or guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral, (B) tort claims, including, without limitation,
all commercial tort claims and (C) cash.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE SECURED PARTY ACKNOWLEDGES
AND AGREES THAT THE SECURITY INTEREST GRANTED TO IT HEREUNDER IS SUBORDINATE IN
ALL RESPECTS TO THE SECURITY INTEREST GRANTED TO HEP IN THE SECURITY AGREEMENTS
DELIVERED BY GRANTOR TO HEP ("HEP SECURITY AGREEMENTS"), AND THAT ALL RIGHTS
GRANTED TO THE SECURED PARTY ARE SUBJECT TO THE SECURITY INTEREST GRANTED TO HEP
AND TO THE INTERECREDITOR AGREEMENT.
Section 2.
Security for Obligations
This Agreement secures the payment of all obligations of the Grantor now or
hereafter existing under the Note, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations, interest,
premiums, penalties, indemnifications, contract causes of action, costs,
expenses or otherwise (all such obligations being the "Secured Obligations").
2
Section 3.
Grantor Remains Liable
Anything herein to the contrary notwithstanding, (a) the Grantor shall remain
liable under the contracts and agreements included in the Grantor's Collateral
to the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed,
(b) the exercise by the Secured Party of any of the rights hereunder shall not
release the Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral and (c) the Secured Party shall not
have any obligation or liability under the contracts and agreements included in
the Collateral by reason of this Agreement or any other Loan Document, nor shall
the Secured Party be obligated to perform any of the obligations or duties of
the Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
Section 4.
Representations and Warranties
The Grantor represents and warrants as follows:
(a)
The Grantor's exact legal name, as defined in Section 9-503(a) of the UCC, is
correctly set forth in Schedule I hereto.
The Grantor has only the trade names,
domain names and marks listed on Schedule IV hereto.
The Grantor is located
(within the meaning of Section 9-307 of the UCC) and has its chief executive
office in the state or jurisdiction set forth in Schedule I hereto.
The
information set forth in Schedule I hereto with respect to the Grantor is true
and accurate in all respects.
The Grantor has not previously changed its name,
location, chief executive office, place where it maintains its agreements, type
of organization, jurisdiction of organization or organizational identification
number from those set forth in Schedule I hereto except as disclosed in Schedule
III hereto.
(b)
All of the Equipment of the Grantor is located at the places specified therefor
in Schedule II hereto, as such Schedule II may be amended from time to time
pursuant to Section 8(a).
Within the 5 years preceding the execution of this
Agreement, the Grantor has