EXHIBIT 10.3
COLLATERAL TRUST
AGREEMENT
COLLATERAL TRUST AGREEMENT, dated as
of October 24, 2006, by and among ADVANCED MICRO DEVICES,
INC., a Delaware corporation (the “ Borrower ”),
the Subsidiaries of the Borrower listed on the signature pages
hereof (together with the Borrower and each other Subsidiary of the
Borrower which becomes a party hereto pursuant to
Section 6.11, the “ Obligors ”), and WELLS
FARGO BANK, N.A., a national banking association, as collateral
agent (the “ Collateral Agent ”).
W I T N E S
S E T H :
WHEREAS, in order to induce the
Lenders to enter into the Credit Agreement, dated as of the date
hereof (as amended, supplemented, amended and restated or otherwise
modified from time to time, the “ Credit Agreement
”), among the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto (the
“ Lenders ”), Morgan Stanley Senior Funding,
Inc., as syndication agent, Wells Fargo Bank, N.A., as collateral
agent, and Morgan Stanley Senior Funding, Inc., as administrative
agent for the Lenders, the Obligors granted Collateral Agent for
the benefit of the Secured Parties a Lien on the Collateral to
secure the Credit Agreement Obligations;
WHEREAS, pursuant to an Indenture,
dated as of October 29, 2004 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the
“ 2012 Notes Indenture ”), between the Borrower
and Wells Fargo Bank, N.A., as trustee (in such capacity, together
with any successor in such capacity, the “ Indenture
Trustee ”), the Borrower issued and sold its 7.75% Senior
Notes due 2012 (the “ 2012 Notes ”);
WHEREAS, subject to certain
exceptions, the 2012 Notes Indenture requires that effective
provision be made so that the 2012 Notes be secured equally and
ratably with the Credit Agreement Obligations so secured for so
long as the Credit Agreement Obligations are so secured;
and
WHEREAS, the Collateral Agent has
been appointed by the Lenders and the Indenture Trustee to act as
collateral agent with respect to the Collateral and the Secured
Instruments and is entering into this Agreement to, among other
things, define the rights, duties, authority and responsibilities
of the Collateral Agent and the relationships among the Secured
Parties regarding their interests in the Collateral;
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
DECLARATION OF TRUST:
NOW, THEREFORE, in order to secure
the payment of the Secured Obligations and in consideration of the
promises and the mutual agreements set forth herein, the Collateral
Agent does hereby declare that it holds and will hold as trustee in
trust under this Agreement all of its
right, title and interest in, to and under the
Security Documents and the collateral granted to the Collateral
Agent thereunder whether now existing or hereafter arising (and
each Obligor does hereby consent thereto).
TO HAVE AND TO HOLD the Security
Documents and the entire Collateral (the right, title and interest
of the Collateral Agent in the Security Documents and the
Collateral being hereinafter referred to as the “ Trust
Estate ”) unto the Collateral Agent and its successors in
trust under this Agreement and its assigns and assigns
forever.
IN TRUST NEVERTHELESS, under and
subject to the conditions herein set forth and for the benefit of
the Secured Parties, and for the enforcement of the payment of all
Secured Obligations, and as security for the performance of and
compliance with the covenants and conditions of this Agreement,
each of the Secured Instruments and each of the Security
Documents.
PROVIDED , HOWEVER , that these presents are upon
the condition that if the conditions set forth in
Section 6.10 shall be satisfied, then this Agreement,
and the estates and rights hereby assigned, shall cease, determine
and be void; otherwise they shall remain and be in full force and
effect.
IT IS HEREBY FURTHER COVENANTED AND
DECLARED, that the Trust Estate is to be held and applied by the
Collateral Agent, subject to the further covenants, conditions and
trusts hereinafter set forth.
SECTION 1.
DEFINITIONS
(a) The capitalized terms used
herein which are defined in, or by reference in, Schedule I hereto
shall have the meanings specified therein.
(b) The words “hereof”,
“herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section, clause, schedule and exhibit references are
to this Agreement unless otherwise specified.
(c) The term “including”
is not limiting and means “including without
limitation.”
SECTION 2.
ACTIONS BY THE COLLATERAL AGENT
2.1. General Authority of the
Collateral Agent over the Collateral . Each Obligor hereby
irrevocably constitutes and appoints the Collateral Agent, with
full power of substitution, as its true and lawful attorney-in-fact
with full power and authority in the name of such Obligor or in its
own name, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or
desirable to carry out the terms of this Agreement and the Security
Documents and accomplish the purposes hereof and thereof and,
without limiting the generality of the foregoing, each Obligor
hereby acknowledges that the Collateral Agent shall have all powers
and remedies set forth in the Security Documents; provided
that the
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Collateral Agent and the Secured Parties agree,
solely for their own mutual benefit (and not for the benefit of any
Obligor), that the Collateral Agent shall exercise all of its
powers, rights and remedies with respect to the Obligors and the
Collateral under the Secured Instruments solely in accordance with
Requisite Instructions.
2.2. Right to Initiate Judicial
Proceedings . Without limiting any provision contained in
Section 2.1 , the Collateral Agent, subject to the
provisions of clause (b) of Section 2.4 ,
(i) shall 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 and (ii) may proceed by suit or suits at law
or in equity to enforce such rights and to foreclose upon the
Collateral and to sell all or, from time to time, any of the
Collateral under the judgment or decree of a court of competent
jurisdiction, in the case of each of clauses (i) and
(ii) , solely in accordance with Requisite Instructions
delivered to the Collateral Agent.
2.3. Exercise of Powers;
Requisite Instructions . (a) All of the powers, rights and
remedies of the Collateral Agent set forth in this Agreement may be
exercised by the Collateral Agent in respect of any Security
Document as though set forth in full therein, and all of the
powers, rights and remedies of the Collateral Agent and the
Administrative Agent as set forth in any Security Document may be
exercised from time to time as set forth herein and therein;
provided that the Collateral Agent shall exercise all such
powers, rights and remedies solely in accordance with Requisite
Instructions delivered to the Collateral Agent, and shall not
exercise any such powers, rights or remedies unless it shall have
received Requisite Instructions requiring such exercise.
(b) The Control Party shall have the
right, by delivery of Requisite Instructions to the Collateral
Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral
Agent, or of exercising any trust or power conferred on the
Collateral Agent, or for the appointment of a receiver, or to
direct the taking or the refraining from taking of any action
authorized by this Agreement or any Security Document;
provided that (i) such Requisite Instructions shall not
conflict with any provision of law or of this Agreement, any
Security Document, the Credit Agreement or the 2012 Notes Indenture
(including, without limitation Section 4.11 of the 2012 Notes
Indenture) or the 2012 Notes and (b) the Collateral Agent
shall be adequately secured and indemnified as provided in
clause (d) of Section 5.4 .
2.4. 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 Security Document or now or hereafter
existing at law or in equity or by statute; provided that
the Collateral Agent shall exercise any and all remedies solely in
accordance with Requisite Instructions delivered to the Collateral
Agent.
(b) No delay or omission by the
Collateral Agent to exercise any right, remedy or power hereunder
or under any Security Document shall impair any such right, remedy
or power or shall be construed to be a waiver thereof, 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
and as often as may be deemed expedient by the Collateral Agent;
provided that the Collateral Agent shall exercise all such
powers, rights and remedies solely in accordance with Requisite
Instructions delivered to the Collateral Agent.
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(c) If 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 the Obligors, the Collateral Agent and the
Secured Parties shall, subject to any determination in such
proceeding, severally and respectively be restored to their former
positions and rights hereunder or thereunder with respect to the
Trust Estate 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 of
asserting claims upon or under this Agreement and the Security
Documents may be enforced by the Collateral Agent without the
possession of any Secured Instrument or instrument evidencing any
Secured Obligation or the production thereof at any trial or other
proceeding relative thereto, and any suit or proceeding instituted
by the Collateral Agent shall be, subject to clause (d)
of Section 5.3 and clause (b)(ii) of
Section 5.9 , brought in its name as Collateral Agent
and any recovery of judgment shall be held as part of the Trust
Estate.
2.6. Limitation by Law . All
rights, remedies and powers provided herein may be exercised only
to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions hereof are
intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded,
registered or filed under the provisions of any applicable
law.
2.6. Rights of Secured Parties
under Secured Instruments . Notwithstanding any other provision
of this Agreement or any Security Document, the right of each
Secured Party to receive payment of the Secured Obligations held by
such Secured Party when due (whether at the stated maturity
thereof, by acceleration or otherwise) as expressed in the related
Secured Instrument or other instrument evidencing or agreement
governing a Secured Obligation or to institute suit for the
enforcement of such payment on or after such due date, and the
obligation of the Obligors to pay such Secured Obligation when due,
shall not be impaired or affected without the consent of such
Secured Party given in the manner prescribed by the Secured
Instrument pursuant to which such Secured Obligation is
outstanding.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1. The Collateral Account .
On the date hereof there shall be established and, at all times
thereafter until the trusts created by this Agreement shall have
terminated, there shall be maintained with the Collateral Agent at
the office of the Collateral Agent’s corporate trust division
an account which shall be entitled the “Advanced Micro
Devices Collateral Account” (the “ Collateral
Account ”). All moneys which are required by this
Agreement or any Security Document to be delivered to the
Collateral Agent or which are received by the Collateral Agent or
any agent or nominee of the Collateral Agent in respect of the
Collateral, whether in
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connection with the exercise of the remedies
provided in this Agreement or any Security Document or otherwise,
shall be deposited in the Collateral Account and held by the
Collateral Agent as part of the Trust Estate and applied in
accordance with the terms of this Agreement (including
Section 3.4 ). Notwithstanding the foregoing, all
moneys received by the Collateral Agent when no Event of Default
exists shall promptly be paid over to the Obligors in accordance
with their respective interests.
3.2. Control of Collateral
Account . 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 shall constitute part of the
Trust Estate. The Collateral Account shall be subject to the
exclusive dominion and control of the Collateral Agent.
3.3. Investment of Funds
Deposited in Collateral Account . The Collateral Agent shall,
in accordance with Requisite Instructions delivered to the
Collateral Agent, invest and reinvest moneys on deposit in the
Collateral Account at any time in Cash Equivalents. All such
investments and the interest and income received thereon and the
net proceeds realized on the sale or redemption thereof shall be
held in the Collateral Account as part of the Trust Estate. The
Collateral Agent shall not be responsible for any diminution in
funds resulting from such investments. In the absence of any
Requisite Instructions, the Collateral Agent shall have no
obligation to invest or reinvest moneys.
3.4. Application of Moneys .
(a) The Collateral Agent shall have the right (pursuant to
Section 4.6 ) at any time to apply moneys held by it in
the Collateral Account to the payment of due and unpaid Collateral
Agent Fees. Notwithstanding anything to the contrary contained
herein, the Collateral Agent shall, pursuant to Requisite
Instructions, transfer money held by it in the Collateral Account
to any depository bank of any Obligor in accordance with any
control agreement entered into with such depository bank pursuant
to the Collateral Agreement, solely to reimburse such depository
bank for checks, ACH transfers and other items which are recalled,
dishonored, reversed or returned to such depository bank in respect
of any deposit account subject to any such control
agreement.
(b) All remaining moneys held by the
Collateral Agent in the Collateral Account or received by the
Collateral Agent while an Event of Default exists shall, to the
extent available for distribution (it being understood that the
Collateral Agent may liquidate investments prior to maturity in
order to make a distribution pursuant to this
Section 3.4 ), be promptly distributed (subject to the
provisions of Section 3.5 ) by the Collateral Agent in
the following order of priority:
First : to the Collateral Agent for any unpaid
Collateral Agent Fees and then to any Secured Party which has
theretofore advanced or paid any Collateral Agent Fees constituting
administrative expenses allowable under Section 503(b) of the
Bankruptcy Code, an amount equal to the amount thereof so advanced
or paid by such Secured Party and for which such Secured Party has
not been previously reimbursed;
Second : to any Secured Party which has theretofore
advanced or paid any Collateral Agent Fees other than such
administrative expenses, an amount equal to the amount thereof so
advanced or paid by such Secured Party and for which such Secured
Party has not been previously reimbursed;
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Third : to the Secured Parties in an amount equal to
(i) in the case of holders of the Credit Agreement Obligations
(other than with respect to Specified Hedge Agreements) and the
2012 Notes and the 2012 Indenture, the unpaid principal of, unpaid
interest on and other unpaid charges, if any, in respect of such
Secured Obligations then outstanding whether or not then due and
payable, and (ii) in the case of holders of Credit Agreement
Obligations with respect to Specified Hedge Agreements, the amount
of credit exposure of such holders under such Specified Hedge
Agreements; and, in any case, if such moneys shall be insufficient
to pay such amounts in full, then ratably (without priority of any
one over any other) to the Secured Parties in proportion to such
amounts; provided that, for purposes hereof, the
“credit exposure” at any time of any Secured Party with
respect to a Specified Hedge Agreement to which such Secured Party
is a party shall be determined (a) in accordance with any
applicable schedule between the applicable Obligor and such Secured
Party, if any, or (b) otherwise at such time in accordance
with the customary methods of calculating credit exposure under
similar arrangements by the counterparty to such arrangements, so
long as such Specified Hedge Agreement has been terminated by the
applicable counterparty;
Fourth : to the Secured Parties, amounts equal to all
other sums which constitute Secured Obligations, including the
reasonable costs and expenses of the Secured Parties and their
representatives which are due and payable under the relevant
Secured Instruments and which constitute Secured Obligations as of
the date of distribution, and, if such moneys shall be insufficient
to pay such sums in full, then ratably to the Secured Parties in
proportion to such sums; and
Fifth : any surplus then remaining shall be paid to
the Obligors or their successors or assigns or to whomsoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(c) The term “unpaid” as
used in clause (b) of this Section 3.4
refers:
(i) in the absence of a bankruptcy
proceeding with respect to the applicable Obligor, to all the
outstanding Secured Obligations, and
(ii) during the pendency of a
bankruptcy proceeding with respect to the applicable Obligor, to
all amounts allowed by the bankruptcy court in respect of Secured
Obligations as a basis for distribution (including estimated
amounts, if any, allowed in respect of contingent
claims),
to the extent that prior
distributions (whether actually distributed or set aside pursuant
to Section 3.5 ) have not been made in respect
thereof.
(d) The Collateral Agent shall make
all payments and distributions under this Section 3.4 :
(i) on account of Credit Agreement Obligations, to the
Administrative Agent for re-distribution among the holders of the
Credit Agreement Obligations in accordance with the provisions of
the Credit Agreement, (ii) on account of the 2012 Notes
(subject to Section 3.5 ), to
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the Indenture Trustee for re-distribution among
the holders of the 2012 Notes in accordance with the provisions of
the 2012 Notes Indenture and (iii) to the Obligors pursuant to
sub-clause sixth of clause (b) of
Section 3.4 , as directed in writing by the
Borrower.
3.5. Application of Moneys
Distributable to Indenture Trustee . If at any time any moneys
collected or received by the Collateral Agent pursuant to this
Agreement are distributable pursuant to Section 3.4 to
the Indenture Trustee, and if the Indenture Trustee shall notify
the Collateral Agent in writing that no provision is made under the
2012 Notes Indenture for the application by such Indenture Trustee
of such moneys (whether because the Secured Obligations issued
under the 2012 Notes Indenture have not become due and payable or
otherwise) and that the 2012 Notes Indenture does not effectively
provide for the receipt and the holding by the Indenture Trustee of
such moneys pending the application thereof, then the Collateral
Agent, after receipt of such notification, shall, at the direction
of the Indenture Trustee, invest and reinvest such amounts in Cash
Equivalents maturing within 90 days after they are acquired by the
Collateral Agent and shall hold all such amounts so distributable
and all such investments and the net proceeds thereof in trust
solely for the Indenture Trustee (in its capacity as trustee) and
for no other purpose until such time as the Indenture Trustee shall
request in writing the delivery thereof by the Collateral Agent for
application pursuant to the 2012 Notes Indenture. The Collateral
Agent shall not be responsible for any diminution in funds
resulting from investments made at the direction of the Indenture
Trustee or from holding such monies uninvested.
3.6. Collateral Agent’s
Calculations . In making the determinations and allocations
required by Section 3.4 , the Collateral Agent may
conclusively rely upon information supplied by the Administrative
Agent as to the amounts payable with respect to Credit Agreement
Obligations and upon information supplied by the Indenture Trustee
as to the amounts payable with respect to the 2012 Notes, and the
Collateral Agent shall have no liability to any of the Secured
Parties for actions taken in reliance on such information. If, in
the sole discretion of the Collateral Agent, the distribution of
any amount received by the Collateral Agent in such capacity
hereunder or under the Security Documents might involve the
Collateral Agent in liability, or might be prohibited hereby, or
might be contrary to any law, rule or regulation, the Collateral
Agent may refrain from making distribution until the Collateral
Agent’s right to make such distribution has been adjudicated
by a court of competent jurisdiction. All distributions made by the
Collateral Agent pursuant to Section 3.4 shall be
(subject to any decree of any court of competent jurisdiction)
final (absent manifest error), and the Collateral Agent shall have
no duty to inquire as to the application by the Administrative
Agent or the Indenture Trustee of any amounts distributed to them
by the Collateral Agent hereunder.
3.7. Pro Rata Sharing . If,
through the operation of any bankruptcy, reorganization, insolvency
or other laws or otherwise, the Collateral Agent’s security
interest hereunder and under the Security Documents is enforced
with respect to some, but not all, of the Secured Obligations then
outstanding, the Collateral Agent shall nonetheless apply the
Proceeds of the Collateral for the benefit of the holders of all
Secured Obligations in the proportions and subject to the
priorities specified in Section 3.4 . To the extent
that the Collateral Agent distributes Proceeds collected with
respect to Secured Obligations held by one holder to or on behalf
of Secured Obligations held by a second holder, the first holder
shall be deemed to have purchased a participation in the Secured
Obligations held by the second holder, or shall be subrogated to
the rights of the second holder to receive any subsequent payments
and distributions made with respect to the portion thereof paid or
to be paid by the application of such Proceeds.
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SECTION 4.
AGREEMENTS WITH COLLATERAL AGENT
4.1. Information as to Secured
Parties, Administrative Agent and Indenture Trustee . The
Borrower shall deliver to the Collateral Agent from time to time
after an Event of Default has occurred and is continuing under the
Credit Agreement or the 2012 Notes Indenture, upon request of the
Collateral Agent, a list setting forth as of a date not more than
30 days prior to the date of such delivery, (i) the aggregate
unpaid principal amount of Credit Agreement Obligations outstanding
and the name and address of the Administrative Agent, and
(ii) the aggregate unpaid principal amount of 2012 Notes
outstanding under the Indenture and the name and address of the
Indenture Trustee thereunder. In addition, the Borrower will
promptly notify the Collateral Agent of each change in the identity
of the Administrative Agent or the Indenture Trustee. On or prior
to the date hereof, the Administrative Agent will deliver to the
Collateral Agent the names of its officers that are authorized to
give directions hereunder on behalf of the Administrative Agent.
The Borrower will request that the Administrative Agent notify the
Collateral Agent of any change in such officers prior to the date
of any such change. If the Collateral Agent does not receive the
names of such officers, the Collateral Agent may rely on any person
purporting to be authorized to give directions hereunder on behalf
of the Administrative Agent. If the Collateral Agent is not
informed of changes in the officers of the Administrative Agent,
the Collateral Agent may rely on the information previously
provided to the Collateral Agent.
4.2. Compensation and
Expenses . The Borrower agrees to pay to the Collateral Agent,
from time to time within 30 days following receipt of an invoice
therefor all of the fees (as set forth in the separate
correspondence between the Borrower and the Collateral Agent),
costs and expenses of the Collateral Agent (including the fees and
disbursements of its counsel, advisors and agents which, in the
case of the immediately succeeding clause (A) only, shall be
reasonable) (A) arising in connection with the preparation,
execution, delivery, modification, and termination of this
Agreement and each Security Document or the enforcement of any of
the provisions hereof or thereof, or (B) incurred or required
to be advanced in connection with the administration of the Trust
Estate, the sale or other disposition of Collateral pursuant to any
Security Document and the preservation, protection or defense of
the Collateral Agent’s rights under this Agreement and the
Security Documents and in and to the Collateral and the Trust
Estate. Such fees, costs and expenses are intended to constitute
expenses of administration under any bankruptcy law relating to
creditors rights generally. The obligations of the Borrower under
this Section 4.3 shall survive the termination of the
other provisions of this Agreement and the resignation or removal
of the Collateral Agent.
4.3. Stamp and Other Similar
Taxes . The Borrower agrees to indemnify and hold harmless the
Collateral Agent, the Administrative Agent, the Indenture Trustee
and each Secured Party from any present or future claim for
liability for any stamp or any 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 Trust Estate or any Collateral. The
obligations of the Borrower under this Section 4.4
shall survive the termination of the other provisions of this
Agreement and the resignation or removal of the Collateral
Agent.
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4.4. Filing Fees, Excise Taxes,
Etc . The Borrower agrees to pay or to reimburse the Collateral
Agent for any and all payments made by the Collateral Agent in
respect of all search, filing, recording and registration fees,
taxes, excise taxes and other similar imposts which may be payable
in respect of the execution and delivery of this Agreement and each
Security Document. The obligations of the Borrower under this
Section 4.5 shall survive the termination of the other
provisions of this Agreement and the resignation or removal of the
Collateral Agent.
4.5. Indemnification . The
Borrower agrees to pay, indemnify, and hold the Collateral Agent,
the Administrative Agent and the Indenture Trustee harmless from
and against any and all Indemnified Liabilities (as defined in the
Credit Agreement) with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and
the Security Documents, except for Indemnified Liabilities
resulting from the gross negligence or willful misconduct of such
indemnified party. In any suit, proceeding or action brought by the
Collateral Agent under or with respect to any contract, agreement,
interest or obligation constituting part of the Collateral for any
sum owing thereunder, or to enforce any provisions thereof, the
Borrower will save, indemnify and keep the Collateral Agent, the
Administrative Agent, the Indenture Trustee and the Secured Parties
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 obligor thereunder,
arising out of a breach by any Obligor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of the obligor thereunder or its
successors by any Obligor, and all such obligations of the Borrower
shall be and remain enforceable against and only against the
Borrower and shall not be enforceable against the Collateral Agent,
the Administrative Agent, the Indenture Trustee or any Secured
Party. The agreements in this Section 4.6 shall survive
the termination of the other provisions of this Agreement and the
resignation or removal of the Collateral Agent.
4.6. Collateral Agent’s
Lien . Notwithstanding anything to the contrary in this
Agreement, as security for the payment of Collateral Agent Fees,
(i) the Collateral Agent is hereby granted a Lien upon all
Collateral and (ii) the Collateral Agent shall have the right
(in accordance with clause (a) of
Section 3.4 ) to use and apply any of the funds held by
the Collateral Agent in the Collateral Account to cover such
Collateral Agent Fees. In addition to the foregoing application
right, the Collateral Agent shall have all of the rights and
remedies of a secured creditor set forth in the UCC. The provisions
of this Section 4.7 will survive the termination of the
other provisions of this Agreement and the Collateral Documents and
the resignation or removal of the Collateral Agent and shall
continue until all of the Collateral Agent Fees are paid in full in
cash.
4.7. Further Assurances . At
any time and from time to time, upon the written request of the
Administrative Agent, the Indenture Trustee, or Collateral Agent,
and at the expense of each Obligor, the Borrower will promptly
execute and deliver any and all such further instruments and
documents and take such further action as is necessary or
reasonably requested to obtain the full benefits of this Agreement
and the Security Documents and the rights and powers herein and
therein granted, and to perfect, or to protect the perfection of,
the Liens granted under the Security Documents, including the
filing of any financing or continuation statement under the UCC.
Each Obligor also hereby authorizes the Collateral Agent to sign
and the Administrative Agent, the Indenture Trustee, or the
Collateral Agent to file any such
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financing o
