TRANSFEREE BENEFICIARY OF THE LETTER OF CREDIT,
WITH THE SECURITY AGENT AGREEING, IN EACH CASE, THAT THE PROCEEDS OF ANY DRAWING
UNDER THE LETTER OF CREDIT ARE TO BE
27
PAID TO THE APPLICABLE GRANTOR UNLESS AN EVENT OF DEFAULT HAS OCCURRED OR IS
CONTINUING.
(G)
COMMERCIAL TORT CLAIMS.
IF ANY GRANTOR SHALL AT ANY TIME HOLD A COMMERCIAL
TORT CLAIM IN WHICH SUCH GRANTOR IS CLAIMANT THAT EXCEEDS $5,000,000 IN
REASONABLE ESTIMATED VALUE, THE GRANTOR SHALL PROMPTLY NOTIFY THE SECURITY AGENT
THEREOF IN A WRITING SIGNED BY SUCH GRANTOR, INCLUDING A SUMMARY DESCRIPTION OF
SUCH CLAIM, AND GRANT TO THE SECURITY AGENT, SUBJECT TO THE RIGHTS OF THE TERM
LOAN AGENT AND PERMITTED NOTES AGENT UNDER THE INTERCREDITOR AGREEMENT, IN SUCH
WRITING A SECURITY INTEREST THEREIN AND IN THE PROCEEDS THEREOF, ALL UPON THE
TERMS OF THIS AGREEMENT, WITH SUCH WRITING TO BE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE SECURITY AGENT.
EACH SUCH SUMMARY DESCRIPTION
DELIVERED AFTER THE DATE OF THIS AGREEMENT SHALL BE ATTACHED HERETO AS A
SUPPLEMENT TO SCHEDULE IV AND MADE A PART HEREOF.
(H) COLLATERAL ACCESS AGREEMENTS.
EACH GRANTOR SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN A COLLATERAL ACCESS AGREEMENT FROM (I) THE LESSOR
OF EACH LEASED PROPERTY WHICH IS LEASED BY SUCH GRANTOR OR THE MORTGAGEE OF ANY
REAL PROPERTY OWNED BY SUCH GRANTOR AND WHICH IS SUBJECT TO A MORTGAGE OR DEED
OF TRUST (OTHER THAN A MORTGAGE OR DEED OF TRUST THAT IS CONTEMPLATED IN THE
INTERCREDITOR AGREEMENT), IN EACH CASE WHERE THE FAIR MARKET VALUE OF THE
COLLATERAL LOCATED AT SUCH LEASED OR MORTGAGED PROPERTY EXCEEDS $5,000,000 AND
(II) THE BAILEE OR CONSIGNEE WITH RESPECT TO ANY THIRD PARTY WAREHOUSE,
PROCESSOR CONVERTER FACILITY OR OTHER SIMILAR LOCATION WHERE COLLATERAL WITH A
FAIR MARKET VALUE EXCEEDING $2,000,000 IS STORED OR LOCATED, WHICH AGREEMENT OR
LETTER SHALL PROVIDE ACCESS RIGHTS AND SHALL OTHERWISE BE REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE SECURITY AGENT.
EACH GRANTOR SHALL
TIMELY AND FULLY PAY AND PERFORM ITS OBLIGATIONS UNDER ALL LEASES AND OTHER
AGREEMENTS WITH RESPECT TO EACH LEASED LOCATION OR THIRD PARTY WAREHOUSE WHERE
ANY COLLATERAL IS OR MAY BE LOCATED, EXCEPT WHERE THE FAILURE TO PAY OR PERFORM
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(I) EACH GRANTOR WILL, AT ITS OWN EXPENSE, MAKE, EXECUTE, ENDORSE, ACKNOWLEDGE,
FILE AND/OR DELIVER TO THE SECURITY AGENT FROM TIME TO TIME SUCH VOUCHERS,
INVOICES, SCHEDULES, CONFIRMATORY ASSIGNMENTS, CONVEYANCES, FINANCING
STATEMENTS, TRANSFER ENDORSEMENTS, CERTIFICATES, REPORTS AND OTHER ASSURANCES OR
INSTRUMENTS AND TAKE SUCH FURTHER STEPS, INCLUDING ANY AND ALL ACTIONS AS MAY BE
NECESSARY OR REQUIRED UNDER THE FEDERAL ASSIGNMENT OF CLAIMS ACT, RELATING TO
ITS ACCOUNTS, CONTRACTS, INSTRUMENTS AND OTHER PROPERTY OR RIGHTS COVERED BY THE
SECURITY INTEREST HEREBY GRANTED, AS THE SECURITY AGENT MAY REASONABLY REQUIRE
AND CONSISTENT WITH THE OTHER TERMS AND CONDITIONS OF THIS AGREEMENT AND THE
CREDIT AGREEMENT.
SECTION 4.05.
Covenants Regarding Patent, Trademark and Copyright Collateral.
(a)
Each Grantor agrees that it will not do