letter of Credit is thereafter drawn, the
Collateral Agent shall pay to the applicable Issuing Bank for payment
to the drawee the amount drawn up to the maximum amount retained by
the Collateral Agent in respect of such Letter of Credit, and provided
further that if any such Letter of Credit shall expire, the Collateral
Agent shall distribute the amounts retained to secure such undrawn
Letter of Credit to the applicable Lender Representative for the
account of each such Priority Holder pursuant to this Section 4.4);
FIFTH: To the applicable Lender Representative for the
account of each Priority Holder with respect to Priority Obligations
(other than ACH Obligations and Hedge Obligations) in an amount equal
to the unpaid penalties, premiums, commitment fees, breakage fees or
similar types of fees due to such Priority Holder and, in case such
moneys shall be insufficient to pay in full such penalties, premiums,
commitment fees, breakage fees or similar types of fees, then to the
payment to each such Priority Holder (without priority of one over the
other) in proportion to the unpaid amounts thereof determined on the
day before the relevant Distribution Date;
SIXTH: To the applicable Lender Representative for the
account of each Priority Holder with respect to Priority Obligations
(other than ACH Obligations and Hedge Obligations), in an amount equal
to all other amounts, if any, then due to such Priority Holder;
SEVENTH: To the applicable Lender Representative for the
account of each Priority Holder with respect to ACH Obligations, in an
amount equal to all amounts then due to such Priority Holder;
EIGHTH: To the applicable Lender Representative for the
account of each Priority Holder with respect to Hedge Obligations, in
an amount equal to all amounts then due to such Priority Holder;
NINTH: To the applicable Lender Representative for the
account of each Beneficiary (other than the Priority Holders) in an
amount equal to the collection costs, fees and expenses (but excluding
therefrom any penalties, premiums,
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commitment fees, breakage fees or similar types of fees) due to such
Beneficiary and, in case such moneys shall be insufficient to pay in
full such costs, fees and expenses, then to the payment thereof
ratably (without priority of any one over any other) to each such
Beneficiary in proportion to the unpaid amounts thereof on the
relevant Distribution Date;
TENTH: To the applicable Lender Representative for the
account of each Beneficiary (other than the Priority Holders) in an
amount equal to the unpaid interest (but excluding therefrom any
penalties, premiums, commitment fees, breakage fees or similar types
of fees) on the loans and extensions of credit comprising the Secured
Debt (other than the Priority Obligations) due to such Beneficiary
and, in case such moneys shall be insufficient to pay in full such
interest, then to the payment thereof ratably (without priority of any
one over any other) to each Beneficiary in proportion to the unpaid
amounts thereof determined on the day before the relevant Distribution
Date;
ELEVENTH: To the applicable Lender Representative for the
account of each Beneficiary (other than the Priority Holders) in an
amount equal to the unpaid principal of (but excluding therefrom any
penalties, premiums, commitment fees, breakage fees or similar types
of fees) loans and extensions of credit comprising the Secured Debt
(other than the Priority Obligations) due to such Beneficiary;
TWELFTH: To the applicable Lender Representative for the
account of each Beneficiary (other than the Priority Holders) in an
amount equal to the penalties, premiums, commitment fees, breakage
fees or similar types of fees on all amounts due to such Beneficiary
which are payable by the Borrower to such Beneficiary under the
relevant Debt Instruments and, in case such moneys shall be
insufficient to pay in full such penalties, premiums, commitment fees,
breakage fees or similar types of fees, then to the payment thereof
ratably (without priority of any one over any other) to each such
Beneficiary in proportion to the unpaid amounts thereof on the
relevant Distribution Date;
THIRTEENTH: To the applicable Lender Representative for the
account of each Beneficiary (other than the Priority Holders) in an
amount equal to all other amounts, if any, then due to each such
Beneficiary; and
FOURTEENTH: Any surplus then remaining shall be paid to the
applicable Grantors or their successors or assigns, or as a court of
competent jurisdiction may direct; provided, however, that if any
Beneficiary shall have notified the Collateral Agent in writing that
such Beneficiary has an outstanding claim, or has knowledge of a
threatened potential claim, against a Grantor and such Beneficiary is
entitled to the benefits of an indemnification, reimbursement or
similar provision constituting Secured Debt in connection with such
claim or potential claim, the Collateral Agent shall continue to hold
in the Collateral Account, for a period of not more than two years
following the date of such notice, the amount specified in such notice
(which notice shall contain the
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Beneficiary's certification that the amount so specified is not
included as part of an allowed claim in a pending bankruptcy
proceeding and, if included in a pending claim, the Beneficiary's
covenant to notify the Collateral Agent to reduce the amount being
held by the amount of such contingent claim that becomes an allowed
claim).
(b) If at any time during the pendency of a bankruptcy case under
Title 11 of the United States Code with respect to BMCA (the "BMCA
BANKRUPTCY") (i) the Senior Note Lien Avoidance shall have occurred and
(ii) the 1999 Liens remain in full force and effect, then on the Sharing
Date, provided that the 1999 Liens have not been avoided or set aside, each
1999 Lender shall pay over to the Senior Note Trustees, for the account of
the Noteholders, its 1999 Sharing Payment, and each Noteholder shall pay
over to the 1999 Administrative Agent, for the account of the 1999 Lenders,
its Senior Note Distribution Amount. The obligations of the 1999 Lenders
hereunder shall apply to such 1999 Lenders solely in their capacity as 1999
Lenders, and notwithstanding the foregoing, or anything to the contrary
contained herein, no 2003 Lender in its capacity as a 2003 Lender shall be
required to make any payment of any amount or nature to any Person in
accordance with the provisions of this Section 4.4(b).
SECTION 5. AGREEMENTS WITH THE COLLATERAL AGENT.
Section 5.1 DELIVERY OF DOCUMENTS. On or promptly after the date
hereof, BMCA will deliver to the Collateral Agent true and complete copies of
each Credit Document, Debt Instrument and Security Document; provided, that the
failure to provide the Collateral Agent with copies of such documents shall not
affect the rights of the Beneficiaries or the validity of the Collateral Agent's
actions taken hereunder. BMCA further agrees that, promptly upon the execution
thereof, BMCA will deliver to the Collateral Agent a true and complete copy of
any other Credit Documents, Debt Instruments and Security Documents entered into
by any Grantor subsequent to the date hereof, and a true and complete copy of
any and all amendments, modifications or supplements to any Credit Document,
Debt Instrument or Security Document entered into by any Grantor subsequent to
the date hereof.
Section 5.2 INFORMATION AS TO BENEFICIARIES.
(a) BMCA agrees to deliver to the Collateral Agent by December 1 in
each year, commencing December 1, 2003, and at any other time or times upon
request of the Collateral Agent, a list setting forth each Lender
Representative and the information required pursuant to Section 9.2 to send
notices to each such Lender Representative.
(b) At any time after the Collateral Agent has received a Notice of
Default from the Required Lender Representative, and so long as such Notice
of Default has not been withdrawn, upon the request of the Collateral
Agent, each Lender Representative agrees that it shall deliver to the
Collateral Agent, within five Business Days following the receipt of such
request, a schedule setting forth the aggregate principal amount of Secured
Debt owing to each Beneficiary of such Lender Representative, the interest
rate or rates and the letter of credit fee or fees then in effect with
respect to such Secured Debt and such other information as the Collateral
Agent may request to make distributions
22
pursuant to Section 4.4, and with respect to each Priority Holder, such
schedule shall also set forth the amount of Secured Debt which constitutes
Priority Obligations. Upon receipt of the requested information, the
Collateral Agent shall compile such information and prepare a master
schedule which the Collateral Agent shall promptly send to each Lender
Representative.
Section 5.3 COMPENSATION AND EXPENSES. The Grantors jointly and
severally agree to pay to the Collateral Agent as compensation for the
Collateral Agent's services hereunder and under the Security Documents and for
administering the Secured Debt Collateral, (a) such fees as shall be agreed to
in writing from time to time between BMCA and the Collateral Agent and (b) from
time to time, upon demand, all of the fees, costs and expenses of the Collateral
Agent (including, without limitation, the reasonable fees and disbursements of
its counsel and such special counsel as the Collateral Agent elects to retain)
(x) arising in connection with the preparation, execution, delivery,
modification, restatement, amendment or termination of this Agreement and each
Security Document or the enforcement (whether in the context of a civil action,
adversary proceeding, workout or otherwise) of any of the provisions hereof or
thereof, or (y) incurred or required or otherwise advanced in connection with
the administration of the Secured Debt Collateral (including, but not limited
to, reimbursements or other payments made by the Collateral Agent to a Qualified
Depositary Institution or pursuant to a Depositary Control Agreement), the sale
or other disposition of Collateral and the preservation, protection or defense
of the Collateral Agent's rights under this Agreement and in and to the
Collateral and the Secured Debt Collateral. As security for such payment, the
Collateral Agent shall have a lien prior to the Secured Debt upon all Collateral
and other property and funds held or collected by the Collateral Agent as part
of the Secured Debt Collateral. The obligation of the Grantors to pay any and
all fees, expenses, indemnities and other amounts due hereunder shall be joint
and several.
Section 5.4 STAMP AND OTHER SIMILAR TAXES. The Grantors jointly and
severally agree to indemnify and hold harmless the Collateral Agent and each
Beneficiary from, and shall reimburse the Collateral Agent and each Beneficiary
for, any present or future claim for liability for any stamp or other similar
tax and any penalties or interest with respect thereto, which may be assessed,
levied or collected by any jurisdiction in connection with this Agreement, any
Security Document, the Secured Debt Collateral, or the attachment or perfection
of the security interest granted to the Collateral Agent in any Collateral. The
obligations of the Grantors under this Section 5.4 shall survive the termination
of the other provisions of this Agreement.
Section 5.5 FILING FEES, EXCISE TAXES, ETC. The Grantors jointly and
severally agree to pay or to reimburse the Collateral Agent for any and all
amounts in respect of all search, filing, recording and registration fees,
taxes, excise taxes and other similar imposts which may be payable or determined
to be payable in respect of the execution, delivery, performance and enforcement
of this Agreement and each Security Document and agrees to save the Collateral
Agent harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees. The
obligations of the Grantors under this Section 5.5 shall survive the termination
of the other provisions of this Agreement.
Section 5.6 INDEMNIFICATION.
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(a) The Grantors jointly and severally agree to pay, indemnify and
hold the Collateral Agent and each of its agents harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the Security
Documents, except to the extent the same constitute direct money damages
arising from the gross negligence or willful misconduct of the Collateral
Agent, or if the agent is seeking indemnification, from the agent's gross
negligence or willful misconduct. As security for such payment, the
Collateral Agent shall have a lien prior to the Secured Debt upon all
Collateral and other property and funds held or collected by the Collateral
Agent as part of the Secured Debt Collateral.
(b) In any suit, proceeding or action brought by the Collateral Agent
under or with respect to the Collateral for any sum owing thereunder, or to
enforce any provisions thereof, or of any of the Security Documents or this
Agreement, the Grantors will save, indemnify and keep the Collateral Agent
and the Beneficiaries harmless from and against all expense, loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of the obligee thereunder, arising out of
a breach by any Grantor of any of its obligations hereunder or thereunder
or arising out of any other agreement, indebtedness or liability at any
time owing to or in favor of such obligee or its successors from such
Grantor, and all such obligations of the Grantors shall be and remain
enforceable against and only against the Grantors and shall not be
enforceable against the Collateral Agent or any Beneficiary.
(c) The agreements and obligations of the Grantors in this Section
5.6 shall survive resignation or removal of the Collateral Agent and the
termination of the other provisions of this Agreement.
Section 5.7 FURTHER ASSURANCES. At any time and from time to time,
upon the written request of the Collateral Agent, and at the expense of the
Grantors, each Grantor will promptly execute and deliver any and all such
further instruments and documents and take such further action necessary or
desirable in obtaining the full benefits of this Agreement and the Security
Documents and of the rights and powers herein and therein granted, including,
without limitation, the filing of any financing or continuation statements to
perfect the liens and security interests granted thereby.
SECTION 6. COLLATERAL AGENT.
Section 6.1 ACCEPTANCE OF DUTIES. The Collateral Agent, for itself and
its successors, accepts the duties and obligations required by this Agreement
upon the terms and conditions hereof, including those contained in this Section
6.
Section 6.2 EXCULPATORY PROVISIONS.
(a) The Collateral Agent shall not be responsible in any manner
whatsoever for the correctness of any recitals, statements, representations
or warranties contained herein or in any Notice of Default or in any
instructions purported to be from a Required
24
Lender Representative, except for those made by the Collateral Agent. The
Collateral Agent makes no representations as to the value or condition of
the Secured Debt Collateral or any part thereof, or as to the title any
Grantor thereto or as to the security afforded by the Security Documents or
this Agreement or, except as set forth in Section 2.2, as to the validity,
execution, enforceability, legality or sufficiency of this Agreement, any
Credit Document, any Security Document or of the Secured Debt secured
hereby and thereby, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent shall
not be responsible for insuring the Secured Debt Collateral or for the
payment of taxes, charges, assessments or liens upon the Secured Debt
Collateral or otherwise as to the maintenance of the Secured Debt
Collateral, except that (i) in the event the Collateral Agent enters into
possession of a part or all of the Secured Debt Collateral, the Collateral
Agent shall preserve the part in its possession, and (ii) the Collateral
Agent will promptly, and at its own expense, take such action as may be
necessary duly to remove and discharge (by bonding or otherwise) any
Collateral Agent's Lien on any part of the Secured Debt Collateral or any
other lien on any part of the Secured Debt Collateral resulting from claims
against it not related to the administration of the Secured Debt Collateral
or (if so related) resulting from gross negligence or willful misconduct on
its part.
(b) The Collateral Agent shall not be required to ascertain or
inquire as to the performance by any Grantor of any of the covenants or
agreements contained herein, in any Credit Document, Security Document or
in any Debt Instrument. Whenever it is necessary, or in the opinion of the
Collateral Agent advisable, for the Collateral Agent to ascertain the
amount of Secured Debt then held by a Beneficiary, the Collateral Agent may
rely on a certificate of such Beneficiary's Lender Representative as to
such amount.
(c) Citibank, N.A. shall, in its individual capacity and at its own
cost and expense, promptly take all action as may be necessary to discharge
any Collateral Agent's Liens or any other lien resulting from claims
against it not related to the administration of the Secured Debt Collateral
or (if so related) resulting from gross negligence or willful misconduct on
its part.
(d) The Collateral Agent shall not be personally liable for any acts,
omissions, errors of judgment or mistakes of fact or law made, taken or
omitted to be made or taken by it in accordance with this Agreement or any
Security Document (including, without limitation, acts, omissions, errors
or mistakes with respect to the Collateral), except for those arising out
of or in connection with the Collateral Agent's gross negligence or willful
misconduct. In no event shall the Collateral Agent be liable for
incidental, indirect, special or consequential damages, regardless of the
form of action and even if the same were foreseeable. Notwithstanding
anything set forth herein to the contrary, the Collateral Agent shall have
a duty of reasonable care with respect to any Collateral which is delivered
to the Collateral Agent or its designated representatives and is in the
Collateral Agent's or its designated representatives' possession and
control. (e) The Collateral Agent shall not be liable for any claims,
losses, liabilities, damages, costs, expenses and judgments (including
reasonable attorneys' fees and expenses) due to forces beyond the
reasonable control of the Collateral Agent, including, without limitation,
25
strikes, work stoppages, act of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or
hardware) services.
Section 6.3 DELEGATION OF DUTIES; APPOINTMENT OF ADMINISTRATIVE AGENT
AS SUB-AGENT.
(a) The Collateral Agent may execute any of the powers hereof and
perform any duty hereunder either directly or by or through agents,
nominees or attorneys-in-fact. The Collateral Agent may act and rely, and
shall be protected in acting and relying on, the opinion or advice or, or
information obtained from, any counsel, accountant, appraiser or other
expert or adviser, whether retained or employed by the Collateral Agent or
the Required Lender Representative, in relation to any matter in connection
with this Agreement, the Security Agreement or any other document,
instrument or writing. The Collateral Agent shall be entitled to advice of
counsel concerning all matters pertaining to such powers and duties. The
Collateral Agent shall not be responsible for any acts or omissions,
including any negligence or misconduct, of any agents, designated
representatives, nominees or attorneys-in-fact selected by it without gross
negligence or willful misconduct.
(b) The Collateral Agent hereby appoints the 2003 Administrative
Agent to act as its sub-agent hereunder, and in connection with each of the
other Loan Documents. The 2003 Administrative Agent, for itself and its
successors, accepts the duties and obligations required by this Agreement
and the other Loan Documents upon the terms and conditions hereof and
thereof.
Section 6.4 RELIANCE BY COLLATERAL AGENT.
(a) Whenever in the administration of this Agreement the Collateral
Agent shall deem it necessary or desirable that a matter be proved or
established with respect to any Grantor in connection with the taking,
suffering or omitting of any action hereunder by the Collateral Agent, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be proved or established by a certificate of a
Responsible Officer of such Grantor delivered to the Collateral Agent, and
such certificate shall be full warranty to the Collateral Agent for any
action taken, suffered or omitted in reliance thereon without gross
negligence or willful misconduct, subject, however, to the provisions of
Section 6.5.
(b) The Collateral Agent may consult with counsel, accountants and
other experts, and any opinion of independent counsel, any such accountant,
and any such other expert shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in
accordance therewith. The Collateral Agent shall have the right at any time
to seek instructions concerning the administration of the Secured Debt
Collateral from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected in
acting, upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order, bond or other paper or document
which it has no reason to believe to be other than
26
genuine and to have been signed or presented by the proper party or parties
or, in the case of telecopies, to have been sent by the proper party or
parties, including the information provided by BMCA to the Collateral Agent
pursuant to Section 5.2. In the absence of its gross negligence or willful
misconduct, the Collateral Agent may rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Collateral Agent and conforming
to the requirements of this Agreement or any Security Document.
(d) If the Collateral Agent has been requested to take action
pursuant to Section 2.3, the Collateral Agent shall not be under any
obligation to exercise any of the rights or powers vested in the Collateral
Agent by this Agreement or any Security Document unless the Collateral
Agent shall have been provided adequate security and indemnity against the
costs, expenses and liabilities which may be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Collateral Agent. Under no circumstances shall the
Collateral Agent have any liability for investments made from moneys in the
Collateral Account pursuant to instructions received under Section 4.3 and
all such investments shall be at the sole risk of the Grantors.
(e) The Collateral Agent shall not be required to inquire or
investigate a Notice of Default or whether any instruction purported to be
given by a Required Lender Representative was in fact so given, or whether
any such instruction is consistent with the Security Agreement or this
Agreement, and the Collateral Agent may assume the foregoing and shall be
protected in relying thereon.
(f) The Collateral Agent shall have no duty as to any Collateral in
its possession or control, other than those duties specifically set forth
herein, or the possession or control of any agent or bailee or any income
thereon or as to the preservation or rights against prior parties or any
other rights pertaining thereto. The Collateral Agent shall endeavor to
file such financing and continuation statements and record such documents
or instruments in such places and at such times as shall be directed by the
Required Lender Representative. The Collateral Agent shall not be liable or
responsible for any loss or diminution in the value of any of the
Collateral by reason or the act or omission of any carrier, forwarding
agency or other agent or bailee selected by the Collateral Agent in good
faith.
(g) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability or any liens on any of the
Collateral, whether impaired by operation of law or by reason of any action
or omission to act on its part hereunder, except to the extent such action
or omission constitutes gross negligence or willful misconduct on the part
of the Collateral Agent, for the validity or sufficiency of the Collateral
or any agreement or assignment contained therein, or for the validity of
any title to the Collateral or otherwise as to the maintenance of the
Collateral. The Collateral Agent shall have no duty to ascertain or inquire
into the performance or observance by any other party of the terms of this
Agreement, the Security Agreement or any other agreement or document.
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Section 6.5 LIMITATIONS ON DUTIES OF THE COLLATERAL AGENT.
(a) The Collateral Agent shall be obliged to perform such duties and
only such duties as are specifically set forth in this Agreement or in any
Security Document, and no implied covenants or obligations shall be read
into this Agreement or any Security Document against the Collateral Agent.
The Collateral Agent shall, upon receipt of a Notice of Default from the
Required Lender Representative and during such time as such Notice of
Default shall not have been withdrawn, exercise the rights and powers
vested in it by this Agreement or by any Security Document, and the
Collateral Agent shall not be liable with respect to any action taken or
omitted by it in accordance with the direction of the Required Lender
Representative pursuant to Section 2.3.
(b) Except as herein otherwise expressly provided, including, without
limitation, upon the written request of the Required Lender Representative
pursuant to Section 2.3, the Collateral Agent shall not be under any
obligation to take any action which is discretionary with the Collateral
Agent under the provisions hereof or under any Security Document. The
Collateral Agent shall furnish to each Lender Representative promptly upon
receipt thereof, a copy of each certificate or other paper furnished to the
Collateral Agent by a Grantor under or in respect of this Agreement, any
Security Document or any of the Secured Debt Collateral.
Section 6.6 MONEYS HELD BY COLLATERAL AGENT. All moneys received by
the Collateral Agent under or pursuant to any provision of this Agreement or any
Security Document shall be held as Collateral for the purposes for which they
were paid or are held.
Section 6.7 RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
(a) The Collateral Agent may at any time, by giving thirty days'
prior written notice to BMCA and each Lender Representative resign and be
discharged of the responsibilities hereby created, such resignation to
become effective upon the appointment of a successor collateral agent or
collateral agents by the Required Lender Representative, and the acceptance
of such appointment by such successor collateral agent or collateral
agents. The Collateral Agent may be removed at any time without cause and a
successor collateral agent appointed by the affirmative vote of the
Required Lender Representative; provided that the Collateral Agent shall be
entitled to its fees and expenses to the date of removal. If no successor
collateral agent or collateral agents shall be appointed and approved
within thirty days from the date of the giving of the aforesaid notice of
resignation or within thirty days from the date of such removal, the
Collateral Agent shall, or any Lender Representative may, apply to any
court of competent jurisdiction to appoint a successor collateral agent or
collateral agents (which may be an individual or individuals) to act until
such time, if any, as a successor collateral agent or collateral agents
shall have been appointed as above provided. Any successor collateral agent
or collateral agents so appointed by such court shall immediately and
without further act be superseded by any successor collateral agent or
collateral agents appointed by the Required Lender Representative.
28
(b) If at any time the Collateral Agent shall resign, be removed or
otherwise become incapable of acting, or if at any time a vacancy shall
occur in the office of the Collateral Agent for any other cause, a
successor collateral agent or collateral agents may be appointed by the
Required Lender Representative, and the powers, duties, authority and title
of the predecessor collateral agent or collateral agents terminated and
canceled without procuring the resignation of such predecessor collateral
agent or collateral agents, and without any other formality (except as may
be required by applicable law) than the appointment and designation of a
successor collateral agent or collateral agents in writing, duly
acknowledged, delivered to the predecessor collateral agent or collateral
agents and BMCA, and filed for record in each public office, if any, in
which this Agreement is required to be filed.
(c) The appointment and designation referred to in Section 6.7(b)
shall, after any required filing, be full evidence of the right and
authority to make the same and of all the facts therein recited, and this
Agreement shall vest in such successor collateral agent or collateral
agents, without any further act, deed or conveyance, all of the estate and
title of its predecessor or their predecessors, and upon such filing for
record the successor collateral agent or collateral agents shall become
fully vested with all the estates, properties, rights, powers, trusts,
duties, authority and title of its predecessor or their predecessors; but
such predecessor or predecessors shall, nevertheless, on the written
request of any Lender Representative, BMCA, or its or their successor
collateral agent or collateral agents, execute and deliver an instrument
transferring to such successor or successors all the estates, properties,
rights, powers, duties, authority and title of such predecessor or
predecessors hereunder and shall deliver all securities and moneys held by
it or them to such successor collateral agent or collateral agents. Should
any deed, conveyance or other instrument in writing from BMCA be required
by any successor collateral agent or collateral agents for more fully and
certainly vesting in such successor collateral agent or collateral agents
the estates, properties, rights, powers, duties, authority and title vested
or intended to be vested in the predecessor collateral agent or collateral
agents, any and all such deeds, conveyances and other instruments in
writing shall, on request of such successor collateral agent or collateral
agents, be so executed, acknowledged and delivered.
(d) Any required filing for record of the instrument appointing a
successor collateral agent or collateral agents as hereinabove provided
shall be at the expense of the Grantors. The resignation of any collateral
agent or collateral agents and the instrument or instruments removing any
collateral agent or collateral agents, together with all other instruments,
deeds and conveyances provided for in this Section 6 shall, if required by
law, be forthwith recorded, registered and filed by and at the expense of
the Grantors, wherever this Agreement is recorded, registered and filed.
Section 6.8 STATUS OF SUCCESSORS TO THE COLLATERAL AGENT. Every
successor to Citibank, N.A. appointed pursuant to Section 6.7 and every
corporation resulting from a merger or consolidation pursuant to Section 6.9
shall be a bank or trust company in good standing and having power so to act,
incorporated under the laws of the United States or any State thereof or the
District of Columbia, and having its principal corporate trust office within the
forty-eight
29
contiguous States, and shall also have capital, surplus and undivided profits of
not less than $250,000,000 and a rating from Standard & Poor's or Moody's of A
or better.
Section 6.9 MERGER OF THE COLLATERAL AGENT. Any corporation or
association into which the Collateral Agent shall be merged, or with which it
shall be consolidated, or any corporation or association resulting from any
merger or consolidation to which the Collateral Agent shall be a party, or any
corporation or association which shall purchase all or substantially all of the
corporate trust business of the Collateral Agent shall be the Collateral Agent
under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto.
Section 6.10 ADDITIONAL CO-COLLATERAL AGENTS; SEPARATE COLLATERAL
AGENTS.
(a) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the Collateral
shall be located, or the Collateral Agent shall be advised by counsel
satisfactory to it that it is so necessary, or prudent in the interest of
the Beneficiaries, or the Required Lender Representative shall in writing
so request, or the Collateral Agent shall deem it desirable for its own
protection in the performance of its duties hereunder, the Collateral Agent
shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more persons
approved by the Collateral Agent either to act as co-collateral agent or
co-collateral agents of all or any of the Collateral, jointly with the
Collateral Agent originally named herein or any successor or successors, or
to act as separate collateral agent or collateral agents of any such
property. In the event BMCA shall not have joined in the execution of such
instruments and agreements within five days after the receipt of a written
request from the Collateral Agent so to do, or in case an Actionable
Default shall have occurred and be continuing, the Collateral Agent may act
under the foregoing provisions of this Section 6.10 without the concurrence
of BMCA, and BMCA hereby irrevocably appoints the Collateral Agent as its
agent and attorney to act for it under the foregoing provisions of this
Section 6.10 in either of such contingencies.
(b) Every separate collateral agent and every co-collateral agent,
other than any collateral agent which may be appointed as successor to
Citibank, N.A. shall, to the extent permitted by law, be appointed and act
and be such, subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon
the Collateral Agent in respect of the custody, control and management
of moneys, papers or securities shall be exercised solely by Citibank,
N.A. or its successors as Collateral Agent hereunder;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Collateral Agent hereunder shall be conferred or
imposed and exercised or performed by the Collateral Agent and such
separate collateral agent or separate collateral agents or
co-collateral agent or co-collateral agents, jointly, as shall be
provided in the instrument appointing such separate collateral agent
or
30
separate collateral agents or co-collateral agent or co-collateral
agents, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Collateral
Agent shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations shall be
exercised and performed by such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents;
(iii) no power given hereby to, or which it is provided hereby
may be exercised by, any such co-collateral agent or co-collateral
agents or separate collateral agent or separate collateral agents,
shall be exercised hereunder by such co-collateral agent or
co-collateral agents or separate collateral agent or separate
collateral agents, except jointly with, or with the consent in writing
of, the Collateral Agent, anything herein contained to the contrary
notwithstanding;
(iv) no collateral agent hereunder shall be personally liable by
reason of any act or omission of any other collateral agent hereunder;
and (v) the Collateral Agent, at any time by an instrument in writing,
may accept the resignation of or remove any such separate collateral
agent or co-collateral agent with or without cause, and in that case
may by an instrument in writing executed by the Collateral Agent
appoint a successor to such separate collateral agent or co-collateral
agent, as the case may be, anything herein contained to the contrary,
notwithstanding. In the event that BMCA shall not have joined in the
execution of any such instrument within five days after the receipt of
a written request from the Collateral Agent so to do, or in case an
Actionable Default shall have occurred and be continuing, the
Collateral Agent shall have the power to accept the resignation of or
remove any such separate collateral agent or co-collateral agent and
to appoint a successor without the concurrence of BMCA; BMCA hereby
irrevocably appointing the Collateral Agent its agent and attorney to
act for it in such connection in either of such contingencies. In the
event that the Collateral Agent shall have appointed a separate
collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents as above provided, it may at any time, by an
instrument in writing, accept the resignation of or remove any such
separate collateral agent or co-collateral agent, the successor to any
such separate collateral agent or co-collateral agent to be appointed
by the Collateral Agent as hereinabove provided in this Section 6.10.
SECTION 7. RELEASE OF COLLATERAL.
Section 7.1 CONDITIONS TO RELEASE OF COLLATERAL.
(a) Subject to this Section 7.1(a) and Section 7.2, the Collateral
Agent shall release its security interest in all of the Collateral on the
earliest of:
(i) such date as is reasonably practicable after the date on
which the Collateral Agent shall have received written notice from the
Borrower to the effect that (A) all the Priority Obligations shall
have been paid in full in cash and the unfunded commitments, if any,
of each Beneficiary thereof shall have been
31
terminated with one or more of the following: (x) the proceeds of
unsecured indebtedness (including any Refinancing (as defined in the
Senior Note Indentures) of the Priority Obligations) of the Borrower
or any of its Subsidiaries permitted under the Senior Note Indentures,
(y) the proceeds of secured indebtedness (including any Refinancing
(as defined in the Senior Note Indentures) of the Priority
Obligations) permitted under the Senior Note Indentures, provided that
the Senior Note Obligations shall be secured by the same collateral as
shall secure such secured indebtedness on terms and conditions,
including priority, no more onerous to the Beneficiaries of the Senior
Note Obligations than those contained in the Security Agreement and
this Agreement or (z) cash on hand of the Borrower and its
Subsidiaries that is not prohibited by the terms of the Senior Note
Indentures from being applied to the repayment of the Priority
Obligations, and (B) accrued and unpaid Collateral Agent's Fees shall
have been paid in full; provided that the Collateral Agent shall not
release its security interest in the Collateral if (I) the repayment
of the Priority Obligations was not permitted under the Senior Note
Indentures, (II) an event of default under the Senior Note Indentures
or the 2003 Credit Agreement shall exist at the time of such repayment
(including if BMCA is the subject of any bankruptcy proceedings) or
(III) the cash for such repayment was obtained through the concurrent
sale of assets of BMCA or its Subsidiaries; or
(ii) the date on which (A) all the Secured Debt shall have been
paid in full in cash and the unfunded commitments, if any, of each
Beneficiary shall have been terminated and (B) accrued and unpaid
Collateral Agent's Fees shall have been paid in full; or
(iii) the date which is 3 days after the date on which (A) the
Collateral Agent shall have received written instructions from all
Lender Representatives instructing the Collateral Agent to release its
security interest in all of the Collateral, and (B) accrued and unpaid
Collateral Agent's Fees shall have been paid in full.
(b) Subject to this Section 7.1(b) and Section 7.2, the Collateral
Agent shall release its security interest in specific items or portions of
the Collateral on the date which is no later than 3 Business Days after the
date on which (i) the Collateral Agent shall have received written
instructions from the Required Lender Representative instructing the
Collateral Agent to release its security interest in specific items or
portions of the Collateral, and (ii) accrued and unpaid Collateral Agent's
Fees shall have been paid in full.
(c) Notwithstanding anything contained in this Section 7.1 to the
contrary, the Required Lender Representative shall not instruct the
Collateral Agent to release its security interest in specific portions of
the Collateral without the consent of the Senior Note Trustees except to
the extent that (i) the net cash proceeds of the Collateral so released are
used to pay amounts owing under the Priority Obligations, and, to the
extent provided for in this Agreement, the Senior Notes, (ii) the release
of Collateral is expressly permitted or required by the terms of the 2003
Credit Agreement or the Security
32
Documents, as such agreements are in effect on the Effective Date (as
defined in the 2003 Credit Agreement), (iii) the release is required as a
matter of law or (iv) the Required Lenders (under and as defined in the
2003 Credit Agreement) make a determination that maintaining such
Collateral would be materially adverse to all of the Secured Parties.
(d) Notwithstanding anything to the contrary herein or in any other
Loan Document, for the avoidance of doubt, the Borrower has no obligation,
and shall not be required, to refinance the 2003 Obligations or any other
Priority Obligations with secured debt and, if BMCA elects to refinance any
such Priority Obligations with unsecured debt, upon the payment in full of
such Priority Obligations outstanding immediately prior to such
refinancing, the payment of the Collateral Agent's Fees, then due and owing
at such time, and the compliance with all other terms and conditions
specified in this Section 7.1, the Collateral Agent shall be required to
release its security interest in the Collateral.
Section 7.2 ACTIONS FOLLOWING RELEASE OF THE COLLATERAL. To the extent
that the Collateral Agent is required to release Collateral in accordance with
Section 7.1, or the security interest in any Collateral granted pursuant to any
of the Security Documents is otherwise terminated or released in accordance with
the terms thereof, all right, title and interest of the Collateral Agent in, to
and under such Collateral and the security interest of the Collateral Agent
therein shall terminate and shall revert to the applicable Grantor or its
successors and assigns, and the estate, right, title and interest of the
Collateral Agent therein shall thereupon cease, terminate and become void.
Following such request, instructions or other termination or release, the
Collateral Agent shall, upon the written request of applicable Grantor or its
successors or assigns and at the cost and expense of the Grantors, or their
successors or assigns, execute such instruments and take such other actions as
are necessary or desirable to terminate any such security interest and otherwise
to effectuate the release of the specified portions of the Collateral from the
lien of such security interest. Such termination and release shall be without
prejudice to the rights of the Collateral Agent or any successor collateral
agent to charge and be reimbursed for any expenditures which it may thereafter
incur in connection therewith.
SECTION 8. AGREEMENTS AMONG BENEFICIARIES.
Section 8.1 OTHER AGREEMENTS AMONG BENEFICIARIES.
Each Beneficiary by its acceptance of the benefits of this Agreement
and any Security Documents and the Collateral shall be deemed to have:
(a) agreed that should it obtain, receive or take any Collateral (by
means of set-off, recoupment or otherwise), or recover any amounts under
any Security Document, at any time after the Collateral Agent has received
a Notice of Default from the Required Lender Representative, then the
received Collateral or the amount recovered shall be delivered to the
Collateral Agent for distribution in accordance with Section 4.4; and
(b) agreed that any recovery of Collateral by any Beneficiary with
respect to the Obligations as a result of enforcement of any consensual or
non-consensual lien or security interest on any Collateral shall be
remitted to the Collateral Agent for distribution in accordance with
Section 4.4.
33
Section 8.2 PAYMENT OF COLLATERAL AGENT'S FEES. In the event the
Grantors do not pay the Collateral Agent's Fees, the Collateral Agent shall have
the right, but not the obligation, to withdraw the Collateral Agent's Fees from
the Cash Collateral Account. In addition, in the event the Grantors do not pay
the Collateral Agent's Fees, each Beneficiary (other than the Collateral Agent)
by its acceptance of the benefits of this Agreement and any Security Documents
and the Collateral shall be deemed to have agreed that any Proceeds of
Collateral to which it shall be entitled shall be available to pay the
Collateral Agent's Fees ratably in accordance with the proportion of the Secured
Debt held by such Beneficiary or, if there has been any recovery of the Secured
Debt, in accordance with the proportion of (a) the Secured Debt recovered by
such Beneficiary to (b) the aggregate amount of Secured Debt recovered by all
Beneficiaries. In the event that such Proceeds of Collateral are not sufficient
to pay all such Collateral Agent's Fees, each Beneficiary (other than
Beneficiaries of the Senior Note Obligations) agrees to pay the amount of such
shortfall in the same proportions as described above with respect to the
allocation of Proceeds of Collateral, but only to the extent that such
Collateral Agent's Fees do not represent indemnification for damages or other
amounts sought by any holder of the Senior Note Obligations or the Senior Note
Trustees (such indemnification amounts being "SENIOR NOTE INDEMNIFICATION
AMOUNTS"), it being understood that any amounts received by the Collateral Agent
at any time (from any Grantor, Proceeds of Collateral or otherwise) with respect
to Collateral Agent's Fees owing to it at such time, shall be applied by the
Collateral Agent to Senior Note Indemnification Amounts owing to it only after
all other Collateral Agent's Fees owing to it have been paid in full.
Section 8.3 INVALIDATION OF PAYMENTS. To the extent that any of the
Beneficiaries receives payments on the Secured Debt or receives Proceeds of
Collateral which are subsequently invalidated, declared to be fraudulent or
preferential, or are required to be repaid to a collateral agent, receiver or
any other Person under the Bankruptcy Code or under state, federal or common
law, then, to the extent the payments or Proceeds are so repaid, the Secured
Debt or part thereof which was intended to be satisfied shall be revived and
will continue to be in full force and effect as if those payments or Proceeds
had never been received by such Beneficiary.
SECTION 9. OTHER PROVISIONS.
Section 9.1 AMENDMENTS, SUPPLEMENTS AND WAIVERS.
(a) Except as set forth in Section 9.1(b), this Agreement may not be
amended, revised, restated or supplemented without the prior written
consent of each Lender Representative, BMCA and the Collateral Agent.
(b) The Grantors, the 2003 Administrative Agent and the Collateral
Agent, at any time and from time to time, may enter into additional
Security Documents or one or more agreements supplemental hereto or to any
Security Document, in form satisfactory to the Collateral Agent:
(i) to mortgage, pledge or grant a security interest in personal
property of a type or category which is set forth in Section 1.3 of
the Security Agreement
34
or in any real property in favor of the Collateral Agent as additional
security for the Secured Debt pursuant to any Security Document, or
(ii) to cure any ambiguity, to correct or supplement any
provision herein or in any Security Document which may be defective or
inconsistent with any other provision herein or therein or make any
other amendment or modification of any Security Document.
Section 9.2 NOTICES. All notices, requests, demands and other
communications provided for or permitted hereunder shall be in writing
(including telecopy), shall be sent by mail, telecopy or hand delivery and,
except as otherwise provided in this Agreement, the cost thereof shall be for
the sole account of the Grantors and shall be added to the Obligations,
(a) If to any signatory hereto, to the address of such signatory set
forth on Schedule 9.2.
(b) If to any other Beneficiary, to such Beneficiary's Lender
Representative set forth on Schedule 9.2.
All such notices, requests, demands and communications shall, to be effective
hereunder, be in writing or by a telecopy device capable of creating a written
record, and shall be deemed to have been given or made when delivered by hand or
five days after its deposit in the mail, first class or air postage prepaid, or
in the case of notice by such a telecopy device, when properly transmitted if on
the same day the sender sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid); provided, however, that any
notice, request, demand or other communication to the Collateral Agent shall not
be effective until received.
Section 9.3 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate 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; provided that this Agreement shall be construed so as to
give effect to the intention expressed in Section 3.10.
Section 9.4 DEALINGS WITH THE GRANTORS. Upon any application or demand
by BMCA to the Collateral Agent to take or permit any action under any of the
provisions of this Agreement or any Security Document BMCA shall furnish to the
Collateral Agent, with copies to each Lender Representative, a certificate
signed by a Responsible Officer of BMCA stating that all conditions precedent,
if any, provided for in this Agreement or any Security Document relating to the
proposed action have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement or any Security
Document, relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Section 9.5 CLAIMS AGAINST THE COLLATERAL AGENT. Any claims or causes
of action which a Beneficiary or a Grantor shall have against the Collateral
Agent shall survive the termination of this Agreement and the release of the
Collateral hereunder.
Section 9.6 BINDING EFFECT.
35
(a) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and shall inure to the benefit of the
Beneficiaries and their respective successors and assigns, and nothing
herein or in any Security Document is intended or shall be construed to
give any other Person any right, remedy or claim under, to or in respect of
this Agreement, any Security Document or the Secured Debt Collateral.
(b) The Grantors have jointly and severally agreed in Sections 5.3,
5.4, 5.5 and 5.6 to pay on demand the Collateral Agent's Fees. In the event
the Grantors fail to pay the Collateral Agent's Fees, each Beneficiary
(other than the Collateral Agent) has agreed in Section 8.5 to pay the
Collateral Agent's Fees, ratably in accordance with the proportion of the
Secured Debt held by such Beneficiary or, if there has been any recovery of
the Secured Debt, in accordance with the proportion of (i) the Secured Debt
recovered by such Beneficiary to (ii) the aggregate amount of Secured Debt
recovered by all Beneficiaries, all as set forth in this Agreement.
Section 9.7 CONFLICT WITH OTHER AGREEMENTS. The parties agree that in
the event of any conflict between the provisions of this Agreement and the
provisions of any of the Security Documents, the provisions of this Agreement
shall control.
Section 9.8 GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
Section 9.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
Section 9.10 CONSENT TO JURISDICTION. EACH OF THE GRANTORS HEREBY
IRREVOCABLY SUBMITS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY SECURITY DOCUMENTS AND EACH HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING IN THIS SECTION SHALL LIMIT THE RIGHT OF THE
COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST ANY GRANTOR IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY GRANTOR AGAINST THE
COLLATERAL AGENT OR ANY SECURED PARTY OR ANY AFFILIATE OF THE COLLATERAL AGENT
OR ANY SECURED PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH ANY COLLATERAL
36
DOCUMENT SHALL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN NEW YORK CITY.
EACH GRANTOR AGREES THAT SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF
THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING TO SUCH GRANTOR AT ITS ADDRESS FOR NOTICES HEREUNDER. EACH
GRANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
37
Section 9.11 WAIVER OF JURY TRIAL. EACH GRANTOR, LENDER REPRESENTATIVE
AND BY ITS ACCEPTANCE OF THE BENEFITS THEREOF, EACH BENEFICIARY AND THE
COLLATERAL AGENT HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH
ANY COLLATERAL DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
IN EVIDENCE OF THE FOREGOING, the parties hereto have executed
this Agreement or caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
BUILDING MATERIALS CORPORATION OF AMERICA
By: /s/ John Maitner
-----------------------------------------
Name: John Maitner
Title: Vice President and Treasurer
Citibank, N.A., as Collateral Agent
By: /s/ Barbara E. Bennett
-----------------------------------------
Name: Barbara E. Bennett
Title: Assistant Vice President
CITICORP USA, INC., not individually, but
solely as 2003 Administrative Agent
By: /s/ Michael M. Schadt
-----------------------------------------
Name: Michael M. Schadt
Title: Vice President
THE BANK OF NEW YORK, not individually, but
solely as Senior Note Trustee under the 2006
Indenture
By: /s/ Marie E. Trimboli
-----------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
38
THE BANK OF NEW YORK, not individually, but
solely as Senior Note Trustee under the 2007
Indenture
By: /s/ Marie E. Trimboli
-----------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
THE BANK OF NEW YORK, not individually, but
solely as Senior Note Trustee under the 2005
Indenture
By: /s/ Marie E. Trimboli
-----------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
THE BANK OF NEW YORK, not individually, but
solely as Senior Note Trustee under the 2008
Indenture
By: /s/ Marie E. Trimboli
-----------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
THE BANK OF NEW YORK, not individually, but
solely as Senior Note Trustee under the 2002
Indenture
By: /s/ Marie E. Trimboli
-----------------------------------------
Name: Marie E. Trimboli
Title: Assistant Vice President
39
BMCA INSULATION PRODUCTS INC.
BUILDING MATERIALS INVESTMENT CORPORATION
BUILDING MATERIALS MANUFACTURING CORPORATION
DUCTWORK MANUFACTURING CORPORATION
GAF LEATHERBACK CORP.
GAF MATERIALS CORPORATION (CANADA)
GAF PREMIUM PRODUCTS INC.
GAF REAL PROPERTIES, INC.
GAFTECH CORPORATION
LL BUILDING PRODUCTS INC.
PEQUANNOCK VALLEY CLAIM SERVICE COMPANY, INC.
SOUTH PONCA REALTY CORP.
WIND GAP REAL PROPERTY
ACQUISITION CORP.
By: /s/ John Maitner
------------------------------------------
Name: John Maitner
Title: Vice President and Treasurer
1
SCHEDULE 9.2
LIST OF ADDRESSES FOR NOTICES
BUILDING MATERIALS CORPORATION OF AMERICA:
Building Materials Corporation of America: Tel.: (973) 628-3000
1361 Alps Road Fax: (973) 628-3326
Wayne, New Jersey 07470
Attention: Treasurer
CITIBANK, N.A., AS COLLATERAL AGENT UNDER THE COLLATERAL AGENT AGREEMENT:
Citibank, N.A. Tel.: (212) 657-5810
111 Wall St., 14th Floor Fax: (212) 657-2762
New York, NY 10005
Attention: Citibank Agency & Trust
CITICORP USA, INC., AS 2003 ADMINISTRATIVE AGENT:
Citicorp USA, Inc. Tel.: (212) 816-2432
Asset Based Finance Fax: (212) 816-2613
388 Greenwich Ave., 19th Floor
New York, NY 10013
Attention: Michael Schadt
THE BANK OF NEW YORK, AS SENIOR NOTE TRUSTEE UNDER THE 2006 INDENTURE:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
THE BANK OF NEW YORK, AS SENIOR NOTE TRUSTEE UNDER THE 2007 INDENTURE:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
2
THE BANK OF NEW YORK, AS SENIOR NOTE TRUSTEE UNDER THE 2005 INDENTURE:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
THE BANK OF NEW YORK, AS SENIOR NOTE TRUSTEE UNDER THE 2008 INDENTURE:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee
Administration
THE BANK OF NEW YORK, AS SENIOR NOTE TRUSTEE UNDER THE 2002 INDENTURE:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust Trustee
Administration