SECURITY AGREEMENT
dated as of August 8, 2008 (this “
Agreement ”), among QUICKSILVER RESOURCES INC.,
a Delaware corporation (the “ Borrower
”), the SUBSIDIARIES of the Borrower whose signatures appear
below or who in the future become parties hereto as provided in
Section 7.11 (collectively, and together with the Borrower,
the “ Grantors ”), and CREDIT SUISSE,
Cayman Islands Branch (“ Credit Suisse
”), in its capacity as collateral agent for the Secured
Parties (in such capacity, together with its successors and assigns
in such capacity, the “ Collateral Agent
”). Capitalized terms used in this Agreement have the
meanings assigned to them in Article I below.
WHEREAS, the
Borrower intends to acquire (the “ Acquisition
”) certain producing, leasehold, royalty, midstream and other
assets associated with the Barnett Shale formation in
Texas.
WHEREAS, in
connection with the Acquisition, the Borrower, the Lenders and
Credit Suisse, as Administrative Agent, are entering into the
Credit Agreement, under which the Borrower may obtain Loans in an
aggregate principal amount not in excess of
$700,000,000.
WHEREAS, it is a
condition precedent to the obligations of the Lenders to make Loans
pursuant to the Credit Agreement that the Grantors create, in favor
of the Collateral Agent, for the benefit of the Term Secured
Parties, Liens on the Collateral as security for the indefeasible
payment in full in cash and performance of the Term
Obligations.
WHEREAS, the
Existing Senior Notes Indenture provides that the Grantors may not
create, incur or suffer to exist Liens on the Collateral created
under the Security Documents unless such Liens are “Permitted
Liens” under and as defined in the Existing Senior Notes
Indenture or, contemporaneously with the incurrence of such Liens,
effective provision is made to secure the Existing Senior Notes
Obligations equally and ratably with the indebtedness secured by
such Liens for so long as such indebtedness is so
secured.
WHEREAS, each
Grantor has duly authorized the execution, delivery and performance
of this Agreement.
WHEREAS, it is in
the best interests of each Grantor to execute this Agreement
inasmuch as such Grantor will derive substantial direct and
indirect benefits from the making of Loans to the Borrower by the
Lenders pursuant to the Credit Agreement.
NOW THEREFORE, in
consideration of the foregoing and the mutual covenants and
obligations herein set forth and for other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, and in order to induce the Lenders to make Loans
pursuant to the Credit Agreement, the parties hereto agree as
follows:
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SECTION 1.01.
Certain Terms . The following terms when used in this
Agreement, including its preamble and recitals, shall have the
following meanings:
“
Acquisition ” has the meaning given to such
term in the recitals.
“
Agreement ” has the meaning given to such term
in the preamble.
“
Borrower ” has the meaning given to such term
in the preamble.
“
Collateral ” has the meaning given to such term
in Section 2.01; provided , that, for purposes of
Articles V and VI and Sections 4.07, and 7.13, the term
“Collateral” shall have the meaning given thereto in
the Credit Agreement.
“
Collateral Account ” has the meaning given to
such term in Section 4.01(b).
“
Collateral Agent ” has the meaning given to
such term in the preamble.
“
Combined Loan Documents ” means the Loan
Documents and the Existing Senior Notes Documents.
“
Contingent Obligations ” means contingent
obligations for indemnification, expense reimbursement, tax
gross-up or yield protection as to which no claim has been
made.
“
Credit Agreement ” means the Credit Agreement
dated as of August 8, 2008, among the Borrower, the Lenders
and Credit Suisse, as Administrative Agent.
“
Credit Suisse ” has the meaning given to such
term in the preamble.
“
Equipment ” has the meaning given to such term
in Section 2.01(a).
“
Excluded Collateral ” means the collective
reference to:
(a) any vehicles,
or any equipment the ownership of which is evidenced by
certificate(s) of title, now or hereafter owned by any
Grantor;
(b) any Hedging
Agreements to which any Grantor is now or hereafter party, or any
computer and software licenses now or hereafter held by any
Grantor, that is, in each case, nonassignable by its terms without
the consent of the other party or parties thereto or the licensor
or sublicensor thereof, as applicable (other than to the extent
that such terms would be rendered ineffective pursuant to the
U.C.C., including Sections 9-406, 9-407, 9-408 or 9-409 of the
U.C.C. of any relevant jurisdiction, and other than to the extent
all necessary consents to grant and perfection of the Collateral
Agent’s Liens thereon have been obtained, and, in any event,
immediately upon the ineffectiveness, lapse or termination of such
terms or the obtainment of such consents, such Hedging Agreements
or licenses shall cease to constitute Excluded
Collateral);
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(c) any
“Pledged Collateral” as defined in the Pledge
Agreement;
(d) any voting
Equity Interests in a Foreign Subsidiary to the extent such Equity
Interests represent more than 65% of the total combined voting
power of all classes of voting Equity Interests of such Foreign
Subsidiary; and
(e)
(i) property subject to Liens permitted by clause (o) of
the definition of the term “Permitted Encumbrances” in
the Credit Agreement solely in the event and to the extent that a
grant or perfection of a Lien in favor of the Collateral Agent on
any such property is prohibited by or results in a breach or
termination of, or constitutes a default under, the documentation
governing such Liens or the obligations secured by such Liens
(other than to the extent that such terms would be rendered
ineffective pursuant to the U.C.C., including Sections 9-406,
9-407, 9-408 or 9-409 of the U.C.C. of any relevant jurisdiction,
and other than to the extent all necessary consents to the grant
and perfection of the Collateral Agent’s Liens thereon have
been obtained) and, in any event, immediately upon the
ineffectiveness, lapse or termination of such terms or the
obtainment of such consents, such property shall cease to
constitute Excluded Collateral, (ii) any personal property
lease, contract, permit, license, franchise or letter of credit
right solely (A) with respect to contracts and other
agreements to the extent entered into prior to the date hereof and
(B) in the event and to the extent that a grant or perfection of a
Lien in favor of the Collateral Agent on such personal property
lease, contract, permit, license, franchise or letter of credit
right is prohibited by law or results in a breach or termination
of, or constitutes a default under, any such personal property
lease, contract, permit, license, franchise or letter of credit
right (other than to the extent that such law or terms would be
rendered ineffective pursuant to the U.C.C., including
Sections 9-406, 9-407, 9-408 or 9-409 of the U.C.C. of any
relevant jurisdiction, and other than to the extent all necessary
consents to the grant and perfection of the Collateral
Agent’s Liens thereon have been obtained) and, in any event,
immediately upon the ineffectiveness, lapse or termination of such
law or terms or the obtainment of such consents, such personal
property lease, contract, permit, license, franchise or letter of
credit right shall cease to constitute Excluded Collateral and
(iii) any fee interest in real property.
“
Existing Senior Notes Obligations ” means
Indebtedness (as defined in the Existing Senior Notes Indenture as
in effect on the date hereof) due with respect to (a) the
Existing Senior Notes and (b) the Subsidiary Guarantee (as
defined in the Existing Senior Notes Indenture as in effect on the
date hereof) of any Grantor.
“
Existing Senior Notes Secured Parties ” has the
meaning given to the term “Holders”, as defined in the
Existing Senior Notes Indenture as in effect on the date
hereof.
“
First Lien Obligations ” has the meaning given
to such term in the Intercreditor Agreement.
“
Grantors ” has the meaning given to such term
in the preamble.
“
Indemnitees ” has the meaning given to such
term in Section 7.02(a).
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“
Intercreditor Agreement ” means the
Intercreditor Agreement dated as of August 8, 2008, among the
Borrower, the other Grantors, JPMorgan Chase Bank, N.A., as the
First Lien Collateral Agent (as defined therein), and Credit
Suisse, as the Second Lien Collateral Agent (as defined
therein).
“
Inventory ” has the meaning given to such term
in Section 2.01(b).
“
Perfection Certificate ” means the Perfection
Certificate delivered by the Borrower on the date hereof pursuant
to Article IV of the Credit Agreement, together with all
schedules and attachments thereto.
“
Receivables ” has the meaning given to such
term in Section 2.01(c).
“
Related Contracts ” has the meaning given to
such term in Section 2.01(c).
“
Secured Obligations ” means, collectively, the
Term Obligations and the Existing Senior Notes
Obligations.
“
Secured Parties ” means, collectively, the Term
Secured Parties and the Existing Senior Notes Secured
Parties.
“ Term
Secured Parties ” means, collectively, (a) the
Lenders, (b) the Administrative Agent (including in its
capacity as the Collateral Agent hereunder), (c) each other
Person to whom any of the Term Obligations (including
indemnification obligations) is owed and (d) the successors
and assigns of each of the foregoing.
“
U.C.C. ” means the Uniform Commercial Code (or
any similar or equivalent legislation) as in effect from time to
time in the State of Texas or in any other applicable
jurisdiction.
SECTION 1.02.
Terms Generally . Unless otherwise defined herein,
capitalized terms used in this Agreement, including its preamble
and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.03.
U.C.C. Definitions . Unless otherwise defined herein,
terms for which meanings are provided in the U.C.C. are used in
this Agreement, including its preamble and recitals, with such
meanings.
SECTION 1.04.
Rules of Construction . The rules of construction set
forth in Section 1.02 of the Credit Agreement shall also apply
to this Agreement, mutatis mutandis .
ARTICLE II
Security Interest
SECTION 2.01.
Grant of Security Interest . Each Grantor hereby
pledges, hypothecates, assigns, charges, mortgages, delivers and
transfers to the Collateral Agent, for the benefit of the Secured
Parties, and hereby grants to the Collateral Agent, for the benefit
of the Secured Parties, a continuing security interest in all of
such Grantor’s right, title and interest, whether
now
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existing or
hereafter arising or acquired, in and to the following property
(any and all of the following being the “
Collateral ”):
(a) all equipment
in all of its forms of any Grantor, including all machinery,
apparatus, installation facilities and other tangible personal
property, and all parts thereof and all accessions, additions,
attachments, improvements, substitutions, replacements and proceeds
thereto and therefor (any and all of the foregoing being the
“ Equipment ”);
(b) all inventory
in all of its forms of any Grantor, wherever located, including (i)
all oil, gas or other hydrocarbons and all products and substances
derived therefrom, all raw materials and work in process therefor,
finished goods thereof, and materials used or consumed in the
manufacture or production thereof, (ii) all goods in which
such Grantor has an interest in mass or a joint or other interest
or right of any kind (including goods in which such Grantor has an
interest or right as consignee) and (iii) all goods which are
returned to or repossessed by such Grantor, and all accessions
thereto, products thereof and documents therefor (any and all such
inventory, materials, goods, accessions, products and documents
being the “ Inventory ”);
(c) all accounts,
money, payment intangibles, deposit accounts (including the
Collateral Accounts and all amounts on deposit therein and all cash
equivalent investments carried therein and all proceeds thereof),
contracts, contract rights, all rights constituting a right to the
payment of money, chattel paper, documents, documents of title,
instruments, letters of credit, letter-of-credit rights and general
intangibles of any Grantor, whether or not earned by performance or
arising out of or in connection with the sale or lease of goods or
the rendering of services, including all moneys due or to become
due in repayment of any loans or advances, and all rights of any
Grantor now or hereafter existing in and to all security
agreements, guaranties, leases, agreements and other contracts
securing or otherwise relating to any such accounts, money, payment
intangibles, deposit accounts, contracts, contract rights, rights
to the payment of money, chattel paper, documents, documents of
title, instruments, letters of credit, letter-of-credit rights and
general intangibles (any and all such accounts, money, payment
intangibles, deposit accounts, contracts, contract rights, rights
to the payment of money, chattel paper, documents, documents of
title, instruments, letters of credit, letter-of-credit rights and
general intangibles being the “ Receivables
”, and any and all such security agreements, guaranties,
leases, agreements and other contracts being the “
Related Contracts ”);
(d) all books,
correspondence, credit files, records, invoices, tapes, cards,
computer runs, writings, data bases, information, paper and
documents and other property relating to, used or useful in
connection with, evidencing, embodying, incorporating or referring
to, any of the foregoing in this Section 2.01;
(e) all
Governmental Approvals, including any permits, to the extent a
security interest may be granted therein; provided that any
Governmental Approval that by its terms or by operation of law
would be void, voidable, terminable or revocable if mortgaged,
pledged or assigned hereunder is expressly excepted and excluded
from the Liens and terms of this Security Agreement, including the
grant of security interest in this Section 2.01 (other than to
the extent that such terms or law would be rendered
6
ineffective
pursuant to the U.C.C., including Sections 9-406, 9-407, 9-408
or 9-409 of the U.C.C. of any relevant jurisdiction, and other than
to the extent all necessary consents to grant and perfection of the
Collateral Agent’s Liens thereon have been obtained) and, in
any event, immediately upon the ineffectiveness, lapse or
termination of such terms or law or the obtainment of such
consents, such Governmental Approval shall cease to be so excepted
and excluded;
(f) all interest
rate swap agreements, interest rate cap agreements and interest
rate collar agreements, and all other agreements or arrangements
designed to protect any Grantor against fluctuations in interest
rates or currency exchange rates and all commodity hedge, commodity
swap, exchange, forward, future, floor, collar or cap agreements,
fixed price agreements and all other agreements or arrangements
designed to protect such Grantor against fluctuations in commodity
prices (including Hedging Agreements);
(g) to the extent
not included in the foregoing, all bank accounts, investment
property, fixtures and supporting obligations;
(h) all of any
Grantor’s other assets, property and rights of every kind and
description and interests therein to the extent not included in the
foregoing, including all “Accounts”,
“Certificated Securities”, “Chattel Paper”,
“Commercial Tort Claims” set forth on Schedule I
(as such Schedule may be supplemented from time to time pursuant to
Section 4.03), “Commodity Accounts”, “Commodity
Contracts”, “Deposit Accounts”,
“Documents”, “Equipment”,
“Fixtures”, “General Intangibles”,
“Goods”, “Instruments”,
“Inventory”, “Investment Property”,
“Letters of Credit”, “Letter-of-Credit
Rights”, “Money”, “Proceeds”,
“Securities”, “Securities Account”,
“Security Entitlements”, “Supporting
Obligations” and “Uncertificated Securities” as
such terms are defined in the U.C.C., but excluding copyrights,
patents, trademarks and other intellectual property; and
(i) all
accessions, substitutions, replacements, products, offspring,
rents, issues, profits, returns, income and proceeds of and from
any and all of the foregoing Collateral (including proceeds which
constitute property of the types described in any of the foregoing
clauses and proceeds deposited from time to time in any lockbox of
any Grantor and, to the extent not included in the foregoing, all
payments under insurance (whether or not the Collateral Agent is
the loss payee thereof), or any condemnation award, indemnity,
warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing
Collateral);
provided,
however , that,
notwithstanding anything to the contrary contained herein, the
Collateral shall not include, and the Collateral Agent and the
Secured Parties shall not by virtue of this Agreement have a Lien
on, any Excluded Collateral.
SECTION 2.02.
Security for Secured Obligations . The Collateral
secures the indefeasible payment in full in cash and performance of
all the Secured Obligations now or hereafter existing, whether for
principal, interest, costs, fees, expenses or otherwise.
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SECTION 2.03.
Continuing Security Interest . (a) This
Agreement shall create a continuing security interest in the
Collateral, and (i) shall remain in full force and effect
until the payment in full in cash of all the Term Obligations
(other than Contingent Obligations), (ii) shall be binding
upon each Grantor and its successors, transferees and assigns and
(iii) shall inure, together with the rights and remedies of
the Collateral Agent hereunder, to the benefit of the Collateral
Agent and the other Secured Parties.
(b) Upon
the payment in full in cash of all the Term Obligations (other than
Contingent Obligations), the security interest granted herein
(including the security interest granted herein to secure the
Existing Senior Notes Obligations) shall terminate with respect to
all Collateral and all rights to the Collateral shall revert to the
applicable Grantors.
(c) The
security interests in any Collateral created hereby shall
automatically be released, and any Subsidiary that is a Grantor
shall automatically be released from its obligations hereunder, in
each case at the time or times and in the manner and to the extent
set forth in Section 10.17 of the Credit Agreement or in the
Intercreditor Agreement.
(d) In
connection with any termination or release pursuant to this
Section 2.03, the Collateral Agent shall execute and deliver
to any Grantor, at such Grantor’s expense, all documents that
such Grantor shall reasonably request to evidence such termination
or release. Any execution and delivery of documents pursuant to
this paragraph shall be without recourse to or warranty by the
Collateral Agent.
SECTION 2.04.
Grantors Remain Liable . Anything herein to the
contrary notwithstanding, (a) each Grantor shall remain liable
under the contracts and agreements included in the Collateral to
the extent set forth therein, and shall perform all of its duties
and obligations under such contracts and agreements, to the same
extent as if this Agreement had not been executed; (b) the
exercise by the Collateral Agent of any of its rights hereunder
shall not release any Grantor from any of its duties or obligations
under any contracts and agreements included in the Collateral; and
(c) neither the Collateral Agent nor any other Secured Party
shall have any obligation or liability under any such contracts or
agreements included in the Collateral by reason of this Agreement,
nor shall the Collateral Agent or any other Secured Party be
obligated to perform any of the obligations or duties of any
Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder, unless the Collateral Agent
shall have agreed to assume the obligations of such Grantor
thereunder.
SECTION 2.05.
Security Interest Absolute . All rights of the
Collateral Agent hereunder, the security interests granted to the
Collateral Agent, for the benefit of the Secured Parties, hereunder
and all obligations of the Grantors hereunder shall be absolute and
unconditional, irrespective of (a) any lack of validity,
legality or enforceability of any Combined Loan Document;
(b) the failure of any Secured Party (i) to assert any
claim or demand or to enforce any right or remedy against any
Grantor or any other Person (including any other guarantor) under
the provisions of any Combined Loan Document or otherwise or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, any Secured Obligations or any other
extension, compromise or renewal of any Secured Obligations;
(d) any reduction, limitation, impairment or termination of
any Secured Obligations
8
for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Grantor hereby
waives, to the extent permitted by applicable law, any right to or
claim of) any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Secured Obligations;
(e) any amendment to, rescission, waiver or other modification
of, or any consent to departure from, any of the terms of any
Combined Loan Document; (f) any addition, exchange, release,
surrender, or non-perfection of any collateral (including the
Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any
Secured Obligations; or (g) any other circumstances which
would otherwise constitute a defense available to, or a legal or
equitable discharge of, any Grantor or any surety or guarantor in
respect of any Secured Obligations or this Agreement.
SECTION 2.06.
Election of Remedies . If any Secured Party may,
under applicable law, proceed to realize its benefits under this
Agreement, any other Security Document or otherwise, either by
judicial foreclosure or by non-judicial sale or enforcement, such
Secured Party may, at its sole option, determine which of its
remedies or rights it may pursue without affecting any of the
rights and remedies for its benefit under this Agreement (it being
understood and agreed that nothing in this Section 2.06 shall
limit the provisions of Section 5.02). If, in the exercise of
any of its rights and remedies, any Secured Party shall forfeit any
of the rights or remedies for its benefit, including its right to
enter a deficiency judgment against any Grantor or any other
Person, whether because of any applicable laws pertaining to
“election of remedies” or the like, each Grantor hereby
consents to such action by such Secured Party and waives any claim
based upon such action, even if such action by such Secured Party
shall result in a full or partial loss of any rights of subrogation
that such Grantor might otherwise have had but for such action by
such Secured Party.
ARTICLE III
Representations and Warranties
Each Grantor
represents and warrants to the Collateral Agent, for the benefit of
the Secured Parties, as set forth in this
Article III.
SECTION 3.01.
Perfection Certificate . The information set forth in
the Perfection Certificate, including the exact legal name of each
Grantor, is correct and complete as of the date hereof.
SECTION 3.02.
Ownership, No Liens, Validity, etc . Each Grantor
owns the Collateral with respect to which it has purported to grant
a security interest hereunder free and clear of Liens, except for
Permitted Encumbrances. No effective financing statement or other
instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may
have been filed in favor of the Collateral Agent relating to this
Agreement and except for any filings in respect of Permitted
Encumbrances. This Agreement creates a valid security interest in
the Collateral, securing the payment of the Secured Obligations,
and, upon the proper filing of a U.C.C. financing statement with
the Secretary of State of the jurisdiction of each Grantor’s
organization, formation or incorporation, all filings necessary to
perfect such security interest, to the extent such security
interest can be perfected by the filing of a U.C.C.
9
financing
statement, shall have been taken and such security interest shall
be a first priority security interest (subject, with respect to
priority, to the priority of Liens securing the First Lien
Obligations as set forth in the Intercreditor Agreement and to
Permitted Encumbrances that have priority as a matter of
law).
SECTION 3.03.
Possession and Control . Each Grantor, or one or more
of its Subsidiaries, has exclusive possession and control of the
Equipment and Inventory.
Each Grantor
covenants and agrees that, so long as any Term Obligations (other
than Contingent Obligations) shall remain unpaid, such Grantor
will, unless the Required Lenders shall otherwise consent in
writing and subject to the Intercreditor Agreement, perform the
obligations set forth in this Article IV.
SECTION 4.01.
As to Receivables . (a) Each Grantor shall
(i) keep its principal place of business and chief executive
office and the office(s) where it keeps its records concerning the
Receivables at the addresses set forth with respect to such Grantor
in Sections 2(a) and 2(b) of the Perfection Certificate or in the
notice, if any, most recently delivered with respect to such
Grantor under Section 4.06 and (ii) hold and preserve
such records in accordance with its normal business
practices.
(b) Upon
written notice by the Collateral Agent to any Grantor to such
effect after the occurrence and during the continuance of an Event
of Default, all proceeds of Collateral received by such Grantor
during the continuance of such Event of Default shall be delivered
in kind to the Collateral Agent for deposit into a deposit account
of such Grantor maintained with, or subject to the control of, the
Collateral Agent (any such deposit account of any Grantor being
referred to herein as a “ Collateral Account
”). With respect to any such proceeds, until such Event of
Default is no longer continuing, unless the Collateral Agent
directs otherwise, (i) each Grantor shall not commingle any
such proceeds, and shall hold separate and apart from all other
property all such proceeds in express trust for the Collateral
Agent, for the benefit of the Secured Parties, until delivery
thereof is made to the Collateral Agent and (ii) no
funds, other than proceeds of Collateral, will be deposited in any
Collateral Account designated for the purpose of holding such
proceeds. The Collateral Agent agrees that it shall not give the
notice referred to in this paragraph unless it believes, acting
reasonably, that an Event of Default shall have occurred and is
continuing.
(c) Upon
the occurrence and during the continuance of an Event of Default,
the Collateral Agent shall have the right to apply any amount in
any Collateral Account to the payment of any Secured Obligations
which are due and payable in the manner set forth in
Section 6.03.
(d) Subject
to the rights of the Collateral Agent granted pursuant to the Loan
Documents, each Grantor shall have the right, with respect to and
to the extent of its collected funds in the Collateral Account, as
long as no Event of Default has occurred and is continuing, to
require the Collateral Agent, without any liability of the
Collateral Agent except for its own
10
gross
negligence or willful misconduct (IT BEING UNDERSTOOD THAT THE
COLLATERAL AGENT SHALL NOT BE LIABLE TO ANY SECURED PARTY FOR ANY
NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE)), (i) to invest
the amounts on deposit thereon in cash equivalent investments,
provided that, in the case of certificated securities, the
Collateral Agent (or its agent or bailee) shall retain possession
thereof as Collateral and, in the case of uncertificated
securities, the Collateral Agent may take such actions, including
registration of such securities in its name, as it shall determine
is necessary to perfect its security interest therein, and
(ii) to close such Collateral Account and return all funds,
together with interest and profits (if any) thereon, on deposit
therein to such Grantor.
SECTION 4.02.
As to Collateral . (a) Unless otherwise
restricted by the Combined Loan Documents, each Grantor
(i) may in the ordinary course of its business or as otherwise
permitted under the Loan Documents, at its own expense, sell,
transfer, lease or furnish under the contracts of service any of
the Collateral of such Grantor, and sell, transfer, use and
consume, in the ordinary course of its business or as otherwise
permitted under the Loan Documents, any raw materials, work in
process or materials held by such Grantor, (ii) will, at its
own expense, endeavor to collect, as and when due, all amounts due
with respect to any of the Collateral held by such Grantor in
accordance with its customary business practices or as otherwise
permitted by the Loan Documents, and, upon the occurrence and
during the continuance of an Event of Default, will take such
action with respect to such collection as the Collateral Agent may
request or, in the absence of such request, as such Grantor may
deem advisable, and (iii) may grant, in the ordinary course of
business and in accordance with its customary business practices,
to any Person obligated on any of the Collateral, any rebate,
refund or allowance to which such Person may be lawfully entitled,
and may accept, in connection therewith, the return of goods the
sale or lease of which shall have given rise to such Collateral.
Upon the occurrence and during the continuance of an Event of
Default, the Collateral Agent may, upon prior or concurrent written
notice to any Grantor, notify any Person obligated on any of the
Collateral of such Grantor to make payment to the Collateral Agent
for deposit to the Collateral Account of any amounts due or to
become due thereunder and enforce collection of any of the
Collateral of such Grantor by suit or otherwise and surrender,
release, or exchange all or any part thereof, or compromise or
extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder or evidenced thereby.
Each Grantor will, at its own expense, upon the occurrence and
during the continuance of an Event of Default and the written
request of the Collateral Agent, notify any Person obligated on any
of the Collateral of such Grantor to make payment to the Collateral
Agent for deposit to the Collateral Account of any amounts due or
to become due thereunder.
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