EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below (the “Effective Date”) and is entered into by and between [Insert name of Assignor] ([the] [each an]1 “Assignor”) and [Insert name of Assignee]2, ([the] [each an] “Assignee”). Capitalized
terms used but not defined herein shall have the respective meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the] [each] Assignor hereby irrevocably sells and assigns to [the] [each]
Assignee, and [the] [each] Assignee hereby irrevocably purchases and assumes from [the] [each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent, as contemplated below, (i) all of [the] [each] Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and the other Loan Documents to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of the [the] [each] Assignor under the Credit Agreement and the other Loan Documents and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of [the] [each] Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and assigned by [the] [each] Assignor to [the] [each] Assignee pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by [the] [each] Assignor.
The provisions set out in clause 10.01 (c) and (d) of the Credit Agreement shall apply to each Assignee
as if it were an initial party to the Credit Agreement.
1. Assignor[s]:
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2. Assignee[s]:
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____________________
and is [a][an] [Lender][Affiliate or Approved Fund of [identify Lender]][other assignee]3
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3. Borrowers:
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Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”) and Weatherford International, LLC, a Delaware limited
liability company (“WIL-Delaware” and together with WIL-Bermuda, the “Borrowers”)
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4. Administrative Agent:
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Deutsche Bank Trust Company Americas (“DBTCA”), as the Administrative Agent under the Credit Agreement
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5. Credit Agreement:
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LC Credit Agreement, dated as of December 13, 2019, among WIL-Bermuda, WIL-Delaware, Weatherford International plc (“Parent”),
the Lenders from time to time party thereto, DBTCA, as administrative agent for the Lenders, and the Issuing Banks from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified from
time to time
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6. Assigned Interest:
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As set forth on Annex 2 attached hereto.
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7. Effective Date:
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_____________, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
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1 For bracketed language here and elsewhere in this form relating to the Assignor(s),
if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is to multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s),
if the assignment is from a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3 Select as applicable
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_____________________________________
Name:
Title:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_____________________________________
Name:
Title:
[Consented to and]4 Accepted:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
[Consented to:
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company,
as Borrower
By:_____________________________________
Name:
Title: ]5
[Consented to:
WEATHERFORD INTERNATIONAL, LLC,
a Delaware limited liability company,
as Borrower
By:_____________________________________
Name:
Title: ]6
4 To be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.
5 To be added only if the consent of WIL-Bermuda is required by the terms of the
Credit Agreement.
6 To be added only if the consent of WIL-Delaware is required by the terms of the
Credit Agreement.
Consented to:
DEUTSCHE BANK AG NEW YORK BRANCH,
as Issuing Bank,
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Consented to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Issuing Bank,
By:_____________________________________
Name:
Title:
Consented to:
BARCLAYS BANK PLC,
as Issuing Bank,
By:_____________________________________
Name:
Title:
Consented to:
CITIBANK, N.A.,
as Issuing Bank,
By:_____________________________________
Name:
Title:
Consented to:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Issuing Bank,
By:_____________________________________
Name:
Title:
Consented to:
NORDEA BANK ABP, NEW YORK BRANCH,
as Issuing Bank,
By:_____________________________________
Name:
Title:
[Consented to:
[ISSUING BANK],
as Issuing Bank,
By:_____________________________________
Name:
Title:]7
7 To be added for any additional Issuing Banks.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of any Obligor, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by any Obligor, any of its Subsidiaries or Affiliates or
any other Person of any of their respective obligations under any Loan Document.
1.2 Assignee.
The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it satisfies the requirements specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on
the Administrative Agent, the Collateral Agent or any other Lender, (vi) it is not an Ineligible Institution, [[and] (vii) it has delivered to the Administrative Agent an Administrative Questionnaire in which the Assignee designates one or
more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their respective Affiliates and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws]8[,][ and] [(viii) attached to the Assignment and Assumption are the forms required under Sections 4.02(c) and 4.02(e) of the Credit Agreement, duly completed and executed by the Assignee]9[,][ and] [(ix) it has delivered to Parent and the Administrative Agent an Assignee Certificate]10 [and (x) it is not subject under current law to any U.S. withholding tax on amounts payable to it under the Credit Agreement]11; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to
but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General
Provisions. This Assignment and Assumption shall (a) be binding upon the parties hereto and their respective successors and assigns and (b) inure to the benefit of the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page to this Assignment and Assumption by facsimile (or by
electronic communication, if arrangements for doing so have been approved by the Administrative Agent) shall be effective as a delivery of a manually executed counterpart of this Assignment and Assumption. THIS
ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8 Required to be delivered if Assignee is not a Lender.
9 Not required when an Event of Default has occurred and is continuing.
10 Required to be delivered if Assignee is not a Lender.
11 Not required when an Event of Default has occurred and is continuing.
ANNEX 2
Amount of Aggregate
Commitment / Total Letter of Credit Exposure
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Amount of Commitment / Letter of Credit Exposure Assigned
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Percentage Assigned of Commitments / Letter of Credit Exposure
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$
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$
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%
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Applicable Percentage: _____________________%12
12 Set forth, to at least 12 decimals, as a percentage of the Aggregate Commitments.
EXHIBIT B
FORM OF LETTER OF CREDIT REQUEST
_______________, 20__
To: [________]1
[________]2
Ladies and Gentlemen:
This notice shall constitute a “Letter of Credit Request” for a Letter of Credit pursuant to Section
3.01(b) of the LC Credit Agreement, dated as of December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware limited liability company
(“WIL-Delaware”), Weatherford International plc, an Irish public limited company (“Parent”), the Lenders from time to time
party thereto, Deutsche Bank Trust Company Americas, as administrative agent for the Lenders, and the Issuing Banks from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the respective
meanings specified therefor in the Credit Agreement.
[The undersigned (the “Borrower”) hereby requests that [________]3 (the “Issuing Bank”) issue a Letter of Credit on [________]4 in the aggregate amount of [_______]5. The beneficiary of the requested Letter of Credit will be [_______]6, and such Letter of Credit will be in support of [_______]7 and will have a stated expiration date of [_______]8.]9
[The undersigned (the “Borrower”) hereby requests that [______]10 (the “Issuing Bank”) [amend] [renew] [extend] on [______]11 the following Letter of Credit,
which was previously issued by the Issuing Bank: [insert title of Letter of Credit], Number [_________], dated as of [________], and in the aggregate amount of [________]12. [Insert
description of requested amendment or details of proposed terms of renewal or extension, as applicable].]13
[Insert any other information as shall be necessary in order for the
Issuing Bank to prepare the requested Letter of Credit or amend, renew or extend the existing Letter of Credit, as applicable.]
[Remainder of this page intentionally left blank.]
1 Insert name of Issuing Bank
2 Insert address of Issuing Bank
3 Insert name of Issuing Bank
4 Insert proposed date of issuance of the requested Letter of Credit, which must be
at least three Business Days after the date of this Letter of Credit Request.
5 Insert initial amount of the requested Letter of Credit and whether such amount is
denominated in Dollars or an Alternative Currency.
6 Insert full name and address of the beneficiary of this Letter of Credit Request.
7 Insert brief description of obligation to be supported by the Letter of Credit.
8 Insert expiration date of the Letter of Credit, which shall comply with Section
3.01(c) of the Credit Agreement.
9 Insert this paragraph for any issuance of a Letter of Credit.
10 Insert name of Issuing Bank.
11 Insert proposed date of amendment, renewal or extension of the applicable Letter
of Credit, which must be at least one Business Day after the date of this Letter of Credit Request.
12 Insert the aggregate amount of the existing Letter of Credit to be amended,
renewed or extended and whether such amount is denominated in Dollars or an Alternative Currency.
13 Insert this paragraph for any amendment, renewal or extension of an existing
Letter of Credit.
IN WITNESS WHEREOF, the undersigned has executed this Letter of Credit Request this ____ day of
______________, 20___.
Very truly yours,
[NAME OF REQUESTING
BORROWER] a [_________]
[______________]
By: _______________________
Name:
Title:
CC: Deutsche Bank Trust Company Americas
60 Wall Street
New York, New York 10005
Attention: Project Finance Agency Services, Weatherford
Fax: (646) 961-3317
Electronic Mail Address: Mary.Coseo@db.com, Weatherford.LCAgency@db.com
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that such officer is the _______________________1 of Weatherford International plc, an Irish public limited company (“Parent”), and that such officer is authorized to execute this certificate on behalf
of Parent pursuant to the LC Credit Agreement, dated as of December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware limited liability
company (“WIL-Delaware”), Parent, the Lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as administrative agent for the Lenders, and the Issuing Banks from time to time
party thereto. Capitalized terms used but not otherwise defined herein shall have the respective meanings specified therefor in the Credit Agreement.
The undersigned also hereby certifies that a review of the Obligors has been made under such officer’s
supervision with a view to determining whether the Obligors have fulfilled all of their respective obligations under the Credit Agreement and the other Loan Documents; and in his/her capacity as such officer of Parent, and on behalf of
Parent further certifies, represents and warrants that, to the knowledge of such officer:
1. No Default has
occurred (or if any Default has occurred, attached is a description of such event and any action taken or proposed to be taken with respect thereto).
2. Liquidity is not
less than $200,000,000.
3. Attached as Schedule
1 is a list of all Material Specified Subsidiaries, which specifies whether any Material Specified Subsidiaries are organized in jurisdictions other than Specified Jurisdictions or Excluded Jurisdictions.
4. There have been
no changes in GAAP or in the application thereof since the date of Parent’s consolidated financial statements most recently delivered pursuant to Section 7.01(b) of the Credit Agreement (or if any such change has occurred,
attached is a description of the effect of such change on the financial statements accompanying this Compliance Certificate).
5. There have been
no changes to exhibits or schedules to any Collateral Document since the date of Parent’s Compliance Certificate most recently delivered pursuant to Section 7.01(e) of the Credit Agreement (or if any such change has occurred,
attached as Exhibit A are amended or amended and restated exhibits or schedules to the applicable Collateral Documents).
1 Must be executed by a Principal Financial Officer of Parent.
DATED as of _____________________.
WEATHERFORD INTERNATIONAL PLC, an Irish public limited company
By: ___________________________
Name:
Title:
Schedule 1
List of all Material Specified Subsidiaries
[See Attached.]
Exhibit A
[None. / See Attached.]
EXHIBIT D
FORM OF ASSIGNEE CERTIFICATE
Weatherford International plc
c/o Weatherford International, LLC
2000 St. James Place
Houston, Texas 77056
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
Deutsche Bank Trust Company Americas
60 Wall Street
New York, New York 10005
Attention: Project Finance Agency Services, Weatherford
Fax: (646) 961-3317
Electronic Mail Address: Mary.Coseo@db.com
Reference is made to that certain LC Credit Agreement, dated as of
December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weatherford
International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware limited liability company (“WIL-Delaware”), Weatherford International plc, an Irish public limited company (“Parent”), the Lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as administrative agent for the Lenders, and the Issuing Banks from time to time party thereto. Capitalized terms used but
not otherwise defined herein shall have the respective meanings specified therefor in the Credit Agreement.
Pursuant to Section 11.05(b)(ii)(H) of the Credit Agreement, the undersigned is a prospective
assignee of rights and obligations of a Lender under the Credit Agreement but is not currently a Lender (the “Assignee”) and is required to deliver this Assignee Certificate.
Assignee hereby confirms that, as of date set forth below (check one):
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☐
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Assignee is a Swiss Qualifying Lender and has not entered into a participation (including sub-participation) arrangement with respect to the Credit Agreement with any Person
that is a Swiss Non-Qualifying Lender.
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Assignee is a Swiss Non-Qualifying Lender, and counts as one single creditor for purposes of the Swiss Non-Bank Rules and has not entered into a participation (including any
sub-participation) arrangement with respect to the Agreement with any Person that is a Swiss Non-Qualifying Lender.
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For purposes of the foregoing:
“Swiss Guidelines” means, together, guideline S-02.123 in relation to interbank loans of 22
September 1986 (Merkblatt “Verrechnungssteuer auf Zinsen von Bankguthaben, deren Gläubiger Banken sind (Interbankguthaben)” vom 22. September 1986), circular letter No. 47 in relation to bonds of 25
July 2019 (1-047-V-2019) (Kreisschreiben Nr. 47 “Obligationen” vom 25. Juli 2019), guideline S-02.130.1 in relation to money market instruments and book claims of April 1999 (Merkblatt vom April 1999 betreffend Geldmarktpapiere und Buchforderungen inländischer Schuldner), circular letter No. 46 of 24 July 2019 (1-046-VS-2019) in relation to syndicated credit facilities (Kreisschreiben Nr. 46 “Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen” vom 24. Juli 2019), circular letter No. 34 of 26 July 2011 (1-034-V-2011) in relation to deposits (Kreisschreiben Nr. 34 “Kundenguthaben” vom 26. Juli 2011); the circular letter No. 15 of 3 October 2017 (1-015-DVS-2017) in relation to bonds and derivative financial instruments as subject matter of
taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 “Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der
Verrechnungssteuer und der Stempelabgaben” vom 3. Oktober 2017) and the notification regarding credit balances in groups (Mitteilung 010-DVS-2019 of February 2019 betreffend "Verrechnungssteuer: Guthaben im Konzern") each as issued,
and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any
law, statute, ordinance, regulation, court decision or the like as in force from time to time.
“Swiss Qualifying Lender” means a Person that (i) is a bank as defined in the Swiss Federal Code
for Banks and Savings Banks dated 8 November 1934 (Bundesgesetz über die Banken und Sparkassen) as amended from time to time or (ii) effectively conducts banking activities with its own infrastructure
and staff as its principal business purpose and which has a banking license in full force and effect issued in accordance with the banking laws in force in its jurisdiction of incorporation, or if acting through a branch, issued in accordance
with the banking laws in the jurisdiction of such branch, all and in each case in accordance with the Swiss Guidelines.
“Swiss Non-Qualifying Lender” means a person which does not qualify as a Swiss Qualifying Lender.
[Intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, the undersigned has executed this Assignee Certificate this _____ day of ______________, 20___.
[NAME OF ASSIGNEE]
By:_____________________________________
Name:
Title:
EXHIBIT E
FORM OF INCREASING LENDER SUPPLEMENT
INCREASING LENDER SUPPLEMENT, dated as of ____________, 20___ (this “Supplement”), by and among
each of the signatories hereto, to the LC Credit Agreement, dated as of December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware limited
liability company (“WIL-Delaware”), Weatherford International plc, an Irish public limited company (“Parent”), the Lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as
administrative agent for the Lenders, and the Issuing Banks from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the respective meanings specified therefor in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 2.11 of the Credit Agreement, the Borrowers have the right, subject
to the terms and conditions thereof, to effectuate from time to time an increase in the aggregate Commitments under the Credit Agreement by requesting one or more Lenders to increase the amount of their Commitments;
WHEREAS, the Borrowers have given notice to the Administrative Agent of their intention to increase the
aggregate Commitments pursuant to such Section 2.11; and
WHEREAS, pursuant to Section 2.11 of the Credit Agreement, the undersigned Increasing Lender now
desires to increase the amount of its Commitment under the Credit Agreement by executing and delivering to the Borrowers and the Administrative Agent this Supplement;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned Increasing Lender agrees, subject to the terms and conditions of the Credit Agreement, that as of the date of this Supplement it shall have its Commitment increased by $[______________], thereby making
the total amount of its Commitment equal to $[___________].
2. The
Borrowers hereby represent and warrant that no Default or Event of Default has occurred and is continuing on and as of the date hereof.
3. Terms
defined in the Credit Agreement shall have their respective defined meanings when used herein.
4. This
Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
5. This
Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the
same document.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and delivered by a
duly authorized officer on the date first above written.
INCREASING LENDER:
[INSERT NAME OF INCREASING LENDER]
By:_____________________________________
Name:
Title:
Accepted and agreed to as of the date first written above:
WIL-BERMUDA:
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company
By:_____________________________________
Name:
Title:
WIL-DELAWARE:
WEATHERFORD INTERNATIONAL, LLC,
a Delaware limited liability company,
as Borrower
By:_____________________________________
Name:
Title:
PARENT:
WEATHERFORD INTERNATIONAL PLC,
an Irish public limited company
By:_____________________________________
Name:
Title:
Acknowledged as of the date first written above:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT F
FORM OF ADDITIONAL LENDER SUPPLEMENT
ADDITIONAL LENDER SUPPLEMENT, dated as of ____________, 20___ (this “Supplement”), by and among
each of the signatories hereto, to the LC Credit Agreement, dated as of December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware limited
liability company (“WIL-Delaware”), Weatherford International plc, an Irish public limited company (“Parent”), the Lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as
administrative agent for the Lenders, and the Issuing Banks from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the respective meanings specified therefor in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 2.11 of the Credit Agreement, the Borrowers have the right, subject
to the terms and conditions thereof, to effectuate from time to time an increase in the aggregate Commitments under the Credit Agreement by requesting one or more Persons meeting the qualifications set forth in such Section 2.11 to
provide an Incremental Commitment;
WHEREAS, the Credit Agreement provides in Section 2.11 thereof that any Person providing an
Incremental Commitment that is not already a Lender must meet the requirements to be an assignee under Section 11.05(b) of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.05(b));
WHEREAS, immediately prior to giving effect to this Supplement, the undersigned Additional Lender was not
a Lender under the Credit Agreement, but now desires to become a party thereto as a Lender thereunder;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned
Additional Lender agrees to be bound by the provisions of the Credit Agreement as a Lender thereunder and agrees that it shall, as of the date of this Supplement, become a Lender for all purposes of the Credit Agreement to the same extent
as if originally a party thereto, with a Commitment equal to $[__________].
2. The
undersigned Additional Lender (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Supplement and to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (ii) it has delivered to Parent and the Administrative Agent the forms required under Sections 4.02(c) and 4.02(e) of the Credit Agreement and an Assignee Certificate, in each case
duly completed and executed by the undersigned Additional Lender, and (iii) it is not subject under current law to any withholding tax on amounts payable to it under the Credit Agreement; (b) confirms that it has received a copy of the
Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 7.01 thereof, and has reviewed such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Supplement; (c) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any other instrument or document furnished pursuant hereto or thereto; (d) irrevocably designates, appoints and authorizes the
Administrative Agent as the agent of such Lender under the Credit Agreement and the other Loan Documents; (e) irrevocably authorizes the Administrative Agent to take such actions on its behalf under the provisions of the Credit Agreement
and the other Loan Documents, including execution of the other Loan Documents, and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of the Credit Agreement and of the other
Loan Documents, together with such actions and powers as are reasonably incidental thereto; and (f) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as a Lender.
3. The
undersigned’s address for notices for the purposes of the Credit Agreement is as follows:
[___________]
[___________]
[___________]
4. The
Borrowers hereby represent and warrant that no Default or Event of Default has occurred and is continuing on and as of the date hereof.
5. Terms
defined in the Credit Agreement shall have their respective defined meanings when used herein.
6. This
Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
7. This
Supplement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the
same document.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, each of the undersigned has caused this Supplement to be executed and delivered by a
duly authorized officer on the date first above written.
[INSERT NAME OF ADDITIONAL LENDER]
By:_____________________________________
Name:
Title:
Accepted and agreed to as of the date first written above:
WIL-BERMUDA:
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company
By:_____________________________________
Name:
Title:
WIL-DELAWARE:
WEATHERFORD INTERNATIONAL, LLC,
a Delaware limited liability company
By:_____________________________________
Name:
Title:
PARENT:
WEATHERFORD INTERNATIONAL PLC,
an Irish public limited company
By:_____________________________________
Name:
Title:
Consented to and acknowledged as of the date first written above:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF INTERCREDITOR AGREEMENT
FORM OF INTERCREDITOR AGREEMENT
dated as of
[__________, 20__]
among
WELLS FARGO BANK, NATIONAL ASSOCIATION
as ABL Collateral Agent and Foreign Collateral Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS
as LC Collateral Agent,
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED
when joined hereto, as LC Australian Collateral Agent,
WEATHERFORD INTERNATIONAL PLC,
and
The other Grantors Named Herein
TABLE OF CONTENTS
Page
ARTICLE I Definitions
|
2
|
SECTION 1.01
|
Construction; Certain Defined Terms
|
2
|
SECTION 1.02
|
Luxembourg Terms
|
14
|
SECTION 1.03
|
Designation of Swap and Banking Obligations
|
15
|
ARTICLE II Priorities and Agreements with Respect to Collateral
|
15
|
SECTION 2.01
|
Priority of Claims
|
15
|
SECTION 2.02
|
Actions With Respect to Collateral; Prohibition on Contesting Liens
|
16
|
SECTION 2.03
|
No Duties of Senior Representative; Provision of Notice
|
18
|
SECTION 2.04
|
No Interference; Payment Over; Reinstatement
|
19
|
SECTION 2.05
|
Automatic Release of Junior Liens
|
21
|
SECTION 2.06
|
Certain Agreements With Respect to Insolvency or Liquidation Proceedings
|
22
|
SECTION 2.07
|
Reinstatement
|
28
|
SECTION 2.08
|
Entry Upon Premises by the ABL Collateral Agent
|
28
|
SECTION 2.09
|
Insurance
|
30
|
SECTION 2.10
|
Refinancings
|
30
|
SECTION 2.11
|
Amendments to Security Documents
|
31
|
SECTION 2.12
|
Possessory Collateral Agent as Gratuitous Bailee for Perfection
|
32
|
SECTION 2.13
|
Control Agreements
|
33
|
SECTION 2.14
|
Rights under Permits and Licenses
|
33
|
ARTICLE III Existence and Amounts of Liens and Obligations
|
33
|
ARTICLE IV Consent of Grantors
|
34
|
ARTICLE V Representations and Warranties
|
34
|
SECTION 5.01
|
Representations and Warranties of Each Party
|
34
|
SECTION 5.02
|
Representations and Warranties of Each Representative
|
34
|
ARTICLE VI Collateral Agency for Foreign Collateral
|
35
|
SECTION 6.01
|
Appointment of Foreign Collateral Agent
|
35
|
SECTION 6.02
|
Rights as a Secured Party
|
35
|
SECTION 6.03
|
Exculpatory Provisions
|
35
|
SECTION 6.04
|
Reliance by the Foreign Collateral Agent
|
36
|
SECTION 6.05
|
Delegation of Duties
|
37
|
SECTION 6.06
|
Resignation of Foreign Collateral Agent
|
37
|
SECTION 6.07
|
Non-Reliance on Foreign Collateral Agent and Other Secured Parties
|
38
|
SECTION 6.08
|
Collateral Matters
|
38
|
SECTION 6.09
|
Discretionary Rights
|
39
|
SECTION 6.10
|
Indemnification of Foreign Collateral Agent
|
40
|
SECTION 6.11
|
Treatment of Proceeds of Foreign Collateral
|
41
|
SECTION 6.12
|
Currency Conversion
|
42
|
SECTION 6.13
|
Swiss Collateral
|
42
|
SECTION 6.14
|
Scottish Collateral
|
42
|
ARTICLE VII Miscellaneous
|
43
|
SECTION 7.01
|
Legends
|
43
|
SECTION 7.02
|
Notices
|
44
|
SECTION 7.03
|
Waivers; Amendment
|
46
|
SECTION 7.04
|
Parties in Interest
|
46
|
SECTION 7.05
|
Survival of Agreement
|
47
|
SECTION 7.06
|
Counterparts
|
47
|
SECTION 7.07
|
Severability
|
47
|
SECTION 7.08
|
Governing Law; Jurisdiction; Consent to Service of Process
|
47
|
SECTION 7.09
|
WAIVER OF JURY TRIAL
|
48
|
SECTION 7.10
|
Headings
|
48
|
SECTION 7.11
|
Conflicts
|
48
|
SECTION 7.12
|
Provisions Solely to Define Relative Rights
|
48
|
SECTION 7.13
|
Agent Capacities
|
48
|
SECTION 7.14
|
Supplements
|
49
|
SECTION 7.15
|
Collateral Agent Rights, Protections and Immunities
|
49
|
SECTION 7.16
|
Other Junior Intercreditor Agreements
|
49
|
SECTION 7.17
|
Additional Grantors
|
50
|
SECTION 7.18
|
Joinder of LC Australian Collateral Agent
|
50
|
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time,
this “Agreement”), dated as of [__________, 20__], is among Wells Fargo Bank, National Association (“WF”), as
administrative agent and collateral agent for the ABL Secured Parties referred to herein (in such capacity, together with its successors or co-agents in substantially the same capacity as may from time to time be appointed, the “ABL Collateral Agent”) and as the initial Foreign Collateral Agent (as defined below), when joined to this Agreement, BTA Institutional Services Australia Limited (ABN 48 002 916 396),
in its capacity as trustee of the LC Australian Security Trust referred to herein (when joined to this Agreement, in such capacity, together with its successors in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent
for the LC Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in
substantially the same capacity as may from time to time be appointed, the “LC Collateral Agent”), the Parent (as defined below) and the other Subsidiaries of the Parent from time
to time party hereto.
Weatherford International plc, a public limited company incorporated in the Republic of Ireland (“Parent”), Weatherford International Ltd., a Bermuda exempted company limited by shares (“WIL-Bermuda”), Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware”), Weatherford Oil Tool GmbH, a German private limited
company, Weatherford Products GmbH, a Swiss limited liability company (the “ABL Borrowers”), the lenders and other parties party thereto from time to time and the ABL Collateral
Agent are party to the Credit Agreement, dated as of the date hereof (“Existing ABL Credit Agreement”).
WIL-Bermuda and WIL-Delaware (the “LC Borrowers”),
the issuing lenders from time to time party thereto (the “Issuing Lenders”), the lenders from time to time party thereto (the “LC
Lenders”) and the LC Collateral Agent are party to the Credit Agreement, dated as of the date hereof, pursuant to which the Issuing Lenders have agreed to issue, and the LC Lenders have agreed to purchase participations in, letters
of credit (the “Existing LC Credit Agreement”).
This Agreement governs the relationship between the LC Secured Parties as a group, on the one hand, and
the ABL Secured Parties, on the other hand, with respect to the Collateral shared by the LC Secured Parties and the ABL Secured Parties. In addition, it is understood and agreed that not all of the Secured Parties may have security interests
in all of the Collateral and nothing in this Agreement is intended to give rights to any Person in any Collateral in which such Person (or their Representative or Collateral Agent) does not otherwise have a security interest under their
respective security documents.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) The definitions of terms 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 to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to
time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express
reference is made to such subsidiaries, (iii) 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, (iv) all
references herein to Articles, Sections and Exhibits shall be construed to refer to Articles, Sections and Exhibits of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.
(b) As used in this Agreement, the following terms have the meanings specified below:
“ABL Collateral Agent” has the meaning set
forth in the recitals.
“ABL Credit Agreement” means (a) the Existing
ABL Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, Refinanced or otherwise modified from time to
time after the date hereof, in accordance with the terms hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the indebtedness under such
agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof (except to the extent
any such Refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “ABL Credit Agreement”), and (b) whether or not the facility referred to in clause (a) remains outstanding, if designated
by the Parent to be included in the definition of “ABL Credit Agreement,” one or more (i) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of
receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (ii) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt
instruments or bank guarantees or bankers’ acceptances) or (iii) instruments or agreements evidencing any other indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified,
extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“ABL Documents” means the ABL Credit
Agreement, the ABL Security Documents and the other “Loan Documents” as defined in the ABL Credit Agreement.
“ABL Mortgages” means all “Mortgages” as
defined in the ABL Credit Agreement.
“ABL Obligations” means all “Obligations” (as
such term is defined in the ABL Credit Agreement) of the ABL Borrowers and all other obligors under the ABL Credit Agreement or any of the other ABL Documents, including obligations to pay principal, premiums, if any, interest, attorneys
fees, fees, costs, charges, expenses, Bank Product Obligations (as defined in the ABL Credit Agreement) and Letter of Credit (as defined in the ABL Credit Agreement) commissions, fees and charges (and, with regard to all such items, including
any interest accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection
with the ABL Documents and the performance of all other Obligations of the obligors thereunder to the lenders and agents under the ABL Documents according to the respective terms thereof.
“ABL Priority Collateral” means all
Collateral now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor Relief Law), would
constitute ABL Priority Collateral) by the ABL Borrowers or any other Grantor consisting of the following:
(a) all Accounts; (b) all Chattel Paper and rights to payment evidenced thereby; (c) all Inventory;
(d) all assets constituting ABL Priority Rental Tool Assets; (e) all cash and cash equivalents, (other than identifiable cash proceeds of the LC Facility Priority Collateral); (f) all deposit accounts and securities accounts (including any
funds or other property held in or on deposit therein but specifically excluding identifiable cash proceeds of LC Facility Priority Collateral); (g) all Payment Intangibles in respect of the items referred to in the previous clauses (a)-(f);
(h) to the extent related to, substituted or exchanged for, evidencing, supporting or arising from any of the items referred to in the preceding clauses (a)-(g), all Documents, Letter-of-credit rights, Instruments and rights to payment
evidenced thereby, Supporting Obligations, all General Intangibles (other than the Capital Stock of each Grantor and its subsidiaries and Intellectual Property) and books and records, including customer lists; (i) to the extent attributed or
pertaining to any ABL Priority Collateral, all Commercial Tort Claims; (j) all intercompany payables and other intercompany claims, business interruption insurance proceeds, representation and warranty insurance proceeds, and tax refunds; and
(k) all substitutions, replacements, accessions, products, or proceeds of any of the foregoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to, or destruction of, or other involuntary
conversion (including claims in respect of condemnation or expropriation) of any kind or nature of any or all of the foregoing, provided that in no case shall ABL Priority Collateral include any identifiable cash proceeds from a sale,
lease, conveyance or disposition of any LC Priority Collateral.
All capitalized terms used in this definition and not defined elsewhere in this Agreement have the
meanings assigned to them in the New York UCC.
“ABL Priority Possessory Collateral” means
ABL Priority Collateral that is Possessory Collateral.
“ABL Priority Rental Tool Assets” means
unfinanced drilling, fracking, well maintenance and other similar rental tools, including, without limitation, artificial lift equipment, cementation production, drilling services, drilling tools, intervention services, line hanger, pressure
drilling, open and case hole, pressure pumping, production automation, sand control, testing, tubular running services, well services, and wireline, in each case constituting Inventory or Equipment of a Domestic Borrowing Base Loan Party or a
Canadian Borrowing Base Loan Party (as each such term is defined in the ABL Credit Agreement), that is held in the ordinary course of business for rental to another Person that is not an affiliate of any Grantor.
“ABL Secured Parties” means the “Secured
Parties” as defined in the ABL Security Agreement.
“ABL Security Agreement” means the U.S.
Security Agreement, dated as of the date hereof, among the Parent, each other pledgor party thereto and the ABL Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“ABL Security Documents” means the ABL
Security Agreement, the ABL Mortgages and any other documents now existing or entered into after the date hereof that create or purport to create Liens on any assets or properties of any Grantor to secure any ABL Obligations.
“Agreement” has the meaning set forth in the
recitals.
“Applicable Junior Collateral Agent” means
(a) with respect to the LC Priority Collateral, the ABL Collateral Agent (b) with respect to the ABL Priority Collateral, the LC Collateral Agent.
“Applicable Possessory Collateral Agent”
means (a) with respect to ABL Priority Possessory Collateral, the ABL Collateral Agent (b) with respect to LC Priority Possessory Collateral, the LC Collateral Agent and (c) notwithstanding the foregoing, with respect to Foreign Collateral,
the Foreign Collateral Agent.
“Applicable Senior Collateral Agent” means
(a) with respect to the ABL Priority Collateral, the ABL Collateral Agent, and (b) with respect to the LC Priority Collateral, the LC Collateral Agent.
“Bank Product Obligations” means all “Bank
Product Obligations” as defined in the ABL Credit Agreement (other than “Excluded Swap Obligations” as defined in the ABL Credit Agreement) and all “Banking Services Obligations” and all “Swap Obligations” as defined in the LC Credit
Agreement (other than “Excluded Swap Obligations” as defined in the LC Credit Agreement).
“Bankruptcy Case” has the meaning set forth
in Section 2.06(b).
“Bankruptcy Code” means Title 11 of the
United States Code, as amended.
“Business Day” means any day that is not a
Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or on which banking institutions in the State of New York are required or authorized by law or other governmental action to close.
“Capital Stock” means, with respect to any
Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including all common stock and preferred stock, common shares and preference
shares, any limited or general partnership interests and any limited liability company membership interests.
“Class” has the meaning set forth in the
definition of Senior Secured Obligations.
“Collateral” means all assets and properties
subject to (or purportedly subject to) Liens in favor of any Secured Party created by any of the Foreign Collateral Documents, ABL Security Documents or the LC Security Documents, as applicable, to secure the ABL Obligations or the LC
Obligations, as applicable.
“Collateral Agent” means the Foreign
Collateral Agent, ABL Collateral Agent, the LC Collateral Agent, or any of the foregoing, as the context may require.
“Comparable Junior Priority Collateral Document”
means, in relation to any Senior Secured Obligations Collateral subject to any Lien created (or purportedly created) under any Senior Secured Obligations Collateral Document, those Junior Secured Obligations Collateral Documents that create
(or purport to create) a Lien on the same Collateral, granted by the same Grantor.
“Controlling Party” means (i) for decisions
relating to Foreign Collateral that is ABL Priority Collateral (or only incidentally includes LC Priority Collateral), the ABL Collateral Agent and; (ii) for decisions relating to Foreign Collateral that is LC Priority Collateral (or only
incidentally includes ABL Priority Collateral), the LC Collateral Agent (and in the case of the LC Australian Collateral Agent, acting for, and with any decisions relating to LC Australian Collateral made by, the LC Administrative Agent).
“Debtor Relief Laws” means the Bankruptcy
Code, the United Kingdom’s Insolvency Act 1986, the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast), as amended, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), Dutch Bankruptcy Act (faillissementswet), the Winding-Up and Restructuring Act (Canada), the German Insolvency Code (Insolvenzordnung), Swiss Federal
Debt Collection and Bankruptcy Act (Bundesgesetz über Schuldbetreibung und Konkurs), Part XIII of the Bermuda Companies Act 1981, the Luxembourg Commercial Code and the Luxembourg Act dated 10 August
1915 on Commercial Companies, the Insolvency Act 2003 of the British Virgin Islands and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect, in each case as amended, including any corporate law of any jurisdiction which may be used by a debtor
to obtain a stay or a compromise, settlement, adjustment or arrangement of the claims of its creditors against it and including any rules and regulations pursuant thereto (but, in each case, shall exclude any part of such laws, rules or
regulations which relate solely to any solvent reorganization or solvent restructuring process).
“Default Disposition” means any private or
public sale or disposition of all or any material portion of the Senior Secured Obligations Collateral (including Foreign Collateral) by one or more Grantors with the consent of Senior Collateral Agent or Foreign Collateral Agent (as
instructed by the Controlling Party), as applicable, after the occurrence and during the continuation of an Event of Default under the Senior Secured Obligations Security Documents or the ABL Credit Agreement or LC Credit Agreement, as
applicable (and prior to the Discharge of the Senior Secured Obligations), including any disposition contemplated by Section 9-620 of the UCC, which disposition is conducted by such Grantors with the consent of Senior Collateral Agent or
Foreign Collateral Agent (as instructed by the Controlling Party) in connection with good faith efforts by Senior Collateral Agent or Foreign Collateral Agent (as instructed by the Controlling Party) to collect the Senior Secured Obligations
through the disposition of Senior Secured Obligations Collateral (including any Foreign Collateral).
“DIP Financing” has the meaning set forth in
Section 2.06(b).
“DIP Financing Liens” has the meaning set
forth in Section 2.06(b).
“DIP Lenders” has the meaning set forth in
Section 2.06(b).
“Discharge” means, with respect to any
Obligations, except to the extent otherwise provided herein with respect to the reinstatement or continuation of any such Obligations, the payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to
the extent no claim has been threatened (in writing) or asserted) of all such Obligations then outstanding, if any, and, with respect to (x) letters of credit or letter of credit guaranties outstanding under the agreements or instruments
governing such Obligations (as related to all or any subset of Obligations, the “Relevant Instruments”); (y) Bank Product Obligations (as defined in the ABL Credit Agreement); and
(z) asserted or threatened (in writing) claims, demands, actions, suits, investigations, liabilities, fines, costs, or damages for which a party may be entitled to indemnification or reimbursement by any Grantor, delivery of cash collateral
or backstop letters of credit in respect thereof in a manner consistent with such Relevant Instruments, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all
commitments of “secured parties” under the Relevant Instruments (including, in any event, all such interest, fees, costs, expenses and other charges regardless of whether such amounts are allowed, allowable or reasonable in any Insolvency or
Liquidation Proceeding, whether under Section 506 of the Bankruptcy Code of otherwise); provided that (i) the Discharge of ABL Obligations shall not be deemed to have occurred if such payments are made in connection with the
establishment of a replacement ABL Credit Agreement and (ii) the Discharge of LC Obligations shall not be deemed to have occurred if such payments are made with the proceeds of LC Obligations that constitute an exchange or replacement for or
a refinancing of such Obligations or LC Obligations. In the event any Obligations are modified and such Obligations are paid over time or otherwise modified, in each case, pursuant to Section 1129 of the Bankruptcy Code or similar Debtor
Relief Law, such Obligations shall be deemed to be discharged only when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new or modified indebtedness shall have been satisfied. The term
“Discharged” shall have a corresponding meaning.
“European Insolvency Regulation” means
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)
“Event of Default” means an “Event of
Default” under and as defined in the ABL Credit Agreement or the LC Credit Agreement, as the context may require.
“Foreign Collateral” has the meaning set
forth in Section 2.01(d).
“Foreign Collateral Agent” means ABL
Collateral Agent and its successors (as appointed in accordance with Article VI hereof) or assigns.
“Foreign Collateral Documents” means the
documents listed on Schedule I attached hereto and any other documents creating (or purporting to create) a Lien on any Foreign Collateral in favor of Foreign Collateral Agent and all documents delivered therewith.
“Grantor” means Parent and each Subsidiary of
Parent that shall have granted any Lien in favor of any Collateral Agent on any of its assets or properties to secure any of the Obligations.
“Insolvency or Liquidation Proceeding” means
(a) any case or proceeding commenced by or against the Parent or any other Grantor under the Bankruptcy Code or other Debtor Relief Laws or any other process or proceeding for the reorganization, recapitalization, restructuring, adjustment,
arrangement or marshalling of the assets or liabilities of the Parent or any other Grantor or any receivership or assignment for the benefit of creditors relating to the Parent or any other Grantor or relating to all or a substantial part of
the property or assets of the Parent or any other Grantor or any similar case or proceeding relative to the Parent or any other Grantor, or their respective property or their respective creditors, as such, in each case whether or not
voluntary; (b) any process or proceeding for the appointment of any trustee in bankruptcy, receiver, receiver and manager, interim receiver, administrator, liquidator, monitor, custodian, sequestrator, conservator or any similar official
appointed for or relating to the Parent or any other Grantor or all or a substantial portion of their respective property and assets, in each case whether or not voluntary; (c) any liquidation, dissolution, marshalling of assets or
liabilities or other winding up (or similar process) of or relating to the Parent or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or (d) any other proceeding of any type or
nature in which substantially all claims of creditors of the Parent or any other Grantor, or of a class of creditors of the Parent or any other Grantor, are stayed, compromised, restructured or determined and any payment, distribution,
restructuring or arrangement is or may be made on account of or in relation to such claims.
“Junior Claims” means (a) with respect to the
ABL Priority Collateral, the LC Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the ABL Obligations secured by such Collateral.
“Junior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the ABL Collateral Agent and (b) with respect to the ABL Priority Collateral, the LC Collateral Agent.
“Junior Representative” means (a) with
respect to the LC Priority Collateral, the ABL Collateral Agent and (b) with respect to the ABL Priority Collateral, the LC Collateral Agent.
“Junior Secured Obligations” means (a) with
respect to the ABL Obligations (to the extent such Obligations are secured by the ABL Priority Collateral), the LC Obligations (to the extent such Obligations are secured by the ABL Priority Collateral) and (b) with respect to the LC
Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the ABL Obligations (to the extent such Obligations are secured by the LC Priority Collateral).
“Junior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Junior Claims.
“Junior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the ABL Security Documents and (b) with respect to the ABL Obligations, the LC Security Documents.
“Junior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the ABL Secured Parties (to the extent that the Obligations owing to such ABL Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the ABL Priority
Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the ABL Priority Collateral).
“LC Administrative Agent” means the
Administrative Agent under, and as defined in, the LC Credit Agreement together with its successors and co-agents in substantially the same capacity as may from time to time be appointed.
“LC Australian Collateral Agent” has the
meaning set forth in the recitals.
“LC Australian Security Trust” means the
“Security Trust” under and as defined in the LC Australian Security Trust Deed.
“LC Australian Security Trust Deed” means the
Security Trust Deed to be entered into among the Borrowers, the LC Administrative Agent, the LC Lenders and the LC Australian Collateral Agent.
“LC Australian Security Documents” means the
LC Australian Security Trust Deed and each other Australian law governed document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations in favor of the LC
Australian Collateral Agent.
“LC Collateral Agent” has the meaning set
forth in the recitals.
“LC Credit Agreement” means (a) the Existing LC Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise),
restructured, repaid, refunded, Refinanced or otherwise modified from time to time after the date hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any
portion of the indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the
maturity thereof (except to the extent any such refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “LC Credit Agreement”) and (b) whether or not the facility referred to in clause (a)
remains outstanding, if designated by the Parent to be included in the definition of “LC Credit Agreement,” one or more (i) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (ii) debt securities, indentures or other forms of debt financing
(including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances) or (iii) instruments or agreements evidencing any other indebtedness, in each case, with the same or different borrowers or issuers and, in
each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time.
“LC Documents” means the LC Credit Agreement,
the LC Security Agreement, the LC Mortgages, the LC Australian Security Documents and the other “Loan Documents” as defined in the LC Credit Agreement.
“LC Facility Guarantee” means any guarantee
of the Obligations of the Parent under the LC Credit Agreement by any Person in accordance with the provisions of the LC Credit Agreement.
“LC Facility Guarantor” means any Person that
incurs a LC Facility Guarantee; provided that, upon the release or discharge of such Person from its LC Facility Guarantee in accordance with the LC Credit Agreement, such Person ceases to be a LC Facility Guarantor.
“LC Facility Secured Parties” means the “Secured Parties” as defined in the LC Credit Agreement.
“LC Lenders” has the meaning set forth in the
recitals.
“LC Mortgages” means all “Mortgages” as
defined in the LC Credit Agreement.
“LC Obligations” means all “Secured
Obligations” (as such term is defined in the LC Credit Agreement) of the LC Borrowers and other obligors under the LC Credit Agreement or any of the other LC Documents, including obligations to pay principal, premiums, if any, and interest,
attorneys fees, fees, costs, charges, expenses, Letters of Credit (as defined in the LC Credit Agreement) and commissions, (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or
Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the LC Documents and the performance of all other Obligations
of the obligors thereunder under the LC Documents, according to the respective terms thereof.
“LC Priority Collateral” means all Collateral
(other than ABL Priority Collateral) now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor
Relief Law), would constitute LC Priority Collateral) of any Grantor (including, for the avoidance of doubt, (a) all Real Estate Assets of Grantors; (b) all intellectual property; (c) all Capital Stock in each Grantor’s subsidiaries (as
defined in the LC Credit Agreement); (d) all proceeds of insurance policies other than business interruption insurance or representations and warranties insurance policies (excluding any such proceeds that relate to ABL Priority Collateral);
and (e) all products and proceeds of any and all of the foregoing (other than any such proceeds that are ABL Priority Collateral)).
“LC Priority Possessory Collateral” means LC
Priority Collateral that is Possessory Collateral.
“LC Secured Parties” means the (a) the LC Collateral Agent (including for avoidance of doubt the LC Australian Collateral Agent), and (b) the LC Facility Secured Parties.
“LC Security Agreement” means the U.S.
Security Agreement, dated as of the date hereof, by and among the Parent, LC Borrowers, each other pledgor party thereto and the LC Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“LC Security Documents” means the LC Security
Agreement, the LC Mortgages, the LC Australian Security Documents and any other documents now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations.
“Lien” means any lien, mortgage, deed of
trust, pledge, hypothecation, security interest, charge or encumbrance of any kind, including any conditional sale or other title retention agreement or any lease in the nature thereof or a ‘security interest’ (as defined in section 12 (1)
and (2) of the Personal Property Securities Act 2009 (Cth)) (whether voluntary or involuntary and whether imposed or created by operation of law or otherwise).
“Luxembourg Obligors” means any Grantor
organized under the laws of the Grand Duchy of Luxembourg.
“Memorandum” has the meaning set forth in
Section 2.02(c).
“Mortgages” means the ABL Mortgages and the
LC Mortgages.
“New York UCC” means the Uniform Commercial
Code as from time to time in effect in the State of New York.
“No Controlling Party Situation” means any
decision relating to Foreign Collateral whereby (a) due to the mixed nature of the Collateral involved, there is no Controlling Party or (b) the instructions from LC Collateral Agent as Controlling Party and ABL Collateral Agent as
Controlling Party are in conflict.
“Obligations” means the ABL Obligations and
the LC Obligations.
“Parent” has the meaning set forth in the
recitals.
“Permitted Discretion” means a determination
made in the exercise of good faith and reasonable credit judgment (from the perspective of a secured lender giving due regard to the nature of both the ABL Priority Collateral and the LC Priority Collateral and the relative proportion of each
such collateral type over which such discretion is being exercised).
“Permitted Remedies” means, with respect to
any Junior Secured Obligations:
(a) filing a proof of claim or statement of interest with respect to such Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
(b) taking any action (not adverse to the Liens securing Senior Secured Obligations, the priority status thereof, or the rights of the Applicable Senior Collateral Agent or any of the Senior Secured Obligations Secured Parties to
exercise rights, powers and/or remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the Collateral;
(c) filing any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior
Secured Obligations Secured Parties, including any claims secured by the Junior Secured Obligations Collateral, in each case in accordance with the terms of this Agreement;
(d) filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy
law, in each case in accordance with the terms of this Agreement or applicable law (including the bankruptcy laws of any applicable jurisdiction);
(e) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Senior Secured Obligations Collateral of the Senior Collateral Agent initiated
by such Senior Collateral Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by
such Senior Collateral Agent (it being understood that neither the Junior Collateral Agent nor any Junior Secured Obligations Secured Parties shall be entitled to receive any proceeds from the Senior Secured Obligations Collateral unless
otherwise expressly permitted herein);
(f) subject to Section 2.04(a)(iii), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers for the purposes of appraising or valuing the Collateral) or to receive information or
reports concerning the Collateral, in each case pursuant to the terms of the ABL Documents or LC Documents, as applicable, or applicable law;
(g) subject to Section 2.04(a)(iii), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not to violate or breach) an obligation under the ABL Documents or LC
Documents, as applicable; provided that such action does not include any action by a Junior Secured Obligations Secured Party to seek specific performance or injunctive relief against any Senior Secured Obligations Secured Party or
the sale or disposition of any such Senior Secured Obligations Secured Party’s Senior Secured Obligations Collateral in contravention of the other provisions of this Agreement;
(h) make a cash or, if allowed pursuant to applicable law, credit bid for Collateral at any public or private sale thereof, provided that (i) such Secured Party does not challenge the bid of any Senior Secured Obligations
Secured Party for its Senior Secured Obligations Collateral other than by the submission of a competing bid, (ii) each Senior Secured Obligations Secured Party may, subject to the terms of its Senior Secured Obligations Collateral
Documents, offset its Senior Secured Obligations against the purchase price for the Senior Secured Obligations Collateral and (iii) if such sale includes Junior Secured Obligations Collateral and Senior Secured Obligations Collateral, the
Junior Secured Obligations Secured Parties may only bid cash with respect to the Senior Secured Obligations Collateral; and
(i) in any Insolvency or Liquidation Proceeding, (i) voting on any Plan of Reorganization, (ii) filing any proof of claim and (iii) making other filings and motions and making any arguments in connection therewith (including in support
of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that comply with the terms of this Agreement.
“Person” means any natural person,
corporation, business trust, joint venture, association, company, partnership, limited liability partnership, limited liability company or government, individual or family trusts or any agency or political subdivision thereof.
“Plan of Reorganization” means any plan of reorganization, scheme of arrangement, plan of arrangement or compromise, proposal, plan of liquidation, agreement for composition or other type of plan, proposal or
arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.
“Possessory Collateral” means the Collateral
in the possession or control of any Collateral Agent (or its agents or bailees), to the extent that possession or control thereof (a) perfects a Lien thereon under the Uniform Commercial Code or (b) provides a substantially similar legal
effects as “perfection” under the Uniform Commercial Code under other applicable legislation of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments and Chattel
Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the ABL Security Documents or the LC Security Documents. All capitalized terms used in this definition and not defined elsewhere in this
Agreement have the meanings assigned to them in the New York UCC.
“Possessory Collateral Agent” means, with
respect to any Possessory Collateral, the Collateral Agent having possession or control (including through its agents or bailees) of same.
“Proceeds” has the meaning set forth in
Section 2.01(a).
“Real Estate Asset” means, at any time of
determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property that does not constitute Excluded Assets (as defined in the LC Credit Agreement).
“Refinance” means to amend, restate,
supplement, waive, replace (whether or not upon termination, and whether with the original parties or otherwise), restructure, repay, refund, refinance or otherwise modify from time to time (including by means of any agreement or indenture
extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the obligations under such agreement or agreements or indentures or any successor or replacement agreement or agreements or indentures or
increasing the amount loaned or issued thereunder or altering the maturity thereof). “Refinanced” and “Refinancing” shall
have correlative meanings; provided that that any of the foregoing that increases the principal amount of Senior Claims with respect to any Collateral shall be effective for purposes hereof only if such increase does not contravene
the documents pursuant to which any Junior Claims with respect to such Collateral have been incurred, all as in effect on the date hereof or as may be amended in accordance with the terms hereof.
“Related Parties” means, with respect to any
Person, such Person’s affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.
“Representative” means (a) in the case of any
ABL Obligations, the ABL Collateral Agent and (b) in the case of any LC Obligations, the LC Collateral Agent.
“Secured Parties” means (a) the ABL Secured
Parties and (b) the LC Secured Parties.
“Senior Claims” means (a) with respect to the
ABL Priority Collateral, the ABL Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the LC Obligations secured by such Collateral.
“Senior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the ABL Priority Collateral, the ABL Collateral Agent.
“Senior Representative” means (a) with
respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the ABL Priority Collateral, the ABL Collateral Agent.
“Senior Secured Obligations” means (a) with
respect to the ABL Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the LC Obligations, and (b) with respect to the LC Obligations (to the extent such Obligations are secured by the ABL Priority
Collateral), the ABL Obligations; the LC Obligations shall, collectively, constitute one “Class” of Senior Secured Obligations and the ABL Obligations shall constitute a separate “Class” of Senior Secured Obligations.
“Senior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Senior Claims. For the avoidance of doubt, notwithstanding the Foreign Collateral Agent holding any Liens on Foreign Collateral for the
benefit of the Secured Parties, subject to Article VI, Foreign Collateral shall not be treated differently from other Collateral when determining whether such Collateral or its proceeds are Senior Secured Obligations Collateral.
“Senior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the LC Security Documents and (b) with respect to the ABL Obligations, the ABL Security Documents.
“Senior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the ABL Priority Collateral,
the ABL Secured Parties (to the extent that the Obligations owing to such ABL Secured Parties are secured by the ABL Priority Collateral).
“Subsidiary” of a person means (a) a company
or corporation, a majority of whose voting stock is at the time, directly or indirectly, owned by such person, by one or more subsidiaries of such person or by such person and one or more subsidiaries of such person, (b) a partnership in
which such person or one or more subsidiaries of such person is, at the date of determination, a general partner or (c) any other person (other than a corporation or partnership) in which such person, directly or indirectly, at the date of
determination thereof, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such person.
SECTION 1.02 Luxembourg Terms. In this Agreement, in respect of any Luxembourg Obligor or any other entity which is organized under the laws of the Grand-Duchy of Luxembourg or
has its “centre of main interests” (as that term is used in Article 3(1) of the European Insolvency Regulation in Luxembourg, a reference to:
(a) a “liquidator”, “trustee”, “custodian”, “compulsory manager”, “receiver”, “administrative receiver”, “administrator” or “similar officer” includes any:
(i) juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;
(ii) liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
(iii) juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on commercial
companies, as amended;
(iv) commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial
Code; and
(v) juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; and
(b) a “winding-up”, “administration”, “liquidation” or “dissolution”
includes, without limitation, bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve from
payment (sursis de paiement) and controlled management (gestion contrôlée).
(c) an officer, a manager or a director includes a manager (gérant) and a director (administrateur).
SECTION 1.03 Designation of Swap and Banking Obligations. With respect to any Bank Product Obligations that would otherwise constitute both ABL Obligations and LC Obligations
hereunder, such Bank Product Obligations shall solely constitute ABL Obligations for all purposes of this Agreement unless at the time that Parent or any Subsidiary thereof enters into any agreement giving rise to Bank Product Obligations,
or at any time thereafter, the counterparty to such agreement and Parent or such Subsidiary (as applicable) shall designate the related Bank Product Obligations under such agreement as LC Obligations in a writing signed between such parties
with a copy to each Representative party hereto, in which case such Bank Product Obligations shall solely constitute LC Obligations for all purposes of this Agreement.
ARTICLE II
Priorities and Agreements with Respect to Collateral
SECTION 2.01 Priority of Claims. (a) Anything contained herein or in any of the ABL Documents or the LC Documents to the contrary notwithstanding, if an Event of Default has
occurred and is continuing, and any Collateral Agent is taking action to enforce rights in respect of any Collateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Collateral
in any Insolvency or Liquidation Proceeding with respect to any Grantor, the Proceeds (subject, in the case of any such distribution, to Section 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and
all proceeds of any such distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to as “Proceeds”) shall be applied
as follows:
(i) In the case of LC Priority Collateral,
FIRST, to the payment in full of the LC Obligations in accordance with Section 9.04 of the LC Credit
Agreement and the other applicable provisions of the LC Documents, and
SECOND, to the payment in full of the ABL Obligations in accordance with Section 2.4(b) of the ABL
Credit Agreement and the other applicable provisions of the ABL Documents.
If any ABL Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of the
LC Priority Collateral will be applied to the repayment of any outstanding ABL Obligations.
(ii) In the case of ABL Priority Collateral,
FIRST, to the payment in full of the ABL Obligations in accordance with Section 2.4(b) of the ABL Credit
Agreement and the other applicable provisions of the ABL Documents, and
SECOND, to the payment in full of the LC Obligations in accordance with Section 9.04 of the LC Credit
Agreement and the other applicable provisions of the LC Documents.
If any LC Obligations remain outstanding after the Discharge of the ABL Obligations, all proceeds of the
ABL Priority Collateral will be applied to the repayment of any outstanding LC Obligations.
(b) It is acknowledged that (i) the aggregate amount of any Senior Secured Obligations may, subject to the limitations set forth in the ABL Credit Agreement and the LC Credit Agreement, both as in effect on the date hereof, may be
Refinanced from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the ABL Secured Parties and the LC Secured Parties and (ii) the Senior
Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The
priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any
Collateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and
notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Documents or the LC Documents, or any defect or deficiencies in or failure to perfect
any such Liens or any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on the LC Priority Collateral securing the ABL Obligations and (2) the Liens on the
ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on the ABL Priority Collateral securing the LC Obligations.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or ABL Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United
States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the
contemplated ranking as set forth in this Agreement or (C) not have been granted to ABL Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth
in Section 2.1, and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
SECTION 2.02 Actions With Respect to Collateral; Prohibition on Contesting Liens.
(a) Until the Discharge of all of the Senior Secured Obligations of a particular Class, (i) only the Applicable Senior Collateral Agent shall act or refrain from acting with respect to the Senior Secured Obligations Collateral of such
Class, (ii) no Collateral Agent shall follow any instructions with respect to such Senior Secured Obligations Collateral from any Junior Representative or from any Junior Secured Obligations Secured Parties and (iii) each Junior
Representative and the Junior Secured Obligations Secured Parties shall not, and shall not instruct any Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver,
receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to,
or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Junior Secured Obligations Collateral, whether under any ABL Security Document or any LC Security Document,
as applicable, applicable law or otherwise, it being agreed that (A) only the Applicable Senior Collateral Agent, acting in accordance with the ABL Security Documents or the LC Security Documents, as applicable, shall be entitled to take
any such actions or exercise any such remedies, or to cause any Collateral Agent to do so and (B) notwithstanding the foregoing, each Junior Representative may take Permitted Remedies. Each Senior Collateral Agent may deal with the Senior
Secured Obligations Collateral as if they had a senior Lien on such Collateral. No Junior Collateral Agent, Junior Representative or Junior Secured Obligations Secured Party will contest, protest or object to any foreclosure proceeding or
action brought by any Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party or any other exercise by such Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party of any
rights and remedies relating to the Senior Secured Obligations Collateral.
(b) Each of the Junior Collateral Agent and the Junior Secured Obligations Secured Parties agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the creation, extent, attachment, perfection, priority, validity or enforceability of a Lien or Senior Secured Obligations held by or on behalf of any of the Senior Secured
Obligations Secured Parties in all or any part of the Collateral or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents or the
Secured Parties to enforce this Agreement.
(c) (i) Only the Foreign Collateral Agent shall act or refrain from acting with respect to the Foreign Collateral, (ii) Foreign Collateral Agent shall not follow any instructions with respect to Foreign Collateral except from the
Controlling Party (in accordance with Article VI) and (iii) other than the Controlling Parties, no Secured Party will, or will instruct Foreign Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect
to, seek to have a trustee, receiver, receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any
right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Foreign Collateral, whether under any ABL Security Document or any
LC Security Document, applicable law or otherwise, it being agreed that (A) only the Foreign Collateral Agent, acting in accordance with the Foreign Collateral Documents and the terms of Article VI, shall be entitled to take any such
actions or exercise any such remedies and (B) notwithstanding the foregoing, each Representative may take Permitted Remedies with regard to the Foreign Collateral. No Secured Party will contest, protest or object to any foreclosure or
other proceeding or action brought by Foreign Collateral Agent acting upon instructions of a Controlling Party, and the Controlling Parties may make such instructions as if they had a senior Lien on such Foreign Collateral.
(d) (i) With respect to any payments or distributions in cash, property or other assets that any Junior Secured Obligations Secured Party pays over to any Senior Secured Obligations Secured Party under the terms of this Agreement, such
Junior Secured Obligations Secured Party shall be subrogated to the rights of the Senior Secured Party Obligations Secured Party and (ii) any Secured Party may assert its rights of subrogation under applicable law resulting from any draw or
other payment under any letter of credit issued under or secured by the ABL Documents or LC Documents, as applicable; provided, that (x) the LC Facility Secured Parties shall not assert or enforce any such rights of subrogation they
may acquire as described in clauses (i) or (ii) above with respect to the ABL Documents or ABL Priority Collateral until the Discharge of all ABL Obligations has occurred and (y) the ABL Secured Parties shall not assert or enforce any such
rights of subrogation they may acquire as described in clauses (i) or (ii) above with respect to the LC Documents or LC Priority Collateral until the Discharge of all LC Obligations has occurred.
(e) The parties hereto agree to execute, acknowledge and deliver a Memorandum of Intercreditor Agreement (“Memorandum”), together with such other documents in furtherance
hereof or thereof, in each case, in proper form for recording in connection with any Mortgages and in form and substance reasonably satisfactory to the Collateral Agents, in those jurisdictions where such recording is reasonably recommended
or requested by local real estate counsel and/or the title insurance company, or as otherwise deemed reasonably necessary or proper by the parties hereto.
SECTION 2.03 No Duties of Senior Representative; Provision of Notice.
(a) Each Junior Secured Obligations Secured Party acknowledges and agrees that none of the Senior Collateral Agents, the Senior Representative nor any other Senior Secured Obligations Secured Party shall have any duties or other
obligations to such Junior Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, other than to transfer to the Applicable Junior Collateral Agent any proceeds of any such Senior Secured Obligations
Collateral remaining in its possession or under its control following any sale, transfer or other disposition of such Collateral (in each case, unless the Junior Secured Obligations have been Discharged prior to or concurrently with such
sale, transfer, disposition, payment or satisfaction) and the Discharge of the Senior Secured Obligations secured thereby, or if a Senior Collateral Agent shall be in possession or control of all or any part of such Collateral after such
payment and satisfaction in full and termination, such Collateral or any part thereof remaining, in each case without representation or warranty on the part of any Senior Collateral Agent, any Senior Representative or any Senior Secured
Obligations Secured Party. In furtherance of the foregoing, each Junior Secured Obligations Secured Party acknowledges and agrees that, until the Senior Secured Obligations secured by any Collateral shall have been Discharged, the
Applicable Senior Collateral Agent shall be entitled, for the benefit of the holders of such Senior Secured Obligations, to sell, transfer or otherwise dispose of, or cause the sale, transfer or other disposition of, such Senior Secured
Obligations Collateral as provided herein and in the ABL Documents and the LC Documents, as applicable, without regard to any Junior Claims or any rights to which the holders of the Junior Secured Obligations would otherwise be entitled as
a result of such Junior Claims. Without limiting the foregoing, each Junior Secured Obligations Secured Party agrees that none of the Senior Collateral Agents, the Senior Representatives nor any other Senior Secured Obligations Secured
Party shall have any duty or obligation first to marshal or realize upon any type of Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), or to sell, dispose of, realize on or liquidate
all or any portion of such Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), in any manner that would maximize the return to the Junior Secured Obligations Secured Parties,
notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Junior Secured Obligations Secured Parties from such realization, sale,
disposition or liquidation. Each of the Junior Secured Obligations Secured Parties waives any claim such Junior Secured Obligations Secured Party may now or hereafter have against any Senior Collateral Agent, any Senior Representative or
any other Senior Secured Obligations Secured Party (or their representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) arising out of (i) any actions which any Senior
Collateral Agent, any Senior Representative or the Senior Secured Obligations Secured Parties (or their representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) take
or omit to take (including, actions with respect to the creation, attachment, perfection or continuation of Liens on any Senior Secured Obligations Collateral, actions with respect to the preservation, foreclosure upon, realization, sale,
release or depreciation of, or failure to realize upon, any of the Senior Secured Obligations Collateral and actions with respect to the collection of any claim for all or any part of the Senior Secured Obligations from any account debtor,
guarantor or any other party) in accordance with the ABL Documents and the LC Documents or any other agreement related thereto or to the collection of the Senior Secured Obligations or the valuation, use, protection or release of any
security for the Senior Secured Obligations, (ii) any election by any Applicable Senior Collateral Agent, any Senior Representative or any Senior Secured Obligations Secured Parties, in any proceeding instituted under the Bankruptcy Code,
of the application of Section 1111(b) of the Bankruptcy Code (or any equivalent proceeding under any other Debtor Relief Law) or (iii) subject to Section 2.06, any borrowing by, or grant of a security interest or administrative expense
priority under Section 364 of the Bankruptcy Code by, the Parent or any of its Subsidiaries, as debtor-in-possession (or any equivalent action under any other Debtor Relief Law).
SECTION 2.04 No Interference; Payment Over; Reinstatement.
(a) Each Junior Secured Obligations Secured Party, each Junior Representative and each Junior Collateral Agent agrees that (i) it will not take or cause to be taken any action the purpose or effect of which is, or could be, to make any
Junior Claim pari passu with, or to give such Junior Secured Obligations Secured Party any preference or priority relative to, any Senior Claim with respect to the Senior Secured Obligations
Collateral or any part thereof, (ii) it will not challenge or question in any proceeding the validity or enforceability of any Foreign Collateral Document, ABL Security Document, or LC Security Document or the extent, validity, attachment,
perfection, priority, or enforceability of any Lien under the Foreign Collateral Documents, ABL Security Documents or the LC Security Documents, or the validity or enforceability of the priorities, rights or duties established by or other
provisions of this Agreement, (iii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale,
transfer or other disposition of the Senior Secured Obligations Collateral by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Parties or any Senior Representative acting on their behalf (or their respective
representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint), including with respect to the Foreign Collateral by the Foreign Collateral Agent following the instructions
of a Controlling Party, (iv) it shall have no right to (A) direct the Applicable Senior Collateral Agent, any Senior Representative or any holder of Senior Secured Obligations (or their respective representatives, including any receiver,
receiver and manager, interim receiver, administrator, delegate or agent they may appoint) to exercise any right, remedy or power with respect to any Senior Secured Obligations Collateral or (B) consent to the exercise by the Applicable
Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party (or their respective representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent
they may appoint) of any right, remedy or power with respect to any Senior Secured Obligations Collateral, (v) it will not institute any suit or assert in any Insolvency or Liquidation Proceeding any claim against the Applicable Senior
Collateral Agent, any Senior Representative or other Senior Secured Obligations Secured Party seeking damages from or other relief by way of specific performance, injunction, directions, instructions or otherwise with respect to, and none
of the Applicable Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party shall be liable for, any action taken or omitted to be taken by such Senior Collateral Agent, such Senior
Representative or other Senior Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, (vi) it will not seek, and hereby waives any right, to have any Senior Secured Obligations Collateral, Foreign
Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Senior Secured Obligations Collateral or Foreign Collateral and (vii) it will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents, or the Secured Parties to
enforce this Agreement.
(b) Each Junior Collateral Agent, each Junior Representative and each Junior Secured Obligations Secured Party hereby agrees that, if it shall obtain possession or control of any Senior Secured Obligations Collateral, or shall receive
any Proceeds or payment in respect of any Senior Secured Obligations Collateral, pursuant to any ABL Security Document or LC Security Document or by the exercise of any rights available to it under any applicable law or in any Insolvency or
Liquidation Proceeding or through any other exercise of rights or remedies, at any time prior to the Discharge of the Senior Secured Obligations, then it shall hold such Senior Secured Obligations Collateral proceeds or payment in trust for
the Senior Secured Obligations Secured Parties and transfer such Senior Secured Obligations Collateral, proceeds or payment, as the case may be, to the Applicable Senior Collateral Agent reasonably promptly after obtaining actual knowledge,
or notice from the Applicable Senior Collateral Agent, that it is in possession or control of such Senior Secured Obligations Collateral, proceeds or payment. Each Junior Secured Obligations Secured Party agrees that if, at any time, it
receives notice or obtains actual knowledge that all or part of any payment with respect to any Senior Secured Obligations previously made shall be rescinded for any reason whatsoever, such Junior Secured Obligations Secured Party shall
promptly pay over to the Applicable Senior Collateral Agent any payment received by it and then in its possession or under its control in respect of any Senior Secured Obligations Collateral and shall promptly turn over any Senior Secured
Obligations Collateral then held by it over to the Applicable Senior Collateral Agent, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made, until the payment and satisfaction in full of
the Senior Secured Obligations.
(c) Prior to the Discharge of Senior Secured Obligations, if any Junior Secured Obligations Secured Party holds any Lien on any assets of the Parent or any other Grantor securing any Junior Claims that are intended to secure the Senior
Claims pursuant to the Senior Secured Obligations Collateral Documents but are not already subject to a senior Lien in favor of the Senior Secured Obligations Secured Parties, such Junior Secured Obligations Secured Party, upon demand by
any Senior Secured Obligations Secured Party, will assign such Lien to the applicable Senior Representative, as security for such Senior Secured Obligations (in which case the Junior Secured Obligations Secured Parties may retain a junior
Lien on such assets subject to the terms hereof).
SECTION 2.05 Automatic Release of Junior Liens.
(a) The LC Collateral Agent and each other LC Secured Party agrees that, in the event of a sale, transfer or other disposition of any ABL Priority Collateral in connection with the foreclosure upon or other exercise of rights and
remedies with respect to such ABL Priority Collateral that results in the release by the ABL Collateral Agent of the Lien held by the ABL Collateral Agent on such ABL Priority Collateral, the Lien held by the LC Collateral Agent on such ABL
Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the LC Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under this clause (a)
that remain after Discharge of the ABL Obligations, and the Liens on such remaining proceeds securing the LC Obligations shall not be automatically released pursuant to this Section 2.05(a).
(b) The ABL Collateral Agent and each other ABL Secured Party agrees that, in the event of a sale, transfer or other disposition of any LC Priority Collateral in connection with the foreclosure upon or other exercise of rights and
remedies with respect to such LC Priority Collateral that results in the release by the LC Collateral Agent of the Lien held by the LC Collateral Agent on such LC Priority Collateral, the Lien held by the ABL Collateral Agent on such LC
Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the ABL Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under this clause (a)
that remain after Discharge of all LC Obligations, and the Liens on such remaining proceeds securing the ABL Obligations shall not be automatically released pursuant to this Section 2.05(b).
(c) In the event of a Default Disposition, the Liens of Junior Collateral Agent shall be automatically released so long as (i) such Default Disposition is conducted by the applicable Grantor(s) in a commercially reasonable manner (as if
such Default Disposition were a disposition of collateral by a secured party in accordance with the UCC or similar law under the applicable jurisdiction) and in accordance with applicable law, (ii) Senior Collateral Agent also releases its
Liens on such Senior Secured Obligations Collateral and (iii) the net cash proceeds of any such Default Disposition are applied in accordance with Section 2.1(a) hereof (as if they were proceeds received in connection with an
enforcement action).
(d) Each Junior Representative and each Junior Collateral Agent agrees to execute and deliver (at the sole cost and expense of the applicable Grantors) all such authorizations and other instruments as shall reasonably be requested by
the applicable Senior Representative or the Applicable Senior Collateral Agent to evidence and confirm any release of Junior Secured Obligations Collateral provided for in this Section.
(e) If at any time any Grantor or the holder of any Senior Secured Obligations delivers notice to each Junior Collateral Agent that any specified Senior Secured Obligations Collateral (including all or substantially all of the Capital
Stock of a Grantor or any of its Subsidiaries) is sold, transferred or otherwise disposed of (i) by the owner of such Collateral in a transaction permitted under the LC Documents and the ABL Documents, or (ii) during the existence of any
Event of Default under the ABL Documents or the LC Documents, in each case in connection with the foreclosure upon (or exercise of rights and remedies with respect to) such Collateral, to the extent that the Applicable Senior Collateral
Agent has consented to such sale, transfer or disposition, then the Liens in favor of the Junior Secured Obligations Secured Parties upon such Collateral will automatically be released and discharged as and when, but only to the extent,
such Liens on such Senior Secured Obligations Collateral are released and discharged; provided that the proceeds of such sale, transfer or disposition shall be applied in accordance with Section 2.01(a). Upon delivery to
each Junior Collateral Agent of a notice from the Applicable Senior Collateral Agent stating that any release of Liens securing or supporting the Senior Secured Obligations has become effective (or shall become effective upon each Junior
Collateral Agent’s release), each Junior Collateral Agent will promptly execute and deliver such instruments, releases, terminations statements or other documents confirming such release on customary terms.
SECTION 2.06 Certain Agreements With Respect to Insolvency or Liquidation Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Debtor Relief Law by or against the Parent or any of its Subsidiaries. Without limiting
the generality of the foregoing, the provisions of this Agreement are intended to be and shall be enforceable as a “Subordination Agreement” under Section 510(a) of the Bankruptcy Code. All references to the Parent or any other Grantor
shall include such Parent or Grantor as a debtor-in-possession and any receiver, trustee, liquidator (whether provisional or permanent, as the case may be) or court-appointed officer for such person in any Insolvency or Liquidation
Proceeding.
(b) If the Parent or any of its Subsidiaries shall become subject to a case (a “Bankruptcy Case”) under any Debtor Relief Law:
(i) if the ABL Collateral Agent desires to permit debtor-in-possession financing (“DIP Financing”) secured by a Lien on the ABL Priority Collateral, to be
provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) or the use of cash
collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the LC Collateral Agent and the LC Secured Parties hereby agree to consent to and not to object to any such financing or to
the Liens on the ABL Priority Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes ABL Priority Collateral, unless the ABL
Collateral Agent shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral that constitutes ABL Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens
on any such ABL Priority Collateral for the benefit of the ABL Secured Parties, each LC Secured Party will subordinate its Liens with respect to such ABL Priority Collateral on the same terms as the Liens of the ABL Secured Parties (other
than any Liens of any ABL Secured Party constituting DIP Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge,
directors’ and officers’ charge or similar court-ordered priority charge under applicable Debtor Relief Laws) and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on
any such ABL Priority Collateral granted to secure the ABL Obligations of the ABL Secured Parties, each LC Secured Party will confirm the priorities with respect to such ABL Priority Collateral as set forth herein, in each case so long as
(A) the LC Secured Parties retain the benefit of their Liens on all such ABL Priority Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP
Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or Insolvency or Liquidation Proceeding, (B) the LC Secured Parties are granted junior Liens on any additional collateral pledged to any ABL Secured Party as
adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the ABL Obligations, such amount is applied pursuant to
Section 2.01(a) of this Agreement, and (D) if any ABL Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such
adequate protection are applied pursuant to Section 2.01(a) of this Agreement; provided that the LC Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall
not constitute ABL Priority Collateral and (ii) in respect of any additional Collateral that would not constitute ABL Priority Collateral hereunder were it pledged for the benefit of the ABL Secured Parties pursuant to the ABL Security
Documents to any ABL Secured Party as adequate protection, for use of cash collateral, or otherwise, as set forth in clause (B) above; and
(ii) if the LC Collateral Agent desires to permit a DIP Financing secured by a Lien on LC Priority Collateral, to be provided by DIP Lenders under Section 364 of the Bankruptcy Code (or any similar provision of any
other Debtor Relief Laws) or the use of cash collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the ABL Collateral Agent and the ABL Secured Parties hereby agree not to
object to any such financing or to the DIP Financing Liens or to any use of cash collateral that constitutes LC Priority Collateral, unless the LC Collateral Agent shall then oppose or object to such DIP Financing or such DIP Financing
Liens or use of cash collateral that constitutes LC Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such LC Priority Collateral for the benefit of the LC Secured Parties, each ABL
Secured Party will subordinate its Liens with respect to such LC Priority Collateral on the same terms as the Liens of the LC Secured Parties (other than any Liens of any ABL Secured Party constituting DIP Financing Liens) are subordinated
thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’ and officers’ charge or similar court-ordered priority charge under applicable
Debtor Relief Laws), and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such LC Priority Collateral granted to secure the LC Obligations of the LC Secured
Parties, each ABL Secured Party will confirm the priorities with respect to such LC Priority Collateral as set forth herein), in each case so long as (A) the ABL Secured Parties retain the benefit of their Liens on all such LC Priority
Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or
Insolvency or Liquidation Proceeding, (B) the ABL Secured Parties are granted Liens on any additional collateral pledged to any LC Secured Party as adequate protection or otherwise in connection with such DIP Financing or use of cash
collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the LC Obligations, such amount is applied pursuant to Section 2.01(a) of this Agreement and (D) if any LC Secured Parties are granted
adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection is applied pursuant to Section 2.01(a) of this Agreement; provided
that the ABL Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute LC Priority Collateral and (ii) in respect of any additional Collateral that
would not constitute LC Priority Collateral hereunder were it pledged for the benefit of the LC Secured Parties pursuant to the First Lien Security Documents to any LC Facility Secured Party as adequate protection, for use of cash
collateral, or otherwise, as set forth in clause (B) above).
(iii) No Junior Secured Obligations Secured Party will directly or indirectly propose or support any DIP Financing secured by a Lien senior or prior to the Liens of the Senior Secured Obligations Secured Parties on the
Senior Secured Obligations Collateral.
(c) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not object to and will not otherwise contest: (i) any motion for relief from the automatic stay or any other stay in any
Insolvency or Liquidation Proceeding (including by way of moratorium) or from any injunction against foreclosure or enforcement in respect of the Senior Secured Obligations made by the Applicable Senior Collateral Agent or any Senior
Secured Obligations Secured Party; (ii) any lawful exercise by any holder of Senior Claims of the right to credit bid Senior Claims in any sale of Collateral that is Senior Secured Obligations Collateral with respect to such Senior Claims;
(iii) any other request for judicial relief made in any court by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party relating to the lawful enforcement of any Lien on the Senior Secured Obligations
Collateral; (iv) and will consent to any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy
Code (or any equivalent action under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented to such sale or disposition (or related order) of such Senior Secured Obligations Collateral if such
sale or other disposition is not free and clear of the Liens securing the Junior Secured Obligations or (v) any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section
363 of the Bankruptcy Code or any other equivalent provision of the Bankruptcy Code (or any other provision under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented, and the related court
order provides that, to the extent the sale is to be free and clear of Liens, the Liens securing the Senior Secured Obligations and the Junior Secured Obligations will attach to the proceeds of the sale on the same basis of priority as the
Liens securing such Obligations on the assets being sold, in accordance with this Agreement.
(d) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding (including by way of
moratorium) with respect to Senior Secured Obligations Collateral without the prior consent of the Applicable Senior Collateral Agent, unless, and solely to the extent that, the Applicable Senior Collateral Agent or Senior Secured
Obligations Secured Party shall obtain relief from the automatic stay (or any other stay in any Insolvency or Liquidation Proceeding) with respect to such collateral to commence a lien enforcement action.
(e) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that it will not, other than as set forth in Section 2.06(b), object to and will not otherwise contest (or support any
other Person contesting): (i) any request by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party for adequate protection; provided that (1) any ABL Secured
Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from ABL Priority Collateral, any DIP Financing
under Section 2.06(b)(i) or the proceeds thereof and (2) any LC Secured Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such
payment is sought to be paid from LC Priority Collateral, any DIP Financing under Section 2.06(b)(ii) or the proceeds thereof or (ii) any objection by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured
Party to any motion, relief, action or proceeding based on the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party claiming a lack of adequate protection. Notwithstanding the foregoing, in any Insolvency or
Liquidation Proceeding, (x) if the Senior Secured Obligations Secured Parties (or any subset thereof) are granted adequate protection in the form of a replacement lien or additional collateral in connection with any DIP Financing or use of
cash collateral under Section 363 or Section 364 of the Bankruptcy Code or any similar law, then the Applicable Junior Collateral Agent may seek or request adequate protection in the form of a replacement Lien on such additional collateral,
so long as, with respect to the Senior Secured Obligations Collateral, such Lien is subordinated to the Liens securing the Senior Secured Obligations and such DIP Financing (and all obligations relating thereto), on the same basis as the
other Liens securing Junior Secured Obligations on the Senior Secured Obligations Collateral are subordinated to the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations under this Agreement; (y) in the
event the Applicable Junior Collateral Agent seeks or requests adequate protection and such adequate protection is granted in the form of a replacement lien or additional collateral, then the Applicable Junior Collateral Agent and the
Junior Secured Obligations Secured Parties hereby agree that the Senior Secured Obligations Secured Parties shall also be granted a Lien on such additional collateral as security for the Senior Secured Obligations and any such DIP Financing
and that any Lien on such additional collateral that constitutes Senior Secured Obligations Collateral securing the Junior Secured Obligations shall be subordinated to the Liens on such collateral securing the Senior Secured Obligations and
any such DIP Financing (and all obligations relating thereto) and any other Liens on Senior Secured Obligations Collateral granted to the holders of Senior Secured Obligations as adequate protection on the same basis as the Liens securing
Junior Secured Obligations are so subordinated to the Liens securing the Senior Secured Obligations under this Agreement; (z) any adequate protection granted in favor of any Senior Secured Obligations Secured Party in the form of a
superpriority or other administrative expense claim and any claim in favor of any Senior Secured Obligations Secured Party arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) (collectively, “Senior 507(b)
Claims”) shall be senior to and have priority of payment over any superpriority or other administrative expense claim and any claim arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) in favor of any
Junior Secured Obligations Secured Party (collectively, “Junior 507(b) Claims”). The holders of the Junior 507(b) Claims agree that, in connection with any Plan of Reorganization in any Insolvency or Liquidation Proceeding, such
Junior 507(b) Claims may be paid in any combination of cash, securities, or other property having a present value equal to the amount of such Junior 507(b) Claims as of the effective date of such plan. For the avoidance of doubt, as between
the ABL Secured Parties and LC Secured Parties, all Senior 507(b) Claims shall be pari passu with the Senior 507(b) Claims held by the other Class, and all Junior 507(b) Claims shall be pari passu with the Junior 507(b) Claims held by the other Class.
(f) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that (i) it will not oppose or seek to challenge any claim by the Applicable Senior Collateral Agent or any Senior Secured
Obligations Secured Party for allowance of Senior Secured Obligations consisting of post-petition interest, costs, fees, charges, or expenses and (ii) until the Discharge of Senior Secured Obligations has occurred, the Applicable Junior
Collateral Agent, on behalf of itself and the Junior Secured Obligations Secured Parties, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) senior to
or on a parity with the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations for costs or expenses of preserving or disposing of any Collateral; provided that, for the avoidance of doubt, any
amounts received by the Applicable Senior Collateral Agent pursuant to such a claim shall in all cases be subject to Section 2.1(a).
(g) The LC Collateral Agent, on behalf of the LC Secured Parties, and the ABL Collateral Agent, on behalf of the ABL Secured Parties, acknowledge and intend that the grants of Liens pursuant to the LC Security Documents, on the one
hand, and the ABL Security Documents, on the other hand, constitute separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the LC Obligations are fundamentally different from the
ABL Obligations and must be separately classified in any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately
preceding sentence, if it is held that the claims of the ABL Secured Parties and the LC Secured Parties in respect of any Collateral constitute claims in the same class (rather than separate classes of senior and junior secured claims),
then the ABL Secured Parties and the LC Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of ABL Obligations and LC Obligations against the Grantors (with the effect being
that, to the extent that the aggregate value of the ABL Priority Collateral or the LC Priority Collateral is sufficient (for this purpose ignoring all claims held by the other Secured Parties for whom such Collateral is Junior Secured
Obligations Collateral), the ABL Secured Parties or the LC Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts
owing in respect of post-petition interest, costs, fees, charges, or expenses that are available from the Senior Secured Obligations Collateral for each of the ABL Secured Parties and the LC Secured Parties, respectively, before any
distribution is made in respect of the Junior Claims with respect to such Collateral, with the holder of such Junior Claims hereby acknowledging and agreeing to turn over to the Junior Secured Obligations
Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries).
(h) If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization (or any form of
Court-sanctioned restructuring permitted under any applicable law), both on account of the ABL Obligations and on account of the LC Obligations, then, to the extent the debt obligations distributed on account of the ABL Obligations and on
account of the LC Obligations are secured by Liens upon the Collateral, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the debt obligations so
distributed, to the Liens securing such debt obligations and the distribution of proceeds thereof. The provisions of section 1129(b)(1) of the Bankruptcy Code notwithstanding, Junior Secured Obligations Secured Parties shall not propose,
support or vote in favor of any Plan of Reorganization that would result in a modification of or otherwise be inconsistent with Sections 2.01, 2.02, and 2.06(h) of this Agreement.
(i) Notwithstanding the provisions of Sections 2.02(a) and 2.02(b), 2.04(a) and 2.06(b), (c) (e) and (f) or otherwise, both before and during an Insolvency or Liquidation Proceeding, any of the Junior Secured Obligations Secured Parties
may take any actions and exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against any Grantor in accordance with
applicable law (including the Debtor Relief Laws of any applicable jurisdiction); provided that, the Junior Secured Obligations Secured Parties may not take any of the actions that is inconsistent with the terms of this Agreement,
including without limitation, such actions prohibited by Sections 2.02(a) and 2.02(b), Section 2.04(a) or Section 2.06(b), (c), (e) and (f); provided further, that in the event that any of the Junior Secured Obligations
Secured Parties becomes a judgment lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Junior Secured Obligations, such judgment lien shall be subject to the
terms of this Agreement for all purposes (including in relation to the Senior Secured Obligations) as the other Liens securing the Junior Secured Obligations are subject to this Agreement.
SECTION 2.07 Reinstatement. In the event that any of the Senior Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever
reason (including an order or judgment for disgorgement of a preference under any Debtor Relief Law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall
be fully applicable thereto until all such Senior Secured Obligations shall again have been irrevocably paid in full in cash.
SECTION 2.08 Entry Upon Premises by the ABL Collateral Agent.
(a) If the ABL Collateral Agent takes any enforcement action with respect to the ABL Priority Collateral, the LC Secured Parties (i) shall cooperate with the ABL Collateral Agent (subject to the condition that the LC Secured Parties
shall have no obligation or duty to take any action or refrain from taking any action that could reasonably be expected to result in the incurrence of any unreimbursed liability or damage to the LC Secured Parties) in its efforts to enforce
its security interest in the ABL Priority Collateral, including to finish any work-in-process and assemble the ABL Priority Collateral, (ii) shall not take or direct the LC Collateral Agent (including any receiver, receiver and manager,
interim receiver or agent appointed by it) to take any action designed or intended to hinder or restrict in any respect the ABL Collateral Agent (including any receiver, receiver and manager, interim receiver or agent appointed by it) from
enforcing its security interest in the ABL Priority Collateral, including finishing any work-in-process or assembling the ABL Priority Collateral, and (iii) shall permit and direct the LC Collateral Agent, and each other LC Collateral Agent
(including any receiver, receiver and manager, interim receiver delegate or agent they may appoint) to permit the ABL Collateral Agent, and their respective employees, advisers and representatives (and including any receiver, receiver and
manager, interim receiver delegate or agent they may appoint), upon reasonable advance notice, to enter upon and use the LC Priority Collateral (including (x) equipment, processors, computers and other machinery related to the storage or
processing of records, documents or files and (y) intellectual property) for a period not to exceed 180 days (except with respect to intellectual property, which use shall be permitted in accordance by Section 2.08(c)) after the taking of
such enforcement action, for purposes (to the extent permitted under applicable law) of (A) assembling and storing the ABL Priority Collateral and completing the processing of and turning into finished goods of any ABL Priority Collateral
consisting of work-in-process, (B) selling any or all of the ABL Priority Collateral located on such LC Priority Collateral, whether in bulk, in lots or to customers in the ordinary course of business or otherwise, (C) removing any or all
of the ABL Priority Collateral located on such LC Priority Collateral, or (D) taking reasonable actions to protect, secure, and otherwise enforce the rights and remedies of the ABL Secured Parties and the ABL Collateral Agent in and to and
relating to the ABL Priority Collateral; provided, however, that nothing contained in this Agreement shall restrict the rights of a LC Collateral Agent (acting on the instructions of the applicable LC Secured Parties) from
selling, assigning or otherwise transferring any LC Priority Collateral prior to the expiration of such 180-day period if the purchaser, assignee or transferee thereof agrees to be bound by the provisions of this Section. If any stay or
other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been entered by a court of competent jurisdiction, such 180-day period shall be tolled during the pendency of any such stay or other order. If
the ABL Collateral Agent (including any receiver, receiver and manager, interim receiver or agent appointed by it) conducts a public auction or private sale of the ABL Priority Collateral at any of the real property included within the LC
Priority Collateral, the ABL Collateral Agent shall use reasonable efforts to hold such auction or sale in a manner which would not unduly disrupt any LC Collateral Agent’s use of such real property for the benefit of the LC Secured
Parties.
(b) During the period of actual occupation, use or control by the ABL Secured Parties or their agents or representatives (including the ABL Collateral Agent to the extent acting on behalf of such parties and including any receiver,
receiver and manager, interim receiver, delegate or agent they may appoint) of any LC Priority Collateral, the ABL Secured Parties shall be obligated to (i) pay any rent, utilities or other costs and expenses necessary for LC Collateral
Agent to access such LC Priority Collateral and (ii) repair at their expense any physical damage to such LC Priority Collateral or other assets or property resulting from such occupancy, use or control, and to leave such LC Priority
Collateral or other assets or property in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted. Notwithstanding the foregoing, in no event shall the ABL Secured
Parties have any liability to the LC Secured Parties pursuant to this Section as a result of any condition (including any environmental condition, claim or liability) on or with respect to the LC Priority Collateral existing prior to the
date of the exercise by the ABL Secured Parties of their rights under this Section, and the ABL Secured Parties shall have no duty or liability to maintain the LC Priority Collateral in a condition or manner better than that in which it was
maintained prior to the use thereof by the ABL Secured Parties, or for any diminution in the value of the LC Priority Collateral that results solely from ordinary wear and tear resulting from the use of the LC Priority Collateral by the ABL
Secured Parties in the manner and for the time periods specified under this Section 2.08 or the absence of the ABL Priority Collateral therefrom. Without limiting the rights granted in this paragraph, the ABL Secured Parties shall cooperate
with the LC Collateral Agent (subject to the condition that the ABL Secured Parties shall have no obligation or duty to take any action or refrain from taking any action that could reasonably be expected to result in the incurrence of any
unreimbursed liability or damage to the ABL Secured Parties) in connection with any efforts made by it to cause the LC Priority Collateral to be sold.
(c) In addition, the LC Secured Parties and their respective Senior Representatives hereby grant to the ABL Collateral Agent and the ABL Secured Parties a non-exclusive worldwide license or right to use, to the maximum extent permitted
by applicable law and to the extent of their interest therein, exercisable without payment of royalty or other compensation, any of the LC Priority Collateral consisting of intellectual property in connection with the liquidation,
collection, disposition or other realization upon the ABL Priority Collateral pursuant to any enforcement action by the ABL Collateral Agent and the ABL Secured Parties; provided, however, such non-exclusive license shall
immediately expire upon the sale, lease, transfer or other disposition of all such ABL Priority Collateral or upon the Discharge of the ABL Obligations and shall not extend or transfer to the purchaser of such ABL Priority Collateral (other
than any rights to use such intellectual property as may exist in favor of any bona fide purchaser under applicable law). The ABL Collateral Agent’s use of such intellectual property shall be lawful, and any such license is granted on an
“AS IS” basis, without any representation or warranty whatsoever. Furthermore, each LC Collateral Agent agrees that, in connection with any exercise of remedies available to any LC Collateral Agent in respect of LC Priority Collateral, such
LC Collateral Agent shall provide written notice to any purchaser, assignee or transferee of intellectual property pursuant to such exercise of remedies, that the applicable intellectual property is subject to such license.
SECTION 2.09 Insurance. Unless and until the ABL Obligations have been Discharged, as between the ABL Collateral Agent, on the one hand, and the LC Collateral Agent, on the
other hand, only the ABL Collateral Agent will have the right (subject to the rights of the Grantors under the ABL Documents and the LC Documents) to adjust or settle any insurance policy or claim covering or constituting ABL Priority
Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the ABL Priority Collateral. Unless and until the LC Obligations have been Discharged, as between the ABL
Collateral Agent, on the one hand, and the LC Collateral Agent, on the other hand, only the LC Collateral Agent will have the right (subject to the rights of the Grantors under the ABL Documents and the LC Documents) to adjust or settle any
insurance policy covering or constituting LC Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding solely affecting the LC Priority Collateral. To the extent that
an insured loss covers or constitutes ABL Priority Collateral and LC Priority Collateral, then the ABL Collateral Agent and the LC Collateral Agent will work jointly and in good faith to collect, adjust or settle (subject to the rights of
the Grantors under the ABL Documents and the LC Obligations Documents) under the relevant insurance policy.
SECTION 2.10 Refinancings. Each of the ABL Obligations and the LC Obligations and the agreements governing them may be Refinanced, in each case without notice to, or the consent
(except to the extent a consent is otherwise required to permit the Refinancing transaction under any ABL Document or any LC Obligations Document, as in effect on the date hereof or as may be amended in
accordance with the terms hereof) of, any ABL Secured Party or any LC Secured Party, all without affecting the priorities provided for herein or the other provisions hereof; provided, however, that the holders of any such
Refinancing indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing (to the extent they are not already so bound) to the terms of this Agreement pursuant to a joinder in the form of Exhibit A
hereto, and such other Refinancing documents or agreements (including amendments or supplements to this Agreement) as each Applicable Senior Collateral Agent, shall reasonably request and in form and substance reasonably acceptable to such
Applicable Senior Collateral Agent. In connection with any Refinancing contemplated by this Section 2.10, this Agreement may be amended at the request and sole expense of the Parent, and without the consent (except to the extent a consent
is otherwise required to permit such Refinancing transaction under any ABL Document or any LC Obligations Document, and other than the consent of each Applicable Senior Collateral Agent, whose consent shall still be required to the extent
set forth in the proviso of the immediately preceding sentence) of any Representative, (a) to add parties (or any authorized agent or trustee therefor) providing any such Refinancing, (b) to confirm that such Refinancing indebtedness in
respect of any LC Obligations shall have the same rights and priorities in respect of any LC Priority Collateral as the indebtedness being Refinanced and (c) to confirm that such Refinancing indebtedness in respect of any ABL Obligations
shall have the same rights and priorities in respect of any ABL Priority Collateral as the indebtedness being Refinanced, all on the terms provided for herein immediately prior to such Refinancing. Any such additional party and each
Applicable Senior Collateral Agent shall be entitled to rely on the determination of officers of the Parent that such modifications do not violate the ABL Documents or the LC Documents if such determination is set forth in an officers’
certificate delivered to such party and each Applicable Senior Collateral Agent; provided, however, that such determination will not affect whether or not the Parent and the Grantors have complied with their undertakings in any such
document or this Agreement. In connection with the delivery of a joinder as set forth above, the Parent shall deliver an officer’s certificate to each Collateral Agent certifying that the Refinancing, including the incurrence of
indebtedness and the incurrence of liens in respect thereof, qualifies as a Refinancing as defined herein.
SECTION 2.11 Amendments to Security Documents.
(a) Subject to paragraph (c) below, each of the LC Collateral Agent and other LC Secured Parties agrees that, without the prior written consent of the ABL Collateral Agent, no LC Security Document to which such LC Collateral Agent or LC
Secured Party is party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new LC Security Document would be prohibited by or inconsistent with any
of the terms of this Agreement.
(b) Subject to paragraph (c) below, each of the ABL Collateral Agent and other ABL Secured Parties agrees that, without the prior written consent of the LC Collateral Agent and each LC Collateral Agent, no ABL Security Document to which
the ABL Collateral Agent or ABL Secured Parties are party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new ABL Security Document would be
prohibited by or inconsistent with any of the terms of this Agreement.
(c) In the event that any Senior Collateral Agent or Senior Secured Obligations Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Senior Secured Obligations Collateral Documents for the
purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, such Senior Secured Obligations Collateral Document or changing in any manner the rights of such Senior Collateral Agent, such Senior
Secured Obligations Secured Parties, the Grantors thereunder (including the release of any Liens in the applicable Senior Secured Obligations Collateral), then such amendment, waiver or consent shall apply automatically to any comparable
provision of each Comparable Junior Priority Collateral Document without the consent of any Junior Collateral Agent or any Junior Secured Obligations Secured Party and without any action by any Junior Collateral Agent, any Junior Secured
Obligations Secured Party, the Parent or any other Grantor; provided, however, that (A) such amendment, waiver or consent does not materially adversely affect the rights of the applicable Junior Secured Obligations Secured
Parties or the interests of the applicable Junior Secured Obligations Secured Parties in the applicable Junior Secured Obligations Collateral and not the Senior Collateral Agent or the Senior Secured Obligations Secured Parties, as the case
may be, that have a security interest in the affected collateral in a like or similar manner, and (B) written notice of such amendment, waiver or consent shall have been given by the Parent to the Applicable Junior Collateral Agent.
(d) Notwithstanding anything to the contrary contained herein, the LC Collateral Agent and other LC Secured Parties and the ABL Collateral Agent and other ABL Secured Parties hereby agree that they will not amend or otherwise modify the
provisions of the LC Documents or the ABL Documents related to the Refinancing or payment of any Obligations (including ordinary course payments) in a manner that makes them more restrictive to Grantors or otherwise prohibits or restricts a
Refinancing or payment permitted under the LC Documents or ABL Documents as in effect on the date hereof. The LC Collateral Agent and other LC Secured Parties hereby agree that they will not amend or otherwise modify Section 8.09 of the LC
Credit Agreement, the definition of “Liquidity,” any of the terms or definitions used to calculate compliance with Section 8.09 of the LC Credit Agreement, or the effect of any breach of Section 8.09 of the LC Credit Agreement.
SECTION 2.12 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) Each Possessory Collateral Agent agrees to hold the Possessory Collateral that is in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for, or, as applicable, on trust for, the
benefit of each Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral pursuant to the ABL Security Documents or the LC Security Documents, subject to the terms and
conditions of this Section 2.12. To the extent any Possessory Collateral is possessed by or is under the control of a Collateral Agent (either directly or through its agents or bailees) other than the Applicable Possessory Collateral
Agent, such Collateral Agent shall deliver such Possessory Collateral to (or shall cause such Possessory Collateral to be delivered to) the Applicable Possessory Collateral Agent and shall take all actions reasonably requested in writing by
the Applicable Possessory Collateral Agent to cause the Applicable Possessory Collateral Agent to have possession or control of same. Pending such delivery to the Applicable Possessory Collateral Agent, each other Collateral Agent agrees
to hold any Possessory Collateral as gratuitous bailee, or, as applicable, on trust for, for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory
Collateral, if any, pursuant to the applicable ABL Security Documents or LC Security Documents, in each case subject to the terms and conditions of this Section 2.12.
(b) The duties or responsibilities of each Possessory Collateral Agent and each other Collateral Agent under this Section 2.12 shall be limited solely to holding the Possessory Collateral as gratuitous bailee, or, as applicable, on
trust for, for the benefit of each Secured Party for purposes of perfecting the security interest held by the Secured Parties therein.
(c) Upon the Discharge of all LC Obligations, the LC Collateral Agent shall deliver to the ABL Collateral Agent, to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any) held by it, together with
any necessary endorsements (or otherwise allow the ABL Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such further action as is
required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except for loss or damage suffered by
the Possessory Collateral Agent as a result of its own willful misconduct, gross negligence or bad faith. No LC Collateral Agent shall be obligated to follow instructions from the ABL Collateral Agent in contravention of this Agreement.
(d) Upon the Discharge of all ABL Obligations, the ABL Collateral Agent shall deliver to the LC Collateral Agent, to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any) held by it, together
with any necessary endorsements (or otherwise allow the LC Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such further action as is
required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except for loss or damage suffered by
the Possessory Collateral Agent as a result of its own willful misconduct, gross negligence or bad faith. The ABL Collateral Agent shall not be obligated to follow instructions from any LC Collateral Agent in contravention of this
Agreement.
SECTION 2.13 Control Agreements. The ABL Collateral Agent hereby agrees to act as collateral agent of the LC Secured Parties under each control agreement solely for the purpose
of perfecting the Lien of the LC Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control. The LC Collateral Agent, on behalf of the LC Secured Parties, hereby appoints the ABL Collateral
Agent to act as its collateral agent under each such control agreement, as applicable. The duties or responsibilities of the ABL Collateral Agent under this Section 2.13 shall be limited solely to acting as agent for the benefit of each LC
Secured Party for purposes of perfecting the security interest held by the Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control, in each case prior to the Discharge of all ABL
Obligations
SECTION 2.14 Rights under Permits and Licenses. The LC Collateral Agent agrees that if the ABL Collateral Agent shall
require rights available under any permit or license controlled by the LC Collateral Agent (as certified to the LC Collateral Agent by the ABL Collateral Agent, upon which the LC Collateral Agent may rely) in order to realize on any ABL
Priority Collateral, the LC Collateral Agent shall (subject to the terms of the LC Documents, including the LC Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be available to it (at the sole expense
of the Grantors), consistent with applicable law and reasonably requested by the ABL Collateral Agent in writing, to make such rights available to the ABL Collateral Agent, subject to the Liens held by the LC Collateral Agent for the
benefit of the LC Secured Parties. The ABL Collateral Agent agrees that if the LC Collateral Agent shall require rights available under any permit or license controlled by the ABL Collateral Agent (as certified to the ABL Collateral Agent
by the LC Collateral Agent, upon which the ABL Collateral Agent may rely) in order to realize on any LC Priority Collateral, the ABL Collateral Agent shall (subject to the terms of the ABL Documents, including such ABL Collateral Agent’s
rights to indemnification thereunder) take all such actions as shall be available to it (at the sole expense of the Grantors), consistent with applicable law and reasonably requested by the LC Collateral Agent in writing, to make such
rights available to the LC Collateral Agent, subject to the Liens held by the ABL Collateral Agent for the benefit of the ABL Secured Parties.
ARTICLE III
Existence and Amounts of Liens and Obligations
Whenever a Representative shall be required, in connection with the exercise of its rights or the
performance of its obligations hereunder, to determine the existence or amount of any Senior Secured Obligations (or the existence of any commitment to extend credit that would constitute Senior Secured Obligations) or Junior Secured
Obligations, or the Collateral subject to any such Lien, it may, acting reasonably, request that such information be furnished to it in writing by the other Representatives and shall be entitled to make such determination on the basis of the
information so furnished; provided, however, that, if a Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Representative shall be entitled to make any such
determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Parent. Each Representative may rely conclusively, and shall be fully protected in so relying, on
any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Parent or any of its subsidiaries, any Secured Party
or any other Person as a result of such determination.
ARTICLE IV
Consent of Grantors
Each Grantor hereby consents to the provisions of this Agreement and the intercreditor arrangements
provided for herein and agrees that the obligations of the Grantors under the ABL Security Documents, the LC Security Documents or the Foreign Collateral Documents will in no way be diminished or otherwise affected by such provisions or
arrangements.
ARTICLE V
Representations and Warranties
SECTION 5.01 Representations and Warranties of Each Party. Each party hereto represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized or incorporated (as the case may be), validly existing and, if applicable, in good standing (or the equivalent status under the laws of any foreign jurisdiction) under the laws of the jurisdiction of its
organization or incorporation (as the case may be) and has all requisite power and authority to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly executed and delivered by such party.
(c) The execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority, (ii) will not violate any
applicable law or regulation or any order of any governmental authority and (iii) will not violate the charter, by-laws or other organizational documents of such party.
SECTION 5.02 Representations and Warranties of Each Representative. Each Collateral Agent and Representative represents and warrants to the other parties hereto that it is
authorized under the ABL Credit Agreement or the LC Obligations Credit Agreement, as applicable, to enter into this Agreement.
ARTICLE VI
Collateral Agency for Foreign Collateral
SECTION 6.01 Appointment of Foreign Collateral Agent. It is acknowledged that, in certain jurisdictions outside of the United State of America, applicable law prevents both the
ABL Collateral Agent and the LC Collateral Agent from obtaining liens on the Collateral. In such circumstances, solely for Foreign Collateral, the parties hereto agree that (i) WF is hereby appointed as Foreign Collateral Agent and
sub-agent for the Collateral Agents and (ii) notwithstanding anything to the contrary contained herein, Foreign Collateral Agent is permitted to hold Liens on such Foreign Collateral on trust for the Secured Parties notwithstanding the
inability of any other Collateral Agent to hold similar Liens. In recognition of the foregoing, each other Collateral Agent hereby irrevocably appoints WF to act as the “collateral agent” under any Foreign Collateral Documents, and each
other Collateral Agent hereby irrevocably appoints and authorizes WF to act as the agent of such Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Foreign Collateral granted by any of the Grantors to secure
any of the ABL Obligations or LC Obligations, together with such powers and discretion as are reasonably incidental thereto (including, without limitation, to enter into additional Foreign Collateral Documents or supplements to existing
Foreign Collateral Documents on behalf of the Secured Parties). In this connection, the Foreign Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Foreign Collateral Agent pursuant
to this Article VI for purposes of holding or enforcing any Lien on the Foreign Collateral (or any portion thereof) granted under the Foreign Collateral Documents, or for exercising any rights and remedies thereunder at the
direction of the Foreign Collateral Agent, shall be entitled to the benefits of all provisions of this Agreement, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under this agreement and the Foreign
Collateral Documents as if set forth in full herein with respect thereto. It is understood and agreed that the use of the term “agent” herein or in any other Foreign Collateral Documents (or any other similar term) with reference to the
Foreign Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to
create or reflect only an administrative relationship between contracting parties.
SECTION 6.02 Rights as a Secured Party. The Person serving as the Foreign Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as
any other Secured Party and may exercise the same as though it were not the Foreign Collateral Agent and the term “Secured Party” or “Secured Parties” (or, as applicable, ABL Secured Party or LC Secured Party) shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the Foreign Collateral Agent hereunder in its individual capacity. Such Person and its affiliates may accept deposits from, lend money to, own
securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Grantor or any Grantor’s Subsidiary or other affiliate thereof as if such Person were not the Foreign
Collateral Agent hereunder and without any duty to account therefor to the Secured Parties.
SECTION 6.03 Exculpatory Provisions.
(a) The Foreign Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Foreign Collateral Documents to which Foreign Collateral Agent is a party, and its duties hereunder and
thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Foreign Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default under the ABL Documents or LC Documents has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers (though it hereby is authorized to take such actions in its Permitted Discretion), except discretionary rights and
powers expressly contemplated hereby or by the Foreign Collateral Documents that the Foreign Collateral Agent is required to exercise as directed in writing by the Controlling Parties; provided that the Foreign Collateral Agent
shall not be required to take any action that, in its good faith, based upon the advice of counsel or upon the written opinion of its counsel, may expose the Foreign Collateral Agent to liability or that is contrary to any Foreign
Collateral Document or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property in
violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the Foreign Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Grantors or
any of their Subsidiaries or affiliates that is communicated to or obtained by the Person serving as the Foreign Collateral Agent or any of its affiliates in any capacity.
(b) The Foreign Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Controlling Parties or (ii) in the absence of its own willful misconduct, gross negligence or bad
faith as determined by a court of competent jurisdiction by final nonappealable judgment. The Foreign Collateral Agent shall be deemed not to have knowledge of any default or Event of Default under the ABL Documents or LC Documents unless
and until notice describing such default or Event of Default is given to the Foreign Collateral Agent by the Grantors, LC Collateral Agent, or ABL Collateral Agent.
(c) The Foreign Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Foreign Collateral
Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any default or Event of Default or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Foreign Collateral Document or any other agreement,
instrument or document.
SECTION 6.04 Reliance by the Foreign Collateral Agent. The Foreign Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Foreign Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. The Foreign Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the written advice of any such counsel, accountants or experts.
SECTION 6.05 Delegation of Duties.
(a) The Foreign Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any Foreign Collateral Document by or through any one or more sub-agents appointed by the Foreign Collateral
Agent. The Foreign Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VI shall apply
to any such sub-agent and to the Related Parties of the Foreign Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the Foreign Collateral. The Foreign Collateral Agent shall not be
responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Foreign Collateral Agent acted with willful misconduct,
gross negligence or bad faith in the selection of such sub agents.
(b) Should any instrument in writing from any Grantor be required by any sub-agent appointed by the Foreign Collateral Agent to more fully or certainly vest in and confirm to such sub-agent such rights, powers, privileges and duties,
such Grantor shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Foreign Collateral Agent. If any such sub-agent, or successor thereto, shall resign or be removed, all rights, powers, privileges
and duties of such sub-agent, to the extent permitted by law, shall automatically vest in and be exercised by the Foreign Collateral Agent until the appointment of a new sub-agent. All references in this Agreement or in any other Foreign
Collateral Document to any Lien or Foreign Collateral Document granted or delivered in favour of the Foreign Collateral Agent shall include any Lien or Foreign Collateral Document granted to any sub-agent of the Foreign Collateral Agent
SECTION 6.06 Resignation of Foreign Collateral Agent.
(a) The Foreign Collateral Agent may at any time give notice of its resignation to the Representatives and the Grantors. Upon receipt of any such notice of resignation, the Secured Parties, acting through their Collateral Agents, shall
have the right (provided no Event of Default has occurred and is continuing under any LC Document or ABL Document at the time of such resignation) to appoint a successor, which shall be the ABL Collateral Agent (unless the ABL Collateral
Agent is also WF) or as jointly designated by ABL Collateral Agent and LC Collateral Agent. If no such successor shall have been so appointed in accordance with the preceding sentence and shall have accepted such appointment within 30 days
after the retiring Foreign Collateral Agent gives notice of its resignation (or such earlier day as shall be agreed by the Representatives) (the “Resignation Effective Date”), then the retiring Foreign Collateral Agent may (but shall
not be obligated to), on behalf of the Secured Parties, appoint a successor Foreign Collateral Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in
accordance with such notice on the Resignation Effective Date.
(b) With effect from the Resignation Effective Date, (1) the retiring Foreign Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Foreign Collateral Documents (except that in the case of
any collateral security held by the Foreign Collateral Agent on behalf of the Secured Parties under any of the Foreign Collateral Documents, the retiring Foreign Collateral Agent shall continue to hold such collateral security until such
time as a successor Foreign Collateral Agent is appointed but in any event, no more than sixty (60) days following the Resignation Effective Date) and (2) except for any indemnity payments owed to the retiring Foreign Collateral Agent, all
payments, communications and determinations provided to be made by, to or through the Foreign Collateral Agent shall instead be made by or to each Representative directly, until such time, if any, the relevant Collateral Agents appoint a
successor Foreign Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Foreign Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring Foreign Collateral Agent (other than any rights to indemnity payments owed to the retiring Foreign Collateral Agent), and the retiring Foreign Collateral Agent shall be discharged from all of its duties and
obligations hereunder or under the other Foreign Collateral Documents. After the retiring Foreign Collateral Agent’s resignation or removal hereunder and under the other Foreign Collateral Documents, the provisions of this Article shall
continue in effect for the benefit of such retiring Foreign Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Foreign Collateral
Agent was acting as Foreign Collateral Agent.
SECTION 6.07 Non-Reliance on Foreign Collateral Agent and Other Secured Parties. Each Collateral Agent acknowledges that it has, independently and without reliance upon the
Foreign Collateral Agent or any of its related parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement, the LC Documents, and the ABL
Documents, as applicable. Each Collateral Agent also acknowledges that it will, independently and without reliance upon the Foreign Collateral Agent or its related parties and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any Foreign Collateral Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 6.08 Collateral Matters.
(a) Each of the Collateral Agents irrevocably authorize the Foreign Collateral Agent, at its option and in its Permitted Discretion:
(i) to release any Lien or any other claim on any Foreign Collateral granted to or held by the Foreign Collateral Agent, for the benefit of the Secured Parties, under any Foreign Collateral Document (A) upon the Discharge
of the ABL Obligations and the Discharge of the LC Obligations, as applicable, in which case such Lien shall only be released with respect to the Obligations so Discharged; (B) that is sold or otherwise disposed of or to be sold or
otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under the Foreign Collateral Documents, ABL Documents and LC Documents or (C) if approved, authorized or ratified in writing in
accordance with Section 6.08(b).
(b) Upon request by the Foreign Collateral Agent at any time, the Controlling Parties will confirm in writing the Foreign Collateral Agent’s authority to release or subordinate its interest in particular types or items of property or
take any other action necessary to administer the Foreign Collateral. In each case, as specified in this Section 6.08, the Foreign Collateral Agent will, at the Grantors’ joint and several expense, execute and deliver to the
applicable Grantor such documents as such Grantor may reasonably request to evidence the release of such item of Foreign Collateral from the assignment and security interest granted under the Foreign Collateral Documents or to subordinate
its interest in such item, or to release such Grantor from its obligations under the Foreign Collateral Documents, in each case in accordance with the terms hereof and the terms of the Foreign Collateral Documents.
(c) The Foreign Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Foreign Collateral, the existence, priority
or perfection of the Foreign Collateral Agent’s Lien thereon, or any certificate prepared by any Grantor in connection therewith, nor shall the Foreign Collateral Agent be responsible or liable to the Secured Parties for any failure to
monitor or maintain any portion of the Foreign Collateral.
SECTION 6.09 Discretionary Rights. The Foreign Collateral Agent may:
(a) assume (unless it has received actual notice to the contrary from the Collateral Agents) that (i) no default or Event of Default has occurred and no Grantor is in breach of or default under its obligations under any of the Foreign
Collateral Documents, ABL Documents, or LC Documents, and (ii) any right, power, authority or discretion vested by any Foreign Collateral Documents, ABL Documents, or LC Documents in any person has not been exercised;
(b) if it receives any instructions or directions to take any action in relation to the Foreign Collateral, assume that all applicable conditions under this Agreement, LC Documents and ABL Documents for taking that action have been
satisfied;
(c) engage and pay for the advice or services of accountants, tax advisers, surveyors or other professional advisers or experts and a single legal counsel in each applicable jurisdiction (in addition to the Foreign Collateral Agent’s
general outside counsel);
(d) without prejudice for the generality of paragraph (c) above, at any time engage and pay for the services of a single additional counsel in each applicable jurisdiction to act as independent counsel to the Foreign Collateral Agent
(in addition to the Foreign Collateral Agent’s general outside counsel) (and so separate from any lawyers instructed by the other Secured Parties) if the Foreign Collateral Agent in its reasonable opinion deems this to be desirable and the
Collateral Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying on the advice or services of any professional engaged under this
Section 6.09;
(e) [reserved];
(f) refrain from acting in accordance with the instructions of any Secured Party or Controlling Party (including bringing any legal action or proceeding arising out of or in connection with the Foreign Collateral Documents) until it has
received any indemnification and/or security that it may in its reasonable discretion require which may be greater in extent than that contained for the benefit of any Representative in the ABL Documents or LC Documents. Notwithstanding any
provision of any ABL Documents or LC Documents to the contrary, the Foreign Collateral Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or
responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to
it; and
(g) during a No Controlling Party Situation, make decisions in its Permitted Discretion, and any actions taken based on such decisions shall be deemed to have been taken at the instruction of all Controlling Parties.
SECTION 6.10 Indemnification of Foreign Collateral Agent.
(a) The Secured Parties (other than the LC Australian Collateral Agent) shall jointly and severally indemnify the Foreign Collateral Agent within three Business Days of demand, and keep the Foreign Collateral Agent indemnified against
any demands, damages, expenses, costs, losses or liabilities made against or incurred by it in acting as Foreign Collateral Agent on behalf of the Secured Parties under this Agreement, the Foreign Collateral Documents, the LC Documents, or
the ABL Documents (provided that any indemnification obligations arising solely due to the instructions of a Controlling Party shall be borne solely by the Class represented by such
Controlling Party), unless the Foreign Collateral Agent (i) has been reimbursed by a Grantor pursuant to any of the Foreign Collateral Documents or (ii) such liabilities, losses, demands, damages, expenses or costs are incurred by or made
against the Foreign Collateral Agent as a result of willful misconduct, gross negligence or bad faith. The Grantors hereby jointly and severally indemnify the Secured Parties against any payment made by them under this Section 6.10(a) and
agree that any payments made by or costs attributable to any ABL Secured Party on account of the Foreign Collateral Agent shall be added to the ABL Obligations and any payments made by or costs attributable to any LC Secured Party on
account of the Foreign Collateral Agent shall be added to the LC Obligations.
(b) The Grantors covenant and agree that they shall defend and be jointly and severally liable to reimburse and indemnify the Foreign Collateral Agent (and its Affiliates, officers, directors, employees, attorneys and agents (“Foreign
Collateral Agent Related Persons”)) for any and all reasonable expenses and other charges actually incurred by the Foreign Collateral Agent on behalf of the Secured Parties in connection with the execution, delivery, administration
and enforcement of this Agreement and the Foreign Collateral Documents (or any of them) and from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, actual reasonable expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Foreign Collateral Agent, in any way relating to or arising out of this Agreement, any Foreign Collateral Document, or any other
document delivered in connection herewith or therewith or the transactions contemplated hereby or thereby, or the enforcement of any of the terms hereof or thereof, in each case, except to the extent caused by the Foreign Collateral Agent’s
or the Foreign Collateral Agent Related Person’s willful misconduct, gross negligence or bad faith.
(c) The obligations under this Section 6.10 shall survive the Discharge of the ABL Obligations, the Discharge of the LC Obligations, the resignation of any Foreign Collateral Agent, and termination of this Agreement and all of the
Foreign Collateral Documents.
SECTION 6.11 Treatment of Proceeds of Foreign Collateral.
(a) All amounts from time to time received or recovered by the Foreign Collateral Agent pursuant to the terms of any Foreign Collateral Document or in connection with the realization or enforcement of all or any part of the Foreign
Collateral (the “Foreign Recoveries”) shall be held by the Foreign Collateral Agent in trust and applied, to the extent permitted by applicable law, in the following order:
First, in discharging any sums owing to the Foreign Collateral Agent (in its capacity as such),
including (i) amounts owing to Foreign Collateral Agent to indemnify Foreign Collateral Agent for claims against it or claims that, in the reasonable discretion of Foreign Collateral Agent, may be asserted against Foreign Collateral Agent and
are subject to the indemnification provisions of this Agreement and (ii) any deductions and withholdings (on account of taxes or otherwise) which Foreign Collateral Agent is or may be required by any applicable law to make from any
distribution or payment made by it under this Agreement and to pay all taxes which may be assessed against it in respect of any of the Foreign Collateral Documents, or as a consequence of performing its duties, or by virtue of its capacity as
Foreign Collateral Agent (other than in connection with its remuneration for performing its duties under this Agreement); provided that any Foreign Collateral or proceeds thereof that is LC
Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the LC Secured Parties and Foreign Collateral or proceeds thereof that is
ABL Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the ABL Secured Parties;
Second, to the Representatives to be applied in accordance with Section 2.01(a) hereof.
For the avoidance of doubt, following acceleration of any of the ABL Obligations or the LC Obligations, Foreign Collateral
Agent may, in its Permitted Discretion, hold any amount of the Foreign Recoveries (subject to the proviso set forth in subclause “first” above) in a non-interest bearing account(s) in the name of the Foreign Collateral Agent with such
financial institution as it may select (including itself) and for so long as the Foreign Collateral Agent shall think appropriate in its Permitted Discretion for later application as set forth herein in respect of any sum owing to the Foreign
Collateral Agent that the Foreign Collateral Agent reasonably considers might become due or owing at any time in the future.
SECTION 6.12 Currency Conversion. The Foreign Collateral Agent is under no obligation to make the payments to the Secured Parties above in the same currency as that in which the
obligations and liabilities owing to the Secured Parties are denominated. To the extent any payment from Foreign Collateral Agent to a Representative causes a currency conversion, the provisions of the ABL Documents or the LC Documents (as
applicable, based on the Representative receiving payment) relating to currency conversions shall apply.
SECTION 6.13 Swiss Collateral.
(a) In relation to Foreign Collateral which is subject to a security document governed by Swiss law, the Foreign Collateral Agent shall:
(i) hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch)
in its own name but for the benefit of the Secured Parties; and
(ii) hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter
Stellvertreter) in the name and on behalf of the Secured Parties.
(b) The Foreign Collateral Agent shall be empowered to:
(i) exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Foreign Collateral Agent under the relevant security documents governed by Swiss law together with such
powers and discretions as are reasonably incidental thereto;
(ii) take such action on its behalf as may from time to time be authorized under or in accordance with the relevant Foreign Collateral Documents governed by Swiss law; and
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right granted in favor of any
Secured Party under Swiss law in connection with the ABL Documents and/or the LC Documents and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter)
any amendments, confirmations and/or alterations to any security document governed by Swiss law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the
release or confirmation of release of such Collateral, all subject to the provisions of this Agreement.
SECTION 6.14 Scottish Collateral.
(a) The Foreign Collateral Agent declares that it holds on trust for the Secured Parties, on the terms contained in this Article VI: (i) the Foreign Collateral expressed to be subject to the Liens created in favor of the Foreign
Collateral Agent as trustee for the Secured Parties by or pursuant to each Foreign Collateral Document which is governed by or subject to the laws of Scotland, and all proceeds of that Foreign Collateral; (ii) all obligations expressed to
be undertaken by any Grantor to pay amounts in respect of the Obligations to the Foreign Collateral Agent as trustee for the Secured Parties and secured by any Foreign Collateral Document which is governed by or subject to the laws of
Scotland together with all representations and warranties expressed to be given by any Grantor or any other person in favour of the Foreign Collateral Agent as trustee for the Secured Parties; and (iii) any other amounts or property,
whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Foreign Collateral Agent is required by the terms of the ABL Documents or the LC Documents to hold as trustee on trust for the Secured Parties.
(b) Without prejudice to the other provisions of this Article VI, each other Collateral Agent hereby irrevocably authorizes the Foreign Collateral Agent to perform the duties, obligations and responsibilities and to exercise the
rights, powers, authorities and discretions specifically given to the Foreign Collateral Agent as trustee for the Secured Parties under or in connection with the ABL Documents and the LC Documents together with any other incidental rights,
powers, authorities and discretions. For the avoidance of doubt, the Foreign Collateral Agent in its capacity as trustee for the Secured Parties shall have the same rights, powers, immunities, indemnities and exclusions from liability as
are prescribed in favor of the Foreign Collateral Agent in this Agreement, which shall apply mutatis mutandis.
ARTICLE VII
Miscellaneous
SECTION 7.01 Legends. Each Security Document shall (and, to the extent already in existence, shall be amended to) include a legend,
substantially similar to the form provided below, describing this Agreement (except in the case of any foreign jurisdiction, where such legend is not customary or where otherwise prohibited by applicable law):
Reference is made to the Intercreditor Agreement (the “Intercreditor Agreement”),
dated as of December 13, 2019, among Wells Fargo Bank, National Association, as ABL Collateral Agent (as defined in the Intercreditor Agreement) for the ABL Secured Parties referred to therein; Deutsche Bank Trust Company Americas, as LC
Collateral Agent (as defined in the Intercreditor Agreement) for the LC Facility Secured Parties referred to therein; Weatherford International plc, a public limited company incorporated in the Republic of Ireland, Weatherford International
Ltd., a Bermuda exempted company limited by shares, Weatherford International LLC, a Delaware limited liability company and the other Grantors of Weatherford International plc named therein (the “Intercreditor Agreement”). Each [ABL Secured
Party] [LC Secured Party], through its Collateral Agent, by obtaining the benefits of this Agreement, (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take
no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the [ABL Collateral Agent] [LC Collateral Agent] to enter into the Intercreditor Agreement as [ABL Collateral Agent ] [LC Collateral Agent]
on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the [ABL Secured Parties] [LC Secured Parties] to extend credit to [LC Borrowers] [ABL Borrowers] or to acquire any notes or other evidence of any
debt obligation owing from the [LC Borrowers] [ABL Borrowers] and such [ABL Secured Parties] [LC Secured Parties] are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Agreement, the Liens
created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable ABL Security Documents and LC
Security Documents (as defined in the ABL Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
control.
SECTION 7.02 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
(a) if to the ABL Collateral Agent, to it at:
Wells Fargo Bank, National Association
14241 Dallas Parkway, Suite 1300
Dallas, TX 75254
USA
Attention: Loan Portfolio Manager
Fax: (866) 551-0750
with a copy to:
Goldberg Kohn Ltd.
55 East Monroe Street, Suite 3300
Chicago, Illinois 60603
USA
Attention: Jessica L. DeBruin, Esq.
Fax: (312) 863-7857
(b) if to the Foreign Collateral Agent, to it at:
Wells Fargo Bank, National Association
14241 Dallas Parkway, Suite 1300
Dallas, TX 75254
USA
Attention: Loan Portfolio Manager
Fax: (866) 551-0750
with a copy to:
Goldberg Kohn Ltd.
55 East Monroe Street, Suite 3300
Chicago, Illinois 60603
USA
Attention: Jessica L. DeBruin, Esq.
Fax: (312) 863-7857
(c) if to the LC Collateral Agent, to it at:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, Weatherford, SF0580
Fax: (646) 961-3317
(d) if to the LC Australian Collateral Agent, to it at:
BTA Institutional Services Australia Limited
Level 2, 1 Bligh Street
Sydney NSW 2000
Australia
Attention: Global Client Services
Fax: +61 2 9260 6009
Email: BNYM_CT_Aus_RMG@bnymellon.com
(e) if to the Grantors, to them at:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
with a copy to:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: Treasurer
Telephone: (713) 836-7460
Email: Mark.Rothleitner@weatherford.com; Josh.Silverman@weatherford.com
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the
other parties hereto (and for this purpose a notice to the Parent shall be deemed to be a notice to each Grantor). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 7.02 or in accordance with the latest unrevoked direction from such party given in
accordance with this Section 7.02. As agreed to in writing among the Parent, the ABL Collateral Agent, the LC Collateral Agent, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the
applicable Person provided from time to time by such Person.
SECTION 7.03 Waivers; Amendment.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section 7.03, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice
or demand in similar or other circumstances.
(b) Subject to Sections 2.03, 2.10, 2.11, Article 6 and 7.15 hereof, and except as set forth in Section 7.18, neither this Agreement nor any provision hereof may be terminated, waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by each Representative, each Collateral Agent and the Parent (for and on behalf of each of the other Grantors).
SECTION 7.04 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, all of whom
are intended to be bound by this Agreement.
SECTION 7.05 Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 7.06 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a
single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 7.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.08 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to conflict of law
provisions, other than 5-1401 and 5‑1402 of the New York General Obligations Law.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto 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. Nothing in this Agreement shall
affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 7.08. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.02. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 7.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 7.10 Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 7.11 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the ABL Documents and/or any of the
LC Documents, the provisions of this Agreement shall control.
SECTION 7.12 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the ABL
Secured Parties and the LC Secured Parties in relation to one another. None of the Grantors shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement
(other than Sections 2.05, 2.06, 2.10, 2.11, Article V and Article VI) is intended to or will amend, waive or otherwise modify the provisions of the ABL Documents or any LC Documents), and none of the Grantors may rely on the terms hereof.
Nothing in this Agreement is intended to or shall impair or relieve the obligations of the Grantors, which are absolute and unconditional, to pay the Obligations as and when the same shall become due and payable in accordance with their
terms. Notwithstanding anything to the contrary herein or in any ABL Document or any LC Obligations Document, the Grantors shall not be required to act or refrain from acting (a) pursuant to this Agreement or any LC Obligations Document
with respect to any ABL Priority Collateral in any manner that would cause a default under any ABL Document, or (b) pursuant to this Agreement or any ABL Document with respect to any LC Priority Collateral in any manner that would cause a
default under any LC Obligations Document.
SECTION 7.13 Agent Capacities. Except as expressly set forth herein, neither the ABL Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral
Agent), shall have (i) any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the ABL Documents and the LC Documents, as the case may be, or (ii) any
liability or responsibility for the actions or omissions of any other Secured Party or for any other Secured Party’s compliance with (or failure to comply with) the terms of this Agreement. Neither the ABL Collateral Agent, nor the LC
Collateral Agent (including the LC Australian Collateral Agent) shall have individual liability to any Person if it shall mistakenly pay over or distribute to any Secured Party (or Grantor) any amounts in violation of the terms of this
Agreement, so long as such Person is acting in good faith and without willful misconduct or bad faith. Furthermore, and notwithstanding anything to the contrary contained herein, the LC Australian Collateral Agent shall act or refrain from
acting with respect to the LC Australian Collateral only at the direction of the LC Administrative Agent.
SECTION 7.14 Supplements. Upon the execution by any Subsidiary of Parent of a supplement hereto in form and substance satisfactory to the Collateral Agents, such subsidiary
shall be a party to this Agreement and shall be bound by the provisions hereof to the same extent as each Grantor are so bound. The Parent shall cause any Subsidiary that becomes a Grantor to execute and deliver such supplement.
SECTION 7.15 Collateral Agent Rights, Protections and Immunities.
In acting under or by virtue of this Agreement, the LC Collateral Agent and the LC Australian Collateral
Agent shall have the rights, protections and immunities granted to the “Administrative Agent” and its respective sub-agents under the LC Credit Agreement, all of which are incorporated by reference herein, mutatis
mutandis. In acting under or by virtue of this Agreement, the ABL Collateral Agent shall have the rights, protections and immunities granted to the “Agent” under the ABL Credit Agreement, all of which are incorporated by reference
herein, mutatis mutandis. In acting under or by virtue of this Agreement, the LC Australian Collateral Agent shall have the rights, protections and immunities granted to the “LC Australian Collateral
Agent” under the LC Australian Security Trust Deed.
SECTION 7.16 Other Junior Intercreditor Agreements.
In addition, in the event that the Parent or any Subsidiary incurs any obligations secured by a lien on
any Collateral that is junior to the LC Obligations or the ABL Obligations, then the ABL Collateral Agent and the LC Collateral Agent shall enter into an intercreditor agreement with the agent or trustee for the secured parties with respect
to such secured obligation to reflect the relative lien priorities of such parties with respect to the Collateral and governing the relative rights, benefits and privileges as among such parties in respect of the Collateral, including as to
application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as such secured obligations are permitted under, and the terms of such intercreditor
agreement do not violate or conflict with, the provisions of this Agreement or the other ABL Documents or LC Documents, as the case may be. Each party hereto agrees that the ABL Secured Parties (as among themselves) and the LC Secured
Parties (as among themselves) may each enter into intercreditor agreements (or similar arrangements) with the Applicable Senior Collateral Agent governing the rights, benefits and privileges as among the ABL Secured Parties or the LC Secured
Parties, as the case may be, in respect of the Collateral, this Agreement and the applicable Senior Secured Obligations Collateral Documents, as the case may be, including as to the application of proceeds of the Collateral, voting rights,
control of the Collateral and waivers with respect to the Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or the other applicable Senior Secured Obligations Collateral
Documents, as the case may be. If any such intercreditor agreement (or similar arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any other
ABL Document or LC Document, and the provisions of this Agreement and the other ABL Documents and LC Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified
or otherwise supplemented from time to time in accordance with the terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).
SECTION 7.17 Additional Grantors.
Promptly upon request by any Collateral Agent, any Person that becomes a Grantor after the date hereof
will provide to the Collateral Agents a fully signed acknowledgement, substantially in the form attached hereto as Exhibit B, consenting to the provisions of this Agreement and the intercreditor arrangements provided for herein; provided
that no failure on the part of any Collateral Agent to request or obtain such acknowledgement will in any way diminish or impair any of the rights of the Secured Parties hereunder.
SECTION 7.18 Joinder of LC Australian Collateral Agent.
Substantially concurrently with its entry into the LC Australian Security Trust Deed, BTA Institutional
Services Australia Limited shall, without requiring the consent of any other party hereto, join to this Agreement by executing and delivering a joinder agreement substantially in the form attached hereto as Exhibit C.
[Remainder of this page intentionally left blank; signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[Signature blocks omitted]
EXHIBIT A
Exhibit A – Joinder to Intercreditor Agreement
JOINDER AGREEMENT
(LC Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), dated as of [●], is among [____], as a LC Collateral Agent (the “New Collateral Agent”), WF, as ABL
Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of December 13, 2019 (as
the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Collateral
Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as LC Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Collateral Agent as if it had originally been party to the Intercreditor Agreement as an
LC Collateral Agent.
SECTION 2.02 The
New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each
party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the LC Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as LC Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile
transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
Exhibit A-2
JOINDER AGREEMENT
(ABL Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), dated as of [●], is among [_____], as an ABL Collateral Agent (the “New Collateral Agent”), WF, as ABL
Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of [____________],
20[__] (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New
Collateral Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as ABL Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the ABL Collateral Agent as if it had originally been party to the Intercreditor Agreement as an
ABL Collateral Agent.
SECTION 2.02 The
New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each
party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the ABL Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as ABL Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile
transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
EXHIBIT B
Exhibit B – Grantor Acknowledgement to Intercreditor Agreement
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
1. Acknowledgement.
[______________] (“New Grantor”) acknowledges, as of [DATE], that it has received a copy of the Intercreditor Agreement dated as of [________], 20[__], between Wells Fargo Bank, National Association, as ABL Collateral Agent and
Foreign Collateral Agent, Deutsche Bank Trust Company Americas as LC Collateral Agent, and Weatherford International PLC and certain of its affiliates party thereto as Grantors (the “Intercreditor Agreement”) as in effect on the date
hereof, and consents thereto, agrees to recognize all rights granted thereby to the ABL Collateral Agent, the other ABL Secured Parties, the LC Collateral Agent and the other LC Secured Parties, and agrees that it shall not do any act or
perform any obligation which is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof (as amended or otherwise modified in accordance with the provisions thereof, including any
necessary consents by each Grantor to the extent required thereby). New Grantor further acknowledges and agrees that (a) New Grantor is not a beneficiary or third party beneficiary of the Intercreditor Agreement, (b) New Grantor has no
rights under the Intercreditor Agreement, and New Grantor may not rely on the terms of the Intercreditor Agreement, and (c) that the obligations of the New Grantor under the ABL Security Documents, the LC Security Documents or the Foreign
Collateral Documents will in no way be diminished or otherwise affected by the provisions or arrangements in the Intercreditor Agreement.
2. Notices.
The address of the New Grantor and the other Grantors for purposes of Section 7.02 of the Intercreditor Agreement is:
[_____________]
[_____________]
[_____________]
with a copy to:
[_____________]
[_____________]
[_____________]
3. Counterparts.
This Acknowledgement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one document. Delivery of an executed signature page to this Acknowledgement
by facsimile transmission or by email as a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Acknowledgement.
4. Governing
Law. THIS ACKNOWLEDGEMENT AND ANY CLAIM CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INTERCREDITOR AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CONFLICT OF LAWS PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. Sections 7.08 and 7.09 of the Intercreditor Agreement are hereby incorporated by reference herein, mutatis mutandis.
5. Credit
Document. This Acknowledgement shall constitute an ABL Document and a LC Document and as a “Loan Document” under each of the ABL Credit Agreement and LC Credit Agreement.
6. Miscellaneous.
The ABL Collateral Agent, the other ABL Secured Parties, the LC Collateral Agent, the other LC Secured Parties, and the Foreign Collateral Agent are the intended beneficiaries of this Acknowledgement. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
[signature page follows]
EXHIBIT C
Exhibit C – Joinder Agreement (LC Australian Collateral Agent)
JOINDER AGREEMENT
(LC Australian Collateral Agent)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Joinder”), dated as of [●], is provided by BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust (the “LC Australian Collateral Agent”).
This Joinder is supplemental to that certain Intercreditor Agreement, dated as of [___________], 20[__]
(as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among WF, DBTCA, the Parent and its Subsidiaries
party thereto. This Joinder has been entered into to record the joinder of BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust as LC Australian Collateral Agent under
the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
LC Australian Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Australian Collateral Agent as if it had originally been party to the
Intercreditor Agreement as an LC Australian Collateral Agent.
SECTION 2.02 The
LC Australian Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Joinder and any claim, controversy or dispute arising under or related to such Joinder shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Joinder may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder by facsimile transmission
or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Joinder.
SECTION 3.03 Clause
[___] (Limitation of liability of LC Australian Collateral Agent) of the LC Australian Security Trust Deed is incorporated by reference in this Joinder as if set out in full herein, mutatis mutandis.
[Remainder of this page intentionally left blank; signatures follow.]
SCHEDULE I
Schedule I – Foreign Collateral Documents
EXHIBIT H
FORM OF U.S. SECURITY AGREEMENT
FORM OF
U.S. SECURITY AGREEMENT
dated as of [_________], 20[__]
among
WEATHERFORD INTERNATIONAL PLC,
WEATHERFORD INTERNATIONAL LTD.,
WEATHERFORD INTERNATIONAL, LLC,
and
the other GRANTORS from time to time party hereto,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Reference is made to the Intercreditor Agreement, dated as of December 13, 2019, among Wells Fargo
Bank, National Association, as ABL Collateral Agent (as defined in the Intercreditor Agreement) for the ABL Secured Parties referred to therein; Deutsche Bank Trust Company Americas, as LC Collateral Agent (as defined in the Intercreditor
Agreement) for the LC Facility Secured Parties referred to therein; Weatherford International plc, a public limited company incorporated in the Republic of Ireland, Weatherford International Ltd., a Bermuda exempted company, Weatherford
International, LLC, a Delaware limited liability company and the other Grantors of Weatherford International plc named therein (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”). Each Lender, of its acceptance of the benefits hereof (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be
bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the LC Collateral Agent to enter into the Intercreditor Agreement as LC Collateral Agent on behalf of such LC
Lender. The foregoing provisions are intended as an inducement to the Lenders to extend credit to the Borrowers (as defined below) or to acquire any notes or other evidence of any debt obligation owing from the Borrowers and such Lenders
are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Security Agreement, the Liens created
hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable ABL Security Documents and LC
Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Security Agreement and the Intercreditor Agreement, subject to Section 4.6.4 hereof and any other
limitation on rights of the Agent or other Secured Party with respect to the ULC Shares hereunder, the provisions of the Intercreditor Agreement shall control.
This U.S. SECURITY AGREEMENT (as the same may be amended, restated, supplemented or otherwise modified
from time to time, this “Security Agreement”) is entered into as of [___________], 20[__] by and among the entities listed on the signature pages hereto (such listed entities,
collectively, the “Initial Grantors” and, together with any other Subsidiaries of Weatherford International plc, an Irish public limited company (“WIL-Ireland”),whether now existing or hereafter formed or acquired, that become parties to this Security Agreement from time to time in accordance with the terms of the LC Credit Agreement described below by
executing a Security Agreement Supplement hereto in substantially the form of Annex I, each, a “Grantor” and, collectively, the “Grantors”), and Deutsche Bank Trust Company Americas in its capacity as administrative agent (in such capacity, the “Agent”) for itself and on behalf and for the
benefit of the other Secured Parties (as defined below).
PRELIMINARY STATEMENTS
WIL-Ireland, Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware” and together with WIL-Bermuda, the “Borrowers”), the Agent, and the Lenders are entering into that certain LC Credit Agreement dated as of the date hereof (as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time, the “LC Credit Agreement”).
The Grantors are entering into this Security Agreement in order to induce the Lenders to enter into and
extend credit to the Borrowers under the LC Credit Agreement on the terms set forth therein.
ACCORDINGLY, the Grantors and the Agent, for itself and on behalf and for the benefit of the other
Secured Parties, hereby agree as follows:
DEFINITIONS
Terms Defined in the LC Credit Agreement and the Intercreditor Agreement. All capitalized terms
used herein and not otherwise defined shall have the respective meanings assigned to such terms in the LC Credit Agreement and the Intercreditor Agreement.
Terms Defined in UCC. Terms defined in the UCC that are not otherwise defined in this Security
Agreement are used herein as defined in the UCC.
Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the
terms defined in the Preliminary Statement, the following terms shall have the following meanings:
“Accounts” shall have the meaning set forth in Article 9 of the UCC.
“Article” means a numbered article of this Security Agreement, unless another document is
specifically referenced.
“Chattel Paper” shall have the meaning set forth in Article 9 of the UCC.
“Collateral” means, with respect to any Grantor that is organized or incorporated in the United
States, all Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instruments, Intellectual Property, Inventory, Investment Property, letters of credit,
Letter of Credit Rights, Pledged Deposits, Supporting Obligations and Other Collateral, wherever located, in which any Grantor now has or hereafter acquires any right or interest, and the proceeds (including Stock Rights), insurance proceeds
and products thereof, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto. Notwithstanding any of the foregoing, Collateral shall not
include any Excluded Assets.
“Commercial Tort Claims” means commercial tort claims, as defined in the UCC of any Grantor,
including each commercial tort claim specifically described in Exhibit “F”.
“Control” shall have the meaning set forth in Article 8 or, if applicable, in Section 9-104,
9-105, 9-106 or 9-107 of Article 9 of the UCC or Section 16 of the UETA, as applicable.
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to
the Agent, executed and delivered by a Grantor, the Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account), or an equivalent agreement under any applicable foreign
jurisdiction.
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in
and to the following: (i) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (ii) all renewals of any of the foregoing; (iii) all income, royalties,
damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; and (iv) all rights corresponding to any of
the foregoing throughout the world.
“Copyright Security Agreement” means each Confirmatory Grant in U.S. Copyrights executed and
delivered by any Grantor in favor of Agent in a form substantially similar to the Trademark Security Agreement and the Patent Security Agreement.
“Deposit Accounts” shall have the meaning set forth in Article 9 of the UCC.
“Determination Date” means the most recent to occur of (i) in the case of an Initial Grantor, the
date hereof or, in the case of any other Grantor, the date such Grantor becomes a party hereto and (ii) the most recent date on which the Borrowers deliver to the Agent a Compliance Certificate accompanied by updated Exhibits to this Security
Agreement pursuant to Section 4.11 hereof.
“Documents” shall have the meaning set forth in Article 9 of the UCC.
“Domestic Grantor” means any Grantor that is a Domestic Subsidiary.
“Equipment” shall have the meaning set forth in Article 9 of the UCC.
“Exclusive Copyright License” means an exclusive license to a U.S. registered copyright.
“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document is
specifically referenced.
“Farm Products” shall have the meaning set forth in Article 9 of the UCC.
“Fixtures” shall have the meaning set forth in Article 9 of the UCC.
“Foreign Grantor” means any Grantor that is not a Domestic Grantor.
“General Intangibles” shall have the meaning set forth in Article 9 of the UCC and, in any event,
includes payment intangibles, contract rights, rights to payment, rights arising under common law, statutes, or regulations, choses in action, Intellectual Property, programs, programming materials, blueprints, drawings, purchase orders,
customer lists, monies due or recoverable from pension funds, route lists, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension plan refund claims,
insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the UCC, and any other personal property other than Commercial Tort
Claims, money, Accounts, Chattel Paper, Deposit Accounts, Goods, Investment Property, negotiable Collateral, and oil, gas, or other minerals before extraction.
“Goods” shall have the meaning set forth in Article 9 of the UCC.
“Industrial Designs” means (i) registered industrial designs and industrial design applications,
and also includes registered industrial designs and industrial design applications listed in Exhibit “B”, (ii) all renewals, divisions and any industrial design registrations issuing thereon and any and all foreign applications
corresponding thereto, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for
past or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof; and (v) all rights corresponding to any of the foregoing throughout the world.
“Instruments” shall have the meaning set forth in Article 9 of the UCC.
“Intercompany Instrument” means an Instrument between a Grantor, as the payee thereunder, and
WIL-Ireland or any of its Restricted Subsidiaries, as the payor thereunder.
“Intellectual Property” means all Patents, Trademarks, Copyrights, Licenses, Industrial Designs
and any other intellectual property.
“Inventory” shall have the meaning set forth in Article 9 of the UCC.
“Investment Property” shall have the meaning set forth in Article 9 of the UCC.
“Legal Reservations” means (i) the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court, the principle of fairness and reasonableness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, (ii) the time barring of claims under applicable limitation laws including the Limitation Act 1980 and the Foreign Limitation Periods Act 1984 in the United Kingdom, the possibility
that an undertaking to assume liability for, or to indemnify a person against, non-payment of stamp duty may be void and defences of set-off and counterclaim, and (iii) similar principles, rights and defences under the laws of any relevant
jurisdiction.
“Letter of Credit Rights” shall have the meaning set forth in Article 9 of the UCC.
“Licenses” means, with respect to any Person, all of such Person’s right, title, and interest in
and to (i) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights or Trademarks, (ii) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto,
including, without limitation, damages and payments for past and future breaches thereof, and (iii) all rights to sue for past, present, and future breaches thereof.
“Other Collateral” means any personal property of the Grantors, not included within the defined
terms Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Fixtures, Farm Products, General Intangibles, Goods, Instruments, Intellectual Property, Inventory, Investment Property, Letter of Credit Rights,
Pledged Deposits and Supporting Obligations, including, without limitation, all cash on hand, letters of credit, Stock Rights or any other deposits (general or special, time or demand, provisional or final) with any bank or other financial
institution, it being intended that the Collateral include all personal property of the Grantors, subject to the exclusions or limitations contained in Article II of this Security Agreement; provided, however, that Other
Collateral shall not include any Excluded Assets.
“Patents” means, with respect to any Person, all of such Person’s right, title, and interest in
and to: (i) any and all patents and patent applications; (ii) all inventions and improvements described and claimed therein; (iii) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (iv) all
licenses of the foregoing whether as licensee or licensor; (v) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past
and future infringements thereof; (vii) all rights to sue for past, present, and future infringements thereof; and (viii) all rights corresponding to any of the foregoing throughout the world.
“Patent Security Agreement” means each Confirmatory Grant in U.S. Patents executed and delivered
by any Grantor in favor of Agent in substantially the form of Exhibit “K”.
“Pledged Collateral” means all Instruments, Securities and other Investment Property of the
Grantors to the extent constituting Collateral hereunder, whether or not physically delivered to the Agent pursuant to this Security Agreement.
“Pledged Deposits” means all time deposits of money (other than Deposit Accounts and Instruments),
whether or not evidenced by certificates, which a Grantor may from time to time designate as pledged to the Agent or to any Secured Party as security for any Secured Obligations, and all rights to receive interest on said deposits.
“Receivables” means the Accounts, Chattel Paper, Documents, Investment Property, Instruments or
Pledged Deposits, and any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral; provided, however, that Receivables shall not include any Excluded Assets.
“Section” means a numbered section of this Security Agreement, unless another document is
specifically referenced.
“Securities Account” shall have the meaning set forth in Article 8 of the UCC.
“Security” shall have the meaning set forth in Article 8 of the UCC.
“Specified Deposit Account” means any Deposit Account of a Grantor other than the Excluded
Accounts.
“Specified Intellectual Property” means any Intellectual Property of one or more Grantors (i) the
book value of which exceeds $5,000,000 individually or in the aggregate, (ii) which generates annual revenue, royalties or license fees of greater than $5,000,000 or (iii) which, in the commercially reasonable judgment of the Grantors, is
material to the conduct of all or a material portion of the business of WIL-Ireland and its Restricted Subsidiaries.
“Stock Rights” means any securities, dividends, instruments or other distributions and any other
right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive Capital
Stock and any right to receive earnings, in which any Grantor now has or hereafter acquires any right, issued by an issuer of such securities.
“Supporting Obligation” shall have the meaning set forth in Article 9 of the UCC.
“Trademarks” means, with respect to any Person, all of such Person’s right, title, and interest in
and to the following: (i) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (ii)
all licenses of the foregoing, whether as licensee or licensor; (iii) all renewals of the foregoing; (iv) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation,
damages, claims, and payments for past and future infringements thereof; (v) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing;
and (vi) all rights corresponding to any of the foregoing throughout the world.
“Trademark Security Agreement” means each Confirmatory Grant in U.S. Trademarks executed and
delivered by any Grantor in favor of Agent in substantially the form of Exhibit “L”.
“UETA” means the Uniform Electronic Transactions Act as in effect from time to time in any
applicable jurisdiction.
“ULC” means a Person that is an unlimited company, unlimited liability corporation or unlimited
liability company.
“ULC Laws” means the Companies Act (Nova Scotia), the Business Corporations Act (Alberta), the Business Corporations Act (British Columbia) and any other present or future Laws governing ULCs.
“ULC Shares” means shares in the capital stock of, or other equity interests of, a ULC.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the
defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each of the Grantors hereby pledges, assigns (except in the case of the ULC Shares) and grants to the
Agent, on behalf of and for the benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest, whether now owned or hereafter acquired, in and to the Collateral to secure the prompt and complete
payment and performance of the Secured Obligations. For the avoidance of doubt, the grant of a security interest herein shall not be deemed to be an assignment of any ULC Shares or any intellectual property rights owned by the Grantors (other
than the collateral assignment pursuant hereto).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Initial Grantors represents and warrants to the Agent and the Secured Parties, and each
Grantor that becomes a party to this Security Agreement pursuant to the execution of a Security Agreement Supplement in substantially the form of Annex I represents and warrants (after giving effect to supplements to each of the
Exhibits hereto, with respect to such subsequent Grantor, as attached to such Security Agreement Supplement), that:
Title, Authorization, Validity and Enforceability. Subject to Section 3.10.10, such
Grantor has good and valid rights in or the power to transfer its respective Collateral, free and clear of all Liens except for Liens permitted under Section 8.04 of the LC Credit Agreement, and has the corporate, unlimited liability company,
limited liability company or partnership, as applicable, power and authority to grant to the Agent the security interest in such Collateral pursuant hereto. The execution and delivery by such Grantor of this Security Agreement have been duly
authorized by corporate, unlimited liability company, limited liability company, limited partnership or partnership, as applicable, proceedings or actions, and this Security Agreement constitutes a legal, valid and binding obligation of such
Grantor and creates a security interest which is enforceable against such Grantor in all Collateral it now owns or hereafter acquires, except (i) as enforceability may be limited by bankruptcy, insolvency, examinership, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether
such enforceability is a proceeding in equity or at law), (ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy, and (iii) in the case of each Grantor
incorporated in England and Wales, is subject to Legal Reservations or the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by each Grantor incorporated in England and Wales in favor of the
Secured Parties. When financing statements have been filed in the appropriate offices against such Grantor in the locations listed in Exhibit “E”, Agent shall have a perfected security interest (with the priority set forth in the
Intercreditor Agreement and subject only to Liens permitted by Section 8.04 of the LC Credit Agreement) in the Collateral of each Grantor to the extent such security interest can be perfected by the filing of a financing statement under the
Code.
Conflicting Laws and Contracts. Neither the execution and delivery by such Grantor of this
Security Agreement, the creation and perfection of the security interest in the Collateral granted hereunder, nor compliance with the terms and provisions hereof (i) will breach or violate any applicable Requirement of Law binding on such
Grantor, (ii) will result in any breach or violation of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien prohibited under the LC Credit Agreement, upon any of its
property or assets pursuant to the terms of (a) the ABL Credit Agreement, the Exit Senior Notes or the Exit Senior Notes Indenture or (b) any other indenture, agreement or other instrument to which such Grantor is a party or by which any
property or asset of it is bound or to which it is subject, except for breaches, violations and defaults under clauses (i) and (ii)(b) that collectively for the Grantors would not have a Material Adverse Effect, or (iii) will
violate any provision of such Grantor’s charter, articles or certificate of incorporation or formation, memorandum of association, partnership agreement, by-laws, bye-laws or operating agreement (or similar constitutive document).
Principal Location. Such Grantor’s mailing address and the location of its place of business (if
it has only one) or its chief executive office (if it has more than one place of business), are disclosed, as of the applicable Determination Date, in Exhibit “A”.
Property Locations. Exhibit “A” lists, as of the applicable Determination Date, all of
such Grantor’s locations (limited, in the case of any Foreign Grantor, to its United States locations) where Inventory and Equipment constituting Collateral are located (other than any such location where the book value of all Inventory and
Equipment located thereon does not exceed $10,000,000). Such Exhibit “A” shall indicate whether such locations are locations (i) owned by a Grantor, (ii) leased by such Grantor as lessee or (iii) at which Inventory is held in a public
warehouse or is otherwise held by a bailee or on consignment by such Grantor.
No Other Names; Etc. Within the five-year period ending as of the date such Person becomes a
Grantor hereunder, such Grantor has not conducted business under any other name, changed its jurisdiction of organization or incorporation, merged with or into or consolidated or amalgamated with any other Person, except as disclosed in Exhibit
“A”. The name in which such Grantor has executed this Security Agreement (or a Security Agreement Supplement) is, as of the date such agreement is executed and delivered, the exact name as it appears in such Grantor’s charter or
certificate of incorporation or formation (or similar formation document), as amended, as filed with such Grantor’s jurisdiction of organization or incorporation as of the date such Person becomes a Grantor hereunder.
Accounts and Chattel Paper. The names of the obligors, amounts owing, due dates and other
information with respect to the Accounts and Chattel Paper owned by such Grantor and constituting Collateral are and will be correctly stated in all material respects in all records of such Grantor relating thereto and in all invoices and
reports with respect thereto furnished to the Agent by such Grantor from time to time. As of the time when each Account or each item of Chattel Paper constituting Collateral arises, such Grantor shall be deemed to have represented and
warranted that such Account or Chattel Paper, as the case may be, and all records relating thereto, are genuine and in all respects what they purport to be, except, in each case, as could not be reasonably expected to result in a Material
Adverse Effect.
No Financing Statements, Security Agreements. No financing statement or security agreement
describing all or any portion of the Collateral (other than a financing statement or security agreement that has lapsed or been terminated) naming such Grantor as debtor has been filed or is of record in any jurisdiction except financing
statements (i) naming the Agent on behalf of the Secured Parties as the secured party and (ii) in respect of Liens permitted by Section 8.04 of the LC Credit Agreement; provided, that nothing herein shall be deemed to constitute an
agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise permitted under Section 8.04 of the LC Credit Agreement or except as set forth in the Intercreditor Agreement.
Federal Employer Identification Number; State Organization Number; Jurisdiction of Organization.
Such Grantor’s federal employer identification number (if any) is, and if such Grantor is a registered organization, such Grantor’s state of organization, type of organization and state of organization identification number (if any) are, as
of the applicable Determination Date, listed in Exhibit “G”.
Pledged Securities and Other Investment Property. Exhibit “D” sets forth, as of the applicable Determination
Date, a complete and accurate list of the Instruments (other than the Intercompany Instruments), Securities and other Investment Property constituting Collateral and delivered to the Agent. Each Grantor is the direct and beneficial owner of
each Instrument, Security and other type of Investment Property listed in Exhibit “D” as being owned by it, free and clear of any Liens, except for the security interest granted to the Agent for the benefit of the Secured Parties
hereunder or as permitted by Section 8.04 of the LC Credit Agreement. Each Grantor further represents and warrants that (i) all Pledged Collateral owned by it constituting Capital Stock has been (to the extent such concepts are relevant with
respect to such Pledged Collateral) duly authorized and validly issued, are fully paid and non-assessable and constitute, as of the applicable Determination Date, the percentage of the issued and outstanding shares of stock (or other Capital
Stock) of the respective issuers thereof indicated in Exhibit “D” hereto and (ii) all such Pledged Collateral held by a securities intermediary (including in a Securities Account) is covered by a Control Agreement among such Grantor,
the securities intermediary and the Agent pursuant to which the Agent has Control to the extent required by Section 4.5. In addition, each Grantor hereby represents and warrants that (i) no partnership agreement or operating
agreement (or similar constitutive document) with respect to Pledged Collateral in respect of a limited liability company or partnership provides that such Pledged Collateral constitute securities governed by Article 8 of the UCC as in effect
in any relevant jurisdiction and (ii) no Collateral constitutes “certificated securities” within the meaning of Article 8 of the Uniform Commercial Code as in effect in any relevant jurisdiction (such securities, “Certificated Securities”),
except as otherwise indicated on Exhibit “D”. Each Grantor covenants that for so long as this Security Agreement is in effect, it shall not permit any of its Subsidiaries whose Capital Stock is Pledged Collateral (the “Acknowledgment
Parties”) (i) except as otherwise indicated on Exhibit “D”, to cause such Capital Stock to become Certificated Securities, or (ii) except as otherwise indicated on Exhibit “D”, for any such Subsidiaries that are limited
liability companies or partnerships, to elect that its membership interests becomes governed by Article 8 of the Uniform Commercial Code as in effect in any relevant
jurisdiction without the consent of all pledgees of such membership interests or the delivery of any applicable limited liability company certificate or control agreement necessary to perfect each such
pledgee's interests in the applicable membership interests. Each Grantor further agrees to cause each Acknowledgment Party, other than any Acknowledgment Party that is a ULC, to execute and deliver an
acknowledgment substantially in the form of Exhibit “M” hereto promptly upon such party becoming an Acknowledgment Party.
Intellectual Property.
3.10.1 Exhibit “B” contains a complete and accurate listing as of the applicable Determination Date of all of the below-described Specified Intellectual Property of each of the Grantors (limited, in the case of
each Foreign Grantor, to U.S. Specified Intellectual Property): (i) state, U.S. and foreign trademark registrations, and applications for trademark registration, (ii) U.S. and foreign patents and patent applications, together with all
reissuances, continuations, continuations in part, revisions, extensions, and reexaminations thereof, (iii) U.S. and foreign copyright registrations and applications for registration, (iv) Exclusive Copyright Licenses, (v) foreign
industrial design registrations and industrial design applications, and (vi) domain names. All of the U.S. registrations, applications for registration or applications for issuance of such Specified Intellectual Property are valid and
subsisting, in good standing and, subject to Section 3.10.10, are recorded or in the process of being recorded in the name of the applicable Grantor, except as could not be reasonably expected to result in a Material Adverse Effect.
3.10.2 Such Intellectual Property in Exhibit “B” is valid, subsisting, unexpired (where registered) and enforceable and has not been abandoned or adjudged invalid or unenforceable, in whole or in part, except as
could not be reasonably expected to result in a Material Adverse Effect.
3.10.3 Subject to Section 3.10.10, (i) no Person other than the respective Grantor (or any other Grantor) has any right or interest of any kind or nature in or to the Specified Intellectual Property owned by such
Grantor, including any right to sell, license, lease, transfer, distribute, use or otherwise exploit such Specified Intellectual Property or any portion thereof outside of the ordinary course of the respective Grantor’s business, except as
could not be reasonably expected to result in a Material Adverse Effect and (ii) each Grantor has good, marketable and exclusive title to, and the valid and enforceable power and right to sell, license, transfer, distribute, use and
otherwise exploit, its Specified Intellectual Property, except as could not be reasonably expected to result in a Material Adverse Effect.
3.10.4 Each Grantor has taken or caused to be taken steps so that none of its Specified Intellectual Property, the value of which to the Grantors are contingent upon maintenance of the confidentiality thereof, have been
disclosed by such Grantor to any Person other than any Affiliate owners thereof and employees, contractors, customers, representatives and agents of the Grantors or such Affiliate owners who are parties to customary confidentiality and
nondisclosure agreements with the Grantors or such Affiliate owners, as applicable.
3.10.5 To each Grantor’s knowledge, no Person has violated, infringed upon or breached, or is currently violating, infringing upon or breaching, any of the rights of the Grantors to the Specified Intellectual Property or
has breached or is breaching any duty or obligation owed to the Grantors in respect of the Specified Intellectual Property except where those breaches, individually or in the aggregate, could not be reasonably expected to result in a
Material Adverse Effect.
3.10.6 No settlement or consents, covenants not to sue, nonassertion assurances, or releases have been entered into by any Grantor or to which any Grantor is bound that adversely affects its rights to own or use any
Specified Intellectual Property except as could not be reasonably expected to result in a Material Adverse Effect, in each case individually or in the aggregate.
3.10.7 No Grantor has received any written notice that remains outstanding challenging the validity, enforceability, or ownership of any Specified Intellectual Property except where those challenges could not reasonably
be expected to result in a Material Adverse Effect, and to such Grantor’s knowledge at the date hereof there are no facts upon which such a challenge could be made.
3.10.8 Each Grantor owns directly or is entitled to use, by license or otherwise, all Specified Intellectual Property necessary for the conduct of such Grantor’s business, and the conduct of each Grantor’s business does
not infringe upon the Intellectual Property of any other Person, except as could not reasonably be expected to result in a Material Adverse Effect.
3.10.9 The consummation of the transactions contemplated by the Loan Documents will not result in the termination or material impairment of any material Specified Intellectual Property owned by such Grantor.
3.10.10 Each party hereto acknowledges that certain Specified Intellectual Property is owned in part by the Grantors and in part by Affiliates of the Grantors, in each case as scheduled on Exhibit “B”.
Specified Deposit Accounts and Securities Accounts. All of such Grantor’s Specified Deposit
Accounts and Securities Accounts (limited, in the case of each Foreign Grantor, to Specified Deposit Accounts and Securities Accounts located in the United States) as of the applicable Determination Date are listed on Exhibit “H”.
ARTICLE IV
COVENANTS
From the date of this Security Agreement and thereafter until this Security Agreement is terminated, each
of the Initial Grantors agrees, and from and after the effective date of any Security Agreement Supplement applicable to any Grantor (and after giving effect to supplements to each of the Exhibits hereto with respect to such subsequent
Grantor as attached to such Security Agreement Supplement) and thereafter until this Security Agreement is terminated each such subsequent Grantor agrees:
General.
4.1.1 Records. Each Grantor shall keep and maintain, in a manner consistent with prudent business practices, reasonably complete, accurate and proper books and records with respect to the Collateral owned by such
Grantor.
4.1.2 Financing Statements and Other Actions; Defense of Title. Each Grantor hereby authorizes the Agent to file, and if requested will execute and deliver to the Agent, all financing statements describing the
Collateral owned by such Grantor and other documents and take such other actions as may from time to time reasonably be requested by the Agent in order to maintain a perfected security interest with the priority set forth in the
Intercreditor Agreement in and Lien on, and, if applicable, Control of, the Collateral owned by such Grantor, subject to Liens permitted under Section 8.04 of the LC Credit Agreement; provided that nothing herein shall be deemed to
constitute an agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise permitted under Section 8.04 of the LC Credit Agreement. Such financing statements may describe the Collateral in the same
manner as described herein or may contain an indication or description of Collateral that describes such Collateral in any other manner as the Agent may reasonably determine is necessary, advisable or prudent to ensure the perfection of the
security interest in the Collateral granted to the Agent herein, including, without limitation, describing such property as “all assets of the debtor whether now owned or hereafter acquired and wheresoever located, including all accessions
thereto and proceeds thereof” or an equivalent formulation. Each Grantor will take any and all actions reasonably necessary to defend title to the Collateral owned by such Grantor against all persons and to defend the security interest of
the Agent in such Collateral and the priority thereof against any Lien, in each case, not expressly permitted hereunder or under the LC Credit Agreement.
4.1.3 Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name. Each Grantor will, except as otherwise permitted by the LC Credit Agreement:
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(i)
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preserve its existence and corporate structure as in effect on the Effective Date;
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(ii)
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not change its name or jurisdiction of organization or incorporation;
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(iii)
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not maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location specified
in Exhibit “A”; and
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(iv)
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not change its taxpayer identification number (if any) or its mailing address,
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unless, in each such case, such Grantor shall have given the Agent not less than 10 days’ (or such shorter period as the
Agent may agree) prior written notice of such event or occurrence.
4.1.4 Other Financing Statements. No Grantor will suffer to exist or authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral owned by such Grantor, except
any financing statement authorized under Section 4.1.2 hereof or in respect of a Lien permitted under Section 8.04 of the LC Credit Agreement. Each Grantor acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement filed in connection herewith prior to termination of this Security Agreement in accordance with the first sentence of Section 8.13 hereof. without the prior
written consent of the Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.
Receivables.
4.2.1 Certain Agreements on Receivables. After the occurrence and during the continuation of an Event of Default, no Grantor will make or agree to make any discount, credit, rebate or other reduction in the
original amount owing on a Receivable or accept in satisfaction of a Receivable less than the original amount thereof, except as permitted by the LC Credit Agreement. Prior to the occurrence and continuation of an Event of Default, such
Grantor may, in its sole discretion, adjust the amount of Accounts arising from the sale of Inventory or the rendering of services in substantially accordance with its present policies and in the ordinary course of business and as otherwise
permitted under the LC Credit Agreement.
4.2.2 Collection of Receivables. Except as otherwise provided in this Security Agreement or as otherwise permitted under the LC Credit Agreement, each Grantor will use commercially reasonable efforts to collect
and enforce, at such Grantor’s sole expense, all amounts due or hereafter due to such Grantor under the Receivables owned by such Grantor.
4.2.3 Delivery of Invoices. Each Grantor will deliver to the Agent promptly upon its request after the occurrence and during the continuance of an Event of Default duplicate invoices with respect to each Account
owned by such Grantor and, if requested by the Agent, bearing such language of assignment as the Agent shall reasonably specify.
4.2.4 Disclosure of Counterclaim on Receivables. After the occurrence and during the continuation of an Event of Default if (i) any discount, credit or agreement to make a rebate or to otherwise reduce the amount
owing on a Receivable owned by such Grantor exists or (ii) to the knowledge of such Grantor, any dispute, setoff, claim, counterclaim or defense exists or has been asserted or threatened with respect to a Receivable, such Grantor will
disclose such fact to the Agent in writing in connection with the inspection by the Agent of any record of such Grantor relating to such Receivable and in connection with any invoice or report furnished by such Grantor to the Agent relating
to such Receivable.
4.2.5 Electronic Chattel Paper. Each Grantor shall promptly notify Agent if any amount in excess of $5,000,000, individually, or $10,000,000 in the aggregate payable under or in connection with any electronic
chattel paper or a “transferable record” (as defined in the UETA), and shall take such action as the Agent may reasonably request to establish the Agent’s Control of such electronic chattel paper or transferable record. The Agent agrees
with such Grantor that the Agent will arrange, pursuant to procedures reasonably satisfactory to the Agent and so long as such procedures will not result in the Agent’s loss of Control, for the Grantor to make alterations to the electronic
chattel paper or transferable record permitted under Section 9-105 of the UCC or Section 16 of the UETA for a party in Control to allow without loss of Control, unless an Event of Default has occurred and is continuing or would occur after
taking into account any action by such Grantor with respect to such electronic chattel paper or transferable record.
4.2.6 Account Verification. Each Grantor will, and will cause each of its Subsidiaries to, permit Agent, in Agent's name or in the name or a nominee of Agent, after the occurrence and during the continuation of
an Event of Default, to verify the validity, amount or any other matter relating to any Account, by mail, telephone, facsimile transmission or other electronic means of transmission or otherwise. Further, at the reasonable request of
Agent, each Grantor will, and will cause each of its Subsidiaries to, send requests for verification of Accounts or, after the occurrence and during the continuance of an Event of Default, send notices of assignment of Accounts to Account
Debtors and other obligors.
Maintenance of Goods. Each Grantor will do all things reasonably necessary to maintain, preserve,
protect and keep the Inventory and the Equipment owned by such Grantor and constituting Collateral in good repair, working order and saleable condition (ordinary wear and tear excepted) and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be conducted in the ordinary course, consistent with past practices, except in each case where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Instruments, Securities, Chattel Paper, Documents and Pledged Deposits. Each Grantor will (i)
deliver to the Agent immediately upon execution of this Security Agreement the originals of all Chattel Paper and Instruments (other than Intercompany Instruments; provided that such Intercompany Instruments shall not be delivered to
any Person which is not a Grantor, the ABL Collateral Agent or the Agent), in each case, to the extent evidencing amounts in excess of $5,000,000 individually, or $10,000,000 in the aggregate, and constituting Collateral (if any then exist)
and Securities constituting Collateral (to the extent certificated); provided further that, each Grantor shall be deemed to have complied with this requirement to the extent that the ABL Collateral Agent has received such
Chattel Paper, Instruments or Securities as bailee of the Agent in a manner consistent with the Intercreditor Agreement; (ii) hold in trust for the Agent upon receipt and promptly thereafter deliver to the Agent any Chattel Paper and
Instruments (other than Intercompany Instruments; provided, that such Intercompany Instruments shall not be delivered to any Person who is not a Grantor, the ABL Collateral Agent or the Agent), in each case, to the extent evidencing
amounts in excess of $5,000,000 individually or $10,000,000 in the aggregate, and constituting Collateral (if any then exist) and Securities (to the extent certificated); provided further, that, each Grantor shall be deemed to
have complied with this requirement to the extent that the ABL Collateral Agent has received such Chattel Paper, Instruments or Securities as bailee of the Agent in a manner consistent with the Intercreditor Agreement; (iii) upon the
designation by a Grantor of any Pledged Deposits (as set forth in the definition thereof) as Collateral, deliver to the Agent such Pledged Deposits which are evidenced by certificates included in the Collateral endorsed in blank, marked with
such legends and assigned as the Agent shall reasonably specify; provided, that, each Grantor shall be deemed to have complied with this requirement to the extent that the ABL Collateral Agent has received such certificates as a
bailee of the Agent in a manner consistent with the Intercreditor Agreement; (iv) upon the Agent’s request, after the occurrence and during the continuation of an Event of Default (subject to the terms of the Intercreditor Agreement), deliver
to the Agent (and thereafter hold in trust for the Agent upon receipt and promptly deliver to the Agent) any Document evidencing or constituting Collateral; and (v) upon the Agent’s request, deliver to the Agent, promptly after the delivery
of a Compliance Certificate, a duly executed amendment to this Security Agreement, in the form of Exhibit “I” hereto (the “Amendment”), pursuant to which such Grantor will specify such additional Collateral pledged hereunder.
Such Grantor hereby authorizes the Agent to attach each Amendment to this Security Agreement and agrees that all additional Collateral owned by it set forth in such Amendments shall be considered to be part of the Collateral.
Uncertificated Securities and Certain Other Investment Property. Each Grantor will, following the
reasonable request of the Agent (and after the occurrence and during the continuation of an Event of Default, will permit the Agent to) from time to time cause the appropriate issuers (and, if held with a securities intermediary, such
securities intermediary) of uncertificated securities or other types of Investment Property owned by such Grantor and constituting Collateral that are not represented by certificates which are Collateral to mark their books and records with
the numbers and face amounts of all such uncertificated securities or other types of Investment Property not represented by certificates and all rollovers and replacements therefor to reflect the Lien of the Agent granted pursuant to this
Security Agreement. With respect to Investment Property having a value in excess of $5,000,000 individually or $10,000,000 in the aggregate and constituting Collateral owned by such Grantor held with a financial intermediary (including in a
Securities Account), such Grantor shall, within 30 days following the Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be agreed to by the Agent in its sole discretion), cause
such financial intermediary to enter into a Control Agreement with the Agent in form and substance reasonably satisfactory to the Agent, in order to give the Agent Control (subject to the terms of the Intercreditor Agreement) of such
Investment Property.
Stock and Other Ownership Interests.
4.6.1 Registration of Pledged Securities and other Investment Property. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit any registrable Collateral owned by such Grantor
to be registered in the name of the Agent or its nominee at any time at the option of the Required Lenders following the occurrence and during the continuance of an Event of Default and without any further consent of such Grantor.
4.6.2 Exercise of Rights in Pledged Securities. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit the Agent or its nominee at any time after the occurrence and during the
continuance of an Event of Default, without notice, to exercise or refrain from exercising any and all voting and other consensual rights pertaining to Pledged Collateral owned by such Grantor or any part thereof, and to receive all
dividends and interest in respect of such Pledged Collateral.
4.6.3 ULCs. For greater certainty, the Agent shall have no right under any circumstance to vote ULC Shares or receive dividends from any ULC until such time as notice is given to the applicable Grantor and
further steps are taken so as to register the Agent as the holder of the applicable ULC Shares.
4.6.4 ULC Shares. Each Grantor acknowledges that certain of the Collateral of such Grantor may now or in the future consist of ULC Shares, and that it is the intention of the Agent and each Grantor that neither
the Agent nor any other Secured Party should under any circumstances prior to realization thereon be held to be a “member” or a “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any
provision to the contrary contained in this Security Agreement, the LC Credit Agreement or any other Loan Document, where a Grantor is the registered owner of ULC Shares which are Collateral of such Grantor, such Grantor shall remain the
sole registered owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly,
each Grantor shall be entitled to receive and retain for its own account any dividend on or other distribution, if any, with respect to such ULC Shares (except for any dividend or distribution comprised of certificated Securities pledged of
such Grantor, which shall be delivered to the Agent to hold hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Grantor would if
such ULC Shares were not pledged to the Agent pursuant hereto. Nothing in this Security Agreement, the LC Credit Agreement or any other Loan Document is intended to, and nothing in this Security Agreement, the LC Credit Agreement or any
other Loan Document shall, constitute the Agent, any other Secured Party, or any other Person other than the applicable Grantor, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or
beneficial), until such time as notice is given to such Grantor and further steps are taken pursuant hereto or thereto so as to register the Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of
the ULC Shares. To the extent any provision hereof would have the effect of constituting the Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed
herefrom and shall be ineffective with respect to ULC Shares which are Collateral of any Grantor without otherwise invalidating or rendering unenforceable this Security Agreement or invalidating or rendering unenforceable such provision
insofar as it relates to Collateral of any Grantor which is not ULC Shares. Except upon the exercise of rights of the Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Security Agreement, each Grantor shall
not cause or permit, or enable a Subsidiary that is a ULC to cause or permit, the Agent or any other Secured Party to: (i) be registered as a shareholder or member of such Subsidiary; (ii) have any notation entered in their favour in the
share register of such Subsidiary; (iii) be held out as shareholders or members of such Subsidiary; (iv) receive, directly or indirectly, any dividends, property or other distributions from such Subsidiary by reason of the Agent holding a
Lien over the ULC Shares; or (v) act as a shareholder of such Subsidiary, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Subsidiary or to vote its ULC Shares.
Specified Deposit Accounts. Each Grantor will cause each bank or other financial institution in
which it maintains a Specified Deposit Account to enter into a Control Agreement with the Agent and the ABL Collateral Agent, in form and substance reasonably satisfactory to the Agent in order to give the Agent Control (subject to the terms
of the Intercreditor Agreement) of the Specified Deposit Account within 60 days following the Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be agreed to by the Agent in its
sole discretion). In the case of deposits maintained with Lenders, the terms of such letter shall be subject to the provisions of the LC Credit Agreement regarding setoffs.
Letter of Credit Rights. Each Grantor will, upon the Agent’s request, cause each issuer of a
letter of credit in excess of $5,000,000 individually or in the aggregate to consent to the assignment of proceeds of such letter of credit in order to give the Agent Control (subject to the terms of the Intercreditor Agreement) of the Letter
of Credit Rights to such letter of credit.
Intellectual Property.
4.9.1 If, after the date hereof, any Grantor obtains rights to, including, but not limited to filing and acceptance of a statement of use or an amendment to allege use with the United States Patent and Trademark Office,
or applies for or seeks registration of, any new Patent, Trademark or Copyright (limited, in the case of any Foreign Grantor, to any new U.S. Patent, Trademark or Copyright) in addition to the Patents, Trademarks and Copyrights described in
Exhibit “B”, then to the extent the foregoing constitutes Specified Intellectual Property, such Grantor agrees promptly and within 60 days following the date on which financial statements are required to be delivered pursuant to
Section 7.01(a) and/or Section 7.01(b) of the LC Credit Agreement, to execute and deliver to the Agent any supplement to this Security Agreement or any other document reasonably requested by the Agent to evidence such security interest in a
form appropriate for recording in the applicable U.S. federal office. In the event the applicable Grantor does not comply with the above deadline, each Grantor also hereby authorizes the Agent to (i) modify this Security Agreement
unilaterally by amending Exhibit “B” to include any future Patents, Trademarks and/or Copyrights constituting Specified Intellectual Property of which such Grantor is required to notify the Agent pursuant hereto and (ii) record, in
addition to and not in substitution for this Security Agreement, a duplicate original of this Security Agreement containing in Exhibit “B” a description of such future registrations and applications for Patents, Trademarks and/or
Copyrights constituting Specified Intellectual Property.
4.9.2 As of the applicable Determination Date, no Grantor has any interest in, or title to, any U.S. Intellectual Property registrations or applications, except as set forth in Exhibit “B”. As of the applicable
Determination Date, this Security Agreement is effective to create a valid and continuing Lien on each Grantor’s interest in its Intellectual Property pledged hereunder and, upon timely filing of the IP Short Form with respect to Copyrights
with the United States Copyright Office and filing of the IP Short Form with respect to Patents and the IP Short Form with respect to Trademarks with the United States Patent and Trademark Office, and the filing of appropriate financing
statements in the jurisdictions listed in Exhibit “E” hereto, all action necessary or desirable to protect and perfect the security interest in, to and on each Grantor’s interest in U.S. Patents, Trademarks or Copyrights that are
set forth in Exhibit “B” as of the applicable Determination Date shall have been taken and such perfected security interest shall be enforceable as such as against any and all creditors of and purchasers from any Grantor.
Commercial Tort Claims. If, after the date hereof, any Grantor identifies the existence of a
Commercial Tort Claim constituting Collateral belonging to such Grantor that has arisen in the course of such Grantor’s business in addition to the Commercial Tort Claims described in Exhibit “F”, which are all of such Grantor’s
Commercial Tort Claims as of the Effective Date, then such Grantor shall give the Agent prompt notice thereof, but in any event not less frequently than quarterly. Each Grantor agrees promptly upon request by the Agent to execute and deliver
to the Agent any supplement to this Security Agreement or any other document reasonably requested by the Agent to evidence the grant of a security interest therein in favor of the Agent.
Updating of Exhibits to Security Agreement. The Borrowers will provide to the Agent, concurrently
with the delivery of each Compliance Certificate required by Section 7.01(e) of the LC Credit Agreement, updated versions of the Exhibits to this Security Agreement (provided that if there have been no changes to any such Exhibits
since the previous updating thereof required hereby, the Borrowers shall indicate that there has been “no change” to the applicable Exhibit(s)). Any reference to any Exhibit herein shall mean such Exhibit after giving effect to any updates
thereof by the Borrowers or such Grantor pursuant to this Section 4.11 or otherwise.
ARTICLE V
DEFAULT
Remedies.
5.1.1 Upon the occurrence and during the continuation of an Event of Default, the Agent may, and at the direction of the Required Lenders shall, subject to the Intercreditor Agreement, exercise any or all of the
following rights and remedies:
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(i)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, those rights and remedies provided in this Security Agreement, the LC Credit Agreement or any other Loan
Document, provided that this clause (i) shall not be understood to limit any rights or remedies available to the Agent and the Secured Parties prior to an Event of Default.
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(ii)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, those rights and remedies available to a secured party under the UCC (whether or not the UCC applies to
the affected Collateral) or under any other applicable law when a debtor is in default under a security agreement.
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(iii)
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Give notice of sole control or any other instruction under any Control Agreement or other control agreement with any securities intermediary and take any action therein with
respect to such Collateral.
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(iv)
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Without notice (except as specifically provided in Section 8.1 hereof or elsewhere herein), demand or advertisement of any kind to any Grantor or any other Person enter
the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise
dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place
at any Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable.
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(v)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, concurrently with written notice to the applicable Grantor, transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, to exercise
the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Pledged Collateral as
though the Agent was the outright owner thereof.
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5.1.2 The Agent, on behalf of the Secured Parties, shall comply with any applicable state or federal law requirements in connection with a disposition of the Collateral, and such compliance will not be considered to
adversely affect the commercial reasonableness of any sale of the Collateral.
5.1.3 The Agent shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties,
the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption the Grantor hereby expressly releases.
5.1.4 Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the
purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the
Agent’s remedies (for the benefit of the Agent and other Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.
5.1.5 Notwithstanding the foregoing, neither the Agent nor any other Secured Party shall be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other
obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee
thereof, (ii) marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any Collateral. To the extent that it lawfully
may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Agent's rights and remedies under this Security Agreement or under any other
instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent
that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.
5.1.6 Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with Section
5.1.1 above. Each Grantor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws, even if the applicable Grantor
and the issuer would agree to do so.
Grantors’ Obligations Upon Default. Upon the written request of the Agent after the occurrence and
during the continuation of an Event of Default, subject to the Intercreditor Agreement, each Grantor will:
5.2.1 Assembly of Collateral. Assemble and make available to the Agent the Collateral and all books and records relating thereto at any place or places specified in writing by the Agent.
5.2.2 Secured Party Access. Permit the Agent, by the Agent’s representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto,
or both, are located, to take possession of all or any part of the Collateral, or the books and records relating thereto, or both, to remove all or any part of the Collateral, or the books and records relating thereto, or both, and to
conduct sales of the Collateral, without any obligation to pay the Grantor for such use and occupancy.
5.2.3 Prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with the SEC or any other applicable government agency, registration statements, a prospectus and such other documentation in
connection with the Pledged Collateral as the Agent may request, all in form and substance reasonably satisfactory to the Agent, and furnish to the Agent, or cause an issuer of Pledged Collateral to furnish to the Agent, any information
regarding the Pledged Collateral in such detail as the Agent may specify.
5.2.4 Subject to Section 4.6.4 hereof in the case of ULC Shares, take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral to enable the
Agent to consummate a public sale or other disposition of the Pledged Collateral.
License. The Agent is hereby granted a sublicenseable license or other right to use, following the
occurrence and during the continuance of an Event of Default and, subject to the Intercreditor Agreement, without charge, each Grantor’s Intellectual Property constituting Collateral and to access all media and materials containing same. In
addition, each Grantor hereby irrevocably agrees that the Agent may, following the occurrence and during the continuance of an Event of Default, subject to the Intercreditor Agreement, sell any of such Grantor’s Inventory constituting
Collateral directly to any person, including without limitation persons who have previously purchased such Grantor’s Inventory from such Grantor and in connection with any such sale or other enforcement of the Agent’s rights under this
Security Agreement, may sell such Inventory which bears any trademark owned by or licensed to such Grantor and any such Inventory that is covered by any copyright owned by or licensed to such Grantor and the Agent may (but shall have no
obligation to) finish any work in process and affix any Trademark owned by or licensed to such Grantor and sell such Inventory as provided herein.
Remedies Cumulative. Each right, power, and remedy of Agent or any other Secured Party as provided
for in this Security Agreement, the other Loan Documents, any Swap Agreements or any Banking Services Agreements now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power, or remedy provided for in this Security Agreement, the other Loan Documents, any Swap Agreements or any Banking Services Agreements now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Agent or any other Secured Party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by Agent or such other Secured Parties
of any or all such other rights, powers, or remedies.
ARTICLE VI
WAIVERS, AMENDMENTS AND REMEDIES
No delay or omission of the Agent or any Secured Party to exercise any right or remedy granted under this
Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or
further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Agent
and each Grantor, and then only to the extent in such writing specifically set forth; provided, that the addition of any Subsidiary as a Grantor hereunder by execution of a Security Agreement Supplement in the form of Annex I
(with such modifications as shall be acceptable to the Agent) shall not require receipt of any consent from or execution of any documentation by any other Grantor party hereto. All rights and remedies contained in this Security Agreement or
by law afforded shall be cumulative and all shall be available to the Agent and the Secured Parties until the Secured Obligations have been paid in full.
ARTICLE VII
PROCEEDS; COLLECTION OF RECEIVABLES
Lockboxes. Upon request of the Agent after the occurrence and during the continuation of an Event
of Default and subject to the Intercreditor Agreement, each Grantor shall execute and deliver to the Agent irrevocable lockbox agreements in the form provided by or otherwise reasonably acceptable to the Agent, which agreements, if so
required by the Agent, shall be accompanied by an acknowledgment by the bank where the lockbox is located of the Lien of the Agent granted hereunder and of irrevocable instructions to wire all amounts collected therein to a special collateral
account at the Agent.
Collection of Receivables. The Agent may at any time after the occurrence and during the
continuation of an Event of Default and subject to the Intercreditor Agreement, by giving each Grantor written notice, elect to require that the Receivables be paid directly to the Agent for the benefit of the Secured Parties. In such event,
subject to the Intercreditor Agreement, each Grantor shall, and shall permit the Agent to, promptly notify the account debtors or obligors under the Receivables owned by such Grantor of the Agent’s interest therein and direct such account
debtors or obligors to make payment of all amounts then or thereafter due under such Receivables directly to the Agent. Upon receipt of any such notice from the Agent, each Grantor shall thereafter during the continuation of any Event of
Default and subject to the Intercreditor Agreement hold in trust for the Agent, on behalf of the Secured Parties, all amounts and proceeds received by it with respect to the Receivables and Other Collateral and immediately and at all times
thereafter deliver to the Agent all such amounts and proceeds in the same form as so received, whether by cash, check, draft or otherwise, with any necessary endorsements. The Agent shall hold and apply funds so received as provided by the
terms of Sections 7.3 and 7.4 hereof.
Special Collateral Account. Upon the occurrence and during the continuation of an Event of Default
and subject to the Intercreditor Agreement, the Agent may require, by giving the Grantors written notice, that all cash proceeds of the Collateral to be deposited in a special non-interest bearing cash collateral account with the Agent and
held there as security for the Secured Obligations. No Grantor shall have any control whatsoever over such cash collateral account. The Agent shall from time to time deposit the collected balances in such cash collateral account into the
applicable Grantor’s general operating account with the Agent. Subject to the Intercreditor Agreement, if any Event of Default has occurred and is continuing, the Agent may (and shall, at the direction of the Required Lenders), from time to
time, apply the collected balances in such cash collateral account to the payment of the Secured Obligations.
Application of Proceeds. Subject to the Intercreditor Agreement, the proceeds of the Collateral
shall be applied by the Agent to payment of the Secured Obligations of the Grantors, as provided under Sections 4.01 and 9.04 of the LC Credit Agreement.
Swiss Limitations.
7.5.1 If and to the extent that the security granted by a Grantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to art. 9 of the Swiss
Withholding Tax Act (the “Swiss Grantor”) under this Security Agreement secures obligations other than obligations of one of its direct or indirect subsidiaries (i.e. obligations of the Swiss Grantor's direct or indirect parent
companies (up-stream liabilities) or sister companies (cross-stream liabilities)) (the “Restricted Obligations”) and that using the proceeds from the enforcement of such security would under
Swiss corporate law (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted at such time, then the proceeds from the enforcement of such security to be
applied towards discharging Restricted Obligations shall from time to time be limited to the amount permitted under applicable Swiss law; provided, that such limited amount shall at no time be less than the Swiss Grantor's
distributable capital (presently being the balance sheet profits and any reserves available for distribution) at the time or times of enforcement for Restricted Obligations, and further provided that such limitation (as may apply from time
to time or not) shall not (generally or definitively) affect the security granted by the Swiss Grantor under this Security Agreement in excess thereof, but merely postpone the time of using such proceeds from Enforcement of such security
until such times as application towards discharging the Restricted Obligations is again permitted notwithstanding such limitation.
7.5.2 In case the Swiss Grantor who must make a payment in respect of Restricted Obligations under this Security Agreement is obliged to withhold Swiss Withholding Tax in respect of such payment, the Swiss Grantor
shall:
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(i)
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procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to
such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
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(ii)
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if the notification procedure pursuant to Section 7.5.2(i) hereof does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from
time to time), or if the notification procedure pursuant to Section 7.5.2(i) hereof applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part
of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration;
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(iii)
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notify the Agent that such notification, or as the case may be, deduction has been made and provide the Agent with evidence that such a notification of the Swiss Federal Tax
Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; and
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(iv)
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in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person other than the Agent, which is entitled to a full or partial refund of the
Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction:
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(A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and pay to the Agent upon receipt any amounts so refunded; or
(B) if the Agent or a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the Agent, provide the Agent and/or the relevant Secured Party those documents that
are required by law and applicable tax treaties to be provided by the payer of such tax in order to enable the Agent and/or the relevant Secured Party to prepare a claim for refund of Swiss Withholding Tax.
7.5.3 If the Swiss Grantor is obliged to withhold Swiss Withholding Tax in accordance with Section 7.5.1 hereof, the Agent shall be entitled to further request payment as per this Section 7.5 and other
indemnity granted to it under this Security Agreement and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax
were required, whereby such further payments shall always be limited to the maximum amount of the freely distributable capital of the Swiss Grantor as set out in Section 7.5.1 hereof. In case the proceeds irrevocably received by the
Agent and the Secured Parties pursuant to Section 7.5.2(iv) hereof and this paragraph (additional enforcements) have the effect that the proceeds received by the Agent and the Secured Parties exceed the Secured Obligations, then the
Agent or the relevant Secured Party shall return such overcompensation to the Swiss Grantor.
7.5.4 If and to the extent requested by the Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Agent (and the Secured Parties) to
obtain a maximum benefit under this Security Agreement, the Swiss Grantor shall promptly implement the following:
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(i)
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the preparation of an up-to-date audited balance sheet of the Swiss Grantor;
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(ii)
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the confirmation of the auditors of the Swiss Grantor that the relevant amount represents the maximum of freely distributable profits;
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(iii)
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the prompt convening of a meeting of the shareholders of the Swiss Grantor which will approve the (resulting) profit distribution;
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(iv)
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if the enforcement of any Restricted Obligations would be limited as a result of any matter referred to in this Section 7.5, the Swiss Grantor shall, to the extent
permitted by applicable law, (a) write up or realise any of its assets shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realisation, however, only if such assets
are not necessary for the Swiss Grantor’s business (nicht betriebsnotwendig) and/or (b) reduce its share capital to the extent permitted by applicable law; and
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(v)
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all such other measures reasonably necessary and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow the Swiss Grantor and relevant parent
company to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum of limitations.
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7.6. Norwegian Limitations.
7.6.1 The Norwegian Financial Agreements Act shall not apply to this Security Agreement, except as required by § 2 of the Financial Agreements Act (if applicable). The liability of each Grantor incorporated in Norway in
its capacity as Grantor (each a “Norwegian Grantor”) shall be limited to USD $240,000,000, plus any interest, default interest, commissions, charges, fees and expenses due under any Secured Obligation. Notwithstanding any other
provision of this Security Agreement to the contrary, the obligations and liabilities of any Norwegian Grantor under this Security Agreement shall be limited by such mandatory provisions of sections 8-7 and/or 8-10 of the Norwegian Limited
Liability Companies Act of 13 June 1997 (the “Act”) regarding restrictions on a Norwegian limited liability company’s ability to grant guarantees, loans, security or other financial assistance. The obligations of the Norwegian
Grantors shall only be limited to the extent this is required from time to time, and the Norwegian Grantors shall be liable to the fullest extent permitted by the Act as amended from time to time. To the extent permitted by applicable law,
if a payment under this Security Agreement by a Norwegian Grantor has been made in contravention of the limitations contained in this Section 7.6.1, the Secured Parties shall not be liable for any damages in relation thereto, and the
maximum amount repayable by the Secured Parties as a consequence of such contravention shall be the amount received from that Norwegian Grantor.
7.6.2 The Norwegian Grantors' Collateral is limited to such Norwegian Grantors' Patents being held and registered in the United States, and does not extend to any Collateral held or registered outside the jurisdiction
of the United States.
7.6.3 Each Norwegian Grantor and the Agent hereby confirms and acknowledges that each representation and warranty made by the Norwegian Grantors under Article III, each covenant made under Article IV and
each provision under Articles VII and VIII are made subject to Section 8.23, and that any failure to comply with any of the Sections under such Articles does not constitute a breach of any such provisions or Event of Default
to the extent that failure to comply is by reason of Norwegian law.
ARTICLE VIII
GENERAL PROVISIONS
Notice of Disposition of Collateral; Condition of Collateral. Each Grantor hereby waives notice of
the time and place of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be
deemed reasonable if sent to the Grantors, addressed as set forth in Article IX, at least 10 days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. To
the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against the Agent or any other Secured Party arising out of the repossession, retention or sale of the Collateral, except such as arise
solely out of the gross negligence or willful misconduct of the Agent or such other Secured Party, or its or their agents, employees, officers, nominees or other representatives, as finally determined by a court of competent jurisdiction. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any other Secured Party, any valuation, stay, appraisal,
extension, moratorium, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment,
order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to
the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Limitation on Agent’s and other Secured Parties’ Duty with Respect to the Collateral. The Agent
shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent and each other Secured Party shall use reasonable care with respect to the Collateral in its possession or under its control (or in the possession or
under the care of any agent, employee, officer, nominee or other representative of the Agent or such other Secured Party). Neither the Agent nor any other Secured Party shall have any other duty as to any Collateral in its possession or
control or in the possession or control of any agent or nominee of the Agent or such other Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent
that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (i) to fail to incur expenses deemed significant
by the Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral
to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection
remedies against account debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against account debtors and other Persons obligated on Collateral
directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature,
(vi) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the
disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to
purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the
extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges
that the purpose of this Section 8.2 is to provide non-exhaustive indications of what actions or omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies against the Collateral and that other actions
or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8.2. Without limitation upon the foregoing, nothing contained in this Section 8.2 shall be
construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8.2.
Compromises and Collection of Collateral. Each Grantor and the Agent recognize that setoffs,
counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of
success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered with respect to a Receivable. In view of the foregoing, each Grantor agrees, subject to applicable bankruptcy laws, that the
Agent may at any time and from time to time, if an Event of Default has occurred and is continuing, and subject to the Intercreditor Agreement, compromise with the obligor on any Receivable, accept in full payment of any Receivable such
amount as the Agent in its sole discretion shall determine or abandon any Receivable, and any such action by the Agent shall be commercially reasonable so long as the Agent acts in good faith based on information known to it at the time it
takes any such action.
Secured Party Performance of Grantor’s Obligations. Without having any obligation to do so, the
Agent may perform or pay any obligation which any Grantor has agreed to perform or pay in this Security Agreement and fails to so perform or pay and such Grantor shall reimburse the Agent for any reasonable and documented amounts paid by the
Agent pursuant to this Section 8.4. Each Grantor’s obligation to reimburse the Agent pursuant to the preceding sentence shall be a Secured Obligation payable on demand.
Authorization for Secured Party to Take Certain Action. Each Grantor irrevocably authorizes the
Agent at any time and from time to time in the sole discretion of the Agent and appoints the Agent as its attorney in fact (i) to execute on behalf of such Grantor as debtor and to file financing statements necessary or desirable in the
Agent’s sole discretion to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (ii) to indorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other
reproduction of this Security Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or
add a debtor) in such offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (iv) to contact and enter into one or
more agreements with the issuers of uncertificated securities which are Collateral owned by such Grantor and which are Securities or with financial intermediaries holding other Investment Property which is Collateral as may be necessary or
advisable to give the Agent Control (subject to the Intercreditor Agreement) over such Securities or other Investment Property, (v) solely to the extent an Event of Default has occurred and is continuing, to enforce payment of the
Instruments, Accounts and Receivables constituting Collateral in the name of the Agent or such Grantor, (vi) solely to the extent an Event of Default has occurred and is continuing, to apply the proceeds of any Collateral received by the
Agent to the Secured Obligations as provided in Article VII and (vii) to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder or under any other Loan
Document), and each Grantor agrees to reimburse the Agent on demand for any reasonable and documented payment made or any reasonable and documented expense incurred by the Agent in connection therewith; provided, that this
authorization shall not relieve any Grantor of any of its obligations under this Security Agreement or under the LC Credit Agreement.
Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of
any of the covenants contained in Section 5.2, or in Article VII hereof will cause irreparable injury to the Agent and the other Secured Parties, that the Agent and the other Secured Parties have no adequate remedy at law in
respect of such breaches and therefore agrees, without limiting the right of the Agent or the other Secured Parties to seek and obtain specific performance of other obligations of the Grantors contained in this Security Agreement, that the
covenants of the Grantors contained in the Sections referred to in this Section 8.6 shall be specifically enforceable against the Grantors.
Use and Possession of Certain Premises. Upon the occurrence and during the continuation of an
Event of Default, subject to the Intercreditor Agreement, the Agent shall be entitled to occupy and use any premises owned or leased by the Grantors where any of the Collateral or any records relating to the Collateral are located until the
Secured Obligations are paid or the Collateral is removed therefrom, whichever first occurs, without any obligation to pay any Grantor for such use and occupancy, subject to Section 8.2 hereof all respects.
Reinstatement. This Security Agreement shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of any Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
Benefit of Agreement. The terms and provisions of this Security Agreement shall be binding upon
and inure to the benefit of the Grantors, the Agent and the Secured Parties and their respective successors and assigns (including all persons who become bound as a debtor to this Security Agreement); provided that the Grantors shall
not have the right to assign their rights or delegate their obligations under this Security Agreement or any interest herein, except as permitted under the LC Credit Agreement. No sales of participations, assignments, transfers, or other
dispositions of any agreement governing the Secured Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Agent, for the benefit of the Agent and the other Secured Parties, hereunder.
Survival of Representations. All representations and warranties of the Grantors contained in this
Security Agreement shall survive the execution and delivery of this Security Agreement.
Taxes and Expenses. To the extent required by Section 4.02 of the LC Credit Agreement, any Other
Taxes payable or ruled payable by a Governmental Authority in respect of this Security Agreement shall be paid by the applicable Grantor. The Grantors shall reimburse the Agent for any and all of its reasonable out-of-pocket expenses
(including reasonable external legal, auditors’ and accountants’ fees) if and to the extent the Borrowers are required to reimburse such amounts under Section 11.03 of the LC Credit Agreement. Any and all costs and expenses incurred by the
Grantors in the performance of actions required pursuant to the terms hereof shall be borne solely by the Grantors.
Headings. The title of and section headings in this Security Agreement are for convenience of
reference only, and shall not govern the interpretation of any of the terms and provisions of this Security Agreement.
Termination. This Security Agreement shall continue in effect (notwithstanding the fact that from
time to time there may be no Secured Obligations outstanding) until Payment in Full. Notwithstanding the foregoing, the obligations of any individual Grantor under this Security Agreement shall automatically terminate to the extent provided
in and in accordance with Section 11.23 of the LC Credit Agreement.
Entire Agreement. This Security Agreement and the other Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
Governing Law; Jurisdiction; Waiver of Jury Trial.
8.15.1 THIS SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
8.15.2 Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or the state
courts sitting in the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, in any suit, action or proceeding arising out of or relating to this
Security Agreement or any other Loan Document (other than any Security Agreement governed by Norwegian law), or for recognition or enforcement of any judgment, and each Grantor hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final, non-appealable 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. Nothing in this Security Agreement or any other Loan Document shall (including this Section
8.15) affect any right that any Secured Party may otherwise have to bring any suit, action or proceeding relating to this Security Agreement or any other Loan Document against any Grantor or its properties in the courts of any
jurisdiction.
8.15.3 Each Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. Each Grantor hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
8.15.4 Each party to this Security Agreement irrevocably consents to service of process in the manner provided for notices in Article IX of this Security Agreement other than by facsimile. Nothing in this
Security Agreement or any other Loan Document will affect the right of any party to this Security Agreement to serve process in any other manner permitted by law. Notwithstanding any other provision of this Security Agreement, each Foreign
Grantor hereby irrevocably designates CT Corporation System, 28 Liberty Street, New York, New York 10005, as the designee, appointee and agent of such Foreign Grantor to receive, for and on behalf of such Foreign Grantor, service of process
in the State of New York in any suit, action or proceeding arising out of or relating to this Security Agreement or any other Loan Document.
8.15.5 Each Grantor agrees that any suit, action or proceeding brought by any Grantor or any of their respective Subsidiaries relating to this Security Agreement or any other Loan Document (other than any Security
Agreement governed by Norwegian law) against the Agent, any other Secured Party or any of their respective Affiliates shall be brought in the United States District Court for the Southern District of New York (or the state courts sitting in
the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, unless no such court shall accept jurisdiction.
8.15.6 The Agent hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the United States District Court for the Southern District of New York (or the state courts sitting in
the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, in any suit, action or proceeding arising out of or relating to this Security Agreement or
any other Loan Document (other than any Security Agreement governed by Norwegian law), or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final, non-appealable 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.
8.15.7 The Agent hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. The Agent hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
8.15.8 To the extent that any Grantor has or hereafter may acquire any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property, such Grantor hereby irrevocably waives such immunity in respect of its obligations under the Loan Documents.
8.15.9 EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Indemnity. Each Grantor hereby agrees, jointly with the other Grantors and severally, to indemnify
the Agent and the Secured Parties in accordance with Section 11.04 of the LC Credit Agreement, mutatis mutandis.
Severability. Any provision in this Security Agreement that is held to be inoperative,
unenforceable, not permissible, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, not permissible, or invalid without affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Security Agreement are declared to be severable.
Counterparts. This Security Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by
telecopy, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Security Agreement. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Security Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures,
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state
laws based on the UETA.
Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Lien and security
interest granted to the Agent pursuant to or in connection with this Security Agreement, and the exercise of any right or remedy by the Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict
between the terms of the Intercreditor Agreement and this Security Agreement, subject to Section 4.6.4 hereof and any other limitation on rights of the Agent or other Secured Party with respect to ULC Shares hereunder, the terms of
the Intercreditor Agreement shall control. For so long as the Intercreditor Agreement remains in effect, the delivery of any Collateral to the ABL Collateral Agent as required by the Intercreditor Agreement shall satisfy any delivery
requirement with respect to such Collateral hereunder.
Loan Document. This Security Agreement constitutes a Loan Document for all purposes under the LC
Credit Agreement and all other Loan Documents.
Further Assurances. Each Grantor shall, execute and deliver, or cause to be executed and
delivered, to the Agent such documents, agreements, instruments, forms and notices and will take or cause to be taken such further actions (including the filing and recording of financing statements and other documents serving notices of
assignment and such other actions or deliveries of the type required by Section 5.01 of the LC Credit Agreement, as applicable), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms
and conditions of this Security Agreement and to ensure perfection and priority of the Liens created or intended to be created hereby, all at the expense of the Grantors.
Swiss Security Limitation. If and to the extent the Collateral is subject to any Swiss Security Documents, the security interests created under the respective Swiss Security
Documents shall rank senior to the security interests created hereunder and the provisions of the respective Swiss Security Documents shall prevail.
8.23. Norwegian Security Limitation. If and to the extent the Collateral is subject to any Collateral Documents governed by the law of Norway (the “Norwegian Security Documents”), the security interests created under the
respective Norwegian security documents shall rank senior to the security interests created hereunder and the provisions of the respective Norwegian Security Documents shall prevail.
Foreign Grantors. Notwithstanding anything to the contrary set forth in this Security Agreement, the parties hereto acknowledge that the representations and warranties, covenants and obligations hereunder
of any Foreign Grantor shall apply with respect to the Collateral or, if applicable, any other assets of such Foreign Grantor only to the extent such Collateral or other assets are registered in a jurisdiction located in the United States
or, in the case of Capital Stock and Stock Rights pledged pursuant to this Security Agreement by a Foreign Grantor, any such Capital Stock or Stock Rights that are issued by a Domestic Subsidiary.
ARTICLE IX
NOTICES
Sending Notices. All notices, requests and other communications to any party hereunder shall be
given in the manner prescribed in Section 11.02 of the LC Credit Agreement with respect to the Agent at its notice address therein and, with respect to any Grantor, in the care of Weatherford International, LLC, as provided and at the notice
address set forth in the Credit Agreement, or such other address or telecopy number as such party may hereafter specify for such purpose in accordance with the provisions of Section 11.02 of the LC Credit Agreement. Any notice delivered to
the Borrowers on behalf of the Grantors shall be deemed to have been delivered to all of the Grantors.
Change in Address for Notices. Each of the Grantors, the Agent and the Lenders may change the
address for service of notice upon it by a notice in writing to the other parties.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Grantors and the Agent have executed this Security Agreement as of the
date first above written.
GRANTORS:
[INSERT GRANTORS]
By:_____________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
[Exhibits]
EXHIBIT I
FORM OF CANADIAN SECURITY AGREEMENT
CANADIAN SECURITY AGREEMENT
dated as of December 13, 2019
among
WEATHERFORD CANADA LTD.
WEATHERFORD (NOVA SCOTIA) ULC,
PRECISION ENERGY SERVICES ULC,
PRECISION ENERGY INTERNATIONAL LTD.,
PRECISION ENERGY SERVICES COLOMBIA LTD.,
and
the other GRANTORS from time to time party hereto,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Reference is made to the Intercreditor Agreement, dated as of December 13, 2019, among Wells Fargo
Bank, National Association, as ABL Collateral Agent (as defined in the Intercreditor Agreement) for the ABL Secured Parties referred to therein; Deutsche Bank Trust Company Americas, as LC Collateral Agent (as defined in the Intercreditor
Agreement) for the LC Facility Secured Parties referred to therein; Weatherford International plc, a public limited company incorporated in the Republic of Ireland, Weatherford International Ltd., a Bermuda exempted company, Weatherford
International, LLC, a Delaware limited liability company and the other Grantors of Weatherford International plc named therein (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”). Each Lender, of its acceptance of the benefits hereof (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be
bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the LC Collateral Agent to enter into the Intercreditor Agreement as LC Collateral Agent on behalf of such LC
Lender. The foregoing provisions are intended as an inducement to the Lenders to extend credit to the Borrowers (as defined below) or to acquire any notes or other evidence of any debt obligation owing from the Borrowers and such Lenders
are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Security Agreement, the Liens created
hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable ABL Security Documents and LC
Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Security Agreement and the Intercreditor Agreement, subject to Section 4.6.4 hereof and any other
limitation on rights of the Agent or other Secured Party with respect to ULC Shares hereunder, the provisions of the Intercreditor Agreement shall control.
This CANADIAN SECURITY AGREEMENT (as the same may be amended, restated, supplemented or otherwise
modified from time to time, this “Security Agreement”) is entered into as of December 13, 2019 by and among the entities listed on the signature pages hereto (such listed entities,
collectively, the “Initial Grantors” and, together with any other Subsidiaries of Weatherford International plc, an Irish public limited company (“WIL-Ireland”),whether now existing or hereafter formed or acquired, that become parties to this Security Agreement from time to time in accordance with the terms of the LC Credit Agreement described below by
executing a Security Agreement Supplement hereto in substantially the form of Annex I, each, a “Grantor” and, collectively, the “Grantors”), and Deutsche Bank Trust Company Americas in its capacity as administrative agent (in such capacity, the “Agent”) for itself and on behalf and for the
benefit of the other Secured Parties (as defined below).
PRELIMINARY STATEMENTS
WIL-Ireland, Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware” and together with WIL-Bermuda, the “Borrowers”), the Agent, and the Lenders are entering into that certain LC Credit Agreement dated as of the date hereof (as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time, the “LC Credit Agreement”).
The Grantors are entering into this Security Agreement in order to induce the Lenders to enter into and
extend credit to the Borrowers under the LC Credit Agreement on the terms set forth therein.
ACCORDINGLY, the Grantors and the Agent, for itself and on behalf and for the benefit of the other
Secured Parties, hereby agree as follows:
ARTICLE I
DEFINITIONS
Terms Defined in the LC Credit Agreement and the Intercreditor Agreement. All capitalized terms
used herein and not otherwise defined shall have the respective meanings assigned to such terms in the LC Credit Agreement and the Intercreditor Agreement.
Terms Defined in PPSA. Terms defined in the PPSA that are not otherwise defined in this Security
Agreement are used herein as defined in the PPSA; provided that in any event, the following terms shall have the meanings assigned to them in the PPSA: “Accessions”, “Account”, “Chattel Paper”, “Certificated Security”, “Consumer Goods”,
“Document of Title”, “Equipment”, “financing statement”, “financing change statement”, “Futures Account”, “Futures Contract”, “Futures Intermediary”, “Goods”, “Instrument”, “Inventory”, “Investment Property”, “Money”, “Proceeds”, “Securities
Account”, “Securities Intermediary”, “Security”, “Security Certificate”, “Security Entitlement”, “serial number goods” and “Uncertificated Security”.
1.3. Terms Defined in STA. As used in this Security Agreement, the words “Control”, “Entitlement Holder”, “Entitlement Order”, “Issuer” and “Financial Asset” have the meaning given to the terms “control”, “entitlement holder”,
“entitlement order”, “issuer” and “financial asset”, respectively, in the STA.
Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the
terms defined above and in the Preliminary Statement, the following terms shall have the following meanings:
“Article” means a numbered article of this Security Agreement, unless another document is
specifically referenced.
“Collateral” means, with respect to any Grantor, all Accounts, Chattel Paper, Deposit Accounts,
Documents of Title, Equipment, Fixtures, Goods, Instruments, Intangibles, Intellectual Property, Inventory, Investment Property, letters of credit, Letter of Credit Rights, Pledged Deposits, Supporting Obligations, and Other Collateral,
wherever located, in which any Grantor now has or hereafter acquires any right or interest, and the proceeds (including Stock Rights), insurance proceeds and products thereof, together with all books and records, customer lists, credit files,
computer files, programs, printouts and other computer materials and records related thereto. Notwithstanding any of the foregoing, Collateral shall not include (a) any Excluded Assets, (b) any Consumer Goods, or (c) the last day of any real
property lease or any agreement to lease real property, to which such Grantor is now or becomes a party as lessee, provided that any such last day shall be held in trust by such Grantor and, on the exercise by the Agent of its rights and
remedies hereunder, shall be assigned by the Grantor as directed by the Agent.
“Contracts” means, with respect to any Grantor, all contracts and agreements to which such Grantor
is at any time a party or pursuant to which such Grantor has at any time acquired rights, and includes (i) all rights of such Grantor to receive money due and to become due to it in connection with a contract or agreement, (ii) all rights of
such Grantor to damages arising out of, or for breach or default with respect to, a contract or agreement, and (iii) all rights of such Grantor to perform and exercise all remedies in connection with a contract or agreement.
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to
the Agent, executed and delivered by a Grantor, the Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account), or an equivalent agreement under any applicable foreign
jurisdiction.
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and interest in
and to the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages,
and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; and (e) all rights corresponding to any of the
foregoing throughout the world.
“Copyright Security Agreement” means each Confirmatory Grant in U.S. Copyrights executed and
delivered by any Grantor in favor of Agent in a form substantially similar to the Trademark Security Agreement and the Patent Security Agreement.
“Deposit Account” means a demand, time, savings, passbook, or similar account maintained with a
financial institution, including any sub-account relating thereto, and all cash, funds, cheques, notes and instruments from time to time on deposit in any such account or sub-account.
“Determination Date” means the most recent to occur of (a) in the case of an Initial Grantor, the
date hereof or, in the case of any other Grantor, the date such Grantor becomes a party hereto and (b) the most recent date on which the Borrowers deliver to the Agent a Compliance Certificate accompanied by updated Exhibits to this Security
Agreement pursuant to Section 4.11 hereof.
“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document is
specifically referenced.
“Fixtures” means goods that have become so related to particular real property that an interest in
them arises under real property law.
“Industrial Designs” means (a) registered industrial designs and industrial design applications,
and also includes registered industrial designs and industrial design applications listed in Exhibit “B”, (b) all renewals, divisions and any industrial design registrations issuing thereon and any and all foreign applications
corresponding thereto, (c) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for
past or future infringements thereof, (d) the right to sue for past, present and future infringements thereof, and (e) all of each Grantor’s rights corresponding thereto throughout the world.
“Intangibles” shall have the meaning set forth in the PPSA and, in any event, includes payment
intangibles, contract rights, rights to payment, rights arising under common law, statutes, or regulations, choses in action, Intellectual Property, programs, programming materials, blueprints, drawings, purchase orders, customer lists,
monies due or recoverable from pension funds, route lists, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension plan refund claims, insurance premium
rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under the STA, and any other personal property other than Money, Accounts, Chattel Paper, Deposit
Accounts, Goods, Investment Property, negotiable Collateral, and oil, gas, or other minerals before extraction.
“Intellectual Property” means all Patents, Trademarks, Copyrights, Industrial Designs and any
other intellectual property.
“Intercompany Instrument” means an Instrument between a Grantor, as the payee thereunder, and
WIL-Ireland or any of its Restricted Subsidiaries, as the payor thereunder.
“Letter of Credit Rights” means a right to payment or performance under a letter of credit,
whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance, but does not include the right of a beneficiary to demand payment or performance under a letter of credit.
“Licenses” means, with respect to any Person, all of such Person’s right, title, and interest in
and to (a) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights, Trademarks or Industrial Designs, (b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with
respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and (c) all rights to sue for past, present, and future breaches thereof.
“Other Collateral” means any personal property of the Grantors, not included within the defined
terms Accounts, Chattel Paper, Deposit Accounts, Documents of Title, Equipment, Fixtures, Goods, Instruments, Intangibles, Intellectual Property, Inventory, Investment Property, Letter of Credit Rights, Pledged Deposits and Supporting
Obligations, including, without limitation, all cash on hand, letters of credit, Stock Rights or any other deposits (general or special, time or demand, provisional or final) with any bank or other financial institution, it being intended
that the Collateral include all personal property of the Grantors, subject to the exclusions or limitations contained in Article II of this Security Agreement; provided, however, that Other Collateral shall not include any
Excluded Assets.
“Patents” means, with respect to any Person, all of such Person’s right, title, and interest in
and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (d) all licenses
of the foregoing whether as licensee or licensor; (e) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (f) all rights to sue for past, present, and future infringements thereof; and (g) all rights corresponding to any of the foregoing throughout the world.
“Patent Security Agreement” means each Confirmatory Grant in U.S. Patents executed and delivered
by any Grantor in favor of Agent in substantially the form of Exhibit “J”.
“Permits” means all permits, licences, waivers, exemptions, consents, certificates,
authorizations, approvals, franchises, rights-of-way, easements and entitlements of any Grantor that such Grantor has, requires or is required to have, to own, possess or operate any of its property or to operate and carry on any part of its
business.
“Pledged Collateral” means all Instruments, Securities and other Investment Property of the
Grantors to the extent constituting Collateral hereunder, whether or not physically delivered to the Agent pursuant to this Security Agreement.
“Pledged Deposits” means all time deposits of money (other than Deposit Accounts and Instruments),
whether or not evidenced by certificates, which a Grantor may from time to time designate as pledged to the Agent or to any Secured Party as security for any Secured Obligations, and all rights to receive interest on said deposits.
“PPSA” means the Personal Property Security Act as in effect from time to time in the Province of
Alberta and includes all regulations from time to time made under such legislation; provided that, if perfection or the effect of perfection or non-perfection or the priority of any Lien on any Collateral is governed by the personal property
security legislation or uniform commercial code as in effect in a jurisdiction other than Alberta, “PPSA” means such legislation as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.
“Receivables” means the Accounts, Chattel Paper, Documents of Title, Investment Property,
Instruments or Pledged Deposits, and any other rights or claims to receive money which are Intangibles or which are otherwise included as Collateral; provided, however, that Receivables shall not include any Excluded Assets.
“Receiver” means a receiver, a manager or a receiver and manager.
“Section” means a numbered section of this Security Agreement, unless another document is
specifically referenced.
“Secured Obligations” has the meaning ascribed thereto in the LC Credit Agreement.
“Secured Parties” has the meaning ascribed thereto in the LC Credit Agreement.
“Specified Deposit Account” means any Deposit Account of a Grantor other than the Excluded
Accounts.
“Specified Intellectual Property” means any Intellectual Property of one or more Grantors (a) the
book value of which exceeds $5,000,000 individually or in the aggregate, (b) which generates annual revenue, royalties or license fees of greater than $5,000,000 or (c) which, in the commercially reasonable judgment of the Grantors, is
material to the conduct of all or a material portion of the business of WIL-Ireland and its Restricted Subsidiaries.
“STA” means the Securities Transfer Act of the Province of Alberta, as such legislation may be
amended, renamed or replaced from time to time, and includes all regulations from time to time made under such legislation.
“Stock Rights” means any securities, dividends, instruments or other distributions and any other
right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive Capital
Stock and any right to receive earnings, in which any Grantor now has or hereafter acquires any right, issued by an issuer of such securities.
“Supporting Obligation” means any Letter-of-Credit Right or secondary obligation that supports the
payment or performance of an Account, Chattel Paper, Document of Title, Intangible, Instrument or Investment Property.
“Trademarks” means, with respect to any Person, all of such Person’s right, title, and interest in
and to the following: (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b)
all licenses of the foregoing, whether as licensee or licensor; (c) all renewals of the foregoing; (d) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages,
claims, and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (f)
all rights corresponding to any of the foregoing throughout the world.
“Trademark Security Agreement” means each Confirmatory Grant in U.S. Trademarks executed and
delivered by any Grantor in favor of Agent in substantially the form of Exhibit “K”.
“ULC” means a Person that is an unlimited company, unlimited liability corporation or unlimited
liability company.
“ULC Laws” means the Companies Act (Nova Scotia), the Business Corporations Act (Alberta), the Business Corporations Act (British Columbia) and any other present or future Laws governing ULCs.
“ULC Shares” means shares in the capital stock of, or other equity interests of, a ULC.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the
defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each of the Grantors hereby pledges, mortgages, charges, assigns (except in the case of ULC Shares) and
grants to the Agent, on behalf of and for the benefit of the Secured Parties, a security interest in all of such Grantor’s present and future property and undertaking including, without limitation, its right, title and interest, whether now
owned or hereafter acquired, in and to the Collateral to secure the prompt and complete payment and performance of its Secured Obligations. For the avoidance of doubt, the grant of a security interest herein shall not be deemed to be an
assignment of any ULC Shares or any intellectual property rights owned by the Grantors (other than, in respect of any intellectual property rights owned by the Grantors, the collateral assignment pursuant hereto). If the grant of security
hereunder with respect to any Contract, Intellectual Property right or Permit would result in the termination or breach of such Contract, Intellectual Property right or Permit, or is otherwise prohibited or ineffective (whether by the terms
thereof or under applicable law), then such Contract, Intellectual Property right or Permit shall not be subject to the Liens created hereby, but shall be held in trust by the applicable Grantor for the benefit of the Agent (for its own
benefit and for the benefit of the other Secured Parties) and, subject to Section 4.6.4 hereof in the case of ULC Shares, on the exercise by the Agent of its rights or remedies hereunder following a Default, shall be assigned by such
Grantor as directed by the Agent; provided that (a) the security interest created hereby shall automatically attach to such Contract, Intellectual Property right or Permit, or applicable portion thereof, immediately at such time as the
condition causing such termination or breach is remedied, and (b) if a term of the Contract that prohibits or restricts the grant of the security interests in the whole of an Account or Chattel Paper forming part of the Collateral is
unenforceable against the Agent under applicable law, then the exclusion from the Collateral set out above shall not apply to such Account or Chattel Paper.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Initial Grantors represents and warrants to the Agent and the Secured Parties, and each
Grantor that becomes a party to this Security Agreement pursuant to the execution of a Security Agreement Supplement in substantially the form of Annex I represents and warrants (after giving effect to supplements to each of the
Exhibits hereto, with respect to such subsequent Grantor, as attached to such Security Agreement Supplement), that:
Title, Authorization, Validity and Enforceability. Subject to Section 3.11.10, such
Grantor has good and valid rights in or the power to transfer its respective Collateral, free and clear of all Liens except for Liens permitted under Section 8.04 of the LC Credit Agreement, and has the corporate, unlimited liability company,
limited liability company or partnership, as applicable, power and authority to grant to the Agent the security interest in such Collateral pursuant hereto. The execution and delivery by such Grantor of this Security Agreement have been duly
authorized by corporate, unlimited liability company, limited liability company, limited partnership or partnership, as applicable, proceedings or actions, and this Security Agreement constitutes a legal, valid and binding obligation of such
Grantor and creates a security interest which is enforceable against such Grantor in all Collateral it now owns or hereafter acquires, except (a) as enforceability may be limited by bankruptcy, insolvency, examinership, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether
such enforceability is a proceeding in equity or at law) and (b) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy. When financing statements have been filed in
the appropriate offices against such Grantor in the locations listed in Exhibit “E”, the Agent shall have a perfected security interest (with the priority set forth in the Intercreditor Agreement and subject only to Liens permitted by
Section 8.04 of the LC Credit Agreement) in the Collateral of each Grantor to the extent such security interest can be perfected by the filing of a financing statement under the PPSA. Each Grantor confirms that value has been given by the
Secured Parties to such Grantor, that such Grantor has rights in, or the power to transfer rights in, its Collateral existing as of the date of this Security Agreement or the date of any Security Agreement Supplement, as applicable, and that
such Grantor and the Agent have not agreed to postpone the time for attachment of any security interest created by this Security Agreement to any of the Collateral of such Grantor.
Conflicting Laws and Contracts. Neither the execution and delivery by such Grantor of this
Security Agreement, the creation and perfection of the security interest in the Collateral granted hereunder, nor compliance with the terms and provisions hereof (a) will breach or violate any applicable Requirement of Law binding on such
Grantor, (b) will result in any breach or violation of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien prohibited under the LC Credit Agreement, upon any of its
property or assets pursuant to the terms of (i) the ABL Credit Agreement, the Exit Senior Notes or the Exit Senior Notes Indenture or (ii) any other indenture, agreement or other instrument to which such Grantor is a party or by which any
property or asset of it is bound or to which it is subject, except for breaches, violations and defaults under clauses (a) and (b)(ii) that collectively for the Grantors would not have a Material Adverse Effect, or (c) will violate
any provision of such Grantor’s charter, articles or certificate of incorporation or formation, memorandum of association, partnership agreement, by-laws or operating agreement (or similar constitutive document).
Principal Location. Such Grantor’s mailing address and the location of its place of business (if
it has only one) or its chief executive office (if it has more than one place of business), are disclosed, as of the applicable Determination Date, in Exhibit “A”.
Property Locations. Exhibit “A” lists, as of the applicable Determination Date, all of
such Grantor’s locations where Inventory and Equipment constituting Collateral are located (other than any such location where the book value of all Inventory and Equipment located thereon does not exceed $10,000,000). Such Exhibit “A”
shall indicate whether such locations are locations (i) owned by a Grantor, (ii) leased by such Grantor as lessee or (iii) at which Inventory is held in a public warehouse or is otherwise held by a bailee or on consignment by such Grantor.
No Other Names; Etc. Within the five-year period ending as of the date such Person becomes a
Grantor hereunder, such Grantor has not conducted business under any other name, changed its jurisdiction of organization or incorporation, merged with or into or consolidated or amalgamated with any other Person, except as disclosed in Exhibit
“A”. The name in which such Grantor has executed this Security Agreement (or a Security Agreement Supplement) is, as of the date such agreement is executed and delivered, the exact name as it appears in such Grantor’s charter or
certificate of incorporation or formation (or similar formation document), as amended, as filed with such Grantor’s jurisdiction of organization or incorporation as of the date such Person becomes a Grantor hereunder.
Accounts and Chattel Paper. The names of the obligors, amounts owing, due dates and other
information with respect to the Accounts and Chattel Paper owned by such Grantor and constituting Collateral are and will be correctly stated in all material respects in all records of such Grantor relating thereto and in all invoices and
reports with respect thereto furnished to the Agent by such Grantor from time to time. As of the time when each Account or each item of Chattel Paper constituting Collateral arises, such Grantor shall be deemed to have represented and
warranted that such Account or Chattel Paper, as the case may be, and all records relating thereto, are genuine and in all respects what they purport to be, except, in each case, as could not be reasonably expected to result in a Material
Adverse Effect.
No Financing Statements, Security Agreements. No financing statement or security agreement
describing all or any portion of the Collateral (other than a financing statement or security agreement that has lapsed or been terminated) naming such Grantor as debtor has been filed or is of record in any jurisdiction except financing
statements (i) naming the Agent on behalf of the Secured Parties as the secured party and (ii) in respect of Liens permitted by Section 8.04 of the LC Credit Agreement; provided, that nothing herein shall be deemed to constitute an
agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise permitted under Section 8.04 of the LC Credit Agreement or except as set forth in the Intercreditor Agreement.
3.8. Serial Number Goods. None of the Collateral owned by such Grantor constitutes serial number goods except for those identified in Part A of Exhibit “B”.
Organization Number; Jurisdiction of Organization. Such Grantor’s jurisdiction of organization,
type of organization and organization identification number (if any) are, as of the applicable Determination Date, listed in Exhibit “G”.
Pledged Securities and Other Investment Property. Exhibit “D” sets forth, as of the
applicable Determination Date, a complete and accurate list of the Instruments (other than Intercompany Instruments), Securities and other Investment Property constituting Collateral and delivered to the Agent. Each Grantor is the direct and
beneficial owner of each Instrument, Security and other type of Investment Property listed in Exhibit “D” as being owned by it, free and clear of any Liens, except for the security interest granted to the Agent for the benefit of the
Secured Parties hereunder or as permitted by Section 8.04 of the LC Credit Agreement. Each Grantor further represents and warrants that (i) all Pledged Collateral owned by it constituting Capital Stock has been (to the extent such concepts
are relevant with respect to such Pledged Collateral) duly authorized and validly issued, are fully paid and, except in the case of ULC Shares, non-assessable and constitute, as of the applicable Determination Date, the percentage of the
issued and outstanding shares of stock (or other Capital Stock) of the respective issuers thereof indicated in Exhibit “D” hereto and (ii) all such Pledged Collateral held by a Securities Intermediary (including in a Securities
Account) is covered by a Control Agreement among such Grantor, the securities intermediary and the Agent pursuant to which the Agent has Control to the extent required by Section 4.5. In addition, each Grantor hereby represents and
warrants that (x) no partnership agreement or operating agreement (or similar constitutive document) with respect to Pledged Collateral in respect of a limited liability company or partnership provides that such Pledged Collateral constitute
securities governed by the STA as in effect in any relevant jurisdiction and (y) no Collateral constitutes Certificated Securities, except as otherwise indicated on Exhibit “D”. Each Grantor covenants that for so long as this
Security Agreement is in effect, it shall not permit any of its Subsidiaries whose Capital Stock is Pledged Collateral (the “Acknowledgment Parties”) (I) except as otherwise indicated on Exhibit “D”, to cause such Capital Stock
to become Certificated Securities, or (II) except as otherwise indicated on Exhibit “D”, for any such Subsidiaries that are limited liability companies or partnerships, to elect that its membership interests constitute securities
governed by the STA as in effect in any relevant jurisdiction without the consent of all pledgees of such membership interests or the delivery of any applicable limited liability company certificate or control agreement necessary to perfect
each such pledgee's interests in the applicable membership interests. Each Grantor further agrees to cause each Acknowledgment Party, other than any Acknowledgment Party that is a ULC, to execute and deliver an acknowledgment substantially
in the form of Exhibit “L” hereto promptly upon such party becoming an Acknowledgment Party.
Intellectual Property.
3.11.1 Exhibit “B” contains a complete and accurate listing as of the applicable Determination Date of all of the below-described Specified Intellectual Property of each of the Grantors: (i) state, provincial,
U.S., Canadian and foreign trademark registrations, and applications for trademark registration, (ii) U.S., Canadian and foreign patents and patent applications, together with all reissuances, continuations, continuations in part,
revisions, extensions, and reexaminations thereof, (iii) U.S., Canadian and foreign copyright registrations and applications for registration, (iv) Exclusive Copyright Licenses, (v) foreign industrial design registrations and industrial
design applications, and (vi) domain names. All of the U.S. and Canadian registrations, applications for registration or applications for issuance of such Specified Intellectual Property are valid and subsisting, in good standing and,
subject to Section 3.11.10, are recorded or in the process of being recorded in the name of the applicable Grantor, except as could not be reasonably expected to result in a Material Adverse Effect.
3.11.2 Such Specific Intellectual Property in Exhibit B is valid, subsisting, unexpired (where registered) and enforceable and has not been abandoned or adjudged invalid or unenforceable, in whole or in part,
except as could not be reasonably expected to result in a Material Adverse Effect.
3.11.3 Subject to Section 3.11.10, (i) no Person other than the respective Grantor (or any other Grantor) has any right or interest of any kind or nature in or to the Specified Intellectual Property owned by such
Grantor, including any right to sell, license, lease, transfer, distribute, use or otherwise exploit such Specified Intellectual Property or any portion thereof outside of the ordinary course of the respective Grantor’s business, except as
could not be reasonably expected to result in a Material Adverse Effect and (ii) each Grantor has good, marketable and exclusive title to, and the valid and enforceable power and right to sell, license, transfer, distribute, use and
otherwise exploit, its Specified Intellectual Property, except as could not be reasonably expected to result in a Material Adverse Effect.
3.11.4 Each Grantor has taken or caused to be taken steps so that none of its material Specified Intellectual Property, the value of which to the Grantors are contingent upon maintenance of the confidentiality thereof,
have been disclosed by such Grantor to any Person other than any Affiliate owners thereof and employees, contractors, customers, representatives and agents of the Grantors or such Affiliate owners who are parties to customary
confidentiality and nondisclosure agreements with the Grantors or such Affiliate owners, as applicable.
3.11.5 To each Grantor’s knowledge, no Person has violated, infringed upon or breached, or is currently violating, infringing upon or breaching, any of the rights of the Grantors to the Specified Intellectual Property or
has breached or is breaching any duty or obligation owed to the Grantors in respect of the Specified Intellectual Property except where those breaches, individually or in the aggregate, could not be reasonably expected to result in a
Material Adverse Effect.
3.11.6 No settlement or consents, covenants not to sue, nonassertion assurances, or releases have been entered into by any Grantor or to which any Grantor is bound that adversely affects its rights to own or use any
Specified Intellectual Property except as could not be reasonably expected to result in a Material Adverse Effect, in each case individually or in the aggregate.
3.11.7 No Grantor has received any written notice that remains outstanding challenging the validity, enforceability, or ownership of any Specified Intellectual Property except where those challenges could not reasonably
be expected to result in a Material Adverse Effect, and to such Grantor’s knowledge at the date hereof there are no facts upon which such a challenge could be made.
3.11.8 Each Grantor owns directly or is entitled to use, by license or otherwise, all Specified Intellectual Property necessary for the conduct of such Grantor’s business, and the conduct of each Grantor’s business does
not infringe upon the Intellectual Property of any other Person, except as could not reasonably be expected to result in a Material Adverse Effect.
3.11.9 The consummation of the transactions contemplated by the Loan Documents will not result in the termination or material impairment of any material Intellectual Property owned by such Grantor.
3.11.10 Each party hereto acknowledges that certain Specified Intellectual Property is owned in part by the Grantors and in part by Affiliates of the Grantors, in each case as scheduled on Exhibit “B”.
Specified Deposit Accounts and Securities Accounts. All of such Grantor’s Specified Deposit
Accounts and Securities Accounts as of the applicable Determination Date are listed on Exhibit “H”.
3.13. Consents and Transfer Restrictions.
3.13.1 Except for any consent that has been obtained and is in full force and effect, no consent of any Person (including any counterparty with respect to any Contract, any account debtor with respect to any Account, or
any Governmental Authority with respect to any Permit) is required, or is purported to be required, for the execution, delivery, performance and enforcement of this Security Agreement (this representation being given without reference to
the Excluded Assets) provided that the enforcement of any security interest in ULC Shares may be subject to restrictions on transfer in the constitutive documents governing the issuer ULC. For the purposes of complying with any transfer
restrictions contained in the organizational documents of any Subsidiary, such Grantor hereby irrevocably consents to the transfer of such Grantor's Pledged Collateral of such Subsidiary, provided that this consent shall not constitute
approval of transfer for the purposes of the constitutive documents governing the issuer ULC.
3.13.2 No order ceasing or suspending trading in, or prohibiting the transfer of the Pledged Collateral has been issued and no proceedings for this purpose have been instituted, nor does such Grantor have any reason to
believe that any such proceedings are pending, contemplated or threatened, and the Pledged Collateral is not subject to any escrow or other agreement, arrangement, commitment or understanding, prohibiting the transfer of the Pledged
Collateral, including pursuant to applicable securities laws or the rules, regulations or policies of any marketplace on which the Pledged Collateral is listed, posted or traded.
3.14. No Consumer Goods. Such Grantor does not own any Consumer Goods which are material in value or which are material to the business, operations, property, condition or prospects (financial or otherwise) of such Grantor.
ARTICLE IV
COVENANTS
From the date of this Security Agreement and thereafter until this Security Agreement is terminated, each
of the Initial Grantors agrees, and from and after the effective date of any Security Agreement Supplement applicable to any Grantor (and after giving effect to supplements to each of the Exhibits hereto with respect to such subsequent
Grantor as attached to such Security Agreement Supplement) and thereafter until this Security Agreement is terminated each such subsequent Grantor agrees:
General.
4.1.1 Records. Each Grantor shall keep and maintain, in a manner consistent with prudent business practices, reasonably complete, accurate and proper books and records with respect to the Collateral owned by such
Grantor.
4.1.2 Financing Statements and Other Actions; Defense of Title. Each Grantor hereby authorizes the Agent to file, and if requested will execute and deliver to the Agent, all financing statements describing the
Collateral owned by such Grantor and other documents and take such other actions as may from time to time reasonably be requested by the Agent in order to maintain a perfected security interest with the priority set forth in the
Intercreditor Agreement in and Lien on, and, if applicable, Control of, the Collateral owned by such Grantor, subject to Liens permitted under Section 8.04 of the LC Credit Agreement, provided that nothing herein shall be deemed to
constitute an agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise permitted under Section 8.04 of the LC Credit Agreement. Such financing statements may describe the Collateral in the same
manner as described herein or may contain an indication or description of Collateral that describes such Collateral in any other manner as the Agent may reasonably determine is necessary, advisable or prudent to ensure the perfection of the
security interest in the Collateral granted to the Agent herein, including, without limitation, describing such property as “all assets of the debtor whether now owned or hereafter acquired and wheresoever located, including all accessions
thereto and proceeds thereof” or an equivalent formulation. Each Grantor will take any and all actions reasonably necessary to defend title to the Collateral owned by such Grantor against all persons and to defend the security interest of
the Agent in such Collateral and the priority thereof against any Lien, in each case, not expressly permitted hereunder or under the LC Credit Agreement.
4.1.3 Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name. Each Grantor will, except as otherwise permitted by the LC Credit Agreement:
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(i)
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preserve its existence and corporate structure as in effect on the Effective Date;
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(ii)
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not change its name or jurisdiction of organization or incorporation;
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(iii)
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not maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location specified
in Exhibit “A”; and
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(iv)
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not change its taxpayer identification number (if any) or its mailing address,
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unless, in each such case, such Grantor shall have given the Agent not less than 10 days’ (or such shorter period as the
Agent may agree) prior written notice of such event or occurrence.
4.1.4 Other Financing Statements. No Grantor will suffer to exist or authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral owned by such Grantor, except
any financing statement authorized under Section 4.1.2 hereof or in respect of a Lien permitted under Section 8.04 of the LC Credit Agreement. Each Grantor acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement filed in connection herewith prior to termination of this Security Agreement in accordance with the first sentence of Section 8.13 hereof. without the prior
written consent of the Agent.
Receivables.
4.2.1 Certain Agreements on Receivables. After the occurrence and during the continuation of an Event of Default, no Grantor will make or agree to make any discount, credit, rebate or other reduction in the
original amount owing on a Receivable or accept in satisfaction of a Receivable less than the original amount thereof, except as permitted by the LC Credit Agreement. Prior to the occurrence and continuation of an Event of Default, such
Grantor may, in its sole discretion, adjust the amount of Accounts arising from the sale of Inventory or the rendering of services in substantially accordance with its present policies and in the ordinary course of business and as otherwise
permitted under the LC Credit Agreement.
4.2.2 Collection of Receivables. Except as otherwise provided in this Security Agreement or as otherwise permitted under the LC Credit Agreement, each Grantor will use commercially reasonable efforts to collect
and enforce, at such Grantor’s sole expense, all amounts due or hereafter due to such Grantor under the Receivables owned by such Grantor.
4.2.3 Delivery of Invoices. Each Grantor will deliver to the Agent promptly upon its request after the occurrence and during the continuance of an Event of Default duplicate invoices with respect to each Account
owned by such Grantor and, if requested by the Agent, bearing such language of assignment as the Agent shall reasonably specify.
4.2.4 Disclosure of Counterclaim on Receivables. After the occurrence and during the continuation of an Event of Default, if (i) any discount, credit or agreement to make a rebate or to otherwise reduce the
amount owing on a Receivable owned by such Grantor exists or (ii) to the knowledge of such Grantor, any dispute, setoff, claim, counterclaim or defense exists or has been asserted or threatened with respect to a Receivable, such Grantor
will disclose such fact to the Agent in writing in connection with the inspection by the Agent of any record of such Grantor relating to such Receivable and in connection with any invoice or report furnished by such Grantor to the Agent
relating to such Receivable.
4.2.5 Account Verification. Each Grantor will, and will cause each of its Subsidiaries to, permit Agent, in Agent's name or in the name or a nominee of Agent, after the occurrence and during the continuation of
an Event of Default, to verify the validity, amount or any other matter relating to any Account, by mail, telephone, facsimile transmission or other electronic means of transmission or otherwise. Further, at the reasonable request of
Agent, each Grantor will, and will cause each of its Subsidiaries to, send requests for verification of Accounts or, after the occurrence and during the continuance of an Event of Default, send notices of assignment of Accounts to Account
Debtors and other obligors.
Maintenance of Goods. Each Grantor will do all things reasonably necessary to maintain, preserve,
protect and keep the Inventory and the Equipment owned by such Grantor and constituting Collateral in good repair, working order and saleable condition (ordinary wear and tear excepted) and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be conducted in the ordinary course, consistent with past practices, except in each case where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Instruments, Securities, Chattel Paper, Documents of Title and Pledged Deposits. Each Grantor will
(i) deliver to the Agent immediately upon execution of this Security Agreement the originals of all Chattel Paper and Instruments (other than Intercompany Instruments; provided that such Intercompany Instruments shall not be delivered
to any Person which is not a Grantor, the ABL Collateral Agent or the Agent), in each case, to the extent evidencing amounts in excess of $5,000,000 individually, or $10,000,000 in the aggregate, and constituting Collateral (if any then
exist) and Securities constituting Collateral (to the extent certificated), provided further that, each Grantor shall be deemed to have complied with this requirement to the extent that the ABL Collateral Agent has received
such Chattel Paper, Instruments or Securities as bailee of the Agent in a manner consistent with the Intercreditor Agreement, (ii) hold in trust for the Agent upon receipt and promptly thereafter deliver to the Agent any Chattel Paper and
Instruments (other than Intercompany Instruments; provided that such Intercompany Instruments shall not be delivered to any Person who is not a Grantor, the ABL Collateral Agent or the Agent), in each case, to the extent evidencing
amounts in excess of $5,000,000 individually or $10,000,000 in the aggregate, and constituting Collateral (if any then exist) and Securities (to the extent certificated), provided further that, each Grantor shall be deemed to
have complied with this requirement to the extent that the ABL Collateral Agent has received such Chattel Paper, Instruments or Securities as bailee of the Agent in a manner consistent with the Intercreditor Agreement, (iii) upon the
designation by a Grantor of any Pledged Deposits (as set forth in the definition thereof) as Collateral, deliver to the Agent such Pledged Deposits which are evidenced by certificates included in the Collateral endorsed in blank, marked with
such legends and assigned as the Agent shall reasonably specify, provided that, each Grantor shall be deemed to have complied with this requirement to the extent that the ABL Collateral Agent has received such certificates as a bailee
of the Agent in a manner consistent with the Intercreditor Agreement, (iv) upon the Agent’s request, after the occurrence and during the continuation of an Event of Default (subject to the terms of the Intercreditor Agreement), deliver to the
Agent (and thereafter hold in trust for the Agent upon receipt and promptly deliver to the Agent) any Document of Title evidencing or constituting Collateral, and (v) upon the Agent’s request, deliver to the Agent, promptly after the delivery
of a Compliance Certificate, a duly executed amendment to this Security Agreement, in the form of Exhibit “I” hereto (the “Amendment”), pursuant to which such Grantor will specify such additional Collateral pledged hereunder.
Such Grantor hereby authorizes the Agent to attach each Amendment to this Security Agreement and agrees that all additional Collateral owned by it set forth in such Amendments shall be considered to be part of the Collateral.
Uncertificated Securities and Certain Other Investment Property. Each Grantor will, following the
reasonable request of the Agent (and after the occurrence and during the continuation of an Event of Default, will permit the Agent to) from time to time to cause the appropriate issuers (and, if held with a Securities Intermediary, such
Securities Intermediary) of Uncertificated Securities or other types of Investment Property owned by such Grantor and constituting Collateral that are not represented by certificates which are Collateral to mark their books and records with
the numbers and face amounts of all such Uncertificated Securities or other types of Investment Property not represented by certificates and all rollovers and replacements therefor to reflect the Lien of the Agent granted pursuant to this
Security Agreement. With respect to Investment Property having a value in excess of $5,000,000 individually or $10,000,000 in the aggregate and constituting Collateral owned by such Grantor held with a Futures Intermediary or Securities
Intermediary (including in a Securities Account), such Grantor shall, within 30 days following the Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be agreed to by the Agent in
its sole discretion), cause such Futures Intermediary or Securities Intermediary to enter into a Control Agreement with the Agent in form and substance reasonably satisfactory to the Agent, in order to give the Agent Control (subject to the
terms of the Intercreditor Agreement) of such Investment Property.
Stock and Other Ownership Interests.
4.6.1 Registration of Pledged Securities and other Investment Property. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit any registrable Collateral owned by such Grantor
to be registered in the name of the Agent or its nominee at any time at the option of the Required Lenders following the occurrence and during the continuance of an Event of Default and without any further consent of such Grantor.
4.6.2 Exercise of Rights in Pledged Securities. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit the Agent or its nominee at any time after the occurrence and during the
continuance of an Event of Default, without notice, to exercise or refrain from exercising any and all voting and other consensual rights pertaining to Pledged Collateral owned by such Grantor or any part thereof, and to receive all
dividends and interest in respect of such Pledged Collateral.
4.6.3 Transfer Restrictions. If the organizational documents of any Subsidiary (other than a ULC) restrict the transfer of the Securities of such Subsidiary, then such Grantor shall deliver to the Agent a
certified copy of a resolution of the directors, shareholders, unitholders or partners of such Subsidiary, as applicable, consenting to the transfer(s) contemplated by this Security Agreement, including any prospective transfer of the
Pledged Collateral of such Grantor by the Agent upon a realization on the Liens hereunder. For greater certainty, the Agent shall have no right under any circumstance to vote ULC Shares or receive dividends from any ULC until such time as
notice is given to the applicable Grantor and further steps are taken so as to register the Agent as the holder of the applicable ULC Shares.
4.6.4 ULC Shares. Each Grantor acknowledges that certain of the Collateral of such Grantor may now or in the future consist of ULC Shares, and that it is the intention of the Agent and each Grantor that neither
the Agent nor any other Secured Party should under any circumstances prior to realization thereon be held to be a “member” or a “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any
provision to the contrary contained in this Security Agreement, the LC Credit Agreement or any other Loan Document, where a Grantor is the registered owner of ULC Shares which are Collateral of such Grantor, such Grantor shall remain the
sole registered owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly,
each Grantor shall be entitled to receive and retain for its own account any dividend on or other distribution, if any, with respect to such ULC Shares (except for any dividend or distribution comprised of Security Certificates pledged of
such Grantor, which shall be delivered to the Agent to hold hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Grantor would if
such ULC Shares were not pledged to the Agent pursuant hereto. Nothing in this Security Agreement, the LC Credit Agreement or any other Loan Document is intended to, and nothing in this Security Agreement, the LC Credit Agreement or any
other Loan Document shall, constitute the Agent, any other Secured Party, or any other Person other than the applicable Grantor, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or
beneficial), until such time as notice is given to such Grantor and further steps are taken pursuant hereto or thereto so as to register the Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of
the ULC Shares. To the extent any provision hereof would have the effect of constituting the Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed
herefrom and shall be ineffective with respect to ULC Shares which are Collateral of any Grantor without otherwise invalidating or rendering unenforceable this Security Agreement or invalidating or rendering unenforceable such provision
insofar as it relates to Collateral of any Grantor which is not ULC Shares. Except upon the exercise of rights of the Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Security Agreement, each Grantor shall
not cause or permit, or enable a Subsidiary that is a ULC to cause or permit, the Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Subsidiary; (b) have any notation entered in their favour in the
share register of such Subsidiary; (c) be held out as shareholders or members of such Subsidiary; (d) receive, directly or indirectly, any dividends, property or other distributions from such Subsidiary by reason of the Agent holding a Lien
over the ULC Shares; or (e) act as a shareholder of such Subsidiary, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Subsidiary or to vote its ULC Shares.
Specified Deposit Accounts. Each Grantor will cause each bank or other financial institution in
which it maintains a Specified Deposit Account to enter into a Control Agreement with the Agent and the ABL Collateral Agent, in form and substance reasonably satisfactory to the Agent in order to give the Agent Control (subject to the terms
of the Intercreditor Agreement) of the Specified Deposit Account within 60 days following the Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be agreed to by the Agent in its
sole discretion). In the case of deposits maintained with Lenders, the terms of such Control Agreement shall be subject to the provisions of the LC Credit Agreement regarding setoffs.
Letter of Credit Rights. Each Grantor will, upon the Agent’s request, cause each issuer of a
letter of credit in excess of $5,000,000 individually or in the aggregate to consent to the assignment of proceeds of such letter of credit in order to give the Agent Control (subject to the terms of the Intercreditor Agreement) of the Letter
of Credit Rights to such letter of credit, to the extent possible under applicable law.
Intellectual Property.
4.9.1 If, after the date hereof, any Grantor obtains rights to, including, but not limited to filing and acceptance of a statement of use or an amendment to allege use with the United States Patent and Trademark Office
or the Canadian Intellectual Property Office, or applies for or seeks registration of, any new Patent, Trademark, Copyright or Industrial Design in addition to the Patents, Trademarks, Copyrights and Industrial Designs described in Exhibit
"B", then to the extent the foregoing constitutes Specified Intellectual Property, such Grantor agrees promptly and within 60 days following the date on which financial statements are required to be delivered pursuant to Section
7.01(a) and/or Section 7.01(b) of the LC Credit Agreement, to execute and deliver to the Agent any supplement to this Security Agreement or any other document reasonably requested by the Agent to evidence such security interest in a form
appropriate for recording in the applicable federal office. In the event the applicable Grantor does not comply with the above deadline, each Grantor also hereby authorizes the Agent to (i) modify this Security Agreement unilaterally by
amending Exhibit "B" to include any future Patents, Trademarks, Copyrights and/or Industrial Designs constituting Specified Intellectual Property of which such Grantor is required to notify the Agent pursuant hereto and (ii) record,
in addition to and not in substitution for this Security Agreement, a duplicate original of this Security Agreement (or other registrable notice) containing in Exhibit "B" a description of such future registrations and applications
for Patents, Trademarks, Copyrights and/or Industrial Designs constituting Specified Intellectual Property.
4.9.2 As of the applicable Determination Date, no Grantor has any interest in, or title to, any Intellectual Property registration or applications, except as set forth in Exhibit “B”. As of the applicable
Determination Date, this Security Agreement is effective to create a valid and continuing Lien on each Grantor’s interest in its Intellectual Property and, upon timely filing of the IP Short Form with respect to Copyrights with the United
States Copyright Office and filing of the IP Short Form with respect to Patents and the IP Short Form with respect to Trademarks with the United States Patent and Trademark Office, or a Notice of Security Interest with the Canadian
Intellectual Property Office, and the filing of appropriate financing statements in the jurisdictions listed in Exhibit “E” hereto, all action necessary or desirable to protect and perfect the security interest in, to and on each
Grantor’s interest in Patents, Trademarks, Copyrights or Industrial Designs that are set forth in Exhibit “B” as of the applicable Determination Date shall have been taken and such perfected security interest shall be enforceable as
such as against any and all creditors of and purchasers from any Grantor.
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Updating of Exhibits to Security Agreement. The Borrowers will provide to the Agent, concurrently
with the delivery of each Compliance Certificate required by Section 7.01(e) of the LC Credit Agreement, updated versions of the Exhibits to this Security Agreement (provided that if there have been no changes to any such Exhibits
since the previous updating thereof required hereby, the Borrowers shall indicate that there has been “no change” to the applicable Exhibit(s)). Any reference to any Exhibit herein shall mean such Exhibit after giving effect to any updates
thereof by the Borrowers or such Grantor pursuant to this Section 4.11 or otherwise.
ARTICLE V
DEFAULT
Remedies.
5.1.1 Upon the occurrence and during the continuation of an Event of Default, the Agent may, and at the direction of the Required Lenders shall, subject to the Intercreditor Agreement, exercise any or all of the
following rights and remedies:
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(i)
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Subject to Section 4.6.4 hereof in the case of ULC Shares, those rights and remedies provided in this Security Agreement, the LC Credit Agreement or any other Loan
Document, provided that this clause (i) shall not be understood to limit any rights or remedies available to the Agent and the Secured Parties prior to an Event of Default.
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(ii)
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Subject to Section 4.6.4 hereof in the case of ULC Shares, those rights and remedies available to a secured party under the PPSA (whether or not the PPSA applies to the
affected Collateral) or under any other applicable law when a debtor is in default under a security agreement.
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(iii)
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Give notice of sole control or any other instruction under any Control Agreement or other control agreement with any Securities Intermediary and take any action therein with
respect to such Collateral.
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(iv)
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Without notice (except as specifically provided in Section 8.1 hereof or elsewhere herein), demand or advertisement of any kind to any Grantor or any other Person enter
the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise
dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place
at any Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Agent may deem commercially reasonable.
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(v)
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Subject to Section 4.6.4 hereof in the case of ULC Shares, concurrently with written notice to the applicable Grantor, transfer and register in its name or in the name
of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, to exercise the
voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Pledged Collateral as though
the Agent was the outright owner thereof.
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(vi)
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Appoint by instrument in writing one or more Receivers of any or all Grantors or any or all of the Collateral of any or all Grantors with such rights, powers and authority
(including any or all of the rights, powers and authority of the Administrative Agent under this Security Agreement, subject to Section 4.6.4 hereof in the case of ULC Shares) as may be provided for in the instrument of
appointment or any supplemental instrument, and remove and replace any such Receiver from time to time. To the extent permitted by applicable law, any Receiver appointed by the Agent will (for purposes relating to the responsibility
for the Receiver's acts or omissions) be considered to be the agent of any such Grantor and not of the Agent or any of the other Secured Parties.
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(vii)
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Obtain from any court of competent jurisdiction an order for the appointment of a Receiver of any or all Grantors or of any or all of the Collateral of any or all Grantors.
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5.1.2 The Agent, on behalf of the Secured Parties, shall comply with any applicable provincial, territorial or federal law requirements in connection with a disposition of the Collateral, and such compliance will not be
considered to adversely affect the commercial reasonableness of any sale of the Collateral.
5.1.3 The Agent shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other Secured Parties,
the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption the Grantor hereby expressly releases.
5.1.4 Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the
purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the
Agent’s remedies (for the benefit of the Agent and other Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.
5.1.5 Notwithstanding the foregoing, neither the Agent nor any other Secured Party shall be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other
obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee
thereof, (ii) marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any Collateral. To the extent that it lawfully
may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Agent's rights and remedies under this Security Agreement or under any other
instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent
that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.
5.1.6 Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with Section
5.1.1 above. Each Grantor also acknowledges that any private sale may result in prices and other terms less favourable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such
private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Agent shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under applicable securities laws, even if the applicable Grantor and the issuer would agree to do so.
Grantors’ Obligations Upon Default. Upon the written request of the Agent after the occurrence and
during the continuation of an Event of Default, subject to the Intercreditor Agreement, each Grantor will:
5.2.1 Assembly of Collateral. Assemble and make available to the Agent the Collateral and all books and records relating thereto at any place or places specified in writing by the Agent.
5.2.2 Secured Party Access. Permit the Agent, by the Agent’s representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto,
or both, are located, to take possession of all or any part of the Collateral, or the books and records relating thereto, or both, to remove all or any part of the Collateral, or the books and records relating thereto, or both, and to
conduct sales of the Collateral, without any obligation to pay the Grantor for such use and occupancy.
5.2.3 Prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with any applicable securities regulatory authority or other government agency, registration statements, a prospectus and such other
documentation in connection with the Pledged Collateral as the Agent may request, all in form and substance reasonably satisfactory to the Agent, and furnish to the Agent, or cause an issuer of Pledged Collateral to furnish to the Agent,
any information regarding the Pledged Collateral in such detail as the Agent may specify.
5.2.4 Subject to Section 4.6.4 hereof in the case of ULC Shares, take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral to enable the
Agent to consummate a public sale or other disposition of the Pledged Collateral.
License. The Agent is hereby granted a sublicenseable license or other right to use, following the
occurrence and during the continuance of an Event of Default and, subject to the Intercreditor Agreement, without charge, each Grantor’s Intellectual Property and to access all media and materials containing same. In addition, each Grantor
hereby irrevocably agrees that the Agent may, following the occurrence and during the continuance of an Event of Default, subject to the Intercreditor Agreement, sell any of such Grantor’s Inventory constituting Collateral directly to any
person, including without limitation persons who have previously purchased such Grantor’s Inventory from such Grantor and in connection with any such sale or other enforcement of the Agent’s rights under this Security Agreement, may sell such
Inventory which bears any trademark owned by or licensed to such Grantor and any such Inventory that is covered by any copyright owned by or licensed to such Grantor and the Agent may (but shall have no obligation to) finish any work in
process and affix any Trademark owned by or licensed to such Grantor and sell such Inventory as provided herein.
5.4. Remedies Cumulative. Each right, power, and remedy of Agent or any other Secured Party as provided for in this Security Agreement, the other Loan Documents, any Swap Agreements or any Banking Services Agreements now or
hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Security Agreement, the other Loan Documents, any Swap
Agreements or any Banking Services Agreements now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Agent or any other Secured Party of any one or more of such rights,
powers, or remedies shall not preclude the simultaneous or later exercise by Agent or such other Secured Parties of any or all such other rights, powers, or remedies.
ARTICLE VI
WAIVERS, AMENDMENTS AND REMEDIES
No delay or omission of the Agent or any Secured Party to exercise any right or remedy granted under this
Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or
further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Agent
and each Grantor, and then only to the extent in such writing specifically set forth, provided that the addition of any Subsidiary as a Grantor hereunder by execution of a Security Agreement Supplement in the form of Annex I
(with such modifications as shall be acceptable to the Agent) shall not require receipt of any consent from or execution of any documentation by any other Grantor party hereto. All rights and remedies contained in this Security Agreement or
by law afforded shall be cumulative and all shall be available to the Agent and the Secured Parties until the Secured Obligations have been paid in full.
ARTICLE VII
PROCEEDS; COLLECTION OF RECEIVABLES
Lockboxes. Upon request of the Agent after the occurrence and during the continuation of an Event
of Default and subject to the Intercreditor Agreement, each Grantor shall execute and deliver to the Agent irrevocable lockbox agreements in the form provided by or otherwise reasonably acceptable to the Agent, which agreements, if so
required by the Agent, shall be accompanied by an acknowledgment by the bank where the lockbox is located of the Lien of the Agent granted hereunder and of irrevocable instructions to wire all amounts collected therein to a special collateral
account at the Agent.
Collection of Receivables. The Agent may at any time after the occurrence and during the
continuation of an Event of Default and subject to the Intercreditor Agreement, by giving each Grantor written notice, elect to require that the Receivables be paid directly to the Agent for the benefit of the Secured Parties. In such event,
subject to the Intercreditor Agreement, each Grantor shall, and shall permit the Agent to, promptly notify the account debtors or obligors under the Receivables owned by such Grantor of the Agent’s interest therein and direct such account
debtors or obligors to make payment of all amounts then or thereafter due under such Receivables directly to the Agent. Upon receipt of any such notice from the Agent, each Grantor shall thereafter during the continuation of any Event of
Default and subject to the Intercreditor Agreement hold in trust for the Agent, on behalf of the Secured Parties, all amounts and proceeds received by it with respect to the Receivables and Other Collateral and immediately and at all times
thereafter deliver to the Agent all such amounts and proceeds in the same form as so received, whether by cash, check, draft or otherwise, with any necessary endorsements. The Agent shall hold and apply funds so received as provided by the
terms of Sections 7.3 and 7.4 hereof.
Special Collateral Account. Upon the occurrence and during the continuation of an Event of Default
and subject to the Intercreditor Agreement, the Agent may require, by giving the Grantors written notice, that all cash proceeds of the Collateral to be deposited in a special non-interest bearing cash collateral account with the Agent and
held there as security for the Secured Obligations. No Grantor shall have any control whatsoever over such cash collateral account. The Agent shall from time to time deposit the collected balances in such cash collateral account into the
applicable Grantor’s general operating account with the Agent. Subject to the Intercreditor Agreement, if any Event of Default has occurred and is continuing, the Agent may (and shall, at the direction of the Required Lenders), from time to
time, apply the collected balances in such cash collateral account to the payment of the Secured Obligations.
Application of Proceeds. Subject to the Intercreditor Agreement, the proceeds of the Collateral
shall be applied by the Agent to payment of the Secured Obligations of the Grantors, as provided under Sections 4.01 and 9.04 of the LC Credit Agreement.
ARTICLE VIII
GENERAL PROVISIONS
Notice of Disposition of Collateral; Condition of Collateral. Each Grantor hereby waives notice of
the time and place of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be
deemed reasonable if sent to the Grantors, addressed as set forth in Article IX, at least 10 days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. To
the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and demands against the Agent or any other Secured Party arising out of the repossession, retention or sale of the Collateral, except such as arise
solely out of the gross negligence or willful misconduct of the Agent or such other Secured Party, or its or their agents, employees, officers, nominees or other representatives, as finally determined by a court of competent jurisdiction. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Agent or any other Secured Party, any valuation, stay, appraisal,
extension, moratorium, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment,
order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to
the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
Limitation on Agent’s and other Secured Parties’ Duty with Respect to the Collateral. The Agent
shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent and each other Secured Party shall use reasonable care with respect to the Collateral in its possession or under its control (or in the possession or
under the care of any agent, employee, officer, nominee or other representative of the Agent or such other Secured Party). Neither the Agent nor any other Secured Party shall have any other duty as to any Collateral in its possession or
control or in the possession or control of any agent or nominee of the Agent or such other Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent
that applicable law imposes duties on the Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (i) to fail to incur expenses deemed significant
by the Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral
to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection
remedies against account debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against account debtors and other Persons obligated on Collateral
directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature,
(vi) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the
disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to
purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the
extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges
that the purpose of this Section 8.2 is to provide non-exhaustive indications of what actions or omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies against the Collateral and that other actions
or omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8.2. Without limitation upon the foregoing, nothing contained in this Section 8.2 shall be
construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8.2.
Compromises and Collection of Collateral. Each Grantor and the Agent recognize that setoffs,
counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of
success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered with respect to a Receivable. In view of the foregoing, each Grantor agrees, subject to applicable bankruptcy laws, that the
Agent may at any time and from time to time, if an Event of Default has occurred and is continuing, and subject to the Intercreditor Agreement, compromise with the obligor on any Receivable, accept in full payment of any Receivable such
amount as the Agent in its sole discretion shall determine or abandon any Receivable, and any such action by the Agent shall be commercially reasonable so long as the Agent acts in good faith based on information known to it at the time it
takes any such action.
Secured Party Performance of Grantor’s Obligations. Without having any obligation to do so, the
Agent may perform or pay any obligation which any Grantor has agreed to perform or pay in this Security Agreement and fails to so perform or pay and such Grantor shall reimburse the Agent for any reasonable and documented amounts paid by the
Agent pursuant to this Section 8.4. Each Grantor’s obligation to reimburse the Agent pursuant to the preceding sentence shall be a Secured Obligation payable on demand.
Authorization for Secured Party to Take Certain Action. Each Grantor irrevocably authorizes the
Agent at any time and from time to time in the sole discretion of the Agent and appoints the Agent as its attorney in fact (i) to execute on behalf of such Grantor as debtor and to file financing statements necessary or desirable in the
Agent’s sole discretion to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (ii) to indorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other
reproduction of this Security Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or
add a debtor) in such offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (iv) to contact and enter into one or
more agreements with the issuers of Uncertificated Securities which are Collateral owned by such Grantor and which are Securities or with financial intermediaries holding other Investment Property which is Collateral as may be necessary or
advisable to give the Agent Control (subject to the Intercreditor Agreement) over such Securities or other Investment Property, (v) solely to the extent an Event of Default has occurred and is continuing, to enforce payment of the
Instruments, Accounts and Receivables constituting Collateral in the name of the Agent or such Grantor, (vi) solely to the extent an Event of Default has occurred and is continuing, to apply the proceeds of any Collateral received by the
Agent to the Secured Obligations as provided in Article VII and (vii) to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder or under any other Loan
Document), and each Grantor agrees to reimburse the Agent on demand for any reasonable and documented payment made or any reasonable and documented expense incurred by the Agent in connection therewith, provided that this
authorization shall not relieve any Grantor of any of its obligations under this Security Agreement or under the LC Credit Agreement.
Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of
any of the covenants contained in Section 5.2, or in Article VII hereof will cause irreparable injury to the Agent and the other Secured Parties, that the Agent and the other Secured Parties have no adequate remedy at law in
respect of such breaches and therefore agrees, without limiting the right of the Agent or the other Secured Parties to seek and obtain specific performance of other obligations of the Grantors contained in this Security Agreement, that the
covenants of the Grantors contained in the Sections referred to in this Section 8.6 shall be specifically enforceable against the Grantors.
Use and Possession of Certain Premises. Upon the occurrence and during the continuation of an
Event of Default, subject to the Intercreditor Agreement, the Agent shall be entitled to occupy and use any premises owned or leased by the Grantors where any of the Collateral or any records relating to the Collateral are located until the
Secured Obligations are paid or the Collateral is removed therefrom, whichever first occurs, without any obligation to pay any Grantor for such use and occupancy, subject to Section 8.2 hereof in all respects.
Reinstatement. This Security Agreement shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of any Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant
to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “unjust preference,” “fraudulent conveyance,” or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
Benefit of Agreement. The terms and provisions of this Security Agreement shall be binding upon
and inure to the benefit of the Grantors, the Agent and the Secured Parties and their respective successors and assigns (including all persons who become bound as a debtor to this Security Agreement); provided that the Grantors shall
not have the right to assign their rights or delegate their obligations under this Security Agreement or any interest herein, except as permitted under the LC Credit Agreement. No sales of participations, assignments, transfers, or other
dispositions of any agreement governing the Secured Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Agent, for the benefit of the Agent and the other Secured Parties, hereunder.
Survival of Representations. All representations and warranties of the Grantors contained in this
Security Agreement shall survive the execution and delivery of this Security Agreement.
Taxes and Expenses. To the extent required by Section 4.02 of the LC Credit Agreement, any Other
Taxes payable or ruled payable by a Governmental Authority in respect of this Security Agreement shall be paid by the applicable Grantor. The Grantors shall reimburse the Agent for any and all of its reasonable out-of-pocket expenses
(including reasonable external legal, auditors’ and accountants’ fees) if and to the extent the Borrowers are required to reimburse such amounts under Section 11.03 of the LC Credit Agreement. Any and all costs and expenses incurred by the
Grantors in the performance of actions required pursuant to the terms hereof shall be borne solely by the Grantors.
Headings. The title of and section headings in this Security Agreement are for convenience of
reference only, and shall not govern the interpretation of any of the terms and provisions of this Security Agreement.
Termination. This Security Agreement shall continue in effect (notwithstanding the fact that from
time to time there may be no Secured Obligations outstanding) until Payment in Full. Notwithstanding the foregoing, the obligations of any individual Grantor under this Security Agreement shall automatically terminate to the extent provided
in and in accordance with Section 11.23 of the LC Credit Agreement.
Entire Agreement. This Security Agreement and the other Loan Documents constitute the entire
contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
Governing Law; Jurisdiction; Waiver of Jury Trial.
8.15.1 THIS SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE PROVINCE OF ALBERTA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
8.15.2 Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the courts of the Province of Alberta in any suit, action or proceeding arising out of
or relating to this Security Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each Grantor hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such court. Each party hereto agrees that a final, non-appealable 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. Nothing in this Security Agreement or any other Loan Document shall (including this Section 8.15) affect any right that any Secured Party may otherwise have to bring any suit, action or proceeding
relating to this Security Agreement or any other Loan Document against any Grantor or its properties in the courts of any jurisdiction.
8.15.3 Each Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. Each Grantor hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
8.15.4 Each party to this Security Agreement irrevocably consents to service of process in the manner provided for notices in Article IX of this Security Agreement other than by facsimile. Nothing in this
Security Agreement or any other Loan Document will affect the right of any party to this Security Agreement to serve process in any other manner permitted by law. Notwithstanding any other provision of this Security Agreement, each Grantor
hereby irrevocably designates CT Corporation System, 28 Liberty Street, New York, New York 10005, as the designee, appointee and agent of such Grantor to receive, for and on behalf of such Grantor, service of process in the State of New
York in any suit, action or proceeding arising out of or relating to this Security Agreement or any other Loan Document.
8.15.5 Each Grantor agrees that any suit, action or proceeding brought by any Grantor or any of their respective Subsidiaries relating to this Security Agreement or any other Loan Document against the Agent, any other
Secured Party or any of their respective Affiliates shall be brought in the United States District Court for the Southern District of New York (or the state courts sitting in the Borough of Manhattan in the event the Southern District of
New York lacks subject matter jurisdiction), and any appellate court from any thereof, unless no such court shall accept jurisdiction.
8.15.6 The Agent hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the courts of the Province of Alberta in any suit, action or proceeding arising out of or
relating to this Security Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such court. Each of the parties hereto agrees that a final, non-appealable 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.
8.15.7 The Agent hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. The Agent hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
8.15.8 To the extent that any Grantor has or hereafter may acquire any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property, such Grantor hereby irrevocably waives such immunity in respect of its obligations under the Loan Documents.
8.15.9 EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Indemnity. Each Grantor hereby agrees, jointly with the other Grantors and severally, to indemnify
the Agent and the Secured Parties in accordance with Section 11.04 of the LC Credit Agreement, mutatis mutandis.
Severability. Any provision in this Security Agreement that is held to be inoperative,
unenforceable, not permissible, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, not permissible, or invalid without affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Security Agreement are declared to be severable.
Counterparts. This Security Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by
telecopy, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Security Agreement. The words “execution,”
“signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Security Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures,
deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law, including the Electronic Transactions Act (Alberta).
Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Lien and security
interest granted to the Agent pursuant to or in connection with this Security Agreement, and the exercise of any right or remedy by the Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict
between the terms of the Intercreditor Agreement and this Security Agreement, subject to Section 4.6.4 hereof and any other limitation on rights of the Agent or other Secured Party with respect to ULC Shares hereunder, the terms of
the Intercreditor Agreement shall control. For so long as the Intercreditor Agreement remains in effect, the delivery of any Collateral to the ABL Collateral Agent as required by the Intercreditor Agreement shall satisfy any delivery
requirement with respect to such Collateral hereunder.
Loan Document. This Security Agreement constitutes a Loan Document for all purposes under the LC
Credit Agreement and all other Loan Documents.
Further Assurances. Each Grantor shall, execute and deliver, or cause to be executed and
delivered, to the Agent such documents, agreements, instruments, forms and notices and will take or cause to be taken such further actions (including the filing and recording of financing statements and other documents serving notices of
assignment and such other actions or deliveries of the type required by Section 5.01 of the LC Credit Agreement, as applicable), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms
and conditions of this Security Agreement and to ensure perfection and priority of the Liens created or intended to be created hereby, all at the expense of the Grantors.
ARTICLE IX
NOTICES
Sending Notices. All notices, requests and other communications to any party hereunder shall be
given in the manner prescribed in Section 11.02 of the LC Credit Agreement with respect to the Agent at its notice address therein and, with respect to any Grantor, in the care of Weatherford International, LLC, as provided and at the notice
address set forth in the Credit Agreement, or such other address or telecopy number as such party may hereafter specify for such purpose in accordance with the provisions of Section 11.02 of the LC Credit Agreement. Any notice delivered to
the Borrowers on behalf of the Grantors shall be deemed to have been delivered to all of the Grantors.
Change in Address for Notices. Each of the Grantors, the Agent and the Lenders may change the
address for service of notice upon it by a notice in writing to the other parties.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Grantors and the Agent have executed this Security Agreement as of the
date first above written.
GRANTORS:
WEATHERFORD CANADA LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD (NOVA SCOTIA) ULC
By:_____________________________________
Name:
Title:
PRECISION ENERGY SERVICES ULC
By:_____________________________________
Name:
Title:
PRECISION ENERGY INTERNATIONAL LTD.
By:_____________________________________
Name:
Title:
PRECISION ENERGY SERVICES COLOMBIA LTD.
By:_____________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT “A”
(See Sections 3.3, 3.4, 3.5 and 4.1.3 of Security Agreement)
Prior names, jurisdiction of formation, place of business (if Grantor has only one place of business), chief executive
office (if Grantor has more than one place of business), mergers and mailing address:
1. No prior names.
2. Jurisdiction of Formation: Alberta for each of Weatherford Canada Ltd., Precision Energy Services ULC, Precision Energy International Ltd. and Precision Energy Services
Colombia Ltd., and Nova Scotia for Weatherford (Nova Scotia) ULC
3. Chief Executive Office in
Canada and mailing address for each of the Grantors:
333 5th Avenue S.W., Suite 1200
Calgary, Alberta T2P 3B6
Attention: Legal Department - Canada
Locations of Inventory and Equipment the net book value of which exceeds $10,000,000:
Address
|
City
|
Province
|
Owned or Leased
|
2603 - 5th Street
|
NISKU
|
AB
|
Owned
|
2801-84th Avenue
|
EDMONTON
|
AB
|
Owned
|
EXHIBIT “B”
(See Sections 3.8, 3.11 and 4.11 of Security Agreement)
A. Serial Number Goods
Please see list of serial number goods attached as Exhibit B-1
B. Patents, copyrights and trademarks:
See attached as Exhibit B-2.
EXHIBIT “C”
[Reserved]
EXHIBIT “D”
List of Pledged Securities
(See Section 3.10 of Security Agreement)
A. STOCKS:
Name of Grantor
|
Issuer
|
Certificate Number(s)
|
Number of Shares
|
Class of Stock
|
Percentage of Outstanding Shares
|
Certificated
|
Weatherford Canada Ltd.
|
Precision Energy Services ULC
|
C-13
C-14
C-15
|
448,374,124
213,807,963
246,686,606
|
Common Shares
Common Shares
Common Shares
|
100%
|
Yes
|
Weatherford Canada Ltd.
|
Precision Energy Services Colombia Ltd.
|
10
|
100
|
Common Shares
|
100%
|
Yes
|
Precision Energy Services ULC
|
Precision Energy International Ltd.
|
A-4
A-5
|
1
1
|
Common Share
Common Share
|
100%
|
Yes
|
Weatherford Canada Ltd.
|
Weatherford (Nova Scotia) ULC
|
2
3
PA-2
|
9,980
10
1,738
|
Common Shares
Common Shares
Preferred Shares
|
100%
|
Yes
|
Weatherford Canada Ltd.
|
Weatherford Australia Holding Pty Limited
|
No. 5
|
1
|
Ordinary Share
|
100%
|
Yes
|
Weatherford Canada Ltd.
|
Weatherford Australia Pty Limited
|
No. 15
|
1,114,258
|
Ordinary Shares
|
63.78998832%
|
Yes
|
Precision Energy Services ULC
|
Weatherford International de Argentina S.A.
|
52
|
14,912
|
Common Shares
|
0.00108443%
|
Yes
|
B. BONDS:
Grantor
|
Issuer
|
Number
|
Face Amount
|
Coupon Rate
|
Maturity
|
None.
|
|
|
|
|
|
C. GOVERNMENT SECURITIES:
Grantor
|
Issuer
|
Number
|
Face Amount
|
Coupon Rate
|
Maturity
|
None.
|
|
|
|
|
|
D. INSTRUMENTS, OTHER SECURITIES OR OTHER INVESTMENT PROPERTY
(CERTIFICATED AND UNCERTIFICATED):
Grantor
|
Issuer
|
Description of Collateral
|
Percentage Ownership Interest
|
Weatherford (Nova Scotia) ULC
|
Weatherford (G.B.) LLP
|
99.9999996 Subscription Units
|
99.9999996%
|
Weatherford Canada Ltd.
|
Weatherford (G.B.) LLP
|
0.0000004 Subscription Units
|
0.0000004%
|
EXHIBIT “E”
(See Section 3.1 of Security Agreement)
OFFICES IN WHICH FINANCING STATEMENTS WILL BE FILED
GRANTOR
|
JURISDICTION FOR FILING FINANCING STATEMENT AGAINST SUCH GRANTOR
|
Weatherford Canada Ltd.
|
Alberta, Nova Scotia, Saskatchewan, Ontario, Newfoundland and Labrador, British Columbia, Manitoba
|
Precision Energy Services ULC
|
Alberta, Nova Scotia, Saskatchewan, Ontario, Newfoundland and Labrador, British Columbia, Manitoba
|
Precision Energy International Ltd.
|
Alberta, Nova Scotia, Saskatchewan, Ontario, Newfoundland and Labrador, British Columbia, Manitoba
|
Precision Energy Services Colombia Ltd.
|
Alberta, Nova Scotia, Saskatchewan, Ontario, Newfoundland and Labrador, British Columbia, Manitoba
|
Weatherford (Nova Scotia) ULC
|
Alberta, Nova Scotia, Saskatchewan, Ontario, Newfoundland and Labrador, British Columbia, Manitoba
|
Exhibit “F”
[RESERVED]
EXHIBIT “G”
(See Section 3.9 of Security Agreement)
ORGANIZATION NUMBER; JURISDICTION OF INCORPORATION
GRANTOR
|
Type of Organization
|
Jurisdiction of Organization or Incorporation
|
Organization Number
|
1. Weatherford Canada Ltd.
|
Corporation
|
Alberta
|
2010240824
|
2. Weatherford (Nova
Scotia) ULC
|
Unlimited liability company
|
Nova Scotia
|
3090913
|
3. Precision Energy
Services ULC
|
Unlimited liability corporation
|
Alberta
|
2011901994
|
4. Precision Energy
International Ltd.
|
Corporation
|
Alberta
|
2011256845
|
5. Precision Energy
Services Colombia Ltd.
|
Corporation
|
Alberta
|
206760704
|
EXHIBIT “H”
(See Section 3.12 of Security Agreement)
SPECIFIED DEPOSIT ACCOUNTS
[Redacted.]
SECURITIES ACCOUNTS
Name of Grantor
|
Name of Institution
|
Account Number
|
None.
|
|
|
EXHIBIT “I”
(See Section 4.4 of Security Agreement)
AMENDMENT
This Amendment, dated , 20____ is delivered pursuant to Section 4.4 of the Security Agreement referred to below. All defined terms herein shall have the meanings ascribed thereto or incorporated by reference in the Security Agreement. The undersigned
hereby certifies that the representations and warranties in Article III of the Security Agreement are and continue to be true and correct. The undersigned further agrees that this Amendment may be attached to that certain Canadian Security
Agreement, dated December 13, 2019, between the undersigned, as the Grantors, and Deutsche Bank Trust Company Americas, as the Agent, (the “Security Agreement”) and that the
Collateral listed on Schedule I to this Amendment shall be and become a part of the Collateral referred to in said Security Agreement and shall secure all Secured Obligations referred to in said Security Agreement.
By:_____________________________________
Name:
Title:
SCHEDULE I TO AMENDMENT
STOCKS
Name of Grantor
|
Issuer
|
Certificate Number(s)
|
Number of Shares
|
Class of Stock
|
Percentage of Outstanding Shares
|
|
|
|
|
|
|
|
|
|
|
|
|
BONDS
Name of Grantor
|
Issuer
|
Number
|
Face Amount
|
Coupon Rate
|
Maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
GOVERNMENT SECURITIES
Name of Grantor
|
Issuer
|
Number
|
Type
|
Face Amount
|
Coupon Rate
|
Maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OTHER SECURITIES OR OTHER INVESTMENT PROPERTY
(CERTIFICATED AND UNCERTIFICATED)
Name of Grantor
|
Issuer
|
Description of Collateral
|
Percentage Ownership Interest
|
|
|
|
|
|
|
|
|
[Add description of custody accounts or arrangements with securities
intermediary, if applicable]
SERIAL NUMBER GOODS
Name of Grantor
|
Description of Collateral
|
Serial Number
|
|
|
|
Exhibit “J”
(See Definition of “Patent Security Agreement”)
CONFIRMATORY GRANT IN U.S. PATENTS
THIS CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES PATENTS (the “Confirmatory
Grant”) is made effective as of [____], 20__ by and from the entities listed on the signature pages hereto (each such entity, together with any other entities that become party to this Confirmatory Grant, being individually referred to
herein as a “Grantor” and collectively as the “Grantors”), to and in favor of Deutsche Bank Trust Company Americas in its capacity as administrative agent (the “Grantee”) for itself and on behalf and for the benefit of
the other Secured Parties (as defined in the Credit Agreement referenced below).
WHEREAS, WEATHERFORD INTERNATIONAL PLC, an Irish public limited
company (“WIL-Ireland”), WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company (“WIL-Bermuda”), WEATHERFORD INTERNATIONAL, LLC, a Delaware limited liability company (“WIL-Delaware”), the Lenders from time to time
party thereto, the Grantee, and the Issuing Banks from time to time party thereto are parties to the LC Credit Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”).
WHEREAS, the Grantors and the other grantors from time to time
party thereto have entered into the Canadian Security Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”).
WHEREAS, the Grantors own certain Patents (as defined in the
Security Agreement), including without limitation the Patents listed on Exhibit A attached hereto, which Patents are issued or pending with the United States Patent and Trademark Office.
WHEREAS, this Confirmatory Grant has been granted in conjunction
with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are without prejudice to and are in addition to those set forth in
the Security Agreement and the other Loan Documents, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Confirmatory Grant are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:
1) Definitions. All capitalized terms not defined herein shall have the respective meanings given to them in the Credit Agreement.
2) The Security Interest.
(a) This Confirmatory Grant is made to secure the satisfactory performance and payment of the Secured Obligations. Upon Payment in Full, the Grantee shall promptly execute, acknowledge, and deliver to
the Grantors all reasonably requested instruments in writing or otherwise, releasing the security interest in the Patents acquired under this Confirmatory Grant. Notwithstanding the foregoing, the security interest in the Patents acquired
under this Confirmatory Grant shall automatically be released and the Grantee shall promptly execute, acknowledge and deliver to the Grantors all reasonably requested instruments in writing or otherwise, evidencing such release, in each
case, to the extent provided in and in accordance with Section 11.01(e) and Section 11.23 of the Credit Agreement.
(b) Each Grantor hereby pledges, assigns and grants to the Grantee, on behalf of and for the benefit of the Secured Parties, a security interest in (1) all of such Grantor’s right, title and interest
in and to the Patents now owned or hereafter acquired by such Grantor, including without limitation the Patents listed on Exhibit A hereto, together with (2) all proceeds and products of the Patents, and (3) all causes of action
arising prior to or after the date hereof for infringement or other violation of the Patents or unfair competition regarding the same (collectively, the “Patent Collateral”).
3) Counterparts. This Confirmatory Grant may be executed in any number of counterparts and by different parties in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached
to a single counterpart.
4) Further Actions. The Grantors authorize and request that the Commissioner for Patents of the United States
Patent and Trademark Office and any other applicable government officer record this Confirmatory Grant. The Grantors shall take any further actions, including executing any further documentation, necessary to record, perfect or effectuate
this Confirmatory Grant and the Grantee’s security interest in the Patent Collateral.
5) Authorization to Supplement. If any Grantor shall obtain rights to any new Patents, the provisions of this
Confirmatory Grant shall automatically apply thereto. Such Grantor hereby authorizes the Grantee, in consultation with such Grantor, to modify this Confirmatory Grant by amending Exhibit A solely to include any such new Patents of such Grantor. Notwithstanding the foregoing, no failure to so modify this Confirmatory Grant or amend Exhibit A shall in any way affect, invalidate or detract from the Grantee's continuing security interest in all Patent Collateral, whether or not listed on Exhibit A.
6) Governing Law. This Confirmatory Grant and the rights and obligations of the parties hereto shall be governed
by, and construed and interpreted in accordance with, the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Confirmatory Grant of Security
Interest in United States Patents effective as of the date first written above.
[GRANTOR]
By:
Name:
Title:
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
Exhibit A – SCHEDULE OF PATENTS
Exhibit “K”
(See Definition of “Trademark Security Agreement”)
CONFIRMATORY GRANT IN U.S. TRADEMARKS
THIS CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES TRADEMARKS (the “Confirmatory Grant”)
is made effective as of [____], 20__ by and from the entities listed on the signature pages hereto (each such entity, together with any other entities that become party to this Confirmatory Grant, being individually referred to herein as a “Grantor”
and collectively as the “Grantors”), to and in favor of Deutsche Bank Trust Company Americas in its capacity as administrative agent (the “Grantee”) for itself and on behalf and for the benefit of the other Secured Parties (as
defined in the Credit Agreement referenced below).
WHEREAS, WEATHERFORD INTERNATIONAL PLC, an Irish
public limited company (“WIL-Ireland”), WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company (“WIL-Bermuda”), WEATHERFORD INTERNATIONAL, LLC, a Delaware limited liability company (“WIL-Delaware”), the Lenders from
time to time party thereto, the Grantee, and the Issuing Banks from time to time party thereto are parties to the LC Credit Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”).
WHEREAS, the Grantors and the other grantors
from time to time party thereto have entered into the Canadian Security Agreement dated as of December 13, 2019 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”).
WHEREAS, the Grantors own certain Trademarks (as
defined in the Security Agreement), including without limitation the Trademarks listed on Exhibit A attached hereto, which Trademarks are pending or registered with the United States Patent and Trademark Office.
WHEREAS, this Confirmatory Grant has been
granted in conjunction with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are without prejudice to and are in addition
to those set forth in the Security Agreement and the other Loan Documents, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Confirmatory Grant are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall govern.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:
1) Definitions. All capitalized terms not defined herein shall have the respective meanings given to them in the
Credit Agreement.
2) The Security Interest.
(a) This Confirmatory Grant is made to secure the satisfactory performance and payment of all the Secured Obligations. Upon Payment in Full, the Grantee shall promptly
execute, acknowledge, and deliver to the Grantors all reasonably requested instruments in writing or otherwise, releasing the security interest in the Trademarks acquired under this Confirmatory Grant. Notwithstanding the foregoing, the
security interest in the Trademarks acquired under this Confirmatory Grant shall automatically be released and the Grantee shall promptly execute, acknowledge and deliver to the Grantors all reasonably requested instruments in writing or
otherwise, evidencing such release, in each case, to the extent provided in and in accordance with Section 11.01(e) and Section 11.23 of the Credit Agreement.
(b) Each Grantor hereby pledges, assigns and grants to the Grantee, on behalf of and for the benefit of the Secured Parties, a security interest in (1) all of such Grantor’s
right, title and interest in and to the Trademarks now owned or hereafter acquired by such Grantor, including without limitation the Trademarks listed on Exhibit A, together with (2) all proceeds and products of the Trademarks, (3)
the goodwill associated with such Trademarks, and (4) all causes of action arising prior to or after the date hereof for infringement or other violation of the Trademarks or unfair competition regarding the same (collectively, the “Trademark
Collateral”).
3) Counterparts. This Confirmatory Grant may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.
4) Further Actions. The Grantors authorize and request that the Commissioner for Trademarks of the United States Patent and Trademark Office and any other applicable
government officer record this Confirmatory Grant. The Grantors shall take any further actions, including executing any further documentation, necessary to record, perfect or effectuate this Confirmatory Grant and the Grantee’s security
interest in the Trademark Collateral.
5) Authorization to Supplement. If any Grantor shall obtain rights to any new Trademarks, the provisions of this Confirmatory Grant shall automatically apply
thereto. Such Grantor hereby authorizes the Grantee, in consultation with such Grantor, to modify this Confirmatory Grant by amending Exhibit A solely to include any such new Trademarks of such Grantor. Notwithstanding the
foregoing, no failure to so modify this Confirmatory Grant or amend Exhibit A shall in any way affect, invalidate or detract from the Grantee's continuing security interest in all Trademark Collateral, whether or not listed on Exhibit
A.
6) Governing Law. This Confirmatory Grant and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with,
the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Confirmatory Grant of Security
Interest in United States Trademarks effective as of the date first written above.
[GRANTOR]
By:
Name:
Title:
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
Exhibit A – SCHEDULE OF TRADEMARKS
Exhibit “L”
ACKNOWLEDGEMENT PARTY ACKNOWLEDGEMENT
The undersigned hereby acknowledges receipt of the foregoing Canadian Security Agreement dated as of ___________, 2019 (the
“Security Agreement”), executed by and among WEATHERFORD CANADA LTD., WEATHERFORD (NOVA SCOTIA) ULC., PRECISION ENERGY SERVICES ULC, PRECISION ENERGY INTERNATIONAL LTD., PRECISION ENERGY SERVICES COLOMBIA LTD., the other Grantors party
thereto and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Agent. All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Security Agreement.
The undersigned (i) to the extent not a ULC, has registered the pledge of, and grant of security interest in and control
over, the Pledged Collateral, including its equity interests, to Agent in its books and records and (ii) agrees and acknowledges that the Pledged Collateral, including its equity interest, shall not be represented by a certificate.
The undersigned shall promptly comply with the instructions of the Agent with respect to the transfer or other disposition
of the Pledged Collateral, including its equity interests, without further consent or action of any Grantor including, without limitation, instructions to pay and remit to Agent all distributions and other amounts payable to any Grantor (upon
redemption, termination and dissolution of the undersigned or otherwise), and to transfer to, and register the Pledged Collateral, including its equity interests, in the name of, Agent or its nominee.
THIS ACKNOWLEDGEMENT PARTY ACKNOWLEDGEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE PROVINCE OF ALBERTA AND THE
FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
Dated this ___________, 2019
[ACKNOWLEDGMENT PARTY]
By: _____________________
Its: _____________________
ANNEX I
SECURITY AGREEMENT SUPPLEMENT
Reference is hereby made to the Canadian Security Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the “Agreement”), dated as of December 13, 2019, made by the signatories party thereto or that become parties thereto by
executing a Security Agreement Supplement (each, a “Grantor” and, collectively, the “Grantors”) in favour of Deutsche Bank
Trust Company Americas (in such capacity, the “Agent”). Capitalized terms used herein and not defined herein shall have the meanings given to them in the Agreement.
By its execution below, the undersigned, [NAME
OF NEW GRANTOR], a [ ].
[corporation/limited liability company/limited
partnership] (the “New Grantor”) agrees to become, and does hereby become, a Grantor under the Agreement and agrees to be bound by the
Agreement as if originally a party thereto. The New Grantor hereby collaterally assigns and pledges to the Agent for the benefit of the Secured Parties, and grants to the Agent for the benefit of the Secured Parties, a security interest in
all of the New Grantor’s right, title and interest in and to the Collateral, whether now owned or hereafter acquired, to secure the prompt and complete payment and performance of the Secured Obligations. For the avoidance of doubt, the grant
of a security interest herein shall not be deemed to be an assignment of intellectual property rights or ULC Shares owned by the New Grantor (other than the collateral assignment pursuant hereto).
By its execution below, the undersigned represents and warrants as to itself that all of
the representations and warranties contained in the Agreement are true and correct in all material respects as of the date hereof. The New Grantor represents and warrants that the supplements to the Exhibits to the Agreement attached hereto
are true and correct in all material respects and that such supplements set forth all information required to be scheduled under the Agreement with respect to the New Grantor. The New Grantor shall take all steps necessary and required under
the Agreement to perfect, in favor of the Agent, a security interest in and lien against the New Grantor’s Collateral.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE PROVINCE OF ALBERTA AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
IN WITNESS WHEREOF, the New Grantor has executed and delivered this Security Agreement
Supplement as of this _______________ day of , 20__.
[NAME OF NEW GRANTOR]
By:_____________________________________
Title:
EXHIBIT J
FORM OF IP SHORT FORM
FORM OF
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
THIS CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES PATENTS (the “Confirmatory
Grant”) is made effective as of [____], 20__ by and from the entities listed on the signature pages hereto (each such entity, together with any other entities that become party to this Confirmatory Grant, being individually referred to
herein as a “Grantor” and collectively as the “Grantors”), to and in favor of Deutsche Bank Trust Company Americas in its capacity as administrative agent (the “Grantee”) for itself and on behalf and for the benefit of
the other Secured Parties (as defined in the Credit Agreement referenced below).
WHEREAS, WEATHERFORD INTERNATIONAL PLC, an Irish public limited
company (“WIL-Ireland”), WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company (“WIL-Bermuda”), WEATHERFORD INTERNATIONAL, LLC, a Delaware limited liability company (“WIL-Delaware”), the Lenders from time to time
party thereto, the Grantee, and the Issuing Banks from time to time party thereto are parties to the LC Credit Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”).
WHEREAS, the Grantors and the other grantors from time to time
party thereto have entered into the U.S. Security Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”).
WHEREAS, the Grantors own certain Patents (as defined in the
Security Agreement), including without limitation the Patents listed on Exhibit A attached hereto, which Patents are issued or pending with the United States Patent and Trademark Office.
WHEREAS, this Confirmatory Grant has been granted in conjunction
with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are without prejudice to and are in addition to those set forth in
the Security Agreement and the other Loan Documents, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Confirmatory Grant are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:
ARTICLE IDefinitions. All capitalized terms not defined
herein shall have the respective meanings given to them in the Credit Agreement.
ARTICLE IIThe Security Interest.
(a) This Confirmatory Grant is made to secure the satisfactory performance and payment of the Secured Obligations. Upon Payment in Full, the Grantee shall promptly execute, acknowledge, and deliver to the Grantors
all reasonably requested instruments in writing or otherwise, releasing the security interest in the Patents acquired under this Confirmatory Grant. Notwithstanding the foregoing, the security interest in the Patents acquired under this
Confirmatory Grant shall automatically be released and the Grantee shall promptly execute, acknowledge and deliver to the Grantors all reasonably requested instruments in writing or otherwise, evidencing such release, in each case, to the
extent provided in and in accordance with Section 11.01(e) and Section 11.23 of the Credit Agreement.
(b) Each Grantor hereby pledges, assigns and grants to the Grantee, on behalf of and for the benefit of the Secured Parties, a security interest in (1) all of such Grantor’s right, title and interest in and to the
Patents now owned or hereafter acquired by such Grantor, including without limitation the Patents listed on Exhibit A hereto, together with (2) all proceeds and products of the Patents, and (3) all causes of action arising prior to
or after the date hereof for infringement or other violation of the Patents or unfair competition regarding the same (collectively, the “Patent Collateral”).
(a) Counterparts. This Confirmatory Grant may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.
(b) Further Actions. The Grantors authorize and request that the Commissioner for Patents of the United States Patent and Trademark Office and any other applicable
government officer record this Confirmatory Grant. The Grantors shall take any further actions, including executing any further documentation, necessary to record, perfect or effectuate this Confirmatory Grant and the Grantee’s security
interest in the Patent Collateral.
(c) Authorization to Supplement. If any Grantor shall obtain rights to any new Patents, the provisions of this Confirmatory Grant shall automatically apply thereto.
Such Grantor hereby authorizes the Grantee, in consultation with such Grantor, to modify this Confirmatory Grant by amending Exhibit A solely to include any such new Patents of such Grantor. Notwithstanding the foregoing, no
failure to so modify this Confirmatory Grant or amend Exhibit A shall in any way affect, invalidate or detract from the Grantee's continuing security interest in all Patent Collateral, whether or not listed on Exhibit A.
(d) Governing Law. This Confirmatory Grant and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with,
the internal laws of the State of New York.
*******
IN WITNESS WHEREOF, the parties hereto have executed this Confirmatory Grant of Security
Interest in United States Patents effective as of the date first written above.
[GRANTOR]
By:
Name:
Title:
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES PATENTS
Exhibit A – SCHEDULE OF PATENTS
FORM OF
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
THIS CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES TRADEMARKS (the “Confirmatory Grant”) is
made effective as of [____], 20__ by and from the entities listed on the signature pages hereto (each such entity, together with any other entities that become party to this Confirmatory Grant, being individually referred to herein as a “Grantor”
and collectively as the “Grantors”), to and in favor of Deutsche Bank Trust Company Americas in its capacity as administrative agent (the “Grantee”) for itself and on behalf and for the benefit of the other Secured Parties (as
defined in the Credit Agreement referenced below).
WHEREAS, WEATHERFORD INTERNATIONAL PLC, an Irish
public limited company (“WIL-Ireland”), WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company (“WIL-Bermuda”), WEATHERFORD INTERNATIONAL, LLC, a Delaware limited liability company (“WIL-Delaware”), the Lenders from
time to time party thereto, the Grantee, and the Issuing Banks from time to time party thereto are parties to the LC Credit Agreement dated as of December 13, 2019 (as the same may be further amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”).
WHEREAS, the Grantors and the other grantors from
time to time party thereto have entered into the U.S. Security Agreement dated as of December 13, 2019 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”).
WHEREAS, the Grantors own certain Trademarks (as
defined in the Security Agreement), including without limitation the Trademarks listed on Exhibit A attached hereto, which Trademarks are pending or registered with the United States Patent and Trademark Office.
WHEREAS, this Confirmatory Grant has been granted
in conjunction with the security interest granted to the Grantee under the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are without prejudice to and are in addition to those
set forth in the Security Agreement and the other Loan Documents, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Confirmatory Grant are deemed to conflict with the Security
Agreement, the provisions of the Security Agreement shall govern.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed that:
(a) Definitions. All capitalized terms not defined herein shall have the respective meanings given to them in the Credit Agreement.
(b) The Security Interest.
(a) This Confirmatory Grant is made to secure the satisfactory performance and payment of all the Secured Obligations. Upon Payment in Full, the Grantee shall promptly execute, acknowledge, and deliver to the
Grantors all reasonably requested instruments in writing or otherwise, releasing the security interest in the Trademarks acquired under this Confirmatory Grant. Notwithstanding the foregoing, the security interest in the Trademarks acquired
under this Confirmatory Grant shall automatically be released and the Grantee shall promptly execute, acknowledge and deliver to the Grantors all reasonably requested instruments in writing or otherwise, evidencing such release, in each
case, to the extent provided in and in accordance with Section 11.01(e) and Section 11.23 of the Credit Agreement.
(b) Each Grantor hereby pledges, assigns and grants to the Grantee, on behalf of and for the benefit of the Secured Parties, a security interest in (1) all of such Grantor’s
right, title and interest in and to the Trademarks now owned or hereafter acquired by such Grantor, including without limitation the Trademarks listed on Exhibit A, together with (2) all proceeds and products of the Trademarks, (3)
the goodwill associated with such Trademarks, and (4) all causes of action arising prior to or after the date hereof for infringement or other violation of the Trademarks or unfair competition regarding the same (collectively, the “Trademark
Collateral”).
3) Counterparts. This Confirmatory Grant may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.
(a) Further Actions. The Grantors authorize and request that the Commissioner for Trademarks of the United States Patent and Trademark Office and any other applicable
government officer record this Confirmatory Grant. The Grantors shall take any further actions, including executing any further documentation, necessary to record, perfect or effectuate this Confirmatory Grant and the Grantee’s security
interest in the Trademark Collateral.
(b) Authorization to Supplement. If any Grantor shall obtain rights to any new Trademarks, the provisions of this Confirmatory Grant shall automatically apply
thereto. Such Grantor hereby authorizes the Grantee, in consultation with such Grantor, to modify this Confirmatory Grant by amending Exhibit A solely to include any such new Trademarks of such Grantor. Notwithstanding the
foregoing, no failure to so modify this Confirmatory Grant or amend Exhibit A shall in any way affect, invalidate or detract from the Grantee's continuing security interest in all Trademark Collateral, whether or not listed on Exhibit
A.
(c) Governing Law. This Confirmatory Grant and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with,
the internal laws of the State of New York.
*******
IN WITNESS WHEREOF, the parties hereto have executed this Confirmatory Grant of Security
Interest in United States Trademarks effective as of the date first written above.
[GRANTOR]
By:_____________________________________
Name:
Title:
CONFIRMATORY GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
Exhibit A – SCHEDULE OF TRADEMARKS
EXHIBIT K
FORMS OF ENGLISH SECURITY AGREEMENTS
EXECUTION VERSION
DATED _________________, 2019
WEATHERFORD U.K. LIMITED
(the Company)
‑ and ‑
DEUTSCHE BANK TRUST COMPANY AMERICAS
(the Collateral Agent)
DEED OF CHARGE AND ASSIGNMENT
This Deed of Charge and Assignment is entered into subject to the terms of the Intercreditor Agreement dated on or about the
date of this Deed (as amended from time to time).
TABLE OF CONTENTS
Clause
|
|
Page No.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
TRUST
|
12
|
3.
|
INTERCREDITOR AGREEMENT
|
12
|
4.
|
ABL DEED OF CHARGE AND ASSIGNMENT
|
13
|
5.
|
COVENANT TO PAY
|
13
|
6.
|
SECURITY
|
13
|
7.
|
REDEMPTION OF SECURITY
|
17
|
8.
|
REPRESENTATIONS AND WARRANTIES
|
17
|
9.
|
COVENANTS RELATING TO ASSETS – PERFECTION, RESTRICTIONS ON DEALINGS, PROTECTION
|
18
|
10.
|
GENERAL COVENANTS
|
23
|
11.
|
CRYSTALLISATION OF FLOATING CHARGE
|
23
|
12.
|
ENFORCEMENT
|
24
|
13.
|
CONTINUING SECURITY, OTHER SECURITY ETC.
|
25
|
14.
|
FURTHER ASSURANCES, POWER OF ATTORNEY, ETC.
|
25
|
15.
|
THE COLLATERAL AGENT'S RIGHTS
|
27
|
16.
|
APPOINTMENT OF ADMINISTRATOR
|
28
|
17.
|
RECEIVER
|
29
|
18.
|
APPLICATION OF MONEYS
|
31
|
19.
|
PROTECTION OF THIRD PARTIES
|
31
|
20.
|
PROTECTION OF COLLATERAL AGENT AND RECEIVER
|
32
|
21.
|
COSTS, EXPENSES AND INDEMNITY
|
33
|
22.
|
CONSENTS, VARIATIONS, WAIVERS AND RIGHTS
|
33
|
23.
|
PARTIAL INVALIDITY
|
33
|
24.
|
COUNTERPARTS
|
33
|
25.
|
THIRD PARTIES
|
34
|
26.
|
DETERMINATIONS
|
34
|
27.
|
ASSIGNMENT
|
34
|
28.
|
NOTICES
|
34
|
29.
|
GOVERNING LAW AND JURISDICTION
|
34
|
SCHEDULE 1 BANK ACCOUNTS
|
37
|
PART 1 – GENERAL BANK ACCOUNTS
|
37
|
PART 2 – COLLECTION BANK ACCOUNT
|
38
|
SCHEDULE 2 ASSIGNED AGREEMENTS
|
39
|
SCHEDULE 3 INSURANCE POLICIES
|
41
|
SCHEDULE 4 FORM OF NOTICE OF CHARGE OF BANK ACCOUNTS
|
42
|
PART 1 – FORM OF NOTICE OF CHARGE FOR GENERAL BANK ACCOUNTS
|
42
|
PART 2 – FORM OF NOTICE OF CHARGE FOR COLLECTION BANK ACCOUNTS
|
45
|
SCHEDULE 5 FORM OF NOTICE OF CHARGE OF ASSIGNED AGREEMENTS
|
49
|
SCHEDULE 6 FORM OF NOTICE OF CHARGE OF INSURANCE POLICIES
|
52
|
THIS DEED OF CHARGE AND ASSIGNMENT is made on ______________, 2019
BETWEEN:
(1)
|
WEATHERFORD U.K. LIMITED, a limited company incorporated in England and Wales under registered number 00862925, whose registered office
is at Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX (the "Company"); and
|
(2)
|
DEUTSCHE BANK TRUST COMPANY AMERICAS (the "Collateral Agent"), which expression includes its
successors in title and assigns acting for itself and on behalf of the Secured Parties as the holders of the Secured Obligations (as defined below)).
|
RECITALS:
(A)
|
Under the Loan Agreement (as defined below) the Lenders have granted to the Borrowers a letter of credit line facility (the "Facility").
|
(B)
|
Under the Guarantee various Affiliates of the Parent, including the Company, have guaranteed the obligations of the Borrowers under the Loan Agreement.
|
(C)
|
It is a requirement under the Loan Agreement that obligations of the Company under the Guarantee are secured by this Deed.
|
(D)
|
The Company has agreed to mortgage, assign and charge by way of security all of its right, title, interest and benefit in, to and under its assets, rights, revenues and
undertaking (except any Excluded Assets) in favour of the Collateral Agent as security for the Secured Obligations, subject to and in accordance with the terms and conditions of this Deed (each as defined below).
|
(E)
|
The Company's board of directors has concluded after due consideration of all relevant circumstances that entering into this Deed is in the best interests of and for the benefit
of the Company for the purposes of its business.
|
(F)
|
It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand.
|
IT IS AGREED AND THIS DEED PROVIDES as follows:
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Capitalised words and phrases used but not defined in this Deed shall have the meanings set out in the Loan Agreement and the following words and expressions have the meanings
set out below:
|
|
"ABL Deed of Charge
|
means a deed of charge and assignment dated on
|
|
and Assignment"
|
or about the date hereof between, amongst others, the Company and Wells Fargo Bank, National Association as collateral agent, granted pursuant to an asset based loan credit
agreement dated on or about the date of this Deed between, amongst others, Weatherford International Ltd. and Weatherford International, LLC as borrowers, the lenders party thereto, and Wells Fargo Bank, National Association as
collateral agent;
|
|
"Administrator"
|
means any person or persons for the time being acting as administrator of the Company pursuant to the provisions of the Insolvency Act;
|
|
"Assets"
|
means property, assets, rights, revenues, income, uncalled capital, licences, business and undertakings and any interest therein, in each case whatsoever and wheresoever
situated, present and future (but shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Assigned Assets"
|
has the meaning set out in Clause 0 (6.4
|
Assignment);
|
|
"Assigned Agreements"
|
means each agreement specified in Schedule 2 (Assigned Agreements) together with each other agreement supplementing or amending or
novating or replacing the same designated as an Assigned Agreement;
|
|
"Bank Accounts"
|
means the General Bank Accounts and the Collection Bank Accounts;
|
|
"Book Debts"
|
means all book and other debts (including rents) and other moneys, liabilities and monetary claims of any nature whatsoever now or hereafter due, owing or payable to the Company
(including moneys, liabilities and claims deriving from or in relation to any Investments, any contract or agreement to which the Company is party, or any other Assets or rights of the Company, and including the benefit of any
judgment or order to pay money and any amounts due or owing from any government or governmental agency including in respect of Taxes) and all other rights of the Company to receive money (but excluding all moneys now or hereafter
standing to the credit of any account held by the Company with any bank) and any proceeds thereof; and the benefit of (including the proceeds of all claims under) all rights, Security Interests, securities, guarantees, indemnities,
negotiable instruments, letters of credit and Insurances of any nature whatsoever now or hereafter owned or held by the Company in relation to any of the foregoing (but "Book Debts" shall
exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Business Day"
|
means any day (other than a Saturday or Sunday) on which banks are open for business in London and New York City;
|
|
"cash"
|
means cash within the meaning of Financial Collateral Arrangements (No. 2) Regulations 2003;
|
|
"Centre of Main Interests"
|
means, in relation to a person, its centre of main interests within the meaning of the EC Regulation on Insolvency Proceedings 2000;
|
|
"Charged Assets"
|
means all Assets from time to time subject or expressed or intended to be subject to the Charges (whether fixed or floating) under or pursuant to this Deed, and "Charged Assets" includes any part of any of them and any right, title, interest or benefit therein or in respect thereof (but shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Charges"
|
means any or all of the Security Interests created or expressed to be created, or which may now or hereafter be created or expressed to be created, by or pursuant to this Deed,
including any further Security Interests created pursuant to Clause 0 (14.Further Assurances, Power of Attorney, ETC.) or Clause 0 (6.9Excluded Property);
|
|
"Collection Account Banks"
|
means the account banks listed in Part 2 of Schedule 1 (Collection Bank Account) under the column "Account
Bank";
|
|
"Collection Account Notice"
|
means a notice in the form set out in Part 2 of Schedule 4 (Form of Notice of Charge for Collection Bank Accounts );
|
|
"Collection Bank Accounts"
|
means the accounts listed in Part 2 of Schedule 1 (Collection Bank Account) held by the Company with the bank or banks specified in
Part 2 of Schedule 1 (Collection Bank Account) and any other bank account maintained by the Company with any financial institution as the Collateral Agent may from time to time designate in
writing as a Collection Bank Account, including in each case any redesignation or renewal thereof and all balances now or hereafter standing to the credit of any such account including all interest from time to time thereon, the debt
represented thereby and all rights in relation thereto (but "Collection Bank Accounts" shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Credit Claims"
|
means credit claims within the meaning of the Financial Collateral Arrangements (No 2) Regulations 2003;
|
|
"Delegate"
|
means a delegate or subdelegate appointed pursuant to Clause 0 (15.The Collateral Agent's RIGHTS);
|
|
"Disputes"
|
means any disputes which may arise out of or in connection with this Deed (including regarding its existence, validity or termination);
|
|
"Enforcement Event"
|
has the meaning set out in Clause 0 (12.
|
ENFORCEMENT);
|
|
"Equipment"
|
means plant, machinery, equipment (including office equipment), vehicles, computers and other chattels of any kind (but excluding any from time to time which are part of the
Company's stock in trade or work in progress) now or hereafter owned by the Company or in its possession and all proceeds of sale or other disposal thereof, all moneys paid or payable in respect thereof, rights under any agreement,
Security Interest or guarantee in relation thereto and all other rights in relation thereto, and "Equipment" includes any part of any of them (but "Equipment"
shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
(a)
|
the "Excluded Assets" as defined in the Loan Agreement;
|
|
(b)
|
£17,956, together with accrued interest thereon, deposited with Ashville (Tewkesbury) Limited pursuant to a Rent Deposit Deed dated 3 January 2007;
|
|
(c)
|
the amount, together with accrued interest thereon, deposited with Tewkesbury Investments Limited pursuant to a Rent Deposit Deed dated 11 January 2011;
|
|
(d)
|
all present and future rights, title, benefit and interest in and to each account and related deposit charged in favour of Barclays Bank Plc pursuant to a Fixed Charge over
Accounts Deed dated 7 August 2019,
|
but only while, in the case of (b), (c) and (d) above, such Assets remain subject to the relevant
Security Interest specified above and so that upon the release or discharge of any such Security Interest the relevant Assets shall forthwith become subject to the Charges and form part of the Charged Assets;
|
"financial collateral"
|
means financial collateral within the meaning of the Financial Collateral Arrangements (No. 2) Regulations 2003, as amended;
|
|
"financial instrument"
|
means a financial instrument within the meaning of the Financial Collateral Arrangements (No. 2) Regulations 2003;
|
|
"Fixed Charge Assets"
|
means any part or parts of the Charged Assets effectively charged by way of fixed Security Interests or effectively mortgaged or assigned by way of fixed Security Interests
under this Deed;
|
|
"Fixtures"
|
means fixtures, fittings and fixed plant, machinery and equipment (including trade fixtures and fittings);
|
|
"Floating Charge Assets"
|
means any part or parts of the Charged Assets subject to the floating charge contained in Clause 0 (6.5Floating Charge);
|
|
"General Account Banks"
|
means the account banks listed in Part 1 of Schedule 1 (General Bank Accounts) under the heading "Account
Bank";
|
|
"General Bank Accounts"
|
means the accounts listed in Part 1 of Schedule 1 (General Bank Accounts) held by the Company with the bank or banks specified in Part 1
of Schedule 1 (General Bank Accounts) and any other bank account maintained by the Company with any financial institution as the Collateral Agent may from time to time designate in writing as a
General Bank Account, including in each case any redesignation or renewal thereof and all balances now or hereafter standing to the credit of any such account including all interest from time to time thereon, the debt represented
thereby and all rights in relation thereto (but "General Bank Accounts" shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Guarantee"
|
means an Affiliate Guaranty dated on or about the date of this Deed between, among others, the Parent and the Collateral Agent ;
|
|
"Holding Company"
|
means a holding company within the meaning of section 1159 of the Companies Act 2006;
|
|
"Insolvency Act"
|
means the Insolvency Act 1986;
|
|
"Insolvency Event"
|
in relation to any person, means:
|
|
(a)
|
such person is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness (including any composition, assignment or arrangement with any creditor of such person);
|
|
(b)
|
any resolution is passed or order made for the winding up, dissolution, administration or reorganisation of that person, a moratorium is declared in relation to any indebtedness
of that person or an administrator is appointed to that person (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent);
|
|
(c)
|
the appointment of any liquidator (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent), receiver,
administrator, administrative receiver, compulsory manager or other similar officer in respect of that person or any of its assets; or
|
|
(d)
|
in respect of any person, any analogous procedure or step is taken in any jurisdiction.
|
|
"Insolvency Rules"
|
means the Insolvency Rules 2016;
|
|
"Insurances"
|
means contracts or policies of insurance or indemnity of any kind (including life insurance or assurance) now or hereafter taken out by or on behalf of the Company or (to the
extent of its interest) in which the Company has any interest, and all rights in relation thereto, proceeds thereof, claims and returns of premium in respect thereof (but "Insurances" shall
exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Intercreditor Agreement"
|
means the intercreditor agreement, dated on or about the date of this Deed, among the Collateral Agent, Wells Fargo Bank, National Association, the Parent, Weatherford
International Ltd., Weatherford International LLC, and the other grantors of the Parent named therein;
|
|
"Intellectual Property Rights"
|
means patents, registered designs, copyrights, inventions, semi‑conductor topography rights, rights in designs, rights in trade marks and service marks, business names and trade
names, get up, logos, domain names, moral rights, rights in confidential information, rights in know‑how, database rights, rights protecting goodwill, or reputation and any interests (including by way of licence or sub‑licence) in any
of the foregoing, and any other intellectual property rights and interests whatsoever now or hereafter owned by the Company or in which it has any interest, in each case whether registered or not and including all applications, rights
to apply for and rights to use the same and all fees, royalties and other rights of every kind relating to or deriving from any of the same (but "Intellectual Property Rights" shall exclude, for
the avoidance of doubt, the Excluded Assets);
|
|
"Investments"
|
means shares, stocks, bonds, notes, certificates of deposit, debenture stocks, loan stocks and other securities or investments of any kind and all rights relating to any of the
foregoing (including rights relating to any of the same which are deposited with, registered in the name of or credited to an account with any clearing system or house, depositary, custodian, nominee, controller, investment manager or
other similar person or their nominee, in each case whether or not on a fungible basis and including all rights against such person); warrants, options or other rights to subscribe for, purchase, call for delivery of, redeem, convert
other securities or investments into or otherwise to acquire any of the foregoing; and units in a unit trust scheme (as defined in section 237(1) of the Financial Services and Markets Act 2000); together in each case with all rights
in respect thereof and all dividends, interest, cash or other distributions, accretions or Investments in respect of or deriving from any of the foregoing, and "Investments" means any of the
foregoing including any part of them (but "Investments" shall exclude, for the avoidance of doubt, the Excluded Assets);
|
|
"Law of Property Act"
|
means the Law of Property Act 1925;
|
|
"Legally Mortgaged Property"
|
means any Real Property which may in future be legally mortgaged or charged by the Company to the Collateral Agent by or pursuant to this Deed, and "Legally Mortgaged Property" includes any part of any such Real Property;
|
|
"Loan Agreement"
|
means the letter of credit facility agreement, between, among others, the Parent, the Collateral Agent and the Lenders, dated on or about the date of this Deed;
|
|
"Loss"
|
means any liability, damages, claim, cost, loss, penalty, expense, demand (or actions in respect thereof) including, legal, accounting or other charges, fees, costs,
disbursements and expenses in connection therewith;
|
|
"Material Real Property"
|
means Real Property located in the United States of America, Canada or the United Kingdom owned by the Company with a net book value in excess of US$10,000,000 and that is not
an Excluded Asset;
|
|
"Mortgaged Investments"
|
means Investments from time to time subject or expressed to be subject to the Charges, and "Mortgaged Investments" includes any part of
any of them;
|
|
"Parent"
|
means Weatherford International Public Limited Company, a public limited company incorporated in the Republic of Ireland, with registered number 540406 whose registered office
address is 70 Sir John Rogerson's Quay, Dublin 2;
|
|
"Payment in Full"
|
means the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan
Documents (other than contingent indemnification obligations as to which no claim has been received by the Company) shall have been paid in full in cash;
|
|
"Proceedings"
|
means any proceedings, suits or actions arising out of or in connection with any Disputes or otherwise arising out of or in connection with this Deed (including regarding its
existence, validity or termination);
|
|
"Real Property"
|
means freehold property in England and Wales and any other land or buildings anywhere in the world, any estate or interest therein and any reference to "Real Property" includes a reference to all rights from time to time attached or appurtenant thereto and all buildings and Fixtures from time to time therein or thereon;
|
|
"receiver"
|
includes a manager, a receiver and manager and an "administrative receiver" as defined by Section 251 of the Insolvency Act;
|
|
"Receiver"
|
means a receiver appointed under this Deed or pursuant to any applicable law, and includes more than one such receiver and any substituted receiver but not an administrative
receiver as defined in Section 251 of the Insolvency Act;
|
"Related Rights" means:
|
(a)
|
all dividends, distributions and other income paid or payable on a Investment, together with all shares or other property derived from any Investment and all other allotments,
accretions, rights, benefits and advantages of all kinds accruing, offered or otherwise derived from or incidental to that Investment (whether by way of conversion, redemption, bonus, preference, option or otherwise);
|
|
(b)
|
in relation to any other Charged Assets:
|
|
(i)
|
the proceeds of sale, transfer or other disposition of any part of that asset;
|
|
(ii)
|
all rights under any licence, agreement for sale or agreement for lease in respect of that asset;
|
|
(iii)
|
all rights, process, benefits, claims, causes of action, contracts, warranties, remedies, security, guarantee, indemnities or covenants for title in respect of or derived from
that asset; and/or
|
|
(iv)
|
any income, moneys and proceeds paid or payable in respect of that asset;
|
|
"Relevant Charged Assets"
|
means such part or parts of the Charged Assets in respect of which a Receiver has been appointed;
|
|
"Requirement of Law"
|
means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its property is subject;
|
|
"Secured Obligations"
|
has the meaning given to it in the Loan Agreement but, for the avoidance of doubt, shall also include all legal and other costs, charges and expenses and any other Loss which
the Collateral Agent , any other Secured Party, any Receiver or any Delegate may incur in enforcing or obtaining, or attempting to enforce or obtain, payment of any such moneys and liabilities to the extent such costs, charges,
expenses and other Losses are of the type reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, Etc.) of the Loan Agreement;
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|
"Secured Parties"
|
has the meaning given to it in the Loan Agreement;
|
|
"Security Interest"
|
means any mortgage or sub‑mortgage, standard security, fixed or floating charge or sub‑charge, pledge, lien, assignment or assignation by way of security or subject to a proviso
for redemption, encumbrance, hypothecation, retention of title, or other security interest whatsoever howsoever created or arising and its equivalent or analogue whatever called in any other jurisdiction, and any agreement or
arrangement having substantially the same economic or financial effect as any of the foregoing (including any "hold back" or "flawed asset" arrangement)
and any secured interest, agreement or arrangement analogous to any of the foregoing arising under the laws of any other jurisdiction;
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|
"Taxes"
|
has the meaning given to it in the Loan Agreement and “Tax” and “Taxation” shall be constructed
accordingly;
|
1.2
|
In this Deed, unless otherwise specified:
|
|
(a)
|
references to the neuter or to any gender include both genders and the neuter, references to a "company" shall be construed so as to
include any company, corporation or other body corporate, wherever and however incorporated or established, and references to a "person" include any individual, firm, partnership, body
corporate, unincorporated association, government, state or agency of a state, local or municipal authority or government body, trust, foundation, joint venture or association (in each case whether or not having separate legal
personality);
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|
(b)
|
references to parties, Clauses, sub‑Clauses, paragraphs, sub‑paragraphs and Schedules, Exhibits and Annexures are to Clauses, sub‑Clauses and paragraphs and sub‑paragraphs of,
and the parties and Schedules to, this Deed, and references to this Deed include a reference to each of its Schedules, Exhibits and Annexures;
|
|
(c)
|
a reference to this Deed, an agreement or other document is a reference to this Deed, that agreement or document as supplemented, amended, novated or replaced from time to time
in accordance with its terms, and to any agreement, deed or document executed pursuant thereto;
|
|
(d)
|
the words "include" and "including" are to be construed without limitation, general words
introduced by the word "other" are not to be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things, and
general words are not to be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;
|
|
(e)
|
a reference to a "day" means a period of 24 hours running for midnight to midnight; a reference to a time of day is to London time;
|
|
(f)
|
headings are for convenience only and shall not affect the interpretation of this Deed;
|
|
(g)
|
a reference to the provision of any statute, statutory provision, order, instrument, rule or regulation is to that provision as amended or re‑enacted from time to time, any
provision of which it is a re‑enactment or consolidation and any order, instrument, rule or regulation at any time made or issued under it;
|
|
(h)
|
the word "vary" shall be construed to include amend, modify and supplement, and "variation" and
other cognate terms shall be construed accordingly;
|
|
(i)
|
a reference to a person shall include references to his permitted successors, transferees (including by novation) and assigns and any person deriving title under or through him,
whether in security or otherwise; and any person into which such person may be merged or consolidated, or any company resulting from any merger, conversion or consolidation or any person succeeding to substantially all of the business
of that person; and
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|
(j)
|
a reference to "dollars" or "US$" is to the lawful currency for the time being of the United
States of America;
|
|
(k)
|
a document expressed to be "in the agreed form" means a document in a form which has been agreed by the parties and a copy of which has
been identified as such and initialled by or on behalf of each of the parties; and
|
|
(l)
|
a reference to "rights" includes rights, remedies, benefits, authorities, powers, privileges, discretions, claims, remedies, liberties,
easements, quasi-easements and appurtenances (in each case, of any nature whatsoever whether under this Deed, by statute, at law or in equity) or otherwise howsoever.
|
1.3
|
The undertakings and other obligations of the Company, Collateral Agent or any other person under this Deed shall at all times be read and construed as subject to the provisions
of the Intercreditor Agreement, Loan Agreement and the Guarantee which shall prevail in case of any conflict. Subject to this and to Clause 0 (1.Definitions and
INTERPRETATION), if there is any conflict or inconsistency between the provisions of this Deed and any other Loan Document, the provisions of this Deed shall prevail.
|
1.4
|
The terms of this Deed shall not operate or be construed so as to prohibit or restrict any transaction or matter that is permitted by the Loan Agreement.
|
1.5
|
For the purpose of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, this Deed incorporates all the terms of the Loan Agreement and the other Loan Documents.
|
2.1
|
The Collateral Agent shall hold, and hereby declares that it shall hold, the benefit of the Charges and the benefit of all representations, warranties, covenants and
undertakings under this Deed on trust for the Secured Parties on and subject to the terms of this Deed and the Company hereby acknowledges such trusts.
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2.2
|
In this Deed the Collateral Agent acts under the authority of the Secured Parties contained in Article X (Administrative Agent) of the
Loan Agreement and in accordance with, subject to and with the full benefit of the provisions of such Article X (Administrative Agent).
|
3.
|
INTERCREDITOR AGREEMENT
|
3.1
|
Reference is made to the Intercreditor Agreement. Each Secured Party, of its acceptance of the benefits of this Deed (a) consents to the subordination of security provided for
in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Collateral Agent to enter into the
Intercreditor Agreement as Collateral Agent on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to Borrowers or to acquire any notes or other evidence of any
debt obligation owing from the Borrowers and such Secured Parties are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
|
3.2
|
Notwithstanding any other provision contained herein, this Deed, the security created hereby and the rights, remedies, duties and obligations provided for herein are subject in
all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable LC Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between
the provisions of this Deed and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail.
|
4.
|
ABL DEED OF CHARGE AND ASSIGNMENT
|
4.1
|
All security created under this Deed does not affect the security created by the ABL Deed of Charge and Assignment.
|
4.2
|
Notwithstanding any provision of this Deed, provided that the Company is in compliance with the terms of the ABL Deed of Charge and Assignment (including without limitation, any
obligation to deliver or deposit any deeds, documents of title, certificates, evidence of ownership or other original documentation thereunder) then to the extent that the terms of this Deed impose the same or substantially the same
obligation in respect of such deeds, documents of title, certificates, evidence of ownership or other original documentation, the Company will be deemed to have complied with the relevant obligations under this Deed by virtue of its
compliance under the ABL Deed of Charge and Assignment, provided however that, in the event that the terms of the ABL Deed of Charge and Assignment no longer continue to be in full force and effect or the ABL Deed of Charge and
Assignment is released or discharged (or as otherwise required by the Intercreditor Agreement) the Company shall be required to as soon as reasonably practicable comply with the relevant obligations under this Deed. The Collateral
Agent may retain any document delivered to it under this Deed or otherwise only until such time as the Security Interests created under this Deed are irrevocably released.
|
Subject to any limits on its liability and any grace periods specifically recorded in the Loan Documents,
the Company covenants with the Collateral Agent duly and punctually to pay or discharge all Secured Obligations which may from time to time be or become due, owing, incurred or payable by the Company (whether as principal or surety and
whether or not jointly with another) to or to the order of the Collateral Agent under, pursuant to or in connection with the Loan Agreement and/or this Deed, as applicable, in each case at the times when, and in the currency or currencies and
in the manner in which, they are expressed to be due, owing, incurred or payable herein or therein.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby charges by way of fixed continuing security to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in and to all of its present and future Material Real Property.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby assigns by way of fixed continuing mortgage to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in, to, under and in respect of each of all its present and future Investments.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby charges by way of fixed continuing security to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in, to and in respect of each of the following:
|
(a)
|
all funds from time to time standing to the credit of a Bank Account, together with all entitlements to interest and other Related Rights from time to time accruing to or
arising in connection with sums;
|
|
(b)
|
all present and future Book Debts and all its other present and future negotiable instruments (other than any which are Investments);
|
|
(c)
|
all present and future Equipment and all corresponding Related Rights;
|
|
(d)
|
all present and future Intellectual Property Rights and all corresponding Related Rights;
|
|
(e)
|
all its present and future goodwill, present and future uncalled capital (if any) and the benefit of all present and future licences, consents and authorisations (statutory or
otherwise) held or to be held by it in connection with its business or the use of any Charged Assets (but excluding any licence requiring the licensor's consent to the creation of Security Interests under the Deed if such consent has
not been obtained) and the right to receive all compensation payable in respect thereof (but excluding, in all cases, the Excluded Assets); and
|
|
(f)
|
if not effectively assigned by Clause 0 (6.4
|
Assignment), all its rights, title and interest in (and claims under) the
Assigned Agreements and all corresponding Related Rights.
|
|
(a)
|
Subject to Clause 0 (6.9
|
Excluded Property) below, as further
continuing security for the payment of the Secured Obligations, the Company assigns absolutely with full title guarantee to the Collateral Agent for the benefit of the Secured Parties all its rights, title and interest, both present
and future, from time to time in and to each of the following assets:
|
|
(i)
|
the proceeds of any Insurances and all Related Rights; and
|
|
(ii)
|
the Assigned Agreements and all proceeds and claims arising from them,
|
(together, the “Assigned Assets”) provided that upon the Payment in Full, the Collateral Agent will re-assign the relevant Assigned Assets to the Company (or as it shall direct) without delay and in a manner satisfactory to the Company (acting reasonably).
|
(b)
|
To the extent that any Assigned Asset described in Clause 00 (6.4
|
Assignment) is not assignable, the assignment which that clause purports to
effect shall operate as an assignment of all present and future rights and claims of the Company to any proceeds of such Insurances.
|
The Company hereby charges by way of floating charge and by way of further continuing security to and in
favour of the Collateral Agent for the discharge and payment of the Secured Obligations all its right, title, interest and benefit from time to time, present and future, in, to, under and in respect of all its Assets (including all stock in
trade), including any expressed to be charged by any of the foregoing provisions of this Clause 0 (6.SECURITY). The floating charge created by this Clause 0 (6.5Floating Charge) shall rank behind all the fixed Security Interests created by or pursuant to this Deed to the extent that they are valid and effective as fixed
Security Interests but shall rank in priority to any other Security Interests hereafter created by the Company.
6.6
|
Collection Bank Accounts
|
|
(a)
|
The Company shall maintain the Collection Bank Accounts pursuant to and in accordance with Section 3.01(e) (Letters of Credit) of the
Loan Agreement with the Collection Account Banks.
|
|
(b)
|
The Collateral Agent shall have sole signing rights in relation to each Collection Bank Account.
|
|
(c)
|
Subject to Clause 0 (6.6
|
Collection Bank Accounts) below, the
Collateral Agent and the Company acknowledge and agree that the application of amounts standing to the credit of any Collection Bank Account shall be governed by the terms of the Loan Agreement and the Intercreditor Agreement.
|
|
(d)
|
The Company shall not be entitled to:
|
|
(i)
|
make, or direct the making of, any payments or withdrawals from any Collection Bank Account;
|
|
(ii)
|
direct the Collection Account Banks as regards the operation of any Collection Bank Account (whether as to payments from the Collection Bank Accounts or otherwise howsoever);
and/or
|
|
(iii)
|
close any of its Collection Bank Accounts or agree to any variation of the rights or terms and conditions attaching to any of its Collection Bank Accounts,
|
without the prior written consent of the Collateral Agent (acting in its absolute discretion).
|
(e)
|
The Company shall as soon as reasonably practicable after becoming aware of any change in any identifying details of any of its Collection Bank Accounts (including its account
number and sort code), provide details thereof to the Collateral Agent .
|
|
(f)
|
The Company irrevocably and unconditionally authorises the Collateral Agent , without prior notice, from time to time to debit any Collection Bank Account in accordance with the
terms of the Loan Agreement.
|
|
(g)
|
The Company shall, promptly after execution of this Deed, execute and deliver to the Collateral Agent a Collection Account Notice on the relevant Collection Account Bank and use
reasonable endeavours to procure that such Collection Account Bank signs and delivers to the Collateral Agent an acknowledgement substantially in the form set out in the Collection Account Notice (together with any amendments
requested by the Collection Account Bank which are acceptable to the Collateral Agent (acting reasonably)) on the date of such service.
|
|
(h)
|
On the date of opening or acquiring a Collection Bank Account, serve a Collection Account Notice on the relevant Collection Account Bank and use reasonable endeavours to procure
that such Collection Account Bank signs and delivers to the Collateral Agent an acknowledgement substantially in the form set out in the Collection Account Notice (together with any amendments requested by the Collection Account Bank
which are acceptable to the Collateral Agent (acting reasonably)) on the date of such service.
|
6.7
|
General Bank Accounts
|
Upon (and following) the occurrence of any Enforcement Event the Company shall, upon receipt of notice
from the Collateral Agent , (a) cease to be entitled to make, or direct the making of, any payments or withdrawals from any General Bank Account without the prior written consent of the Collateral Agent and (b) cease to be entitled to direct
the General Account Banks as regards the operation of the Accounts (whether as to payments from the Accounts or otherwise howsoever).
Each mortgage, assignment, charge or other disposition in favour of the Collateral Agent referred to in
the previous provisions of this Clause 0 (6. SECURITY) is made with full title guarantee in accordance with the Law of Property (Miscellaneous
Provisions) Act 1994.
There shall be excluded from the security created by Clause 0 (6. SECURITY) and from the operation of Clause 0 (14. Further Assurances, Power of Attorney, ETC.) any Excluded Asset of the Company.
7.
|
REDEMPTION OF SECURITY
|
7.1
|
Upon Payment in Full, the Collateral Agent , at the request and cost of the Company but without being responsible or liable for any reasonable and documented costs, expenses,
claims or liabilities occasioned by acting upon such request, shall release or discharge the Charged Assets from the Charges and reconvey, reassign or retransfer to or to the order of the Company or any other person entitled thereto
any Charged Assets assigned to the Collateral Agent .
|
7.2
|
Notwithstanding the foregoing, the obligations of the Company under this Deed shall automatically terminate and the Collateral Agent , at the request and cost of the Company but
without being responsible or liable for any reasonable and documented costs, expenses, claims or liabilities occasioned by acting upon such request, shall release or discharge the Charged Assets from the Charges and reconvey, reassign
or retransfer to or to the order of the Company or any other person entitled thereto any Charged Assets assigned to the Collateral Agent , in each case, to the extent provided in and in accordance with Section 11.01(c) (Waiver; Amendments; Joinder; Release of Guarantors; Release of Collateral) and Section 11.23 (Release of Guarantors) of the Loan Agreement.
|
8.
|
REPRESENTATIONS AND WARRANTIES
|
8.1
|
The Company represents and warrants to the Collateral Agent that as of the date of this Deed:
|
|
(a)
|
it is a limited company duly incorporated and existing under the Companies Act 1948 and has the power and authority to own its Assets and to carry on its business and operations
as now conducted;
|
|
(b)
|
it has the power to enter into, and perform and comply with all the obligations expressed to be assumed by it under, this Deed, and to create the Charges;
|
|
(c)
|
all corporate authority and any other actions, conditions and things whatsoever required to be obtained, taken, fulfilled and done (including the obtaining of any necessary
consents) in order to enable the Company lawfully to enter into, and perform and comply with all the obligations expressed to be assumed by it under, this Deed, to ensure that those obligations are valid, legal, binding and
enforceable, to permit the creation of the Charges in accordance with this Deed except, in each case (i) as may be limited by bankruptcy, insolvency, examinership, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a
proceeding in equity or at law) and (ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy;
|
|
(d)
|
the obligations of the Company under this Deed and (subject to all necessary registrations thereof being made) the Charges are valid, legal, binding and enforceable and, in the
case of the Charges, have first priority and ranking except, in each case (i) as may be limited by bankruptcy, insolvency, examinership, reorganization, moratorium or other similar laws relating to or affecting the enforcement of
creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a proceeding in equity or at law) and (ii) as to the enforceability
of provisions for indemnification and the limitations thereon arising as a matter of law or public policy;
|
|
(e)
|
its entry into, and performance of and compliance with the obligations expressed to be assumed by it under this Deed, and the creation of the Charges under this Deed, do not and
will not (i) breach or violate any applicable Requirement of Law, (ii) result in any breach or violation of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien
prohibited under the Loan Agreement upon any of its property or assets pursuant to the terms of any indenture, agreement or other instrument to which it is party or by which any of its property or assets are bound or to which it is
subject, except for breaches, violations and defaults that would not have a Material Adverse Effect, or (iii) violate any provision of its organisational documents or by-laws;
|
|
(f)
|
(save to the extent disclosed to the Collateral Agent in writing prior to the date of this Deed) it has good and valid rights in or the power to transfer the Assets expressed to
be mortgaged, assigned or charged by it under this Deed;
|
|
(g)
|
no Security Interest (other than the Charges) or claim exists on, over or in respect of any of the Assets, except those claims permitted by the Loan Agreement;
|
|
(h)
|
(save to the extent disclosed to the Collateral Agent in writing prior to the date of this Deed) it has not disposed of or sold or granted any lease, tenancy, option or
pre‑emption right over or in respect of, any part of its right, title or interest in, to or in respect of any of the Charged Assets, and it has not agreed to do any of the foregoing, except, in each case, as permitted by the Loan
Agreement; and
|
|
(i)
|
the Company's Centre of Main Interests is in the UK.
|
9.
|
COVENANTS RELATING TO ASSETS – PERFECTION, RESTRICTIONS ON DEALINGS, PROTECTION
|
Without prejudice to Clause 0 (14. Further Assurances, Power of
Attorney, ETC.) the Company shall, as soon as reasonably practicable, after execution of this Deed (and in any event within 15 Business Days after execution of this Deed or such later date
as may be agreed to by the Collateral Agent in its sole discretion) or, if later, promptly upon receipt by it or on its behalf or for its account (and in any event within 15 Business Days after such receipt or such later date as may be
agreed to by the Collateral Agent in its sole discretion), by way of security for the Secured Obligations deliver to the Collateral Agent (or any person nominated by the Collateral Agent to hold the same on its behalf including any
solicitors) all certificates representing Mortgaged Investments and documents of title, certificates and other documents certificating or evidencing ownership of or otherwise relating to the Mortgaged Investments including transfers of
Investments executed in blank.
|
(a)
|
The Company may only create, incur, assume or permit to exist a Security Interest on any Charged Asset if it is permitted by Section 8.04 (Liens)
of the Loan Agreement.
|
|
(b)
|
The Company may only Dispose of any Charged Asset if it is permitted by Section 8.05 (Asset Dispositions) of the Loan Agreement.
|
9.3
|
Assets and Charges Generally
|
The Company shall:
|
(a)
|
make all filings and registrations necessary for the creation, perfection, preservation, protection or maintenance of the Charges except to the extent that the Company is
expressly permitted by the Loan Agreement or this Deed not to do so;
|
|
(b)
|
use commercially reasonable endeavours to obtain, in form and substance satisfactory to the Collateral Agent (acting reasonably), as soon as practicable and in any event within
45 days of the date of this Deed or, after the date of this Deed, within 45 days of the date of acquisition of any Asset (or, in any such case, such later date as may be agreed to by the Collateral Agent in its sole discretion), any
consents necessary to enable all the Assets of the Company to be subject to effective Security Interests pursuant to Clause 0 (6.SECURITY) and the Asset
concerned shall immediately upon obtaining any such consent become subject to the fixed Charge under Clause 0 (6.3Fixed Charges);
|
|
(c)
|
maintain or keep or cause to be kept all of the Charged Assets in good and substantial repair and, where applicable, good working order (wear and tear excepted) so that its
business carried on in connection therewith may be conducted in the ordinary course, consistent with past practices, except in each case where the failure to do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; and
|
|
(d)
|
in addition and without prejudice to any other provision of this Deed, not do or suffer to be done anything which could materially prejudice the effectiveness of any of the
Charges or their priority under this Deed except as permitted by the Loan Agreement or this Deed.
|
In addition and without prejudice to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), the Company hereby irrevocably:
|
(a)
|
consents to the registration of a restriction in the Proprietorship Register relating to the title number or numbers under which the whole or any part of the Legally Mortgaged
Property is registered at HM Land Registry in the following terms:
|
• "except under
an order of the Registrar no disposition or other dealing by the proprietor of the land is to be registered or noted without the written consent of the proprietor for the time being of the charge dated [ * * ] between [ * * ] (1) and [ * *
] (2)";
|
(b)
|
consents (in the case of any Real Property forming part of the Charged Assets title to which is registered or registrable at HM Land Registry but which does not form part of the
Legally Mortgaged Property) to the registration of an agreed notice by the Collateral Agent against the title or titles under which such Real Property is registered; and
|
|
(c)
|
authorises the Collateral Agent and/or any solicitors or other agent acting on behalf of the Collateral Agent to complete, execute on the Company's behalf and deliver to H. M.
Land Registry any form (including Land Registry form RX1 and AN1), document or other information requested by H. M. Land Registry with regard to either or both of the above.
|
9.5
|
General Bank Accounts
|
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.) the Company shall:
|
(a)
|
promptly after execution of this Deed (or, if later, within 45 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion) of the opening of a
new bank account), execute and deliver to the Collateral Agent notices, substantially in the form set out in Part 1 of Schedule 4 (Form of Notice of Charge for General Bank Accounts ) or such
other form as the Collateral Agent may reasonably require;
|
|
(b)
|
use its reasonable endeavours to procure that each relevant bank, with whom a General Bank Account is maintained, delivers to the Collateral Agent an acknowledgement in writing
substantially in the form attached to such notice provided that if the Company has not been able to obtain such countersignature and acknowledgement, any obligation to comply with this Clause 00 (9.5General
Bank Accounts) shall cease after 180 days of the service of the relevant notice; and
|
|
(c)
|
save with the prior written consent of the Collateral Agent or as may be permitted under the Loan Agreement, the Company shall not assign or otherwise dispose of any rights,
title or interest in any General Bank Account (and no right, title or interest in relation to any such account or credit balance maintained with the Collateral Agent shall be capable of assignment or disposal).
|
|
(a)
|
The Company will, promptly after execution of this Deed (or, if later, within 45 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion) of
the Company obtaining new Insurance Policy), execute and deliver to the Collateral Agent (or procure delivery of) a notice of assignment substantially in the form set out in Schedule 6 (Form of Notice
of Charge of Insurance Policies), in respect of each Insurance Policy detailed at Schedule 3 (Insurance Policies).
|
|
(b)
|
In each case, the Company shall use reasonable endeavours to procure that such insurer signs and delivers to the Collateral Agent an acknowledgement substantially in the form
set out in Schedule 6 (Form of Notice of Charge of Insurance Policies) within twenty Business Days of such service provided that, if the relevant
Company has not been able to obtain such acknowledgment from the relevant insurer any obligation to comply with this Clause shall cease twenty Business Days following the date of service of the relevant Notice of Assignment.
|
The Company will, promptly after execution of this Deed (or, if later, within 45 days (or such later date
as may be agreed to by the Collateral Agent in its sole discretion) of receipt by the Company of an executed copy of any Assigned Agreement) deliver to the Collateral Agent an executed but undated counterparty notice, in the form set out in
Schedule 5 (Form of Notice of Charge of Assigned Agreements) and hereby irrevocably authorises the Collateral Agent to serve each such notice of Assigned Agreement on the relevant counterparty upon the
occurrence of an Enforcement Event which is continuing.
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), at any time after an Enforcement Event occurs the Company shall deliver to the Collateral Agent promptly on reasonable
request such documents relating to such of the Book Debts as the Collateral Agent may reasonably specify.
9.9
|
Mortgaged Investments
|
|
(a)
|
Without prejudice and in addition to the other provisions of this Clause 0 (9.Covenants relating to
Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14.Further Assurances, Power of
Attorney, ETC.), the Company shall deposit with the Collateral Agent :
|
|
(i)
|
transfers of the Mortgaged Investments (or declarations of trust in respect of any Mortgaged Investments not in the Company's sole name) in each case duly completed and executed
by the Company or its nominee with the name of the transferee, date and consideration left blank or, if the Collateral Agent so reasonably requires, duly executed by the Company or its nominee in favour of the Collateral Agent (or the
Collateral Agent 's nominee) and stamped, and such other documents as the Collateral Agent may reasonably require to enable the Collateral Agent (or the Collateral Agent 's nominee) or, after the occurrence and continuance of an Event
of Default, any purchaser, to be registered as the owner of, or otherwise obtain legal title to, the Mortgaged Investments; and
|
|
(ii)
|
in respect of any Mortgaged Investment not held in the Company's name, within 30 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion)
after execution of this Deed or if later promptly after it becomes entitled to the relevant Mortgaged Investment, use commercially reasonable endeavours to request an irrevocable power of attorney, expressed to be by way of security
and executed and delivered as a deed by the relevant nominee, appointing the Collateral Agent each Receiver and any Delegate the attorney of the holder, in such form as the Collateral Agent may reasonably require.
|
|
(b)
|
Prior to such time as the Collateral Agent has, following the occurrence and during the continuation of an Enforcement Event:
|
|
(i)
|
notified the Company in writing that it has elected to exercise voting and other rights relating to the Charged Assets in accordance with the terms of this Deed, all voting and
other rights relating to the Mortgaged Investments may be exercised (or not exercised) by the Company as it directs provided that it shall not exercise any such voting rights in a manner which would diminish the effectiveness or
enforceability of the Charges created under this Deed in any material respect or restrict the transferability of the Charged Assets by the Collateral Agent or any Receiver; and
|
|
(ii)
|
notified the Company in writing that it has elected to collect any dividends, distributions and other monies in accordance with the terms of this Deed, the Company shall be
entitled to receive and retain such dividends, distributions and other monies paid on or derived from its Mortgaged Investments.
|
|
(c)
|
Following an Enforcement Event:
|
|
(i)
|
the Collateral Agent or, as the case may be, any Receiver shall, upon written notice to the Company, be entitled to exercise or direct the exercise of or refrain from such
exercise all voting and other rights now or at any time relating to the Mortgaged Investments as it or he reasonably sees fit;
|
|
(ii)
|
after receipt by the Company of written notice pursuant to Clause 0, the Company shall comply or procure the compliance with any reasonable direction of the Collateral Agent or,
as the case may be, any Receiver in respect of the exercise of such rights and shall deliver to the Collateral Agent or, as the case may be, any Receiver such forms of proxy or other appropriate forms of authorisation the Collateral
Agent or, as the case may be, any Receiver may reasonably require with a view to enabling that person or its nominee to exercise such rights; and
|
|
(iii)
|
the Collateral Agent shall, upon written notice to the Company, be entitled to receive and retain all dividends, interest and other distributions paid in respect of the
Mortgaged Investments and apply the same as provided by Clause 0 (18.Application of MONEYS).
|
|
(d)
|
This Clause 0 (9.7
|
Assigned Agreements) shall not apply to
those Mortgaged Investments which are held by the Company by way of temporary investments and which the Collateral Agent has agreed in writing shall not be subject to this Clause 0 (9.7 Assigned Agreements).
|
9.10
|
Intellectual Property Rights
|
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), the Company shall:
|
(a)
|
promptly on the reasonable request by the Collateral Agent , execute and do all acts, things and documents as the Collateral Agent may reasonably require to record the
Collateral Agent 's interest in any registers relating to any of the Intellectual Property Rights; and
|
|
(b)
|
not, save with the prior written consent of the Collateral Agent or as may be permitted pursuant to the terms of the Loan Agreement, grant any registered user agreement or
licence or other right in relation to any such Intellectual Property Rights or permit the use of such Intellectual Property Rights by any person.
|
|
(a)
|
at any time after an Enforcement Event, promptly give to the Collateral Agent such information and evidence (and in such form) as the Collateral Agent may from time to time
reasonably request for the purpose of or with a view to discharging the duties and rights vested in it under and in accordance with this Deed or by operation of law; and
|
|
(b)
|
not have its Centre of Main Interests situated, or permit its Centre of Main Interests to be situated, outside the UK.
|
11.
|
CRYSTALLISATION OF FLOATING CHARGE
|
11.1
|
In addition and without prejudice to any other event resulting in crystallisation of the floating charge, but subject to any prohibition or restriction imposed by law, if at any
time:
|
|
(a)
|
an Event of Default occurs and is continuing; or
|
|
(b)
|
the Collateral Agent (acting reasonably) considers that any of the Floating Charged Assets, which is material to the context of the business as a whole, are in danger of being
seized or is otherwise in jeopardy,
|
the Collateral Agent may by notice in writing to the Company convert the floating charge created by
Clause 0 (6.5 Floating Charge) into a fixed charge as regards any Floating Charge Assets as may be specified in that
notice (and for the avoidance of doubt, in the case of paragraph (b) above, only to the extent that paragraph (b) applies to such Floating Charge Asset).
11.2
|
In addition and without prejudice to any law or other event resulting in crystallisation of the floating charge, but subject to any prohibition or restriction imposed by law,
the floating charge created by Clause 0 (6.5Floating Charge) shall without notice automatically be converted
into a fixed charge over:
|
|
(a)
|
any Floating Charge Assets which become subject or continue to be subject to any Security Interest in favour of any person other than the Collateral Agent or which is/are the
subject of any sale, transfer or other disposition, in either case contrary to the covenants contained in this Deed or any of the other Loan Documents, immediately prior to such actual or purported Security Interest arising or such
actual or purported sale, transfer or other disposition being made; or
|
|
(b)
|
any Floating Charge Assets affected by any attachment, distress, execution or other legal process against such Floating Charge Asset, immediately prior to such distress,
attachment, execution or other legal process.
|
12.1
|
The security constituted by this Deed shall, subject to any prohibition or restriction imposed by law, become enforceable upon and at any time after an Event of Default occurs
and is continuing (an "Enforcement Event").
|
12.2
|
At any time after an Enforcement Event, the Collateral Agent may (but shall not be obliged to) enforce all or any part of the Charges at such time, on such terms and in such
manner as it thinks fit, and take possession of, hold or dispose of all or any part of the Charged Assets, and may (whether or not it has taken possession or appointed a Receiver or Administrator) exercise any rights conferred by the
Law of Property Act (as varied or extended by this Deed) on mortgagees or by this Deed or otherwise conferred by law on mortgagees.
|
12.3
|
Without prejudice to the generality of the foregoing, at any time after an Enforcement Event, the Collateral Agent may (but shall not be obliged to) by notice to the company in
writing appropriate all or any part of the Charged Assets which constitute financial collateral. If the Collateral Agent exercises such power of appropriation:
|
|
(a)
|
it shall determine the value of any Charged Asset appropriated which consists of a financial instrument or a Credit Claim as at the time of exercise of that power as the current
value of the cash payment which it determines would be received on a sale or other disposal of such Charged Asset effected for payment as soon as reasonably possible after such time. Any such determination shall be made by the
Collateral Agent in a commercially reasonable manner (including by way of an independent valuation); and
|
|
(b)
|
any Charged Asset appropriated which constitutes cash and which is not denominated in dollars shall be valued as if it were converted to dollars at the rate certified by the
Collateral Agent to be the spot rate of exchange for the purchase of dollars with the currency of such cash as soon as practicable after the appropriation thereof.
|
12.4
|
The exercise by the Collateral Agent of its right of appropriation under Clause 0 (12.ENFORCEMENT)
of any part of the Charged Assets shall not prejudice or affect any of the Collateral Agent 's rights and remedies in respect of the remainder of the Charged Assets for any Secured Obligations which remain to be paid or discharged.
|
13.
|
CONTINUING SECURITY, OTHER SECURITY ETC.
|
13.1
|
Subject to Clauses 0 (7.
|
Redemption of SECURITY) and 0 (7.
|
Redemption of SECURITY), the Charges,
covenants, undertakings and provisions contained in or granted pursuant to this Deed shall remain in full force and effect as a continuing security to the Collateral Agent for the Secured Obligations and shall not be satisfied,
discharged or affected by any intermediate payment or settlement of account of all or part of the Secured Obligations (whether any Secured Obligations remain outstanding thereafter) or any other act, event, matter, or thing
whatsoever.
|
13.2
|
The Charges are cumulative, in addition to and independent of, and shall neither be merged with nor prejudiced by nor in any way exclude or prejudice, any other Security
Interest, guarantee, indemnity, right of recourse or any other right whatsoever which the Collateral Agent may now or hereafter hold or have (or would apart from this Deed or the Charges hold or have) from the Company or any other
person in respect of any of the Secured Obligations.
|
13.3
|
The restriction on consolidation of mortgages contained in section 93 of the Law of Property Act shall not apply in relation to the Charges.
|
13.4
|
If the Collateral Agent receives or is deemed to be affected by notice (actual or constructive) of any Security Interest over any Charged Asset or if an Insolvency Event occurs
in relation to the Company:
|
|
(a)
|
the Collateral Agent may open a new account or accounts with or on behalf of the Company (whether or not it allows any existing account to continue) and, if it does not, it
shall nevertheless be deemed to have done so at the time it received or was deemed to have received such notice or at the time that the Insolvency Event occurred; and
|
|
(b)
|
all payments made by the Company to the Collateral Agent after the Collateral Agent received or is deemed to have received such notice or after such Insolvency Event occurred
shall be credited or deemed to have been credited to the new account or accounts, and in no circumstances whatsoever shall operate to reduce the Secured Obligations as at the time the Collateral Agent received or was deemed to have
received such notice or as at the time that such Insolvency Event occurred.
|
13.5
|
This Deed shall remain valid and enforceable notwithstanding any change in the name, composition or constitution of the Collateral Agent or the Company or any amalgamation or
consolidation by the Collateral Agent or the Company with any other corporation.
|
14.
|
FURTHER ASSURANCES, POWER OF ATTORNEY, ETC.
|
14.1
|
The Company shall, at its own cost, promptly take whatever action the Collateral Agent or any Receiver may reasonably require with a view to:
|
|
(a)
|
creating, preserving, perfecting or protecting any of the Charges or the first priority of any of the Charges;
|
|
(b)
|
facilitating the enforcement of the Security created under this Deed or the exercise of any rights vested in the Collateral Agent or any Receiver in connection with this Deed;
or
|
|
(c)
|
providing more effectively to the Collateral Agent the full benefit of the rights conferred on it by this Deed and otherwise giving full effect to the provisions of this Deed,
|
including, without limitation, executing such assignments, transfers and conveyances of the Charged
Assets (whether in favour of the Collateral Agent , any Secured Party or otherwise), giving such notices and making such filings and registrations as the Collateral Agent or any Receiver shall reasonably require, in each case in such form and
on such terms as the Collateral Agent or Receiver shall reasonably specify.
14.2
|
The Company irrevocably and by way of security appoints the Collateral Agent and every Receiver jointly and also severally to be its attorney (with full power to appoint
substitutes and to sub‑delegate, including power to authorise the person so appointed to make further appointments) on behalf of the Company and in its name or otherwise, and in such manner as the attorney may think fit, after the
occurrence of an Enforcement Event, to execute, deliver, perfect and do any deed, document, act or thing (a) which the Collateral Agent or such Receiver (or any such substitute or sub‑delegate) may, reasonably consider appropriate in
connection with the exercise of any of the rights of the Collateral Agent or such Receiver, or (b) which the Company is obliged to execute or do under this Deed but has not executed or done in a timely manner (including the execution
and delivery of mortgages, assignments, transfers or charges or notices or directions in relation to any of the Charged Assets). Without prejudice to the generality of its right to appoint substitutes and to sub‑delegate, the
Collateral Agent may appoint the Receiver as its substitute or sub‑delegate, and any person appointed the substitute or sub‑delegate of the Collateral Agent shall, in connection with the exercise of such power of attorney, be the
agent of the Company. The Company acknowledges that such power of attorney is as regards the Collateral Agent and any Receiver granted irrevocably and for value to secure proprietary interests in and the performance of obligations
owed to the respective donees within the meaning of the Powers of Attorney Act 1971.
|
14.3
|
The Company hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney shall do or purport to do in the exercise or purported exercise of all or
any of the rights referred to in this Clause 0 (14.Further Assurances, Power of Attorney, ETC.) (save where any
such attorney acts with gross negligence or wilful misconduct or otherwise exceeds its rights under this Clause 0 (14.Further Assurances, Power of Attorney, ETC.)).
|
14.4
|
References in Clause 0 (14.
|
Further Assurances, Power of Attorney, ETC.)
and Clause 0 (14. Further Assurances, Power of Attorney, ETC.) to the Collateral Agent or the
Receiver shall include references to any Delegate.
|
15.
|
THE COLLATERAL AGENT'S RIGHTS
|
15.1
|
The Secured Obligations shall become due for the purposes of section 101 of the Law of Property Act, and the statutory powers of sale and enforcement and of appointing a
Receiver which are conferred on the Collateral Agent under that Act (as varied and extended by this Deed) and all other rights of a mortgagee conferred by the Law of Property Act shall be deemed to arise, immediately after execution
of and in accordance with this Deed.
|
15.2
|
Section 103 of the Law of Property Act shall not apply to this Deed and upon the occurrence of an Enforcement Event the Charges shall become immediately enforceable and the
rights conferred by the Law of Property Act and this Deed immediately exercisable by the Collateral Agent without the restrictions contained in the Law of Property Act.
|
15.3
|
At any time after an Enforcement Event occurs, the Collateral Agent shall, in addition to the powers of leasing and accepting surrenders of leases conferred by section 99 and
100 of the Law of Property Act, have power to make any lease or agreement to lease at a premium or otherwise, accept surrenders of leases and grant options, in each case on any terms and in any manner the Collateral Agent thinks fit
without needing to comply with any restrictions imposed by such sections or otherwise.
|
15.4
|
In making any sale or other disposal of any Charged Assets or making any acquisition in exercise of their respective rights, the Collateral Agent or any Receiver may do so for
such consideration (including cash, shares, debentures, loan capital or other securities whatsoever, consideration fluctuating according to or dependent on profit or turnover, and consideration whose amount is to be determined by a
third party, and whether such consideration is receivable in a lump sum or by instalments) and otherwise on such terms and conditions and in such manner as it or he reasonably thinks fit, and may also grant any option to purchase and
effect exchanges.
|
15.5
|
The Collateral Agent may at any time delegate to any person either generally or specifically, on such terms and conditions (including power to sub‑delegate) and in such manner
as the Collateral Agent reasonably thinks fit, any rights (including the power of attorney) from time to time exercisable by the Collateral Agent under or in connection with this Deed. No such delegation shall preclude the subsequent
exercise by the Collateral Agent of such right or any subsequent delegation or revocation thereof.
|
15.6
|
The Collateral Agent may, at any time and from time to time and without prejudice to the Collateral Agent 's other rights, set off any Secured Obligations (to the extent
beneficially owned by the Collateral Agent) against any obligation or liability (matured or not and whether actual or contingent) owing by the Collateral Agent to, or any amount and sum held or received or receivable by it on behalf
or to the order of, the Company or to which the Company is beneficially entitled (such rights extending to the set off or transfer of all or any part of any credit balance on any such account, whether or not then due and whatever the
place of payment or booking branch, in or towards satisfaction of any Secured Obligations) to the extent permitted under both the Loan Agreement and any applicable Requirements of Law. For that purpose, if any of the Secured
Obligations is in a different currency from such obligation, liability, amount or sum (including credit balance), the Collateral Agent may effect any necessary conversion at its then prevailing spot rates of exchange (as conclusively
determined by the Collateral Agent) and may pay out any additional sum which the UK or any other governmental or regulatory body of any jurisdiction may require, as a matter of law, the Collateral Agent to pay in respect of such
conversion. The Collateral Agent may in its absolute discretion (in good faith) estimate the amount of any liability of the Company which is unascertained or contingent and set off such estimated amount, and no amount shall be payable
by the Collateral Agent to the Company unless and until Payment in Full. The Collateral Agent shall not be obliged to exercise any of its rights under this Clause, which shall be without prejudice and in addition to any rights of
set‑off, combination of accounts, bankers' lien or other right to which it is at any time otherwise entitled (whether by operation of law, contract or otherwise).
|
15.7
|
Until Payment in Full, the Collateral Agent or the Receiver (as appropriate) may at any time credit to and retain in an interest bearing suspense account, for such period as it
reasonably thinks fit, any moneys received, recovered or realised pursuant to this Deed, without any obligation to apply all or any part of the same in or towards the discharge of the Secured Obligations.
|
15.8
|
If, after the occurrence of an Enforcement Event, the Company for any reason fails to observe or punctually to perform or to procure the observance or punctual performance of
any of the obligations expressed to be assumed by it to the Collateral Agent under this Deed, the Collateral Agent shall have the right (but shall not be obliged), on behalf of or in the name of the Company or otherwise, to perform
the obligation and to take any steps which the Collateral Agent may reasonably consider appropriate with a view to remedying, or mitigating the consequences of, the failure, but the exercise of this right, or the failure to exercise
it, shall in no circumstances prejudice the Collateral Agent 's rights under this Deed or otherwise or constitute the Collateral Agent a mortgagee in possession.
|
16.
|
APPOINTMENT OF ADMINISTRATOR
|
16.1
|
Paragraph 14 of Schedule B1 to the Insolvency Act applies to the floating charge created hereunder.
|
16.2
|
Subject to any relevant provisions of the Insolvency Act, the Collateral Agent may, by any instrument or deed of appointment, appoint one or more persons to be the Administrator
of the Company at any time after:
|
|
(a)
|
the occurrence of an Enforcement Event; or
|
|
(b)
|
being requested to do so by the Company; or
|
|
(c)
|
any application having been made to the court for an administration order under the Insolvency Act; or
|
|
(d)
|
any person having ceased to be an Administrator as a result of any event specified in paragraph 90 of Schedule B1 to the Insolvency Act; or
|
|
(e)
|
any notice of intention to appoint an Administrator having been given by any person or persons entitled to make such appointment under the Insolvency Act.
|
16.3
|
Where any such appointment is made at a time when an Administrator continues in office, the Administrator shall act either jointly or concurrently with the Administrator
previously appointed hereunder, as the appointment specifies.
|
16.4
|
Subject to any applicable order of the Court, the Collateral Agent may replace any Administrator, or seek an order replacing the Administrator, in any manner allowed by the
Insolvency Act.
|
16.5
|
Where the Administrator was appointed by the Collateral Agent under paragraph 14 of Schedule B1 to the Insolvency Act, the Collateral Agent may, by notice in writing to the
Company, replace the Administrator in accordance with paragraph 92 of Schedule B1 to the Insolvency Act.
|
16.6
|
Every such appointment shall take effect at the time and in the manner specified by the Insolvency Act.
|
16.7
|
If at any time and by virtue of any such appointment(s) any two or more persons shall hold office as Administrators of the same assets or income, such Administrators may act
jointly or concurrently as the appointment specifies so that, if appointed to act concurrently, each one of such Administrators shall be entitled (unless the contrary shall be stated in any of the deed(s) or other instrument(s)
appointing them) to exercise all the functions conferred on an Administrator by the Insolvency Act.
|
16.8
|
Every such instrument, notice or deed of appointment, and every delegation or appointment by the Collateral Agent in the exercise of any right to delegate its powers herein
contained, may be made in writing under the hand of any manager or officer of the Collateral Agent or any other authorised person or of any Delegate.
|
16.9
|
Every Administrator shall have all the powers of an administrator under the Insolvency Act.
|
16.10
|
In exercising his functions hereunder and under the Insolvency Act, the Administrator acts as agent of the Company and does not act as agent of the Collateral Agent .
|
16.11
|
Every Administrator shall be entitled to remuneration for his services in the manner fixed by or pursuant to the Insolvency Act or the Insolvency Rules.
|
17.1
|
None of the restrictions imposed by the Law of Property Act in relation to the appointment of receivers or the giving of notice or otherwise shall apply. At any time and from
time to time upon or after request by the Company or the occurrence of an Enforcement Event, the Collateral Agent may, and in addition to all statutory and other powers of appointment or otherwise, by any instrument or deed signed
under the hand of any manager or officer of the Collateral Agent or any other authorised person or of any Delegate, appoint such person or persons (including an officer or officers of the Collateral Agent) as it reasonably thinks fit
to be Receiver or Receivers (to act jointly and/or severally as the Collateral Agent may specify in the appointment) of (a) any Fixed Charge Asset or Assets, and/or (b) any Floating Charge Asset or Assets, so that each one of such
Receivers shall be entitled (unless the contrary shall be stated in any deed(s) or other instrument(s) appointing them) to exercise individually all the powers and discretions conferred on the Receivers. If any Receiver is appointed
of only part of the Charged Assets, references to the rights conferred on a Receiver by any provision of this Deed shall be construed as references to that part of the Charged Assets or any part thereof.
|
17.2
|
The Collateral Agent may appoint any Receiver on any terms the Collateral Agent reasonably thinks fit. The Collateral Agent may by any instrument or deed signed under the hand
of any manager or officer of the Collateral Agent or any other authorised person or any Delegate (subject to section 62 of the Insolvency Act) remove a Receiver appointed by it whether or not appointing another in his place, and may
also appoint another Receiver to act with any other Receiver or to replace any Receiver who resigns, retires or otherwise ceases to hold office.
|
17.3
|
The exclusion of any part of the Charged Assets from the appointment of any Receiver shall not preclude the Collateral Agent from subsequently extending his appointment (or that
of the Receiver replacing him) to that part or appointing another Receiver over any other part of the Charged Assets.
|
17.4
|
Any Receiver shall, so far as the law permits, be the agent of the Company and (subject to any restriction or limitation imposed by applicable law) the Company shall be solely
responsible for his remuneration and his acts, omissions or defaults and solely liable on any contracts or engagements made, entered into or adopted by him and any losses, liabilities, costs, charges and expenses incurred by him; and
in no circumstances whatsoever shall the Collateral Agent be in any way responsible for or incur any liability in connection with any Receiver's acts, omissions, defaults, contracts, engagements, Losses, liabilities, costs, charges,
expenses, misconduct, negligence or default, save, in each case, in circumstances where the liability arises as a direct result of the Receiver’s gross negligence or wilful misconduct. If a liquidator of the Company is appointed, the
Receiver shall act as principal and not as agent for the Collateral Agent .
|
17.5
|
Subject to section 36 of the Insolvency Act, the remuneration of any Receiver may be fixed by the Collateral Agent without being limited to the maximum rate specified by
sections 109(6) of the Law of Property Act (and may be or include a commission calculated by reference to the gross amount of all money received or otherwise and may include remuneration in connection with claims, actions or
Proceedings made or brought against the Receiver by the Company or any other person or the performance or discharge of any obligation imposed upon him by statute or otherwise), but such remuneration shall be payable by the Company
alone; and the amount of such remuneration may be debited by the Collateral Agent from any account of the Company but shall, in any event, form part of the Secured Obligations and accordingly be secured on the Charged Assets under the
Charges. Such remuneration shall be paid on such terms and in such manner as the Collateral Agent and Receiver may from time to time reasonably agree or failing such agreement as the Collateral Agent reasonably determines.
|
17.6
|
Any Receiver may be invested by the Collateral Agent with such of the powers, authorities and discretions exercisable by the Collateral Agent under this Deed as the Collateral
Agent may reasonably think fit. Without prejudice to the generality of the foregoing, any Receiver shall (subject to any restrictions in his appointment) have in relation to the Relevant Charged Assets, in each case in the Company's
name or his own name and on such terms and in such manner as he sees fit, all the rights referred to in Schedule 1 (and where applicable Schedule 2) of the Insolvency Act; all rights of the Collateral Agent under this Deed; all the
rights conferred by the Law of Property Act on mortgagors, mortgagees in possession and receivers appointed under the Law of Property Act; all rights of an absolute beneficial owner including rights to do or omit to do anything the
Company itself could do or omit; and all rights to do all things the Receiver considers necessary, desirable or incidental to any of his rights or exercise thereof including the realisation of any Relevant Charged Assets and getting
in of any Assets which would when got in be Relevant Charged Assets.
|
17.7
|
The Collateral Agent shall not (save only to the extent caused by its own negligence, fraud, wilful misconduct, breach of trust or breach of any obligation of the Collateral
Agent hereunder) be liable for any losses or damages arising from any exercise of his authorities, powers or discretions by any Receiver.
|
17.8
|
The Collateral Agent may from time to time and at any time require any Receiver to give security for the due performance of his duties as such Receiver and may fix the nature
and amount of the security to be so given but the Collateral Agent shall not be bound in any case to require any such security.
|
18.
|
APPLICATION OF MONEYS
|
All moneys realised, received or recovered by the Collateral Agent or any Receiver shall be applied in
accordance with the terms of the Loan Agreement.
19.
|
PROTECTION OF THIRD PARTIES
|
19.1
|
Without prejudice to any other provision of this Deed, the Secured Obligations shall become due for the purposes of section 101 of the Law of Property Act, and the statutory
powers of sale and enforcement and of appointing a Receiver which are conferred upon the Collateral Agent (as varied and extended by this Deed) and all other rights of a mortgagee conferred by the Law of Property Act shall in favour
of any purchaser be deemed to arise and be exercisable, immediately after the execution of and in accordance with this Deed.
|
19.2
|
No purchaser from, or other person dealing with, the Collateral Agent , any Receiver or any Delegate shall be concerned to enquire whether any event has happened upon which any
of the rights which they have exercised or purported to exercise under or in connection with this Deed, the Law of Property Act or the Insolvency Act has arisen or become exercisable, whether the Secured Obligations remain
outstanding, whether any event has happened to authorise the Collateral Agent , any Receiver or any Delegate to act, or whether the Receiver is authorised to act, whether any consents, regulations, restrictions or directions relating
to such rights have been obtained or complied with, or otherwise as to the propriety, regularity or validity of the exercise or purported exercise of any such right or as to the application of any moneys borrowed or raised or other
realisation proceeds; and the title and position of a purchaser or such person shall not be impeachable by reference to any of those matters and the protections contained in sections 104 to 107 of the Law of Property Act, section
42(3) Insolvency Act or any other legislation from time to time in force shall apply to any person purchasing from or dealing with a Receiver, the Collateral Agent or any Delegate.
|
19.3
|
The receipt of the Collateral Agent or the Receiver or any Delegate shall be an absolute and conclusive discharge to a purchaser or such person and shall relieve him of any
obligation to see to the application of any moneys paid to or by the direction of the Collateral Agent or the Receiver.
|
19.4
|
In Clauses 0 (19.
|
Protection of Third PARTIES) to 0 (19.
|
Protection of Third PARTIES) above,
"purchaser" includes any person acquiring a lease of or Security Interest over, or any other interest or right whatsoever in respect of, any Charged Assets.
|
20.
|
PROTECTION OF COLLATERAL AGENT AND RECEIVER
|
20.1
|
In no circumstances (whether by reason of the creation of the Charges or the entry into or taking possession of any Charged Assets or for any other reason whatsoever and whether
as mortgagee in possession or on any basis whatsoever) shall the Collateral Agent or any Receiver:
|
|
(a)
|
be liable to the Company or any other person in respect of any cost, charge, expense, liability, Loss or damage arising out of the exercise, or attempted or purported exercise
of, or the failure to exercise, any of their respective rights in accordance with this Deed, or arising out of the realisation of any Charged Assets or the manner thereof or arising out of any act, default, omission or misconduct of
the Collateral Agent or any Receiver in relation to the Charged Assets or otherwise in connection with this Deed, save only to the extent such cost, charge, expense, liability, Loss or damage has been found by a final non‑appealable
judgment of a court of competent jurisdiction to have been incurred by reason of its or his own gross negligence, wilful misconduct or unlawful conduct; or
|
|
(b)
|
be liable to account to the Company or any other person for anything in connection with this Deed except (after Payment in Full) the Collateral Agent 's or Receiver's own actual
receipts which have not been paid or distributed to the Company or to any other person who at the time of payment the Collateral Agent or Receiver as the case may be was entitled thereto.
|
For the avoidance of doubt, neither the Collateral Agent nor any Receiver shall by virtue of this
Clause 0 (20. Protection of Collateral Agent and RECEIVER) owe any duty of care or other duty to any person
which it would not owe absent this Clause 0 (20. Protection of Collateral Agent and RECEIVER).
20.2
|
Without prejudice to Clause 0 (20.
|
Protection of Collateral Agent and RECEIVER),
so far as permitted by law the entry into possession of any of the Charged Assets (including by an Administrator) shall not render the Collateral Agent or any Receiver liable to account as mortgagee in possession or to be liable for
any Loss on realisation or for any default or omission for which a mortgagee in possession might otherwise be liable in respect of any of the Charged Assets; and if the Collateral Agent or any Receiver takes possession of the
Charged Assets, it or he may at any time relinquish such possession. In particular without prejudice to the generality of the foregoing the Collateral Agent shall not become liable as mortgagee in possession by reason of viewing the
state of repair or repairing any of the Company's Assets.
|
20.3
|
The preceding provisions of this Clause 0 (20.
|
Protection of Collateral Agent and RECEIVER)
applying to the Collateral Agent or any Receiver shall apply mutatis mutandis to any Delegate and to any officer, employee or agent of the Collateral Agent , any Receiver and any Delegate.
|
21.
|
COSTS, EXPENSES AND INDEMNITY
|
21.1
|
The Company shall pay to the Collateral Agent in relation to this Deed such costs and expenses as are of the type which are reimbursable by the Borrowers pursuant to Section
11.03 (Expenses, Etc) of the Loan Agreement.
|
21.2
|
The Company shall indemnify each Receiver and Delegate and their respective officers, employees and agents to the extent that and in the manner in which the Borrowers indemnify
the Indemnitees under Section 11.04 (Indemnity) of the Loan Agreement. Each Relevant Person may rely on this Clause 0 (21.Costs, Expenses and INDEMNITY) in accordance with the Contracts (Rights of Third Parties) Act 1999 but subject to Clause 0 (25.Third PARTIES).
|
22.
|
CONSENTS, VARIATIONS, WAIVERS AND RIGHTS
|
|
(a)
|
No consent or waiver in respect of any provision of this Deed shall be effective unless and until it is agreed in writing duly executed by or on behalf of the Collateral Agent .
Any consent or waiver by the Collateral Agent under this Deed may be given subject to any conditions the Collateral Agent reasonably thinks fit and shall be effective only in the instance and for the purpose for which it is given. No
failure by the Collateral Agent or any Receiver to exercise or delay in exercising any right provided by law or under this Deed shall operate to impair the same or be construed as a waiver of it. No single or partial exercise of any
such right shall prevent any further or other exercise of the same or the exercise of any other right. No waiver of any such right shall constitute a waiver of any other right. The rights provided in this Deed are cumulative and not
exclusive of any rights, provided by law.
|
|
(b)
|
No amendment or variation in respect of any provision of this Deed shall be effective unless and until it is agreed in writing duly executed by or on behalf of the Company and
the Collateral Agent .
|
If any provision of this Deed is or becomes or is found by a court or other competent authority to be
illegal, invalid or unenforceable in any respect, in whole or in part, under any law of any jurisdiction, neither the legality, validity and enforceability in that jurisdiction of any other provision or part of this Deed, nor the legality,
validity or enforceability in any other jurisdiction of that provision or part or of any other provision of this Deed, shall be affected or impaired and if any part of the Charges is invalid or unenforceable in any respect for any reason, no
other Charges shall be affected or impaired.
This Deed (and each variation or waiver in respect of any provision of it) may be executed in any number
of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, once executed and delivered, shall constitute an original of this Deed, but all
the counterparts together shall constitute one and the same instrument.
Except as otherwise provided in this Deed, a person who is not a party to this Deed has no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
A determination as to any amount payable which the Collateral Agent or any Receiver may make under this
Deed in good faith shall (save in the case of manifest error) be conclusive.
27.1
|
The Company shall not (whether by way of security or otherwise howsoever) be entitled to assign, grant an equitable interest in or transfer and declare itself a trustee of all
or any of its rights, interests or obligations hereunder, except as permitted under the Loan Agreement (save with respect to its rights and benefits which shall be assigned or to be assigned to the Collateral Agent under this Deed).
|
27.2
|
The Collateral Agent may at any time assign or transfer, in accordance with the Loan Agreement, all or any part of its rights or interests under this Deed or the Charges to any
person who succeeds to its role as security agent or collateral agent under the Loan Agreement.
|
27.3
|
Subject to Section 11.06 (Confidentiality) of the Loan Agreement, the Collateral Agent may disclose to an actual or proposed successor,
assignee or transferee any information the Collateral Agent reasonably considers appropriate regarding any provision of this Deed or other Loan Documents and the Company which it considers appropriate for the purposes of the proposed
assignment or transfer.
|
Any notice or other communication under this Deed shall be made in accordance with the provisions set out
in the Loan Agreement. Any notice delivered to the Parent or the Borrowers on behalf of the Company shall be deemed to have been delivered to the Company.
29.
|
GOVERNING LAW AND JURISDICTION
|
This Deed (including any non‑contractual obligations or liabilities arising out of it or in connection
with it) is governed by and is to be construed in accordance with English law.
|
(a)
|
Each party irrevocably agrees that:
|
|
(i)
|
the English courts have non‑exclusive jurisdiction to hear and determine any Proceedings and to settle any Disputes and each party irrevocably submits to the jurisdiction of the
English courts;
|
|
(ii)
|
any Proceedings may be taken in the English courts;
|
|
(iii)
|
any judgment in Proceedings taken in any such court shall be conclusive and binding on it and may be enforced in any other jurisdiction.
|
|
(b)
|
Each party also irrevocably waives (and irrevocably agrees not to raise) any objection which it might at any time have on the ground of forum
non conveniens or on any other ground to Proceedings being taken in any court referred to in this Clause 0 (29.Governing Law and JURISDICTION).
|
|
(c)
|
Nothing in this Clause 0 (29.
|
Governing Law and JURISDICTION) shall
limit any party's right to take Proceedings against the other party in any other jurisdiction or in more than one jurisdiction concurrently.
|
|
(d)
|
This jurisdiction agreement is not concluded for the benefit of only one party.
|
[Signature pages follow]
IN WITNESS WHEREOF the parties hereto have caused this Deed to be executed and
delivered as a deed on the day and year first before written.
Executed as deed by WEATHERFORD )
U.K. LIMITED acting by a director, )
in the presence of: )
___________________________
Director
Name:
___________________________
Witness:
Name:
Occupation:
Address:
COLLATERAL AGENT
Executed as a deed by DEUTSCHE BANK )
TRUST COMPANY AMERICAS)
acting by ........................................................... )
........................................................................... )
who, in accordance with the laws of the territory )
in which Deutsche Bank Trust Company Americas )
is incorporated, is/are acting under its authority )
___________________________
Authorised signatory
Name:
___________________________
Authorised signatory
Name:
SCHEDULE 1
BANK ACCOUNTS
PART 1 – GENERAL BANK ACCOUNTS
[Redacted.]
PART 2 – COLLECTION BANK ACCOUNT
[Redacted.]
SCHEDULE 2
ASSIGNED AGREEMENTS
Date of Relevant Contract
|
Parties
|
Details of Relevant Contract
|
31 July 2018
|
Weatherford U.K. Limited
Total E&P U.K. Limited
|
Completion Services
|
10 August 2016
|
Weatherford U.K. Limited
Total E&P U.K. Limited
|
Drilling Services
|
18 September 2017
|
Weatherford U.K. Limited
Total E&P U.K. Limited
|
Casing and Tubular Running Services
|
20 December 2017
|
Weatherford U.K. Limited
Total E&P U.K. Limited
|
Managed Pressure Drilling Services
|
1 November 2019
|
Weatherford U.K. Limited
Total E&P U.K. Limited
|
Drilling Related Fishing, Milling & Thru-Tubing Fishing Services
|
1 September 2019
|
Weatherford U.K. Limited
Shell U.K. Limited
|
High Pressure High Temperature Drilling Services
|
1 March 2017
|
Weatherford U.K. Limited
Shell U.K. Limited
|
Heavy Duty Wireline Fishing
|
1 May 2012
|
Weatherford U.K. Limited
CNOOC Petroleum U.K. Limited
|
Tubular Running Services
|
1 May 2012
|
Weatherford U.K. Limited
CNOOC Petroleum U.K. Limited
|
Drilling Rental Tools
|
1 May 2012
|
Weatherford U.K. Limited
CNOOC Petroleum U.K. Limited
|
Fishing and Re-Entry Services
|
1 December 2011
|
Weatherford U.K. Limited
CNOOC Petroleum U.K. Limited
|
Sand Control, PDMS and Liner Hanger
|
1 July 2009
|
Weatherford U.K. Limited
BP Exploration Operating Company Limited
|
Completion Equipment and Services
|
1 June 2010
|
Weatherford U.K. Limited
BP Exploration Operating Company Limited
|
Tubular Running Services
|
1 November 2015
|
Weatherford U.K. Limited
Apache North Sea Limited
|
Casing and Tubular Running Services
|
25 September 2016
|
Weatherford U.K. Limited
Apache North Sea Limited
|
Drilling Jar and Accelerator Rental Tools
|
1 August 2016
|
Weatherford U.K. Limited
Apache North Sea Limited
|
Liner Hanger Systems and Associated Services
|
SCHEDULE 3
INSURANCE POLICIES
[Redacted.]
SCHEDULE 4
FORM OF NOTICE OF CHARGE OF BANK ACCOUNTS
PART 1 – FORM OF NOTICE OF CHARGE FOR GENERAL BANK ACCOUNTS
To: [Name of General Account Bank]
Date: [•]
Dear Sirs,
We hereby give you irrevocable notice that we (the "Company") have charged to
Deutsche Bank Trust Company Americas (the "Collateral Agent") all of our right, title, interest and benefit in, to and under account numbers [•] and [•], account name [•] (including any renewal or
redesignation thereof) including all moneys standing to the credit of that account from time to time (the "Accounts"). This charge is subject, and without prejudice, to the charge to the Collateral
Agent of all our right, title and interest in and to the monies from time to time standing to the credit of the Accounts pursuant to the ABL deed of charge and assignment dated [5] December 2019, notice of which was given to you by a notice
dated [●] (the “ABL Deed of Charge and Assignment Notice”).
1.
|
We irrevocably authorise and instruct you:
|
|
(a)
|
to hold all monies from time to time standing to the credit of the Accounts to the order of the Collateral Agent and to pay all or any part of those monies to the Collateral
Agent (or as it may direct) promptly following receipt of written instructions from the Collateral Agent to that effect; and
|
|
(b)
|
to disclose to the Collateral Agent any information relating to the Company and the Accounts which the Collateral Agent may from time to time request you to provide.
|
2.
|
We also advise you that:
|
|
(a)
|
the Company may make withdrawals from the Accounts and you may continue to deal with the Company until such time as the Collateral Agent shall notify you (with a copy to the
Company) in writing that its permission is withdrawn; and
|
|
(b)
|
the provisions of this notice may only be revoked or varied with the prior written consent of the Collateral Agent .
|
Please acknowledge receipt of this notice by signing the acknowledgement on the enclosed copy of this notice and returning
it to the Collateral Agent .
Schedule
Customer
|
Account Number
|
Sort Code
|
Status
|
[●]
|
[●]
|
[●]
|
Not blocked
|
Yours faithfully,
______________________
for and on behalf of
Weatherford U.K. Limited
[On copy only:]
To:
|
Deutsche Bank Trust Company Americas
[•]
|
Attention: [•]
Date: [•]
At the request of the Collateral Agent and the Company we acknowledge receipt of a notice of charge in the terms set out
above in respect of the Accounts (as described in those terms).
We confirm that we will comply with the term of that notice.
We further confirm that:
(a)
|
the balance standing to the Accounts at today's date is [•], no fees or periodic charges are payable in respect of the Accounts and there are no restrictions on the payment of
the credit balance on the Accounts (except, in the case of a time deposit, the expiry of the relevant period) or on the assignment of the Accounts to the Collateral Agent or any third party;
|
(b)
|
except for the ABL Deed of Charge and Assignment Notice, we have not received notice of any previous assignments of, charges or other security interests over, or trusts in
respect of, any of the rights, title, interests or benefits in, to, under or in respect of the Accounts;
|
(c)
|
we will not, save with the Collateral Agent 's prior written consent, exercise any right of combination, consolidation or set‑off which we may have in respect of the Accounts;
and
|
(d)
|
after receipt of the notification referred to in paragraph 2(a) of the notice above, we will act only in accordance with the instructions given by persons authorised by the
Collateral Agent and we shall send all statements and other notices given by us relating to the Accounts to the Collateral Agent .
|
For and on behalf of [name of account‑holding bank]
By:_____________________________________…………………………….
Dated: [•]
PART 2 – FORM OF NOTICE OF CHARGE FOR COLLECTION BANK ACCOUNTS
Form of Notice of Charge for Collection Bank Accounts
Dated:
Barclays, Level 10, 1 Churchill Place, Canary Wharf, London, E14 5HP
Dear Sirs,
Weatherford U.K. Limited (the Company) hereby gives notice to Barclays Bank PLC (the Bank) that by a deed of charge and assignment dated [•] (the Deed), the Company charged to Wells Fargo Bank N.A., London Branch as collateral agent (the Collateral Agent) by way of first fixed charge all the Company’s rights, title, interest and benefit in and to the following account(s) held with the Bank and all amounts standing to the credit of such
account from time to time:
Account No. [•], sort code [•]-[•]-[•];
(the Blocked Account).
Please acknowledge receipt of this letter by returning a copy of the attached letter on the Bank’s headed notepaper with a receipted copy of this
notice forthwith, to Wells Fargo Bank N.A., London Branch, 8th Floor, 33 King William Street, London, EC4R 9AT Attention: Portfolio Manager – [•] and to the
Company at the address given above.
The attached acknowledgement letter constitutes our irrevocable instruction to you. Without prejudice to the generality thereof, we hereby
acknowledge the provisions of the acknowledgement letter in its entirety and agree in your favour to be bound by the limitations on your responsibility under paragraph (i) of the acknowledgment letter, in each case as if we had signed it in
your favour.
Yours faithfully
.............................................
for and on behalf of
Weatherford U.K. Limited
[TO BE PRINTED ON RELEVANT BARCLAYS ENTITY LETTERHEAD]
To:
Wells Fargo Bank N.A., London Branch
8th Floor
33 King William Street
London
EC4R 9AT
(the “Chargee”)
and
Weatherford U.K. Limited
Gotham Road, East Leake
Loughborough
Leicestershire
LE12 6JX
(the “Chargor”)
Dear All
Notice of charge dated …………………20[XX] (the “Notice”) relating to the
creation of security interest by the Chargor in favour of the Chargee in respect of the account as set out in the Notice
We refer to the Notice relating to the account, details of which are set out below (the “Account”):27
ACCOUNT HOLDER
|
ACCOUNT NUMBER
|
SORT CODE
|
|
|
|
|
|
|
|
|
|
We confirm that:
|
1.
|
we will block the Account and not permit any further withdrawals by the Chargor unless and until we receive and acknowledge a notice from the Chargee informing us otherwise.
Please note that we will not be able to permit withdrawals from the Account in accordance with the instructions of the Chargee unless and until it has provided a list of authorised signatories confirming which persons have authority
on behalf of the Chargee to operate the Account and the Account will remain blocked and non-operational until that time;
|
|
2.
|
to the best of our knowledge and belief the business team responsible for the Account has not, as at the date of this acknowledgement, received any notice that any third party
has any right or interest whatsoever in or has made any claim or demand or taking any action whatsoever against the Account and / or the debts represented thereby, or any part of any of it or them; and
|
|
3.
|
we are not, in priority to the Chargee, entitled to combine the Account with any other account or to exercise any right of set-off or counterclaim
against money in the Account in respect of any sum owed to us provided that, notwithstanding any term of the Notice:
|
|
a.
|
we shall be entitled at any time to deduct from the Account any amounts to satisfy any of our or the Chargor’s obligations and / or liabilities incurred under
the direct debit scheme or in respect of other unpaid sums in relation to cheques and payment reversals; and
|
|
b.
|
our agreement in this Acknowledgement not to exercise any right of combination of accounts, set-off or lien
over any monies standing to the credit of the Account in priority to the Chargee, shall not apply in relation to our standard bank charges and fees and any cash pooling arrangements provided to the Chargor; and
|
|
4.
|
we will disclose to the Chargee any information relating the Account which the Chargee may from time to time request us to provide.
|
We do not confirm or agree to any of the other matters set out in the Notice.
Our acknowledgement of the Notice is subject to the following conditions:
|
1.
|
we shall not be bound to enquire whether the right of any person (including, but not limited to, the Chargee) to withdraw any monies from the Account has arisen or be concerned
with (A) the propriety or regularity of the exercise of that right or (B) be responsible for the application of any monies received by such person (including, but not limited to, the Chargee);
|
|
2.
|
we shall have no liability to the Chargee relating to the Account whatsoever, including, without limitation, for having acted on instructions of the Chargee which on their face
appear to be genuine, which comply with the terms of this notice and which otherwise comply with the Chargee’s latest list of signatories held by us or relevant electronic banking system procedures in the case of an electronic
instruction, and
|
|
3.
|
we shall not be deemed to be a trustee for the Chargor or the Chargee of the Account.
|
This letter and any non-contractual obligations arising out of or in connection with this letter are governed by the laws of England and Wales.
Yours faithfully
Name:
Position:
For and on behalf of Barclays Bank PLC
Dated
27 Only include account details where these were also included in the Notice
SCHEDULE 5
FORM OF NOTICE OF CHARGE OF ASSIGNED AGREEMENTS
To: [Insert name and address of relevant party]
Date: [•]
Dear Sirs
RE: [describe assigned agreement] dated [●] between you and Weatherford U.K. Limited
(the "Company")
1.
|
We give notice that, by a deed of charge and assignment dated [●] (the "Deed"), we have assigned to Deutsche Bank Trust Company Americas
(the "Collateral Agent") as Collateral Agent for certain banks and others all our present and future right, title and interest in and to [insert details of
Assigned Agreement] (together with any other agreement supplementing or amending the same, the "Agreement") including all rights and remedies in connection with the Agreement and all
proceeds and claims arising from the Agreement. This charge and assignment is subject, and without prejudice, to the charge and assignment to the Collateral Agent of all our right, title and interest in the Agreement pursuant to the
ABL deed of charge and assignment dated [5] December 2019, notice of which was given to you by a notice dated [●] (the “ABL Deed of Charge and Assignment Notice”).
|
2.
|
Following receipt by you of a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the Deed) has occurred (but not at any other time) the
Company instructs you:
|
|
(a)
|
to disclose to the Collateral Agent at our expense (without any reference to or further authority from us and without any enquiry by you as to the justification for such
disclosure), such information relating to the Agreement as the Collateral Agent may from time to time request;
|
|
(b)
|
to hold all sums from time to time due and payable by you to us under the Agreement to the order of the Collateral Agent ;
|
|
(c)
|
to pay or release all or any part of the sums from time to time due and payable by you to us under the Agreement only in accordance with the written instructions given to you by
the Collateral Agent from time to time;
|
|
(d)
|
to comply with any written notice or instructions in any way relating to, or purporting to relate to, the Deed or the Agreement or the debts represented thereby which you
receive at any time from the Collateral Agent without any reference to or further authority from us and without any enquiry by you as to the justification for or validity of such notice or instruction; and
|
|
(e)
|
to send copies of all notices and other information given or received under the Agreement to the Collateral Agent .
|
3.
|
You may continue to deal with us in relation to the Agreement until you review a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the
Deed) has occurred. Following the receipt by you of such a written notice, we are not permitted to receive from you, otherwise than through the Collateral Agent , any amount in respect of or on account of the sums payable to us from
time to time under the Agreement or to agree any amendment or supplement to, or waive any obligation under, the Agreement without the prior written consent of the Collateral Agent .
|
4.
|
This notice may only be revoked or amended with the prior written consent of the Collateral Agent .
|
5.
|
Please confirm by completing the enclosed copy of this notice and returning it to the Collateral Agent (with a copy to us) that you agree to the above and that:
|
|
(a)
|
you accept the instructions and authorisations contained in this notice and you undertake to comply with this notice; and
|
|
(b)
|
except for the ABL Deed of Charge and Assignment Notice, you have not, at the date this notice is returned to the Collateral Agent , received notice of the assignment or charge,
the grant of any security or the existence of any other interest of any third party in or to the Agreement or any proceeds of it and you will notify the Collateral Agent promptly if you should do so in future.
|
6.
|
This notice, and any acknowledgement in connection with it, and any non-contractual obligations arising out of or in connection with any of them, shall be governed by English
law.
|
Yours faithfully
___________________________________
for and on behalf of
Weatherford U.K. Limited
[On copy]
To: Deutsche Bank Trust Company Americas
as Collateral Agent
[•]
Copy to: Weatherford U.K. Limited
Gotham Road, East Leake,
Loughborough,
Leicestershire LE12 6JX
Dear Sirs
We acknowledge receipt of the above notice and consent and agree to its terms. We confirm and agree to the matters set out
in paragraph [5] in the above notice.
___________________________________
for and on behalf of
[Name of relevant party]
Dated: [●]
SCHEDULE 6
FORM OF NOTICE OF CHARGE OF INSURANCE POLICIES
To: [insert name and address of insurance company]
Dated: [●]
Dear Sirs
Re: [here identify the relevant insurance policy(ies)] (the "Policies")
We notify you that, Weatherford U.K. Limited (the "Company") has assigned to
Deutsche Bank Trust Company Americas (the "Collateral Agent") for the benefit of itself and certain other banks and financial institutions (the "Secured Parties")
all its right, title and interest in the Policies as security for certain obligations owed by the Company to the Secured Parties by way of a deed of charge and assignment dated [●] (the "Deed"). This
assignment is subject, and without prejudice, to the assignment to the Collateral Agent of all our right, title and interest in the Policies pursuant to the ABL deed of charge and assignment dated [5] December 2019, notice of which was given
to you by a notice dated [●] (the “ABL Deed of Charge and Assignment Notice”).
We further notify you that:
1.
|
Prior to receipt by you of a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the Deed) has occurred, the Company will continue to
have the sole right to deal with you in relation to the Policies (including any amendment, waiver or termination thereof or any claims thereunder).
|
2.
|
Following receipt by you of a written notice from the Collateral Agent specifying that a Enforcement Event has occurred (but not at any other time) the Company irrevocably
authorises you:
|
|
(a)
|
to pay all monies to which the Company is entitled under the Policies direct to the Collateral Agent (or as it may direct) promptly following receipt of written instructions
from the Collateral Agent to that effect; and
|
|
(b)
|
to disclose to the Collateral Agent any information relating to the Policies which the Collateral Agent may from time to time request in writing.
|
3.
|
The provisions of this notice may only be revoked or varied with the written consent of the Collateral Agent and the Company.
|
4.
|
Please sign and return the enclosed copy of this notice to the Collateral Agent (with a copy to the Company) by way of confirmation that:
|
|
(a)
|
you agree to act in accordance with the provisions of this notice;
|
|
(b)
|
except for the ABL Deed of Charge and Assignment Notice, you have not previously received notice (other than notices which were subsequently irrevocably withdrawn) that the
Company has assigned its rights under the Policies to a third party or created any other interest (whether by way of security or otherwise) in the Policies in favour of a third party; and
|
|
(c)
|
you have not claimed or exercised nor do you have any outstanding right to claim or exercise against the Company, any right of set off, counter claim or other right relating to
the Policies.
|
The provisions of this notice are governed by English law.
Yours faithfully
_________________________________
for and on behalf of
Weatherford U.K. Limited
[On acknowledgement copy]
To: Deutsche Bank Trust Company Americas
as Collateral Agent
[•]
Copy to: Weatherford U.K. Limited
Gotham Road, East Leake,
Loughborough,
Leicestershire LE12 6JX
We acknowledge receipt of the above notice and confirm the matters set out in paragraphs 4(a) to (c) above.
_________________________________
for and on behalf of
[Insert name of insurance company]
Dated: [●]
EXECUTION VERSION
EXECUTION VERSIONDATED _________________, 2019
WEATHERFORD EURASIA LIMITED
(the Mortgagor)
- and -
DEUTSCHE BANK TRUST COMPANY AMERICAS
(the Collateral Agent)
This Equitable Share Mortgage is entered into subject to the terms of the Intercreditor Agreement dated on or about the date of this Deed (as
amended from time to time).
CONTENTS
Clause
|
|
Page
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
TRUST
|
5
|
3.
|
INTERCREDITOR AGREEMENT
|
6
|
4.
|
ABL EQUITABLE SHARE MORTGAGE
|
6
|
5.
|
COVENANT TO PAY
|
6
|
6.
|
CREATION OF SECURITY
|
7
|
7.
|
COVENANT TO DEPOSIT
|
7
|
8.
|
FURTHER ASSURANCE
|
8
|
9.
|
VOTING RIGHTS AND DIVIDENDS
|
8
|
10.
|
REPRESENTATIONS AND WARRANTIES
|
9
|
11.
|
RESTRICTIONS ON DEALINGS
|
9
|
12.
|
COVENANTS
|
9
|
13.
|
POWER OF ATTORNEY
|
9
|
14.
|
ENFORCEMENT
|
10
|
15.
|
APPOINTMENT OF RECEIVERS
|
12
|
16.
|
RIGHTS OF RECEIVERS
|
13
|
17.
|
RIGHTS OF COLLATERAL AGENT AND SECURED PARTIES
|
14
|
18.
|
APPLICATION OF MONEYS
|
15
|
19.
|
LIABILITY OF COLLATERAL AGENT, RECEIVER AND DELEGATES
|
15
|
20.
|
INDEMNITY
|
16
|
21.
|
PROTECTION OF THIRD PARTIES
|
16
|
22.
|
SECURITY CONTINUING, CUMULATIVE AND NOT TO BE AFFECTED
|
16
|
23.
|
CERTIFICATE CONCLUSIVE, ETC
|
17
|
24.
|
NO SET-OFF BY MORTGAGOR
|
17
|
25.
|
COSTS AND EXPENSES
|
17
|
26.
|
RELEASE OF SECURITY
|
17
|
27.
|
MISCELLANEOUS
|
18
|
28.
|
ASSIGNMENT, ETC
|
19
|
29.
|
NOTICES
|
19
|
30.
|
GOVERNING LAW AND JURISDICTION
|
19
|
SCHEDULE 1 ORIGINAL SHARES
|
24
|
SCHEDULE 2 REPRESENTATIONS AND WARRANTIES
|
25
|
SCHEDULE 3 COVENANTS
|
26
|
|
|
|
THIS DEED is made on _______________, 2019
BETWEEN
(1)
|
WEATHERFORD EURASIA LIMITED, a limited company incorporated in England and Wales under registered number 02440463, whose registered
office is at Weatherford Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX, (the "Mortgagor"); and
|
(2)
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, (the "Collateral Agent"), which expression includes its
successors in title and assigns acting for itself and on behalf of the Secured Parties as the holders of the Secured Obligations (as defined below).
|
WHEREAS
(A)
|
Under the Loan Agreement (as defined below) the Lenders have granted to the Borrowers a letter of credit line facility (the "Facility").
|
(B)
|
Under the Guarantee various Affiliates of the Parent, including the Mortgagor, have guaranteed the obligations of the Borrowers under the Loan Agreement.
|
(C)
|
The Mortgagor is the direct owner of the entire issued share capital of the Company.
|
(D)
|
Under the terms of the Loan Agreement the Mortgagor is required to execute and deliver this equitable share mortgage of the entire issued share capital of the Company in favour
of the Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations (each as defined below).
|
(E)
|
It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand.
|
IT IS AGREED AS FOLLOWS
1.
|
DEFINITIONS AND INTERPRETATION
|
In this Deed, capitalised words and phrases used but not defined herein shall have the meanings set out
in the Loan Agreement and the following words and phrases shall have the meanings set out below.
"ABL Equitable Share Mortgage" means an equitable share mortgage
dated on or about the date hereof between, amongst others, the Mortgagor and Wells Fargo Bank, National Association as collateral agent, granted pursuant to an asset based loan credit agreement dated on or about the date of this Deed between,
amongst others, Weatherford International Ltd. and Weatherford International, LLC as borrowers, the lenders party thereto, and Wells Fargo Bank, National Association as collateral agent.
"Business Day" means any day other than a Saturday, Sunday or
bank holiday on which banks are open for business in London and New York City.
"Cash" means cash within the meaning of Financial Collateral
Arrangements (No. 2) Regulations 2003;
"Company" means Weatherford U.K. Limited, a company incorporated
in England and Wales under registered number 00862925, whose registered office is at Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX.
"Delegate" means a delegate or a sub-delegate of the Collateral
Agent or of any Receiver appointed under this Deed.
"Derived Assets" means, with respect to the Company, any Shares,
rights or other property of a capital nature which accrue or are offered, issued or paid at any time (whether by way of rights, redemption, substitution, exchange, conversion, purchase, bonus, consolidation, subdivision, preference, warrant,
option or otherwise) in respect of:
|
(b)
|
any Further Shares; and
|
|
(c)
|
any Shares, rights or other property previously accruing, offered, issued or paid as mentioned in this definition,
|
provided, however, that "Derived Assets"
shall not include any Excluded Assets.
"Disputes" means any disputes or claims which may arise out of or
in connection with this Deed or the Security (including, without limitation, regarding their respective existence, validity or termination and any non-contractual obligations or liabilities arising in connection with them).
"Dividends" means any dividends, interest and other income paid
or payable in respect of the Original Shares, any Further Shares or any Derived Assets (but "Dividends" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Enforcement
Event" has the meaning set out in Clause 0 (14.1 Enforceability).
"Financial Collateral" means financial collateral within the
meaning of the Financial Collateral Arrangements Regulations.
"Financial Collateral Arrangements Regulations" means the
Financial Collateral Arrangements (No.2) Regulations 2003, as amended.
"Further Shares" means all Shares (other than the Original Shares
and any Shares comprised in any Derived Assets) issued by the Company at any time after the execution of this Deed.
"Guarantee" means an Affiliate Guaranty dated as of on or about
the date of this Deed between, among others, the Parent and the Collateral Agent.
"Insolvency Act" means the Insolvency Act 1986.
"Insolvency Event" in relation to any person, means: (a) such
person is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with
a view to rescheduling any of its indebtedness (including any composition, assignment or arrangement with any creditor of such person); (b) any resolution is passed or order made for the winding up, dissolution, administration or
reorganisation of that person, a moratorium is declared in relation to any indebtedness of that person or an administrator is appointed to that person (other than a solvent liquidation or reorganisation of such person on terms previously
approved in writing by the Collateral Agent); (c) the appointment of any liquidator (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent), receiver, administrator,
administrative receiver, compulsory manager or other similar officer in respect of that person or any of its assets; or (d) in respect of any person, any analogous procedure or step is taken in any jurisdiction.
"Intercreditor Agreement" means the intercreditor agreement,
dated on or about the date of this Deed, among the Collateral Agent, Wells Fargo Bank, National Association, the Parent, Weatherford International Ltd., Weatherford International LLC, and the other grantors of the Parent named therein.
"Loan Agreement" means the letter of credit facility agreement,
between, among others, the Parent, the Collateral Agent and the Lenders, dated on or about the date of this Deed.
"Loss" means any liability, damages, claim, cost, loss, penalty,
expense, demand (or actions in respect thereof) including, without limitation, all charges and fees (professional and otherwise), together with all costs, disbursements and expenses in connection therewith.
"LPA" means the Law of Property Act 1925.
"Original Shares" means the Shares in the Company details of
which are set out in Schedule 1 (Original Shares).
Parent" means Weatherford International Public Limited Company, a
public limited company incorporated in the Republic of Ireland, with registered number 540406 whose registered office address is 70 Sir John Rogerson's Quay, Dublin 2.
"Payment in Full" means the Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan Documents (other than contingent indemnification obligations as to which no claim has been received by the
Mortgagor) shall have been paid in full in cash.
"Proceedings" means any proceedings, suit or action arising out
of or in connection with any Disputes or otherwise arising out of or in connection with this Deed or the Security (including, without limitation, regarding their respective existence, validity or termination and any non-contractual
obligations or liabilities arising in connection with them).
"Receiver" means a receiver and manager or receiver of all or any
of the Secured Assets, in each case appointed under this Deed.
"Relevant Person" means each Receiver and each Delegate and each
such person's respective officers, employees and agents.
"Required
Currency" has the meaning set out in Clause 0 (14.3 Appropriation of Financial Collateral).
"Rights" means rights, benefits, powers, privileges, authorities,
discretions, remedies and liberties (in each case, of any nature whatsoever).
"Secured Assets" means the Original Shares, any Further Shares,
any Derived Assets and any Dividends (but "Secured Assets" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Secured Obligations" has the meaning given to it in the Loan
Agreement but, for the avoidance of doubt, shall also include all reasonable and documented legal costs, charges and expenses and any other Loss which the Collateral Agent, any Receiver or any Delegate may incur in enforcing or obtaining, or
attempting to enforce or obtain, payment of any such moneys and liabilities to the extent that such costs, charges, expenses and other Losses are of the type which are reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, etc.) of the Loan Agreement.
"Secured Parties" has the meaning given to it in the Loan
Agreement.
"Security" means any or all of the Security Interests created or
expressed to be created, or which may at any time hereafter be created, by or pursuant to this Deed.
"Security Interest" means any mortgage, fixed or floating charge,
sub-mortgage or charge, pledge, lien, assignment by way of security or subject to a proviso for reassignment, encumbrance, hypothecation, any title retention arrangement (other than in respect of goods purchased in the ordinary course of
trading), any agreement or arrangement having substantially the same economic or financial effect as any of the foregoing (including any "hold back" or "flawed asset" arrangement) and any security interest or agreement or arrangement
analogous to any of the foregoing arising under the laws of any other jurisdiction.
"Shares" means, with respect to the Company, stocks and shares of
any kind (but "Shares" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Tax" and "Taxes" has the
meaning given to it in the Loan Agreement.
"Third Parties Act" means the Contracts (Rights of Third Parties)
Act 1999.
In this Deed, the following rules of interpretation apply, unless otherwise specified or the context
otherwise requires.
|
(a)
|
Person: a reference to a "person" includes any individual, firm, partnership, body corporate, unincorporated association, government,
state or agency of a state, local or municipal authority or government body, trust, foundation, joint venture or association (in each case whether or not having separate legal personality).
|
|
(b)
|
References to this Deed and other agreements and documents: a reference to this Deed or to another deed, agreement, document or
instrument (including, without limitation, any share certificate and any Loan Document) is a reference to this Deed or to the relevant other deed, agreement, document or instrument as supplemented, varied, amended, modified, novated
or replaced from time to time and to any agreement, deed or document executed pursuant thereto.
|
|
(c)
|
Successors, transferees and assigns: a reference to a person (including, without limitation, any party to this Deed, any Secured Party
and any party to any Loan Document) shall include reference to its successors, transferees (including by novation) and assigns and any person deriving title under or through it, whether in security or otherwise, any person into which
such person may be merged or consolidated, any company resulting from any merger or consolidation of such person and any person succeeding to all or substantially all of the business of that person.
|
|
(d)
|
Statutory provisions: a reference to any statute, statutory provision, order, instrument, rule or regulation is to that statute,
provision, order, instrument, rule or regulation as amended or re-enacted from time to time, any provision of which it is a re-enactment or consolidation and any order, instrument or regulation made or issued under it.
|
|
(e)
|
Headings: headings are for convenience only and shall not affect the interpretation of this Deed.
|
|
(f)
|
Clauses, Schedules and Paragraphs: a reference to a Clause is to a clause in this Deed; a reference to a Schedule is to a schedule to
this Deed; a reference to a Paragraph is to a paragraph of a Schedule; and a reference to this Deed includes a reference to each of its Schedules.
|
|
(g)
|
Disposal: a reference to "disposal" includes any of the following, whether by a single transaction or series of transactions whether
related or not, and whether voluntary or involuntary: a sale, transfer, assignment, loan, parting with any interest in or permitting the use by another person of, the grant of any option to purchase or pre-emption right or other
present or future right to acquire or create any interest in, or any other disposal or dealing, and "dispose" shall be construed accordingly.
|
|
(h)
|
Loan Agreement and Intercreditor Agreement: The undertakings and other obligations of the Mortgagor, Collateral Agent or any other person
under this Deed shall at all times be read and construed as subject to the provisions of the Loan Agreement, the Intercreditor Agreement and the Guarantee which shall prevail in case of any conflict. The terms of this Deed shall not
operate or be construed so as to prohibit or restrict any transaction or matter that is permitted by the Loan Agreement or the Intercreditor Agreement.
|
2.1
|
The Collateral Agent shall hold, and hereby declares that it shall hold, the benefit of the Security and the benefit of all representations, warranties, covenants and
undertakings under this Deed on trust for the Secured Parties on and subject to the terms of this Deed and the Mortgagor hereby acknowledges such trusts.
|
2.2
|
In this Deed the Collateral Agent acts under the authority of the Secured Parties contained in Article X (Administrative Agent) of the
Loan Agreement and in accordance with, subject to and with the full benefit of the provisions of such Article X (Administrative Agent).
|
3.
|
INTERCREDITOR AGREEMENT
|
3.1
|
The priority of claims in relation to this Deed and the ABL Equitable Share Mortgage shall be subject to the Intercreditor Agreement. Each Secured Party, of its acceptance of
the benefits of this Deed (a) consents to the subordination of security provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor
Agreement and (c) authorizes and instructs the Collateral Agent to enter into the Intercreditor Agreement as Collateral Agent on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the Secured
Parties to extend credit to Borrowers or to acquire any notes or other evidence of any debt obligation owing from the Borrowers and such Secured Parties are intended third party beneficiaries of such provisions and the provisions of
the Intercreditor Agreement.
|
3.2
|
Notwithstanding any other provision contained herein, this Deed, the security created hereby and the rights, remedies, duties and obligations provided for herein are subject in
all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable LC Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between
the provisions of this Deed and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail.
|
4.
|
ABL EQUITABLE SHARE MORTGAGE
|
4.1
|
All security created under this Deed does not affect the security created by the ABL Equitable Share Mortgage.
|
4.2
|
Notwithstanding any provision of this Deed, provided that the Mortgagor is in compliance with the terms of the ABL Equitable Share Mortgage (including without limitation, any
obligation to deliver or deposit any deeds, documents of title, certificates, evidence of ownership or other original documentation thereunder) then to the extent that the terms of this Deed impose the same or substantially the same
obligation in respect of such deeds, documents of title, certificates, evidence of ownership or other original documentation, the Mortgagor will be deemed to have complied with the relevant obligations under this Deed by virtue of its
compliance under the ABL Equitable Share Mortgage, provided however that, in the event that the terms of the ABL Equitable Share Mortgage no longer continue to be in full force and effect or the ABL Equitable Share Mortgage is
released or discharged (or as otherwise required by the Intercreditor Agreement) the Mortgagor shall be required to as soon as reasonably practicable comply with the relevant obligations under this Deed. The Collateral Agent may
retain any document delivered to it under this Deed or otherwise only until such time as the Security Interests created under this Deed are irrevocably released.
|
Subject to any limits on its liability and any grace periods specifically recorded in the Loan Documents,
the Mortgagor covenants with the Collateral Agent to pay and discharge all Secured Obligations which may from time to time be or become due, owing or payable by the Mortgagor (whether as principal or surety and whether or not jointly with
another) to or to the order of the Collateral Agent under, pursuant to or in connection with the Loan Agreement, the Guarantee and/or this Deed, as applicable, in each case at the times when, and in the currency or currencies and in the
manner in which, they are expressed to be due, owing or payable herein or therein.
The Mortgagor, as continuing security for the payment and discharge of the Secured Obligations and with
full title guarantee, charges by way of fixed charge all of its Rights, title and interest in and to the Original Shares, all Further Shares, all Derived Assets and all Dividends in favour of the Collateral Agent.
7.1
|
Original Shares and Further Shares
|
The Mortgagor shall, promptly after execution of this Deed in the case of the Original Shares, and within
15 Business Days (or such later date as may be agreed upon by the Collateral Agent) of issue of any Further Shares deposit with the Collateral Agent (or other person nominated by the Collateral Agent):
|
(a)
|
all share certificates, documents of title and other documentary evidence of ownership in relation to such Shares; and
|
|
(b)
|
transfers of such Shares duly executed by the Mortgagor or its nominee with the name of the transferee left blank, or if the Collateral Agent so requires, duly executed by the
Mortgagor or its nominee in favour of the Collateral Agent (or its nominee).
|
The Mortgagor shall promptly and in any event within 15 Business Days (or such later date as may be
agreed upon by the Collateral Agent) of the issue, accrual or offer of any Derived Assets, deliver to the Collateral Agent or procure the delivery to the Collateral Agent of:
|
(a)
|
all share certificates, renounceable certificates, letters of allotment, documents of title and other documentary evidence of ownership in relation to the Derived Assets;
|
|
(b)
|
such documents as are referred to Clauses 0 (7.1
|
Original Shares and Further Shares) in
relation to any Shares comprised in such Derived Assets; and
|
|
(c)
|
such other documents as the Collateral Agent may reasonably require to enable the Collateral Agent (or its nominee) or, after the occurrence of an Enforcement Event, any
Receiver or any purchaser to be registered as the owner of, or otherwise to obtain legal title to, the Derived Assets in accordance with this Deed.
|
The Mortgagor shall, at its own cost, promptly take whatever action the Collateral Agent or any Receiver
may reasonably require with a view to:
|
(a)
|
creating, preserving, perfecting or protecting any of the Security or the first priority of any of the Security (subject to any Liens permitted by Section 8.04 (Liens) of the Loan Agreement);
|
|
(b)
|
facilitating the enforcement of the Security or the exercise of any Rights vested in the Collateral Agent or any Receiver in connection with this Deed; or
|
|
(c)
|
providing more effectively to the Collateral Agent the full benefit of the Rights conferred on it by this Deed and otherwise giving full effect to the provisions of this Deed,
|
including, without limitation, executing such assignments, transfers and conveyances of the Secured
Assets (whether in favour of the Collateral Agent, any Secured Party or otherwise), giving such notices and making such filings and registrations as the Collateral Agent or any Receiver shall reasonably require, in each case in such form and
on such terms as the Collateral Agent or Receiver shall reasonably specify.
9.
|
VOTING RIGHTS AND DIVIDENDS
|
9.1
|
Prior to a Enforcement Event
|
|
(a)
|
Prior to such time as the Collateral Agent has, following the occurrence of an Enforcement Event, notified the Mortgagor in writing that it has elected to collect any Dividends
in accordance with the terms of this Deed, the Mortgagor shall be entitled to receive and retain free from the Security any Dividends paid to it.
|
|
(b)
|
Prior to such time as the Collateral Agent has, following the occurrence of an Enforcement Event, notified the Mortgagor in writing that it has elected to exercise voting and
other Rights relating to the Secured Assets in accordance with the terms of this Deed, the Mortgagor shall be entitled to exercise and control the exercise of all voting and other Rights relating to the Secured Assets provided that it
shall not exercise any such voting rights or powers in a manner which would diminish the effectiveness or enforceability of the Security Interests created under this Deed in any material respect or restrict the transferability of the
Secured Assets by the Collateral Agent or any Relevant Person.
|
9.2
|
Following an Enforcement Event
|
Upon, and at all times after, the occurrence of any Enforcement Event:
|
(a)
|
at the request of the Collateral Agent, all Dividends shall be paid to and retained by the Collateral Agent or, if appointed, any Receiver and any such monies which may be
received by the Mortgagor shall, pending such payment, be segregated from any other property of the Mortgagor and held in trust for the Collateral Agent; and
|
|
(b)
|
the Collateral Agent or, if appointed, any Receiver may, for the purpose of preserving the value of the Security or realising it, direct the exercise of all voting and other
Rights relating to the Secured Assets and the Mortgagor shall procure that all voting and other Rights relating to the Secured Assets are exercised in accordance with such instructions as may, from time to time, be given to the
Mortgagor by the Collateral Agent, or, if appointed, any Receiver and the Mortgagor shall deliver to the Collateral Agent or, if appointed, any Receiver such forms of proxy or other appropriate forms of authorisation as may be
required to enable the Collateral Agent or, as the case may be, Receiver to exercise such voting and other Rights.
|
10.
|
REPRESENTATIONS AND WARRANTIES
|
The Mortgagor represents and warrants to the Collateral Agent that each of the matters set out in
Schedule 2 (Assigned Agreements) (save the matters in paragraph 0) is true and correct as at the date hereof. Each representation and warranty 0 will be given (and the matters therein true and
correct) on the date of each issue of any Shares referred to in it.
11.
|
RESTRICTIONS ON DEALINGS
|
The Mortgagor may only create, incur, assume or permit to exist a Security Interest on any Secured Asset
if it is permitted by Section 8.04 (Liens) of the Loan Agreement.
The Mortgagor may only Dispose of any Secured Asset if it is permitted by Section 8.05 (Asset Dispositions) of the Loan Agreement.
The Mortgagor covenants with the Collateral Agent in the terms set out in Schedule 3 (Insurance POLICIES).
13.1
|
The Mortgagor irrevocably and by way of security appoints the Collateral Agent and each Receiver severally to be its attorney (each with full powers of substitution and
delegation), on its behalf, in its name or otherwise, and, after the occurrence of an Enforcement Event, at such times and in such manner as the attorney may reasonably think fit:
|
|
(a)
|
to do anything which the Mortgagor is obliged to do under this Deed but has not done in a timely manner; and
|
|
(b)
|
to do anything which it reasonably considers appropriate in relation to the exercise of any of its Rights under this Deed, the LPA, the Insolvency Act or otherwise,
|
including, without limitation, the execution and delivery of transfers of any Secured Asset (to the
Collateral Agent or otherwise) (but only after an Enforcement Event), the completion of any stock transfer form deposited with the Collateral Agent pursuant to Clause 0 (7. Covenant to DEPOSIT) (but only after an Enforcement Event), the giving of any notice relating to all or any of the Secured Assets or Security, the execution of any
other document whatsoever and (but only after an Enforcement Event) the exercise of any voting or other Rights of the Mortgagor in its capacity as legal owner of the Original Shares, Further Shares and any other shares comprised in any
Derived Asset.
13.2
|
The Mortgagor hereby ratifies and confirms and agrees to ratify and confirm whatever the attorney shall do or purport to do in the exercise or purported exercise of its Rights
as attorney.
|
The Security shall, subject to any prohibition or restriction imposed by law, become enforceable upon and
at any time after an Event of Default occurs and is continuing (an "Enforcement Event").
|
(a)
|
At any time after the Security has become enforceable in accordance with Clause 0 (14.1Enforceability),
the Collateral Agent may (but shall not be obliged to) do any one or more of the following:
|
|
(i)
|
take possession of, get in and collect all or any of the Secured Assets, and in particular take any steps necessary to vest all or any of the Secured Assets in the name of the
Collateral Agent or its nominee including completing any transfers of any shares comprised in the Secured Assets and receive and retain any dividends;
|
|
(ii)
|
exercise all rights conferred on a mortgagee by law including, without limitation, under the LPA (as such rights are varied or extended, where applicable, by this Deed);
|
|
(iii)
|
exercise its rights under Clause 0 (14.3
|
Appropriation of Financial Collateral);
|
|
(iv)
|
sell, exchange, convert into money or otherwise dispose of or realise the Secured Assets (whether by public offer or private contract) to any person and for such consideration
(whether comprising cash, debentures or other obligations, shares or other valuable consideration of any kind) and on such terms (whether payable or deliverable in a lump sum or by instalments) as it may reasonably think fit, and for
this purpose complete any transfers of any of the Secured Assets;
|
|
(v)
|
following written notice to the Mortgagor, exercise or direct the exercise of all voting and other Rights relating to the Secured Assets in such manner as it may reasonably
think fit;
|
|
(vi)
|
settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, Disputes, questions and demands relating in any way to the Secured Assets;
|
|
(vii)
|
bring, prosecute, enforce, defend and abandon actions, suits and Proceedings in relation to the Secured Assets;
|
|
(viii)
|
exercise its rights under Clause 0 (15.
|
Appointment Of Receivers); and
|
|
(ix)
|
do all such other acts and things it may consider necessary or expedient for the realisation of the Secured Assets, or incidental to the exercise of any of the Rights conferred
on it, under or in connection with this Deed or the LPA and to concur in the doing of anything which it has the Right to do and to do any such thing jointly with any other person.
|
|
(b)
|
For the purposes only of section 101 of the LPA, the Secured Obligations shall be deemed to have become due, and the powers conferred by that section (as varied and extended by
this Deed) shall be deemed to have arisen immediately upon execution of this Deed.
|
|
(c)
|
Sections 93 and 103 of the LPA shall not apply to this Deed.
|
14.3
|
Appropriation of Financial Collateral
|
|
(a)
|
At any time after the Security has become enforceable in accordance with Clause 0 (14.1Enforceability),
the Collateral Agent may, by the giving of written notice to the Mortgagor, appropriate all or any part of the Original Shares, Further Shares, any Shares comprised in any Derived Asset and any other Secured Asset which constitutes
Financial Collateral.
|
|
(b)
|
If the Collateral Agent exercises that power of appropriation:
|
|
(i)
|
any Original Shares, Further Shares or Shares comprised in any Derived Asset shall be valued by the Collateral Agent as at the time of exercise of the power; their value shall
be the amount of any cash payment which the Collateral Agent reasonably determines would be received on a sale or other disposal of such Shares effected for payment as soon as reasonably possible after that time; and the Collateral
Agent will make that determination in a commercially reasonable manner (including by way of an independent valuation); and
|
|
(ii)
|
any Secured Asset appropriated which constitutes Cash and which is not denominated in the currency in which any Secured Obligations which then remain unpaid are required to be
paid (the "Required Currency") shall be valued as if it had been converted into the Required Currency on the date of appropriation (or as soon as practicable thereafter) at the rate of exchange
at which the Collateral Agent is able, on the relevant day, to purchase the Required Currency with the other.
|
15.
|
APPOINTMENT OF RECEIVERS
|
15.1
|
Appointment and removal
|
At any time after the Security has become enforceable in accordance with Clause 0 (14.1 Enforceability) the Collateral Agent may, by deed or other instrument signed by any manager or officer of the Collateral Agent or by any other person
authorised for this purpose by the Collateral Agent, appoint any person or persons to be Receiver or Receivers of all or any part of the Secured Assets, on such terms as the Collateral Agent reasonably thinks fit, and may similarly remove any
Receiver (subject, where relevant, to any requirement for a court order) whether or not the Collateral Agent appoints any person in his place and may replace any Receiver.
15.2
|
More than one Receiver
|
If more than one person is appointed as Receiver, the Collateral Agent may give the relevant persons
power to act jointly or severally.
15.3
|
Appointment over part of the Secured Assets
|
If any Receiver is appointed over only part of the Secured Assets:
|
(a)
|
references in this Deed to the Rights of a Receiver in relation to Secured Assets shall be construed as references to the relevant part of the Secured Assets; and
|
|
(b)
|
the Collateral Agent may subsequently extend his appointment (or that of any Receiver replacing him) to any other part of the Secured Assets, or appoint another Receiver over
that or any other part of the Secured Assets.
|
15.4
|
Statutory restrictions
|
|
(a)
|
Section 109(1) of the LPA shall not apply to this Deed.
|
|
(b)
|
The Collateral Agent's rights to appoint a Receiver or Receivers hereunder are subject to the restrictions set out in Part III of Schedule A1 to the Insolvency Act.
|
15.5
|
Agent of the Mortgagor
|
|
(a)
|
Each Receiver shall, so far as the law permits, be the agent of the Mortgagor and the Mortgagor alone shall be responsible for each Receiver's remuneration and for his acts,
omissions or defaults, and shall be liable on any contracts or engagements made, entered into or adopted by him and for any Losses incurred by him save, in each case, in circumstances where the liabilities or Losses arises as a direct
result of the Receiver’s gross negligence or wilful misconduct.
|
|
(b)
|
The Collateral Agent shall not be responsible for or incur any liability (whether to the Mortgagor or any other person) in connection with any Receiver's acts, omissions,
defaults, contracts, engagements or Losses save, in each case, in circumstances where the liabilities or Losses arises as a direct result of the Receiver’s gross negligence or wilful misconduct.
|
|
(c)
|
Notwithstanding Clause 00 (15.5
|
Agent of the Mortgagor) if a liquidator
of the Mortgagor is appointed, the Receiver shall thereafter act as principal and not as agent for the Collateral Agent, unless otherwise agreed by the Collateral Agent.
|
Any Receiver appointed under this Deed shall (subject to any contrary provision specified in his
appointment) have all the Rights of the Collateral Agent under Clause 0 (17. Rights of Collateral Agent and Secured
PARTIES) (insofar as applicable to a Receiver) and shall exercise the Rights, either in his own name or in the name of the Mortgagor or otherwise and in such manner and upon such terms and conditions as the Receiver reasonably thinks
fit:
|
(a)
|
Rights under Clause 0 (14.2
|
Enforcement): to exercise any or all of
the Rights conferred upon the Collateral Agent under Clause 0 to 0 and under Clause 0, as if reference to "Collateral Agent" in Clause 0 were a reference to "Receiver";
|
|
(b)
|
Insolvency Act: to exercise all rights set out in Schedule 1 of the Insolvency Act as in force at the date of this Deed (whether or not
in force at the date of exercise) and all other powers conferred by law, at the time of exercise, on Receivers;
|
|
(c)
|
Raise or borrow money: to raise or borrow money, either unsecured or on the security of any Secured Asset (either in priority to the
Security or otherwise) for any purpose whatsoever, including, without limitation, for the purpose of exercising any of the Rights conferred upon the Receiver by or pursuant to this Deed or of defraying any costs, charges, Losses,
liabilities or expenses (including his remuneration) incurred by or due to the Receiver in the exercise thereof, in each case and at all times, in accordance with its express power to raise or borrow money pursuant to Schedule 1 of
the Insolvency Act;
|
|
(d)
|
Redemption of Security Interests: to redeem any Security Interest (whether or not having priority to the Security) over any Secured Asset
and to settle the accounts of holders of such interests and any accounts so settled shall be conclusive and binding on the Mortgagor;
|
|
(e)
|
Receipts: to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any
Secured Asset;
|
|
(f)
|
Delegation: to delegate to any person any Rights exercisable by the Receiver under or in connection with this Deed, either generally or
specifically and on such terms as the Receiver reasonably thinks fit; and
|
|
(g)
|
General: to do all such other acts and things the Receiver considers necessary or desirable in connection with the exercise of any of the
Rights conferred upon the Receiver hereunder or by law and all things the Receiver considers incidental or conducive to the exercise and performance of such Rights and obligations and to do anything which the Receiver has the right to
do jointly with any other person.
|
Subject to section 36 of the Insolvency Act, the remuneration of any Receiver may be fixed by the
Collateral Agent without being limited to the maximum rate specified by section 109(6) of the LPA. Such remuneration shall be payable by the Mortgagor alone. The amount of such remuneration may be debited by the Collateral Agent from any
account of the Mortgagor but shall, in any event, form part of the Secured Obligations and accordingly be secured on the Secured Assets under the Security. Such remuneration shall be paid on such terms and in such manner as the Collateral
Agent and Receiver may from time to time agree or failing such agreement as the Collateral Agent reasonably determines.
17.
|
RIGHTS OF COLLATERAL AGENT AND SECURED PARTIES
|
The Collateral Agent may give a valid receipt for any moneys and execute any assurance or thing which may
be proper or desirable for realising any Secured Asset.
The Collateral Agent may at any time, and from time to time, delegate to any person any Rights
exercisable by the Collateral Agent under or in connection with this Deed on such terms and conditions (including power to sub-delegate) as the Collateral Agent thinks fit.
17.3
|
Redemption of prior Security Interests
|
The Collateral Agent may, at any time after an Enforcement Event has occurred, redeem any Security
Interest having priority to the Security at any time or procure the transfer thereof to the Collateral Agent and may settle the accounts of holders of such interests and any account so settled shall be conclusive and binding on the Mortgagor.
All principal monies, interest and Losses of and incidental to such redemption or transfer shall be paid by the Mortgagor to the Collateral Agent promptly on demand.
Until Payment in Full, the Collateral Agent or the Receiver (as appropriate) may at any time credit to
and retain in an interest bearing suspense account, for such period as it reasonably thinks fit, any moneys received, recovered or realised pursuant to this Deed, without any obligation to apply all or any part of the same in or towards the
discharge of the Secured Obligations.
If the Collateral Agent receives notice (actual or constructive) of any subsequent Security Interest
(other than any Security Interest permitted under the Loan Agreement) over any Secured Asset, or if an Insolvency Event in relation to the Mortgagor occurs, each Secured Party may open a new account in the name of the Mortgagor (whether or
not it allows any existing account to continue), and if it does not do so, it shall be deemed to have done so at the time the Collateral Agent received or was deemed to have received such notice or at the time that the Insolvency Event
commenced (such time the "Relevant Time"). Thereafter, all subsequent payments by the Mortgagor to the relevant Secured Party and all payments received by the relevant Secured Party for the account of
the Mortgagor, whether received from the Collateral Agent or otherwise, shall be credited or deemed to have been credited to the new account, and shall not operate to reduce the Secured Obligations owing to such Secured Party at the Relevant
Time.
17.6
|
Other security and rights
|
The Collateral Agent may, at any time, without affecting the Security or the liability of the Mortgagor
under this Deed: (a) refrain from applying or enforcing any other moneys, Security Interests or rights held or received by it (or any trustee or agent on its behalf) in respect of any Secured Obligations; or (b) apply and enforce the same in
such manner and order as it reasonably sees fit (whether against those amounts or otherwise), and the Mortgagor waives any right it may have of first requiring the Collateral Agent to proceed against any other person, exercise any other
rights or take any other steps before exercising any Rights under or pursuant to this Deed.
18.
|
APPLICATION OF MONEYS
|
All moneys realised, received or recovered by the Collateral Agent or any Receiver in the exercise of
their respective Rights under or in connection with this Deed, shall (subject, in each case, to any claims ranking in priority as a matter of law) be applied in or towards, in the order specified in the Loan Agreement.
18.2
|
Statutory Provisions
|
Sections 105, 107(2) and 109(8) of the LPA shall not apply to this Deed.
19.
|
LIABILITY OF COLLATERAL AGENT, RECEIVER AND DELEGATES
|
19.1
|
No Relevant Person shall, in any circumstances, (whether as mortgagee in possession or otherwise) be liable to the Mortgagor or to any other person for any Loss arising under or
in connection with this Deed or the Security, including, without limitation, any Loss relating to: (a) the enforcement of the Security in accordance with this Deed; or (b) any exercise, purported exercise or non-exercise of any Right
under or in relation to this Deed or the Security.
|
19.2
|
Clause 0 (19.
|
Liability of Collateral Agent, RECEIVER )
shall not apply in respect of any Loss to the extent that it has been found by a final non-appealable judgment of a court of competent jurisdiction to have been incurred by reason of the Relevant Person’s gross negligence, wilful
misconduct or unlawful conduct.
|
19.3
|
The Mortgagor may not take any proceedings against any officer, employee or agent of the Collateral Agent or of any Receiver or of any Delegate in respect of any claim against
the Collateral Agent, Receiver or Delegate or in respect of any act or omission of such officer, employee or agent (save where such act has been found by a final non‑appealable judgment of a court of competent jurisdiction to have
been a direct result of his or its gross negligence, wilful misconduct or unlawful conduct), in each case in connection with this Deed.
|
19.4
|
Each officer, employee and agent of the Collateral Agent or of any Receiver or Delegate may rely on this Clause 0 (19.Liability of Collateral Agent, RECEIVER ) in accordance with the Third Parties Act (but subject to Clause 0 (27.5Third party rights)).
|
The Mortgagor shall indemnify each Relevant Person to the extent that and in the manner in which the
Borrowers indemnify the Indemnitees under Section 11.04 (Indemnity) of the Loan Agreement. Each Relevant Person may rely on this Clause 0 (20. INDEMNITY) in accordance with the Third Parties Act but subject to Clause 0 (27.5Third party rights).
21.
|
PROTECTION OF THIRD PARTIES
|
No person (including a purchaser) dealing with the Collateral Agent, any Receiver or any Delegate shall
be concerned to enquire: (a) whether any Secured Obligation has become payable or remains outstanding; (b) whether any event has happened upon which any of the Rights exercised or purported to be exercised by the Collateral Agent, any
Receiver or any Delegate under or in connection with this Deed, the LPA, the Insolvency Act or otherwise has arisen or become exercisable; (c) whether any consents, regulations, restrictions or directions relating to any such Rights have been
obtained or complied with; (d) otherwise as to the propriety, regularity or validity of the exercise or purported exercise of any such Rights; or (e) as to the application of any moneys borrowed or raised or any realisation proceeds and the
receipt of the Collateral Agent, Receiver or Delegate shall be an absolute and conclusive discharge to the relevant person.
22.
|
SECURITY CONTINUING, CUMULATIVE AND NOT TO BE AFFECTED
|
Subject to Clauses 0, 0 and 0 (26. Release of SECURITY), the Security shall remain in full force and effect as a continuing security to the
Collateral Agent for the Secured Obligations and shall not be satisfied, discharged or affected by any intermediate payment or discharge of all or part of the Secured Obligations or by any other matter or thing whatsoever.
22.2
|
Security Interests cumulative
|
The Security is in addition to, and shall not be prejudiced by, any other Security Interest, guarantee,
indemnity, right of recourse or any other right which the Collateral Agent or any Secured Party may now or hereafter have in respect of all or any part of the Secured Obligations. No prior Security Interest shall merge with any Security.
22.3
|
Security not to be affected
|
Neither the obligations of the Mortgagor under or pursuant to this Deed nor the Security will be
prejudiced or affected by any act, omission or thing (whether or not known to the Mortgagor or the Collateral Agent or any Secured Party) which, but for this provision, would reduce, release, prejudice or provide any defence in respect of any
of the Mortgagor's obligations under or pursuant to this Deed or the Security including, without limitation: (a) any variation, amendment, novation, supplement, extension, restatement or replacement of, or any waiver or release granted under
or in connection with, any Loan Document, any document the obligations under which are secured hereunder, any other security, any guarantee, any indemnity or any other document; (b) any time being given, or any other indulgence or concession
being granted, by the Collateral Agent to the Mortgagor or any other person; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or any Security
Interest over assets of, any other person; (d) any non-observance of any formality; (e) any incapacity or lack of power or authority of the Mortgagor or any other person; (f) any change in the constitution, membership, ownership, legal form,
name or status of the Mortgagor or any other person; (g) any unenforceability, illegality or invalidity of any obligation of any person under any other deed or document; or (h) any insolvency or similar proceedings; (i) any amalgamation,
merger or reconstruction effected by the Collateral Agent with any other person or any sale or transfer of the whole or any part of the undertaking and assets of the Collateral Agent to any other person; (j) the existence of any claim,
set-off or other right which the Mortgagor may have at any time against the Collateral Agent or any other person; or (k) the making or absence of any demand for payment of any Obligation by the Collateral Agent or otherwise.
23.
|
CERTIFICATE CONCLUSIVE, ETC
|
For all purposes, including any Proceedings, a certificate signed by any officer or manager of the
Collateral Agent (or copy thereof) as to the amount of any indebtedness comprised in the Secured Obligations, any applicable rate of interest or any other amount or interest rate for the purpose of this Deed shall, in the absence of manifest
error, be conclusive and binding on the Mortgagor and all entries in any accounts maintained by the Collateral Agent for the purposes of this Deed shall be prima facie evidence of the matters to which they relate.
24.
|
NO SET-OFF BY MORTGAGOR
|
The Mortgagor shall not be entitled to, and shall not, set off any obligation owed by the Collateral
Agent or any other Secured Party to the Mortgagor against any obligation whether or not matured owed by the Mortgagor to the Collateral Agent or other Secured Party and shall make all payments to be made by it under this Deed in full without
any set off, restriction or condition and without any deduction for or on account of any counterclaim.
The Mortgagor shall pay to the Collateral Agent in relation to this Deed such costs and expenses as are of
the type which are reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, Etc.) of the Loan Agreement.
26.1
|
Subject to Clauses 0 and 0 (26.
|
Release of SECURITY), upon Payment in Full, the Collateral Agent shall, at the request and cost of the Mortgagor, execute such documents and do all such things as may be necessary to release the Secured Assets from
the Security.
|
26.2
|
Notwithstanding anything to the contrary in this Deed (including, without limitation, Clauses 0 and 0 (26.Release of SECURITY) hereof), the obligations of the Mortgagor under this Deed shall automatically terminate and the Collateral Agent shall, at the request and cost of the
Mortgagor, execute such documents and do all such things as may be necessary to release the Secured Assets from the Security to the extent provided in and in accordance with Section 11.01(c) (Waiver;
Amendments; Joinder; Release of Guarantors; Release of Collateral) and Section 11.23 (Release of Guarantors) of the Loan Agreement.
|
26.3
|
If any amount paid by the Mortgagor in respect of the Secured Obligations is capable of being avoided or set aside on the liquidation or administration of the Mortgagor or
otherwise, then for the purposes of this Deed that amount shall not be considered to have been paid. No interest shall accrue on any such amount, unless and until such amount is so avoided or
set aside.
|
27.1
|
Remedies and waivers
|
No failure to exercise or delay in exercising any right, power or remedy provided by law or under this
Deed shall operate to impair the same or be construed as a waiver of it. No single or partial exercise of any such right, power or remedy shall preclude or restrict any further or other exercise of the same or the exercise of any other
right, power or remedy. No waiver of any such right, power or remedy shall constitute a waiver of any other right, power or remedy. Except as expressly provided in this Deed, the rights, powers and remedies provided in this Deed are
cumulative and not exclusive of any rights provided by law.
27.2
|
Variations and consents
|
No consent, variation or waiver in respect of any provision of this Deed shall be effective unless it is
agreed in writing and signed by or on behalf of each of the parties to this Deed.
27.3
|
Invalidity and severability
|
If any provision of this Deed is or becomes or is found by a court or other competent authority to be
illegal, invalid or unenforceable in any respect, in whole or in part, under any law of any jurisdiction, that shall not affect or impair the legality, validity and enforceability in that jurisdiction of any other provision of this Deed or
the legality, validity or enforceability in any other jurisdiction of that provision or any other provision of this Deed.
This Deed (and each variation or waiver in respect of any provision of it) may be executed in any number
of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, once executed and, where relevant, delivered, shall constitute an original of
this Deed or the relevant variation or waiver, but all the counterparts together shall constitute one and the same instrument.
Except for each Secured Party who is not party to this Deed and as otherwise specifically provided herein
a person who is not party to this Deed has no right under the Third Parties Act to enforce any provision of this Deed. Each Secured Party (who is not party to this Deed) may enforce and enjoy the benefits of the provisions of Clauses 0 (17.Rights of Collateral Agent and Secured PARTIES), 0 (20.INDEMNITY) and 0 (25.Costs and EXPENSES) of this Deed. This does not affect any right or remedy of a third party which exists or is
available other than under the Third Parties Act.
This Deed together with the other Loan Documents constitutes the entire agreement and understanding
between the parties relating to their subject matter. Accordingly this Deed supersedes all prior oral or written agreements, representations or warranties. Any liabilities for and any remedies in respect of any such agreements,
representations or warranties made are excluded, save only in respect of such as are expressly made or repeated in this Deed or in the other Loan Documents. No party has entered into this Deed or any other Loan Document in reliance on any
oral or written agreement, representation or warranty of any other party or any other person which is not made or repeated in this Deed or any other Loan Document. Nothing in this Clause shall operate to exclude liability for any fraudulent
statement or act.
Subject to Clause 0 (1.2 Interpretation), if there is any conflict or
inconsistency between the provisions of this Deed and any other Loan Document, the provisions of this Deed shall prevail.
28.1
|
The Collateral Agent may, at any time, in accordance with the Loan Agreement, assign, mortgage, charge, grant a trust over or otherwise dispose of all or any of its rights and
benefits under this Deed.
|
28.2
|
The Mortgagor shall not assign, charge, grant a trust over or otherwise dispose of all or any of its rights and benefits under this Deed, except as permitted under the Loan
Agreement.
|
Any notice or other communication under this Deed shall be made in accordance with the provisions set out
in the Loan Agreement. Any notice delivered to the Parent or the Borrowers on behalf of the Mortgagor shall be deemed to have been delivered to the Mortgagor.
30.
|
GOVERNING LAW AND JURISDICTION
|
This Deed (including any non-contractual obligations or liabilities arising out of it or in connection
with it) is governed by and is to be construed in accordance with English law.
|
(a)
|
Each party irrevocably agrees that:
|
|
(i)
|
the English courts have non-exclusive jurisdiction to hear and determine any Proceedings and to settle any Disputes and each party irrevocably submits to the jurisdiction of the
English courts;
|
|
(ii)
|
any Proceedings may be taken in the English courts;
|
|
(iii)
|
any judgment in Proceedings taken in any such court shall be conclusive and binding on it and may be enforced in any other jurisdiction.
|
|
(b)
|
Each party also irrevocably waives (and irrevocably agrees not to raise) any objection which it might at any time have on the ground of forum non conveniens or on any other
ground to Proceedings being taken in any court referred to in this Clause 0 (30.Governing Law and JURISDICTION).
|
|
(c)
|
Nothing in this Clause 0 shall limit any party's right to take Proceedings against the other party in any other jurisdiction or in more than one jurisdiction concurrently.
|
|
(d)
|
This jurisdiction agreement is not concluded for the benefit of only one party.
|
This Deed has been executed as a deed and is delivered on the date stated at the top of page one.
[Signature pages follow]
Executed as deed by WEATHERFORD )
EURASIA LIMITED acting by a director, )
in the presence of: )
___________________________
Director
Name:
___________________________
Witness:
Name:
Occupation:
Address:
COLLATERAL AGENT
Executed as a deed by DEUTSCHE BANK )
TRUST COMPANY AMERICAS)
acting by ........................................................... )
........................................................................... )
who, in accordance with the laws of the territory )
in which Deutsche Bank Trust Company Americas )
is incorporated, is/are acting under its authority )
___________________________
Authorised signatory
Name:
___________________________
Authorised signatory
Name:
SCHEDULE 1
ORIGINAL SHARES
Name of Company
|
Class of Shares
|
Nominal Value of each Share
|
Number of Shares
|
Certificate number(s)
|
Registered holder as at the date hereof
|
Weatherford U.K. Limited
|
Ordinary
|
£1.00
|
1,825
|
3
|
Weatherford Eurasia Limited
|
|
|
|
|
|
|
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
The Original Shares:
|
(a)
|
have been duly authorised and validly issued;
|
|
(b)
|
are free from any restrictions or conditions on transfer or rights of pre-emption, except as otherwise permitted by the Loan Agreement;
|
|
(c)
|
are fully paid, and no moneys or liabilities are outstanding in respect of any of them; and
|
|
(d)
|
represent the whole of the issued share capital of the Company.
|
All Further Shares and any Shares comprised in any Derived Assets:
|
(a)
|
have been duly authorised and validly issued;
|
|
(b)
|
are free from any restrictions or conditions on transfer or rights of pre‑emption, except as otherwise permitted by the Loan Agreement;
|
|
(c)
|
are fully paid, and no monies or liabilities are outstanding in respect of any of them; and
|
together with the Original Shares, any Further Shares and Shares comprised in any Derived Assets
previously issued represent the whole of the issued share capital of the Company except as otherwise permitted by the Loan Agreement.
|
(a)
|
The Mortgagor represents and warrants that it has not issued and does not intend to issue any warning notice or restrictions notice under Schedule 1B of the Companies Act 2006
in respect of any Shares which constitute Secured Asset; and
|
|
(b)
|
the Mortgagor has not received any warning notice or restrictions notice under Schedule 1B of the Companies Act 2006 in respect of any Shares which constitute Secured Asset.
|
SCHEDULE 3
COVENANTS
|
1.
|
Restrictions on Transfer and Rights of Pre-emption
|
The Mortgagor shall ensure that the Original Shares, any Further Shares and any Shares comprised in any
Derived Assets are and remain free from any restriction on transfer or rights of pre-emption, except as otherwise permitted by the Loan Agreement.
|
2.
|
Articles of Association
|
The Mortgagor shall not permit the articles of association of the Company to be amended or modified in
any way that would adversely affect in any material respect the Security created pursuant to this Deed.
EXECUTION VERSION
DATED _________________, 2019
WEATHERFORD EURASIA LIMITED
(the Company)
‑ and ‑
DEUTSCHE BANK TRUST COMPANY AMERICAS
(the Collateral Agent)
DEED OF CHARGE AND ASSIGNMENT
This Deed of Charge and Assignment is entered into subject to the terms of the Intercreditor Agreement dated on or around the
date of this Deed (as amended from time to time).
TABLE OF CONTENTS
Clause
|
|
Page No.
|
|
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
2.
|
TRUST
|
12
|
3.
|
INTERCREDITOR AGREEMENT
|
12
|
4.
|
ABL DEED OF CHARGE AND ASSIGNMENT
|
13
|
5.
|
COVENANT TO PAY
|
13
|
6.
|
SECURITY
|
13
|
7.
|
REDEMPTION OF SECURITY
|
16
|
8.
|
REPRESENTATIONS AND WARRANTIES
|
17
|
9.
|
COVENANTS RELATING TO ASSETS – PERFECTION, RESTRICTIONS ON DEALINGS, PROTECTION
|
18
|
10.
|
GENERAL COVENANTS
|
23
|
11.
|
CRYSTALLISATION OF FLOATING CHARGE
|
23
|
12.
|
ENFORCEMENT
|
24
|
13.
|
CONTINUING SECURITY, OTHER SECURITY ETC.
|
25
|
14.
|
FURTHER ASSURANCES, POWER OF ATTORNEY, ETC.
|
25
|
15.
|
THE COLLATERAL AGENT'S RIGHTS
|
26
|
16.
|
APPOINTMENT OF ADMINISTRATOR
|
28
|
17.
|
RECEIVER
|
29
|
18.
|
APPLICATION OF MONEYS
|
31
|
19.
|
PROTECTION OF THIRD PARTIES
|
31
|
20.
|
PROTECTION OF COLLATERAL AGENT AND RECEIVER
|
32
|
21.
|
COSTS, EXPENSES AND INDEMNITY
|
32
|
22.
|
CONSENTS, VARIATIONS, WAIVERS AND RIGHTS
|
33
|
23.
|
PARTIAL INVALIDITY
|
33
|
24.
|
COUNTERPARTS
|
33
|
25.
|
THIRD PARTIES
|
33
|
26.
|
DETERMINATIONS
|
34
|
27.
|
ASSIGNMENT
|
34
|
28.
|
NOTICES
|
34
|
29.
|
GOVERNING LAW AND JURISDICTION
|
34
|
SCHEDULE 1 BANK ACCOUNTS
|
37
|
PART 1 – GENERAL BANK ACCOUNTS
|
37
|
PART 2 – COLLECTION BANK ACCOUNT
|
38
|
SCHEDULE 2 ASSIGNED AGREEMENTS
|
39
|
SCHEDULE 3 INSURANCE POLICIES
|
40
|
SCHEDULE 4 FORM OF NOTICE OF CHARGE OF BANK ACCOUNTS
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41
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PART 1 – FORM OF NOTICE OF CHARGE FOR GENERAL BANK ACCOUNTS
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41
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PART 2 – FORM OF NOTICE OF CHARGE FOR COLLECTION BANK ACCOUNTS
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45
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SCHEDULE 5 FORM OF NOTICE OF CHARGE OF ASSIGNED AGREEMENTS
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49
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SCHEDULE 6 FORM OF NOTICE OF CHARGE OF INSURANCE POLICIES
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52
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THIS DEED OF CHARGE AND ASSIGNMENT is made on ______________, 2019
BETWEEN:
(1)
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WEATHERFORD EURASIA LIMITED, a limited company incorporated in England and Wales under registered number 02440463, whose registered
office is at Weatherford Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX (the "Company"); and
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(2)
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DEUTSCHE BANK TRUST COMPANY AMERICAS (the "Collateral Agent"), which expression includes its
successors in title and assigns acting for itself and on behalf of the Secured Parties as the holders of the Secured Obligations (as defined below)).
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RECITALS:
(A)
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Under the Loan Agreement (as defined below) the Lenders have granted to the Borrowers a letter of credit line facility (the "Facility").
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(B)
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Under the Guarantee various Affiliates of the Parent, including the Company, have guaranteed the obligations of the Borrowers under the Loan Agreement.
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(C)
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It is a requirement under the Loan Agreement that obligations of the Company under the Guarantee are secured by this Deed.
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(D)
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The Company has agreed to mortgage, assign and charge by way of security all of its right, title, interest and benefit in, to and under its assets, rights, revenues and
undertaking (except any Excluded Assets) in favour of the Collateral Agent as security for the Secured Obligations, subject to and in accordance with the terms and conditions of this Deed (each as defined below).
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(E)
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The Company's board of directors has concluded after due consideration of all relevant circumstances that entering into this Deed is in the best interests of and for the benefit
of the Company for the purposes of its business.
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(F)
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It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand.
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IT IS AGREED AND THIS DEED PROVIDES as follows:
1.
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DEFINITIONS AND INTERPRETATION
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1.1
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Capitalised words and phrases used but not defined in this Deed shall have the meanings set out in the Loan Agreement and the following words and expressions have the meanings
set out below:
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"ABL Deed of Charge
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means a deed of charge and assignment dated on
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and Assignment"
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or about the date hereof between, amongst others, the Company and Wells Fargo Bank, National Association as collateral agent, granted pursuant to an asset based loan credit
agreement dated on or around the date of this Deed between, amongst others, Weatherford International Ltd. and Weatherford International, LLC as borrowers, the lenders party thereto, and Wells Fargo Bank, National Association as
collateral agent;
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"Administrator"
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means any person or persons for the time being acting as administrator of the Company pursuant to the provisions of the Insolvency Act;
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"Assets"
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means property, assets, rights, revenues, income, uncalled capital, licences, business and undertakings and any interest therein, in each case whatsoever and wheresoever
situated, present and future (but shall exclude, for the avoidance of doubt, the Excluded Assets);
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"Assigned Assets"
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has the meaning set out in Clause 0 (6.4
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Assignment);
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"Assigned Agreements"
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means each agreement specified in Schedule 2 (Assigned Agreements) together with each other agreement supplementing or amending or
novating or replacing the same designated as an Assigned Agreement;
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"Bank Accounts"
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means the General Bank Accounts and the Collection Bank Accounts;
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"Book Debts"
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means all book and other debts (including rents) and other moneys, liabilities and monetary claims of any nature whatsoever now or hereafter due, owing or payable to the Company
(including moneys, liabilities and claims deriving from or in relation to any Investments, any contract or agreement to which the Company is party, or any other Assets or rights of the Company, and including the benefit of any
judgment or order to pay money and any amounts due or owing from any government or governmental agency including in respect of Taxes) and all other rights of the Company to receive money (but excluding all moneys now or hereafter
standing to the credit of any account held by the Company with any bank) and any proceeds thereof; and the benefit of (including the proceeds of all claims under) all rights, Security Interests, securities, guarantees, indemnities,
negotiable instruments, letters of credit and Insurances of any nature whatsoever now or hereafter owned or held by the Company in relation to any of the foregoing (but "Book Debts" shall
exclude, for the avoidance of doubt, the Excluded Assets);
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"Business Day"
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means any day (other than a Saturday or Sunday) on which banks are open for business in London and New York City;
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"cash"
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means cash within the meaning of Financial Collateral Arrangements (No. 2) Regulations 2003;
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"Centre of Main Interests"
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means, in relation to a person, its centre of main interests within the meaning of the EC Regulation on Insolvency Proceedings 2000;
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"Charged Assets"
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means all Assets from time to time subject or expressed or intended to be subject to the Charges (whether fixed or floating) under or pursuant to this Deed, and "Charged Assets" includes any part of any of them and any right, title, interest or benefit therein or in respect thereof (but shall exclude, for the avoidance of doubt, the Excluded Assets);
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"Charges"
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means any or all of the Security Interests created or expressed to be created, or which may now or hereafter be created or expressed to be created, by or pursuant to this Deed,
including any further Security Interests created pursuant to Clause 0 (14.Further Assurances, Power of Attorney, ETC.) or Clause 0 (6.9Excluded Property);
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"Collection Account Banks"
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means the account banks listed in Part 2 of Schedule 1 (Collection Bank Account) under the column "Account
Bank";
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"Collection Account Notice"
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means a notice in the form set out in Part 2 of Schedule 4 (Form of Notice of Charge for Collection Bank Accounts );
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"Collection Bank Accounts"
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means the accounts listed in Part 2 of Schedule 1 (Collection Bank Account) held by the Company with the bank or banks specified in
Part 2 of Schedule 1 (Collection Bank Account) and any other bank account maintained by the Company with any financial institution as the Collateral Agent may from time to time designate in
writing as a Collection Bank Account, including in each case any redesignation or renewal thereof and all balances now or hereafter standing to the credit of any such account including all interest from time to time thereon, the debt
represented thereby and all rights in relation thereto (but "Collection Bank Accounts" shall exclude, for the avoidance of doubt, the Excluded Assets);
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"Credit Claims"
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means credit claims within the meaning of the Financial Collateral Arrangements (No 2) Regulations 2003;
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"Delegate"
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means a delegate or subdelegate appointed pursuant to Clause 0 (15.The Collateral Agent's RIGHTS);
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"Disputes"
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means any disputes which may arise out of or in connection with this Deed (including regarding its existence, validity or termination);
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"Enforcement Event"
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has the meaning set out in Clause 0 (12.
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ENFORCEMENT);
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"Equipment"
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means plant, machinery, equipment (including office equipment), vehicles, computers and other chattels of any kind (but excluding any from time to time which are part of the
Company's stock in trade or work in progress) now or hereafter owned by the Company or in its possession and all proceeds of sale or other disposal thereof, all moneys paid or payable in respect thereof, rights under any agreement,
Security Interest or guarantee in relation thereto and all other rights in relation thereto, and "Equipment" includes any part of any of them (but "Equipment"
shall exclude, for the avoidance of doubt, the Excluded Assets);
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(a)
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shares and other Assets charged in favour of the Collateral Agent pursuant to an Equitable Share Mortgage of even date herewith between the Company and the Collateral Agent; and
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(b)
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the "Excluded Assets" as defined in the Loan Agreement;
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"financial collateral"
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means financial collateral within the meaning of the Financial Collateral Arrangements (No. 2) Regulations 2003, as amended;
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"financial instrument"
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means a financial instrument within the meaning of the Financial Collateral Arrangements (No. 2) Regulations 2003;
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"Fixed Charge Assets"
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means any part or parts of the Charged Assets effectively charged by way of fixed Security Interests or effectively mortgaged or assigned by way of fixed Security Interests
under this Deed;
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"Fixtures"
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means fixtures, fittings and fixed plant, machinery and equipment (including trade fixtures and fittings);
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"Floating Charge Assets"
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means any part or parts of the Charged Assets subject to the floating charge contained in Clause 0 (6.5Floating Charge);
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"General Account Banks"
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means the account banks listed in Part 1 of Schedule 1 (General Bank Accounts) under the heading "Account
Bank";
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"General Bank Accounts"
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means the accounts listed in Part 1 of Schedule 1 (General Bank Accounts) held by the Company with the bank or banks specified in Part 1
of Schedule 1 (General Bank Accounts) and any other bank account maintained by the Company with any financial institution as the Collateral Agent may from time to time designate in writing as a
General Bank Account, including in each case any redesignation or renewal thereof and all balances now or hereafter standing to the credit of any such account including all interest from time to time thereon, the debt represented
thereby and all rights in relation thereto (but "General Bank Accounts" shall exclude, for the avoidance of doubt, the Excluded Assets);
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"Guarantee"
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means an Affiliate Guaranty dated on or around the date of this Deed between, among others, the Parent and the Collateral Agent;
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"Holding Company"
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means a holding company within the meaning of section 1159 of the Companies Act 2006;
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"Insolvency Act"
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means the Insolvency Act 1986;
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"Insolvency Event"
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in relation to any person, means:
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(a)
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such person is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness (including any composition, assignment or arrangement with any creditor of such person);
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(b)
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any resolution is passed or order made for the winding up, dissolution, administration or reorganisation of that person, a moratorium is declared in relation to any indebtedness
of that person or an administrator is appointed to that person (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent);
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(c)
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the appointment of any liquidator (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent), receiver,
administrator, administrative receiver, compulsory manager or other similar officer in respect of that person or any of its assets; or
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(d)
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in respect of any person, any analogous procedure or step is taken in any jurisdiction.
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"Insolvency Rules"
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means the Insolvency Rules 2016;
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"Insurances"
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means contracts or policies of insurance or indemnity of any kind (including life insurance or assurance) now or hereafter taken out by or on behalf of the Company or (to the
extent of its interest) in which the Company has any interest, and all rights in relation thereto, proceeds thereof, claims and returns of premium in respect thereof (but "Insurances" shall
exclude, for the avoidance of doubt, the Excluded Assets);
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"Intercreditor Agreement"
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means the intercreditor agreement, dated on or around the date of this Deed, among the Collateral Agent, Wells Fargo Bank, National Association, the Parent, Weatherford
International Ltd., Weatherford International LLC, and the other grantors of the Parent named therein;
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"Intellectual Property Rights"
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means patents, registered designs, copyrights, inventions, semi‑conductor topography rights, rights in designs, rights in trade marks and service marks, business names and trade
names, get up, logos, domain names, moral rights, rights in confidential information, rights in know‑how, database rights, rights protecting goodwill, or reputation and any interests (including by way of licence or sub‑licence) in any
of the foregoing, and any other intellectual property rights and interests whatsoever now or hereafter owned by the Company or in which it has any interest, in each case whether registered or not and including all applications, rights
to apply for and rights to use the same and all fees, royalties and other rights of every kind relating to or deriving from any of the same (but "Intellectual Property Rights" shall exclude, for
the avoidance of doubt, the Excluded Assets);
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"Investments"
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means shares, stocks, bonds, notes, certificates of deposit, debenture stocks, loan stocks and other securities or investments of any kind and all rights relating to any of the
foregoing (including rights relating to any of the same which are deposited with, registered in the name of or credited to an account with any clearing system or house, depositary, custodian, nominee, controller, investment manager or
other similar person or their nominee, in each case whether or not on a fungible basis and including all rights against such person); warrants, options or other rights to subscribe for, purchase, call for delivery of, redeem, convert
other securities or investments into or otherwise to acquire any of the foregoing; and units in a unit trust scheme (as defined in section 237(1) of the Financial Services and Markets Act 2000); together in each case with all rights
in respect thereof and all dividends, interest, cash or other distributions, accretions or Investments in respect of or deriving from any of the foregoing, and "Investments" means any of the
foregoing including any part of them (but "Investments" shall exclude, for the avoidance of doubt, the Excluded Assets);
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"Law of Property Act"
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means the Law of Property Act 1925;
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"Legally Mortgaged Property"
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means any Real Property which may in future be legally mortgaged or charged by the Company to the Collateral Agent by or pursuant to this Deed, and "Legally Mortgaged Property" includes any part of any such Real Property;
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"Loan Agreement"
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means the letter of credit facility agreement, between, among others, the Parent, the Collateral Agent and the Lenders, dated on or around the date of this Deed;
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"Loss"
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means any liability, damages, claim, cost, loss, penalty, expense, demand (or actions in respect thereof) including, legal, accounting or other charges, fees, costs,
disbursements and expenses in connection therewith;
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"Material Real Property"
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means Real Property located in the United States of America, Canada or the United Kingdom owned by the Company with a net book value in excess of US$10,000,000 and that is not
an Excluded Asset;
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"Mortgaged Investments"
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means Investments from time to time subject or expressed to be subject to the Charges, and "Mortgaged Investments" includes any part of
any of them;
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"Parent"
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means Weatherford International Public Limited Company, a public limited company incorporated in the Republic of Ireland, with registered number 540406 whose registered office
address is 70 Sir John Rogerson's Quay, Dublin 2;
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"Payment in Full"
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means the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan
Documents (other than contingent indemnification obligations as to which no claim has been received by the Company) shall have been paid in full in cash;
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"Proceedings"
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means any proceedings, suits or actions arising out of or in connection with any Disputes or otherwise arising out of or in connection with this Deed (including regarding its
existence, validity or termination);
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"Real Property"
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means freehold property in England and Wales and any other land or buildings anywhere in the world, any estate or interest therein and any reference to "Real Property" includes a reference to all rights from time to time attached or appurtenant thereto and all buildings and Fixtures from time to time therein or thereon;
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"receiver"
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includes a manager, a receiver and manager and an "administrative receiver" as defined by Section 251 of the Insolvency Act;
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"Receiver"
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means a receiver appointed under this Deed or pursuant to any applicable law, and includes more than one such receiver and any substituted receiver but not an administrative
receiver as defined in Section 251 of the Insolvency Act;
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"Related Rights" means:
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(c)
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all dividends, distributions and other income paid or payable on a Investment, together with all shares or other property derived from any Investment and all other allotments,
accretions, rights, benefits and advantages of all kinds accruing, offered or otherwise derived from or incidental to that Investment (whether by way of conversion, redemption, bonus, preference, option or otherwise);
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(d)
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in relation to any other Charged Assets:
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(i)
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the proceeds of sale, transfer or other disposition of any part of that asset;
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(ii)
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all rights under any licence, agreement for sale or agreement for lease in respect of that asset;
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(iii)
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all rights, process, benefits, claims, causes of action, contracts, warranties, remedies, security, guarantee, indemnities or covenants for title in respect of or derived from
that asset; and/or
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(iv)
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any income, moneys and proceeds paid or payable in respect of that asset;
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"Relevant Charged Assets"
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means such part or parts of the Charged Assets in respect of which a Receiver has been appointed;
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"Requirement of Law"
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means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its property is subject;
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"Secured Obligations"
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has the meaning given to it in the Loan Agreement but, for the avoidance of doubt, shall also include all legal and other costs, charges and expenses and any other Loss which
the Collateral Agent, any other Secured Party, any Receiver or any Delegate may incur in enforcing or obtaining, or attempting to enforce or obtain, payment of any such moneys and liabilities to the extent such costs, charges,
expenses and other Losses are of the type reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, Etc.) of the Loan Agreement;
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"Secured Parties"
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has the meaning given to it in the Loan Agreement;
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"Security Interest"
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means any mortgage or sub‑mortgage, standard security, fixed or floating charge or sub‑charge, pledge, lien, assignment or assignation by way of security or subject to a proviso
for redemption, encumbrance, hypothecation, retention of title, or other security interest whatsoever howsoever created or arising and its equivalent or analogue whatever called in any other jurisdiction, and any agreement or
arrangement having substantially the same economic or financial effect as any of the foregoing (including any "hold back" or "flawed asset" arrangement)
and any secured interest, agreement or arrangement analogous to any of the foregoing arising under the laws of any other jurisdiction;
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"Taxes"
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has the meaning given to it in the Loan Agreement and "Tax" and "Taxation" shall be construed
accordingly;
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1.2
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In this Deed, unless otherwise specified:
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(a)
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references to the neuter or to any gender include both genders and the neuter, references to a "company" shall be construed so as to
include any company, corporation or other body corporate, wherever and however incorporated or established, and references to a "person" include any individual, firm, partnership, body
corporate, unincorporated association, government, state or agency of a state, local or municipal authority or government body, trust, foundation, joint venture or association (in each case whether or not having separate legal
personality);
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(b)
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references to parties, Clauses, sub‑Clauses, paragraphs, sub‑paragraphs and Schedules, Exhibits and Annexures are to Clauses, sub‑Clauses and paragraphs and sub‑paragraphs of,
and the parties and Schedules to, this Deed, and references to this Deed include a reference to each of its Schedules, Exhibits and Annexures;
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(c)
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a reference to this Deed, an agreement or other document is a reference to this Deed, that agreement or document as supplemented, amended, novated or replaced from time to time
in accordance with its terms, and to any agreement, deed or document executed pursuant thereto;
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(d)
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the words "include" and "including" are to be construed without limitation, general words
introduced by the word "other" are not to be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things, and
general words are not to be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;
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(e)
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a reference to a "day" means a period of 24 hours running for midnight to midnight; a reference to a time of day is to London time;
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(f)
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headings are for convenience only and shall not affect the interpretation of this Deed;
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(g)
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a reference to the provision of any statute, statutory provision, order, instrument, rule or regulation is to that provision as amended or re‑enacted from time to time, any
provision of which it is a re‑enactment or consolidation and any order, instrument, rule or regulation at any time made or issued under it;
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(h)
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the word "vary" shall be construed to include amend, modify and supplement, and "variation" and
other cognate terms shall be construed accordingly;
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(i)
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a reference to a person shall include references to his permitted successors, transferees (including by novation) and assigns and any person deriving title under or through him,
whether in security or otherwise; and any person into which such person may be merged or consolidated, or any company resulting from any merger, conversion or consolidation or any person succeeding to substantially all of the business
of that person; and
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(j)
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a reference to "dollars" or "US$" is to the lawful currency for the time being of the United
States of America;
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(k)
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a document expressed to be "in the agreed form" means a document in a form which has been agreed by the parties and a copy of which has
been identified as such and initialled by or on behalf of each of the parties; and
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(l)
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a reference to "rights" includes rights, remedies, benefits, authorities, powers, privileges, discretions, claims, remedies, liberties,
easements, quasi-easements and appurtenances (in each case, of any nature whatsoever whether under this Deed, by statute, at law or in equity) or otherwise howsoever.
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1.3
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The undertakings and other obligations of the Company, Collateral Agent or any other person under this Deed shall at all times be read and construed as subject to the provisions
of the Intercreditor Agreement, Loan Agreement and the Guarantee which shall prevail in case of any conflict. Subject to this and to Clause 0 (1.Definitions and
INTERPRETATION), if there is any conflict or inconsistency between the provisions of this Deed and any other Loan Document, the provisions of this Deed shall prevail.
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1.4
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The terms of this Deed shall not operate or be construed so as to prohibit or restrict any transaction or matter that is permitted by the Loan Agreement.
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1.5
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For the purpose of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, this Deed incorporates all the terms of the Loan Agreement and the other Loan Documents.
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2.1
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The Collateral Agent shall hold, and hereby declares that it shall hold, the benefit of the Charges and the benefit of all representations, warranties, covenants and
undertakings under this Deed on trust for the Secured Parties on and subject to the terms of this Deed and the Company hereby acknowledges such trusts.
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2.2
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In this Deed the Collateral Agent acts under the authority of the Secured Parties contained in Article X (Administrative Agent) of the
Loan Agreement and in accordance with, subject to and with the full benefit of the provisions of such Article X (Administrative Agent).
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3.
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INTERCREDITOR AGREEMENT
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3.1
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Reference is made to the Intercreditor Agreement. Each Secured Party, of its acceptance of the benefits of this Deed (a) consents to the subordination of security provided for
in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Collateral Agent to enter into the
Intercreditor Agreement as Collateral Agent on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the Secured Parties to extend credit to Borrowers or to acquire any notes or other evidence of any
debt obligation owing from the Borrowers and such Secured Parties are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
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3.2
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Notwithstanding any other provision contained herein, this Deed, the security created hereby and the rights, remedies, duties and obligations provided for herein are subject in
all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable LC Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between
the provisions of this Deed and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail.
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4.
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ABL DEED OF CHARGE AND ASSIGNMENT
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4.1
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All security created under this Deed does not affect the security created by the ABL Deed of Charge and Assignment.
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4.2
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Notwithstanding any provision of this Deed, provided that the Company is in compliance with the terms of the ABL Deed of Charge and Assignment (including without limitation, any
obligation to deliver or deposit any deeds, documents of title, certificates, evidence of ownership or other original documentation thereunder) then to the extent that the terms of this Deed impose the same or substantially the same
obligation in respect of such deeds, documents of title, certificates, evidence of ownership or other original documentation, the Company will be deemed to have complied with the relevant obligations under this Deed by virtue of its
compliance under the ABL Deed of Charge and Assignment, provided however that, in the event that the terms of the ABL Deed of Charge and Assignment no longer continue to be in full force and effect or the ABL Deed of Charge and
Assignment is released or discharged (or as otherwise required by the Intercreditor Agreement) the Company shall be required to as soon as reasonably practicable comply with the relevant obligations under this Deed. The Collateral
Agent may retain any document delivered to it under this Deed or otherwise only until such time as the Security Interests created under this Deed are irrevocably released.
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Subject to any limits on its liability and any grace periods specifically recorded in the Loan Documents,
the Company covenants with the Collateral Agent duly and punctually to pay or discharge all Secured Obligations which may from time to time be or become due, owing, incurred or payable by the Company (whether as principal or surety and
whether or not jointly with another) to or to the order of the Collateral Agent under, pursuant to or in connection with the Loan Agreement and/or this Deed, as applicable, in each case at the times when, and in the currency or currencies and
in the manner in which, they are expressed to be due, owing, incurred or payable herein or therein.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby charges by way of fixed continuing security to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in and to all of its present and future Material Real Property.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby assigns by way of fixed continuing mortgage to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in, to, under and in respect of each of all its present and future Investments.
Subject to Clause 0 (6.9 Excluded
Property), the Company hereby charges by way of fixed continuing security to and in favour of the Collateral Agent for the payment and discharge of the Secured Obligations all its right, title, interest and benefit from time to
time, present and future, in, to and in respect of each of the following:
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(a)
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all funds from time to time standing to the credit of a Bank Account, together with all entitlements to interest and other Related Rights from time to time accruing to or
arising in connection with sums;
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(b)
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all present and future Book Debts and all its other present and future negotiable instruments (other than any which are Investments);
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(c)
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all present and future Equipment and all corresponding Related Rights;
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(d)
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all present and future Intellectual Property Rights and all corresponding Related Rights;
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(e)
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all its present and future goodwill, present and future uncalled capital (if any) and the benefit of all present and future licences, consents and authorisations (statutory or
otherwise) held or to be held by it in connection with its business or the use of any Charged Assets (but excluding any licence requiring the licensor's consent to the creation of Security Interests under the Deed if such consent has
not been obtained) and the right to receive all compensation payable in respect thereof (but excluding, in all cases, the Excluded Assets); and
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(f)
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if not effectively assigned by Clause 0 (6.4
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Assignment), all its rights, title and interest in (and claims under) the
Assigned Agreements and all corresponding Related Rights.
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(a)
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Subject to Clause 0 (6.9
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Excluded Property) below, as further
continuing security for the payment of the Secured Obligations, the Company assigns absolutely with full title guarantee to the Collateral Agent for the benefit of the Secured Parties all its rights, title and interest, both present
and future, from time to time in and to each of the following assets:
|
|
(i)
|
the proceeds of any Insurances and all Related Rights; and
|
|
(ii)
|
the Assigned Agreements and all proceeds and claims arising from them,
|
(together, the “Assigned Assets”) provided that upon the Payment in Full, the Collateral Agent will re-assign the relevant Assigned Assets to the Company (or as it shall direct) without delay and in a manner satisfactory to the Company (acting reasonably).
|
(b)
|
To the extent that any Assigned Asset described in Clause 00 (6.4
|
Assignment) is not assignable, the assignment which that clause purports to
effect shall operate as an assignment of all present and future rights and claims of the Company to any proceeds of such Insurances.
|
The Company hereby charges by way of floating charge and by way of further continuing security to and in
favour of the Collateral Agent for the discharge and payment of the Secured Obligations all its right, title, interest and benefit from time to time, present and future, in, to, under and in respect of all its Assets (including all stock in
trade), including any expressed to be charged by any of the foregoing provisions of this Clause 0 (6.SECURITY). The floating charge created by this Clause 0 (6.5Floating Charge) shall rank behind all the fixed Security Interests created by or pursuant to this Deed to the extent that they are valid and effective as fixed
Security Interests but shall rank in priority to any other Security Interests hereafter created by the Company.
6.6
|
Collection Bank Accounts
|
|
(a)
|
The Company shall maintain the Collection Bank Accounts pursuant to and in accordance with Section 3.01(e) (Letters of Credit) of the
Loan Agreement with the Collection Account Banks.
|
|
(b)
|
The Collateral Agent shall have sole signing rights in relation to each Collection Bank Account.
|
|
(c)
|
Subject to Clause 0 (6.6
|
Collection Bank Accounts) below, the
Collateral Agent and the Company acknowledge and agree that the application of amounts standing to the credit of any Collection Bank Account shall be governed by the terms of the Loan Agreement and the Intercreditor Agreement.
|
|
(d)
|
The Company shall not be entitled to:
|
|
(i)
|
make, or direct the making of, any payments or withdrawals from any Collection Bank Account;
|
|
(ii)
|
direct the Collection Account Banks as regards the operation of any Collection Bank Account (whether as to payments from the Collection Bank Accounts or otherwise howsoever);
and/or
|
|
(iii)
|
close any of its Collection Bank Accounts or agree to any variation of the rights or terms and conditions attaching to any of its Collection Bank Accounts,
|
without the prior written consent of the Collateral Agent (acting in its absolute discretion).
|
(e)
|
The Company shall as soon as reasonably practicable after becoming aware of any change in any identifying details of any of its Collection Bank Accounts (including its account
number and sort code), provide details thereof to the Collateral Agent.
|
|
(f)
|
The Company irrevocably and unconditionally authorises the Collateral Agent, without prior notice, from time to time to debit any Collection Bank Account in accordance with the
terms of the Loan Agreement.
|
|
(g)
|
The Company shall, promptly after execution of this Deed, execute and deliver to the Collateral Agent a Collection Account Notice on the relevant Collection Account Bank and use
reasonable endeavours to procure that such Collection Account Bank signs and delivers to the Collateral Agent an acknowledgement substantially in the form set out in the Collection Account Notice (together with any amendments
requested by the Collection Account Bank which are acceptable to the Collateral Agent (acting reasonably)) on the date of such service.
|
|
(h)
|
On the date of opening or acquiring a Collection Bank Account, serve a Collection Account Notice on the relevant Collection Account Bank and use reasonable endeavours to procure
that such Collection Account Bank signs and delivers to the Collateral Agent an acknowledgement substantially in the form set out in the Collection Account Notice (together with any amendments requested by the Collection Account Bank
which are acceptable to the Collateral Agent (acting reasonably)) on the date of such service.
|
6.7
|
General Bank Accounts
|
Upon (and following) the occurrence of any Enforcement Event the Company shall, upon receipt of notice
from the Collateral Agent, (a) cease to be entitled to make, or direct the making of, any payments or withdrawals from any General Bank Account without the prior written consent of the Collateral Agent and (b) cease to be entitled to direct
the General Account Banks as regards the operation of the Accounts (whether as to payments from the Accounts or otherwise howsoever).
Each mortgage, assignment, charge or other disposition in favour of the Collateral Agent referred to in
the previous provisions of this Clause 0 (6. SECURITY) is made with full title guarantee in accordance with the Law of Property (Miscellaneous
Provisions) Act 1994.
There shall be excluded from the security created by Clause 0 (6. SECURITY) and from the operation of Clause 0 (14. Further Assurances, Power of Attorney, ETC.) any Excluded Asset of the Company.
7.
|
REDEMPTION OF SECURITY
|
7.1
|
Upon Payment in Full, the Collateral Agent, at the request and cost of the Company but without being responsible or liable for any reasonable and documented costs, expenses,
claims or liabilities occasioned by acting upon such request, shall release or discharge the Charged Assets from the Charges and reconvey, reassign or retransfer to or to the order of the Company or any other person entitled thereto
any Charged Assets assigned to the Collateral Agent.
|
7.2
|
Notwithstanding the foregoing, the obligations of the Company under this Deed shall automatically terminate and the Collateral Agent, at the request and cost of the Company but
without being responsible or liable for any reasonable and documented costs, expenses, claims or liabilities occasioned by acting upon such request, shall release or discharge the Charged Assets from the Charges and reconvey, reassign
or retransfer to or to the order of the Company or any other person entitled thereto any Charged Assets assigned to the Collateral Agent, in each case, to the extent provided in and in accordance with Section 11.01(c) (Waiver; Amendments; Joinder; Release of Guarantors; Release of Collateral) and Section 11.23 (Release of Guarantors) of the Loan Agreement.
|
8.
|
REPRESENTATIONS AND WARRANTIES
|
8.1
|
The Company represents and warrants to the Collateral Agent that as of the date of this Deed:
|
|
(a)
|
it is a limited company duly incorporated and existing under the Companies Act 1948 and has the power and authority to own its Assets and to carry on its business and operations
as now conducted;
|
|
(b)
|
it has the power to enter into, and perform and comply with all the obligations expressed to be assumed by it under, this Deed, and to create the Charges;
|
|
(c)
|
all corporate authority and any other actions, conditions and things whatsoever required to be obtained, taken, fulfilled and done (including the obtaining of any necessary
consents) in order to enable the Company lawfully to enter into, and perform and comply with all the obligations expressed to be assumed by it under, this Deed, to ensure that those obligations are valid, legal, binding and
enforceable, to permit the creation of the Charges in accordance with this Deed except, in each case (i) as may be limited by bankruptcy, insolvency, examinership, reorganization, moratorium or
other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a
proceeding in equity or at law) and (ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy;
|
|
(d)
|
the obligations of the Company under this Deed and (subject to all necessary registrations thereof being made) the Charges are valid, legal, binding and enforceable and, in the
case of the Charges, have first priority and ranking except, in each case (i) as may be limited by bankruptcy, insolvency, examinership, reorganization, moratorium or other similar laws relating to or affecting the enforcement of
creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a proceeding in equity or at law) and (ii) as to the enforceability
of provisions for indemnification and the limitations thereon arising as a matter of law or public policy;
|
|
(e)
|
its entry into, and performance of and compliance with the obligations expressed to be assumed by it under this Deed, and the creation of the Charges under this Deed, do not and
will not (i) breach or violate any applicable Requirement of Law, (ii) result in any breach or violation of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien
prohibited under the Loan Agreement upon any of its property or assets pursuant to the terms of any indenture, agreement or other instrument to which it is party or by which any of its property or assets are bound or to which it is
subject, except for breaches, violations and defaults that would not have a Material Adverse Effect, or (iii) violate any provision of its organisational documents or by-laws;
|
|
(f)
|
(save to the extent disclosed to the Collateral Agent in writing prior to the date of this Deed) it has good and valid rights in or the power to transfer the Assets expressed to
be mortgaged, assigned or charged by it under this Deed;
|
|
(g)
|
no Security Interest (other than the Charges) or claim exists on, over or in respect of any of the Assets, except those claims permitted by the Loan Agreement;
|
|
(h)
|
(save to the extent disclosed to the Collateral Agent in writing prior to the date of this Deed) it has not disposed of or sold or granted any lease, tenancy, option or
pre‑emption right over or in respect of, any part of its right, title or interest in, to or in respect of any of the Charged Assets, and it has not agreed to do any of the foregoing, except, in each case, as permitted by the Loan
Agreement; and
|
|
(i)
|
the Company's Centre of Main Interests is in the UK.
|
9.
|
COVENANTS RELATING TO ASSETS – PERFECTION, RESTRICTIONS ON DEALINGS, PROTECTION
|
Without prejudice to Clause 0 (14. Further Assurances, Power of
Attorney, ETC.) the Company shall, as soon as reasonably practicable, after execution of this Deed (and in any event within 15 Business Days after execution of this Deed or such later date
as may be agreed to by the Collateral Agent in its sole discretion) or, if later, promptly upon receipt by it or on its behalf or for its account (and in any event within 15 Business Days after such receipt or such later date as may be
agreed to by the Collateral Agent in its sole discretion), by way of security for the Secured Obligations deliver to the Collateral Agent (or any person nominated by the Collateral Agent to hold the same on its behalf including any
solicitors) all certificates representing Mortgaged Investments and documents of title, certificates and other documents certificating or evidencing ownership of or otherwise relating to the Mortgaged Investments including transfers of
Investments executed in blank.
|
(a)
|
The Company may only create, incur, assume or permit to exist a Security Interest on any Charged Asset if it is permitted by Section 8.04 (Liens)
of the Loan Agreement.
|
|
(b)
|
The Company may only Dispose of any Charged Asset if it is permitted by Section 8.05 (Asset Dispositions) of the Loan Agreement.
|
9.3
|
Assets and Charges Generally
|
The Company shall:
|
(a)
|
make all filings and registrations necessary for the creation, perfection, preservation, protection or maintenance of the Charges except to the extent that the Company is
expressly permitted by the Loan Agreement or this Deed not to do so;
|
|
(b)
|
use commercially reasonable endeavours to obtain, in form and substance satisfactory to the Collateral Agent (acting reasonably), as soon as practicable and in any event within
45 days of the date of this Deed or, after the date of this Deed, within 45 days of the date of acquisition of any Asset (or, in any such case, such later date as may be agreed to by the Collateral Agent in its sole discretion), any
consents necessary to enable all the Assets of the Company to be subject to effective Security Interests pursuant to Clause 0 (6.SECURITY) and the Asset
concerned shall immediately upon obtaining any such consent become subject to the fixed Charge under Clause 0 (6.3Fixed Charges);
|
|
(c)
|
maintain or keep or cause to be kept all of the Charged Assets in good and substantial repair and, where applicable, good working order (wear and tear excepted) so that its
business carried on in connection therewith may be conducted in the ordinary course, consistent with past practices, except in each case where the failure to do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect; and
|
|
(d)
|
in addition and without prejudice to any other provision of this Deed, not do or suffer to be done anything which could materially prejudice the effectiveness of any of the
Charges or their priority under this Deed except as permitted by the Loan Agreement or this Deed.
|
In addition and without prejudice to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), the Company hereby irrevocably:
|
(a)
|
consents to the registration of a restriction in the Proprietorship Register relating to the title number or numbers under which the whole or any part of the Legally Mortgaged
Property is registered at HM Land Registry in the following terms:
|
• "except under
an order of the Registrar no disposition or other dealing by the proprietor of the land is to be registered or noted without the written consent of the proprietor for the time being of the charge dated [ * * ] between [ * * ] (1) and [ * *
] (2)";
|
(b)
|
consents (in the case of any Real Property forming part of the Charged Assets title to which is registered or registrable at HM Land Registry but which does not form part of the
Legally Mortgaged Property) to the registration of an agreed notice by the Collateral Agent against the title or titles under which such Real Property is registered; and
|
|
(c)
|
authorises the Collateral Agent and/or any solicitors or other agent acting on behalf of the Collateral Agent to complete, execute on the Company's behalf and deliver to H. M.
Land Registry any form (including Land Registry form RX1 and AN1), document or other information requested by H. M. Land Registry with regard to either or both of the above.
|
9.5
|
General Bank Accounts
|
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.) the Company shall:
|
(a)
|
promptly after execution of this Deed (or, if later, within 45 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion) of the opening of a
new bank account), execute and deliver to the Collateral Agent notices, substantially in the form set out in Part 1 of Schedule 4 (Form of Notice of Charge for General Bank Accounts ) or such
other form as the Collateral Agent may reasonably require;
|
|
(b)
|
use its reasonable endeavours to procure that each relevant bank, with whom a General Bank Account is maintained, delivers to the Collateral Agent an acknowledgement in writing
substantially in the form attached to such notice provided that if the Company has not been able to obtain such countersignature and acknowledgement, any obligation to comply with this Clause 00 (9.5General
Bank Accounts) shall cease after 180 days of the service of the relevant notice; and
|
|
(c)
|
save with the prior written consent of the Collateral Agent or as may be permitted under the Loan Agreement, the Company shall not assign or otherwise dispose of any rights,
title or interest in any General Bank Account (and no right, title or interest in relation to any such account or credit balance maintained with the Collateral Agent shall be capable of assignment or disposal).
|
|
(a)
|
The Company will, promptly after execution of this Deed (or, if later, within 45 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion) of
the Company obtaining new Insurance Policy), execute and deliver to the Collateral Agent (or procure delivery of) a notice of assignment substantially in the form set out in Schedule 6 (Form of Notice
of Charge of Insurance Policies), in respect of each Insurance Policy detailed at Schedule 3 (Insurance Policies).
|
|
(b)
|
In each case, the Company shall use reasonable endeavours to procure that such insurer signs and delivers to the Collateral Agent an acknowledgement substantially in the form
set out in Schedule 6 (Form of Notice of Charge of Insurance Policies) within twenty Business Days of such service provided that, if the relevant
Company has not been able to obtain such acknowledgment from the relevant insurer any obligation to comply with this Clause shall cease twenty Business Days following the date of service of the relevant Notice of Assignment.
|
The Company will, promptly after execution of this Deed (or, if later, within 45 days (or such later date
as may be agreed to by the Collateral Agent in its sole discretion) of receipt by the Company of an executed copy of any Assigned Agreement) deliver to the Collateral Agent an executed but undated counterparty notice, in the form set out in
Schedule 5 (Form of Notice of Charge of Assigned Agreements) and hereby irrevocably authorises the Collateral Agent to serve each such notice of Assigned Agreement on the relevant counterparty upon the
occurrence of an Enforcement Event which is continuing.
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), at any time after an Enforcement Event occurs the Company shall deliver to the Collateral Agent promptly on reasonable
request such documents relating to such of the Book Debts as the Collateral Agent may reasonably specify.
9.9
|
Mortgaged Investments
|
|
(a)
|
Without prejudice and in addition to the other provisions of this Clause 0 (9.Covenants relating to
Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14.Further Assurances, Power of
Attorney, ETC.), the Company shall deposit with the Collateral Agent:
|
|
(i)
|
transfers of the Mortgaged Investments (or declarations of trust in respect of any Mortgaged Investments not in the Company's sole name) in each case duly completed and executed
by the Company or its nominee with the name of the transferee, date and consideration left blank or, if the Collateral Agent so reasonably requires, duly executed by the Company or its nominee in favour of the Collateral Agent (or the
Collateral Agent's nominee) and stamped, and such other documents as the Collateral Agent may reasonably require to enable the Collateral Agent (or the Collateral Agent's nominee) or, after the occurrence and continuance of an Event
of Default, any purchaser, to be registered as the owner of, or otherwise obtain legal title to, the Mortgaged Investments; and
|
|
(ii)
|
in respect of any Mortgaged Investment not held in the Company's name, within 30 days (or such later date as may be agreed to by the Collateral Agent in its sole discretion)
after execution of this Deed or if later promptly after it becomes entitled to the relevant Mortgaged Investment, use commercially reasonable endeavours to request an irrevocable power of attorney, expressed to be by way of security
and executed and delivered as a deed by the relevant nominee, appointing the Collateral Agent each Receiver and any Delegate the attorney of the holder, in such form as the Collateral Agent may reasonably require.
|
|
(b)
|
Prior to such time as the Collateral Agent has, following the occurrence and during the continuation of an Enforcement Event:
|
|
(i)
|
notified the Company in writing that it has elected to exercise voting and other rights relating to the Charged Assets in accordance with the terms of this Deed, all voting and
other rights relating to the Mortgaged Investments may be exercised (or not exercised) by the Company as it directs provided that it shall not exercise any such voting rights in a manner which would diminish the effectiveness or
enforceability of the Charges created under this Deed in any material respect or restrict the transferability of the Charged Assets by the Collateral Agent or any Receiver; and
|
|
(ii)
|
notified the Company in writing that it has elected to collect any dividends, distributions and other monies in accordance with the terms of this Deed, the Company shall be
entitled to receive and retain such dividends, distributions and other monies paid on or derived from its Mortgaged Investments.
|
|
(c)
|
Following an Enforcement Event:
|
|
(i)
|
the Collateral Agent or, as the case may be, any Receiver shall, upon written notice to the Company, be entitled to exercise or direct the exercise of or refrain from such
exercise all voting and other rights now or at any time relating to the Mortgaged Investments as it or he reasonably sees fit;
|
|
(ii)
|
after receipt by the Company of written notice pursuant to Clause 0, the Company shall comply or procure the compliance with any reasonable direction of the Collateral Agent or,
as the case may be, any Receiver in respect of the exercise of such rights and shall deliver to the Collateral Agent or, as the case may be, any Receiver such forms of proxy or other appropriate forms of authorisation the Collateral
Agent or, as the case may be, any Receiver may reasonably require with a view to enabling that person or its nominee to exercise such rights; and
|
|
(iii)
|
the Collateral Agent shall, upon written notice to the Company, be entitled to receive and retain all dividends, interest and other distributions paid in respect of the
Mortgaged Investments and apply the same as provided by Clause 0 (18.Application of MONEYS).
|
|
(d)
|
This Clause 0 (9.7
|
Assigned Agreements) shall not apply to
those Mortgaged Investments which are held by the Company by way of temporary investments and which the Collateral Agent has agreed in writing shall not be subject to this Clause 0 (9.7 Assigned Agreements).
|
9.10
|
Intellectual Property Rights
|
Without prejudice and in addition to the other provisions of this Clause 0 (9. Covenants relating to Assets – Perfection, Restrictions on Dealings, PROTECTION) and Clause 0 (14. Further Assurances, Power of Attorney, ETC.), the Company shall:
|
(a)
|
promptly on the reasonable request by the Collateral Agent, execute and do all acts, things and documents as the Collateral Agent may reasonably require to record the Collateral
Agent's interest in any registers relating to any of the Intellectual Property Rights; and
|
|
(b)
|
not, save with the prior written consent of the Collateral Agent or as may be permitted pursuant to the terms of the Loan Agreement, grant any registered user agreement or
licence or other right in relation to any such Intellectual Property Rights or permit the use of such Intellectual Property Rights by any person.
|
|
(a)
|
at any time after an Enforcement Event, promptly give to the Collateral Agent such information and evidence (and in such form) as the Collateral Agent may from time to time
reasonably request for the purpose of or with a view to discharging the duties and rights vested in it under and in accordance with this Deed or by operation of law; and
|
|
(b)
|
not have its Centre of Main Interests situated, or permit its Centre of Main Interests to be situated, outside the UK.
|
11.
|
CRYSTALLISATION OF FLOATING CHARGE
|
11.1
|
In addition and without prejudice to any other event resulting in crystallisation of the floating charge, but subject to any prohibition or restriction imposed by law, if at any
time:
|
|
(a)
|
an Event of Default occurs and is continuing; or
|
|
(b)
|
the Collateral Agent (acting reasonably) considers that any of the Floating Charged Assets, which is material to the context of the business as a whole, are in danger of being
seized or is otherwise in jeopardy,
|
the Collateral Agent may by notice in writing to the Company convert the floating charge created by
Clause 0 (6.5 Floating Charge) into a fixed charge as regards any Floating Charge Assets as may be specified in
that notice (and for the avoidance of doubt, in the case of paragraph (b) above, only to the extent that paragraph (b) applies to such Floating Charge Asset).
11.2
|
In addition and without prejudice to any law or other event resulting in crystallisation of the floating charge, but subject to any prohibition or restriction imposed by law,
the floating charge created by Clause 0 (6.5Floating Charge) shall without notice automatically be converted
into a fixed charge over:
|
|
(a)
|
any Floating Charge Assets which become subject or continue to be subject to any Security Interest in favour of any person other than the Collateral Agent or which is/are the
subject of any sale, transfer or other disposition, in either case contrary to the covenants contained in this Deed or any of the other Loan Documents, immediately prior to such actual or purported Security Interest arising or such
actual or purported sale, transfer or other disposition being made; or
|
|
(b)
|
any Floating Charge Assets affected by any attachment, distress, execution or other legal process against such Floating Charge Asset, immediately prior to such distress,
attachment, execution or other legal process.
|
12.1
|
The security constituted by this Deed shall, subject to any prohibition or restriction imposed by law, become enforceable upon and at any time after an Event of Default occurs
and is continuing (an "Enforcement Event").
|
12.2
|
At any time after an Enforcement Event, the Collateral Agent may (but shall not be obliged to) enforce all or any part of the Charges at such time, on such terms and in such
manner as it thinks fit, and take possession of, hold or dispose of all or any part of the Charged Assets, and may (whether or not it has taken possession or appointed a Receiver or Administrator) exercise any rights conferred by the
Law of Property Act (as varied or extended by this Deed) on mortgagees or by this Deed or otherwise conferred by law on mortgagees.
|
12.3
|
Without prejudice to the generality of the foregoing, at any time after an Enforcement Event, the Collateral Agent may (but shall not be obliged to) by notice to the company in
writing appropriate all or any part of the Charged Assets which constitute financial collateral. If the Collateral Agent exercises such power of appropriation:
|
|
(a)
|
it shall determine the value of any Charged Asset appropriated which consists of a financial instrument or a Credit Claim as at the time of exercise of that power as the current
value of the cash payment which it determines would be received on a sale or other disposal of such Charged Asset effected for payment as soon as reasonably possible after such time. Any such determination shall be made by the
Collateral Agent in a commercially reasonable manner (including by way of an independent valuation); and
|
|
(b)
|
any Charged Asset appropriated which constitutes cash and which is not denominated in dollars shall be valued as if it were converted to dollars at the rate certified by the
Collateral Agent to be the spot rate of exchange for the purchase of dollars with the currency of such cash as soon as practicable after the appropriation thereof.
|
12.4
|
The exercise by the Collateral Agent of its right of appropriation under Clause 0 (12.ENFORCEMENT)
of any part of the Charged Assets shall not prejudice or affect any of the Collateral Agent's rights and remedies in respect of the remainder of the Charged Assets for any Secured Obligations which remain to be paid or discharged.
|
13.
|
CONTINUING SECURITY, OTHER SECURITY ETC.
|
13.1
|
Subject to Clauses 0 (7.
|
Redemption of SECURITY) and 0 (7.
|
Redemption of SECURITY), the Charges,
covenants, undertakings and provisions contained in or granted pursuant to this Deed shall remain in full force and effect as a continuing security to the Collateral Agent for the Secured Obligations and shall not be satisfied,
discharged or affected by any intermediate payment or settlement of account of all or part of the Secured Obligations (whether any Secured Obligations remain outstanding thereafter) or any other act, event, matter, or thing
whatsoever.
|
13.2
|
The Charges are cumulative, in addition to and independent of, and shall neither be merged with nor prejudiced by nor in any way exclude or prejudice, any other Security
Interest, guarantee, indemnity, right of recourse or any other right whatsoever which the Collateral Agent may now or hereafter hold or have (or would apart from this Deed or the Charges hold or have) from the Company or any other
person in respect of any of the Secured Obligations.
|
13.3
|
The restriction on consolidation of mortgages contained in section 93 of the Law of Property Act shall not apply in relation to the Charges.
|
13.4
|
If the Collateral Agent receives or is deemed to be affected by notice (actual or constructive) of any Security Interest over any Charged Asset or if an Insolvency Event occurs
in relation to the Company:
|
|
(a)
|
the Collateral Agent may open a new account or accounts with or on behalf of the Company (whether or not it allows any existing account to continue) and, if it does not, it
shall nevertheless be deemed to have done so at the time it received or was deemed to have received such notice or at the time that the Insolvency Event occurred; and
|
|
(b)
|
all payments made by the Company to the Collateral Agent after the Collateral Agent received or is deemed to have received such notice or after such Insolvency Event occurred
shall be credited or deemed to have been credited to the new account or accounts, and in no circumstances whatsoever shall operate to reduce the Secured Obligations as at the time the Collateral Agent received or was deemed to have
received such notice or as at the time that such Insolvency Event occurred.
|
13.5
|
This Deed shall remain valid and enforceable notwithstanding any change in the name, composition or constitution of the Collateral Agent or the Company or any amalgamation or
consolidation by the Collateral Agent or the Company with any other corporation.
|
14.
|
FURTHER ASSURANCES, POWER OF ATTORNEY, ETC.
|
14.1
|
The Company shall, at its own cost, promptly take whatever action the Collateral Agent or any Receiver may reasonably require with a view to:
|
|
(a)
|
creating, preserving, perfecting or protecting any of the Charges or the first priority of any of the Charges;
|
|
(b)
|
facilitating the enforcement of the Security created under this Deed or the exercise of any rights vested in the Collateral Agent or any Receiver in connection with this Deed;
or
|
|
(c)
|
providing more effectively to the Collateral Agent the full benefit of the rights conferred on it by this Deed and otherwise giving full effect to the provisions of this Deed,
|
including, without limitation, executing such assignments, transfers and conveyances of the Charged
Assets (whether in favour of the Collateral Agent, any Secured Party or otherwise), giving such notices and making such filings and registrations as the Collateral Agent or any Receiver shall reasonably require, in each case in such form and
on such terms as the Collateral Agent or Receiver shall reasonably specify.
14.2
|
The Company irrevocably and by way of security appoints the Collateral Agent and every Receiver jointly and also severally to be its attorney (with full power to appoint
substitutes and to sub‑delegate, including power to authorise the person so appointed to make further appointments) on behalf of the Company and in its name or otherwise, and in such manner as the attorney may think fit, after the
occurrence of an Enforcement Event, to execute, deliver, perfect and do any deed, document, act or thing (a) which the Collateral Agent or such Receiver (or any such substitute or sub‑delegate) may, reasonably consider appropriate in
connection with the exercise of any of the rights of the Collateral Agent or such Receiver, or (b) which the Company is obliged to execute or do under this Deed but has not executed or done in a timely manner (including the execution
and delivery of mortgages, assignments, transfers or charges or notices or directions in relation to any of the Charged Assets). Without prejudice to the generality of its right to appoint substitutes and to sub‑delegate, the
Collateral Agent may appoint the Receiver as its substitute or sub‑delegate, and any person appointed the substitute or sub‑delegate of the Collateral Agent shall, in connection with the exercise of such power of attorney, be the
agent of the Company. The Company acknowledges that such power of attorney is as regards the Collateral Agent and any Receiver granted irrevocably and for value to secure proprietary interests in and the performance of obligations
owed to the respective donees within the meaning of the Powers of Attorney Act 1971.
|
14.3
|
The Company hereby ratifies and confirms and agrees to ratify and confirm whatever any such attorney shall do or purport to do in the exercise or purported exercise of all or
any of the rights referred to in this Clause 0 (14.Further Assurances, Power of Attorney, ETC.) (save where any
such attorney acts with gross negligence or wilful misconduct or otherwise exceeds its rights under this Clause 0 (14.Further Assurances, Power of Attorney, ETC.)).
|
14.4
|
References in Clause 0 (14.
|
Further Assurances, Power of Attorney, ETC.)
and Clause 0 (14. Further Assurances, Power of Attorney, ETC.) to the Collateral Agent or the
Receiver shall include references to any Delegate.
|
15.
|
THE COLLATERAL AGENT'S RIGHTS
|
15.1
|
The Secured Obligations shall become due for the purposes of section 101 of the Law of Property Act, and the statutory powers of sale and enforcement and of appointing a
Receiver which are conferred on the Collateral Agent under that Act (as varied and extended by this Deed) and all other rights of a mortgagee conferred by the Law of Property Act shall be deemed to arise, immediately after execution
of and in accordance with this Deed.
|
15.2
|
Section 103 of the Law of Property Act shall not apply to this Deed and upon the occurrence of an Enforcement Event the Charges shall become immediately enforceable and the
rights conferred by the Law of Property Act and this Deed immediately exercisable by the Collateral Agent without the restrictions contained in the Law of Property Act.
|
15.3
|
At any time after an Enforcement Event occurs, the Collateral Agent shall, in addition to the powers of leasing and accepting surrenders of leases conferred by section 99 and
100 of the Law of Property Act, have power to make any lease or agreement to lease at a premium or otherwise, accept surrenders of leases and grant options, in each case on any terms and in any manner the Collateral Agent thinks fit
without needing to comply with any restrictions imposed by such sections or otherwise.
|
15.4
|
In making any sale or other disposal of any Charged Assets or making any acquisition in exercise of their respective rights, the Collateral Agent or any Receiver may do so for
such consideration (including cash, shares, debentures, loan capital or other securities whatsoever, consideration fluctuating according to or dependent on profit or turnover, and consideration whose amount is to be determined by a
third party, and whether such consideration is receivable in a lump sum or by instalments) and otherwise on such terms and conditions and in such manner as it or he reasonably thinks fit, and may also grant any option to purchase and
effect exchanges.
|
15.5
|
The Collateral Agent may at any time delegate to any person either generally or specifically, on such terms and conditions (including power to sub‑delegate) and in such manner
as the Collateral Agent reasonably thinks fit, any rights (including the power of attorney) from time to time exercisable by the Collateral Agent under or in connection with this Deed. No such delegation shall preclude the subsequent
exercise by the Collateral Agent of such right or any subsequent delegation or revocation thereof.
|
15.6
|
The Collateral Agent may, at any time and from time to time and without prejudice to the Collateral Agent's other rights, set off any Secured Obligations (to the extent
beneficially owned by the Collateral Agent) against any obligation or liability (matured or not and whether actual or contingent) owing by the Collateral Agent to, or any amount and sum held or received or receivable by it on behalf
or to the order of, the Company or to which the Company is beneficially entitled (such rights extending to the set off or transfer of all or any part of any credit balance on any such account, whether or not then due and whatever the
place of payment or booking branch, in or towards satisfaction of any Secured Obligations) to the extent permitted under both the Loan Agreement and any applicable Requirements of Law. For that purpose, if any of the Secured
Obligations is in a different currency from such obligation, liability, amount or sum (including credit balance), the Collateral Agent may effect any necessary conversion at its then prevailing spot rates of exchange (as conclusively
determined by the Collateral Agent) and may pay out any additional sum which the UK or any other governmental or regulatory body of any jurisdiction may require, as a matter of law, the Collateral Agent to pay in respect of such
conversion. The Collateral Agent may in its absolute discretion (in good faith) estimate the amount of any liability of the Company which is unascertained or contingent and set off such estimated amount, and no amount shall be payable
by the Collateral Agent to the Company unless and until Payment in Full. The Collateral Agent shall not be obliged to exercise any of its rights under this Clause, which shall be without prejudice and in addition to any rights of
set‑off, combination of accounts, bankers' lien or other right to which it is at any time otherwise entitled (whether by operation of law, contract or otherwise).
|
15.7
|
Until Payment in Full, the Collateral Agent or the Receiver (as appropriate) may at any time credit to and retain in an interest bearing suspense account, for such period as it
reasonably thinks fit, any moneys received, recovered or realised pursuant to this Deed, without any obligation to apply all or any part of the same in or towards the discharge of the Secured Obligations.
|
15.8
|
If, after the occurrence of an Enforcement Event, the Company for any reason fails to observe or punctually to perform or to procure the observance or punctual performance of
any of the obligations expressed to be assumed by it to the Collateral Agent under this Deed, the Collateral Agent shall have the right (but shall not be obliged), on behalf of or in the name of the Company or otherwise, to perform
the obligation and to take any steps which the Collateral Agent may reasonably consider appropriate with a view to remedying, or mitigating the consequences of, the failure, but the exercise of this right, or the failure to exercise
it, shall in no circumstances prejudice the Collateral Agent's rights under this Deed or otherwise or constitute the Collateral Agent a mortgagee in possession.
|
16.
|
APPOINTMENT OF ADMINISTRATOR
|
16.1
|
Paragraph 14 of Schedule B1 to the Insolvency Act applies to the floating charge created hereunder.
|
16.2
|
Subject to any relevant provisions of the Insolvency Act, the Collateral Agent may, by any instrument or deed of appointment, appoint one or more persons to be the Administrator
of the Company at any time after:
|
|
(a)
|
the occurrence of an Enforcement Event; or
|
|
(b)
|
being requested to do so by the Company; or
|
|
(c)
|
any application having been made to the court for an administration order under the Insolvency Act; or
|
|
(d)
|
any person having ceased to be an Administrator as a result of any event specified in paragraph 90 of Schedule B1 to the Insolvency Act; or
|
|
(e)
|
any notice of intention to appoint an Administrator having been given by any person or persons entitled to make such appointment under the Insolvency Act.
|
16.3
|
Where any such appointment is made at a time when an Administrator continues in office, the Administrator shall act either jointly or concurrently with the Administrator
previously appointed hereunder, as the appointment specifies.
|
16.4
|
Subject to any applicable order of the Court, the Collateral Agent may replace any Administrator, or seek an order replacing the Administrator, in any manner allowed by the
Insolvency Act.
|
16.5
|
Where the Administrator was appointed by the Collateral Agent under paragraph 14 of Schedule B1 to the Insolvency Act, the Collateral Agent may, by notice in writing to the
Company, replace the Administrator in accordance with paragraph 92 of Schedule B1 to the Insolvency Act.
|
16.6
|
Every such appointment shall take effect at the time and in the manner specified by the Insolvency Act.
|
16.7
|
If at any time and by virtue of any such appointment(s) any two or more persons shall hold office as Administrators of the same assets or income, such Administrators may act
jointly or concurrently as the appointment specifies so that, if appointed to act concurrently, each one of such Administrators shall be entitled (unless the contrary shall be stated in any of the deed(s) or other instrument(s)
appointing them) to exercise all the functions conferred on an Administrator by the Insolvency Act.
|
16.8
|
Every such instrument, notice or deed of appointment, and every delegation or appointment by the Collateral Agent in the exercise of any right to delegate its powers herein
contained, may be made in writing under the hand of any manager or officer of the Collateral Agent or any other authorised person or of any Delegate.
|
16.9
|
Every Administrator shall have all the powers of an administrator under the Insolvency Act.
|
16.10
|
In exercising his functions hereunder and under the Insolvency Act, the Administrator acts as agent of the Company and does not act as agent of the Collateral Agent.
|
16.11
|
Every Administrator shall be entitled to remuneration for his services in the manner fixed by or pursuant to the Insolvency Act or the Insolvency Rules.
|
17.1
|
None of the restrictions imposed by the Law of Property Act in relation to the appointment of receivers or the giving of notice or otherwise shall apply. At any time and from
time to time upon or after request by the Company or the occurrence of an Enforcement Event, the Collateral Agent may, and in addition to all statutory and other powers of appointment or otherwise, by any instrument or deed signed
under the hand of any manager or officer of the Collateral Agent or any other authorised person or of any Delegate, appoint such person or persons (including an officer or officers of the Collateral Agent) as it reasonably thinks fit
to be Receiver or Receivers (to act jointly and/or severally as the Collateral Agent may specify in the appointment) of (a) any Fixed Charge Asset or Assets, and/or (b) any Floating Charge Asset or Assets, so that each one of such
Receivers shall be entitled (unless the contrary shall be stated in any deed(s) or other instrument(s) appointing them) to exercise individually all the powers and discretions conferred on the Receivers. If any Receiver is appointed
of only part of the Charged Assets, references to the rights conferred on a Receiver by any provision of this Deed shall be construed as references to that part of the Charged Assets or any part thereof.
|
17.2
|
The Collateral Agent may appoint any Receiver on any terms the Collateral Agent reasonably thinks fit. The Collateral Agent may by any instrument or deed signed under the hand
of any manager or officer of the Collateral Agent or any other authorised person or any Delegate (subject to section 62 of the Insolvency Act) remove a Receiver appointed by it whether or not appointing another in his place, and may
also appoint another Receiver to act with any other Receiver or to replace any Receiver who resigns, retires or otherwise ceases to hold office.
|
17.3
|
The exclusion of any part of the Charged Assets from the appointment of any Receiver shall not preclude the Collateral Agent from subsequently extending his appointment (or that
of the Receiver replacing him) to that part or appointing another Receiver over any other part of the Charged Assets.
|
17.4
|
Any Receiver shall, so far as the law permits, be the agent of the Company and (subject to any restriction or limitation imposed by applicable law) the Company shall be solely
responsible for his remuneration and his acts, omissions or defaults and solely liable on any contracts or engagements made, entered into or adopted by him and any losses, liabilities, costs, charges and expenses incurred by him; and
in no circumstances whatsoever shall the Collateral Agent be in any way responsible for or incur any liability in connection with any Receiver's acts, omissions, defaults, contracts, engagements, Losses, liabilities, costs, charges,
expenses, misconduct, negligence or default, save, in each case, in circumstances where the liability arises as a direct result of the Receiver’s gross negligence or wilful misconduct. If a liquidator of the Company is appointed, the
Receiver shall act as principal and not as agent for the Collateral Agent.
|
17.5
|
Subject to section 36 of the Insolvency Act, the remuneration of any Receiver may be fixed by the Collateral Agent without being limited to the maximum rate specified by
sections 109(6) of the Law of Property Act (and may be or include a commission calculated by reference to the gross amount of all money received or otherwise and may include remuneration in connection with claims, actions or
Proceedings made or brought against the Receiver by the Company or any other person or the performance or discharge of any obligation imposed upon him by statute or otherwise), but such remuneration shall be payable by the Company
alone; and the amount of such remuneration may be debited by the Collateral Agent from any account of the Company but shall, in any event, form part of the Secured Obligations and accordingly be secured on the Charged Assets under the
Charges. Such remuneration shall be paid on such terms and in such manner as the Collateral Agent and Receiver may from time to time reasonably agree or failing such agreement as the Collateral Agent reasonably determines.
|
17.6
|
Any Receiver may be invested by the Collateral Agent with such of the powers, authorities and discretions exercisable by the Collateral Agent under this Deed as the Collateral
Agent may reasonably think fit. Without prejudice to the generality of the foregoing, any Receiver shall (subject to any restrictions in his appointment) have in relation to the Relevant Charged Assets, in each case in the Company's
name or his own name and on such terms and in such manner as he sees fit, all the rights referred to in Schedule 1 (and where applicable Schedule 2) of the Insolvency Act; all rights of the Collateral Agent under this Deed; all the
rights conferred by the Law of Property Act on mortgagors, mortgagees in possession and receivers appointed under the Law of Property Act; all rights of an absolute beneficial owner including rights to do or omit to do anything the
Company itself could do or omit; and all rights to do all things the Receiver considers necessary, desirable or incidental to any of his rights or exercise thereof including the realisation of any Relevant Charged Assets and getting
in of any Assets which would when got in be Relevant Charged Assets.
|
17.7
|
The Collateral Agent shall not (save only to the extent caused by its own negligence, fraud, wilful misconduct, breach of trust or breach of any obligation of the Collateral
Agent hereunder) be liable for any losses or damages arising from any exercise of his authorities, powers or discretions by any Receiver.
|
17.8
|
The Collateral Agent may from time to time and at any time require any Receiver to give security for the due performance of his duties as such Receiver and may fix the nature
and amount of the security to be so given but the Collateral Agent shall not be bound in any case to require any such security.
|
18.
|
APPLICATION OF MONEYS
|
All moneys realised, received or recovered by the Collateral Agent or any Receiver shall be applied in
accordance with the terms of the Loan Agreement.
19.
|
PROTECTION OF THIRD PARTIES
|
19.1
|
Without prejudice to any other provision of this Deed, the Secured Obligations shall become due for the purposes of section 101 of the Law of Property Act, and the statutory
powers of sale and enforcement and of appointing a Receiver which are conferred upon the Collateral Agent (as varied and extended by this Deed) and all other rights of a mortgagee conferred by the Law of Property Act shall in favour
of any purchaser be deemed to arise and be exercisable, immediately after the execution of and in accordance with this Deed.
|
19.2
|
No purchaser from, or other person dealing with, the Collateral Agent, any Receiver or any Delegate shall be concerned to enquire whether any event has happened upon which any
of the rights which they have exercised or purported to exercise under or in connection with this Deed, the Law of Property Act or the Insolvency Act has arisen or become exercisable, whether the Secured Obligations remain
outstanding, whether any event has happened to authorise the Collateral Agent, any Receiver or any Delegate to act, or whether the Receiver is authorised to act, whether any consents, regulations, restrictions or directions relating
to such rights have been obtained or complied with, or otherwise as to the propriety, regularity or validity of the exercise or purported exercise of any such right or as to the application of any moneys borrowed or raised or other
realisation proceeds; and the title and position of a purchaser or such person shall not be impeachable by reference to any of those matters and the protections contained in sections 104 to 107 of the Law of Property Act, section
42(3) Insolvency Act or any other legislation from time to time in force shall apply to any person purchasing from or dealing with a Receiver, the Collateral Agent or any Delegate.
|
19.3
|
The receipt of the Collateral Agent or the Receiver or any Delegate shall be an absolute and conclusive discharge to a purchaser or such person and shall relieve him of any
obligation to see to the application of any moneys paid to or by the direction of the Collateral Agent or the Receiver.
|
19.4
|
In Clauses 0 (19.
|
Protection of Third PARTIES) to 0 (19.
|
Protection of Third PARTIES) above,
"purchaser" includes any person acquiring a lease of or Security Interest over, or any other interest or right whatsoever in respect of, any Charged Assets.
|
20.
|
PROTECTION OF COLLATERAL AGENT AND RECEIVER
|
20.1
|
In no circumstances (whether by reason of the creation of the Charges or the entry into or taking possession of any Charged Assets or for any other reason whatsoever and whether
as mortgagee in possession or on any basis whatsoever) shall the Collateral Agent or any Receiver:
|
|
(a)
|
be liable to the Company or any other person in respect of any cost, charge, expense, liability, Loss or damage arising out of the exercise, or attempted or purported exercise
of, or the failure to exercise, any of their respective rights in accordance with this Deed, or arising out of the realisation of any Charged Assets or the manner thereof or arising out of any act, default, omission or misconduct of
the Collateral Agent or any Receiver in relation to the Charged Assets or otherwise in connection with this Deed, save only to the extent such cost, charge, expense, liability, Loss or damage has been found by a final non‑appealable
judgment of a court of competent jurisdiction to have been incurred by reason of its or his own gross negligence, wilful misconduct or unlawful conduct; or
|
|
(b)
|
be liable to account to the Company or any other person for anything in connection with this Deed except (after Payment in Full) the Collateral Agent's or Receiver's own actual
receipts which have not been paid or distributed to the Company or to any other person who at the time of payment the Collateral Agent or Receiver as the case may be was entitled thereto.
|
For the avoidance of doubt, neither the Collateral Agent nor any Receiver shall by virtue of this
Clause 0 (20. Protection of Collateral Agent and RECEIVER) owe any duty of care or other duty to any person
which it would not owe absent this Clause 0 (20. Protection of Collateral Agent and RECEIVER).
20.2
|
Without prejudice to Clause 0 (20.
|
Protection of Collateral Agent and RECEIVER),
so far as permitted by law the entry into possession of any of the Charged Assets (including by an Administrator) shall not render the Collateral Agent or any Receiver liable to account as mortgagee in possession or to be liable for
any Loss on realisation or for any default or omission for which a mortgagee in possession might otherwise be liable in respect of any of the Charged Assets; and if the Collateral Agent or any Receiver takes possession of the
Charged Assets, it or he may at any time relinquish such possession. In particular without prejudice to the generality of the foregoing the Collateral Agent shall not become liable as mortgagee in possession by reason of viewing the
state of repair or repairing any of the Company's Assets.
|
20.3
|
The preceding provisions of this Clause 0 (20.
|
Protection of Collateral Agent and RECEIVER)
applying to the Collateral Agent or any Receiver shall apply mutatis mutandis to any Delegate and to any officer, employee or agent of the Collateral Agent, any Receiver and any Delegate.
|
21.
|
COSTS, EXPENSES AND INDEMNITY
|
21.1
|
The Company shall pay to the Collateral Agent in relation to this Deed such costs and expenses as are of the type which are reimbursable by the Borrowers pursuant to Section
11.03 (Expenses, Etc.) of the Loan Agreement.
|
21.2
|
The Company shall indemnify each Receiver and Delegate and their respective officers, employees and agents to the extent that and in the manner in which the Borrowers indemnify
the Indemnitees under Section 11.04 (Indemnity) of the Loan Agreement. Each Relevant Person may rely on this Clause 0 (21.Costs, Expenses and INDEMNITY) in accordance with the Contracts (Rights of Third Parties) Act 1999 but subject to Clause 0 (25.Third PARTIES).
|
22.
|
CONSENTS, VARIATIONS, WAIVERS AND RIGHTS
|
|
(a)
|
No consent or waiver in respect of any provision of this Deed shall be effective unless and until it is agreed in writing duly executed by or on behalf of the Collateral Agent.
Any consent or waiver by the Collateral Agent under this Deed may be given subject to any conditions the Collateral Agent reasonably thinks fit and shall be effective only in the instance and for the purpose for which it is given. No
failure by the Collateral Agent or any Receiver to exercise or delay in exercising any right provided by law or under this Deed shall operate to impair the same or be construed as a waiver of it. No single or partial exercise of any
such right shall prevent any further or other exercise of the same or the exercise of any other right. No waiver of any such right shall constitute a waiver of any other right. The rights provided in this Deed are cumulative and not
exclusive of any rights, provided by law.
|
|
(b)
|
No amendment or variation in respect of any provision of this Deed shall be effective unless and until it is agreed in writing duly executed by or on behalf of the Company and
the Collateral Agent.
|
If any provision of this Deed is or becomes or is found by a court or other competent authority to be
illegal, invalid or unenforceable in any respect, in whole or in part, under any law of any jurisdiction, neither the legality, validity and enforceability in that jurisdiction of any other provision or part of this Deed, nor the legality,
validity or enforceability in any other jurisdiction of that provision or part or of any other provision of this Deed, shall be affected or impaired and if any part of the Charges is invalid or unenforceable in any respect for any reason, no
other Charges shall be affected or impaired.
This Deed (and each variation or waiver in respect of any provision of it) may be executed in any number
of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, once executed and delivered, shall constitute an original of this Deed, but all
the counterparts together shall constitute one and the same instrument.
Except as otherwise provided in this Deed, a person who is not a party to this Deed has no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Deed but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
A determination as to any amount payable which the Collateral Agent or any Receiver may make under this
Deed in good faith shall (save in the case of manifest error) be conclusive.
27.1
|
The Company shall not (whether by way of security or otherwise howsoever) be entitled to assign, grant an equitable interest in or transfer and declare itself a trustee of all
or any of its rights, interests or obligations hereunder, except as permitted under the Loan Agreement (save with respect to its rights and benefits which shall be assigned or to be assigned to the Collateral Agent under this Deed).
|
27.2
|
The Collateral Agent may at any time assign or transfer, in accordance with the Loan Agreement, all or any part of its rights or interests under this Deed or the Charges to any
person who succeeds to its role as security agent or collateral agent under the Loan Agreement.
|
27.3
|
Subject to Section 11.06 (Confidentiality) of the Loan Agreement, the Collateral Agent may disclose to an actual or proposed successor,
assignee or transferee any information the Collateral Agent reasonably considers appropriate regarding any provision of this Deed or other Loan Documents and the Company which it considers appropriate for the purposes of the proposed
assignment or transfer.
|
Any notice or other communication under this Deed shall be made in accordance with the provisions set out
in the Loan Agreement. Any notice delivered to the Parent or the Borrowers on behalf of the Company shall be deemed to have been delivered to the Company.
29.
|
GOVERNING LAW AND JURISDICTION
|
This Deed (including any non‑contractual obligations or liabilities arising out of it or in connection
with it) is governed by and is to be construed in accordance with English law.
|
(a)
|
Each party irrevocably agrees that:
|
|
(i)
|
the English courts have non‑exclusive jurisdiction to hear and determine any Proceedings and to settle any Disputes and each party irrevocably submits to the jurisdiction of the
English courts;
|
|
(ii)
|
any Proceedings may be taken in the English courts;
|
|
(iii)
|
any judgment in Proceedings taken in any such court shall be conclusive and binding on it and may be enforced in any other jurisdiction.
|
|
(b)
|
Each party also irrevocably waives (and irrevocably agrees not to raise) any objection which it might at any time have on the ground of forum
non conveniens or on any other ground to Proceedings being taken in any court referred to in this Clause 0 (29.Governing Law and JURISDICTION).
|
|
(c)
|
Nothing in this Clause 0 (29.
|
Governing Law and JURISDICTION) shall
limit any party's right to take Proceedings against the other party in any other jurisdiction or in more than one jurisdiction concurrently.
|
|
(d)
|
This jurisdiction agreement is not concluded for the benefit of only one party.
|
[Signature pages follow]
IN WITNESS WHEREOF the parties hereto have caused this Deed to be executed and
delivered as a deed on the day and year first before written.
Executed as deed by WEATHERFORD )
EURASIA LIMITED acting by a director, )
in the presence of: )
___________________________
Director
Name:
___________________________
Witness:
Name:
Occupation:
Address:
COLLATERAL AGENT
Executed as a deed by DEUTSCHE BANK )
TRUST COMPANY AMERICAS)
acting by ........................................................... )
........................................................................... )
who, in accordance with the laws of the territory )
in which Deutsche Bank Trust Company Americas )
is incorporated, is/are acting under its authority )
___________________________
Authorised signatory
Name:
___________________________
Authorised signatory
Name:
SCHEDULE 1
BANK ACCOUNTS
PART 1 – GENERAL BANK ACCOUNTS
[Redacted.]
PART 2 – COLLECTION BANK ACCOUNT
NONE AT THE DATE OF THIS DEED
SCHEDULE 2
ASSIGNED AGREEMENTS
NONE AT THE DATE OF THIS DEED
SCHEDULE 3
INSURANCE POLICIES
NONE AT THE DATE OF THIS DEED
SCHEDULE 4
FORM OF NOTICE OF CHARGE OF BANK ACCOUNTS
PART 1 – FORM OF NOTICE OF CHARGE FOR GENERAL BANK ACCOUNTS
To: [Name of General Account Bank]
Date: [•]
Dear Sirs,
We hereby give you irrevocable notice that we (the "Company") have charged to
Deutsche Bank Trust Company Americas (the "Collateral Agent") all of our right, title, interest and benefit in, to and under account numbers GB67BARC20554033615073 (including any renewal or
redesignation thereof) including all moneys standing to the credit of that account from time to time (the "Accounts"). This charge is subject, and without prejudice, to the charge to the Collateral
Agent of all our right, title and interest in and to the monies from time to time standing to the credit of the Accounts pursuant to the ABL deed of charge and assignment dated [5] December 2019, notice of which was given to you by a notice
dated [●] (the “ABL Deed of Charge and Assignment Notice”).
3.
|
We irrevocably authorise and instruct you:
|
|
(a)
|
to hold all monies from time to time standing to the credit of the Accounts to the order of the Collateral Agent and to pay all or any part of those monies to the Collateral
Agent (or as it may direct) promptly following receipt of written instructions from the Collateral Agent to that effect; and
|
|
(b)
|
to disclose to the Collateral Agent any information relating to the Company and the Accounts which the Collateral Agent may from time to time request you to provide.
|
4.
|
We also advise you that:
|
|
(a)
|
the Company may make withdrawals from the Accounts and you may continue to deal with the Company until such time as the Collateral Agent shall notify you (with a copy to the
Company) in writing that its permission is withdrawn; and
|
|
(b)
|
the provisions of this notice may only be revoked or varied with the prior written consent of the Collateral Agent.
|
Please acknowledge receipt of this notice by signing the acknowledgement on the enclosed copy of this notice and returning
it to the Collateral Agent.
Schedule
[Redacted.]
Yours faithfully,
______________________
for and on behalf of
Weatherford Eurasia Limited
[On copy only:]
To:
|
Deutsche Bank Trust Company Americas
[•]
|
Attention: [•]
Date: [•]
At the request of the Collateral Agent and the Company we acknowledge receipt of a notice of charge in the terms set out
above in respect of the Accounts (as described in those terms).
We confirm that we will comply with the term of that notice.
We further confirm that:
(a)
|
the balance standing to the Accounts at today's date is [•], no fees or periodic charges are payable in respect of the Accounts and there are no restrictions on the payment of
the credit balance on the Accounts (except, in the case of a time deposit, the expiry of the relevant period) or on the assignment of the Accounts to the Collateral Agent or any third party;
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(b)
|
except for the ABL Deed of Charge and Assignment Notice, we have not received notice of any previous assignments of, charges or other security interests over, or trusts in
respect of, any of the rights, title, interests or benefits in, to, under or in respect of the Accounts;
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(c)
|
we will not, save with the Collateral Agent's prior written consent, exercise any right of combination, consolidation or set‑off which we may have in respect of the Accounts;
and
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(d)
|
after receipt of the notification referred to in paragraph 2(a) of the notice above, we will act only in accordance with the instructions given by persons authorised by the
Collateral Agent and we shall send all statements and other notices given by us relating to the Accounts to the Collateral Agent.
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For and on behalf of [name of account‑holding bank]
By:_____________________________________
Dated: [•]
PART 2 – FORM OF NOTICE OF CHARGE FOR COLLECTION BANK ACCOUNTS
Form of Notice of Charge for Collection Bank Accounts
Dated:
Barclays, Level 10, 1 Churchill Place, Canary Wharf, London, E14 5HP
Dear Sirs,
Weatherford Eurasia Limited (the Company) hereby gives notice to Barclays Bank PLC (the Bank) that by a deed of charge and assignment dated [•] (the Deed), the Company charged to Wells Fargo Bank N.A., London Branch as collateral agent (the Collateral Agent) by way of first fixed charge all the Company’s rights, title, interest and benefit in and to the following account(s) held with the Bank and all amounts standing to the credit of such
account from time to time:
Account No. [•], sort code [•]-[•]-[•];
(the Blocked Account).
Please acknowledge receipt of this letter by returning a copy of the attached letter on the Bank’s headed notepaper with a receipted copy of this
notice forthwith, to Wells Fargo Bank N.A., London Branch, 8th Floor, 33 King William Street, London, EC4R 9AT Attention: Portfolio Manager – [•] and to the
Company at the address given above.
The attached acknowledgement letter constitutes our irrevocable instruction to you. Without prejudice to the generality thereof, we hereby
acknowledge the provisions of the acknowledgement letter in its entirety and agree in your favour to be bound by the limitations on your responsibility under paragraph (i) of the acknowledgment letter, in each case as if we had signed it in
your favour.
Yours faithfully
.............................................
for and on behalf of
Weatherford Eurasia Limited
[TO BE PRINTED ON RELEVANT BARCLAYS ENTITY LETTERHEAD]
To:
Wells Fargo Bank N.A., London Branch
8th Floor
33 King William Street
London
EC4R 9AT
(the “Chargee”)
and
Weatherford Eurasia Limited
Gotham Road, East Leake
Loughborough
Leicestershire
LE12 6JX
(the “Chargor”)
Dear All
Notice of charge dated …………………20[XX] (the “Notice”) relating to the
creation of security interest by the Chargor in favour of the Chargee in respect of the account as set out in the Notice
We refer to the Notice relating to the account, details of which are set out below (the “Account”):28
ACCOUNT HOLDER
|
ACCOUNT NUMBER
|
SORT CODE
|
|
|
|
|
|
|
|
|
|
We confirm that:
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5.
|
we will block the Account and not permit any further withdrawals by the Chargor unless and until we receive and acknowledge a notice from the Chargee informing us otherwise.
Please note that we will not be able to permit withdrawals from the Account in accordance with the instructions of the Chargee unless and until it has provided a list of authorised signatories confirming which persons have authority
on behalf of the Chargee to operate the Account and the Account will remain blocked and non-operational until that time;
|
|
6.
|
to the best of our knowledge and belief the business team responsible for the Account has not, as at the date of this acknowledgement, received any notice that any third party
has any right or interest whatsoever in or has made any claim or demand or taking any action whatsoever against the Account and / or the debts represented thereby, or any part of any of it or them; and
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|
7.
|
we are not, in priority to the Chargee, entitled to combine the Account with any other account or to exercise any right of set-off or counterclaim
against money in the Account in respect of any sum owed to us provided that, notwithstanding any term of the Notice:
|
|
a.
|
we shall be entitled at any time to deduct from the Account any amounts to satisfy any of our or the Chargor’s obligations and / or liabilities incurred under
the direct debit scheme or in respect of other unpaid sums in relation to cheques and payment reversals; and
|
|
b.
|
our agreement in this Acknowledgement not to exercise any right of combination of accounts, set-off or lien
over any monies standing to the credit of the Account in priority to the Chargee, shall not apply in relation to our standard bank charges and fees and any cash pooling arrangements provided to the Chargor; and
|
|
8.
|
we will disclose to the Chargee any information relating the Account which the Chargee may from time to time request us to provide.
|
We do not confirm or agree to any of the other matters set out in the Notice.
Our acknowledgement of the Notice is subject to the following conditions:
|
4.
|
we shall not be bound to enquire whether the right of any person (including, but not limited to, the Chargee) to withdraw any monies from the Account has arisen or be concerned
with (A) the propriety or regularity of the exercise of that right or (B) be responsible for the application of any monies received by such person (including, but not limited to, the Chargee);
|
|
5.
|
we shall have no liability to the Chargee relating to the Account whatsoever, including, without limitation, for having acted on instructions of the Chargee which on their face
appear to be genuine, which comply with the terms of this notice and which otherwise comply with the Chargee’s latest list of signatories held by us or relevant electronic banking system procedures in the case of an electronic
instruction, and
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|
6.
|
we shall not be deemed to be a trustee for the Chargor or the Chargee of the Account.
|
This letter and any non-contractual obligations arising out of or in connection with this letter are governed by the laws of England and Wales.
Yours faithfully
Name:
Position:
For and on behalf of Barclays Bank PLC
Dated
28 Only include account details where these were also included in the Notice
SCHEDULE 5
FORM OF NOTICE OF CHARGE OF ASSIGNED AGREEMENTS
To: [Insert name and address of relevant party]
Date: [•]
Dear Sirs
RE: [describe assigned agreement] dated [●] between you and Weatherford Eurasia
Limited (the "Company")
7.
|
We give notice that, by a deed of charge and assignment dated [●] (the "Deed"), we have assigned to Deutsche Bank Trust Company Americas
(the "Collateral Agent") as Collateral Agent for certain banks and others all our present and future right, title and interest in and to [insert details of
Assigned Agreement] (together with any other agreement supplementing or amending the same, the "Agreement") including all rights and remedies in connection with the Agreement and all
proceeds and claims arising from the Agreement. This charge and assignment is subject, and without prejudice, to the charge and assignment to the Collateral Agent of all our right, title and interest in the Agreement pursuant to the
ABL deed of charge and assignment dated [5] December 2019, notice of which was given to you by a notice dated [●] (the “ABL Deed of Charge and Assignment Notice”).
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8.
|
Following receipt by you of a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the Deed) has occurred (but not at any other time) the
Company instructs you:
|
|
(a)
|
to disclose to the Collateral Agent at our expense (without any reference to or further authority from us and without any enquiry by you as to the justification for such
disclosure), such information relating to the Agreement as the Collateral Agent may from time to time request;
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|
(b)
|
to hold all sums from time to time due and payable by you to us under the Agreement to the order of the Collateral Agent;
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|
(c)
|
to pay or release all or any part of the sums from time to time due and payable by you to us under the Agreement only in accordance with the written instructions given to you by
the Collateral Agent from time to time;
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|
(d)
|
to comply with any written notice or instructions in any way relating to, or purporting to relate to, the Deed or the Agreement or the debts represented thereby which you
receive at any time from the Collateral Agent without any reference to or further authority from us and without any enquiry by you as to the justification for or validity of such notice or instruction; and
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|
(e)
|
to send copies of all notices and other information given or received under the Agreement to the Collateral Agent.
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9.
|
You may continue to deal with us in relation to the Agreement until you review a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the
Deed) has occurred. Following the receipt by you of such a written notice, we are not permitted to receive from you, otherwise than through the Collateral Agent, any amount in respect of or on account of the sums payable to us from
time to time under the Agreement or to agree any amendment or supplement to, or waive any obligation under, the Agreement without the prior written consent of the Collateral Agent.
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10.
|
This notice may only be revoked or amended with the prior written consent of the Collateral Agent.
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11.
|
Please confirm by completing the enclosed copy of this notice and returning it to the Collateral Agent (with a copy to us) that you agree to the above and that:
|
|
(a)
|
you accept the instructions and authorisations contained in this notice and you undertake to comply with this notice; and
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|
(b)
|
except for the ABL Deed of Charge and Assignment Notice, you have not, at the date this notice is returned to the Collateral Agent, received notice of the assignment or charge,
the grant of any security or the existence of any other interest of any third party in or to the Agreement or any proceeds of it and you will notify the Collateral Agent promptly if you should do so in future.
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12.
|
This notice, and any acknowledgement in connection with it, and any non-contractual obligations arising out of or in connection with any of them, shall be governed by English
law.
|
Yours faithfully
___________________________________
for and on behalf of
Weatherford Eurasia Limited
[On copy]
To: Deutsche Bank Trust Company Americas
as Collateral Agent
[•]
Copy to: Weatherford Eurasia
Limited
Gotham Road, East Leake,
Loughborough,
Leicestershire LE12 6JX
Dear Sirs
We acknowledge receipt of the above notice and consent and agree to its terms. We confirm and agree to the matters set out
in paragraph [5] in the above notice.
___________________________________
for and on behalf of
[Name of relevant party]
Dated: [●]
SCHEDULE 6
FORM OF NOTICE OF CHARGE OF INSURANCE POLICIES
To: [insert name and address of insurance company]
Dated: [●]
Dear Sirs
Re: [here identify the relevant insurance policy(ies)] (the "Policies")
We notify you that, Weatherford Eurasia Limited (the "Company") has assigned to
Deutsche Bank Trust Company Americas (the "Collateral Agent") for the benefit of itself and certain other banks and financial institutions (the "Secured Parties")
all its right, title and interest in the Policies as security for certain obligations owed by the Company to the Secured Parties by way of a deed of charge and assignment dated [●] (the "Deed"). This
assignment is subject, and without prejudice, to the assignment to the Collateral Agent of all our right, title and interest in the Policies pursuant to the ABL deed of charge and assignment dated [5] December 2019, notice of which was given
to you by a notice dated [●] (the “ABL Deed of Charge and Assignment Notice”).
We further notify you that:
1.
|
Prior to receipt by you of a written notice from the Collateral Agent specifying that an Enforcement Event (as defined in the Deed) has occurred, the Company will continue to
have the sole right to deal with you in relation to the Policies (including any amendment, waiver or termination thereof or any claims thereunder).
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2.
|
Following receipt by you of a written notice from the Collateral Agent specifying that a Enforcement Event has occurred (but not at any other time) the Company irrevocably
authorises you:
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|
(a)
|
to pay all monies to which the Company is entitled under the Policies direct to the Collateral Agent (or as it may direct) promptly following receipt of written instructions
from the Collateral Agent to that effect; and
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|
(b)
|
to disclose to the Collateral Agent any information relating to the Policies which the Collateral Agent may from time to time request in writing.
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3.
|
The provisions of this notice may only be revoked or varied with the written consent of the Collateral Agent and the Company.
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4.
|
Please sign and return the enclosed copy of this notice to the Collateral Agent (with a copy to the Company) by way of confirmation that:
|
|
(a)
|
you agree to act in accordance with the provisions of this notice;
|
|
(b)
|
except for the ABL Deed of Charge and Assignment Notice, you have not previously received notice (other than notices which were subsequently irrevocably withdrawn) that the
Company has assigned its rights under the Policies to a third party or created any other interest (whether by way of security or otherwise) in the Policies in favour of a third party; and
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(c)
|
you have not claimed or exercised nor do you have any outstanding right to claim or exercise against the Company, any right of set off, counter claim or other right relating to
the Policies.
|
The provisions of this notice are governed by English law.
Yours faithfully
_________________________________
for and on behalf of
Weatherford Eurasia Limited
[On acknowledgement copy]
To: Deutsche Bank Trust Company Americas
as Collateral Agent
[•]
Copy to: Weatherford Eurasia
Limited
Gotham Road, East Leake,
Loughborough,
Leicestershire LE12 6JX
We acknowledge receipt of the above notice and confirm the matters set out in paragraphs 4(a) to (c) above.
_________________________________
for and on behalf of
[Insert name of insurance company]
Dated: [●]
EXECUTION VERSION
DATED _________________, 2019
WEATHERFORD EURASIA LIMITED
(the Mortgagor)
- and -
DEUTSCHE BANK TRUST COMPANY AMERICAS
(the Collateral Agent)
This Equitable Share Mortgage is entered into subject to the terms of the Intercreditor Agreement dated on or about the date of this Deed (as
amended from time to time).
CONTENTS
Clause
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Page
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1.
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DEFINITIONS AND INTERPRETATION
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1
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2.
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TRUST
|
5
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3.
|
INTERCREDITOR AGREEMENT
|
6
|
4.
|
ABL EQUITABLE SHARE MORTGAGE
|
6
|
5.
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COVENANT TO PAY
|
7
|
6.
|
CREATION OF SECURITY
|
7
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7.
|
COVENANT TO DEPOSIT
|
7
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8.
|
FURTHER ASSURANCE
|
8
|
9.
|
VOTING RIGHTS AND DIVIDENDS
|
8
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10.
|
REPRESENTATIONS AND WARRANTIES
|
9
|
11.
|
RESTRICTIONS ON DEALINGS
|
9
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12.
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COVENANTS
|
9
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13.
|
POWER OF ATTORNEY
|
9
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14.
|
ENFORCEMENT
|
10
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15.
|
APPOINTMENT OF RECEIVERS
|
12
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16.
|
RIGHTS OF RECEIVERS
|
13
|
17.
|
RIGHTS OF COLLATERAL AGENT AND SECURED PARTIES
|
14
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18.
|
APPLICATION OF MONEYS
|
15
|
19.
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LIABILITY OF COLLATERAL AGENT, RECEIVER AND DELEGATES
|
15
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20.
|
INDEMNITY
|
16
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21.
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PROTECTION OF THIRD PARTIES
|
16
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22.
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SECURITY CONTINUING, CUMULATIVE AND NOT TO BE AFFECTED
|
16
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23.
|
CERTIFICATE CONCLUSIVE, ETC
|
17
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24.
|
NO SET-OFF BY MORTGAGOR
|
17
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25.
|
COSTS AND EXPENSES
|
17
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26.
|
RELEASE OF SECURITY
|
18
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27.
|
MISCELLANEOUS
|
18
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28.
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ASSIGNMENT, ETC
|
19
|
29.
|
NOTICES
|
19
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30.
|
GOVERNING LAW AND JURISDICTION
|
20
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SCHEDULE 1 ORIGINAL SHARES
|
1
|
SCHEDULE 2 REPRESENTATIONS AND WARRANTIES
|
2
|
SCHEDULE 3 COVENANTS
|
3
|
THIS DEED is made on _______________, 2019
BETWEEN
(1)
|
WEATHERFORD EURASIA LIMITED, a limited company incorporated in England and Wales under registered number 02440463, whose registered
office is at Weatherford Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX, (the "Mortgagor"); and
|
(2)
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, (the "Collateral Agent", which expression includes its
successors in title and assigns acting for itself and on behalf of the Secured Parties as the holders of the Secured Obligations (as defined below)).
|
WHEREAS
(A)
|
Under the Loan Agreement (as defined below) the Lenders have granted to the Borrowers a letter of credit line facility (the "Facility").
|
(B)
|
Under the Guarantee various Affiliates of the Parent, including the Mortgagor, have guaranteed the obligations of the Borrowers under the Loan Agreement.
|
(C)
|
The Mortgagor is the direct owner of the entire issued share capital of the Company.
|
(D)
|
Under the terms of the Loan Agreement the Mortgagor is required to execute and deliver this equitable share mortgage of the entire issued share capital of the Company in favour
of the Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations (each as defined below).
|
(E)
|
It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand.
|
IT IS AGREED AS FOLLOWS
1.
|
DEFINITIONS AND INTERPRETATION
|
In this Deed, capitalised words and phrases used but not defined herein shall have the meanings set out
in the Loan Agreement and the following words and phrases shall have the meanings set out below.
"ABL Equitable Share Mortgage" means an equitable share mortgage
dated on or about the date hereof between, amongst others, the Mortgagor and Wells Fargo Bank, National Association as collateral agent, granted pursuant to an asset based loan credit agreement dated on or about the date of this Deed between,
amongst others, Weatherford International Ltd. and Weatherford International, LLC as borrowers, the lenders party thereto, and Wells Fargo Bank, National Association as collateral agent.
"Business Day" means any day other than a Saturday, Sunday or
bank holiday on which banks are open for business in London and New York City.
"Cash" means cash within the meaning of Financial Collateral
Arrangements (No. 2) Regulations 2003;
"Company" means Reeves Wireline Technologies Limited, a company
incorporated in England and Wales under registered number 00096365, whose registered office is at Gotham Road, East Leake, Loughborough, Leicestershire LE12 6JX.
"Delegate" means a delegate or a sub-delegate of the Collateral
Agent or of any Receiver appointed under this Deed.
"Derived Assets" means, with respect to the Company, any Shares,
rights or other property of a capital nature which accrue or are offered, issued or paid at any time (whether by way of rights, redemption, substitution, exchange, conversion, purchase, bonus, consolidation, subdivision, preference, warrant,
option or otherwise) in respect of:
|
(b)
|
any Further Shares; and
|
|
(c)
|
any Shares, rights or other property previously accruing, offered, issued or paid as mentioned in this definition,
|
provided, however, that "Derived Assets"
shall not include any Excluded Assets.
"Disputes" means any disputes or claims which may arise out of or
in connection with this Deed or the Security (including, without limitation, regarding their respective existence, validity or termination and any non-contractual obligations or liabilities arising in connection with them).
"Dividends" means any dividends, interest and other income paid
or payable in respect of the Original Shares, any Further Shares or any Derived Assets (but "Dividends" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Enforcement
Event" has the meaning set out in Clause 0 (14.1 Enforceability).
"Financial Collateral" means financial collateral within the
meaning of the Financial Collateral Arrangements Regulations.
"Financial Collateral Arrangements Regulations" means the
Financial Collateral Arrangements (No.2) Regulations 2003, as amended.
"Further Shares" means all Shares (other than the Original Shares
and any Shares comprised in any Derived Assets) issued by the Company at any time after the execution of this Deed.
"Guarantee" means an Affiliate Guaranty dated on or about the
date of this Deed, between, among others, the Parent and the Collateral Agent.
"Insolvency Act" means the Insolvency Act 1986.
"Insolvency Event" in relation to any person, means: (a) such
person is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with
a view to rescheduling any of its indebtedness (including any composition, assignment or arrangement with any creditor of such person); (b) any resolution is passed or order made for the winding up, dissolution, administration or
reorganisation of that person, a moratorium is declared in relation to any indebtedness of that person or an administrator is appointed to that person (other than a solvent liquidation or reorganisation of such person on terms previously
approved in writing by the Collateral Agent); (c) the appointment of any liquidator (other than a solvent liquidation or reorganisation of such person on terms previously approved in writing by the Collateral Agent), receiver, administrator,
administrative receiver, compulsory manager or other similar officer in respect of that person or any of its assets; or (d) in respect of any person, any analogous procedure or step is taken in any jurisdiction.
"Intercreditor Agreement" means the intercreditor agreement,
dated on or about the date of this Deed, among the Collateral Agent, Wells Fargo Bank, National Association, the Parent, Weatherford International Ltd., Weatherford International LLC, and the other grantors of the Parent named therein.
"Loan Agreement" means the letter of credit facility agreement,
between, among others, the Parent, the Collateral Agent and the Lenders, dated on or about the date of this Deed.
"Loss" means any liability, damages, claim, cost, loss, penalty,
expense, demand (or actions in respect thereof) including, without limitation, all charges and fees (professional and otherwise), together with all costs, disbursements and expenses in connection therewith.
"LPA" means the Law of Property Act 1925.
"Original Shares" means the Shares in the Company details of
which are set out in Schedule 1 (Original Shares).
Parent" means Weatherford International Public Limited Company, a
public limited company incorporated in the Republic of Ireland, with registered number 540406 whose registered office address is 70 Sir John Rogerson's Quay, Dublin 2.
"Payment in Full" means the Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan Documents (other than contingent indemnification obligations as to which no claim has been received by the
Mortgagor) shall have been paid in full in cash.
"Proceedings" means any proceedings, suit or action arising out
of or in connection with any Disputes or otherwise arising out of or in connection with this Deed or the Security (including, without limitation, regarding their respective existence, validity or termination and any non-contractual
obligations or liabilities arising in connection with them).
"Receiver" means a receiver and manager or receiver of all or any
of the Secured Assets, in each case appointed under this Deed.
"Relevant Person" means each Receiver and each Delegate and each
such person's respective officers, employees and agents.
"Required
Currency" has the meaning set out in Clause 0 (14.3 Appropriation of Financial Collateral).
"Rights" means rights, benefits, powers, privileges, authorities,
discretions, remedies and liberties (in each case, of any nature whatsoever).
"Secured Assets" means the Original Shares, any Further Shares,
any Derived Assets and any Dividends (but "Secured Assets" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Secured Obligations" has the meaning given to it in the Loan
Agreement but, for the avoidance of doubt, shall also include all reasonable and documented legal costs, charges and expenses and any other Loss which the Collateral Agent, any Receiver or any Delegate may incur in enforcing or obtaining, or
attempting to enforce or obtain, payment of any such moneys and liabilities to the extent that such costs, charges, expenses and other Losses are of the type which are reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, etc.) of the Loan Agreement.
"Secured Parties" has the meaning given to it in the Loan
Agreement.
"Security" means any or all of the Security Interests created or
expressed to be created, or which may at any time hereafter be created, by or pursuant to this Deed.
"Security Interest" means any mortgage, fixed or floating charge,
sub-mortgage or charge, pledge, lien, assignment by way of security or subject to a proviso for reassignment, encumbrance, hypothecation, any title retention arrangement (other than in respect of goods purchased in the ordinary course of
trading), any agreement or arrangement having substantially the same economic or financial effect as any of the foregoing (including any "hold back" or "flawed asset" arrangement) and any security interest or agreement or arrangement
analogous to any of the foregoing arising under the laws of any other jurisdiction.
"Shares" means, with respect to the Company, stocks and shares of
any kind (but "Shares" shall exclude, for the avoidance of doubt, any Excluded Assets).
"Tax" and "Taxes" has the
meaning given to it in the Loan Agreement.
"Third Parties Act" means the Contracts (Rights of Third Parties)
Act 1999.
In this Deed, the following rules of interpretation apply, unless otherwise specified or the context
otherwise requires.
|
(a)
|
Person: a reference to a "person" includes any individual, firm, partnership, body corporate, unincorporated association, government,
state or agency of a state, local or municipal authority or government body, trust, foundation, joint venture or association (in each case whether or not having separate legal personality).
|
|
(b)
|
References to this Deed and other agreements and documents: a reference to this Deed or to another deed, agreement, document or
instrument (including, without limitation, any share certificate and any Loan Document) is a reference to this Deed or to the relevant other deed, agreement, document or instrument as supplemented, varied, amended, modified, novated
or replaced from time to time and to any agreement, deed or document executed pursuant thereto.
|
|
(c)
|
Successors, transferees and assigns: a reference to a person (including, without limitation, any party to this Deed, any Secured Party
and any party to any Loan Document) shall include reference to its successors, transferees (including by novation) and assigns and any person deriving title under or through it, whether in security or otherwise, any person into which
such person may be merged or consolidated, any company resulting from any merger or consolidation of such person and any person succeeding to all or substantially all of the business of that person.
|
|
(d)
|
Statutory provisions: a reference to any statute, statutory provision, order, instrument, rule or regulation is to that statute,
provision, order, instrument, rule or regulation as amended or re-enacted from time to time, any provision of which it is a re-enactment or consolidation and any order, instrument or regulation made or issued under it.
|
|
(e)
|
Headings: headings are for convenience only and shall not affect the interpretation of this Deed.
|
|
(f)
|
Clauses, Schedules and Paragraphs: a reference to a Clause is to a clause in this Deed; a reference to a Schedule is to a schedule to
this Deed; a reference to a Paragraph is to a paragraph of a Schedule; and a reference to this Deed includes a reference to each of its Schedules.
|
|
(g)
|
Disposal: a reference to "disposal" includes any of the following, whether by a single transaction or series of transactions whether
related or not, and whether voluntary or involuntary: a sale, transfer, assignment, loan, parting with any interest in or permitting the use by another person of, the grant of any option to purchase or pre-emption right or other
present or future right to acquire or create any interest in, or any other disposal or dealing, and "dispose" shall be construed accordingly.
|
|
(h)
|
Loan Agreement and Intercreditor Agreement: The undertakings and other obligations of the Mortgagor, Collateral Agent or any other person
under this Deed shall at all times be read and construed as subject to the provisions of the Loan Agreement, the Intercreditor Agreement and the Guarantee which shall prevail in case of any conflict. The terms of this Deed shall not
operate or be construed so as to prohibit or restrict any transaction or matter that is permitted by the Loan Agreement or the Intercreditor Agreement.
|
2.1
|
The Collateral Agent shall hold, and hereby declares that it shall hold, the benefit of the Security and the benefit of all representations, warranties, covenants and
undertakings under this Deed on trust for the Secured Parties on and subject to the terms of this Deed and the Mortgagor hereby acknowledges such trusts.
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2.2
|
In this Deed the Collateral Agent acts under the authority of the Secured Parties contained in Article X (Administrative Agent) of the
Loan Agreement and in accordance with, subject to and with the full benefit of the provisions of such Article X (Administrative Agent).
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3.
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INTERCREDITOR AGREEMENT
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3.1
|
The priority of claims in relation to this Deed and the ABL Equitable Share Mortgage shall be subject to the Intercreditor Agreement. Each Secured Party, of its acceptance of
the benefits of this Deed (a) consents to the subordination of security provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor
Agreement and (c) authorizes and instructs the Collateral Agent to enter into the Intercreditor Agreement as Collateral Agent on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the Secured
Parties to extend credit to Borrowers or to acquire any notes or other evidence of any debt obligation owing from the Borrowers and such Secured Parties are intended third party beneficiaries of such provisions and the provisions of
the Intercreditor Agreement.
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3.2
|
Notwithstanding any other provision contained herein, this Deed, the security created hereby and the rights, remedies, duties and obligations provided for herein are subject in
all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable LC Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between
the provisions of this Deed and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall prevail.
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4.
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ABL EQUITABLE SHARE MORTGAGE
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4.1
|
All security created under this Deed does not affect the security created by the ABL Equitable Share Mortgage.
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4.2
|
Notwithstanding any provision of this Deed, provided that the Mortgagor is in compliance with the terms of the ABL Equitable Share Mortgage (including without limitation, any
obligation to deliver or deposit any deeds, documents of title, certificates, evidence of ownership or other original documentation thereunder) then to the extent that the terms of this Deed impose the same or substantially the same
obligation in respect of such deeds, documents of title, certificates, evidence of ownership or other original documentation, the Mortgagor will be deemed to have complied with the relevant obligations under this Deed by virtue of its
compliance under the ABL Equitable Share Mortgage, provided however that, in the event that the terms of the ABL Equitable Share Mortgage no longer continue to be in full force and effect or the ABL Equitable Share Mortgage is
released or discharged (or as otherwise required by the Intercreditor Agreement) the Mortgagor shall be required to as soon as reasonably practicable comply with the relevant obligations under this Deed. The Collateral Agent may
retain any document delivered to it under this Deed or otherwise only until such time as the Security Interests created under this Deed are irrevocably released.
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Subject to any limits on its liability and any grace periods specifically recorded in the Loan Documents,
the Mortgagor covenants with the Collateral Agent to pay and discharge all Secured Obligations which may from time to time be or become due, owing or payable by the Mortgagor (whether as principal or surety and whether or not jointly with
another) to or to the order of the Collateral Agent under, pursuant to or in connection with the Loan Agreement, the Guarantee and/or this Deed, as applicable, in each case at the times when, and in the currency or currencies and in the
manner in which, they are expressed to be due, owing or payable herein or therein.
The Mortgagor, as continuing security for the payment and discharge of the Secured Obligations and with
full title guarantee, charges by way of fixed charge all of its Rights, title and interest in and to the Original Shares, all Further Shares, all Derived Assets and all Dividends in favour of the Collateral Agent.
7.1
|
Original Shares and Further Shares
|
The Mortgagor shall, promptly after execution of this Deed in the case of the Original Shares, and within
15 Business Days (or such later date as may be agreed upon by the Collateral Agent) of issue of any Further Shares deposit with the Collateral Agent (or other person nominated by the Collateral Agent):
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(a)
|
all share certificates, documents of title and other documentary evidence of ownership in relation to such Shares; and
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(b)
|
transfers of such Shares duly executed by the Mortgagor or its nominee with the name of the transferee left blank, or if the Collateral Agent so requires, duly executed by the
Mortgagor or its nominee in favour of the Collateral Agent (or its nominee).
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The Mortgagor shall promptly and in any event within 15 Business Days (or such later date as may be
agreed upon by the Collateral Agent) of the issue, accrual or offer of any Derived Assets, deliver to the Collateral Agent or procure the delivery to the Collateral Agent of:
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(a)
|
all share certificates, renounceable certificates, letters of allotment, documents of title and other documentary evidence of ownership in relation to the Derived Assets;
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(b)
|
such documents as are referred to Clauses 0 (7.1
|
Original Shares and Further Shares) in
relation to any Shares comprised in such Derived Assets; and
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|
(c)
|
such other documents as the Collateral Agent may reasonably require to enable the Collateral Agent (or its nominee) or, after the occurrence of an Enforcement Event, any
Receiver or any purchaser to be registered as the owner of, or otherwise to obtain legal title to, the Derived Assets in accordance with this Deed.
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The Mortgagor shall, at its own cost, promptly take whatever action the Collateral Agent or any Receiver
may reasonably require with a view to:
|
(a)
|
creating, preserving, perfecting or protecting any of the Security or the first priority of any of the Security (subject to any Liens permitted by Section 8.04 (Liens) of the Loan Agreement);
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|
(b)
|
facilitating the enforcement of the Security or the exercise of any Rights vested in the Collateral Agent or any Receiver in connection with this Deed; or
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|
(c)
|
providing more effectively to the Collateral Agent the full benefit of the Rights conferred on it by this Deed and otherwise giving full effect to the provisions of this Deed,
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including, without limitation, executing such assignments, transfers and conveyances of the Secured
Assets (whether in favour of the Collateral Agent, any Secured Party or otherwise), giving such notices and making such filings and registrations as the Collateral Agent or any Receiver shall reasonably require, in each case in such form and
on such terms as the Collateral Agent or Receiver shall reasonably specify.
9.
|
VOTING RIGHTS AND DIVIDENDS
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9.1
|
Prior to a Enforcement Event
|
|
(a)
|
Prior to such time as the Collateral Agent has, following the occurrence of an Enforcement Event, notified the Mortgagor in writing that it has elected to collect any Dividends
in accordance with the terms of this Deed, the Mortgagor shall be entitled to receive and retain free from the Security any Dividends paid to it.
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|
(b)
|
Prior to such time as the Collateral Agent has, following the occurrence of an Enforcement Event, notified the Mortgagor in writing that it has elected to exercise voting and
other Rights relating to the Secured Assets in accordance with the terms of this Deed, the Mortgagor shall be entitled to exercise and control the exercise of all voting and other Rights relating to the Secured Assets provided that it
shall not exercise any such voting rights or powers in a manner which would diminish the effectiveness or enforceability of the Security Interests created under this Deed in any material respect or restrict the transferability of the
Secured Assets by the Collateral Agent or any Relevant Person.
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9.2
|
Following an Enforcement Event
|
Upon, and at all times after, the occurrence of any Enforcement Event:
|
(a)
|
at the request of the Collateral Agent, all Dividends shall be paid to and retained by the Collateral Agent or, if appointed, any Receiver and any such monies which may be
received by the Mortgagor shall, pending such payment, be segregated from any other property of the Mortgagor and held in trust for the Collateral Agent; and
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|
(b)
|
the Collateral Agent or, if appointed, any Receiver may, for the purpose of preserving the value of the Security or realising it, direct the exercise of all voting and other
Rights relating to the Secured Assets and the Mortgagor shall procure that all voting and other Rights relating to the Secured Assets are exercised in accordance with such instructions as may, from time to time, be given to the
Mortgagor by the Collateral Agent, or, if appointed, any Receiver and the Mortgagor shall deliver to the Collateral Agent or, if appointed, any Receiver such forms of proxy or other appropriate forms of authorisation as may be
required to enable the Collateral Agent or, as the case may be, Receiver to exercise such voting and other Rights.
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10.
|
REPRESENTATIONS AND WARRANTIES
|
The Mortgagor represents and warrants to the Collateral Agent that each of the matters set out in
Schedule 2 (Assigned Agreements) (save the matters in paragraph 0) is true and correct as at the date hereof. Each representation and warranty 0 will be given (and the matters therein true and
correct) on the date of each issue of any Shares referred to in it.
11.
|
RESTRICTIONS ON DEALINGS
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The Mortgagor may only create, incur, assume or permit to exist a Security Interest on any Secured Asset
if it is permitted by Section 8.04 (Liens) of the Loan Agreement.
The Mortgagor may only Dispose of any Secured Asset if it is permitted by Section 8.05 (Asset Dispositions) of the Loan Agreement.
The Mortgagor covenants with the Collateral Agent in the terms set out in Schedule 3 (Insurance POLICIES).
13.1
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The Mortgagor irrevocably and by way of security appoints the Collateral Agent and each Receiver severally to be its attorney (each with full powers of substitution and
delegation), on its behalf, in its name or otherwise, and, after the occurrence of an Enforcement Event, at such times and in such manner as the attorney may reasonably think fit:
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|
(a)
|
to do anything which the Mortgagor is obliged to do under this Deed but has not done in a timely manner; and
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|
(b)
|
to do anything which it reasonably considers appropriate in relation to the exercise of any of its Rights under this Deed, the LPA, the Insolvency Act or otherwise,
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including, without limitation, the execution and delivery of transfers of any Secured Asset (to the
Collateral Agent or otherwise) (but only after an Enforcement Event), the completion of any stock transfer form deposited with the Collateral Agent pursuant to Clause 0 (7. Covenant to DEPOSIT) (but only after an Enforcement Event), the giving of any notice relating to all or any of the Secured Assets or Security, the execution of any
other document whatsoever and (but only after an Enforcement Event) the exercise of any voting or other Rights of the Mortgagor in its capacity as legal owner of the Original Shares, Further Shares and any other shares comprised in any
Derived Asset.
13.2
|
The Mortgagor hereby ratifies and confirms and agrees to ratify and confirm whatever the attorney shall do or purport to do in the exercise or purported exercise of its Rights
as attorney.
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The Security shall, subject to any prohibition or restriction imposed by law, become enforceable upon and
at any time after an Event of Default occurs and is continuing (an "Enforcement Event").
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(a)
|
At any time after the Security has become enforceable in accordance with Clause 0 (14.1Enforceability),
the Collateral Agent may (but shall not be obliged to) do any one or more of the following:
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|
(i)
|
take possession of, get in and collect all or any of the Secured Assets, and in particular take any steps necessary to vest all or any of the Secured Assets in the name of the
Collateral Agent or its nominee including completing any transfers of any shares comprised in the Secured Assets and receive and retain any dividends;
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(ii)
|
exercise all rights conferred on a mortgagee by law including, without limitation, under the LPA (as such rights are varied or extended, where applicable, by this Deed);
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|
(iii)
|
exercise its rights under Clause 0 (14.3
|
Appropriation of Financial Collateral);
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|
(iv)
|
sell, exchange, convert into money or otherwise dispose of or realise the Secured Assets (whether by public offer or private contract) to any person and for such consideration
(whether comprising cash, debentures or other obligations, shares or other valuable consideration of any kind) and on such terms (whether payable or deliverable in a lump sum or by instalments) as it may reasonably think fit, and for
this purpose complete any transfers of any of the Secured Assets;
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|
(v)
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following written notice to the Mortgagor, exercise or direct the exercise of all voting and other Rights relating to the Secured Assets in such manner as it may reasonably
think fit;
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(vi)
|
settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, Disputes, questions and demands relating in any way to the Secured Assets;
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(vii)
|
bring, prosecute, enforce, defend and abandon actions, suits and Proceedings in relation to the Secured Assets;
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|
(viii)
|
exercise its rights under Clause 0 (15.
|
Appointment Of Receivers); and
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(ix)
|
do all such other acts and things it may consider necessary or expedient for the realisation of the Secured Assets, or incidental to the exercise of any of the Rights conferred
on it, under or in connection with this Deed or the LPA and to concur in the doing of anything which it has the Right to do and to do any such thing jointly with any other person.
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(b)
|
For the purposes only of section 101 of the LPA, the Secured Obligations shall be deemed to have become due, and the powers conferred by that section (as varied and extended by
this Deed) shall be deemed to have arisen immediately upon execution of this Deed.
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(c)
|
Sections 93 and 103 of the LPA shall not apply to this Deed.
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14.3
|
Appropriation of Financial Collateral
|
|
(a)
|
At any time after the Security has become enforceable in accordance with Clause 0 (14.1Enforceability),
the Collateral Agent may, by the giving of written notice to the Mortgagor, appropriate all or any part of the Original Shares, Further Shares, any Shares comprised in any Derived Asset and any other Secured Asset which constitutes
Financial Collateral.
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|
(b)
|
If the Collateral Agent exercises that power of appropriation:
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|
(i)
|
any Original Shares, Further Shares or Shares comprised in any Derived Asset shall be valued by the Collateral Agent as at the time of exercise of the power; their value shall
be the amount of any cash payment which the Collateral Agent reasonably determines would be received on a sale or other disposal of such Shares effected for payment as soon as reasonably possible after that time; and the Collateral
Agent will make that determination in a commercially reasonable manner (including by way of an independent valuation); and
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|
(ii)
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any Secured Asset appropriated which constitutes Cash and which is not denominated in the currency in which any Secured Obligations which then remain unpaid are required to be
paid (the "Required Currency") shall be valued as if it had been converted into the Required Currency on the date of appropriation (or as soon as practicable thereafter) at the rate of exchange
at which the Collateral Agent is able, on the relevant day, to purchase the Required Currency with the other.
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15.
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APPOINTMENT OF RECEIVERS
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15.1
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Appointment and removal
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At any time after the Security has become enforceable in accordance with Clause 0 (14.1 Enforceability) the Collateral Agent may, by deed or other instrument signed by any manager or officer of the Collateral Agent or by any other person
authorised for this purpose by the Collateral Agent, appoint any person or persons to be Receiver or Receivers of all or any part of the Secured Assets, on such terms as the Collateral Agent reasonably thinks fit, and may similarly remove any
Receiver (subject, where relevant, to any requirement for a court order) whether or not the Collateral Agent appoints any person in his place and may replace any Receiver.
15.2
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More than one Receiver
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If more than one person is appointed as Receiver, the Collateral Agent may give the relevant persons
power to act jointly or severally.
15.3
|
Appointment over part of the Secured Assets
|
If any Receiver is appointed over only part of the Secured Assets:
|
(a)
|
references in this Deed to the Rights of a Receiver in relation to Secured Assets shall be construed as references to the relevant part of the Secured Assets; and
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|
(b)
|
the Collateral Agent may subsequently extend his appointment (or that of any Receiver replacing him) to any other part of the Secured Assets, or appoint another Receiver over
that or any other part of the Secured Assets.
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15.4
|
Statutory restrictions
|
|
(a)
|
Section 109(1) of the LPA shall not apply to this Deed.
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|
(b)
|
The Collateral Agent's rights to appoint a Receiver or Receivers hereunder are subject to the restrictions set out in Part III of Schedule A1 to the Insolvency Act.
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15.5
|
Agent of the Mortgagor
|
|
(a)
|
Each Receiver shall, so far as the law permits, be the agent of the Mortgagor and the Mortgagor alone shall be responsible for each Receiver's remuneration and for his acts,
omissions or defaults, and shall be liable on any contracts or engagements made, entered into or adopted by him and for any Losses incurred by him save, in each case, in circumstances where the liabilities or Losses arises as a direct
result of the Receiver’s gross negligence or wilful misconduct.
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|
(b)
|
The Collateral Agent shall not be responsible for or incur any liability (whether to the Mortgagor or any other person) in connection with any Receiver's acts, omissions,
defaults, contracts, engagements or Losses save, in each case, in circumstances where the liabilities or Losses arises as a direct result of the Receiver’s gross negligence or wilful misconduct.
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|
(c)
|
Notwithstanding Clause 00 (15.5
|
Agent of the Mortgagor) if a liquidator
of the Mortgagor is appointed, the Receiver shall thereafter act as principal and not as agent for the Collateral Agent, unless otherwise agreed by the Collateral Agent.
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Any Receiver appointed under this Deed shall (subject to any contrary provision specified in his
appointment) have all the Rights of the Collateral Agent under Clause 0 (17. Rights of Collateral Agent and Secured
PARTIES) (insofar as applicable to a Receiver) and shall exercise the Rights, either in his own name or in the name of the Mortgagor or otherwise and in such manner and upon such terms and conditions as the Receiver reasonably thinks
fit:
|
(a)
|
Rights under Clause 0 (14.2
|
Enforcement): to exercise any or all of
the Rights conferred upon the Collateral Agent under Clause 0 to 0 and under Clause 0, as if reference to "Collateral Agent" in Clause 0 were a reference to "Receiver";
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|
(b)
|
Insolvency Act: to exercise all rights set out in Schedule 1 of the Insolvency Act as in force at the date of this Deed (whether or not
in force at the date of exercise) and all other powers conferred by law, at the time of exercise, on Receivers;
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|
(c)
|
Raise or borrow money: to raise or borrow money, either unsecured or on the security of any Secured Asset (either in priority to the
Security or otherwise) for any purpose whatsoever, including, without limitation, for the purpose of exercising any of the Rights conferred upon the Receiver by or pursuant to this Deed or of defraying any costs, charges, Losses,
liabilities or expenses (including his remuneration) incurred by or due to the Receiver in the exercise thereof, in each case and at all times, in accordance with its express power to raise or borrow money pursuant to Schedule 1 of
the Insolvency Act;
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(d)
|
Redemption of Security Interests: to redeem any Security Interest (whether or not having priority to the Security) over any Secured Asset
and to settle the accounts of holders of such interests and any accounts so settled shall be conclusive and binding on the Mortgagor;
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|
(e)
|
Receipts: to give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any
Secured Asset;
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|
(f)
|
Delegation: to delegate to any person any Rights exercisable by the Receiver under or in connection with this Deed, either generally or
specifically and on such terms as the Receiver reasonably thinks fit; and
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|
(g)
|
General: to do all such other acts and things the Receiver considers necessary or desirable in connection with the exercise of any of the
Rights conferred upon the Receiver hereunder or by law and all things the Receiver considers incidental or conducive to the exercise and performance of such Rights and obligations and to do anything which the Receiver has the right to
do jointly with any other person.
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Subject to section 36 of the Insolvency Act, the remuneration of any Receiver may be fixed by the
Collateral Agent without being limited to the maximum rate specified by section 109(6) of the LPA. Such remuneration shall be payable by the Mortgagor alone. The amount of such remuneration may be debited by the Collateral Agent from any
account of the Mortgagor but shall, in any event, form part of the Secured Obligations and accordingly be secured on the Secured Assets under the Security. Such remuneration shall be paid on such terms and in such manner as the Collateral
Agent and Receiver may from time to time agree or failing such agreement as the Collateral Agent reasonably determines.
17.
|
RIGHTS OF COLLATERAL AGENT AND SECURED PARTIES
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The Collateral Agent may give a valid receipt for any moneys and execute any assurance or thing which may
be proper or desirable for realising any Secured Asset.
The Collateral Agent may at any time, and from time to time, delegate to any person any Rights
exercisable by the Collateral Agent under or in connection with this Deed on such terms and conditions (including power to sub-delegate) as the Collateral Agent thinks fit.
17.3
|
Redemption of prior Security Interests
|
The Collateral Agent may, at any time after an Enforcement Event has occurred, redeem any Security
Interest having priority to the Security at any time or procure the transfer thereof to the Collateral Agent and may settle the accounts of holders of such interests and any account so settled shall be conclusive and binding on the Mortgagor.
All principal monies, interest and Losses of and incidental to such redemption or transfer shall be paid by the Mortgagor to the Collateral Agent promptly on demand.
Until Payment in Full, the Collateral Agent or the Receiver (as appropriate) may at any time credit to
and retain in an interest bearing suspense account, for such period as it reasonably thinks fit, any moneys received, recovered or realised pursuant to this Deed, without any obligation to apply all or any part of the same in or towards the
discharge of the Secured Obligations.
If the Collateral Agent receives notice (actual or constructive) of any subsequent Security Interest
(other than any Security Interest permitted under the Loan Agreement) over any Secured Asset, or if an Insolvency Event in relation to the Mortgagor occurs, each Secured Party may open a new account in the name of the Mortgagor (whether or
not it allows any existing account to continue), and if it does not do so, it shall be deemed to have done so at the time the Collateral Agent received or was deemed to have received such notice or at the time that the Insolvency Event
commenced (such time the "Relevant Time"). Thereafter, all subsequent payments by the Mortgagor to the relevant Secured Party and all payments received by the relevant Secured Party for the account of
the Mortgagor, whether received from the Collateral Agent or otherwise, shall be credited or deemed to have been credited to the new account, and shall not operate to reduce the Secured Obligations owing to such Secured Party at the Relevant
Time.
17.6
|
Other security and rights
|
The Collateral Agent may, at any time, without affecting the Security or the liability of the Mortgagor
under this Deed: (a) refrain from applying or enforcing any other moneys, Security Interests or rights held or received by it (or any trustee or agent on its behalf) in respect of any Secured Obligations; or (b) apply and enforce the same in
such manner and order as it reasonably sees fit (whether against those amounts or otherwise), and the Mortgagor waives any right it may have of first requiring the Collateral Agent to proceed against any other person, exercise any other
rights or take any other steps before exercising any Rights under or pursuant to this Deed.
18.
|
APPLICATION OF MONEYS
|
All moneys realised, received or recovered by the Collateral Agent or any Receiver in the exercise of
their respective Rights under or in connection with this Deed, shall (subject, in each case, to any claims ranking in priority as a matter of law) be applied in or towards, in the order specified in the Loan Agreement.
18.2
|
Statutory Provisions
|
Sections 105, 107(2) and 109(8) of the LPA shall not apply to this Deed.
19.
|
LIABILITY OF COLLATERAL AGENT, RECEIVER AND DELEGATES
|
19.1
|
No Relevant Person shall, in any circumstances, (whether as mortgagee in possession or otherwise) be liable to the Mortgagor or to any other person for any Loss arising under or
in connection with this Deed or the Security, including, without limitation, any Loss relating to: (a) the enforcement of the Security in accordance with this Deed; or (b) any exercise, purported exercise or non-exercise of any Right
under or in relation to this Deed or the Security.
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19.2
|
Clause 0 (19.
|
Liability of Collateral Agent, RECEIVER )
shall not apply in respect of any Loss to the extent that it has been found by a final non-appealable judgment of a court of competent jurisdiction to have been incurred by reason of the Relevant Person’s gross negligence, wilful
misconduct or unlawful conduct.
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19.3
|
The Mortgagor may not take any proceedings against any officer, employee or agent of the Collateral Agent or of any Receiver or of any Delegate in respect of any claim against
the Collateral Agent, Receiver or Delegate or in respect of any act or omission of such officer, employee or agent (save where such act has been found by a final non‑appealable judgment of a court of competent jurisdiction to have
been a direct result of his or its gross negligence, wilful misconduct or unlawful conduct), in each case in connection with this Deed.
|
19.4
|
Each officer, employee and agent of the Collateral Agent or of any Receiver or Delegate may rely on this Clause 0 (19.Liability of Collateral Agent, RECEIVER ) in accordance with the Third Parties Act (but subject to Clause 0 (27.5Third party rights)).
|
The Mortgagor shall indemnify each Relevant Person to the extent that and in the manner in which the
Borrowers indemnify the Indemnitees under Section 11.04 (Indemnity) of the Loan Agreement. Each Relevant Person may rely on this Clause 0 (20. INDEMNITY) in accordance with the Third Parties Act but subject to Clause 0 (27.5Third party rights).
21.
|
PROTECTION OF THIRD PARTIES
|
No person (including a purchaser) dealing with the Collateral Agent, any Receiver or any Delegate shall
be concerned to enquire: (a) whether any Secured Obligation has become payable or remains outstanding; (b) whether any event has happened upon which any of the Rights exercised or purported to be exercised by the Collateral Agent, any
Receiver or any Delegate under or in connection with this Deed, the LPA, the Insolvency Act or otherwise has arisen or become exercisable; (c) whether any consents, regulations, restrictions or directions relating to any such Rights have been
obtained or complied with; (d) otherwise as to the propriety, regularity or validity of the exercise or purported exercise of any such Rights; or (e) as to the application of any moneys borrowed or raised or any realisation proceeds and the
receipt of the Collateral Agent, Receiver or Delegate shall be an absolute and conclusive discharge to the relevant person.
22.
|
SECURITY CONTINUING, CUMULATIVE AND NOT TO BE AFFECTED
|
Subject to Clauses 0, 0 and 0 (26. Release of SECURITY), the Security shall remain in full force and effect as a continuing security to the
Collateral Agent for the Secured Obligations and shall not be satisfied, discharged or affected by any intermediate payment or discharge of all or part of the Secured Obligations or by any other matter or thing whatsoever.
22.2
|
Security Interests cumulative
|
The Security is in addition to, and shall not be prejudiced by, any other Security Interest, guarantee,
indemnity, right of recourse or any other right which the Collateral Agent or any Secured Party may now or hereafter have in respect of all or any part of the Secured Obligations. No prior Security Interest shall merge with any Security.
22.3
|
Security not to be affected
|
Neither the obligations of the Mortgagor under or pursuant to this Deed nor the Security will be
prejudiced or affected by any act, omission or thing (whether or not known to the Mortgagor or the Collateral Agent or any Secured Party) which, but for this provision, would reduce, release, prejudice or provide any defence in respect of any
of the Mortgagor's obligations under or pursuant to this Deed or the Security including, without limitation: (a) any variation, amendment, novation, supplement, extension, restatement or replacement of, or any waiver or release granted under
or in connection with, any Loan Document, any document the obligations under which are secured hereunder, any other security, any guarantee, any indemnity or any other document; (b) any time being given, or any other indulgence or concession
being granted, by the Collateral Agent to the Mortgagor or any other person; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or any Security
Interest over assets of, any other person; (d) any non-observance of any formality; (e) any incapacity or lack of power or authority of the Mortgagor or any other person; (f) any change in the constitution, membership, ownership, legal form,
name or status of the Mortgagor or any other person; (g) any unenforceability, illegality or invalidity of any obligation of any person under any other deed or document; or (h) any insolvency or similar proceedings; (i) any amalgamation,
merger or reconstruction effected by the Collateral Agent with any other person or any sale or transfer of the whole or any part of the undertaking and assets of the Collateral Agent to any other person; (j) the existence of any claim,
set-off or other right which the Mortgagor may have at any time against the Collateral Agent or any other person; or (k) the making or absence of any demand for payment of any Obligation by the Collateral Agent or otherwise.
23.
|
CERTIFICATE CONCLUSIVE, ETC
|
For all purposes, including any Proceedings, a certificate signed by any officer or manager of the
Collateral Agent (or copy thereof) as to the amount of any indebtedness comprised in the Secured Obligations, any applicable rate of interest or any other amount or interest rate for the purpose of this Deed shall, in the absence of manifest
error, be conclusive and binding on the Mortgagor and all entries in any accounts maintained by the Collateral Agent for the purposes of this Deed shall be prima facie evidence of the matters to which they relate.
24.
|
NO SET-OFF BY MORTGAGOR
|
The Mortgagor shall not be entitled to, and shall not, set off any obligation owed by the Collateral
Agent or any other Secured Party to the Mortgagor against any obligation whether or not matured owed by the Mortgagor to the Collateral Agent or other Secured Party and shall make all payments to be made by it under this Deed in full without
any set off, restriction or condition and without any deduction for or on account of any counterclaim.
The Mortgagor shall pay to the Collateral Agent in relation to this Deed such costs and expenses as are of
the type which are reimbursable by the Borrowers pursuant to Section 11.03 (Expenses, Etc.) of the Loan Agreement.
26.1
|
Subject to Clauses 0 and 0 (26.
|
Release of SECURITY), upon Payment in Full, the Collateral Agent shall, at the request and cost of the Mortgagor, execute such documents and do all such things as may be necessary to release the Secured Assets from
the Security.
|
26.2
|
Notwithstanding anything to the contrary in this Deed (including, without limitation, Clauses 0 and 0 (26.Release of SECURITY) hereof), the obligations of the Mortgagor under this Deed shall automatically terminate and the Collateral Agent shall, at the request and cost of the
Mortgagor, execute such documents and do all such things as may be necessary to release the Secured Assets from the Security to the extent provided in and in accordance with Section 11.01(c) (Waiver;
Amendments; Joinder; Release of Guarantors; Release of Collateral) and Section 11.23 (Release of Guarantors) of the Loan Agreement.
|
26.3
|
If any amount paid by the Mortgagor in respect of the Secured Obligations is capable of being avoided or set aside on the liquidation or administration of the Mortgagor or
otherwise, then for the purposes of this Deed that amount shall not be considered to have been paid. No interest shall accrue on any such amount, unless and until such amount is so avoided or
set aside.
|
27.1
|
Remedies and waivers
|
No failure to exercise or delay in exercising any right, power or remedy provided by law or under this
Deed shall operate to impair the same or be construed as a waiver of it. No single or partial exercise of any such right, power or remedy shall preclude or restrict any further or other exercise of the same or the exercise of any other
right, power or remedy. No waiver of any such right, power or remedy shall constitute a waiver of any other right, power or remedy. Except as expressly provided in this Deed, the rights, powers and remedies provided in this Deed are
cumulative and not exclusive of any rights provided by law.
27.2
|
Variations and consents
|
No consent, variation or waiver in respect of any provision of this Deed shall be effective unless it is
agreed in writing and signed by or on behalf of each of the parties to this Deed.
27.3
|
Invalidity and severability
|
If any provision of this Deed is or becomes or is found by a court or other competent authority to be
illegal, invalid or unenforceable in any respect, in whole or in part, under any law of any jurisdiction, that shall not affect or impair the legality, validity and enforceability in that jurisdiction of any other provision of this Deed or
the legality, validity or enforceability in any other jurisdiction of that provision or any other provision of this Deed.
This Deed (and each variation or waiver in respect of any provision of it) may be executed in any number
of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, once executed and, where relevant, delivered, shall constitute an original of
this Deed or the relevant variation or waiver, but all the counterparts together shall constitute one and the same instrument.
Except for each Secured Party who is not party to this Deed and as otherwise specifically provided herein
a person who is not party to this Deed has no right under the Third Parties Act to enforce any provision of this Deed. Each Secured Party (who is not party to this Deed) may enforce and enjoy the benefits of the provisions of Clauses 0 (17.Rights of Collateral Agent and Secured PARTIES), 0 (20.INDEMNITY) and 0 (25.Costs and EXPENSES) of this Deed. This does not affect any right or remedy of a third party which exists or is
available other than under the Third Parties Act.
This Deed together with the other Loan Documents constitutes the entire agreement and understanding
between the parties relating to their subject matter. Accordingly this Deed supersedes all prior oral or written agreements, representations or warranties. Any liabilities for and any remedies in respect of any such agreements,
representations or warranties made are excluded, save only in respect of such as are expressly made or repeated in this Deed or in the other Loan Documents. No party has entered into this Deed or any other Loan Document in reliance on any
oral or written agreement, representation or warranty of any other party or any other person which is not made or repeated in this Deed or any other Loan Document. Nothing in this Clause shall operate to exclude liability for any fraudulent
statement or act.
Subject to Clause 0 (1.2 Interpretation), if there is any conflict or
inconsistency between the provisions of this Deed and any other Loan Document, the provisions of this Deed shall prevail.
28.1
|
The Collateral Agent may, at any time, in accordance with the Loan Agreement, assign, mortgage, charge, grant a trust over or otherwise dispose of all or any of its rights and
benefits under this Deed.
|
28.2
|
The Mortgagor shall not assign, charge, grant a trust over or otherwise dispose of all or any of its rights and benefits under this Deed, except as permitted under the Loan
Agreement.
|
Any notice or other communication under this Deed shall be made in accordance with the provisions set out
in the Loan Agreement. Any notice delivered to the Parent or the Borrowers on behalf of the Mortgagor shall be deemed to have been delivered to the Mortgagor.
30.
|
GOVERNING LAW AND JURISDICTION
|
This Deed (including any non-contractual obligations or liabilities arising out of it or in connection
with it) is governed by and is to be construed in accordance with English law.
|
(a)
|
Each party irrevocably agrees that:
|
|
(i)
|
the English courts have non-exclusive jurisdiction to hear and determine any Proceedings and to settle any Disputes and each party irrevocably submits to the jurisdiction of the
English courts;
|
|
(ii)
|
any Proceedings may be taken in the English courts;
|
|
(iii)
|
any judgment in Proceedings taken in any such court shall be conclusive and binding on it and may be enforced in any other jurisdiction.
|
|
(b)
|
Each party also irrevocably waives (and irrevocably agrees not to raise) any objection which it might at any time have on the ground of forum non conveniens or on any other
ground to Proceedings being taken in any court referred to in this Clause 0 (30.Governing Law and JURISDICTION).
|
|
(c)
|
Nothing in this Clause 0 shall limit any party's right to take Proceedings against the other party in any other jurisdiction or in more than one jurisdiction concurrently.
|
|
(d)
|
This jurisdiction agreement is not concluded for the benefit of only one party.
|
This Deed has been executed as a deed and is delivered on the date stated at the top of page one.
[Signature pages follow]
Executed as deed by WEATHERFORD )
EURASIA LIMITED acting by a director, )
in the presence of: )
__________________
Director
Name:
___________________________
Witness:
Name:
Occupation:
Address:
COLLATERAL AGENT
Executed as a deed by DEUTSCHE BANK )
TRUST COMPANY AMERICAS)
acting by ........................................................... )
........................................................................... )
who, in accordance with the laws of the territory )
in which Deutsche Bank Trust Company Americas )
is incorporated, is/are acting under its authority )
___________________________
Authorised signatory
Name:
___________________________
Authorised signatory
Name:
SCHEDULE 1
ORIGINAL SHARES
Name of Company
|
Class of Shares
|
Nominal Value of each Share
|
Number of Shares
|
Certificate number(s)
|
Registered holder as at the date hereof
|
Reeves Wireline
Technologies Limited
|
Ordinary
|
£10.00
|
983,414
|
10
|
Weatherford Eurasia Limited
|
|
|
|
|
|
|
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
The Original Shares:
|
(a)
|
have been duly authorised and validly issued;
|
|
(b)
|
are free from any restrictions or conditions on transfer or rights of pre-emption, except as otherwise permitted by the Loan Agreement;
|
|
(c)
|
are fully paid, and no moneys or liabilities are outstanding in respect of any of them; and
|
|
(d)
|
represent the whole of the issued share capital of the Company.
|
All Further Shares and any Shares comprised in any Derived Assets:
|
(a)
|
have been duly authorised and validly issued;
|
|
(b)
|
are free from any restrictions or conditions on transfer or rights of pre‑emption, except as otherwise permitted by the Loan Agreement;
|
|
(c)
|
are fully paid, and no monies or liabilities are outstanding in respect of any of them; and
|
together with the Original Shares, any Further Shares and Shares comprised in any Derived Assets
previously issued represent the whole of the issued share capital of the Company except as otherwise permitted by the Loan Agreement.
|
(a)
|
The Mortgagor represents and warrants that it has not issued and does not intend to issue any warning notice or restrictions notice under Schedule 1B of the Companies Act 2006
in respect of any Shares which constitute Secured Asset; and
|
|
(b)
|
the Mortgagor has not received any warning notice or restrictions notice under Schedule 1B of the Companies Act 2006 in respect of any Shares which constitute Secured Asset.
|
SCHEDULE 3
COVENANTS
Restrictions on Transfer and Rights of Pre-emption
The Mortgagor shall ensure that the Original Shares, any Further Shares and any Shares comprised in any
Derived Assets are and remain free from any restriction on transfer or rights of pre-emption, except as otherwise permitted by the Loan Agreement.
Articles of Association
The Mortgagor shall not permit the articles of association of the Company to be amended or modified in
any way that would adversely affect in any material respect the Security created pursuant to this Deed.
EXHIBIT L
FORM OF BRITISH VIRGIN ISLANDS SECURITY AGREEMENTS
EXHIBIT M
FORM OF INTERCOMPANY SUBORDINATION AGREEMENT
FORM OF
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT (this “Agreement”) is dated as of
[__________], 20__ and is made by and among the entities listed on the signature pages hereto (such entities, together with any other subsidiaries of Weatherford International plc, an Irish public limited company (“WIL-Ireland”),
whether now existing or hereafter formed or acquired, that become party to this Agreement from time to time in accordance with the terms of Section 6 hereof, being individually referred to herein as a “Company” and collectively as the
“Companies”, in any case including any applicable branch thereof).
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto covenant and
agree as follows:
1. Subordinated Indebtedness Subordinated to Senior Debt. Reference is made to that certain Credit Agreement dated as of the date hereof (as the same may be amended, restated or otherwise modified or replaced from time to time,
the “LC Credit Agreement”) by and among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a Delaware corporation (“WIL-Delaware”), WIL-Ireland, the Lenders from
time to time party thereto, the Issuing Banks from time to time party thereto and Deutsche Bank Trust Company Americas, as Administrative Agent (in such capacity, the “Administrative Agent”). Each capitalized term used herein
and not defined herein shall have the meaning given to it in the LC Credit Agreement.
All Indebtedness arising from intercompany loans and advances owing by an Obligor
(other than Parent) to a Restricted Subsidiary that is not an Obligor or an Unrestricted Subsidiary (the loaning or advancing Company being referred to hereunder as an “Intercompany Lender” and the borrower or payee Company being
referred to as an “Intercompany Borrower”, and such loans and advances, collectively, “Subordinated Indebtedness”) shall be subordinate and junior in right of payment, and exercise of remedies, to the Obligations (as defined in
the LC Credit Agreement, the “Senior Obligations”) until paid in full and pursuant to the terms of the LC Credit Agreement, except (x) to the extent that such subordination of such Subordinated Indebtedness would violate applicable law
and (y) for loans and advances set forth on Schedule 1 as updated by WIL-Ireland from time to time. Except as expressly permitted by the LC Credit Agreement, no Intercompany Lender shall (i) acquire any Lien on any asset of any
Intercompany Borrower or (ii) accept any guaranties from any other Company or from any other Subsidiary of any Obligor in each case with respect to the Subordinated Indebtedness.
Until Payment in Full has occurred in accordance with the terms of the LC Credit
Agreement, no Intercompany Lender will (a) accelerate, make demand, or otherwise make due and payable prior to the original due date thereof any Subordinated Indebtedness; (b) bring, commence, institute, prosecute, or participate in any
lawsuit, action, or proceeding, whether private, judicial, equitable, administrative, or otherwise to enforce its rights or interests, or otherwise take any remedy, in each case in respect of the Subordinated Indebtedness; (c) exercise any of
its rights or remedies under or with respect to guaranties of the Subordinated Indebtedness, if any; (d) exercise any of its rights or remedies in connection with the Subordinated Indebtedness with respect to any Collateral of any
Intercompany Borrower; (e) exercise any right to set-off, recoupment or counterclaim in respect of any indebtedness, liabilities, or obligations of Intercompany Lender to any Intercompany Borrower against any of the Subordinated Indebtedness;
(f) in its capacity as an Intercompany Lender, contest, protest, or object to any exercise of secured creditor remedies by the Administrative Agent or any Senior Debt Holders (as defined below), in each case in connection with the Senior
Obligations; (g) object to or contest any forbearance in respect of the Senior Obligations by the Administrative Agent or any Senior Debt Holders; (h) object to or contest any waiver of, or amendment to, the terms of the LC Credit Agreement
and the other Loan Documents entered into by the Administrative Agent of any Senior Debt Holders; or (i) commence, or cause to be commenced, or join with any creditor other than the Administrative Agent or any Lender in commencing, any
Insolvency Proceeding (as defined below) against any Intercompany Borrower.
2. Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of assets of any Intercompany Borrower in the event of (a) any Insolvency Proceeding, or (b) any assignment for the benefit of creditors in connection
with, or in lieu of, an Insolvency Proceeding or any marshalling of assets and liabilities of any such Intercompany Borrower in connection with an Insolvency Proceeding (an Intercompany Borrower distributing assets as set forth herein being
referred to as a “Distributing Company”), the Administrative Agent shall be entitled to receive, for the benefit of the holders of the Senior Obligations (each, a “Senior Debt Holder”), Payment in Full under the LC Credit
Agreement before the holder of any Subordinated Indebtedness is entitled to receive any payment on account of any Subordinated Indebtedness owed to it by the Distributing Company, and, to that end, the Administrative Agent shall be entitled
to receive, for application to the payment of the Senior Obligations in accordance with the LC Credit Agreement, any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or
deliverable in respect of the Subordinated Indebtedness owed by the Distributing Company in any such case, proceeding, dissolution, liquidation or other winding up event. If any Event of Default shall have occurred and be continuing, or
such an Event of Default would result from or exist after giving effect to a payment with respect to any portion of the Subordinated Indebtedness, so long as any of any Senior Obligations shall remain outstanding, no payment shall be made
by any Company on account of principal or interest on any portion of the Subordinated Indebtedness.
If, while any Subordinated Indebtedness is outstanding and before Payment in Full has
occurred in accordance with the terms of the LC Credit Agreement, any Insolvency Proceeding shall occur and be continuing with respect to any Company or its property: (a) the Administrative Agent hereby is irrevocably authorized and
empowered (in the name of the Company or otherwise), but shall have no obligation, to demand, sue for, collect, and receive every payment or distribution in respect of the Subordinated Indebtedness and give acquittance therefor and to file
claims and proofs of claim and take such other action (including voting the Subordinated Indebtedness) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Administrative Agent (or any
Senior Debt Holders) under any of the Loan Documents; and (b) each Company shall promptly take such action as the Administrative Agent may reasonably request (i) to collect the Subordinated Indebtedness for the account of the Senior Debt
Holders and to file appropriate claims or proofs of claim in respect of the Subordinated Indebtedness, (ii) to execute and deliver to the Administrative Agent such powers of attorney, assignments, and other instruments as it may reasonably
request to enable it to enforce any and all claims with respect to the Subordinated Indebtedness, and (iii) to collect and receive any and all any payments or distributions of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Subordinated Indebtedness.
3. Payment Permitted if No Default. Nothing contained in this Agreement shall prevent any of the Companies at any time, except during the pendency of any of the applicable conditions described in Section 2, from making payments
of principal or interest on any portion of the Subordinated Indebtedness, or the retention thereof by any of the Companies of any money deposited with them for the payment of or on account of the principal of or interest on the Subordinated
Indebtedness.
4. Receipt of Prohibited Payments. If, notwithstanding the foregoing provisions of Sections 2 and 3, an Intercompany Lender shall have received any payment or distribution of assets from an Intercompany Borrower of any kind or
character (whether in cash, property or securities) in violation of this Agreement, then such payment or distribution shall be held in trust for the benefit of the Senior Debt Holders, shall be segregated from other funds and property held
by such Intercompany Lender, and shall be forthwith paid over to the Administrative Agent in the same form as so received (with any necessary endorsement) to be applied to (in the case of cash), or held as collateral for (in the case of
noncash property or securities), the payment or prepayment of the Senior Obligations in accordance with the terms of the LC Credit Agreement.
5. Rights of Subrogation. Each Company agrees that no payment or distribution to any Senior Debt Holder pursuant to the provisions of this Agreement shall entitle it to exercise any rights of subrogation in respect thereof
until Payment in Full has occurred in accordance with the LC Credit Facility.
6. Additional Subsidiaries. WIL-Ireland may, from time to time, cause certain of its subsidiaries to become a Company under this Agreement and to be bound hereby. Upon execution and delivery by any such subsidiary of a
supplement hereto in the form attached as Annex I, such subsidiary shall become a “Company” hereunder with, at all times after such counterpart signature page is delivered, the same force and effect as if originally named as a
Company hereunder. The rights and obligations of each Company hereunder shall remain in full force and effect notwithstanding the addition of any new Company as a party to this Agreement.
7. Continuing Force and Effect. This Agreement shall continue in force until payment in full of the Senior Obligations, it being contemplated that this Agreement be of a continuing nature. The subordinations, agreements and
priorities set forth herein shall remain in full force and effect both before and after the commencement of any Insolvency Proceeding, including the relative rights of the parties hereto in or to any distribution from or in respect of any
Collateral or any proceeds thereof. The provisions of this Agreement are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510 of the Bankruptcy Code.
8. Reinstatement. This Agreement shall continue to be effective or shall be reinstated (and the amount of Senior Debt shall be reinstated), as the case may be, if, for any reason, any payment of the Senior Debt shall be
rescinded or must otherwise be restored by the Administrative Agent or any Senior Debt Holder, whether as a result of an Insolvency Proceeding or otherwise.
9. Modification, Amendments or Waivers. Any and all agreements amending or changing any provision of this Agreement shall be made only by written agreement, waiver or consent signed by the parties hereto. Notwithstanding the
foregoing, this Agreement may be amended, amended and restated, supplemented, modified, waived or released with respect to any Company solely with the approval of such Company and without the approval of any other Company and without
affecting the obligations of any other party hereto.
9. Severability. The provisions of this Agreement are intended to be severable. If any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
10. Successors and Assigns. This Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns, and the obligations of each Company shall be binding upon their respective successors and
permitted assigns.
11. Counterparts. This Agreement may be executed by the different parties hereto on any number of separate counterparts, each of which, when executed and delivered, shall be deemed an original, and all such counterparts shall
together constitute one and the same instrument.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
13. Conflicts with Subordinated Indebtedness Documents. In case of any conflict or inconsistency between any terms of this Agreement, on the one hand, and any documents or instruments in respect of the Subordinated Indebtedness,
on the other hand, then the terms of this Agreement shall control.
14. Conflicts with LC Credit Agreement. In case of any conflict or inconsistency between any terms of this Agreement, on the one hand, and any of the terms and provisions of the LC Credit Agreement, on the other hand, then the
terms and provisions of the LC Credit Agreement shall control.
15. Conflicts with Intercreditor Agreement. In case of any conflict or inconsistency between any terms of this Agreement, on the one hand, and any of the terms and provisions of the Intercreditor Agreement, on the other hand,
then the terms and provisions of the Intercreditor Agreement shall control.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their
duly authorized officers as of the date first written above.
[NAME
OF COMPANY]
By:____________________________________
Name:
Title:
SCHEDULE 1
ANNEX I TO INTERCOMPANY SUBORDINATION AGREEMENT
Reference is hereby made to the Intercompany Subordination Agreement (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Agreement”), dated as of December [__], 2019, made by and among the entities listed on the signature pages thereto (such entities, together with any other subsidiaries of Weatherford International plc, an Irish public limited company
(“WIL-Ireland”), whether now existing or hereafter formed or acquired, that become party to the Agreement from time to time in accordance with the terms of Section 6 of the Agreement, being individually referred to herein as a “Company”
and collectively as the “Companies”, in any case including any applicable branch thereof). Each capitalized term used herein and not defined herein shall have the meaning given to it in the Agreement.
By its execution below, the undersigned, [NAME OF NEW COMPANY], a [________________] [corporation] [partnership] [limited liability company] [other form of legal entity] (the “New Company”), agrees to become, and does hereby become, a Company under the Agreement and agrees to be bound by the Agreement as if
originally a party thereto. Without limiting the foregoing, the undersigned hereby absolutely and unconditionally, and jointly and severally with the other Companies, guarantees performance of the obligations of the Agreement.29
IN WITNESS WHEREOF, the New Company has executed and delivered this Annex I counterpart to the Agreement as of this __________
day of _________, 20___.
[NAME
OF NEW COMPANY]
By:____________________________________
Name:
Title:
Acknowledged and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
29 Provisions applicable to any Company organized in a new jurisdiction to be
inserted.
EXHIBIT N
FORM OF PARTICIPANT CERTIFICATE
[NAME OF LENDER] (the “Seller”)
[ADDRESS]
[ADDRESS]
Attention:
Telephone:
Email:
Weatherford International plc
c/o Weatherford International, LLC
2000 St. James Place
Houston, Texas 77056
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
Deutsche Bank Trust Company Americas
60 Wall Street
New York, New York 10005
Attention: Project Finance Agency Services, Weatherford
Electronic Mail Address: Mary.Coseo@db.com
Reference is made to that certain LC Credit Agreement, dated as of December 13, 2019 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International, LLC, a
Delaware limited liability company (“WIL-Delaware”), Weatherford International plc, an Irish public limited company (“Parent”), the Lenders from time to time party thereto, Deutsche Bank Trust Company Americas, as administrative
agent for the Lenders, and the Issuing Banks from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the respective meanings specified therefor in the Credit Agreement.
Pursuant to Section 11.05(c) and Section 11.25(b) of the Credit Agreement, the
undersigned (the “Participant”) is a prospective purchaser of a participation (or sub-participation) under the Credit Agreement to be sold by the Seller and is required to deliver this Participant Certificate.
Participant hereby confirms that, as of date set forth below (check one):
|
ð
|
Participant is a Swiss Qualifying Lender and has not entered into a participation (including a sub-participation) arrangement with respect to the Credit Agreement with any
Person that is a Swiss Non-Qualifying Lender.
|
|
ð
|
Participant is a Swiss Non-Qualifying Lender, and counts as one single creditor for purposes of the Swiss Non-Bank Rules and has not entered into a participation (including any
sub-participation) arrangement with respect to the Agreement with any Person that is a Swiss Non-Qualifying Lender.
|
For purposes of the foregoing:
“Swiss Guidelines” means, together, guideline S-02.123 in relation to interbank loans of 22
September 1986 (Merkblatt “Verrechnungssteuer auf Zinsen von Bankguthaben, deren Gläubiger Banken sind (Interbankguthaben)” vom 22. September 1986), circular letter No. 47 in relation to bonds of 25
July 2019 (1-047-V-2019) (Kreisschreiben Nr. 47 “Obligationen” vom 25. Juli 2019), guideline S-02.130.1 in relation to money market instruments and book claims of April 1999 (Merkblatt vom April 1999 betreffend Geldmarktpapiere und Buchforderungen inländischer Schuldner), circular letter No. 46 of 24 July 2019 (1-046-VS-2019) in relation to syndicated credit facilities (Kreisschreiben Nr. 46 “Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen” vom 24. Juli 2019), circular letter No. 34 of 26 July 2011 (1-034-V-2011) in relation to deposits (Kreisschreiben Nr. 34 “Kundenguthaben” vom 26. Juli 2011); the circular letter No. 15 of 3 October 2017 (1-015-DVS-2017) in relation to bonds and derivative financial instruments as subject matter of
taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 “Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der
Verrechnungssteuer und der Stempelabgaben” vom 3. Oktober 2017) and the notification regarding credit balances in groups (Mitteilung 010-DVS-2019 of February 2019 betreffend "Verrechnungssteuer: Guthaben im Konzern") each as issued,
and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any
law, statute, ordinance, regulation, court decision or the like as in force from time to time.
“Swiss Qualifying Lender” means a Person that (i) is a bank as defined in the Swiss Federal Code
for Banks and Savings Banks dated 8 November 1934 (Bundesgesetz über die Banken und Sparkassen) as amended from time to time or (ii) effectively conducts banking activities with its own infrastructure
and staff as its principal business purpose and which has a banking license in full force and effect issued in accordance with the banking laws in force in its jurisdiction of incorporation, or if acting through a branch, issued in accordance
with the banking laws in the jurisdiction of such branch, all and in each case in accordance with the Swiss Guidelines.
“Swiss Non-Qualifying Lender” means a person which does not qualify as a Swiss Qualifying Lender.
[Intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, the undersigned has executed this Participant Certificate this _____ day of
_______________, 20___.
[NAME OF PARTICIPANT]
By:_____________________________________
Name:
Title:
EXHIBIT O
FORM OF ACTIVITY REPORT
Activity for Week Of:
|
Issuing Bank Name
|
LC Number
|
Beneficiary Name
|
Issue
Date
(mm/dd/yy)
|
New Issue (Y/N)
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Expiry
Date
(mm/dd/yy)
or “1/1/2999”
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Cancellation (Y/N)
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Extension
Date
(mm/dd/yy)
|
Existing Notional
Amount
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New Notional Amount
|
Notional Increase / (Decrease)
|
Currency
|
FX Rate
|
New Total
USD
Equiv.
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Exhibit C
Exhibit P
INTERCREDITOR AGREEMENT
dated as of
August 28, 2020
among
DEUTSCHE BANK TRUST COMPANY AMERICAS
as LC Collateral Agent,
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Notes Collateral Agent,
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED
when joined hereto as LC Australian Collateral Agent,
WEATHERFORD INTERNATIONAL PLC,
and
The other Grantors Named Herein
TABLE OF CONTENTS
Page
ARTICLE I Definitions
|
2
|
SECTION 1.01
|
Construction; Certain Defined Terms
|
2
|
SECTION 1.02
|
Luxembourg Terms
|
13
|
ARTICLE II Priorities and Agreements with Respect to Collateral
|
14
|
SECTION 2.01
|
Priority of Claims
|
14
|
SECTION 2.02
|
Actions With Respect to Collateral; Prohibition on Contesting Liens
|
16
|
SECTION 2.03
|
No Duties of Senior Representative; Provision of Notice
|
18
|
SECTION 2.04
|
No Interference; Payment Over; Reinstatement
|
19
|
SECTION 2.05
|
Automatic Release of Junior Liens
|
20
|
SECTION 2.06
|
Certain Agreements With Respect to Insolvency or Liquidation Proceedings
|
22
|
SECTION 2.07
|
Reinstatement
|
28
|
SECTION 2.08
|
[Reserved]
|
28
|
SECTION 2.09
|
Insurance
|
28
|
SECTION 2.10
|
Refinancings
|
29
|
SECTION 2.11
|
Amendments to Security Documents
|
29
|
SECTION 2.12
|
Possessory Collateral Agent as Gratuitous Bailee for Perfection
|
30
|
SECTION 2.13
|
Control Agreements
|
31
|
SECTION 2.14
|
Rights under Permits and Licenses
|
32
|
ARTICLE III Existence and Amounts of Liens and Obligations
|
32
|
ARTICLE IV Consent of Grantors
|
32
|
ARTICLE V Representations and Warranties
|
33
|
SECTION 5.01
|
Representations and Warranties of Each Party
|
33
|
SECTION 5.02
|
Representations and Warranties of Each Representative
|
33
|
ARTICLE VI Collateral Agency for Foreign Collateral
|
33
|
SECTION 6.01
|
Appointment of Foreign Collateral Agent
|
33
|
SECTION 6.02
|
Rights as a Secured Party
|
34
|
SECTION 6.03
|
Exculpatory Provisions
|
34
|
SECTION 6.04
|
Reliance by the Foreign Collateral Agent
|
35
|
SECTION 6.05
|
Delegation of Duties
|
36
|
SECTION 6.06
|
Resignation of Foreign Collateral Agent
|
36
|
SECTION 6.07
|
Non-Reliance on Foreign Collateral Agent and Other Secured Parties
|
37
|
SECTION 6.08
|
Collateral Matters
|
37
|
SECTION 6.09
|
Discretionary Rights
|
38
|
SECTION 6.10
|
Indemnification of Foreign Collateral Agent
|
39
|
SECTION 6.11
|
Treatment of Proceeds of Foreign Collateral
|
40
|
SECTION 6.12
|
Currency Conversion
|
41
|
SECTION 6.13
|
Swiss Collateral
|
41
|
SECTION 6.14
|
Scottish Collateral
|
41
|
SECTION 6.15
|
Benefits of Foreign Collateral Agent
|
42
|
ARTICLE VII Miscellaneous
|
42
|
SECTION 7.01
|
Legends
|
42
|
SECTION 7.02
|
Notices
|
43
|
SECTION 7.03
|
Waivers; Amendment
|
45
|
SECTION 7.04
|
Parties in Interest
|
45
|
SECTION 7.05
|
Survival of Agreement
|
45
|
SECTION 7.06
|
Counterparts
|
45
|
SECTION 7.07
|
Severability
|
45
|
SECTION 7.08
|
Governing Law; Jurisdiction; Consent to Service of Process
|
46
|
SECTION 7.09
|
WAIVER OF JURY TRIAL
|
46
|
SECTION 7.10
|
Headings
|
47
|
SECTION 7.11
|
Conflicts
|
47
|
SECTION 7.12
|
Provisions Solely to Define Relative Rights
|
47
|
SECTION 7.13
|
Agent Capacities
|
47
|
SECTION 7.14
|
Supplements
|
48
|
SECTION 7.15
|
Collateral Agent Rights, Protections and Immunities
|
48
|
SECTION 7.16
|
Other Junior Intercreditor Agreements
|
48
|
SECTION 7.17
|
Additional Grantors
|
49
|
SECTION 7.18
|
Joinder of LC Australian Collateral Agent
|
49
|
SECTION 7.19
|
Purchase Right.
|
49
|
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time,
this “Agreement”), dated as of August 28, 2020, is among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian Security
Trust referred to herein (when joined to this Agreement, in such capacity, together with its successors in substantially the same capacity as may from time to time be appointed, the “LC
Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for the LC Secured Parties referred to herein (in
such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in substantially the same capacity as may from time to time
be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington Trust”), as collateral agent
for the Notes Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents, in substantially the same capacity as may from time to time be appointed, the “Notes Collateral Agent”), the Parent (as defined below) and the other Subsidiaries of the Parent from time to time party hereto.
Weatherford International Ltd., a Bermuda exempted company limited by shares (“WIL-Bermuda” or “Notes Issuer”), Weatherford International plc, a public limited company incorporated in the Republic of Ireland (“Parent”), certain other subsidiaries of Parent, Wilmington Trust, as trustee (in such capacity, together with its successors and co-trustees, as applicable, in substantially the same
capacity as may from time to time be appointed, the “Notes Trustee”) and the Notes Collateral Agent are party to the Notes Indenture, dated as of the date hereof (the “Existing Notes Indenture”), providing for an initial aggregate principal amount of up to $500,000,000 of the Notes Issuer’s 8.75% Senior Secured First Lien Notes due 2024 (the “Notes”).
WIL-Bermuda and Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware”) (the “LC Borrowers”), the issuing lenders from time to time party thereto (the “Issuing Lenders”), the lenders from time to time party thereto (the “LC Lenders”) and the LC Collateral Agent are party to the Credit Agreement, dated
as of December 13, 2019 , pursuant to which the Issuing Lenders have agreed to issue, and the LC Lenders have agreed to purchase participations in, letters of credit (as amended by the Amendment No. 1 thereoto, dated as of the date hereof,
the “Existing LC Credit Agreement”).
This Agreement governs the relationship between the LC Secured Parties as a group, on the one hand, and
the Notes Secured Parties, on the other hand, with respect to the Collateral shared by the LC Secured Parties and the Notes Secured Parties. In addition, it is understood and agreed that not all of the Secured Parties may have security
interests in all of the Collateral and nothing in this Agreement is intended to give rights to any Person in any Collateral in which such Person (or their Representative or Collateral Agent) does not otherwise have a security interest under
their respective security documents.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
(d)
Definitions
a. Construction; Certain Defined Terms.
i. The
definitions of terms 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 to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended,
supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is
made to such subsidiaries, (iii) 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, (iv) all references herein
to Articles, Sections and Exhibits shall be construed to refer to Articles, Sections and Exhibits of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.
ii. As used in
this Agreement, the following terms have the meanings specified below:
“Agreement” has the meaning set forth in the
recitals.
“Applicable Junior Collateral Agent” means
(a) with respect to the LC Priority Collateral, the Notes Collateral Agent, and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Applicable Possessory Collateral Agent”
means (a) with respect to Notes Priority Possessory Collateral, the Notes Collateral Agent, (b) with respect to LC Priority Possessory Collateral, the LC Collateral Agent, and (c) notwithstanding the foregoing, with respect to Foreign
Collateral, the Foreign Collateral Agent.
“Applicable Senior Collateral Agent” means
(a) with respect to the Notes Priority Collateral, the Notes Collateral Agent, and (b) with respect to the LC Priority Collateral, the LC Collateral Agent.
“Bank Product Obligations” means all “Banking
Services Obligations” and all “Swap Obligations” as defined in the LC Credit Agreement (other than “Excluded Swap Obligations” as defined in the LC Credit Agreement).
“Bankruptcy Case” has the meaning set forth
in Section 2.06(b).
“Bankruptcy Code” means Title 11 of the
United States Code, as amended.
“Business Day” means any day that is not a
Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or on which banking institutions in the State of New York are required or authorized by law or other governmental action to close.
“Capital Stock” means, with respect to any
Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including all common stock and preferred stock, common shares and preference
shares, any limited or general partnership interests and any limited liability company membership interests.
“Class” has the meaning set forth in the
definition of Senior Secured Obligations.
“Collateral” means all assets and properties
subject to (or purportedly subject to) Liens in favor of any Secured Party created by any of the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, as applicable, to secure the Notes Obligations or the LC
Obligations, as applicable.
“Collateral Agent” means the Foreign
Collateral Agent, the Notes Collateral Agent, the LC Collateral Agent, or any of the foregoing, as the context may require.
“Comparable Junior Priority Collateral Document”
means, in relation to any Senior Secured Obligations Collateral subject to any Lien created (or purportedly created) under any Senior Secured Obligations Collateral Document, those Junior Secured Obligations Collateral Documents that create
(or purport to create) a Lien on the same Collateral, granted by the same Grantor.
“Controlling Party” means (i) for decisions
relating to Foreign Collateral that is Notes Priority Collateral, the Notes Collateral Agent and; (ii) for decisions relating to Foreign Collateral that is LC Priority Collateral, the LC Collateral Agent (and in the case of the LC Australian
Collateral Agent, acting for, and with any decisions relating to LC Australian Collateral made by, the LC Administrative Agent).
“Debtor Relief Laws” means the Bankruptcy
Code, the United Kingdom’s Insolvency Act 1986, the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast), as amended, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), Dutch Bankruptcy Act (faillissementswet), the Winding-Up and Restructuring Act (Canada), the German Insolvency Code (Insolvenzordnung), Swiss Federal
Debt Collection and Bankruptcy Act (Bundesgesetz über Schuldbetreibung und Konkurs), Part XIII of the Bermuda Companies Act 1981, the Luxembourg Commercial Code and the Luxembourg Act dated 10 August
1915 on Commercial Companies, the Insolvency Act 2003 of the British Virgin Islands and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
examinership reorganization or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect, in each case as amended, including any corporate law of any jurisdiction which may be
used by a debtor to obtain a stay or a compromise, settlement, adjustment or arrangement of the claims of its creditors against it and including any rules and regulations pursuant thereto (but, in each case, shall exclude any part of such
laws, rules or regulations which relate solely to any solvent reorganization or solvent restructuring process).
“Default Disposition” means any private or
public sale or disposition of all or any material portion of the Senior Secured Obligations Collateral (including Foreign Collateral) by one or more Grantors with the consent of Senior Collateral Agent or Foreign Collateral Agent (as
instructed by the Controlling Party), as applicable, after the occurrence and during the continuation of an Event of Default under the Senior Secured Obligations Security Documents or the Notes Indenture or LC Credit Agreement, as applicable
(and prior to the Discharge of the Senior Secured Obligations), including any disposition contemplated by Section 9-620 of the UCC, which disposition is conducted by such Grantors with the consent of Senior Collateral Agent or Foreign
Collateral Agent (as instructed by the Controlling Party) in connection with good faith efforts by Senior Collateral Agent or Foreign Collateral Agent (as instructed by the Controlling Party) to collect the Senior Secured Obligations through
the disposition of Senior Secured Obligations Collateral (including any Foreign Collateral).
“DIP Financing” has the meaning set forth in
Section 2.06(b).
“DIP Financing Liens” has the meaning set
forth in Section 2.06(b).
“DIP Lenders” has the meaning set forth in
Section 2.06(b).
“Discharge” means, with respect to any
Obligations, except to the extent otherwise provided herein with respect to the reinstatement or continuation of any such Obligations, the payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to
the extent no claim has been threatened (in writing) or asserted) of all such Obligations then outstanding, if any, and, with respect to (x) letters of credit or letter of credit guaranties outstanding under the agreements or instruments
governing such Obligations (as related to all or any subset of Obligations, the “Relevant Instruments”); (y) Bank Product Obligations; and (z) asserted or threatened (in writing)
claims, demands, actions, suits, investigations, liabilities, fines, costs, or damages for which a party may be entitled to indemnification or reimbursement by any Grantor, delivery of cash collateral or backstop letters of credit in respect
thereof in a manner consistent with such Relevant Instruments, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of “secured parties” under the
Relevant Instruments (including, in any event, all such interest, fees, costs, expenses and other charges regardless of whether such amounts are allowed, allowable or reasonable in any Insolvency or Liquidation Proceeding, whether under
Section 506 of the Bankruptcy Code of otherwise); provided that (i) the Discharge of Notes Obligations shall not be deemed to have occurred if such payments are made with the proceeds of Notes Obligations that constitute an exchange
or replacement for or a refinancing of Notes Obligations and (ii) the Discharge of LC Obligations shall not be deemed to have occurred if such payments are made with the proceeds of LC Obligations that constitute an exchange or replacement
for or a refinancing of such Obligations or LC Obligations. In the event any Obligations are modified and such Obligations are paid over time or otherwise modified, in each case, pursuant to Section 1129 of the Bankruptcy Code or similar
Debtor Relief Law, such Obligations shall be deemed to be discharged only when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new or modified indebtedness shall have been satisfied.
The term “Discharged” shall have a corresponding meaning.
“European Insolvency Regulation” means
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)
“Event of Default” means an “Event of
Default” under and as defined in the Notes Indenture or the LC Credit Agreement, as the context may require.
“Foreign Collateral” has the meaning set
forth in Section 2.01(d).
“Foreign Collateral Agent” means either the
LC Collateral Agent or the Notes Collateral Agent with respect to Foreign Collateral as set forth in Section 6.01(i) and (ii), and their respective successors or assigns (as appointed in accordance with Article VI hereof).
“Foreign Collateral Documents” means the
documents listed on Schedule I attached hereto and any other documents creating (or purporting to create) a Lien on any Foreign Collateral in favor of the Secured Parties and/or the Foreign Collateral Agent/Preceding Foreign Collateral Agent
acting in their respective capacities and all documents delivered therewith.
“Grantor” means Parent and each Subsidiary of
Parent that shall have granted any Lien in favor of any Collateral Agent on any of its assets or properties to secure any of the Obligations.
“Insolvency or Liquidation Proceeding” means
(a) any case or proceeding commenced by or against the Parent or any other Grantor under the Bankruptcy Code or other Debtor Relief Laws or any other process or proceeding for the reorganization, recapitalization, restructuring, adjustment,
arrangement or marshalling of the assets or liabilities of the Parent or any other Grantor or any receivership or assignment for the benefit of creditors relating to the Parent or any other Grantor or relating to all or a substantial part of
the property or assets of the Parent or any other Grantor or any similar case or proceeding relative to the Parent or any other Grantor, or their respective property or their respective creditors, as such, in each case whether or not
voluntary; (b) any process or proceeding for the appointment of any trustee in bankruptcy, receiver, receiver and manager, interim receiver, administrator, liquidator, monitor, custodian, sequestrator, examiner, conservator or any similar
official appointed for or relating to the Parent or any other Grantor or all or a substantial portion of their respective property and assets, in each case whether or not voluntary; (c) any liquidation, dissolution, examinership, marshalling
of assets or liabilities or other winding up (or similar process) of or relating to the Parent or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or (d) any other proceeding of
any type or nature in which substantially all claims of creditors of the Parent or any other Grantor, or of a class of creditors of the Parent or any other Grantor, are stayed, compromised, restructured or determined and any payment,
distribution, restructuring or arrangement is or may be made on account of or in relation to such claims.
“Junior Claims” means (a) with respect to the
Notes Priority Collateral, the LC Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the Notes Obligations secured by such Collateral.
“Junior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Representative” means (a) with
respect to the LC Priority Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Secured Obligations” means (a) with
respect to the Notes Obligations (to the extent such Obligations are secured by the Notes Priority Collateral), the LC Obligations (to the extent such Obligations are secured by the Notes Priority Collateral) and (b) with respect to the LC
Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral).
“Junior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Junior Claims.
“Junior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the Notes Security Documents and (b) with respect to the Notes Obligations, the LC Security Documents.
“Junior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the Notes Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority
Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the Notes Priority Collateral).
“LC Administrative Agent” means the
Administrative Agent under, and as defined in, the LC Credit Agreement together with its successors and co-agents in substantially the same capacity as may from time to time be appointed.
“LC Australian Collateral Agent” has the
meaning set forth in the recitals.
“LC Australian Security Documents” means the
LC Australian Security Trust Deed and each other Australian law governed document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations in favor of the LC
Australian Collateral Agent.
“LC Australian Security Trust” means the
“Security Trust” under and as defined in the LC Australian Security Trust Deed.
“LC Australian Security Trust Deed” means the
Security Trust Deed to be entered into among the Borrowers, the LC Administrative Agent, the LC Lenders and the LC Australian Collateral Agent.
“LC Collateral Agent” has the meaning set
forth in the recitals.
“LC Credit Agreement” means the Existing LC Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured,
repaid, refunded, Refinanced or otherwise modified from time to time after the date hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the
indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity
thereof (except to the extent any such refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “LC Credit Agreement”).
“LC Documents” means the LC Credit Agreement,
the LC Security Agreement, the LC Mortgages, the LC Australian Security Documents and the other “Loan Documents” as defined in the LC Credit Agreement.
“LC Facility Guarantee” means any guarantee
of the Obligations of the Parent under the LC Credit Agreement by any Person in accordance with the provisions of the LC Credit Agreement.
“LC Facility Guarantor” means any Person that
incurs a LC Facility Guarantee; provided that, upon the release or discharge of such Person from its LC Facility Guarantee in accordance with the LC Credit Agreement, such Person ceases to be a LC Facility Guarantor.
“LC Facility Secured Parties” means the “Secured Parties” as defined in the LC Credit Agreement.
“LC Lenders” has the meaning set forth in the
recitals.
“LC Mortgages” means all “Mortgages” as
defined in the LC Credit Agreement.
“LC Obligations” means all “Secured
Obligations” (as such term is defined in the LC Credit Agreement) of the LC Borrowers and other obligors under the LC Credit Agreement or any of the other LC Documents, including obligations to pay principal, premiums, if any, and interest,
attorneys’ fees, fees, costs, charges, expenses, Letters of Credit (as defined in the LC Credit Agreement) and commissions, (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or
Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the LC Documents and the performance of all other Obligations
of the obligors thereunder under the LC Documents, according to the respective terms thereof.
“LC Priority Collateral” means all Collateral
(other than Notes Priority Collateral) now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other
Debtor Relief Law), would constitute LC Priority Collateral) by any Grantor consisting of (a) all assets securing the LC Obligations on the date hereof immediately prior to giving effect to Amendment No. 1, dated as of August 28, 2020, (b)
all assets of Grantors organized in the LC Priority Jurisdictions, and (c) all assets required to be subject of the Lien securing the LC Obligations pursuant to the LC Credit Agreement and (d) all products and proceeds of any and all of the
foregoing.
“LC Priority Jurisdictions” means the
Specified Jurisdictions as defined in the LC Credit Agreement other than the Notes Priority Jurisdictions. .
“LC Priority Possessory Collateral” means LC
Priority Collateral that is Possessory Collateral.
“LC Secured Parties” means the (a) the LC Collateral Agent (including for avoidance of doubt the LC Australian Collateral Agent), and (b) the LC Facility Secured Parties.
“LC Security Agreement” means the U.S.
Security Agreement, as amended by the Amendment No. 1 to U.S. Security Agreement, dated as of the Amendment No. 1 Effective Date (as such term is defined in the LC Credit Agreement), by and among the Parent, LC Borrowers, each other pledgor
party thereto and the LC Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“LC Security Documents” means the LC Security
Agreement, the LC Mortgages, the LC Australian Security Documents and any other documents now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations.
“Lien” means any lien, mortgage, deed of
trust, pledge, hypothecation, security interest, charge or encumbrance of any kind, including any conditional sale or other title retention agreement or any lease in the nature thereof or a ‘security interest’ (as defined in section 12 (1)
and (2) of the Personal Property Securities Act 2009 (Cth)) (whether voluntary or involuntary and whether imposed or created by operation of law or otherwise).
“Luxembourg Obligors” means any Grantor
organized under the laws of the Grand Duchy of Luxembourg.
“Memorandum” has the meaning set forth in
Section 2.02(e).
“Mortgages” means the Notes Mortgages and the
LC Mortgages.
“New York UCC” means the Uniform Commercial
Code as from time to time in effect in the State of New York.
“Notes Collateral Agent” has the meaning set
forth in the recitals.
“Notes Documents” means the Notes Indenture,
the Notes Security Documents and the other “Notes Documents” as defined in the Notes Indenture.
“Notes Indenture” means the Existing Notes
Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the initial purchasers or otherwise), restructured, repaid, refunded, Refinanced or otherwise modified from time to time after
the date hereof, in accordance with the terms hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the indebtedness under such agreement or
agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof (except to the extent any such
Refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “Notes Indenture”).
“Notes Issuer” has the meaning set forth in
the recitals.
“Notes Mortgages” means all “Mortgages” as
defined in the Notes Indenture.
“Notes Obligations” means all “Indenture
Obligations” (as such term is defined in the Notes Indenture) of the Notes Parties (as defined in the Notes Indenture) under the Notes Indenture or any of the other Notes Documents, including obligations to pay principal, premiums, if any,
interest, attorneys fees, fees, costs, charges, expenses, commissions, fees and charges (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or Liquidation Proceeding, regardless of
whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the Notes Documents and the performance of all other Obligations of the obligors thereunder to the
holders, the Notes Trustee, the Notes Collateral Agent, any other trustees and agents under the Notes Documents according to the respective terms thereof.
“Notes Priority Collateral” means all
Collateral now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor Relief Law), would
constitute Notes Priority Collateral) by (i) any Grantor (x) formed in Notes Priority Jurisdictions or (y) consisting of Capital Stock of Subsidiaries that are formed or located in the Cayman Islands, China, Cyprus, Qatar, Romania, Russia or
the United Arab Emirates, other than to the extent such Subsidiary is a direct or indirect owner of a majority of Capital Stock in an LC Facility Guarantor or such Subsidiary becomes an LC Facility Guarantor as contemplated under the LC
Credit Agreement as in effect on the date hereof, and (ii) all products and proceeds of any the foregoing; provided that, for the avoidance of doubt, in no event shall Notes Priority Collateral include (x) any assets securing the LC
Obligations on the date hereof immediately prior to giving effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020 and (y) any assets required to be subject of the Lien securing the LC Obligations pursuant to the LC
Credit Agreement on the date hereof immediately prior to giving effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020.
“Notes Priority Jurisdictions” means Mexico, Brazil and any other jurisdictions agreed upon by the Required Lenders under, and as defined in, the LC Credit Agreement.
“Notes Priority Possessory Collateral” means Notes Priority Collateral that is Possessory Collateral.
“Notes Secured Parties” means the “Secured
Parties” as defined in the Notes Indenture.
“Notes Security Agreement” means the Security Agreement (as such term in defined in the Notes Indenture), dated as of the date hereof, by and among WIL-Bermuda and the Notes Collateral Agent, as amended, amended and restated,
supplemented or modified from time to time.
“Notes Security Documents” means the Notes
Security Agreement, the Notes Mortgages and any other documents now existing or entered into after the date hereof that create or purport to create Liens on any assets or properties of any Grantor to secure any Notes Obligations.
“Notes Trustee” has the meaning set forth in
the recitals.
“Obligations” means the Notes Obligations and
the LC Obligations.
“Parent” has the meaning set forth in the
recitals.
“Permitted Discretion” means a determination
made in the exercise of good faith and reasonable credit judgment (from the perspective of a secured lender).
“Permitted Remedies” means, with respect to
any Junior Secured Obligations:
(a) filing a proof of claim or statement of interest with respect to such Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
(b) taking any action (not adverse to the Liens securing Senior Secured Obligations, the priority status thereof, or the rights of the Applicable Senior Collateral Agent or any of the Senior Secured Obligations Secured Parties to
exercise rights, powers and/or remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the Collateral;
(c) filing any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior
Secured Obligations Secured Parties, including any claims secured by the Junior Secured Obligations Collateral, in each case in accordance with the terms of this Agreement;
(d) filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy
law, in each case in accordance with the terms of this Agreement or applicable law (including the bankruptcy laws of any applicable jurisdiction);
(e) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Senior Secured Obligations Collateral of the Senior Collateral Agent initiated
by such Senior Collateral Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by
such Senior Collateral Agent (it being understood that neither the Junior Collateral Agent nor any Junior Secured Obligations Secured Parties shall be entitled to receive any proceeds from the Senior Secured Obligations Collateral unless
otherwise expressly permitted herein);
(f) subject to Section 2.04(a)(iii), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers for the purposes of appraising or valuing the Collateral) or to receive information or
reports concerning the Collateral, in each case pursuant to the terms of the Notes Documents or LC Documents, as applicable, or applicable law;
(g) subject to Section 2.04(a)(iii), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not to violate or breach) an obligation under the Notes Documents or LC
Documents, as applicable; provided that such action does not include any action by a Junior Secured Obligations Secured Party to seek specific performance or injunctive relief against any Senior Secured Obligations Secured Party or
the sale or disposition of any such Senior Secured Obligations Secured Party’s Senior Secured Obligations Collateral in contravention of the other provisions of this Agreement;
(h) make a cash or, if allowed pursuant to applicable law, credit bid for Collateral at any public or private sale thereof, provided that (i) such Secured Party does not challenge the bid of any Senior Secured Obligations
Secured Party for its Senior Secured Obligations Collateral or otherwise bid for any Senior Secured Obligations Collateral other than by a bid that provides for the Discharge of the Senior Secured Obligations, and (ii) each Senior Secured
Obligations Secured Party may, subject to the terms of its Senior Secured Obligations Collateral Documents, offset its Senior Secured Obligations against the purchase price for the Senior Secured Obligations Collateral; and
(i) in any Insolvency or Liquidation Proceeding, (i) voting on any Plan of Reorganization to the extent not otherwise prohibited by the terms hereof, (ii) filing any proof of claim and (iii) making other filings and motions and making
any arguments in connection therewith (including in support of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that comply with the terms of this Agreement.
“Person” means any natural person,
corporation, business trust, joint venture, association, company, partnership, limited liability partnership, limited liability company or government, individual or family trusts or any agency or political subdivision thereof.
“Plan of Reorganization” means any plan of reorganization, scheme of arrangement, plan of arrangement or compromise, proposal, plan of liquidation, agreement for composition or other type of plan, proposal or
arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.
“Possessory Collateral” means the Collateral
in the possession or control of any Collateral Agent (or its agents or bailees), to the extent that possession or control thereof (a) perfects a Lien thereon under the Uniform Commercial Code or (b) provides a substantially similar legal
effects as “perfection” under the Uniform Commercial Code under other applicable legislation of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments and Chattel
Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the Notes Security Documents or the LC Security Documents. All capitalized terms used in this definition and not defined elsewhere in this
Agreement have the meanings assigned to them in the New York UCC.
“Possessory Collateral Agent” means, with
respect to any Possessory Collateral, the Collateral Agent having possession or control (including through its agents or bailees) of same.
“Preceding Foreign Collateral Agent” means
Wells Fargo Bank, National Association.
“Proceeds” has the meaning set forth in
Section 2.01(a).
“Purchase Option Event” has the meaning set
forth in Section 7.19(a).
“Purchase Price” has the meaning set forth in
Section 7.19(b).
“Real Estate Asset” means, at any time of
determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property that does not constitute Excluded Assets (as defined in the LC Credit Agreement).
“Refinance” means to amend, restate,
supplement, waive, replace (whether or not upon termination, and whether with the original parties or otherwise), restructure, repay, refund, refinance or otherwise modify from time to time (including by means of any agreement or indenture
extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the obligations under such agreement or agreements or indentures or any successor or replacement agreement or agreements or indentures or
increasing the amount loaned or issued thereunder or altering the maturity thereof). “Refinanced” and “Refinancing” shall
have correlative meanings; provided that that any of the foregoing that increases the principal amount of Senior Claims with respect to any Collateral shall be effective for purposes hereof only if such increase does not contravene
the documents pursuant to which any Junior Claims with respect to such Collateral have been incurred, all as in effect on the date hereof or as may be amended in accordance with the terms hereof.
“Related Parties” means, with respect to any
Person, such Person’s affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.
“Representative” means (a) in the case of any
Notes Obligations, the Notes Collateral Agent and (b) in the case of any LC Obligations, the LC Collateral Agent.
“Secured Parties” means (a) the Notes Secured
Parties and (b) the LC Secured Parties.
“Senior Claims” means (a) with respect to the
Notes Priority Collateral, the Notes Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the LC Obligations secured by such Collateral.
“Senior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Representative” means (a) with
respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Secured Obligations” means (a) with
respect to the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the LC Obligations, and (b) with respect to the LC Obligations (to the extent such Obligations are secured by the Notes Priority
Collateral), the Notes Obligations; the LC Obligations shall, collectively, constitute one “Class” of Senior Secured Obligations and the Notes Obligations shall constitute a separate
“Class” of Senior Secured Obligations.
“Senior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Senior Claims. For the avoidance of doubt, notwithstanding the Foreign Collateral Agent holding any Liens on Foreign Collateral for the
benefit of the Secured Parties, subject to Article VI, Foreign Collateral shall not be treated differently from other Collateral when determining whether such Collateral or its proceeds are Senior Secured Obligations Collateral.
“Senior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the LC Security Documents and (b) with respect to the Notes Obligations, the Notes Security Documents.
“Senior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority
Collateral, the Notes Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the Notes Priority Collateral).
“Subsidiary” of a person means (a) a company
or corporation, a majority of whose voting stock is at the time, directly or indirectly, owned by such person, by one or more subsidiaries of such person or by such person and one or more subsidiaries of such person, (b) a partnership in
which such person or one or more subsidiaries of such person is, at the date of determination, a general partner or (c) any other person (other than a corporation or partnership) in which such person, directly or indirectly, at the date of
determination thereof, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such person.
“Taxes” means taxes, levies, imposts, duties,
fees, assessments or other charges of whatever nature now or hereafter imposed by any taxing authority, and all interest, penalties or similar liabilities with respect thereto.
b. Luxembourg Terms. In this Agreement, in
respect of any Luxembourg Obligor or any other entity which is organized under the laws of the Grand-Duchy of Luxembourg or has its “centre of main interests” (as that term is used in Article 3(1) of the European Insolvency Regulation in
Luxembourg, a reference to:
i. a
“liquidator”, “trustee”, “custodian”, “compulsory manager”, “receiver”, “administrative receiver”, “administrator” or “similar officer” includes any:
1. juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;
2. liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
3. juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
4. commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial Code; and
5. juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; and
ii. a “winding-up”, “administration”, “liquidation” or “dissolution” includes, without
limitation, bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement) and controlled management (gestion contrôlée).
iii. an
officer, a manager or a director includes a manager (gérant) and a director (administrateur).
(e)
Priorities and Agreements with Respect to Collateral
a. Priority of Claims. (a) Anything
contained herein or in any of the Notes Documents or the LC Documents to the contrary notwithstanding, if an Event of Default has occurred and is continuing, and any Collateral Agent is taking action to enforce rights in respect of any
Collateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Collateral in any Insolvency or Liquidation Proceeding with respect to any Grantor, the Proceeds (subject, in the case
of any such distribution, to Section 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution, including adequate protection or similar payments under any Debtor
Relief Law, being collectively referred to as “Proceeds”) shall be applied as follows:
1. In the case of LC Priority Collateral,
FIRST, to the payment in full of the LC Obligations (including the cash collateralization thereof) in
accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents, and
SECOND, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes
Indenture and the other applicable provisions of the Notes Documents.
If any Notes Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of
the LC Priority Collateral will be applied to the repayment of any outstanding Notes Obligations.
2. In the case of Notes Priority Collateral,
FIRST, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes
Indenture and the other applicable provisions of the Notes Documents, and
SECOND, to the payment in full of the LC Obligations (including the cash collateralization thereof) in
accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents.
If any LC Obligations remain outstanding after the Discharge of the Notes Obligations, all proceeds of
the Notes Priority Collateral will be applied to the repayment (including the cash collateralization thereof) of any outstanding LC Obligations.
ii. It is
acknowledged that (i) the aggregate amount of any Senior Secured Obligations may, subject to the limitations set forth in the Notes Indenture and the LC Credit Agreement, both as in effect on the date hereof, be Refinanced from time to
time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the Notes Secured Parties and the LC Secured Parties and (ii) the Senior Secured Obligations
consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for
herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any Collateral or of any
guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
iii. Notwithstanding
the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the Notes Obligations granted on the Collateral and notwithstanding any
provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the Notes Documents or the LC Documents, or any defect or deficiencies in or failure to perfect any such Liens or
any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on the LC Priority Collateral securing the Notes Obligations and (2) the Liens on the Notes Priority
Collateral securing the Notes Obligations will rank senior to any Liens on the Notes Priority Collateral securing the LC Obligations.
iv. For the
avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or Notes Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America
(the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the contemplated ranking as
set forth in this Agreement or (C) not have been granted to Notes Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1,
and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
b. Actions With Respect to Collateral; Prohibition
on Contesting Liens.
i. Until the
Discharge of all of the Senior Secured Obligations of a particular Class, (i) only the Applicable Senior Collateral Agent shall act or refrain from acting with respect to the Senior Secured Obligations Collateral of such Class, (ii) no
Collateral Agent shall follow any instructions with respect to such Senior Secured Obligations Collateral from any Junior Representative or from any Junior Secured Obligations Secured Parties and (iii) each Junior Representative and the
Junior Secured Obligations Secured Parties shall not, and shall not instruct any Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, receiver and manager,
interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any
action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Junior Secured Obligations Collateral, whether under any Notes Security Document or any LC Security Document, as applicable,
applicable law or otherwise, it being agreed that (A) only the Applicable Senior Collateral Agent, acting in accordance with the Notes Security Documents or the LC Security Documents, as applicable, shall be entitled to take any such
actions or exercise any such remedies, or to cause any Collateral Agent to do so and (B) notwithstanding the foregoing, each Junior Representative may take Permitted Remedies. Each Senior Collateral Agent may deal with the Senior Secured
Obligations Collateral as if they had a senior Lien on such Collateral. No Junior Collateral Agent, Junior Representative or Junior Secured Obligations Secured Party will contest, protest or object to any foreclosure proceeding or action
brought by any Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party or any other exercise by such Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party of any rights
and remedies relating to the Senior Secured Obligations Collateral.
ii. Each of the
Junior Collateral Agent and the Junior Secured Obligations Secured Parties agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the creation, extent, attachment, perfection, priority, validity or enforceability of a Lien or Senior Secured Obligations held by or on behalf of any of the Senior Secured Obligations Secured Parties
in all or any part of the Collateral or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents or the Secured Parties to enforce
this Agreement.
iii. (i) Only
the Foreign Collateral Agent shall act or refrain from acting with respect to the Foreign Collateral, (ii) Foreign Collateral Agent shall not follow any instructions with respect to Foreign Collateral except from the Controlling Party (in
accordance with Article VI) and (iii) other than the Controlling Parties, no Secured Party will, or will instruct Foreign Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a
trustee, receiver, receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power
with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Foreign Collateral, whether under any Notes Security Document or any LC Security Document,
applicable law or otherwise, it being agreed that (A) only the Foreign Collateral Agent, acting in accordance with the Foreign Collateral Documents and the terms of Article VI, shall be entitled to take any such actions or exercise any such
remedies and (B) notwithstanding the foregoing, each Representative may take Permitted Remedies with regard to the Foreign Collateral. No Secured Party will contest, protest or object to any foreclosure or other proceeding or action
brought by Foreign Collateral Agent acting upon instructions of a Controlling Party, and the Controlling Parties may make such instructions as if they had a senior Lien on such Foreign Collateral.
iv. (i) With
respect to any payments or distributions in cash, property or other assets that any Junior Secured Obligations Secured Party pays over to any Senior Secured Obligations Secured Party under the terms of this Agreement, such Junior Secured
Obligations Secured Party shall be subrogated to the rights of the Senior Secured Party Obligations Secured Party and (ii) any Secured Party may assert its rights of subrogation under applicable law resulting from any draw or other payment
under any letter of credit issued under or secured by the Notes Documents or LC Documents, as applicable; provided, that (x) the LC Facility Secured Parties shall not assert or enforce any such rights of subrogation they may acquire
as described in clauses (i) or (ii) above with respect to the Notes Documents or Notes Priority Collateral until the Discharge of all Notes Obligations has occurred and (y) the Notes Secured Parties shall not assert or enforce any such
rights of subrogation they may acquire as described in clauses (i) or (ii) above with respect to the LC Documents or LC Priority Collateral until the Discharge of all LC Obligations has occurred.
v. The parties
hereto agree to execute, acknowledge and deliver a Memorandum of Intercreditor Agreement (“Memorandum”), together with such other documents in furtherance hereof or thereof, in
each case, in proper form for recording in connection with any Mortgages and in form and substance reasonably satisfactory to the Collateral Agents, in those jurisdictions where such recording is reasonably recommended or requested by
local real estate counsel and/or the title insurance company, or as otherwise deemed reasonably necessary or proper by the parties hereto.
c. No Duties of Senior Representative; Provision of
Notice.
i. Each Junior
Secured Obligations Secured Party acknowledges and agrees that none of the Senior Collateral Agents, the Senior Representative nor any other Senior Secured Obligations Secured Party shall have any duties or other obligations to such Junior
Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, other than to transfer to the Applicable Junior Collateral Agent any proceeds of any such Senior Secured Obligations Collateral remaining in its
possession or under its control following any sale, transfer or other disposition of such Collateral (in each case, unless the Junior Secured Obligations have been Discharged prior to or concurrently with such sale, transfer, disposition,
payment or satisfaction) and the Discharge of the Senior Secured Obligations secured thereby, or if a Senior Collateral Agent shall be in possession or control of all or any part of such Collateral after such payment and satisfaction in
full and termination, such Collateral or any part thereof remaining, in each case without representation or warranty on the part of any Senior Collateral Agent, any Senior Representative or any Senior Secured Obligations Secured Party and
at the sole cost and expense of the Grantors. In furtherance of the foregoing, each Junior Secured Obligations Secured Party acknowledges and agrees that, until the Senior Secured Obligations secured by any Collateral shall have been
Discharged, the Applicable Senior Collateral Agent shall be entitled, for the benefit of the holders of such Senior Secured Obligations, to sell, transfer or otherwise dispose of, or cause the sale, transfer or other disposition of, such
Senior Secured Obligations Collateral as provided herein and in the Notes Documents and the LC Documents, as applicable, without regard to any Junior Claims or any rights to which the holders of the Junior Secured Obligations would
otherwise be entitled as a result of such Junior Claims. Without limiting the foregoing, each Junior Secured Obligations Secured Party agrees that none of the Senior Collateral Agents, the Senior Representatives nor any other Senior
Secured Obligations Secured Party shall have any duty or obligation first to marshal or realize upon any type of Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), or to sell, dispose
of, realize on or liquidate all or any portion of such Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), in any manner that would maximize the return to the Junior Secured Obligations
Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Junior Secured Obligations Secured Parties from such
realization, sale, disposition or liquidation. Each of the Junior Secured Obligations Secured Parties waives any claim such Junior Secured Obligations Secured Party may now or hereafter have against any Senior Collateral Agent, any Senior
Representative or any other Senior Secured Obligations Secured Party (or their representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) arising out of (i) any
actions which any Senior Collateral Agent, any Senior Representative or the Senior Secured Obligations Secured Parties (or their representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or
agent they may appoint) take or omit to take (including, actions with respect to the creation, attachment, perfection or continuation of Liens on any Senior Secured Obligations Collateral, actions with respect to the preservation,
foreclosure upon, realization, sale, release or depreciation of, or failure to realize upon, any of the Senior Secured Obligations Collateral and actions with respect to the collection of any claim for all or any part of the Senior Secured
Obligations from any account debtor, guarantor or any other party) in accordance with the Notes Documents and the LC Documents or any other agreement related thereto or to the collection of the Senior Secured Obligations or the valuation,
use, protection or release of any security for the Senior Secured Obligations, (ii) any election by any Applicable Senior Collateral Agent, any Senior Representative or any Senior Secured Obligations Secured Parties, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code (or any equivalent proceeding under any other Debtor Relief Law) or (iii) subject to Section 2.06, any borrowing by, or grant of a security
interest or administrative expense priority under Section 364 of the Bankruptcy Code by, the Parent or any of its Subsidiaries, as debtor-in-possession (or any equivalent action under any other Debtor Relief Law).
d. No Interference; Payment Over; Reinstatement.
i. Each Junior
Secured Obligations Secured Party, each Junior Representative and each Junior Collateral Agent agrees that (i) it will not take or cause to be taken any action the purpose or effect of which is, or could be, to make any Junior Claim pari passu with, or to give such Junior Secured Obligations Secured Party any preference or priority relative to, any Senior Claim with respect to the Senior Secured Obligations Collateral or any part
thereof, (ii) it will not challenge or question in any proceeding the validity or enforceability of any Foreign Collateral Document, Notes Security Document, or LC Security Document or the extent, validity, attachment, perfection, priority,
or enforceability of any Lien under the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, or the validity or enforceability of the priorities, rights or duties established by or other provisions of this
Agreement, (iii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other
disposition of the Senior Secured Obligations Collateral by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Parties or any Senior Representative acting on their behalf (or their respective representatives,
including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint), including with respect to the Foreign Collateral by the Foreign Collateral Agent following the instructions of a Controlling
Party, (iv) it shall have no right to (A) direct the Applicable Senior Collateral Agent, any Senior Representative or any holder of Senior Secured Obligations (or their respective representatives, including any receiver, receiver and
manager, interim receiver, administrator, delegate or agent they may appoint) to exercise any right, remedy or power with respect to any Senior Secured Obligations Collateral or (B) consent to the exercise by the Applicable Senior
Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party (or their respective representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they
may appoint) of any right, remedy or power with respect to any Senior Secured Obligations Collateral, (v) it will not institute any suit or assert in any Insolvency or Liquidation Proceeding any claim against the Applicable Senior
Collateral Agent, any Senior Representative or other Senior Secured Obligations Secured Party seeking damages from or other relief by way of specific performance, injunction, directions, instructions or otherwise with respect to, and none
of the Applicable Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party shall be liable for, any action taken or omitted to be taken by such Senior Collateral Agent, such Senior
Representative or other Senior Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, (vi) it will not seek, and hereby waives any right, to have any Senior Secured Obligations Collateral, Foreign
Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Senior Secured Obligations Collateral or Foreign Collateral and (vii) it will not attempt, directly or indirectly, whether by judicial proceedings or
otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents, or the Secured Parties to
enforce this Agreement.
ii. Each Junior
Collateral Agent, each Junior Representative and each Junior Secured Obligations Secured Party hereby agrees that, if it shall obtain possession or control of any Senior Secured Obligations Collateral, or shall receive any Proceeds or
payment in respect of any Senior Secured Obligations Collateral, pursuant to any Notes Security Document or LC Security Document or by the exercise of any rights available to it under any applicable law or in any Insolvency or Liquidation
Proceeding or through any other exercise of rights or remedies, at any time prior to the Discharge of the Senior Secured Obligations, then it shall hold such Senior Secured Obligations Collateral proceeds or payment in trust for the Senior
Secured Obligations Secured Parties and transfer such Senior Secured Obligations Collateral, proceeds or payment, as the case may be, to the Applicable Senior Collateral Agent reasonably promptly after obtaining actual knowledge, or notice
from the Applicable Senior Collateral Agent, that it is in possession or control of such Senior Secured Obligations Collateral, proceeds or payment. Each Junior Secured Obligations Secured Party agrees that if, at any time, it receives
notice or obtains actual knowledge that all or part of any payment with respect to any Senior Secured Obligations previously made shall be rescinded for any reason whatsoever, such Junior Secured Obligations Secured Party shall promptly pay
over to the Applicable Senior Collateral Agent any payment received by it and then in its possession or under its control in respect of any Senior Secured Obligations Collateral and shall promptly turn over any Senior Secured Obligations
Collateral then held by it over to the Applicable Senior Collateral Agent, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made, until the payment and satisfaction in full of the Senior
Secured Obligations.
iii. Prior to
the Discharge of Senior Secured Obligations, if any Junior Secured Obligations Secured Party holds any Lien on any assets of the Parent or any other Grantor securing any Junior Claims that are intended to secure the Senior Claims pursuant
to the Senior Secured Obligations Collateral Documents but are not already subject to a senior Lien in favor of the Senior Secured Obligations Secured Parties, such Junior Secured Obligations Secured Party, upon demand by any Senior Secured
Obligations Secured Party, will assign such Lien to the applicable Senior Representative, at the sole cost and expense of the Grantors, as security for such Senior Secured Obligations (in which case the Junior Secured Obligations Secured
Parties may retain a junior Lien on such assets subject to the terms hereof).
e. Automatic Release of Junior Liens.
i. The LC
Collateral Agent and each other LC Secured Party agrees that, in the event of a sale, transfer or other disposition of any Notes Priority Collateral in connection with the foreclosure upon or other exercise of rights and remedies with
respect to such Notes Priority Collateral that results in the release by the Notes Collateral Agent of the Lien held by the Notes Collateral Agent on such Notes Priority Collateral, the Lien held by the LC Collateral Agent on such Notes
Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the LC Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under this clause (a)
that remain after Discharge of the Notes Obligations, and the Liens on such remaining proceeds securing the LC Obligations shall not be automatically released pursuant to this Section 2.05(a).
ii. The Notes Collateral Agent and each other Notes Secured Party agrees that, in the event of a sale, transfer or other disposition of any LC Priority Collateral in connection with the foreclosure upon or other
exercise of rights and remedies with respect to such LC Priority Collateral that results in the release by the LC Collateral Agent of the Lien held by the LC Collateral Agent on such LC Priority Collateral, the Lien held by the Notes
Collateral Agent on such LC Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the Notes Obligations shall be entitled to any proceeds of a sale, transfer or other
disposition under this clause (b) that remain after Discharge of all LC Obligations, and the Liens on such remaining proceeds securing the Notes Obligations shall not be automatically released pursuant to this Section 2.05(b).
iii. In the
event of a Default Disposition, the Liens of Junior Collateral Agent shall be automatically released so long as (i) such Default Disposition is conducted by the applicable Grantor(s) in a commercially reasonable manner (as if such Default
Disposition were a disposition of collateral by a secured party in accordance with the UCC or similar law under the applicable jurisdiction) and in accordance with applicable law, (ii) Senior Collateral Agent also releases its Liens on such
Senior Secured Obligations Collateral and (iii) the net cash proceeds of any such Default Disposition are applied in accordance with Section 2.1(a) hereof (as if they were proceeds received in connection with an enforcement action).
iv. Each Junior
Representative and each Junior Collateral Agent agrees to execute and deliver (at the sole cost and expense of the applicable Grantors) all such authorizations and other instruments as shall reasonably be requested by the applicable Senior
Representative or the Applicable Senior Collateral Agent to evidence and confirm any release of Junior Secured Obligations Collateral provided for in this Section.
v. If at any
time any Grantor or the holder of any Senior Secured Obligations delivers notice to each Junior Collateral Agent that any specified Senior Secured Obligations Collateral (including all or substantially all of the Capital Stock of a Grantor
or any of its Subsidiaries) is sold, transferred or otherwise disposed of (i) by the owner of such Collateral in a transaction permitted under the LC Documents and the Notes Documents, or (ii) during the existence of any Event of Default
under the Notes Documents or the LC Documents, in each case in connection with the foreclosure upon (or exercise of rights and remedies with respect to) such Collateral, to the extent that the Applicable Senior Collateral Agent has
consented to such sale, transfer or disposition, then the Liens in favor of the Junior Secured Obligations Secured Parties upon such Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on
such Senior Secured Obligations Collateral are released and discharged; provided that the proceeds of such sale, transfer or disposition shall be applied in accordance with Section 2.01(a). Upon delivery to each Junior
Collateral Agent of a notice from the Applicable Senior Collateral Agent stating that any release of Liens securing or supporting the Senior Secured Obligations has become effective (or shall become effective upon each Junior Collateral
Agent’s release), each Junior Collateral Agent will promptly execute and deliver (at the sole cost and expense of the Grantors) such instruments, releases, terminations statements or other documents confirming such release on customary
terms.
f. Certain Agreements With Respect to Insolvency or
Liquidation Proceedings.
i. This
Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Debtor Relief Law by or against the Parent or any of its Subsidiaries. Without limiting the
generality of the foregoing, the provisions of this Agreement are intended to be and shall be enforceable as a “Subordination Agreement” under Section 510(a) of the Bankruptcy Code. All references to the Parent or any other Grantor shall
include such Parent or Grantor as a debtor-in-possession and any receiver, trustee, liquidator (whether provisional or permanent, as the case may be) or court-appointed officer for such person in any Insolvency or Liquidation Proceeding.
ii. If the
Parent or any of its Subsidiaries shall become subject to a case (a “Bankruptcy Case”) under any Debtor Relief Law:
1. if the Notes Collateral Agent desires to permit debtor-in-possession financing (“DIP Financing”) secured by a Lien on the Notes Priority Collateral, to be provided by one
or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) or the use of cash collateral under Section
363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the LC Collateral Agent and the LC Secured Parties hereby agree to consent to and not to object to any such financing or to the Liens on the Notes
Priority Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Notes Priority Collateral, unless the Notes Collateral Agent shall
then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral that constitutes Notes Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Notes
Priority Collateral for the benefit of the Notes Secured Parties, each LC Secured Party will subordinate its Liens with respect to such Notes Priority Collateral on the same terms as the Liens of the Notes Secured Parties (other than any
Liens of any LC Secured Party constituting DIP Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’
and officers’ charge or similar court ordered priority charge under applicable Debtor Relief Laws) and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Notes Priority Collateral granted to secure
the Notes Obligations of the Notes Secured Parties, each LC Secured Party will confirm the priorities with respect to such Notes Priority Collateral as set forth herein, in each case so long as (A) the Notes Secured Parties retain the
benefit of their Liens on all such Notes Priority Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP Financing Liens) as existed prior
to the commencement of the Bankruptcy Case and/or Insolvency or Liquidation Proceeding, (B) the LC Secured Parties are granted junior Liens on any additional collateral pledged to any Notes Secured Party as adequate protection or otherwise
in connection with such DIP Financing or use of cash collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the Notes Obligations, such amount is applied pursuant to Section 2.01(a) of this
Agreement, and (D) if any Notes Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are
applied pursuant to Section 2.01(a) of this Agreement; provided that the LC Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute Notes
Priority Collateral and (ii) in respect of any additional Collateral that would not constitute Notes Priority Collateral hereunder were it pledged for the benefit of the Notes Secured Parties pursuant to the Notes Security Documents to any
Notes Secured Party as adequate protection, for use of cash collateral, or otherwise, as set forth in clause (B) above; and
2. if the LC Collateral Agent desires to permit a DIP Financing secured by a Lien on LC Priority Collateral, to be provided by DIP Lenders under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor Relief
Laws) or the use of cash collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the Notes Collateral Agent and the Notes Secured Parties hereby agree not to object to any such
financing or to the DIP Financing Liens on the LC Priority Collateral securing the same or to any use of cash collateral that constitutes LC Priority Collateral, unless the LC Collateral Agent shall then oppose or object to such DIP
Financing or such DIP Financing Liens or use of cash collateral that constitutes LC Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such LC Priority Collateral for the benefit of the
LC Secured Parties, each Notes Secured Party will subordinate its Liens with respect to such LC Priority Collateral on the same terms as the Liens of the LC Secured Parties (other than any Liens of any Notes Secured Party constituting DIP
Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’ and officers’ charge or similar court-ordered
priority charge under applicable Debtor Relief Laws), and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such LC Priority Collateral granted to secure the LC
Obligations of the LC Secured Parties, each Notes Secured Party will confirm the priorities with respect to such LC Priority Collateral as set forth herein), in each case so long as (A) the Notes Secured Parties retain the benefit of their
Liens on all such LC Priority Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP Financing Liens) as existed prior to the commencement
of the Bankruptcy Case and/or Insolvency or Liquidation Proceeding, (B) the Notes Secured Parties are granted Liens on any additional collateral pledged to any LC Secured Party as adequate protection or otherwise in connection with such DIP
Financing or use of cash collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the LC Obligations, such amount is applied pursuant to Section 2.01(a) of this Agreement and (D) if any LC
Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection is applied pursuant to Section
2.01(a) of this Agreement; provided that the Notes Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute LC Priority Collateral and
(ii) in respect of any additional Collateral that would not constitute LC Priority Collateral hereunder were it pledged for the benefit of the LC Secured Parties pursuant to the LC Security Documents to any LC Facility Secured Party as
adequate protection, for use of cash collateral, or otherwise, as set forth in clause (B) above).
3. No Junior Secured Obligations Secured Party will directly or indirectly propose or support any DIP Financing secured by a Lien senior or prior to the Liens of the Senior Secured Obligations Secured Parties on the Senior Secured
Obligations Collateral unless such DIP Financing provides for the Discharge of the Senior Secured Obligations.
iii. The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not object to and will not otherwise contest: (i) any motion for relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding (including by way of moratorium) or from any injunction against foreclosure or enforcement in respect of the Senior Secured Obligations made by the Applicable Senior Collateral Agent or any Senior Secured Obligations
Secured Party; (ii) any lawful exercise by any holder of Senior Claims of the right to credit bid Senior Claims in any sale of Collateral that is Senior Secured Obligations Collateral with respect to such Senior Claims; (iii) any other
request for judicial relief made in any court by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party relating to the lawful enforcement of any Lien on the Senior Secured Obligations Collateral; (iv) and
will consent to any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code (or any equivalent
action under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented to such sale or disposition (or related order) of such Senior Secured Obligations Collateral if such sale or other disposition
is not free and clear of the Liens securing the Junior Secured Obligations or (v) any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy
Code or any other equivalent provision of the Bankruptcy Code (or any other provision under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented, and the related court order provides that, to
the extent the sale is to be free and clear of Liens, the Liens securing the Senior Secured Obligations and the Junior Secured Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens securing such
Obligations on the assets being sold, in accordance with this Agreement.
iv. The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding (including by way of moratorium)
with respect to Senior Secured Obligations Collateral without the prior consent of the Applicable Senior Collateral Agent, unless, and solely to the extent that, the Applicable Senior Collateral Agent or Senior Secured Obligations Secured
Party shall obtain relief from the automatic stay (or any other stay in any Insolvency or Liquidation Proceeding) with respect to such collateral to commence a lien enforcement action.
v. The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that it will not, other than as set forth in Section 2.06(b), object to and will not otherwise contest (or support any other Person
contesting): (i) any request by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party for adequate protection; provided that (1) any Notes Secured Party,
solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from Notes Priority Collateral, any DIP Financing under Section
2.06(b)(i) or the proceeds thereof and (2) any LC Secured Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought
to be paid from LC Priority Collateral, any DIP Financing under Section 2.06(b)(ii) or the proceeds thereof or (ii) any objection by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party to any
motion, relief, action or proceeding based on the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party claiming a lack of adequate protection. Notwithstanding the foregoing, in any Insolvency or Liquidation
Proceeding, (x) if the Senior Secured Obligations Secured Parties (or any subset thereof) are granted adequate protection in the form of a replacement lien or additional collateral in connection with any DIP Financing or use of cash
collateral under Section 363 or Section 364 of the Bankruptcy Code or any similar law, then the Applicable Junior Collateral Agent may seek or request adequate protection in the form of a replacement Lien on such additional collateral, so
long as, with respect to the Senior Secured Obligations Collateral, such Lien is subordinated to the Liens securing the Senior Secured Obligations and such DIP Financing (and all obligations relating thereto), on the same basis as the other
Liens securing Junior Secured Obligations on the Senior Secured Obligations Collateral are subordinated to the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations under this Agreement; (y) in the event the
Applicable Junior Collateral Agent seeks or requests adequate protection and such adequate protection is granted in the form of a replacement lien or additional collateral, then the Applicable Junior Collateral Agent and the Junior Secured
Obligations Secured Parties hereby agree that the Senior Secured Obligations Secured Parties shall also be granted a Lien on such additional collateral as security for the Senior Secured Obligations and any such DIP Financing and that any
Lien on such additional collateral that constitutes Senior Secured Obligations Collateral securing the Junior Secured Obligations shall be subordinated to the Liens on such collateral securing the Senior Secured Obligations and any such DIP
Financing (and all obligations relating thereto) and any other Liens on Senior Secured Obligations Collateral granted to the holders of Senior Secured Obligations as adequate protection on the same basis as the Liens securing Junior Secured
Obligations are so subordinated to the Liens securing the Senior Secured Obligations under this Agreement; (z) any adequate protection granted in favor of any Senior Secured Obligations Secured Party in the form of a superpriority or other
administrative expense claim and any claim in favor of any Senior Secured Obligations Secured Party arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) (collectively, “Senior 507(b) Claims”) shall be
senior to and have priority of payment over any superpriority or other administrative expense claim and any claim arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) in favor of any Junior Secured Obligations
Secured Party (collectively, “Junior 507(b) Claims”). The holders of the Junior 507(b) Claims agree that, in connection with any Plan of Reorganization in any Insolvency or Liquidation Proceeding, such Junior 507(b) Claims may be
paid in any combination of cash, securities, or other property having a present value equal to the amount of such Junior 507(b) Claims as of the effective date of such plan. For the avoidance of doubt, as between the Notes Secured Parties
and LC Secured Parties, all Senior 507(b) Claims shall be pari passu with the Senior 507(b) Claims held by the other Class, and all Junior 507(b) Claims shall be pari
passu with the Junior 507(b) Claims held by the other Class.
vi. The
Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that (i) it will not oppose or seek to challenge any claim by the Applicable Senior Collateral Agent or any Senior Secured Obligations
Secured Party for allowance of Senior Secured Obligations consisting of post-petition interest, costs, fees, charges, or expenses and (ii) until the Discharge of Senior Secured Obligations has occurred, the Applicable Junior Collateral
Agent, on behalf of itself and the Junior Secured Obligations Secured Parties, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) senior to or on a
parity with the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations for costs or expenses of preserving or disposing of any Collateral; provided that, for the avoidance of doubt, any amounts
received by the Applicable Senior Collateral Agent pursuant to such a claim shall in all cases be subject to Section 2.1(a).
vii. The LC
Collateral Agent, on behalf of the LC Secured Parties, and the Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledge and intend that the grants of Liens pursuant to the LC Security Documents, on the one hand, and the
Notes Security Documents, on the other hand, constitute separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the LC Obligations are fundamentally different from the Notes
Obligations and must be separately classified in any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately
preceding sentence, if it is held that the claims of the Notes Secured Parties and the LC Secured Parties in respect of any Collateral constitute claims in the same class (rather than separate classes of senior and junior secured claims),
then the Notes Secured Parties and the LC Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of Notes Obligations and LC Obligations against the Grantors (with the effect
being that, to the extent that the aggregate value of the Notes Priority Collateral or the LC Priority Collateral is sufficient (for this purpose ignoring all claims held by the other Secured Parties for whom such Collateral is Junior
Secured Obligations Collateral), the Notes Secured Parties or the LC Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims,
all amounts owing in respect of post-petition interest, costs, fees, charges, or expenses that are available from the Senior Secured Obligations Collateral for each of the Notes Secured Parties and the LC Secured Parties, respectively,
before any distribution is made in respect of the Junior Claims with respect to such Collateral, with the holder of such Junior Claims hereby acknowledging and agreeing to turn over to the Junior Secured
Obligations Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries).
Additionally, to further effectuate the intent of the parties as provided in this subsection, if it is held that the claims of any of the LC Secured Parties, on the one hand, and the Notes Secured Parties, on the other hand, constitute
claims in the same class (rather than separate classes of secured claims), then the Notes Secured Parties hereby acknowledge and agree to vote to reject such plan of reorganization or similar dispositive restructuring plan unless LC
Secured Parties greater than half in number and holding greater than two-thirds in amount of the LC Obligations agree to accept such plan or such plan provides for the Discharge of LC Obligations. The Notes Collateral Agent (on behalf of
all the Notes Secured Parties) agrees it shall not object to or contest (or support any other party in objection or contesting) a plan of reorganization or other dispositive restructuring plan on the grounds that the LC Obligations and
Notes Obligations are classified separately. The Notes Collateral Agent (on behalf of all the Notes Secured Parties) agrees that in any Insolvency or Liquidation Proceeding, neither it nor any other Notes Secured Party shall support or
vote to accept any plan of reorganization of the Borrower or any other Grantor unless the plan of reorganization is accepted by the LC Secured Parties in accordance with Section 1126(e) of the Bankruptcy Code or otherwise provides for the
Discharge of LC Obligations on the effective date of such plan of reorganization. Except as provided herein, the Notes Secured Parties shall remain entitled to vote their claims in any such Insolvency or Liquidation Proceeding.
viii. If, in
any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization (or any form of Court-sanctioned
restructuring permitted under any applicable law), both on account of the Notes Obligations and on account of the LC Obligations, then, to the extent the debt obligations distributed on account of the Notes Obligations and on account of the
LC Obligations are secured by Liens upon the Collateral, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the debt obligations so distributed,
to the Liens securing such debt obligations and the distribution of proceeds thereof.
Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation Proceeding
a determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then each of the LC Collateral Agent and the Notes Collateral Agent for themselves and on behalf of their respective Secured Parties agrees
that, any distribution or recovery they may receive in respect of any Collateral (including assets that would constitute Collateral but for such determination) shall be segregated and held in trust and forthwith paid over to the LC Collateral
Agent or the Notes Collateral Agent, as the case may be, in the same form as received without recourse, representation or warranty (other than a representation of such Collateral Agent that it has not otherwise sold, assigned, transferred or
pledged any right, title or interest in and to such distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct in order to comply with the priority provisions set forth in
Section 2.01
ix. Notwithstanding
the provisions of Sections 2.02(a) and 2.02(b), 2.04(a) and 2.06(b), (c) (e) and (f) or otherwise, both before and during an Insolvency or Liquidation Proceeding, any of the Junior Secured Obligations Secured Parties may take any actions
and exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against any Grantor in accordance with applicable law
(including the Debtor Relief Laws of any applicable jurisdiction); provided that, the Junior Secured Obligations Secured Parties may not take any of the actions that is inconsistent with the terms of this Agreement, including
without limitation, such actions prohibited by Sections 2.02(a) and 2.02(b), Section 2.04(a) or Section 2.06(b), (c), (e) and (f); provided further, that in the event that any of the Junior Secured Obligations Secured Parties
becomes a judgment lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Junior Secured Obligations, such judgment lien shall be subject to the terms of this
Agreement for all purposes (including in relation to the Senior Secured Obligations) as the other Liens securing the Junior Secured Obligations are subject to this Agreement.
g. Reinstatement. In the event that any of
the Senior Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under any Debtor Relief Law, or the settlement
of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such Senior Secured Obligations shall again have been irrevocably paid in full in
cash.
h. [Reserved].
i. Insurance. Unless and until the Notes
Obligations have been Discharged, as between the Notes Collateral Agent, on the one hand, and the LC Collateral Agent, on the other hand, only the Notes Collateral Agent will have the right (subject to the rights of the Grantors under the
Notes Documents and the LC Documents) to adjust or settle any insurance policy or claim covering or constituting Notes Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar
proceeding affecting the Notes Priority Collateral. Unless and until the LC Obligations have been Discharged, as between the Notes Collateral Agent, on the one hand, and the LC Collateral Agent, on the other hand, only the LC Collateral
Agent will have the right (subject to the rights of the Grantors under the Notes Documents and the LC Documents) to adjust or settle any insurance policy covering or constituting LC Priority Collateral in the event of any loss thereunder and
to approve any award granted in any condemnation or similar proceeding solely affecting the LC Priority Collateral. To the extent that an insured loss covers or constitutes Notes Priority Collateral and LC Priority Collateral, then the Notes
Collateral Agent and the LC Collateral Agent will work jointly and in good faith to collect, adjust or settle (subject to the rights of the Grantors under the Notes Documents and the LC Obligations Documents) under the relevant insurance
policy.
j. Refinancings. Each of the Notes
Obligations and the LC Obligations and the agreements governing them may be Refinanced, in each case without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Notes
Document or any LC Obligations Document, as in effect on the date hereof or as may be amended in accordance with the terms hereof) of, any Notes Secured Party or any LC Secured Party, all without
affecting the priorities provided for herein or the other provisions hereof; provided, however, that the holders of any such Refinancing indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing (to
the extent they are not already so bound) to the terms of this Agreement pursuant to a joinder in the form of Exhibit A hereto, and such other Refinancing documents or agreements (including amendments or supplements to this Agreement)
as each Applicable Senior Collateral Agent, shall reasonably request and in form and substance reasonably acceptable to such Applicable Senior Collateral Agent. In connection with any Refinancing contemplated by this Section 2.10, this
Agreement may be amended at the request and sole expense of the Parent, and without the consent (except to the extent a consent is otherwise required to permit such Refinancing transaction under any Notes Document or any LC Obligations
Document, and other than the consent of each Applicable Senior Collateral Agent, whose consent shall still be required to the extent set forth in the proviso of the immediately preceding sentence) of any Representative, (a) to add parties (or
any authorized agent or trustee therefor) providing any such Refinancing, (b) to confirm that such Refinancing indebtedness in respect of any LC Obligations shall have the same rights and priorities in respect of any LC Priority Collateral as
the indebtedness being Refinanced and (c) to confirm that such Refinancing indebtedness in respect of any Notes Obligations shall have the same rights and priorities in respect of any Notes Priority Collateral as the indebtedness being
Refinanced, all on the terms provided for herein immediately prior to such Refinancing. Any such additional party and each Applicable Senior Collateral Agent shall be entitled to rely on the determination of officers of the Parent that such
modifications do not violate the Notes Documents or the LC Documents if such determination is set forth in an officers’ certificate delivered to such party and each Applicable Senior Collateral Agent; provided, however, that such
determination will not affect whether or not the Parent and the Grantors have complied with their undertakings in any such document or this Agreement. In connection with the delivery of a joinder as set forth above, the Parent shall deliver
an officer’s certificate to each Collateral Agent certifying that the Refinancing, including the incurrence of indebtedness and the incurrence of liens in respect thereof, qualifies as a Refinancing as defined herein.
k. Amendments to Security Documents.
i. Subject to paragraph (c) below, each of the LC Collateral Agent and other LC Secured Parties agrees that, without the prior written consent of the Notes Collateral Agent, no LC Security Document to which such LC
Collateral Agent or LC Secured Party is party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new LC Security Document would be prohibited by or
inconsistent with any of the terms of this Agreement.
ii. Subject to
paragraph (c) below, each of the Notes Collateral Agent and other Notes Secured Parties agrees that, without the prior written consent of the LC Collateral Agent and each LC Collateral Agent, no Notes Security Document to which the Notes
Collateral Agent or Notes Secured Parties are party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new Notes Security Document would be
prohibited by or inconsistent with any of the terms of this Agreement.
iii. In the
event that any Senior Collateral Agent or Senior Secured Obligations Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Senior Secured Obligations Collateral Documents for the purpose of adding
to, or deleting from, or waiving or consenting to any departures from any provisions of, such Senior Secured Obligations Collateral Document or changing in any manner the rights of such Senior Collateral Agent, such Senior Secured
Obligations Secured Parties, the Grantors thereunder (including the release of any Liens in the applicable Senior Secured Obligations Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision
of each Comparable Junior Priority Collateral Document without the consent of any Junior Collateral Agent or any Junior Secured Obligations Secured Party and without any action by any Junior Collateral Agent, any Junior Secured Obligations
Secured Party, the Parent or any other Grantor; provided, however, that (A) such amendment, waiver or consent does not materially adversely affect the rights of the applicable Junior Secured Obligations Secured Parties or
the interests of the applicable Junior Secured Obligations Secured Parties in the applicable Junior Secured Obligations Collateral and not the Senior Collateral Agent or the Senior Secured Obligations Secured Parties, as the case may be,
that have a security interest in the affected collateral in a like or similar manner, and (B) written notice of such amendment, waiver or consent shall have been given by the Parent to the Applicable Junior Collateral Agent.
iv. Notwithstanding
anything to the contrary contained herein, the LC Collateral Agent and other LC Secured Parties and the Notes Collateral Agent and other Notes Secured Parties hereby agree that they will not amend or otherwise modify the provisions of the
LC Documents or the Notes Documents related to the Refinancing or payment of any Obligations (including ordinary course payments) in a manner that makes them more restrictive to Grantors or otherwise prohibits or restricts a Refinancing or
payment permitted under the LC Documents or Notes Documents as in effect on the date hereof.
l. Possessory Collateral Agent as Gratuitous Bailee
for Perfection.
i. Each
Possessory Collateral Agent agrees to hold the Possessory Collateral that is in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for, or, as applicable, on trust for, the benefit of
each Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral pursuant to the Notes Security Documents or the LC Security Documents, subject to the terms and conditions
of this Section 2.12. To the extent any Possessory Collateral is possessed by or is under the control of a Collateral Agent (either directly or through its agents or bailees) other than the Applicable Possessory Collateral Agent, such
Collateral Agent shall deliver such Possessory Collateral to (or shall cause such Possessory Collateral to be delivered to) the Applicable Possessory Collateral Agent and shall take all actions reasonably requested in writing by the
Applicable Possessory Collateral Agent to cause the Applicable Possessory Collateral Agent to have possession or control of same. Pending such delivery to the Applicable Possessory Collateral Agent, each other Collateral Agent agrees to
hold any Possessory Collateral as gratuitous bailee, or, as applicable, on trust for, for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory
Collateral, if any, pursuant to the applicable Notes Security Documents or LC Security Documents, in each case subject to the terms and conditions of this Section 2.12.
ii. The duties
or responsibilities of each Possessory Collateral Agent and each other Collateral Agent under this Section 2.12 shall be limited solely to holding the Possessory Collateral as gratuitous bailee, or, as applicable, on trust for, for the
benefit of each Secured Party for purposes of perfecting the security interest held by the Secured Parties therein.
iii. Upon the
Discharge of all LC Obligations, the LC Collateral Agent shall deliver to the Notes Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any)
held by it, together with any necessary endorsements (or otherwise allow the Notes Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such
further action as is required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except for loss or
damage suffered by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. No LC Collateral Agent shall be obligated to follow instructions from the Notes Collateral Agent in contravention of this
Agreement.
iv. Upon the
Discharge of all Notes Obligations, the Notes Collateral Agent shall deliver to the LC Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining Possessory Collateral (if any)
held by it, together with any necessary endorsements (or otherwise allow the LC Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The Grantors shall take such
further action as is required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a result of such transfer except for loss or
damage suffered by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. The Notes Collateral Agent shall not be obligated to follow instructions from any LC Collateral Agent in contravention of
this Agreement.
m. Control Agreements. The LC Collateral
Agent hereby agrees to act as collateral agent of the Notes Secured Parties under each control agreement solely for the purpose of perfecting the Lien of the Notes Secured Parties in the deposit accounts and securities accounts subject to
such control agreements by control. The Notes Collateral Agent, on behalf of the Notes Secured Parties, hereby appoints the LC Collateral Agent to act as its collateral agent under each such control agreement, as applicable. The duties or
responsibilities of the LC Collateral Agent under this Section 2.13 shall be limited solely to acting as agent for the benefit of each Notes Secured Party for purposes of perfecting the security interest held by the Secured Parties in the
deposit accounts and securities accounts subject to such control agreements by control, in each case prior to the Discharge of all LC Obligations
n. Rights under Permits and Licenses. The LC Collateral Agent agrees that if the Notes Collateral Agent shall require rights available under any permit or license controlled by the LC Collateral Agent (as certified to the
LC Collateral Agent by the Notes Collateral Agent, upon which the LC Collateral Agent may rely) in order to realize on any Notes Priority Collateral, the LC Collateral Agent shall (subject to the terms of the LC Documents, including the LC
Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be available to it (at the sole expense of the Grantors), consistent with applicable law and reasonably requested by the Notes Collateral Agent in
writing, to make such rights available to the Notes Collateral Agent, subject to the Liens held by the LC Collateral Agent for the benefit of the LC Secured Parties. The Notes Collateral Agent agrees that if the LC Collateral Agent shall
require rights available under any permit or license controlled by the Notes Collateral Agent (as certified to the Notes Collateral Agent by the LC Collateral Agent, upon which the Notes Collateral Agent may rely) in order to realize on any
LC Priority Collateral, the Notes Collateral Agent shall (subject to the terms of the Notes Documents, including such Notes Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be available to it (at the
sole expense of the Grantors), consistent with applicable law and reasonably requested by the LC Collateral Agent in writing, to make such rights available to the LC Collateral Agent, subject to the Liens held by the Notes Collateral Agent
for the benefit of the Notes Secured Parties.
(f)
Existence and Amounts of Liens and Obligations
Whenever a Representative shall be required, in connection with the exercise of its rights or the
performance of its obligations hereunder, to determine the existence or amount of any Senior Secured Obligations (or the existence of any commitment to extend credit that would constitute Senior Secured Obligations) or Junior Secured
Obligations, or the Collateral subject to any such Lien, it may, acting reasonably, request that such information be furnished to it in writing by the other Representatives and shall be entitled to make such determination on the basis of the
information so furnished; provided, however, that, if a Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Representative shall be entitled to make any such
determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Parent. Each Representative may rely conclusively, and shall be fully protected in so relying, on
any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Parent or any of its subsidiaries, any Secured Party
or any other Person as a result of such determination.
(g)
Consent of Grantors
Each Grantor hereby consents to the provisions of this Agreement and the intercreditor arrangements
provided for herein and agrees that the obligations of the Grantors under the Notes Security Documents, the LC Security Documents or the Foreign Collateral Documents will in no way be diminished or otherwise affected by such provisions or
arrangements.
Notwithstanding any other provision of this Agreement to the contrary, the obligations and liabilities of
any Grantor incorporated in Norway shall be limited by such mandatory provisions of sections 8-7 and/or 8-10 of the Norwegian Limited Liability Companies Act of 13 June 1997 regarding restrictions on a Norwegian limited liability company’s
ability to grant guarantees, loans, security or other financial assistance.
(h)
Representations and Warranties
a. Representations and Warranties of Each Party.
Each party hereto represents and warrants to the other parties hereto as follows:
i. Such party
is duly organized or incorporated (as the case may be), validly existing and, if applicable, in good standing (or the equivalent status under the laws of any foreign jurisdiction) under the laws of the jurisdiction of its organization or
incorporation (as the case may be) and has all requisite power and authority to enter into and perform its obligations under this Agreement.
ii. This
Agreement has been duly executed and delivered by such party.
iii. The
execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority, (ii) will not violate any applicable law or
regulation governing the powers of such party or any order of any governmental authority having jurisdiction over it and (iii) will not violate the charter, by-laws or other organizational documents of such party.
b. Representations and Warranties of Each
Representative. Each Collateral Agent and Representative represents and warrants to the other parties hereto that it is authorized under the Notes Indenture or the LC Obligations Credit Agreement, as applicable, to enter into this
Agreement.
(i)
Collateral Agency for Foreign Collateral
a. Appointment of Foreign Collateral Agent.
It is acknowledged that, in certain jurisdictions outside of the United State of America, applicable law prevents both the Notes Collateral Agent and the LC Collateral Agent from obtaining liens on the Collateral. In such circumstances,
solely for Foreign Collateral, the parties hereto agree that with effect as of the resignation of the Preceding Foreign Collateral Agent (i) the LC Collateral Agent, who may appoint any sub-agent in its sole discretion and upon written notice
to the Notes Collateral Agent to act in such capacity, is hereby appointed as Foreign Collateral Agent and sub-agent for the Collateral Agents in respect of any LC Priority Collateral, (ii) the Notes Collateral Agent, or any sub-agent that it
may in its sole discretion and upon written notice to the LC Collateral Agent designate to act in such capacity, is hereby appointed as Foreign Collateral Agent and sub-agent for the Collateral Agents in respect of any Notes Priority
Collateral, and (iii) notwithstanding anything to the contrary contained herein, Foreign Collateral Agent is permitted to hold Liens on such Foreign Collateral in trust for the Secured Parties notwithstanding the inability of any other
Collateral Agent to hold similar Liens. In recognition of the foregoing, each other Collateral Agent hereby irrevocably appoints the LC Collateral Agent or the Notes Collateral Agent, as applicable, to act as the “collateral agent” under any
Foreign Collateral Documents, pursuant to Section 6.01(i) and (ii), and each other Collateral Agent hereby irrevocably appoints and authorizes the LC Collateral Agent or the Notes Collateral Agent, as applicable, to act as the agent of such
Secured Party for purposes of acquiring, holding and enforcing any and all Liens on Foreign Collateral, pursuant to Section 6.01(i) and (ii), granted by any of the Grantors to secure any of the Notes Obligations or LC Obligations,
together with such powers and discretion as are reasonably incidental thereto (including, without limitation, to enter into additional Foreign Collateral Documents or supplements to existing Foreign Collateral Documents on behalf of the
Secured Parties). In this connection, the Foreign Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Foreign Collateral Agent pursuant to this Article VI for purposes of
holding or enforcing any Lien on the Foreign Collateral (or any portion thereof) granted under the Foreign Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Foreign Collateral Agent, shall be
entitled to the benefits of all provisions of this Agreement, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under this agreement and the Foreign Collateral Documents as if set forth in full herein with
respect thereto. It is understood and agreed that the use of the term “agent” herein or in any other Foreign Collateral Documents (or any other similar term) with reference to the Foreign Collateral Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between
contracting parties.
b. Rights as a Secured Party. The Person
serving as the Foreign Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Foreign Collateral Agent and the term
“Secured Party” or “Secured Parties” (or, as applicable, Notes Secured Party or LC Secured Party) shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Foreign Collateral Agent
hereunder in its individual capacity. Such Person and its affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with any Grantor or any Grantor’s Subsidiary or other affiliate thereof as if such Person were not the Foreign Collateral Agent hereunder and without any duty to account therefor to the Secured Parties.
c. Exculpatory Provisions.
i. The Foreign
Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Foreign Collateral Documents to which Foreign Collateral Agent is a party, and its duties hereunder and thereunder shall be
administrative in nature. Without limiting the generality of the foregoing, the Foreign Collateral Agent:
1. shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default under the Notes Documents or LC Documents has occurred and is continuing;
2. shall not have any duty to take any discretionary action or exercise any discretionary powers (though it hereby is authorized to take such actions in its Permitted Discretion), except discretionary rights and powers expressly
contemplated hereby or by the Foreign Collateral Documents that the Foreign Collateral Agent is required to exercise as directed in writing by the Controlling Parties; provided that the Foreign Collateral Agent shall not be required
to take any action that, in its good faith, based upon the advice of counsel or upon the written opinion of its counsel, may expose the Foreign Collateral Agent to liability, or for which it is not indemnified to its satisfaction or that is
contrary to any Foreign Collateral Document or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property in violation of any Debtor Relief Law; and
3. shall not, except as expressly set forth herein and in the Foreign Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Grantors or any of their
Subsidiaries or affiliates that is communicated to or obtained by the Person serving as the Foreign Collateral Agent or any of its affiliates in any capacity.
ii. The Foreign
Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Controlling Parties or (ii) in the absence of its own willful misconduct or gross negligence as determined by a court
of competent jurisdiction by final nonappealable judgment. The Foreign Collateral Agent shall be deemed not to have knowledge of any default or Event of Default under the Notes Documents or LC Documents unless and until written notice
describing such default or Event of Default is given to the Foreign Collateral Agent by the Grantors, LC Collateral Agent, or Notes Collateral Agent.
iii. The
Foreign Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Foreign Collateral Document, (ii)
the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any default or Event of Default or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Foreign Collateral Document or any other agreement, instrument or
document.
d. Reliance by the Foreign Collateral Agent.
The Foreign Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Foreign Collateral Agent also may rely upon any statement
made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Foreign Collateral Agent may consult with legal counsel, independent
accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the written advice of any such counsel, accountants or experts.
e. Delegation of Duties.
i. The Foreign
Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any Foreign Collateral Document by or through any one or more sub-agents appointed by the Foreign Collateral Agent. The Foreign
Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article VI shall apply to any such
sub-agent and to the Related Parties of the Foreign Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the Foreign Collateral. The Foreign Collateral Agent shall not be responsible
for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Foreign Collateral Agent acted with willful misconduct or gross
negligence in the selection of such sub agents.
ii. Should any
instrument in writing from any Grantor be required by any sub-agent appointed by the Foreign Collateral Agent to more fully or certainly vest in and confirm to such sub-agent such rights, powers, privileges and duties, such Grantor shall
execute, acknowledge and deliver any and all such instruments promptly upon request by the Foreign Collateral Agent. If any such sub-agent, or successor thereto, shall resign or be removed, all rights, powers, privileges and duties of such
sub-agent, to the extent permitted by law, shall automatically vest in and be exercised by the Foreign Collateral Agent until the appointment of a new sub-agent. All references in this Agreement or in any other Foreign Collateral Document
to any Lien or Foreign Collateral Document granted or delivered in favour of the Foreign Collateral Agent shall include any Lien or Foreign Collateral Document granted to any sub-agent of the Foreign Collateral Agent
f. Resignation of Foreign Collateral Agent.
i. The Foreign
Collateral Agent may at any time give notice of its resignation to the Representatives and the Grantors. Upon receipt of any such notice of resignation, the Secured Parties, acting through their Collateral Agents, shall have the right
(provided no Event of Default has occurred and is continuing under any LC Document or Notes Document at the time of such resignation) to appoint a successor, which shall be as jointly designated by Notes Collateral Agent and LC Collateral
Agent. If no such successor shall have been so appointed in accordance with the preceding sentence and shall have accepted such appointment within 30 days after the retiring Foreign Collateral Agent gives notice of its resignation (or such
earlier day as shall be agreed by the Representatives) (the “Resignation Effective Date”), then the retiring Foreign Collateral Agent may (but shall not be obligated to), on behalf of the Secured Parties, appoint a successor Foreign
Collateral Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
ii. With effect
from the Resignation Effective Date, (1) the retiring Foreign Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Foreign Collateral Documents (except that in the case of any collateral
security held by the Foreign Collateral Agent on behalf of the Secured Parties under any of the Foreign Collateral Documents, the retiring Foreign Collateral Agent shall continue to hold such collateral security until such time as a
successor Foreign Collateral Agent is appointed but in any event, no more than sixty (60) days following the Resignation Effective Date) and (2) except for any indemnity payments owed to the retiring Foreign Collateral Agent, all payments,
communications and determinations provided to be made by, to or through the Foreign Collateral Agent shall instead be made by or to each Representative directly, until such time, if any, the relevant Collateral Agents appoint a successor
Foreign Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Foreign Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring Foreign Collateral Agent (other than any rights to indemnity payments owed to the retiring Foreign Collateral Agent), and the retiring Foreign Collateral Agent shall be discharged from all of its duties and obligations
hereunder or under the other Foreign Collateral Documents. After the retiring Foreign Collateral Agent’s resignation or removal hereunder and under the other Foreign Collateral Documents, the provisions of this Article shall continue in
effect for the benefit of such retiring Foreign Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Foreign Collateral Agent was
acting as Foreign Collateral Agent.
g. Non-Reliance on Foreign Collateral Agent and
Other Secured Parties. Each Collateral Agent acknowledges that it has, independently and without reliance upon the Foreign Collateral Agent or any of its related parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement, the LC Documents, and the Notes Documents, as applicable. Each Collateral Agent also acknowledges that it will, independently and without reliance upon the
Foreign Collateral Agent or its related parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement,
any Foreign Collateral Document or any related agreement or any document furnished hereunder or thereunder.
h. Collateral Matters.
Each of the Collateral Agents irrevocably authorize the Foreign Collateral Agent, at its option and in
its Permitted Discretion;to release any Lien or any other claim on any Foreign Collateral granted to or held by the Foreign Collateral Agent, for the benefit of the Secured Parties, under any Foreign Collateral Document (A) upon the Discharge
of the Notes Obligations and the Discharge of the LC Obligations, as applicable, in which case such Lien shall only be released with respect to the Obligations so Discharged; (B) that is sold or otherwise disposed of or to be sold or
otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under the Foreign Collateral Documents, Notes Documents and LC Documents or (C) if approved, authorized or ratified in writing in
accordance with Section 6.08(b).
i. Upon request
by the Foreign Collateral Agent at any time, the Controlling Parties will confirm in writing the Foreign Collateral Agent’s authority to release or subordinate its interest in particular types or items of property or take any other action
necessary to administer the Foreign Collateral. In each case, as specified in this Section 6.08, the Foreign Collateral Agent will, at the Grantors’ joint and several expense, execute and deliver to the applicable Grantor such
documents as such Grantor may reasonably request to evidence the release of such item of Foreign Collateral from the assignment and security interest granted under the Foreign Collateral Documents or to subordinate its interest in such
item, or to release such Grantor from its obligations under the Foreign Collateral Documents, in each case in accordance with the terms hereof and the terms of the Foreign Collateral Documents.
ii. The Foreign
Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Foreign Collateral, the existence, priority or perfection of
the Foreign Collateral Agent’s Lien thereon, or any certificate prepared by any Grantor in connection therewith, nor shall the Foreign Collateral Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain
any portion of the Foreign Collateral.
i. Discretionary Rights. The Foreign
Collateral Agent may:
i. assume
(unless it has received actual notice to the contrary from the Collateral Agents) that (i) no default or Event of Default has occurred and no Grantor is in breach of or default under its obligations under any of the Foreign Collateral
Documents, Notes Documents, or LC Documents, and (ii) any right, power, authority or discretion vested by any Foreign Collateral Documents, Notes Documents, or LC Documents in any person has not been exercised;
ii. if it
receives any instructions or directions to take any action in relation to the Foreign Collateral, assume that all applicable conditions under this Agreement, LC Documents and Notes Documents for taking that action have been satisfied;
iii. engage and
pay for the advice or services of accountants, tax advisers, surveyors or other professional advisers or experts and a single legal counsel in each applicable jurisdiction (in addition to the Foreign Collateral Agent’s general outside
counsel);
iv. without
prejudice for the generality of paragraph (c) above, at any time engage and pay for the services of a single additional counsel in each applicable jurisdiction to act as independent counsel to the Foreign Collateral Agent (in addition to
the Foreign Collateral Agent’s general outside counsel) (and so separate from any lawyers instructed by the other Secured Parties) if the Foreign Collateral Agent in its reasonable opinion deems this to be desirable and the Collateral Agent
shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying on the advice or services of any professional engaged under this Section 6.09; and
v. refrain from
acting in accordance with the instructions of any Secured Party or Controlling Party (including bringing any legal action or proceeding arising out of or in connection with the Foreign Collateral Documents) until it has received any
indemnification and/or security that it may in its reasonable discretion require which may be greater in extent than that contained for the benefit of any Representative in the Notes Documents or LC Documents. Notwithstanding any provision
of any Notes Documents or LC Documents to the contrary, the Foreign Collateral Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities
or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
j. Indemnification of Foreign Collateral Agent.
i. The Secured
Parties (other than the LC Australian Collateral Agent and the Notes Collateral Agent) shall jointly and severally indemnify the Foreign Collateral Agent within three Business Days of demand, and keep the Foreign Collateral Agent
indemnified against any demands, damages, expenses, costs, losses or liabilities made against or incurred by it in acting as Foreign Collateral Agent on behalf of the Secured Parties under this Agreement, the Foreign Collateral Documents,
the LC Documents, or the Notes Documents (provided that any indemnification obligations arising solely due to the instructions of a Controlling Party shall be borne solely by the Class
represented by such Controlling Party), unless the Foreign Collateral Agent (i) has been reimbursed by a Grantor pursuant to any of the Foreign Collateral Documents or (ii) such liabilities, losses, demands, damages, expenses or costs are
incurred by or made against the Foreign Collateral Agent as a result of willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment. The Grantors hereby jointly and severally
indemnify the Secured Parties against any payment made by them under this Section 6.10(a) and agree that any payments made by or costs attributable to any Notes Secured Party on account of the Foreign Collateral Agent shall be added to the
Notes Obligations and any payments made by or costs attributable to any LC Secured Party on account of the Foreign Collateral Agent shall be added to the LC Obligations.
ii. The
Grantors covenant and agree that they shall defend and be jointly and severally liable to reimburse and indemnify the Foreign Collateral Agent (and its Affiliates, officers, directors, employees, attorneys and agents (“Foreign Collateral
Agent Related Persons”)) for any and all reasonable expenses and other charges actually incurred by the Foreign Collateral Agent on behalf of the Secured Parties in connection with the execution, delivery, administration and
enforcement of this Agreement and the Foreign Collateral Documents (or any of them) and from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, actual reasonable expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Foreign Collateral Agent, in any way relating to or arising out of this Agreement, any Foreign Collateral Document, or any other
document delivered in connection herewith or therewith or the transactions contemplated hereby or thereby, or the enforcement of any of the terms hereof or thereof, in each case, except to the extent caused by the Foreign Collateral Agent’s
or the Foreign Collateral Agent Related Person’s willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment.
iii. The
obligations under this Section 6.10 shall survive the Discharge of the Notes Obligations, the Discharge of the LC Obligations, the resignation of any Foreign Collateral Agent, and termination of this Agreement and all of the Foreign
Collateral Documents.
(d) Notwithstanding
anything else in this Section 6.10, the Grantors shall have no obligation to indemnify or reimburse any Person for any Taxes unless such Taxes would be subject to indemnification or reimbursement under the LC Credit Agreement or Notes
Indenture.
k. Treatment of Proceeds of Foreign Collateral.
i. All amounts
from time to time received or recovered by the Foreign Collateral Agent pursuant to the terms of any Foreign Collateral Document or in connection with the realization or enforcement of all or any part of the Foreign Collateral (the “Foreign
Recoveries”) shall be held by the Foreign Collateral Agent in trust and applied, to the extent permitted by applicable law, in the following order:
First, in discharging any sums owing to the Foreign Collateral Agent (in its capacity as such),
including (i) amounts owing to Foreign Collateral Agent to indemnify Foreign Collateral Agent for claims against it or claims that, in the reasonable discretion of Foreign Collateral Agent, may be asserted against Foreign Collateral Agent and
are subject to the indemnification provisions of this Agreement and (ii) any deductions and withholdings (on account of taxes or otherwise) which Foreign Collateral Agent is or may be required by any applicable law to make from any
distribution or payment made by it under this Agreement and to pay all taxes which may be assessed against it in respect of any of the Foreign Collateral Documents, or as a consequence of performing its duties, or by virtue of its capacity as
Foreign Collateral Agent (other than in connection with its remuneration for performing its duties under this Agreement); provided that any Foreign Collateral or proceeds thereof that is LC
Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the LC Secured Parties and Foreign Collateral or proceeds thereof that is
Notes Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the Notes Secured Parties;
Second, to the Representatives to be applied in accordance with Section 2.01(a) hereof.
For the avoidance of doubt, following acceleration of any of the Notes Obligations or the LC Obligations, Foreign Collateral
Agent may, in its Permitted Discretion, hold any amount of the Foreign Recoveries (subject to the proviso set forth in subclause “first” above) in a non-interest bearing account(s) in the name of the Foreign Collateral Agent with such
financial institution as it may select (including itself) and for so long as the Foreign Collateral Agent shall think appropriate in its Permitted Discretion for later application as set forth herein in respect of any sum owing to the Foreign
Collateral Agent that the Foreign Collateral Agent reasonably considers might become due or owing at any time in the future.
l. Currency Conversion. The Foreign
Collateral Agent is under no obligation to make the payments to the Secured Parties above in the same currency as that in which the obligations and liabilities owing to the Secured Parties are denominated. To the extent any payment from
Foreign Collateral Agent to a Representative causes a currency conversion, the provisions of the Notes Documents or the LC Documents (as applicable, based on the Representative receiving payment) relating to currency conversions shall apply.
m. Swiss Collateral.
i. In relation
to Foreign Collateral which is subject to a security document governed by Swiss law, the LC Collateral Agent in its capacity as Foreign Collateral Agent shall:
1. hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch) in its own name
but for the benefit of the Secured Parties; and
2. hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter Stellvertreter) in
the name and on behalf of the Secured Parties.
ii. The LC
Collateral Agent in its capacity as Foreign Collateral Agent shall be empowered to:
1. exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Foreign Collateral Agent under the relevant security documents governed by Swiss law together with such powers and
discretions as are reasonably incidental thereto;
2. take such action on its behalf as may from time to time be authorized under or in accordance with the relevant Foreign Collateral Documents governed by Swiss law; and
3. accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right granted in favor of any Secured Party under
Swiss law in connection with the Notes Documents and/or the LC Documents and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any
amendments, confirmations and/or alterations to any security document governed by Swiss law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the
release or confirmation of release of such Collateral, all subject to the provisions of this Agreement.
n. Scottish Collateral.
i. The Foreign
Collateral Agent declares that it holds on trust for the Secured Parties, on the terms contained in this Article VI: (i) the Foreign Collateral expressed to be subject to the Liens created in favor of the Foreign Collateral Agent as
trustee for the Secured Parties by or pursuant to each Foreign Collateral Document which is governed by or subject to the laws of Scotland, and all proceeds of that Foreign Collateral; (ii) all obligations expressed to be undertaken by any
Grantor to pay amounts in respect of the Obligations to the Foreign Collateral Agent as trustee for the Secured Parties and secured by any Foreign Collateral Document which is governed by or subject to the laws of Scotland together with all
representations and warranties expressed to be given by any Grantor or any other person in favour of the Foreign Collateral Agent as trustee for the Secured Parties; and (iii) any other amounts or property, whether rights, entitlements,
choses in action or otherwise, actual or contingent, which the Foreign Collateral Agent is required by the terms of the Notes Documents or the LC Documents to hold as trustee on trust for the Secured Parties.
ii. Without
prejudice to the other provisions of this Article VI, each other Collateral Agent hereby irrevocably authorizes the Foreign Collateral Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers,
authorities and discretions specifically given to the Foreign Collateral Agent as trustee for the Secured Parties under or in connection with the Notes Documents and the LC Documents together with any other incidental rights, powers,
authorities and discretions. For the avoidance of doubt, the Foreign Collateral Agent in its capacity as trustee for the Secured Parties shall have the same rights, powers, immunities, indemnities and exclusions from liability as are
prescribed in favor of the Foreign Collateral Agent in this Agreement, which shall apply mutatis mutandis.
o. Benefits of Foreign Collateral Agent
The provisions of this Article VI granting rights, privileges, immunities and indemnities to the LC
Collateral Agent or Notes Collateral Agent, as applicable, when acting as Foreign Collateral Agent, are intended to be in addition to, and shall not impair, the rights, privileges, immunities and indemnities granted to the LC Collateral Agent
and Notes Collateral Agent, as applicable, under the LC Documents and Notes Documents, as the case may be.
(j)
Miscellaneous
a. Legends.
Each Security Document shall (and, to the extent already in existence, shall be amended to) include a legend, substantially similar to the form provided below, describing this Agreement (except in the case of any foreign jurisdiction, where
such legend is not customary or where otherwise prohibited by applicable law):
Reference is made to the Intercreditor Agreement (the “Intercreditor Agreement”),
dated as of August 28, 2020, among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian Security Trust referred to herein (when joined to such agreement, in such capacity, together
with its successors in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for the LC
Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in substantially the
same capacity as may from time to time be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington Trust”), as collateral agent for the Notes Secured Parties referred to herein (in such capacity, together
with its successors and co-agents and, as applicable, sub-agents, in substantially the same capacity as may from time to time be appointed, the “Notes Collateral Agent”), Weatherford International plc (“Parent”) and the other Subsidiaries of
the Parent from time to time party thereto. Each [Notes Secured Party] [LC Secured Party], through its Collateral Agent, by obtaining the benefits of this Agreement, (a) consents to the subordination of Liens provided for in the
Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the [Notes Collateral Agent] [LC Collateral Agent] to enter
into the Intercreditor Agreement as [Notes Collateral Agent ] [LC Collateral Agent] on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the [Notes Secured Parties] [LC Secured Parties] to extend credit
to [LC Borrowers] [Notes Issuer] or to acquire any notes or other evidence of any debt obligation owing from the [LC Borrowers] [Notes Issuer] and such [Notes Secured Parties] [LC Secured Parties] are intended third party beneficiaries of
such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Agreement, the Liens
created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Notes Security Documents and
LC Security Documents (as defined in the ntercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
control.
b. Notices. All notices and other
communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
i. if to the
Notes Collateral Agent, to it at:
Wilmington Trust, National Association
Global Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, Minnesota 55402
USA
Attention: Weatherford International Notes Administrator
Fax: 612-217-5651
ii. if to the
LC Collateral Agent, to it at:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, Weatherford, SF0580
Fax: (646) 961-3317
iii. if to the
LC Australian Collateral Agent, to it at:
BTA Institutional Services Australia Limited
Level 2, 1 Bligh Street
Sydney NSW 2000
Australia
Attention: Global Client Services
Fax: +61 2 9260 6009
Email: BNYM_CT_Aus_RMG@bnymellon.com
iv. if to the
Grantors, to them at:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
with a copy to:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: Treasurer
Telephone: (713) 836-7460
Email: Mark.Rothleitner@weatherford.com; Josh.Silverman@weatherford.com
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the
other parties hereto (and for this purpose a notice to the Parent shall be deemed to be a notice to each Grantor). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 7.02 or in accordance with the latest unrevoked direction from such party given in
accordance with this Section 7.02. As agreed to in writing among the Parent, the Notes Collateral Agent, the LC Collateral Agent, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of
the applicable Person provided from time to time by such Person.
c. Waivers; Amendment.
i. No failure
or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.03, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar
or other circumstances.
ii. Subject to
Sections 2.03, 2.10, 2.11, Article 6 and 7.15 hereof, and except as set forth in Section 7.18, neither this Agreement nor any provision hereof may be terminated, waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by each Representative, each Collateral Agent and the Parent (for and on behalf of each of the other Grantors).
d. Parties in Interest. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, all of whom are intended to be bound by this Agreement.
e. Survival of Agreement. All covenants,
agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
f. Counterparts. This Agreement may be
executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or any other
electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
g. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
h. Governing Law; Jurisdiction; Consent to Service
of Process.
i. This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to conflict of law provisions, other
than 5-1401 and 5‑1402 of the New York General Obligations Law.
ii. Each party
hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto
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. Nothing in this Agreement shall affect any right
that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
iii. Each party
hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this Section 7.08. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
iv. Each party
to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.02. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted
by law.
i. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
j. Headings. Article, Section and Annex
headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
k. Conflicts. In the event of any conflict
or inconsistency between the provisions of this Agreement and the provisions of any of the Notes Documents and/or any of the LC Documents, the provisions of this Agreement shall control, except with respect to provisions governing the rights,
privileges, immunities and indemnities of the Collateral Agents and Representatives, in their capacities as such, in which case the applicable Notes Documents or LC Documents shall control.
l. Provisions Solely to Define Relative Rights.
The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Notes Secured Parties and the LC Secured Parties in relation to one another. None of the Grantors shall have any rights or
obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Sections 2.05, 2.06, 2.10, 2.11, Article V and Article VI) is intended to or will amend, waive or otherwise
modify the provisions of the Notes Documents or any LC Documents), and none of the Grantors may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair or relieve the obligations of the Grantors, which are absolute
and unconditional, to pay the Obligations as and when the same shall become due and payable in accordance with their terms. Notwithstanding anything to the contrary herein or in any Notes Document or any LC Obligations Document, the Grantors
shall not be required to act or refrain from acting (a) pursuant to this Agreement or any LC Obligations Document with respect to any Notes Priority Collateral in any manner that would cause a default under any Notes Document, or (b) pursuant
to this Agreement or any Notes Document with respect to any LC Priority Collateral in any manner that would cause a default under any LC Obligations Document. For the avoidance of doubt, the provisions of this agreement shall apply to the
Notes Secured Parties solely in their capacity as Notes Secured Parties and not in any other capacity.
m. Agent Capacities. Except as expressly set
forth herein, neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral Agent), shall have (i) any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if
any, being subject to and governed by the Notes Documents and the LC Documents, as the case may be, or (ii) any liability or responsibility for the actions or omissions of any other Secured Party or for any other Secured Party’s compliance
with (or failure to comply with) the terms of this Agreement. Neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral Agent) shall have individual liability to any Person if it shall mistakenly
pay over or distribute to any Secured Party (or Grantor) any amounts in violation of the terms of this Agreement, so long as such Person is acting in good faith and without willful misconduct. Furthermore, and notwithstanding anything to the
contrary contained herein, the LC Australian Collateral Agent shall act or refrain from acting with respect to the LC Australian Collateral only at the direction of the LC Administrative Agent.
n. Supplements. Upon the execution by any
Subsidiary of Parent of a supplement hereto in form and substance satisfactory to the Collateral Agents, such subsidiary shall be a party to this Agreement and shall be bound by the provisions hereof to the same extent as each Grantor are so
bound. The Parent shall cause any Subsidiary that becomes a Grantor to execute and deliver such supplement.
o. Collateral Agent Rights, Protections and
Immunities.
In acting under or by virtue of this Agreement, the LC Collateral Agent and the LC Australian Collateral
Agent shall have the rights, protections, immunities and indemnities granted to the “Administrative Agent” and its respective sub-agents under the LC Credit Agreement, all of which are incorporated by reference herein, mutatis mutandis. In acting under or by virtue of this Agreement, the Notes Collateral Agent shall have the rights, protections, immunities and indemnities granted to the “Collateral Agent” under the Notes
Indenture, all of which are incorporated by reference herein, mutatis mutandis. In acting under or by virtue of this Agreement, the LC Australian Collateral Agent shall have the rights, protections
and immunities granted to the “LC Australian Collateral Agent” under the LC Australian Security Trust Deed.
p. Other Junior Intercreditor Agreements.
In addition, in the event that the Parent or any Subsidiary incurs any obligations secured by a lien on
any Collateral that is junior to the LC Obligations or the Notes Obligations, then the Notes Collateral Agent and the LC Collateral Agent shall enter into an intercreditor agreement (at the sole cost and expense of the Grantors) with the
agent or trustee for the secured parties with respect to such secured obligation to reflect the relative lien priorities of such parties with respect to the Collateral and governing the relative rights, benefits and privileges as among such
parties in respect of the Collateral, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as such secured obligations are
permitted under, and the terms of such intercreditor agreement do not violate or conflict with, the provisions of this Agreement or the other Notes Documents or LC Documents, as the case may be. Each party hereto agrees that the Notes
Secured Parties (as among themselves) and the LC Secured Parties (as among themselves) may each enter into intercreditor agreements (or similar arrangements) with the Applicable Senior Collateral Agent governing the rights, benefits and
privileges as among the Notes Secured Parties or the LC Secured Parties, as the case may be, in respect of the Collateral, this Agreement and the applicable Senior Secured Obligations Collateral Documents, as the case may be, including as to
the application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or
the other applicable Senior Secured Obligations Collateral Documents, as the case may be. If any such intercreditor agreement (or similar arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment,
modification or other change to this Agreement or any other Notes Document or LC Document, and the provisions of this Agreement and the other Notes Documents and LC Documents shall remain in full force and effect in accordance with the terms
hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).
q. Additional Grantors.
Promptly upon request by any Collateral Agent, any Person that becomes a Grantor after the date hereof
will provide to the Collateral Agents a fully signed acknowledgement, substantially in the form attached hereto as Exhibit B, consenting to the provisions of this Agreement and the intercreditor arrangements provided for herein; provided
that no failure on the part of any Collateral Agent to request or obtain such acknowledgement will in any way diminish or impair any of the rights of the Secured Parties hereunder.
r. Joinder of LC Australian Collateral Agent.
Substantially concurrently with its entry into the LC Australian Security Trust Deed, BTA Institutional
Services Australia Limited shall, without requiring the consent of any other party hereto, join to this Agreement by executing and delivering a joinder agreement substantially in the form attached hereto as Exhibit C.
s. Purchase Right.
i. Without prejudice to the enforcement of the LC Secured Parties’ rights and remedies, the LC Secured Parties agree that following the occurrence of (i) the occurrence of an Event of Default and acceleration of the
LC Obligations in accordance with the terms of the LC Documents, (ii) any enforcement action by any LC Secured Party with respect to any material portion of the Collateral, (iii) any Insolvency or Liquidation Proceeding, or (iv) any
bankruptcy or payment default under the Notes Indenture (each such event, a “Purchase Option Event”), then some or all of the Notes Secured Parties shall have the right to elect to purchase all but not less than all of the
outstanding LC Obligations, at par, without regard to any prepayment penalty or premium and without warranty, representation or recourse, for the Purchase Price (defined below); provided, with respect to any LC Obligations constituting Bank
Product Obligations, at the time of any such purchase pursuant to this Section 7.19, the Bank Product Obligations shall have been terminated in accordance with their terms. The participating Notes Secured Parties shall irrevocably exercise
each such purchase right by delivery of written notice of their intent to purchase the LC Obligations to the LC Collateral Agent at any time following the Purchase Option Event; provided,
unless the LC Collateral Agent otherwise consents, such written notice must be received by the LC Collateral Agent no later than the earlier to occur of (A) 10 Business Days after the LC Collateral Agent delivers to the Notes Trustee
written notice of the occurrence of any Purchase Option Event described in clause (i), (ii) or (iii) above, or (B) if any bankruptcy or payment default under the Notes Indenture has occurred and is continuing, 10 Business Days after LC
Collateral Agent delivers written notice to the Notes Trustee that the LC Facility Secured Parties desire to sell or assign the LC Obligations and are actively seeking to identify one or more Persons to purchase and acquire its LC
Obligations from such LC Facility Secured Parties. The parties shall close such purchase and sale within 20 Business Days (or such shorter time as reasonably specified by the participating Notes Secured Parties in such notice) after such
delivery of such notice. To the extent that more than one Notes Secured Party elects to purchase the LC Obligations in accordance with this Section 7.19, unless otherwise agreed upon by such Notes Secured Parties electing to
purchase the LC Obligations, such Notes Secured Parties shall purchase all of the LC Obligations in accordance with this Section 7.19 on a ratable basis based on their outstanding Notes Obligations.
ii. On the date
of such purchase and sale (the “Purchase Date”), the participating Notes Secured Parties shall (i) pay to LC Collateral Agent (on behalf of all LC Facility Secured Parties) as the purchase price therefor, the full amount of all the
LC Obligations (other than LC Obligations cash collateralized in accordance with clause (b)(ii) below) then outstanding and unpaid, and (ii) furnish cash collateral to the LC Collateral Agent in such amounts as the LC Collateral Agent
determines is reasonably necessary to secure the LC Secured Parties in connection with any issued and outstanding Letters of Credit (as defined in the LC Credit Agreement) (but not in any event in an amount greater than (I) 105% of the face
amount of letters of credit denominated in a currency other than U.S. dollars and (II) 103% of the face amount with respect to letters of credit denominated in U.S. dollars. Such purchase price and cash collateral (collectively, the “Purchase
Price”) shall be remitted by wire transfer in federal funds to such bank account of the LC Collateral Agent as the LC Collateral Agent may designate in writing to the participating Notes Secured Parties for such purpose. Interest
shall be calculated to but exclude the Business Day on which such purchase and sale shall occur.
iii. Such
purchase shall be expressly made without representation or warranty of any kind by the LC Secured Parties as to the LC Obligations or LC Documents so purchased or otherwise and without recourse to any LC Secured Party; except that each LC
Secured Party shall represent and warrant: (i) the amount of the LC Obligations being purchased from such LC Secured Party, (ii) that such LC Secured Party owns the LC Obligations free and clear of any Liens, and (iii) that such LC Secured
Party has the right to assign such LC Obligations and the assignment is duly authorized.
iv. In the
event that the participating Notes Secured Parties exercise and consummate the purchase option set forth in this Section 7.19, (i) LC Collateral Agent and any other agent under the LC Documents shall have the right, but not the
obligation, to immediately resign under the LC Documents, and (ii) the participating Notes Secured Parties shall have the right, but not the obligation, to require LC Collateral Agent and such other agent to immediately resign under the LC
Documents.
v. With respect
to any cash collateral held under Section 7.4(b)(ii) above, after giving effect to any payment made and applied to amounts coming due with respect to any letters of credit (or termination thereof without a drawing thereon), the
amount of any cash collateral then on deposit with the LC Collateral Agent with respect to such obligations which exceeds the sum of (x) 105% of the face amount of letters of credit denominated in a currency other than U.S. dollars and (y)
103% of the face amount with respect to letters of credit denominated in U.S. dollars, shall promptly be returned to the Notes Collateral Agent (for the benefit of the applicable Notes Secured Parties).
vi. For the
avoidance of doubt, notwithstanding anything to the contrary herein, (i) any obligations to pay the purchase price or furnish cash collateral in connection with the exercise of the purchase option set forth herein shall be obligations of
the participating Notes Secured Parties (and not the Notes Trustee or the Notes Collateral Agent) and (ii) the Notes Trustee and the Notes Collateral Agent shall have no obligations under this Section 7.19 except to the extent
they are required to act in an administrative agent capacity for the applicable Notes Secured Parties in accordance with the applicable Notes Documents.
[Remainder of this page intentionally left blank; signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Notes Collateral Agent
|
By:
|
__________________
Name:
Title:
|
DEUTSCHE BANK TRUST COMPANY AMERICAS, as LC Collateral Agent
|
By:
|
__________________
Name:
Title:
|
|
By:
|
__________________
Name:
Title:
|
AUSTRALIA INITIAL GUARANTOR
Executed by WEATHERFORD AUSTRALIA PTY LIMITED ACN 008 947 395 in
accordance with section 127 of the Corporations Act 2001 (Cth):
|
|
|
|
|
|
|
|
Signature of director
|
|
|
Signature of company secretary
|
|
|
|
|
Bruno Teixeira Bezarra
|
|
|
Robert Antonio De Gasperis
|
Full name of director
|
|
|
Full name of company secretary
|
BERMUDA INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD INTERNATIONAL HOLDING (BERMUDA) LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD PANGAEA HOLDINGS LTD.
By:_____________________________________
Name:
Title:
SABRE DRILLING LTD.
By:_____________________________________
Name:
Title:
KEY INTERNATIONAL DRILLING COMPANY LIMITED
By:_____________________________________
Name:
Title:
WEATHERFORD BERMUDA HOLDINGS LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD SERVICES, LTD.
By:_____________________________________
Name:
Title:
WOFS ASSURANCE LIMITED
By:_____________________________________
Name:
Title:
WEATHERFORD HOLDINGS (BERMUDA) LTD.
By:_____________________________________
Name:
Title:
|
BRITISH VIRGIN ISLANDS INITIAL GUARANTORS
|
WEATHERFORD DRILLING INTERNATIONAL HOLDINGS (BVI) LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD DRILLING INTERNATIONAL (BVI) LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD COLOMBIA LIMITED
By:_____________________________________
Name:
Title:
WEATHERFORD HOLDINGS (BVI) LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD OIL TOOL MIDDLE EAST LIMITED
By:_____________________________________
Name:
Title:
|
CANADA INITIAL GUARANTORS
|
WEATHERFORD CANADA LTD.
By:_____________________________________
Name:
Title:
WEATHERFORD (NOVA SCOTIA) ULC
By:_____________________________________
Name:
Title:
PRECISION ENERGY SERVICES ULC
By:_____________________________________
Name:
Title:
PRECISION ENERGY INTERNATIONAL LTD.
By:_____________________________________
Name:
Title:
PRECISION ENERGY SERVICES COLOMBIA LTD.
By:_____________________________________
Name:
Title:
|
ENGLAND INITIAL GUARANTORS
|
SIGNED for and on behalf of
WEATHERFORD EURASIA LIMITED
By:_____________________________________
Name:
Title:
SIGNED for and on behalf of
WEATHERFORD U.K. LIMITED
By:_____________________________________
Name:
Title:
|
GERMANY INITIAL GUARANTORS
|
SIGNED for and on behalf of
WEATHERFORD OIL TOOL GMBH
By:_____________________________________
Name:
Title:
|
|
|
IRELAND INITIAL GUARANTORS
GIVEN under the COMMON SEAL
of WEATHERFORD INTERNATIONAL PUBLIC LIMITED COMPANY
and this Deed was delivered:
_________________________________
Director
_________________________________
Director/Secretary
GIVEN under the COMMON SEAL
of WEATHERFORD IRISH HOLDINGS LIMITED
and this Deed was delivered:
_________________________________
Director
_________________________________
Director/Secretary
LUXEMBOURG INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL (LUXEMBOURG) HOLDINGS S.À R.L.
société à responsabilité limitée
8-10, avenue de la Gare
L-1610 Luxembourg
R.C.S. Luxembourg B146.622
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
WEATHERFORD EUROPEAN HOLDINGS (LUXEMBOURG) S.À R.L.
société à responsabilité limitée
8-10, avenue de la Gare
L-1610 Luxembourg
R.C.S. Luxembourg B150.992
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
|
NETHERLANDS INITIAL GUARANTOR
|
WEATHERFORD NETHERLANDS B.V.
By:_____________________________________
Name:
Title:
|
NORWAY INITIAL GUARANTOR
|
WEATHERFORD NORGE AS
By:_____________________________________
Name:
Title:
|
PANAMA INITIAL GUARANTOR
|
WEATHERFORD SERVICES S. DE R.L.
By:_____________________________________
Name:
Title:
|
SWITZERLAND INITIAL GUARANTORS
|
WOFS INTERNATIONAL FINANCE GMBH
By:_____________________________________
Name:
Title:
WEATHERFORD WORLDWIDE HOLDINGS GMBH
By:_____________________________________
Name:
Title:
WEATHERFORD SWITZERLAND TRADING AND DEVELOPMENT GMBH
By:_____________________________________
Name:
Title:
WEATHERFORD MANAGEMENT COMPANY SWITZERLAND SÀRL
By:_____________________________________
Name:
Title:
WEATHERFORD PRODUCTS GMBH
By:_____________________________________
Name:
Title:
WEATHERFORD HOLDINGS (SWITZERLAND) GMBH
By:_____________________________________
Name:
Title:
|
UNITED STATES INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL, LLC
By:_____________________________________
Name:
Title:
WEUS HOLDING, LLC
By:_____________________________________
Name:
Title:
WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC
By:_____________________________________
Name:
Title:
PD HOLDINGS (USA), L.P.
By:_____________________________________
Name:
Title:
PRECISION ENERGY SERVICES, INC.
By:_____________________________________
Name:
Title:
WEATHERFORD U.S., L.P.
By:_____________________________________
Name:
Title:
WEATHERFORD/LAMB, INC.
By:_____________________________________
Name:
Title:
WEATHERFORD INVESTMENT INC.
By:_____________________________________
Name:
Title:
PRECISION OILFIELD SERVICES, LLP
By:_____________________________________
Name:
Title:
VISUAL SYSTEMS, INC.
By:_____________________________________
Name:
Title:
COLUMBIA OILFIELD SUPPLY, INC.
By:_____________________________________
Name:
Title:
EPRODUCTION SOLUTIONS, LLC
By:_____________________________________
Name:
Title:
ADVANTAGE R&D, INC.
By:_____________________________________
Name:
Title:
DISCOVERY LOGGING, INC.
By:_____________________________________
Name:
Title:
CASE SERVICES, INC.
By:_____________________________________
Name:
Title:
WARRIOR WELL SERVICES, INC.
By:_____________________________________
Name:
Title:
DATALOG ACQUISITION, LLC
By:_____________________________________
Name:
Title:
EDINBURGH PETROLEUM SERVICES AMERICAS INCORPORATED
By:_____________________________________
Name:
Title:
WEATHERFORD GLOBAL SERVICES LLC
By:_____________________________________
Name:
Title:
INTERNATIONAL LOGGING S.A., LLC
By:_____________________________________
Name:
Title:
IN-DEPTH SYSTEMS, INC.
By:_____________________________________
Name:
Title:
BENMORE IN-DEPTH CORP.
By:_____________________________________
Name:
Title:
WEATHERFORD TECHNOLOGY HOLDINGS, LLC
By:_____________________________________
Name:
Title:
STEALTH OIL & GAS, INC.
By:_____________________________________
Name:
Title:
WEATHERFORD MANAGEMENT, LLC
By:_____________________________________
Name:
Title:
WEATHERFORD (PTWI), L.L.C.
By:_____________________________________
Name:
Title:
WEATHERFORD LATIN AMERICA LLC
By:_____________________________________
Name:
Title:
WIHBV LLC
By:_____________________________________
Name:
Title:
WUS HOLDING, L.L.C.
By:_____________________________________
Name:
Title:
WEATHERFORD DISC INC.
By:_____________________________________
Name:
Title:
HIGH PRESSURE INTEGRITY, INC.
By:_____________________________________
Name:
Title:
TOOKE ROCKIES, INC.
By:_____________________________________
Name:
Title:
COLOMBIA PETROLEUM SERVICES CORP.
By:_____________________________________
Name:
Title:
INTERNATIONAL LOGGING LLC
By:_____________________________________
Name:
Title:
PRECISION DRILLING GP, LLC
By:_____________________________________
Name:
Title:
VISEAN INFORMATION SERVICES INC.
By:_____________________________________
Name:
Title:
WEATHERFORD URS HOLDINGS, LLC
By:_____________________________________
Name:
Title:
|
EXHIBIT A
Exhibit A – Joinder to Intercreditor Agreement
Exhibit A-1
JOINDER AGREEMENT
(LC Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), dated as of [___], is among [____], as a LC Collateral Agent (the “New Collateral Agent”), Wilmington Trust,
as Notes Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as
the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Collateral
Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as LC Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Collateral Agent as if it had originally been party to the Intercreditor Agreement as an
LC Collateral Agent.
SECTION 2.02 The
New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each
party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the LC Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as LC Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile
transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
Exhibit A-2
JOINDER AGREEMENT
(Notes Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Agreement”), dated as of [___], is among [_____], as a Notes Collateral Agent (the “New Collateral Agent”), Wilmington
Trust, as Notes Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as
the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Collateral
Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as Notes Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the Notes Collateral Agent as if it had originally been party to the Intercreditor Agreement as
a Notes Collateral Agent.
SECTION 2.02 The
New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each
party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the Notes Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________]
is acting in its capacity as Notes Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile
transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
EXHIBIT B
Exhibit B – Grantor Acknowledgement to Intercreditor Agreement
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
1. Acknowledgement.
[______________] (“New Grantor”) acknowledges, as of [___], that it has received a copy of the Intercreditor Agreement dated as of August 28, 2020, between Wilmington Trust, National Association, as Notes Collateral Agent, Deutsche
Bank Trust Company Americas as LC Collateral Agent, and Weatherford International PLC and certain of its affiliates party thereto as Grantors (the “Intercreditor Agreement”) as in effect on the date hereof, and consents thereto,
agrees to recognize all rights granted thereby to the Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent and the other LC Secured Parties, and agrees that it shall not do any act or perform any obligation which
is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof (as amended or otherwise modified in accordance with the provisions thereof, including any necessary consents by each Grantor
to the extent required thereby). New Grantor further acknowledges and agrees that (a) New Grantor is not a beneficiary or third party beneficiary of the Intercreditor Agreement, (b) New Grantor has no rights under the Intercreditor
Agreement, and New Grantor may not rely on the terms of the Intercreditor Agreement, and (c) that the obligations of the New Grantor under the Notes Security Documents, the LC Security Documents or the Foreign Collateral Documents will in
no way be diminished or otherwise affected by the provisions or arrangements in the Intercreditor Agreement.
2. Notices.
The address of the New Grantor and the other Grantors for purposes of Section 7.02 of the Intercreditor Agreement is:
[_____________]
[_____________]
[_____________]
with a copy to:
[_____________]
[_____________]
[_____________]
3. Counterparts.
This Acknowledgement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one document. Delivery of an executed signature page to this Acknowledgement
by facsimile transmission or by email as a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Acknowledgement.
4. Governing
Law. THIS ACKNOWLEDGEMENT AND ANY CLAIM CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INTERCREDITOR AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CONFLICT OF LAWS PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. Sections 7.08 and 7.09 of the Intercreditor Agreement are hereby incorporated by reference herein, mutatis mutandis.
5. Credit
Document. This Acknowledgement shall constitute a Notes Document and a LC Document and as a “Loan Document” under the LC Credit Agreement and an “Indenture Document” under the Notes Indenture.
6. Miscellaneous.
The Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent, the other LC Secured Parties, and the Foreign Collateral Agent are the intended beneficiaries of this Acknowledgement. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
[signature page follows]
EXHIBIT C
Exhibit C – Joinder Agreement (LC Australian Collateral Agent)
JOINDER AGREEMENT
(LC Australian Collateral Agent)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this
“Joinder”), dated as of [___], is provided by BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust (the “LC Australian Collateral Agent”).
This Joinder is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as the
same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among Wilmington Trust, DBTCA, the Parent and its
Subsidiaries party thereto. This Joinder has been entered into to record the joinder of BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust as LC Australian
Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized
terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The
LC Australian Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Australian Collateral Agent as if it had originally been party to the
Intercreditor Agreement as an LC Australian Collateral Agent.
SECTION 2.02 The
LC Australian Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This
Joinder and any claim, controversy or dispute arising under or related to such Joinder shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This
Joinder may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder by facsimile transmission
or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Joinder.
SECTION 3.03 Clause
[___] (Limitation of liability of LC Australian Collateral Agent) of the LC Australian Security Trust Deed is incorporated by reference in this Joinder as if set out in full herein, mutatis mutandis.
[Remainder of this page intentionally left blank; signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Joinder to be duly executed by their respective
authorized officers as of the day and year first above written.
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED (ABN 48 002 916 396) in its capacity as trustee of the LC Australian Security
Trust, as LC Australian Collateral Agent
By attorney:_______________________________
Name:
Title:
under power of attorney dated 1 September 2007 in the presence of:
Witness:___________________________________
Name:
Schedule I – Foreign Collateral Documents
|
|
Jurisdiction of Guarantor
|
Jurisdiction of Collateral
|
1
|
Amendment Agreement by Weatherford Oil Tool GmbH, Weatherford Technology Holdings, LLC, Weatherford/Lamb, Inc., Weatherford U.K. Limited, Weatherford Norge
AS, Weatherford Worldwide Holdings GmbH, Weatherford Holding GmbH
|
Germany,
US, England, Norway, Switzerland
|
Germany
|
2
|
Assignment Agreement in relation to receivables (trade receivables, intra group receivables) to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
3
|
German law governed inventory transfer agreement to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
4
|
Assignment Agreement in relation to IP Rights to be entered into by Weatherford Technology Holdings LLC, Weatherford / Lamb Inc., Weatherford UK Limited,
Weatherford Norge AS
|
US, England, Norway
|
Germany
|
5
|
Account Pledge Agreement to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
6
|
Share Pledge Agreement in relation to shares in Weatherford Central Europe GmbH to be entered into by Weatherford Worldwide Holdings GmbH
|
Switzerland
|
Germany
|
7
|
Share Pledge Agreement in relation to shares in Weatherford Oil Tool GmbH to be entered into by Weatherford Holding GmbH
|
Germany
|
Germany
|
9
|
Quota pledge agreement regarding quotas in Weatherford Worldwide Holdings GmbH, entered into by Weatherford Irish Holdings Limited, as amended on the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Ireland
|
Switzerland
|
10
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Management Company Switzerland Sàrl
|
Switzerland
|
Switzerland
|
11
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Products GmbH
|
Switzerland
|
Switzerland
|
12
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Switzerland Trading and Development GmbH
|
Switzerland
|
Switzerland
|
13
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Worldwide Holdings GmbH
|
Switzerland
|
Switzerland
|
14
|
Quota pledge agreement regarding quotas in Weatherford South America GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
15
|
Quota pledge agreement regarding quotas in Weatherford Products GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date hereof by
a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
16
|
Quota pledge agreement regarding quotas in Weatherford Switzerland Trading and Development GmbH, entered into by Weatherford Worldwide Holdings GmbH, as
amended as of the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
17
|
Quota pledge agreement regarding quotas in Weatherford Management Company Switzerland Sàrl, entered into by Weatherford Worldwide Holdings GmbH, as amended as
of the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
18
|
Quota pledge agreement regarding quotas in WOFS International Finance GmbH, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
19
|
Quota pledge agreement regarding quotas in Weatherford Holdings (Switzerland) GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the
date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
20
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by WOFS
International Finance GmbH
|
Switzerland
|
Switzerland
|
21
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Holdings (Switzerland) GmbH,
|
Switzerland
|
Switzerland
|
22
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
23
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Management Company Switzerland Sàrl, as amended as of
the date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
24
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Products GmbH, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
265
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Switzerland Trading and Development GmbH, as amended
as of the date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
26
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
27
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by WOFS International Finance GmbH, as amended as of the date hereof
by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
28
|
Pledge agreements regarding Rental Tools, to be entered into by Weatherford Products GmbH,
|
Switzerland
|
Switzerland
US
|
29
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford Technology Holdings, LLC, as amended as of the date hereof by a
confirmation and amendment agreement to pledge agreements
|
US
|
Switzerland
|
30
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Visual Systems, Inc., as amended as of the date hereof by a confirmation and
amendment agreement to pledge agreements
|
US
|
Switzerland
|
31
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford U.S., L.P., as amended as of the date hereof by a confirmation and
amendment agreement to pledge agreements
|
US
|
Switzerland
|
Exhibit C
INTERCREDITOR AGREEMENT
dated as of
August 28, 2020
among
DEUTSCHE BANK TRUST COMPANY AMERICAS
as LC Collateral Agent,
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Notes Collateral Agent,
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED
when joined hereto as LC Australian Collateral Agent,
WEATHERFORD INTERNATIONAL PLC,
and
The other Grantors Named Herein
TABLE OF CONTENTS
Page
ARTICLE I Definitions
|
2
|
SECTION 1.01
|
Construction; Certain Defined Terms
|
2
|
SECTION 1.02
|
Luxembourg Terms
|
13
|
ARTICLE II Priorities and Agreements with Respect to Collateral
|
14
|
SECTION 2.01
|
Priority of Claims
|
14
|
SECTION 2.02
|
Actions With Respect to Collateral; Prohibition on Contesting Liens
|
16
|
SECTION 2.03
|
No Duties of Senior Representative; Provision of Notice
|
17
|
SECTION 2.04
|
No Interference; Payment Over; Reinstatement
|
19
|
SECTION 2.05
|
Automatic Release of Junior Liens
|
20
|
SECTION 2.06
|
Certain Agreements With Respect to Insolvency or Liquidation Proceedings
|
21
|
SECTION 2.07
|
Reinstatement
|
28
|
SECTION 2.08
|
[Reserved]
|
28
|
SECTION 2.09
|
Insurance
|
28
|
SECTION 2.10
|
Refinancings
|
28
|
SECTION 2.11
|
Amendments to Security Documents
|
29
|
SECTION 2.12
|
Possessory Collateral Agent as Gratuitous Bailee for Perfection
|
30
|
SECTION 2.13
|
Control Agreements
|
31
|
SECTION 2.14
|
Rights under Permits and Licenses
|
31
|
ARTICLE III Existence and Amounts of Liens and Obligations
|
32
|
ARTICLE IV Consent of Grantors
|
32
|
ARTICLE V Representations and Warranties
|
32
|
SECTION 5.01
|
Representations and Warranties of Each Party
|
32
|
SECTION 5.02
|
Representations and Warranties of Each Representative
|
33
|
ARTICLE VI Collateral Agency for Foreign Collateral
|
33
|
SECTION 6.01
|
Appointment of Foreign Collateral Agent
|
33
|
SECTION 6.02
|
Rights as a Secured Party
|
34
|
SECTION 6.03
|
Exculpatory Provisions
|
34
|
SECTION 6.04
|
Reliance by the Foreign Collateral Agent
|
35
|
SECTION 6.05
|
Delegation of Duties
|
35
|
SECTION 6.06
|
Resignation of Foreign Collateral Agent
|
36
|
SECTION 6.07
|
Non-Reliance on Foreign Collateral Agent and Other Secured Parties
|
36
|
SECTION 6.08
|
Collateral Matters
|
37
|
SECTION 6.09
|
Discretionary Rights
|
37
|
SECTION 6.10
|
Indemnification of Foreign Collateral Agent
|
38
|
SECTION 6.11
|
Treatment of Proceeds of Foreign Collateral
|
39
|
SECTION 6.12
|
Currency Conversion
|
40
|
SECTION 6.13
|
Swiss Collateral
|
40
|
SECTION 6.14
|
Scottish Collateral
|
41
|
SECTION 6.15
|
Benefits of Foreign Collateral Agent
|
41
|
ARTICLE VII Miscellaneous
|
42
|
SECTION 7.01
|
Legends
|
42
|
SECTION 7.02
|
Notices
|
43
|
SECTION 7.03
|
Waivers; Amendment
|
44
|
SECTION 7.04
|
Parties in Interest
|
44
|
SECTION 7.05
|
Survival of Agreement
|
45
|
SECTION 7.06
|
Counterparts
|
45
|
SECTION 7.07
|
Severability
|
45
|
SECTION 7.08
|
Governing Law; Jurisdiction; Consent to Service of Process
|
45
|
SECTION 7.09
|
WAIVER OF JURY TRIAL
|
46
|
SECTION 7.10
|
Headings
|
46
|
SECTION 7.11
|
Conflicts
|
46
|
SECTION 7.12
|
Provisions Solely to Define Relative Rights
|
46
|
SECTION 7.13
|
Agent Capacities
|
46
|
SECTION 7.14
|
Supplements
|
47
|
SECTION 7.15
|
Collateral Agent Rights, Protections and Immunities
|
47
|
SECTION 7.16
|
Other Junior Intercreditor Agreements
|
47
|
SECTION 7.17
|
Additional Grantors
|
48
|
SECTION 7.18
|
Joinder of LC Australian Collateral Agent
|
48
|
SECTION 7.19
|
Purchase Right
|
48
|
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to
time, this “Agreement”), dated as of August 28, 2020, is among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian
Security Trust referred to herein (when joined to this Agreement, in such capacity, together with its successors in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for the LC Secured Parties
referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in substantially the same
capacity as may from time to time be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington
Trust”), as collateral agent for the Notes Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents, in substantially the same capacity as may from time to
time be appointed, the “Notes Collateral Agent”), the Parent (as defined below) and the other Subsidiaries of the Parent from time to time party hereto.
Weatherford International Ltd., a Bermuda exempted company limited by shares (“WIL-Bermuda” or “Notes Issuer”), Weatherford International plc, a public limited company incorporated in the Republic of
Ireland (“Parent”), certain other subsidiaries of Parent, Wilmington Trust, as trustee (in such capacity, together with its successors and co-trustees, as applicable, in
substantially the same capacity as may from time to time be appointed, the “Notes Trustee”) and the Notes Collateral Agent are party to the Notes Indenture, dated as of the date
hereof (the “Existing Notes Indenture”), providing for an initial aggregate principal amount of up to $500,000,000 of the Notes Issuer’s 8.75% Senior Secured First Lien Notes due
2024 (the “Notes”).
WIL-Bermuda and Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware”) (the “LC Borrowers”), the issuing lenders from time to time party thereto (the “Issuing Lenders”), the lenders from time to time party thereto (the “LC Lenders”) and the LC Collateral Agent are party to the Credit
Agreement, dated as of December 13, 2019 , pursuant to which the Issuing Lenders have agreed to issue, and the LC Lenders have agreed to purchase participations in, letters of credit (as amended by the Amendment No. 1 thereoto, dated as
of the date hereof, the “Existing LC Credit Agreement”).
This Agreement governs the relationship between the LC Secured Parties as a group, on the one hand,
and the Notes Secured Parties, on the other hand, with respect to the Collateral shared by the LC Secured Parties and the Notes Secured Parties. In addition, it is understood and agreed that not all of the Secured Parties may have
security interests in all of the Collateral and nothing in this Agreement is intended to give rights to any Person in any Collateral in which such Person (or their Representative or Collateral Agent) does not otherwise have a security
interest under their respective security documents.
In consideration of the mutual agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) The definitions of terms 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 to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time
to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless
express reference is made to such subsidiaries, (iii) 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,
(iv) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles, Sections and Exhibits of this Agreement, (v) unless otherwise expressly qualified herein, 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 and (vi) the term “or” is not exclusive.
(b) As used in this Agreement, the following terms have the meanings specified below:
“Agreement” has the meaning set forth in
the recitals.
“Applicable Junior Collateral Agent”
means (a) with respect to the LC Priority Collateral, the Notes Collateral Agent, and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Applicable Possessory Collateral Agent”
means (a) with respect to Notes Priority Possessory Collateral, the Notes Collateral Agent, (b) with respect to LC Priority Possessory Collateral, the LC Collateral Agent, and (c) notwithstanding the foregoing, with respect to Foreign
Collateral, the Foreign Collateral Agent.
“Applicable Senior Collateral Agent”
means (a) with respect to the Notes Priority Collateral, the Notes Collateral Agent, and (b) with respect to the LC Priority Collateral, the LC Collateral Agent.
“Bank Product Obligations” means all
“Banking Services Obligations” and all “Swap Obligations” as defined in the LC Credit Agreement (other than “Excluded Swap Obligations” as defined in the LC Credit Agreement).
“Bankruptcy Case” has the meaning set
forth in Section 2.06(b).
“Bankruptcy Code” means Title 11 of the
United States Code, as amended.
“Business Day” means any day that is not
a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or on which banking institutions in the State of New York are required or authorized by law or other governmental action to close.
“Capital Stock” means, with respect to
any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents (however designated) of such Person’s equity, including all common stock and preferred stock, common shares and
preference shares, any limited or general partnership interests and any limited liability company membership interests.
“Class” has the meaning set forth in the
definition of Senior Secured Obligations.
“Collateral” means all assets and
properties subject to (or purportedly subject to) Liens in favor of any Secured Party created by any of the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, as applicable, to secure the Notes
Obligations or the LC Obligations, as applicable.
“Collateral Agent” means the Foreign
Collateral Agent, the Notes Collateral Agent, the LC Collateral Agent, or any of the foregoing, as the context may require.
“Comparable Junior Priority Collateral Document”
means, in relation to any Senior Secured Obligations Collateral subject to any Lien created (or purportedly created) under any Senior Secured Obligations Collateral Document, those Junior Secured Obligations Collateral Documents that
create (or purport to create) a Lien on the same Collateral, granted by the same Grantor.
“Controlling Party” means (i) for
decisions relating to Foreign Collateral that is Notes Priority Collateral, the Notes Collateral Agent and; (ii) for decisions relating to Foreign Collateral that is LC Priority Collateral, the LC Collateral Agent (and in the case of the
LC Australian Collateral Agent, acting for, and with any decisions relating to LC Australian Collateral made by, the LC Administrative Agent).
“Debtor Relief Laws” means the Bankruptcy
Code, the United Kingdom’s Insolvency Act 1986, the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast), as amended, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), Dutch Bankruptcy Act (faillissementswet), the Winding-Up and Restructuring Act (Canada), the German Insolvency Code (Insolvenzordnung), Swiss
Federal Debt Collection and Bankruptcy Act (Bundesgesetz über Schuldbetreibung und Konkurs), Part XIII of the Bermuda Companies Act 1981, the Luxembourg Commercial Code and the Luxembourg Act dated
10 August 1915 on Commercial Companies, the Insolvency Act 2003 of the British Virgin Islands and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, examinership reorganization or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect, in each case as amended, including any corporate law of any jurisdiction
which may be used by a debtor to obtain a stay or a compromise, settlement, adjustment or arrangement of the claims of its creditors against it and including any rules and
regulations pursuant thereto (but, in each case, shall exclude any part of such laws, rules or regulations which relate
solely to any solvent reorganization or solvent restructuring process).
“Default Disposition” means any private
or public sale or disposition of all or any material portion of the Senior Secured Obligations Collateral (including Foreign Collateral) by one or more Grantors with the consent of Senior Collateral Agent or Foreign Collateral Agent (as
instructed by the Controlling Party), as applicable, after the occurrence and during the continuation of an Event of Default under the Senior Secured Obligations Security Documents or the Notes Indenture or LC Credit Agreement, as
applicable (and prior to the Discharge of the Senior Secured Obligations), including any disposition contemplated by Section 9-620 of the UCC, which disposition is conducted by such Grantors with the consent of Senior Collateral Agent or
Foreign Collateral Agent (as instructed by the Controlling Party) in connection with good faith efforts by Senior Collateral Agent or Foreign Collateral Agent (as instructed by the Controlling Party) to collect the Senior Secured
Obligations through the disposition of Senior Secured Obligations Collateral (including any Foreign Collateral).
“DIP Financing” has the meaning set forth
in Section 2.06(b).
“DIP Financing Liens” has the meaning set
forth in Section 2.06(b).
“DIP Lenders” has the meaning set forth
in Section 2.06(b).
“Discharge” means, with respect to any
Obligations, except to the extent otherwise provided herein with respect to the reinstatement or continuation of any such Obligations, the payment in full in cash (except for contingent indemnities and cost and reimbursement obligations
to the extent no claim has been threatened (in writing) or asserted) of all such Obligations then outstanding, if any, and, with respect to (x) letters of credit or letter of credit guaranties outstanding under the agreements or
instruments governing such Obligations (as related to all or any subset of Obligations, the “Relevant Instruments”); (y) Bank Product Obligations; and (z) asserted or threatened
(in writing) claims, demands, actions, suits, investigations, liabilities, fines, costs, or damages for which a party may be entitled to indemnification or reimbursement by any Grantor, delivery of cash collateral or backstop letters of
credit in respect thereof in a manner consistent with such Relevant Instruments, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of “secured
parties” under the Relevant Instruments (including, in any event, all such interest, fees, costs, expenses and other charges regardless of whether such amounts are allowed, allowable or reasonable in any Insolvency or Liquidation
Proceeding, whether under Section 506 of the Bankruptcy Code of otherwise); provided that (i) the Discharge of Notes Obligations shall not be deemed to have occurred if such payments are made with the proceeds of Notes Obligations
that constitute an exchange or replacement for or a refinancing of Notes Obligations and (ii) the Discharge of LC Obligations shall not be deemed to have occurred if such payments are made with the proceeds of LC Obligations that
constitute an exchange or replacement for or a refinancing of such Obligations or LC Obligations. In the event any Obligations are modified and such Obligations are paid over time or otherwise modified, in each case, pursuant to Section
1129 of the Bankruptcy Code or similar Debtor Relief Law, such Obligations shall be deemed to be discharged only when the final payment is made, in cash, in respect of such indebtedness and any
obligations pursuant to such new or modified indebtedness shall have been satisfied. The term “Discharged” shall have a corresponding meaning.
“European Insolvency Regulation” means
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)
“Event of Default” means an “Event of
Default” under and as defined in the Notes Indenture or the LC Credit Agreement, as the context may require.
“Foreign Collateral” has the meaning set
forth in Section 2.01(d).
“Foreign Collateral Agent” means either
the LC Collateral Agent or the Notes Collateral Agent with respect to Foreign Collateral as set forth in Section 6.01(i) and (ii), and their respective successors or assigns (as appointed in accordance with Article VI hereof).
“Foreign Collateral Documents” means the
documents listed on Schedule I attached hereto and any other documents creating (or purporting to create) a Lien on any Foreign Collateral in favor of the Secured Parties and/or the Foreign Collateral Agent/Preceding Foreign Collateral
Agent acting in their respective capacities and all documents delivered therewith.
“Grantor” means Parent and each
Subsidiary of Parent that shall have granted any Lien in favor of any Collateral Agent on any of its assets or properties to secure any of the Obligations.
“Insolvency or Liquidation Proceeding”
means (a) any case or proceeding commenced by or against the Parent or any other Grantor under the Bankruptcy Code or other Debtor Relief Laws or any other process or proceeding for the reorganization, recapitalization, restructuring,
adjustment, arrangement or marshalling of the assets or liabilities of the Parent or any other Grantor or any receivership or assignment for the benefit of creditors relating to the Parent or any other Grantor or relating to all or a
substantial part of the property or assets of the Parent or any other Grantor or any similar case or proceeding relative to the Parent or any other Grantor, or their respective property or their respective creditors, as such, in each case
whether or not voluntary; (b) any process or proceeding for the appointment of any trustee in bankruptcy, receiver, receiver and manager, interim receiver, administrator, liquidator, monitor, custodian, sequestrator, examiner, conservator
or any similar official appointed for or relating to the Parent or any other Grantor or all or a substantial portion of their respective property and assets, in each case whether or not voluntary; (c) any liquidation, dissolution,
examinership, marshalling of assets or liabilities or other winding up (or similar process) of or relating to the Parent or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(d) any other proceeding of any type or nature in which substantially all claims of creditors of the Parent or any other Grantor, or of a class of creditors of the Parent or any other Grantor, are stayed, compromised, restructured or
determined and any payment, distribution, restructuring or arrangement is or may be made on account of or in relation to such claims.
“Junior Claims” means (a) with respect to
the Notes Priority Collateral, the LC Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the Notes Obligations secured by such Collateral.
“Junior Collateral Agent” means (a) with
respect to the LC Priority Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Representative” means (a) with
respect to the LC Priority Collateral, the Notes Collateral Agent and (b) with respect to the Notes Priority Collateral, the LC Collateral Agent.
“Junior Secured Obligations” means (a)
with respect to the Notes Obligations (to the extent such Obligations are secured by the Notes Priority Collateral), the LC Obligations (to the extent such Obligations are secured by the Notes Priority Collateral) and (b) with respect to
the LC Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral).
“Junior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Junior Claims.
“Junior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the Notes Security Documents and (b) with respect to the Notes Obligations, the LC Security Documents.
“Junior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the Notes Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority
Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the Notes Priority Collateral).
“LC Administrative Agent” means the
Administrative Agent under, and as defined in, the LC Credit Agreement together with its successors and co-agents in substantially the same capacity as may from time to time be appointed.
“LC Australian Collateral Agent” has the
meaning set forth in the recitals.
“LC Australian Security Documents” means
the LC Australian Security Trust Deed and each other Australian law governed document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC Obligations in favor of
the LC Australian Collateral Agent.
“LC Australian Security Trust” means the
“Security Trust” under and as defined in the LC Australian Security Trust Deed.
“LC Australian Security Trust Deed” means
the Security Trust Deed to be entered into among the Borrowers, the LC Administrative Agent, the LC Lenders and the LC Australian Collateral Agent.
“LC Collateral Agent” has the meaning set
forth in the recitals.
“LC Credit Agreement” means the Existing LC Credit Agreement, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise),
restructured, repaid, refunded, Refinanced or otherwise modified from time to time after the date hereof, including any agreement or indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any
portion of the indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering
the maturity thereof (except to the extent any such refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “LC Credit Agreement”).
“LC Documents” means the LC Credit
Agreement, the LC Security Agreement, the LC Mortgages, the LC Australian Security Documents and the other “Loan Documents” as defined in the LC Credit Agreement.
“LC Facility Guarantee” means any
guarantee of the Obligations of the Parent under the LC Credit Agreement by any Person in accordance with the provisions of the LC Credit Agreement.
“LC Facility Guarantor” means any Person
that incurs a LC Facility Guarantee; provided that, upon the release or discharge of such Person from its LC Facility Guarantee in accordance with the LC Credit Agreement, such Person ceases to be a LC Facility Guarantor.
“LC Facility Secured Parties” means the “Secured Parties” as defined in the LC Credit Agreement.
“LC Lenders” has the meaning set forth in
the recitals.
“LC Mortgages” means all “Mortgages” as
defined in the LC Credit Agreement.
“LC Obligations” means all “Secured
Obligations” (as such term is defined in the LC Credit Agreement) of the LC Borrowers and other obligors under the LC Credit Agreement or any of the other LC Documents, including obligations to pay principal, premiums, if any, and
interest, attorneys’ fees, fees, costs, charges, expenses, Letters of Credit (as defined in the LC Credit Agreement) and commissions, (and, with regard to all such items, including any interest accruing after the commencement of any
Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the LC Documents and the performance of all
other Obligations of the obligors thereunder under the LC Documents, according to the respective terms thereof.
“LC Priority Collateral” means all
Collateral (other than Notes Priority Collateral) now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of
any other Debtor Relief Law), would constitute LC Priority Collateral) by any Grantor consisting of (a) all assets securing the LC Obligations on the date hereof immediately prior to giving effect to Amendment No. 1, dated as of August
28, 2020, (b) all assets of Grantors organized in the LC Priority Jurisdictions, and (c) all assets required to be subject of the Lien securing the LC
Obligations pursuant to the LC Credit Agreement and (d) all products and proceeds of any and all of the foregoing.
“LC Priority Jurisdictions” means the
Specified Jurisdictions as defined in the LC Credit Agreement other than the Notes Priority Jurisdictions. .
“LC Priority Possessory Collateral” means
LC Priority Collateral that is Possessory Collateral.
“LC Secured Parties” means the (a) the LC Collateral Agent (including for avoidance of doubt the LC Australian Collateral Agent), and (b) the LC Facility Secured Parties.
“LC Security Agreement” means the U.S.
Security Agreement, as amended by the Amendment No. 1 to U.S. Security Agreement, dated as of the Amendment No. 1 Effective Date (as such term is defined in the LC Credit Agreement), by and among the Parent, LC Borrowers, each other
pledgor party thereto and the LC Collateral Agent, as amended, amended and restated, supplemented or modified from time to time.
“LC Security Documents” means the LC
Security Agreement, the LC Mortgages, the LC Australian Security Documents and any other documents now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any LC
Obligations.
“Lien” means any lien, mortgage, deed of
trust, pledge, hypothecation, security interest, charge or encumbrance of any kind, including any conditional sale or other title retention agreement or any lease in the nature thereof or a ‘security interest’ (as defined in section 12
(1) and (2) of the Personal Property Securities Act 2009 (Cth)) (whether voluntary or involuntary and whether imposed or created by operation of law or otherwise).
“Luxembourg Obligors” means any Grantor
organized under the laws of the Grand Duchy of Luxembourg.
“Memorandum” has the meaning set forth in
Section 2.02(e).
“Mortgages” means the Notes Mortgages and
the LC Mortgages.
“New York UCC” means the Uniform
Commercial Code as from time to time in effect in the State of New York.
“Notes Collateral Agent” has the meaning
set forth in the recitals.
“Notes Documents” means the Notes
Indenture, the Notes Security Documents and the other “Notes Documents” as defined in the Notes Indenture.
“Notes Indenture” means the Existing
Notes Indenture, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the initial purchasers or otherwise), restructured, repaid, refunded, Refinanced or otherwise modified from time to
time after the date hereof, in accordance with the terms hereof, including any agreement or
indenture extending the maturity thereof, Refinancing, replacing or otherwise restructuring all or any portion of the
indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity
thereof (except to the extent any such Refinancing, replacement or restructuring is designated by the Parent not to be included in the definition of “Notes Indenture”).
“Notes Issuer” has the meaning set forth
in the recitals.
“Notes Mortgages” means all “Mortgages”
as defined in the Notes Indenture.
“Notes Obligations” means all “Indenture
Obligations” (as such term is defined in the Notes Indenture) of the Notes Parties (as defined in the Notes Indenture) under the Notes Indenture or any of the other Notes Documents, including obligations to pay principal, premiums, if
any, interest, attorneys fees, fees, costs, charges, expenses, commissions, fees and charges (and, with regard to all such items, including any interest accruing after the commencement of any Insolvency or Liquidation Proceeding,
regardless of whether allowed or allowable in such proceeding) when due and payable, and all other amounts due or to become due under or in connection with the Notes Documents and the performance of all other Obligations of the obligors
thereunder to the holders, the Notes Trustee, the Notes Collateral Agent, any other trustees and agents under the Notes Documents according to the respective terms thereof.
“Notes Priority Collateral” means all
Collateral now owned or at any time hereafter acquired (including, for the avoidance of doubt, any such assets that, but for the application of Section 552 of the Bankruptcy Code (or any provision of any other Debtor Relief Law), would
constitute Notes Priority Collateral) by (i) any Grantor (x) formed in Notes Priority Jurisdictions or (y) consisting of Capital Stock of Subsidiaries that are formed or located in the Cayman Islands, China, Cyprus, Qatar, Romania, Russia
or the United Arab Emirates, other than to the extent such Subsidiary is a direct or indirect owner of a majority of Capital Stock in an LC Facility Guarantor or such Subsidiary becomes an LC Facility Guarantor as contemplated under the
LC Credit Agreement as in effect on the date hereof, and (ii) all products and proceeds of any the foregoing; provided that, for the avoidance of doubt, in no event shall Notes Priority Collateral include (x) any assets securing the LC
Obligations on the date hereof immediately prior to giving effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020 and (y) any assets required to be subject of the Lien securing the LC Obligations pursuant to the
LC Credit Agreement on the date hereof immediately prior to giving effect to Amendment No. 1 to the LC Credit Agreement dated as of August 28, 2020.
“Notes Priority Jurisdictions” means Mexico, Brazil and any other jurisdictions agreed upon by the Required Lenders under, and as defined in, the LC Credit Agreement.
“Notes Priority Possessory Collateral” means Notes Priority Collateral that is Possessory Collateral.
“Notes Secured Parties” means the
“Secured Parties” as defined in the Notes Indenture.
“Notes Security Agreement” means the Security Agreement (as such term in defined in the Notes Indenture), dated as of the date hereof, by and among WIL-Bermuda and the Notes Collateral Agent, as amended, amended and restated,
supplemented or modified from time to time.
“Notes Security Documents” means the
Notes Security Agreement, the Notes Mortgages and any other documents now existing or entered into after the date hereof that create or purport to create Liens on any assets or properties of any Grantor to secure any Notes Obligations.
“Notes Trustee” has the meaning set forth
in the recitals.
“Obligations” means the Notes Obligations
and the LC Obligations.
“Parent” has the meaning set forth in the
recitals.
“Permitted Discretion” means a
determination made in the exercise of good faith and reasonable credit judgment (from the perspective of a secured lender).
“Permitted Remedies” means, with respect
to any Junior Secured Obligations:
(a) filing a proof of claim or statement of interest with respect to such Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
(b) taking any action (not adverse to the Liens securing Senior Secured Obligations, the priority status thereof, or the rights of the Applicable Senior Collateral Agent or any of the Senior Secured Obligations Secured Parties to
exercise rights, powers and/or remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any of the Collateral;
(c) filing any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior
Secured Obligations Secured Parties, including any claims secured by the Junior Secured Obligations Collateral, in each case in accordance with the terms of this Agreement;
(d) filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy
law, in each case in accordance with the terms of this Agreement or applicable law (including the bankruptcy laws of any applicable jurisdiction);
(e) join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial lien enforcement proceeding with respect to the Senior Secured Obligations Collateral of the Senior Collateral Agent
initiated by such Senior Collateral Agent to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement
action by such Senior Collateral Agent (it being understood that neither the Junior Collateral Agent nor any Junior
Secured Obligations Secured Parties shall be entitled to receive any proceeds from the Senior Secured Obligations Collateral unless otherwise expressly permitted herein);
(f) subject to Section 2.04(a)(iii), inspect, appraise or value the Collateral (and to engage or retain investment bankers or appraisers for the purposes of appraising or valuing the Collateral) or to receive information or
reports concerning the Collateral, in each case pursuant to the terms of the Notes Documents or LC Documents, as applicable, or applicable law;
(g) subject to Section 2.04(a)(iii), take any action to seek and obtain specific performance or injunctive relief to compel a Grantor to comply with (or not to violate or breach) an obligation under the Notes Documents or LC
Documents, as applicable; provided that such action does not include any action by a Junior Secured Obligations Secured Party to seek specific performance or injunctive relief against any Senior Secured Obligations Secured Party
or the sale or disposition of any such Senior Secured Obligations Secured Party’s Senior Secured Obligations Collateral in contravention of the other provisions of this Agreement;
(h) make a cash or, if allowed pursuant to applicable law, credit bid for Collateral at any public or private sale thereof, provided that (i) such Secured Party does not challenge the bid of any Senior Secured Obligations
Secured Party for its Senior Secured Obligations Collateral or otherwise bid for any Senior Secured Obligations Collateral other than by a bid that provides for the Discharge of the Senior Secured Obligations, and (ii) each Senior
Secured Obligations Secured Party may, subject to the terms of its Senior Secured Obligations Collateral Documents, offset its Senior Secured Obligations against the purchase price for the Senior Secured Obligations Collateral; and
(i) in any Insolvency or Liquidation Proceeding, (i) voting on any Plan of Reorganization to the extent not otherwise prohibited by the terms hereof, (ii) filing any proof of claim and (iii) making other filings and motions and
making any arguments in connection therewith (including in support of or opposition to, as applicable, the confirmation or approval of any Plan of Reorganization) that comply with the terms of this Agreement.
“Person” means any natural person,
corporation, business trust, joint venture, association, company, partnership, limited liability partnership, limited liability company or government, individual or family trusts or any agency or political subdivision thereof.
“Plan of Reorganization” means any plan of reorganization, scheme of arrangement, plan of arrangement or compromise, proposal, plan of liquidation, agreement for composition or other type of plan, proposal
or arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.
“Possessory Collateral” means the
Collateral in the possession or control of any Collateral Agent (or its agents or bailees), to the extent that possession or control thereof (a) perfects a Lien thereon under the Uniform Commercial Code or (b) provides a substantially
similar legal effects as “perfection” under the Uniform Commercial Code under other applicable legislation of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes,
Instruments and Chattel Paper, in each case, delivered to or in the
possession of any Collateral Agent under the terms of the Notes Security Documents or the LC Security Documents. All
capitalized terms used in this definition and not defined elsewhere in this Agreement have the meanings assigned to them in the New York UCC.
“Possessory Collateral Agent” means, with
respect to any Possessory Collateral, the Collateral Agent having possession or control (including through its agents or bailees) of same.
“Preceding Foreign Collateral Agent”
means Wells Fargo Bank, National Association.
“Proceeds” has the meaning set forth in
Section 2.01(a).
“Purchase Option Event” has the meaning
set forth in Section 7.19(a).
“Purchase Price” has the meaning set
forth in Section 7.19(b).
“Real Estate Asset” means, at any time of
determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property that does not constitute Excluded Assets (as defined in the LC Credit Agreement).
“Refinance” means to amend, restate,
supplement, waive, replace (whether or not upon termination, and whether with the original parties or otherwise), restructure, repay, refund, refinance or otherwise modify from time to time (including by means of any agreement or
indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the obligations under such agreement or agreements or indentures or any successor or replacement agreement or agreements or
indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof). “Refinanced” and “Refinancing”
shall have correlative meanings; provided that that any of the foregoing that increases the principal amount of Senior Claims with respect to any Collateral shall be effective for purposes hereof only if such increase does not
contravene the documents pursuant to which any Junior Claims with respect to such Collateral have been incurred, all as in effect on the date hereof or as may be amended in accordance with the terms hereof.
“Related Parties” means, with respect to
any Person, such Person’s affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.
“Representative” means (a) in the case of
any Notes Obligations, the Notes Collateral Agent and (b) in the case of any LC Obligations, the LC Collateral Agent.
“Secured Parties” means (a) the Notes
Secured Parties and (b) the LC Secured Parties.
“Senior Claims” means (a) with respect to
the Notes Priority Collateral, the Notes Obligations secured by such Collateral and (b) with respect to the LC Priority Collateral, the LC Obligations secured by such Collateral.
“Senior
Collateral Agent” means (a) with respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Representative” means (a) with
respect to the LC Priority Collateral, the LC Collateral Agent and (b) with respect to the Notes Priority Collateral, the Notes Collateral Agent.
“Senior Secured Obligations” means (a)
with respect to the Notes Obligations (to the extent such Obligations are secured by the LC Priority Collateral), the LC Obligations, and (b) with respect to the LC Obligations (to the extent such Obligations are secured by the Notes
Priority Collateral), the Notes Obligations; the LC Obligations shall, collectively, constitute one “Class” of Senior Secured Obligations and the Notes Obligations shall
constitute a separate “Class” of Senior Secured Obligations.
“Senior Secured Obligations Collateral”
means, with respect to any Obligations, the Collateral in respect of which such Obligations constitute Senior Claims. For the avoidance of doubt, notwithstanding the Foreign Collateral Agent holding any Liens on Foreign Collateral for the
benefit of the Secured Parties, subject to Article VI, Foreign Collateral shall not be treated differently from other Collateral when determining whether such Collateral or its proceeds are Senior Secured Obligations Collateral.
“Senior Secured Obligations Collateral Documents”
means (a) with respect to the LC Obligations, the LC Security Documents and (b) with respect to the Notes Obligations, the Notes Security Documents.
“Senior Secured Obligations Secured Parties”
means (a) with respect to the LC Priority Collateral, the LC Secured Parties (to the extent that the Obligations owing to such LC Secured Parties are secured by the LC Priority Collateral) and (b) with respect to the Notes Priority
Collateral, the Notes Secured Parties (to the extent that the Obligations owing to such Notes Secured Parties are secured by the Notes Priority Collateral).
“Subsidiary” of a person means (a) a
company or corporation, a majority of whose voting stock is at the time, directly or indirectly, owned by such person, by one or more subsidiaries of such person or by such person and one or more subsidiaries of such person, (b) a
partnership in which such person or one or more subsidiaries of such person is, at the date of determination, a general partner or (c) any other person (other than a corporation or partnership) in which such person, directly or
indirectly, at the date of determination thereof, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such person.
“Taxes” means taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any taxing authority, and all interest, penalties or similar liabilities with respect thereto.
SECTION 1.02 Luxembourg Terms. In this Agreement, in respect of any Luxembourg Obligor or any other entity which is organized under the laws of the Grand-Duchy
of Luxembourg or has its “centre of main interests” (as that term is used in Article 3(1) of the European Insolvency
Regulation in Luxembourg, a reference to:
(a) a “liquidator”, “trustee”, “custodian”, “compulsory manager”, “receiver”, “administrative receiver”, “administrator” or “similar officer” includes any:
(i) juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code;
(ii) liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg act dated 10 August 1915 on commercial companies, as amended;
(iii) juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg act dated 10 August 1915 on
commercial companies, as amended;
(iv) commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg
Commercial Code; and
(v) juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; and
(b) a “winding-up”, “administration”, “liquidation” or “dissolution”
includes, without limitation, bankruptcy (faillite), liquidation, composition with creditors (concordat préventif de faillite), moratorium or reprieve
from payment (sursis de paiement) and controlled management (gestion contrôlée).
(c) an officer, a manager or a director includes a manager (gérant) and a director (administrateur).
ARTICLE II
Priorities and Agreements with Respect to Collateral
SECTION 2.01 Priority of Claims. (a) Anything contained herein or in any of the Notes Documents or the LC Documents to the contrary notwithstanding, if an Event of
Default has occurred and is continuing, and any Collateral Agent is taking action to enforce rights in respect of any Collateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect
of any Collateral in any Insolvency or Liquidation Proceeding with respect to any Grantor, the Proceeds (subject, in the case of any such distribution, to Section 2.06 hereof) (all proceeds of any sale, collection or other liquidation
of any Collateral and all proceeds of any such distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to as “Proceeds”)
shall be applied as follows:
(i) In the case of LC Priority Collateral,
FIRST, to the payment in full of the LC Obligations (including the cash collateralization thereof) in
accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents, and
SECOND, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes
Indenture and the other applicable provisions of the Notes Documents.
If any Notes Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds
of the LC Priority Collateral will be applied to the repayment of any outstanding Notes Obligations.
(ii) In the case of Notes Priority Collateral,
FIRST, to the payment in full of the Notes Obligations in accordance with Section 506 of the Notes
Indenture and the other applicable provisions of the Notes Documents, and
SECOND, to the payment in full of the LC Obligations (including the cash collateralization thereof)
in accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents.
If any LC Obligations remain outstanding after the Discharge of the Notes Obligations, all proceeds
of the Notes Priority Collateral will be applied to the repayment (including the cash collateralization thereof) of any outstanding LC Obligations.
(b) It is acknowledged that (i) the aggregate amount of any Senior Secured Obligations may, subject to the limitations set forth in the Notes Indenture and the LC Credit Agreement, both as in effect on the date hereof, be Refinanced
from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the Notes Secured Parties and the LC Secured Parties and (ii) the Senior Secured
Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities
provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any Collateral
or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the Notes Obligations granted on the
Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the Notes Documents or the LC Documents, or any defect or deficiencies in or
failure to perfect any such Liens or any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on
the LC Priority Collateral securing the Notes Obligations and (2) the Liens on the Notes Priority Collateral securing
the Notes Obligations will rank senior to any Liens on the Notes Priority Collateral securing the LC Obligations.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or Notes Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the
United States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary
to the contemplated ranking as set forth in this Agreement or (C) not have been granted to Notes Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the
ranking set forth in Section 2.1, and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
SECTION 2.02 Actions With Respect to Collateral; Prohibition on Contesting Liens.
(a) Until the Discharge of all of the Senior Secured Obligations of a particular Class, (i) only the Applicable Senior Collateral Agent shall act or refrain from acting with respect to the Senior Secured Obligations Collateral of
such Class, (ii) no Collateral Agent shall follow any instructions with respect to such Senior Secured Obligations Collateral from any Junior Representative or from any Junior Secured Obligations Secured Parties and (iii) each Junior
Representative and the Junior Secured Obligations Secured Parties shall not, and shall not instruct any Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver,
receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect
to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Junior Secured Obligations Collateral, whether under any Notes Security Document or any LC Security
Document, as applicable, applicable law or otherwise, it being agreed that (A) only the Applicable Senior Collateral Agent, acting in accordance with the Notes Security Documents or the LC Security Documents, as applicable, shall be
entitled to take any such actions or exercise any such remedies, or to cause any Collateral Agent to do so and (B) notwithstanding the foregoing, each Junior Representative may take Permitted Remedies. Each Senior Collateral Agent may
deal with the Senior Secured Obligations Collateral as if they had a senior Lien on such Collateral. No Junior Collateral Agent, Junior Representative or Junior Secured Obligations Secured Party will contest, protest or object to any
foreclosure proceeding or action brought by any Senior Collateral Agent, Senior Representative or Senior Secured Obligations Secured Party or any other exercise by such Senior Collateral Agent, Senior Representative or Senior Secured
Obligations Secured Party of any rights and remedies relating to the Senior Secured Obligations Collateral.
(b) Each of the Junior Collateral Agent and the Junior Secured Obligations Secured Parties agrees that it will not (and hereby waives any right to) directly or indirectly contest or support any other Person in contesting, in any
proceeding (including any Insolvency or Liquidation Proceeding), the creation, extent, attachment, perfection, priority, validity or
enforceability of a Lien or Senior Secured Obligations held by or on behalf of any of the Senior Secured Obligations
Secured Parties in all or any part of the Collateral or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents or the Secured
Parties to enforce this Agreement.
(c) (i) Only the Foreign Collateral Agent shall act or refrain from acting with respect to the Foreign Collateral, (ii) Foreign Collateral Agent shall not follow any instructions with respect to Foreign Collateral except from the
Controlling Party (in accordance with Article VI) and (iii) other than the Controlling Parties, no Secured Party will, or will instruct Foreign Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with
respect to, seek to have a trustee, receiver, receiver and manager, interim receiver, agent, liquidator, administrator, custodian or similar official, person or agent appointed for or over, attempt any action to take possession of,
exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Foreign Collateral, whether under any Notes
Security Document or any LC Security Document, applicable law or otherwise, it being agreed that (A) only the Foreign Collateral Agent, acting in accordance with the Foreign Collateral Documents and the terms of Article VI, shall be
entitled to take any such actions or exercise any such remedies and (B) notwithstanding the foregoing, each Representative may take Permitted Remedies with regard to the Foreign Collateral. No Secured Party will contest, protest or
object to any foreclosure or other proceeding or action brought by Foreign Collateral Agent acting upon instructions of a Controlling Party, and the Controlling Parties may make such instructions as if they had a senior Lien on such
Foreign Collateral.
(d) (i) With respect to any payments or distributions in cash, property or other assets that any Junior Secured Obligations Secured Party pays over to any Senior Secured Obligations Secured Party under the terms of this Agreement,
such Junior Secured Obligations Secured Party shall be subrogated to the rights of the Senior Secured Party Obligations Secured Party and (ii) any Secured Party may assert its rights of subrogation under applicable law resulting from
any draw or other payment under any letter of credit issued under or secured by the Notes Documents or LC Documents, as applicable; provided, that (x) the LC Facility Secured Parties shall not assert or enforce any such rights
of subrogation they may acquire as described in clauses (i) or (ii) above with respect to the Notes Documents or Notes Priority Collateral until the Discharge of all Notes Obligations has occurred and (y) the Notes Secured Parties shall
not assert or enforce any such rights of subrogation they may acquire as described in clauses (i) or (ii) above with respect to the LC Documents or LC Priority Collateral until the Discharge of all LC Obligations has occurred.
(e) The parties hereto agree to execute, acknowledge and deliver a Memorandum of Intercreditor Agreement (“Memorandum”), together with such other documents in furtherance
hereof or thereof, in each case, in proper form for recording in connection with any Mortgages and in form and substance reasonably satisfactory to the Collateral Agents, in those jurisdictions where such recording is
reasonably recommended or requested by local real estate counsel and/or the title insurance company, or as otherwise deemed reasonably necessary or proper by the parties hereto.
SECTION 2.03 No Duties of Senior Representative; Provision of Notice.
(a) Each Junior Secured Obligations Secured Party acknowledges and agrees that none of the Senior Collateral Agents, the Senior Representative nor any other Senior Secured Obligations Secured Party shall have any duties
or other obligations to such Junior Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, other than to transfer to the Applicable Junior Collateral Agent any proceeds of any such Senior Secured
Obligations Collateral remaining in its possession or under its control following any sale, transfer or other disposition of such Collateral (in each case, unless the Junior Secured Obligations have been Discharged prior to or
concurrently with such sale, transfer, disposition, payment or satisfaction) and the Discharge of the Senior Secured Obligations secured thereby, or if a Senior Collateral Agent shall be in possession or control of all or any part of
such Collateral after such payment and satisfaction in full and termination, such Collateral or any part thereof remaining, in each case without representation or warranty on the part of any Senior Collateral Agent, any Senior
Representative or any Senior Secured Obligations Secured Party and at the sole cost and expense of the Grantors. In furtherance of the foregoing, each Junior Secured Obligations Secured Party acknowledges and agrees that, until the
Senior Secured Obligations secured by any Collateral shall have been Discharged, the Applicable Senior Collateral Agent shall be entitled, for the benefit of the holders of such Senior Secured Obligations, to sell, transfer or otherwise
dispose of, or cause the sale, transfer or other disposition of, such Senior Secured Obligations Collateral as provided herein and in the Notes Documents and the LC Documents, as applicable, without regard to any Junior Claims or any
rights to which the holders of the Junior Secured Obligations would otherwise be entitled as a result of such Junior Claims. Without limiting the foregoing, each Junior Secured Obligations Secured Party agrees that none of the Senior
Collateral Agents, the Senior Representatives nor any other Senior Secured Obligations Secured Party shall have any duty or obligation first to marshal or realize upon any type of Senior Secured Obligations Collateral (or any other
collateral securing the Senior Secured Obligations), or to sell, dispose of, realize on or liquidate all or any portion of such Senior Secured Obligations Collateral (or any other collateral securing the Senior Secured Obligations), in
any manner that would maximize the return to the Junior Secured Obligations Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually
received by the Junior Secured Obligations Secured Parties from such realization, sale, disposition or liquidation. Each of the Junior Secured Obligations Secured Parties waives any claim such Junior Secured Obligations Secured Party
may now or hereafter have against any Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party (or their representatives, including any receiver, receiver and manager, interim receiver,
administrator, delegate or agent they may appoint) arising out of (i) any actions which any Senior Collateral Agent, any Senior Representative or the Senior Secured Obligations Secured Parties (or their representatives, including any
receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) take or omit to take (including, actions with respect to the creation, attachment, perfection or continuation of Liens on any Senior
Secured Obligations Collateral, actions with respect to the preservation, foreclosure upon, realization, sale, release or depreciation of, or failure to realize upon, any of the Senior Secured Obligations Collateral and actions with
respect to the collection of any claim for all or any part of the Senior Secured Obligations from any account debtor, guarantor or any other party) in accordance with the Notes Documents and the LC Documents or any other agreement
related thereto or to the collection of the Senior Secured Obligations or the valuation, use, protection or release of any security for the Senior Secured Obligations, (ii) any election by any Applicable Senior Collateral Agent, any
Senior Representative or any Senior Secured Obligations Secured Parties, in any proceeding instituted under the
Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code (or any equivalent proceeding under any other Debtor Relief Law) or (iii) subject to Section 2.06, any borrowing by, or grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code by, the Parent or any of its Subsidiaries, as debtor-in-possession (or any equivalent action under any other Debtor Relief Law).
SECTION 2.04 No Interference; Payment Over; Reinstatement.
(a) Each Junior Secured Obligations Secured Party, each Junior Representative and each Junior Collateral Agent agrees that (i) it will not take or cause to be taken any action the purpose or effect of which is, or could be, to make
any Junior Claim pari passu with, or to give such Junior Secured Obligations Secured Party any preference or priority relative to, any Senior Claim with respect to the Senior Secured Obligations
Collateral or any part thereof, (ii) it will not challenge or question in any proceeding the validity or enforceability of any Foreign Collateral Document, Notes Security Document, or LC Security Document or the extent, validity,
attachment, perfection, priority, or enforceability of any Lien under the Foreign Collateral Documents, Notes Security Documents or the LC Security Documents, or the validity or enforceability of the priorities, rights or duties
established by or other provisions of this Agreement, (iii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings
or otherwise, any sale, transfer or other disposition of the Senior Secured Obligations Collateral by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Parties or any Senior Representative acting on their
behalf (or their respective representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint), including with respect to the Foreign Collateral by the Foreign Collateral
Agent following the instructions of a Controlling Party, (iv) it shall have no right to (A) direct the Applicable Senior Collateral Agent, any Senior Representative or any holder of Senior Secured Obligations (or their respective
representatives, including any receiver, receiver and manager, interim receiver, administrator, delegate or agent they may appoint) to exercise any right, remedy or power with respect to any Senior Secured Obligations Collateral or (B)
consent to the exercise by the Applicable Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party (or their respective representatives, including any receiver, receiver and manager,
interim receiver, administrator, delegate or agent they may appoint) of any right, remedy or power with respect to any Senior Secured Obligations Collateral, (v) it will not institute any suit or assert in any Insolvency or Liquidation
Proceeding any claim against the Applicable Senior Collateral Agent, any Senior Representative or other Senior Secured Obligations Secured Party seeking damages from or other relief by way of specific performance, injunction,
directions, instructions or otherwise with respect to, and none of the Applicable Senior Collateral Agent, any Senior Representative or any other Senior Secured Obligations Secured Party shall be liable for, any action taken or omitted
to be taken by such Senior Collateral Agent, such Senior Representative or other Senior Secured Obligations Secured Party with respect to any Senior Secured Obligations Collateral, (vi) it will not seek, and hereby waives any right, to
have any Senior Secured Obligations Collateral, Foreign Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Senior Secured Obligations Collateral or Foreign Collateral and (vii) it will not
attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that
nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agents, or the
Secured Parties to enforce this Agreement.
(b) Each Junior Collateral Agent, each Junior Representative and each Junior Secured Obligations Secured Party hereby agrees that, if it shall obtain possession or control of any Senior Secured Obligations Collateral, or shall
receive any Proceeds or payment in respect of any Senior Secured Obligations Collateral, pursuant to any Notes Security Document or LC Security Document or by the exercise of any rights available to it under any applicable law or in any
Insolvency or Liquidation Proceeding or through any other exercise of rights or remedies, at any time prior to the Discharge of the Senior Secured Obligations, then it shall hold such Senior Secured Obligations Collateral proceeds or
payment in trust for the Senior Secured Obligations Secured Parties and transfer such Senior Secured Obligations Collateral, proceeds or payment, as the case may be, to the Applicable Senior Collateral Agent reasonably promptly after
obtaining actual knowledge, or notice from the Applicable Senior Collateral Agent, that it is in possession or control of such Senior Secured Obligations Collateral, proceeds or payment. Each Junior Secured Obligations Secured Party
agrees that if, at any time, it receives notice or obtains actual knowledge that all or part of any payment with respect to any Senior Secured Obligations previously made shall be rescinded for any reason whatsoever, such Junior Secured
Obligations Secured Party shall promptly pay over to the Applicable Senior Collateral Agent any payment received by it and then in its possession or under its control in respect of any Senior Secured Obligations Collateral and shall
promptly turn over any Senior Secured Obligations Collateral then held by it over to the Applicable Senior Collateral Agent, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made, until
the payment and satisfaction in full of the Senior Secured Obligations.
(c) Prior to the Discharge of Senior Secured Obligations, if any Junior Secured Obligations Secured Party holds any Lien on any assets of the Parent or any other Grantor securing any Junior Claims that are intended to secure the
Senior Claims pursuant to the Senior Secured Obligations Collateral Documents but are not already subject to a senior Lien in favor of the Senior Secured Obligations Secured Parties, such Junior Secured Obligations Secured Party, upon
demand by any Senior Secured Obligations Secured Party, will assign such Lien to the applicable Senior Representative, at the sole cost and expense of the Grantors, as security for such Senior Secured Obligations (in which case the
Junior Secured Obligations Secured Parties may retain a junior Lien on such assets subject to the terms hereof).
SECTION 2.05 Automatic Release of Junior Liens.
(a) The LC Collateral Agent and each other LC Secured Party agrees that, in the event of a sale, transfer or other disposition of any Notes Priority Collateral in connection with the foreclosure upon or other exercise of rights and
remedies with respect to such Notes Priority Collateral that results in the release by the Notes Collateral Agent of the Lien held by the Notes Collateral Agent on such Notes Priority Collateral, the Lien held by the LC Collateral Agent
on such Notes Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the LC Obligations shall be entitled to any proceeds of a sale, transfer or other disposition under
this clause (a) that remain after Discharge of the Notes Obligations, and the Liens on such remaining proceeds securing the LC Obligations shall not be automatically released pursuant to this Section 2.05(a).
(b) The Notes Collateral Agent and each other Notes Secured Party agrees that, in the event of a sale, transfer or other disposition of any LC Priority Collateral in connection with the foreclosure upon or other
exercise of rights and remedies with respect to such LC Priority Collateral that results in the release by the LC Collateral Agent of the Lien held by the LC Collateral Agent on such LC Priority Collateral, the Lien held by the Notes
Collateral Agent on such LC Priority Collateral shall be automatically released; provided that, notwithstanding the foregoing, all holders of the Notes Obligations shall be entitled to any proceeds of a sale, transfer or other
disposition under this clause (b) that remain after Discharge of all LC Obligations, and the Liens on such remaining proceeds securing the Notes Obligations shall not be automatically released pursuant to this Section 2.05(b).
(c) In the event of a Default Disposition, the Liens of Junior Collateral Agent shall be automatically released so long as (i) such Default Disposition is conducted by the applicable Grantor(s) in a commercially reasonable manner
(as if such Default Disposition were a disposition of collateral by a secured party in accordance with the UCC or similar law under the applicable jurisdiction) and in accordance with applicable law, (ii) Senior Collateral Agent also
releases its Liens on such Senior Secured Obligations Collateral and (iii) the net cash proceeds of any such Default Disposition are applied in accordance with Section 2.1(a) hereof (as if they were proceeds received in
connection with an enforcement action).
(d) Each Junior Representative and each Junior Collateral Agent agrees to execute and deliver (at the sole cost and expense of the applicable Grantors) all such authorizations and other instruments as shall reasonably be requested
by the applicable Senior Representative or the Applicable Senior Collateral Agent to evidence and confirm any release of Junior Secured Obligations Collateral provided for in this Section.
(e) If at any time any Grantor or the holder of any Senior Secured Obligations delivers notice to each Junior Collateral Agent that any specified Senior Secured Obligations Collateral (including all or substantially all of the
Capital Stock of a Grantor or any of its Subsidiaries) is sold, transferred or otherwise disposed of (i) by the owner of such Collateral in a transaction permitted under the LC Documents and the Notes Documents, or (ii) during the
existence of any Event of Default under the Notes Documents or the LC Documents, in each case in connection with the foreclosure upon (or exercise of rights and remedies with respect to) such Collateral, to the extent that the
Applicable Senior Collateral Agent has consented to such sale, transfer or disposition, then the Liens in favor of the Junior Secured Obligations Secured Parties upon such Collateral will automatically be released and discharged as and
when, but only to the extent, such Liens on such Senior Secured Obligations Collateral are released and discharged; provided that the proceeds of such sale, transfer or disposition shall be applied in accordance with Section
2.01(a). Upon delivery to each Junior Collateral Agent of a notice from the Applicable Senior Collateral Agent stating that any release of Liens securing or supporting the Senior Secured Obligations has become effective (or shall
become effective upon each Junior Collateral Agent’s release), each Junior Collateral Agent will promptly execute and deliver (at the sole cost and expense of the Grantors) such instruments, releases, terminations statements or other
documents confirming such release on customary terms.
SECTION 2.06 Certain Agreements With Respect to Insolvency or Liquidation Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Debtor Relief Law by or against the Parent or any of its Subsidiaries.
Without limiting the generality of the foregoing, the provisions of this Agreement are intended to be and shall be enforceable as a “Subordination Agreement” under Section 510(a) of the Bankruptcy Code. All references to the Parent or
any other Grantor shall include such Parent or Grantor as a debtor-in-possession and any receiver, trustee, liquidator (whether provisional or permanent, as the case may be) or court-appointed officer for such person in any Insolvency
or Liquidation Proceeding.
(b) If the Parent or any of its Subsidiaries shall become subject to a case (a “Bankruptcy Case”) under any Debtor Relief Law:
(i) if the Notes Collateral Agent desires to permit debtor-in-possession financing (“DIP Financing”) secured by a Lien on the Notes Priority Collateral,
to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) or the use of cash
collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the LC Collateral Agent and the LC Secured Parties hereby agree to consent to and not to object to any such financing
or to the Liens on the Notes Priority Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Notes Priority Collateral, unless
the Notes Collateral Agent shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral that constitutes Notes Priority Collateral (and (i) to the extent that such DIP Financing Liens are
senior to the Liens on any such Notes Priority Collateral for the benefit of the Notes Secured Parties, each LC Secured Party will subordinate its Liens with respect to such Notes Priority Collateral on the same terms as the Liens of
the Notes Secured Parties (other than any Liens of any LC Secured Party constituting DIP Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees
(or any other administration charge, directors’ and officers’ charge or similar court ordered priority charge under applicable Debtor Relief Laws) and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on
any such Notes Priority Collateral granted to secure the Notes Obligations of the Notes Secured Parties, each LC Secured Party will confirm the priorities with respect to such Notes Priority Collateral as set forth herein, in each case
so long as (A) the Notes Secured Parties retain the benefit of their Liens on all such Notes Priority Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any
Liens constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or Insolvency or Liquidation Proceeding, (B) the LC Secured Parties are granted junior Liens on any additional collateral pledged to
any Notes Secured Party as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the Notes Obligations,
such amount is applied pursuant to Section 2.01(a) of this Agreement, and (D) if any Notes Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing
or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section
2.01(a) of this Agreement; provided that the LC Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any Collateral that shall not constitute Notes Priority Collateral and (ii)
in respect of any additional Collateral that would not constitute Notes Priority Collateral hereunder were it pledged for the benefit of the Notes Secured Parties pursuant to the Notes Security Documents to any Notes Secured Party as
adequate protection, for use of cash collateral, or otherwise, as set forth in clause (B) above; and
(ii) if the LC Collateral Agent desires to permit a DIP Financing secured by a Lien on LC Priority Collateral, to be provided by DIP Lenders under Section 364 of the Bankruptcy Code (or any similar provision
of any other Debtor Relief Laws) or the use of cash collateral under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws), then the Notes Collateral Agent and the Notes Secured Parties hereby
agree not to object to any such financing or to the DIP Financing Liens on the LC Priority Collateral securing the same or to any use of cash collateral that constitutes LC Priority Collateral, unless the LC Collateral Agent shall then
oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral that constitutes LC Priority Collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such LC Priority
Collateral for the benefit of the LC Secured Parties, each Notes Secured Party will subordinate its Liens with respect to such LC Priority Collateral on the same terms as the Liens of the LC Secured Parties (other than any Liens of any
Notes Secured Party constituting DIP Financing Liens) are subordinated thereto and to any “carve out” for the payment of professional fees, clerk fees, and United States trustee fees (or any other administration charge, directors’ and
officers’ charge or similar court-ordered priority charge under applicable Debtor Relief Laws), and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such LC
Priority Collateral granted to secure the LC Obligations of the LC Secured Parties, each Notes Secured Party will confirm the priorities with respect to such LC Priority Collateral as set forth herein), in each case so long as (A) the
Notes Secured Parties retain the benefit of their Liens on all such LC Priority Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding (other than any Liens constituting DIP
Financing Liens) as existed prior to the commencement of the Bankruptcy Case and/or Insolvency or Liquidation Proceeding, (B) the Notes Secured Parties are granted Liens on any additional collateral pledged to any LC Secured Party as
adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of the LC Obligations, such amount is applied pursuant
to Section 2.01(a) of this Agreement and (D) if any LC Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of
such adequate protection is applied pursuant to Section 2.01(a) of this Agreement; provided that the Notes Secured Parties shall have a right to object to the grant of a Lien (i) to secure the DIP Financing over any
Collateral that shall not constitute LC
Priority Collateral and (ii) in respect of any additional Collateral that would not constitute LC
Priority Collateral hereunder were it pledged for the benefit of the LC Secured Parties pursuant to the LC Security Documents to any LC Facility Secured Party as adequate protection, for use of cash collateral, or otherwise, as set forth
in clause (B) above).
(iii) No Junior Secured Obligations Secured Party will directly or indirectly propose or support any DIP Financing secured by a Lien senior or prior to the Liens of the Senior Secured Obligations Secured
Parties on the Senior Secured Obligations Collateral unless such DIP Financing provides for the Discharge of the Senior Secured Obligations.
(c) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not object to and will not otherwise contest: (i) any motion for relief from the automatic stay or any other stay in
any Insolvency or Liquidation Proceeding (including by way of moratorium) or from any injunction against foreclosure or enforcement in respect of the Senior Secured Obligations made by the Applicable Senior Collateral Agent or any
Senior Secured Obligations Secured Party; (ii) any lawful exercise by any holder of Senior Claims of the right to credit bid Senior Claims in any sale of Collateral that is Senior Secured Obligations Collateral with respect to such
Senior Claims; (iii) any other request for judicial relief made in any court by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party relating to the lawful enforcement of any Lien on the Senior Secured
Obligations Collateral; (iv) and will consent to any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of
the Bankruptcy Code (or any equivalent action under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have consented to such sale or disposition (or related order) of such Senior Secured Obligations
Collateral if such sale or other disposition is not free and clear of the Liens securing the Junior Secured Obligations or (v) any sale or other disposition (or related order) of any Senior Secured Obligations Collateral (or any portion
thereof) under Section 363 of the Bankruptcy Code or any other equivalent provision of the Bankruptcy Code (or any other provision under any other Debtor Relief Law) if the Senior Secured Obligations Secured Parties shall have
consented, and the related court order provides that, to the extent the sale is to be free and clear of Liens, the Liens securing the Senior Secured Obligations and the Junior Secured Obligations will attach to the proceeds of the sale
on the same basis of priority as the Liens securing such Obligations on the assets being sold, in accordance with this Agreement.
(d) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party agrees that it will not seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding (including by way
of moratorium) with respect to Senior Secured Obligations Collateral without the prior consent of the Applicable Senior Collateral Agent, unless, and solely to the extent that, the Applicable Senior Collateral Agent or Senior Secured
Obligations Secured Party shall obtain relief from the automatic stay (or any other stay in any Insolvency or Liquidation Proceeding) with respect to such collateral to commence a lien enforcement action.
(e) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that it will not, other than as set forth in Section 2.06(b), object to and will not otherwise contest
(or support any other Person contesting): (i) any request by the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party for adequate protection; provided that (1)
any Notes Secured Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of cash payments to the extent such payment is sought to be paid from Notes Priority
Collateral, any DIP Financing under Section 2.06(b)(i) or the proceeds thereof and (2) any LC Secured Party, solely in its capacity as a Senior Secured Obligations Secured Party, may object to adequate protection in the form of
cash payments to the extent such payment is sought to be paid from LC Priority Collateral, any DIP Financing under Section 2.06(b)(ii) or the proceeds thereof or (ii) any objection by the Applicable Senior Collateral Agent or
any Senior Secured Obligations Secured Party to any motion, relief, action or proceeding based on the Applicable Senior Collateral Agent or any Senior Secured Obligations Secured Party claiming a lack of adequate protection.
Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding, (x) if the Senior Secured Obligations Secured Parties (or any subset thereof) are granted adequate protection in the form of a replacement lien or additional
collateral in connection with any DIP Financing or use of cash collateral under Section 363 or Section 364 of the Bankruptcy Code or any similar law, then the Applicable Junior Collateral Agent may seek or request adequate protection in
the form of a replacement Lien on such additional collateral, so long as, with respect to the Senior Secured Obligations Collateral, such Lien is subordinated to the Liens securing the Senior Secured Obligations and such DIP Financing
(and all obligations relating thereto), on the same basis as the other Liens securing Junior Secured Obligations on the Senior Secured Obligations Collateral are subordinated to the Liens on Senior Secured Obligations Collateral
securing the Senior Secured Obligations under this Agreement; (y) in the event the Applicable Junior Collateral Agent seeks or requests adequate protection and such adequate protection is granted in the form of a replacement lien or
additional collateral, then the Applicable Junior Collateral Agent and the Junior Secured Obligations Secured Parties hereby agree that the Senior Secured Obligations Secured Parties shall also be granted a Lien on such additional
collateral as security for the Senior Secured Obligations and any such DIP Financing and that any Lien on such additional collateral that constitutes Senior Secured Obligations Collateral securing the Junior Secured Obligations shall be
subordinated to the Liens on such collateral securing the Senior Secured Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens on Senior Secured Obligations Collateral granted to the holders
of Senior Secured Obligations as adequate protection on the same basis as the Liens securing Junior Secured Obligations are so subordinated to the Liens securing the Senior Secured Obligations under this Agreement; (z) any adequate
protection granted in favor of any Senior Secured Obligations Secured Party in the form of a superpriority or other administrative expense claim and any claim in favor of any Senior Secured Obligations Secured Party arising under
Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) (collectively, “Senior 507(b) Claims”) shall be senior to and have priority of payment over any superpriority or other administrative expense claim and any
claim arising under Section 507(b) of the Bankruptcy Code (or similar Debtor Relief Laws) in favor of any Junior Secured Obligations Secured Party (collectively, “Junior 507(b) Claims”). The holders of the Junior 507(b) Claims
agree that, in connection with any Plan of Reorganization in any Insolvency or Liquidation Proceeding, such Junior 507(b) Claims may be paid in any combination of cash, securities, or other property having a present value equal to the
amount of such Junior 507(b) Claims as of the
effective date of such plan. For the avoidance of doubt, as between the Notes Secured Parties and LC Secured Parties,
all Senior 507(b) Claims shall be pari passu with the Senior 507(b) Claims held by the other Class, and all Junior 507(b) Claims shall be pari passu with
the Junior 507(b) Claims held by the other Class.
(f) The Applicable Junior Collateral Agent and each Junior Secured Obligations Secured Party hereby agrees that (i) it will not oppose or seek to challenge any claim by the Applicable Senior Collateral Agent or any Senior Secured
Obligations Secured Party for allowance of Senior Secured Obligations consisting of post-petition interest, costs, fees, charges, or expenses and (ii) until the Discharge of Senior Secured Obligations has occurred, the Applicable Junior
Collateral Agent, on behalf of itself and the Junior Secured Obligations Secured Parties, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) senior
to or on a parity with the Liens on Senior Secured Obligations Collateral securing the Senior Secured Obligations for costs or expenses of preserving or disposing of any Collateral; provided that, for the avoidance of doubt, any
amounts received by the Applicable Senior Collateral Agent pursuant to such a claim shall in all cases be subject to Section 2.1(a).
(g) The LC Collateral Agent, on behalf of the LC Secured Parties, and the Notes Collateral Agent, on behalf of the Notes Secured Parties, acknowledge and intend that the grants of Liens pursuant to the LC Security Documents, on the
one hand, and the Notes Security Documents, on the other hand, constitute separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the LC Obligations are fundamentally
different from the Notes Obligations and must be separately classified in any Plan of Reorganization proposed or confirmed (or approved) in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as
provided in the immediately preceding sentence, if it is held that the claims of the Notes Secured Parties and the LC Secured Parties in respect of any Collateral constitute claims in the same class (rather than separate classes of
senior and junior secured claims), then the Notes Secured Parties and the LC Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of Notes Obligations and LC Obligations
against the Grantors (with the effect being that, to the extent that the aggregate value of the Notes Priority Collateral or the LC Priority Collateral is sufficient (for this purpose ignoring all claims held by the other Secured
Parties for whom such Collateral is Junior Secured Obligations Collateral), the Notes Secured Parties or the LC Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, costs, fees, charges, or expenses that are available from the Senior Secured Obligations Collateral for each of the Notes Secured
Parties and the LC Secured Parties, respectively, before any distribution is made in respect of the Junior Claims with respect to such Collateral, with the holder of such Junior Claims hereby acknowledging and agreeing to turn over to
the Junior Secured Obligations Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the
effect of reducing the aggregate recoveries). Additionally, to further effectuate the intent of the parties as provided in this subsection, if it is held that the claims of any of the LC Secured Parties, on the one hand, and the Notes
Secured Parties, on the other hand, constitute claims in the same class (rather than separate classes of secured claims), then the Notes Secured Parties hereby acknowledge and agree to vote to reject such plan of reorganization or
similar dispositive restructuring plan unless LC Secured Parties
greater than half in number and holding greater than two-thirds in amount of the LC Obligations agree to accept such
plan or such plan provides for the Discharge of LC Obligations. The Notes Collateral Agent (on behalf of all the Notes Secured Parties) agrees it shall not object to or contest (or support any other party in objection or contesting) a
plan of reorganization or other dispositive restructuring plan on the grounds that the LC Obligations and Notes Obligations are classified separately. The Notes Collateral Agent (on behalf of all the Notes Secured Parties) agrees that in
any Insolvency or Liquidation Proceeding, neither it nor any other Notes Secured Party shall support or vote to accept any plan of reorganization of the Borrower or any other Grantor unless the plan of reorganization is accepted by the LC
Secured Parties in accordance with Section 1126(e) of the Bankruptcy Code or otherwise provides for the Discharge of LC Obligations on the effective date of such plan of reorganization. Except as provided herein, the Notes Secured
Parties shall remain entitled to vote their claims in any such Insolvency or Liquidation Proceeding.
(h) If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a Plan of Reorganization (or any form of
Court-sanctioned restructuring permitted under any applicable law), both on account of the Notes Obligations and on account of the LC Obligations, then, to the extent the debt obligations distributed on account of the Notes Obligations
and on account of the LC Obligations are secured by Liens upon the Collateral, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the debt
obligations so distributed, to the Liens securing such debt obligations and the distribution of proceeds thereof.
Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation
Proceeding a determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then each of the LC Collateral Agent and the Notes Collateral Agent for themselves and on behalf of their respective Secured
Parties agrees that, any distribution or recovery they may receive in respect of any Collateral (including assets that would constitute Collateral but for such determination) shall be segregated and held in trust and forthwith paid over
to the LC Collateral Agent or the Notes Collateral Agent, as the case may be, in the same form as received without recourse, representation or warranty (other than a representation of such Collateral Agent that it has not otherwise sold,
assigned, transferred or pledged any right, title or interest in and to such distribution or recovery) but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct in order to comply with the priority
provisions set forth in Section 2.01
(i) Notwithstanding the provisions of Sections 2.02(a) and 2.02(b), 2.04(a) and 2.06(b), (c) (e) and (f) or otherwise, both before and during an Insolvency or Liquidation Proceeding, any of the Junior Secured Obligations Secured
Parties may take any actions and exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against any Grantor in
accordance with applicable law (including the Debtor Relief Laws of any applicable jurisdiction); provided that, the Junior Secured Obligations Secured Parties may not take any of the actions that is inconsistent with the terms
of this Agreement, including without limitation, such actions prohibited by Sections 2.02(a) and 2.02(b), Section 2.04(a) or Section 2.06(b), (c), (e) and (f); provided further, that in the event that any of the Junior
Secured Obligations Secured Parties becomes a judgment lien creditor in respect of any Collateral as a result of its enforcement of its
rights as an unsecured creditor with respect to the Junior Secured Obligations, such judgment lien shall be subject to
the terms of this Agreement for all purposes (including in relation to the Senior Secured Obligations) as the other Liens securing the Junior Secured Obligations are subject to this Agreement.
SECTION 2.07 Reinstatement. In the event that any of the Senior Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently,
for whatever reason (including an order or judgment for disgorgement of a preference under any Debtor Relief Law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this
Article II shall be fully applicable thereto until all such Senior Secured Obligations shall again have been irrevocably paid in full in cash.
SECTION 2.08 [Reserved].
SECTION 2.09 Insurance. Unless and until the Notes Obligations have been Discharged, as between the Notes Collateral Agent, on the one hand, and the LC Collateral
Agent, on the other hand, only the Notes Collateral Agent will have the right (subject to the rights of the Grantors under the Notes Documents and the LC Documents) to adjust or settle any insurance policy or claim covering or
constituting Notes Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Notes Priority Collateral. Unless and until the LC Obligations have
been Discharged, as between the Notes Collateral Agent, on the one hand, and the LC Collateral Agent, on the other hand, only the LC Collateral Agent will have the right (subject to the rights of the Grantors under the Notes Documents
and the LC Documents) to adjust or settle any insurance policy covering or constituting LC Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding solely
affecting the LC Priority Collateral. To the extent that an insured loss covers or constitutes Notes Priority Collateral and LC Priority Collateral, then the Notes Collateral Agent and the LC Collateral Agent will work jointly and in
good faith to collect, adjust or settle (subject to the rights of the Grantors under the Notes Documents and the LC Obligations Documents) under the relevant insurance policy.
SECTION 2.10 Refinancings. Each of the Notes Obligations and the LC Obligations and the agreements governing them may be Refinanced, in each case without notice to,
or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Notes Document or any LC Obligations Document, as in effect on the date hereof or as may
be amended in accordance with the terms hereof) of, any Notes Secured Party or any LC Secured Party, all without affecting the priorities provided for herein or the other provisions hereof; provided, however, that the
holders of any such Refinancing indebtedness (or an authorized agent or trustee on their behalf) bind themselves in writing (to the extent they are not already so bound) to the terms of this Agreement pursuant to a joinder in the form
of Exhibit A hereto, and such other Refinancing documents or agreements (including amendments or supplements to this Agreement) as each Applicable Senior Collateral Agent, shall reasonably request and in form and substance
reasonably acceptable to such Applicable Senior Collateral Agent. In connection with any Refinancing contemplated by this Section 2.10, this Agreement may be amended at the request and sole expense of the Parent, and without the
consent (except to the extent a consent is otherwise required to permit such Refinancing transaction under any Notes Document or any LC Obligations Document, and other than the consent of each Applicable Senior
Collateral Agent, whose consent shall still be required to the extent set forth in the proviso of the immediately
preceding sentence) of any Representative, (a) to add parties (or any authorized agent or trustee therefor) providing any such Refinancing, (b) to confirm that such Refinancing indebtedness in respect of any LC Obligations shall have the
same rights and priorities in respect of any LC Priority Collateral as the indebtedness being Refinanced and (c) to confirm that such Refinancing indebtedness in respect of any Notes Obligations shall have the same rights and priorities
in respect of any Notes Priority Collateral as the indebtedness being Refinanced, all on the terms provided for herein immediately prior to such Refinancing. Any such additional party and each Applicable Senior Collateral Agent shall be
entitled to rely on the determination of officers of the Parent that such modifications do not violate the Notes Documents or the LC Documents if such determination is set forth in an officers’ certificate delivered to such party and each
Applicable Senior Collateral Agent; provided, however, that such determination will not affect whether or not the Parent and the Grantors have complied with their undertakings in any such document or this Agreement. In connection
with the delivery of a joinder as set forth above, the Parent shall deliver an officer’s certificate to each Collateral Agent certifying that the Refinancing, including the incurrence of indebtedness and the incurrence of liens in respect
thereof, qualifies as a Refinancing as defined herein.
SECTION 2.11 Amendments to Security Documents.
(a) Subject to paragraph (c) below, each of the LC Collateral Agent and other LC Secured Parties agrees that, without the prior written consent of the Notes Collateral Agent, no LC Security Document to which such LC Collateral Agent
or LC Secured Party is party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new LC Security Document would be prohibited by or inconsistent
with any of the terms of this Agreement.
(b) Subject to paragraph (c) below, each of the Notes Collateral Agent and other Notes Secured Parties agrees that, without the prior written consent of the LC Collateral Agent and each LC Collateral Agent, no Notes Security
Document to which the Notes Collateral Agent or Notes Secured Parties are party may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification or the terms of any new Notes
Security Document would be prohibited by or inconsistent with any of the terms of this Agreement.
(c) In the event that any Senior Collateral Agent or Senior Secured Obligations Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Senior Secured Obligations Collateral Documents for the
purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, such Senior Secured Obligations Collateral Document or changing in any manner the rights of such Senior Collateral Agent, such
Senior Secured Obligations Secured Parties, the Grantors thereunder (including the release of any Liens in the applicable Senior Secured Obligations Collateral), then such amendment, waiver or consent shall apply automatically to any
comparable provision of each Comparable Junior Priority Collateral Document without the consent of any Junior Collateral Agent or any Junior Secured Obligations Secured Party and without any action by any Junior Collateral Agent, any
Junior Secured Obligations Secured Party, the Parent or any other Grantor; provided, however, that (A) such amendment, waiver or consent does not materially adversely
affect the rights of the applicable Junior Secured Obligations Secured Parties or the interests of the applicable Junior
Secured Obligations Secured Parties in the applicable Junior Secured Obligations Collateral and not the Senior Collateral Agent or the Senior Secured Obligations Secured Parties, as the case may be, that have a security interest in the
affected collateral in a like or similar manner, and (B) written notice of such amendment, waiver or consent shall have been given by the Parent to the Applicable Junior Collateral Agent.
(d) Notwithstanding anything to the contrary contained herein, the LC Collateral Agent and other LC Secured Parties and the Notes Collateral Agent and other Notes Secured Parties hereby agree that they will not amend or otherwise
modify the provisions of the LC Documents or the Notes Documents related to the Refinancing or payment of any Obligations (including ordinary course payments) in a manner that makes them more restrictive to Grantors or otherwise
prohibits or restricts a Refinancing or payment permitted under the LC Documents or Notes Documents as in effect on the date hereof.
SECTION 2.12 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) Each Possessory Collateral Agent agrees to hold the Possessory Collateral that is in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for, or, as applicable, on trust for,
the benefit of each Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral pursuant to the Notes Security Documents or the LC Security Documents, subject to the
terms and conditions of this Section 2.12. To the extent any Possessory Collateral is possessed by or is under the control of a Collateral Agent (either directly or through its agents or bailees) other than the Applicable Possessory
Collateral Agent, such Collateral Agent shall deliver such Possessory Collateral to (or shall cause such Possessory Collateral to be delivered to) the Applicable Possessory Collateral Agent and shall take all actions reasonably
requested in writing by the Applicable Possessory Collateral Agent to cause the Applicable Possessory Collateral Agent to have possession or control of same. Pending such delivery to the Applicable Possessory Collateral Agent, each
other Collateral Agent agrees to hold any Possessory Collateral as gratuitous bailee, or, as applicable, on trust for, for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security
interest granted in such Possessory Collateral, if any, pursuant to the applicable Notes Security Documents or LC Security Documents, in each case subject to the terms and conditions of this Section 2.12.
(b) The duties or responsibilities of each Possessory Collateral Agent and each other Collateral Agent under this Section 2.12 shall be limited solely to holding the Possessory Collateral as gratuitous bailee, or, as applicable, on
trust for, for the benefit of each Secured Party for purposes of perfecting the security interest held by the Secured Parties therein.
(c) Upon the Discharge of all LC Obligations, the LC Collateral Agent shall deliver to the Notes Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining Possessory
Collateral (if any) held by it, together with any necessary endorsements (or otherwise allow the Notes Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise direct. The
Grantors shall take such further action as is required to effectuate the transfer contemplated hereby
and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a
result of such transfer except for loss or damage suffered by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. No LC Collateral Agent shall be obligated to follow instructions from the Notes
Collateral Agent in contravention of this Agreement.
(d) Upon the Discharge of all Notes Obligations, the Notes Collateral Agent shall deliver to the LC Collateral Agent (at the sole expense of the Grantors), to the extent that it is legally permitted to do so, the remaining
Possessory Collateral (if any) held by it, together with any necessary endorsements (or otherwise allow the LC Collateral Agent to obtain control of such Possessory Collateral) or as a court of competent jurisdiction may otherwise
direct. The Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the Possessory Collateral Agent for loss or damage suffered by the Possessory Collateral Agent as a
result of such transfer except for loss or damage suffered by the Possessory Collateral Agent as a result of its own willful misconduct or gross negligence. The Notes Collateral Agent shall not be obligated to follow instructions from
any LC Collateral Agent in contravention of this Agreement.
SECTION 2.13 Control Agreements. The LC Collateral Agent hereby agrees to act as collateral agent of the Notes Secured Parties under each control agreement solely for
the purpose of perfecting the Lien of the Notes Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control. The Notes Collateral Agent, on behalf of the Notes Secured Parties, hereby
appoints the LC Collateral Agent to act as its collateral agent under each such control agreement, as applicable. The duties or responsibilities of the LC Collateral Agent under this Section 2.13 shall be limited solely to acting as
agent for the benefit of each Notes Secured Party for purposes of perfecting the security interest held by the Secured Parties in the deposit accounts and securities accounts subject to such control agreements by control, in each case
prior to the Discharge of all LC Obligations
SECTION 2.14 Rights under Permits and Licenses. The LC Collateral Agent agrees that if the Notes
Collateral Agent shall require rights available under any permit or license controlled by the LC Collateral Agent (as certified to the LC Collateral Agent by the Notes Collateral Agent, upon which the LC Collateral Agent may rely) in
order to realize on any Notes Priority Collateral, the LC Collateral Agent shall (subject to the terms of the LC Documents, including the LC Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be
available to it (at the sole expense of the Grantors), consistent with applicable law and reasonably requested by the Notes Collateral Agent in writing, to make such rights available to the Notes Collateral Agent, subject to the Liens
held by the LC Collateral Agent for the benefit of the LC Secured Parties. The Notes Collateral Agent agrees that if the LC Collateral Agent shall require rights available under any permit or license controlled by the Notes Collateral
Agent (as certified to the Notes Collateral Agent by the LC Collateral Agent, upon which the Notes Collateral Agent may rely) in order to realize on any LC Priority Collateral, the Notes Collateral Agent shall (subject to the terms of
the Notes Documents, including such Notes Collateral Agent’s rights to indemnification thereunder) take all such actions as shall be available to it (at the sole expense of the Grantors), consistent with applicable law and reasonably
requested by the LC Collateral Agent in writing, to make such rights available to the LC Collateral Agent, subject to the Liens held by the Notes Collateral Agent for the benefit of the Notes Secured Parties.
ARTICLE III
Existence and Amounts of Liens and Obligations
Whenever a Representative shall be required, in connection with the exercise of its rights or the
performance of its obligations hereunder, to determine the existence or amount of any Senior Secured Obligations (or the existence of any commitment to extend credit that would constitute Senior Secured Obligations) or Junior Secured
Obligations, or the Collateral subject to any such Lien, it may, acting reasonably, request that such information be furnished to it in writing by the other Representatives and shall be entitled to make such determination on the basis of
the information so furnished; provided, however, that, if a Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Representative shall be entitled to make any such
determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Parent. Each Representative may rely conclusively, and shall be fully protected in so relying,
on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Parent or any of its subsidiaries, any Secured
Party or any other Person as a result of such determination.
ARTICLE IV
Consent of Grantors
Each Grantor hereby consents to the provisions of this Agreement and the intercreditor arrangements
provided for herein and agrees that the obligations of the Grantors under the Notes Security Documents, the LC Security Documents or the Foreign Collateral Documents will in no way be diminished or otherwise affected by such provisions or
arrangements.
Notwithstanding any other provision of this Agreement to the contrary, the obligations and
liabilities of any Grantor incorporated in Norway shall be limited by such mandatory provisions of sections 8-7 and/or 8-10 of the Norwegian Limited Liability Companies Act of 13 June 1997 regarding restrictions on a Norwegian limited
liability company’s ability to grant guarantees, loans, security or other financial assistance.
ARTICLE V
Representations and Warranties
SECTION 5.01 Representations and Warranties of Each Party. Each party hereto represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized or incorporated (as the case may be), validly existing and, if applicable, in good standing (or the equivalent status under the laws of any foreign jurisdiction) under the laws of the jurisdiction of
its organization or incorporation (as the case may be) and has all requisite power and authority to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly executed and delivered by such party.
(c) The
execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority, (ii) will not violate any applicable law
or regulation governing the powers of such party or any order of any governmental authority having jurisdiction over it and (iii) will not violate the charter, by-laws or other organizational documents of such party.
SECTION 5.02 Representations and Warranties of Each Representative. Each Collateral Agent and Representative represents and warrants to the other parties hereto that
it is authorized under the Notes Indenture or the LC Obligations Credit Agreement, as applicable, to enter into this Agreement.
ARTICLE VI
Collateral Agency for Foreign Collateral
SECTION 6.01 Appointment of Foreign Collateral Agent. It is acknowledged that, in certain jurisdictions outside of the United State of America, applicable law
prevents both the Notes Collateral Agent and the LC Collateral Agent from obtaining liens on the Collateral. In such circumstances, solely for Foreign Collateral, the parties hereto agree that with effect as of the resignation of the
Preceding Foreign Collateral Agent (i) the LC Collateral Agent, who may appoint any sub-agent in its sole discretion and upon written notice to the Notes Collateral Agent to act in such capacity, is hereby appointed as Foreign
Collateral Agent and sub-agent for the Collateral Agents in respect of any LC Priority Collateral, (ii) the Notes Collateral Agent, or any sub-agent that it may in its sole discretion and upon written notice to the LC Collateral Agent
designate to act in such capacity, is hereby appointed as Foreign Collateral Agent and sub-agent for the Collateral Agents in respect of any Notes Priority Collateral, and (iii) notwithstanding anything to the contrary contained herein,
Foreign Collateral Agent is permitted to hold Liens on such Foreign Collateral in trust for the Secured Parties notwithstanding the inability of any other Collateral Agent to hold similar Liens. In recognition of the foregoing, each
other Collateral Agent hereby irrevocably appoints the LC Collateral Agent or the Notes Collateral Agent, as applicable, to act as the “collateral agent” under any Foreign Collateral Documents, pursuant to Section 6.01(i) and (ii), and
each other Collateral Agent hereby irrevocably appoints and authorizes the LC Collateral Agent or the Notes Collateral Agent, as applicable, to act as the agent of such Secured Party for purposes of acquiring, holding and enforcing any
and all Liens on Foreign Collateral, pursuant to Section 6.01(i) and (ii), granted by any of the Grantors to secure any of the Notes Obligations or LC Obligations, together with such powers and discretion as are reasonably
incidental thereto (including, without limitation, to enter into additional Foreign Collateral Documents or supplements to existing Foreign Collateral Documents on behalf of the Secured Parties). In this connection, the Foreign
Collateral Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Foreign Collateral Agent pursuant to this Article VI for purposes of holding or enforcing any Lien on the Foreign
Collateral (or any portion thereof) granted under the Foreign Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Foreign Collateral Agent, shall be entitled to the benefits of all
provisions of this Agreement, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under this agreement and the Foreign Collateral Documents as if set forth in full herein with respect thereto. It is
understood and agreed that the use of the term “agent” herein or in any other Foreign Collateral Documents (or any other similar term) with reference to the Foreign
Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 6.02 Rights as a Secured Party. The Person serving as the Foreign Collateral Agent hereunder shall have the same rights and powers in its capacity as a
Secured Party as any other Secured Party and may exercise the same as though it were not the Foreign Collateral Agent and the term “Secured Party” or “Secured Parties” (or, as applicable, Notes Secured Party or LC Secured Party) shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Foreign Collateral Agent hereunder in its individual capacity. Such Person and its affiliates may accept deposits from,
lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Grantor or any Grantor’s Subsidiary or other affiliate thereof as if such Person
were not the Foreign Collateral Agent hereunder and without any duty to account therefor to the Secured Parties.
SECTION 6.03 Exculpatory Provisions.
(a) The Foreign Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Foreign Collateral Documents to which Foreign Collateral Agent is a party, and its duties hereunder
and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Foreign Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default under the Notes Documents or LC Documents has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers (though it hereby is authorized to take such actions in its Permitted Discretion), except discretionary
rights and powers expressly contemplated hereby or by the Foreign Collateral Documents that the Foreign Collateral Agent is required to exercise as directed in writing by the Controlling Parties; provided that the Foreign
Collateral Agent shall not be required to take any action that, in its good faith, based upon the advice of counsel or upon the written opinion of its counsel, may expose the Foreign Collateral Agent to liability, or for which it is not
indemnified to its satisfaction or that is contrary to any Foreign Collateral Document or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or
that may effect a forfeiture, modification or termination of property in violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein and in the Foreign Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the
Grantors or any of their Subsidiaries or affiliates that is communicated to or obtained by the Person serving as the Foreign Collateral Agent or any of its affiliates in any capacity.
(b) The Foreign Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Controlling Parties or (ii) in the absence of its own willful misconduct or
gross negligence as determined by a court of competent jurisdiction by final nonappealable judgment. The Foreign Collateral Agent shall be deemed not to have knowledge of any default or Event of Default under the Notes Documents or LC
Documents unless and until written notice describing such default or Event of Default is given to the Foreign Collateral Agent by the Grantors, LC Collateral Agent, or Notes Collateral Agent.
(c) The Foreign Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Foreign Collateral
Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein or the occurrence of any default or Event of Default or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Foreign Collateral Document or any other
agreement, instrument or document.
SECTION 6.04 Reliance by the Foreign Collateral Agent. The Foreign Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The Foreign Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. The Foreign Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the written advice of any such counsel, accountants or experts.
SECTION 6.05 Delegation of Duties.
(a) The Foreign Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any Foreign Collateral Document by or through any one or more sub-agents appointed by the Foreign
Collateral Agent. The Foreign Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article
VI shall apply to any such sub-agent and to the Related Parties of the Foreign Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the Foreign Collateral. The Foreign Collateral
Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Foreign Collateral Agent acted with
willful misconduct or gross negligence in the selection of such sub agents.
(b) Should any instrument in writing from any Grantor be required by any sub-agent appointed by the Foreign Collateral Agent to more fully or certainly vest in and confirm to such sub-agent such rights, powers, privileges and
duties, such Grantor shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Foreign Collateral Agent. If
any such sub-agent, or successor thereto, shall resign or be removed, all rights, powers, privileges and duties of such
sub-agent, to the extent permitted by law, shall automatically vest in and be exercised by the Foreign Collateral Agent until the appointment of a new sub-agent. All references in this Agreement or in any other Foreign Collateral Document
to any Lien or Foreign Collateral Document granted or delivered in favour of the Foreign Collateral Agent shall include any Lien or Foreign Collateral Document granted to any sub-agent of the Foreign Collateral Agent
SECTION 6.06 Resignation of Foreign Collateral Agent.
(a) The Foreign Collateral Agent may at any time give notice of its resignation to the Representatives and the Grantors. Upon receipt of any such notice of resignation, the Secured Parties, acting through their Collateral Agents,
shall have the right (provided no Event of Default has occurred and is continuing under any LC Document or Notes Document at the time of such resignation) to appoint a successor, which shall be as jointly designated by Notes Collateral
Agent and LC Collateral Agent. If no such successor shall have been so appointed in accordance with the preceding sentence and shall have accepted such appointment within 30 days after the retiring Foreign Collateral Agent gives notice
of its resignation (or such earlier day as shall be agreed by the Representatives) (the “Resignation Effective Date”), then the retiring Foreign Collateral Agent may (but shall not be obligated to), on behalf of the Secured
Parties, appoint a successor Foreign Collateral Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation
Effective Date.
(b) With effect from the Resignation Effective Date, (1) the retiring Foreign Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Foreign Collateral Documents (except that in the case
of any collateral security held by the Foreign Collateral Agent on behalf of the Secured Parties under any of the Foreign Collateral Documents, the retiring Foreign Collateral Agent shall continue to hold such collateral security until
such time as a successor Foreign Collateral Agent is appointed but in any event, no more than sixty (60) days following the Resignation Effective Date) and (2) except for any indemnity payments owed to the retiring Foreign Collateral
Agent, all payments, communications and determinations provided to be made by, to or through the Foreign Collateral Agent shall instead be made by or to each Representative directly, until such time, if any, the relevant Collateral
Agents appoint a successor Foreign Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Foreign Collateral Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Foreign Collateral Agent (other than any rights to indemnity payments owed to the retiring Foreign Collateral Agent), and the retiring Foreign Collateral Agent shall be discharged
from all of its duties and obligations hereunder or under the other Foreign Collateral Documents. After the retiring Foreign Collateral Agent’s resignation or removal hereunder and under the other Foreign Collateral Documents, the
provisions of this Article shall continue in effect for the benefit of such retiring Foreign Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Foreign Collateral Agent was acting as Foreign Collateral Agent.
SECTION 6.07 Non-Reliance on Foreign Collateral Agent and Other Secured Parties. Each Collateral Agent acknowledges that it has, independently and without reliance
upon
the Foreign Collateral Agent or any of its related parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement, the LC Documents, and the Notes Documents, as applicable. Each Collateral Agent also acknowledges that it will, independently and without reliance upon
the Foreign Collateral Agent or its related parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any Foreign Collateral Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 6.08 Collateral Matters.
Each of the Collateral Agents irrevocably authorize the Foreign Collateral Agent, at its option and
in its Permitted Discretion;to release any Lien or any other claim on any Foreign Collateral granted to or held by the Foreign Collateral Agent, for the benefit of the Secured Parties, under any Foreign Collateral Document (A) upon the
Discharge of the Notes Obligations and the Discharge of the LC Obligations, as applicable, in which case such Lien shall only be released with respect to the Obligations so Discharged; (B) that is sold or otherwise disposed of or to be
sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under the Foreign Collateral Documents, Notes Documents and LC Documents or (C) if approved, authorized or ratified in
writing in accordance with Section 6.08(b).
(a) Upon request by the Foreign Collateral Agent at any time, the Controlling Parties will confirm in writing the Foreign Collateral Agent’s authority to release or subordinate its interest in particular types or items of property
or take any other action necessary to administer the Foreign Collateral. In each case, as specified in this Section 6.08, the Foreign Collateral Agent will, at the Grantors’ joint and several expense, execute and deliver to the
applicable Grantor such documents as such Grantor may reasonably request to evidence the release of such item of Foreign Collateral from the assignment and security interest granted under the Foreign Collateral Documents or to
subordinate its interest in such item, or to release such Grantor from its obligations under the Foreign Collateral Documents, in each case in accordance with the terms hereof and the terms of the Foreign Collateral Documents.
(b) The Foreign Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Foreign Collateral, the existence,
priority or perfection of the Foreign Collateral Agent’s Lien thereon, or any certificate prepared by any Grantor in connection therewith, nor shall the Foreign Collateral Agent be responsible or liable to the Secured Parties for any
failure to monitor or maintain any portion of the Foreign Collateral.
SECTION 6.09 Discretionary Rights. The Foreign Collateral Agent may:
(a) assume (unless it has received actual notice to the contrary from the Collateral Agents) that (i) no default or Event of Default has occurred and no Grantor is in breach of or default under its obligations under any of the
Foreign Collateral Documents, Notes Documents, or LC Documents, and (ii) any right, power, authority or discretion vested by any
Foreign Collateral Documents, Notes Documents, or LC Documents in any person has not been exercised;
(b) if it receives any instructions or directions to take any action in relation to the Foreign Collateral, assume that all applicable conditions under this Agreement, LC Documents and Notes Documents for taking that action have
been satisfied;
(c) engage and pay for the advice or services of accountants, tax advisers, surveyors or other professional advisers or experts and a single legal counsel in each applicable jurisdiction (in addition to the Foreign Collateral
Agent’s general outside counsel);
(d) without prejudice for the generality of paragraph (c) above, at any time engage and pay for the services of a single additional counsel in each applicable jurisdiction to act as independent counsel to the Foreign Collateral
Agent (in addition to the Foreign Collateral Agent’s general outside counsel) (and so separate from any lawyers instructed by the other Secured Parties) if the Foreign Collateral Agent in its reasonable opinion deems this to be
desirable and the Collateral Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying on the advice or services of any
professional engaged under this Section 6.09; and
(e) refrain from acting in accordance with the instructions of any Secured Party or Controlling Party (including bringing any legal action or proceeding arising out of or in connection with the Foreign Collateral Documents) until it
has received any indemnification and/or security that it may in its reasonable discretion require which may be greater in extent than that contained for the benefit of any Representative in the Notes Documents or LC Documents.
Notwithstanding any provision of any Notes Documents or LC Documents to the contrary, the Foreign Collateral Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its
duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is
not reasonably assured to it.
SECTION 6.10 Indemnification of Foreign Collateral Agent.
(a) The Secured Parties (other than the LC Australian Collateral Agent and the Notes Collateral Agent) shall jointly and severally indemnify the Foreign Collateral Agent within three Business Days of demand, and keep the Foreign
Collateral Agent indemnified against any demands, damages, expenses, costs, losses or liabilities made against or incurred by it in acting as Foreign Collateral Agent on behalf of the Secured Parties under this Agreement, the Foreign
Collateral Documents, the LC Documents, or the Notes Documents (provided that any indemnification obligations arising solely due to the instructions of a Controlling Party shall be borne
solely by the Class represented by such Controlling Party), unless the Foreign Collateral Agent (i) has been reimbursed by a Grantor pursuant to any of the Foreign Collateral Documents or (ii) such liabilities, losses, demands, damages,
expenses or costs are incurred by or made against the Foreign Collateral Agent as a result of willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment. The Grantors
hereby jointly and severally indemnify the Secured Parties against any payment made by them under this Section 6.10(a) and agree that any payments made by or costs attributable to any Notes Secured
Party on account of the Foreign Collateral Agent shall be added to the Notes Obligations and any payments made by or
costs attributable to any LC Secured Party on account of the Foreign Collateral Agent shall be added to the LC Obligations.
(b) The Grantors covenant and agree that they shall defend and be jointly and severally liable to reimburse and indemnify the Foreign Collateral Agent (and its Affiliates, officers, directors, employees, attorneys and agents (“Foreign
Collateral Agent Related Persons”)) for any and all reasonable expenses and other charges actually incurred by the Foreign Collateral Agent on behalf of the Secured Parties in connection with the execution, delivery,
administration and enforcement of this Agreement and the Foreign Collateral Documents (or any of them) and from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, actual
reasonable expenses or disbursements of any kind and nature whatsoever that may be imposed on, incurred by or asserted against the Foreign Collateral Agent, in any way relating to or arising out of this Agreement, any Foreign Collateral
Document, or any other document delivered in connection herewith or therewith or the transactions contemplated hereby or thereby, or the enforcement of any of the terms hereof or thereof, in each case, except to the extent caused by the
Foreign Collateral Agent’s or the Foreign Collateral Agent Related Person’s willful misconduct or gross negligence as determined by a court of competent jurisdiction by a final nonappealable judgment.
(c) The obligations under this Section 6.10 shall survive the Discharge of the Notes Obligations, the Discharge of the LC Obligations, the resignation of any Foreign Collateral Agent, and termination of this Agreement and all of the
Foreign Collateral Documents.
(d) Notwithstanding
anything else in this Section 6.10, the Grantors shall have no obligation to indemnify or reimburse any Person for any Taxes unless such Taxes would be subject to indemnification or reimbursement under the LC Credit Agreement or Notes
Indenture.
SECTION 6.11 Treatment of Proceeds of Foreign Collateral.
(a) All amounts from time to time received or recovered by the Foreign Collateral Agent pursuant to the terms of any Foreign Collateral Document or in connection with the realization or enforcement of all or any part of the Foreign
Collateral (the “Foreign Recoveries”) shall be held by the Foreign Collateral Agent in trust and applied, to the extent permitted by applicable law, in the following order:
First, in discharging any sums owing to the Foreign Collateral Agent (in its capacity as
such), including (i) amounts owing to Foreign Collateral Agent to indemnify Foreign Collateral Agent for claims against it or claims that, in the reasonable discretion of Foreign Collateral Agent, may be asserted against Foreign
Collateral Agent and are subject to the indemnification provisions of this Agreement and (ii) any deductions and withholdings (on account of taxes or otherwise) which Foreign Collateral Agent is or may be required by any applicable law to
make from any distribution or payment made by it under this Agreement and to pay all taxes which may be assessed against it in respect of any of the Foreign Collateral Documents, or as a consequence of performing its duties, or by virtue
of its capacity as Foreign Collateral Agent (other than in connection with its remuneration for performing its
duties under this Agreement); provided that any
Foreign Collateral or proceeds thereof that is LC Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the LC Secured
Parties and Foreign Collateral or proceeds thereof that is Notes Priority Collateral may only be applied or retained by Foreign Collateral Agent to secure indemnification obligations or other amounts owing (or potentially owing) by the
Notes Secured Parties;
Second, to the Representatives to be applied in accordance with Section 2.01(a) hereof.
For the avoidance of doubt, following acceleration of any of the Notes Obligations or the LC Obligations, Foreign
Collateral Agent may, in its Permitted Discretion, hold any amount of the Foreign Recoveries (subject to the proviso set forth in subclause “first” above) in a non-interest bearing account(s) in the name of the Foreign Collateral Agent
with such financial institution as it may select (including itself) and for so long as the Foreign Collateral Agent shall think appropriate in its Permitted Discretion for later application as set forth herein in respect of any sum owing
to the Foreign Collateral Agent that the Foreign Collateral Agent reasonably considers might become due or owing at any time in the future.
SECTION 6.12 Currency Conversion. The Foreign Collateral Agent is under no obligation to make the payments to the Secured Parties above in the same currency as that
in which the obligations and liabilities owing to the Secured Parties are denominated. To the extent any payment from Foreign Collateral Agent to a Representative causes a currency conversion, the provisions of the Notes Documents or
the LC Documents (as applicable, based on the Representative receiving payment) relating to currency conversions shall apply.
SECTION 6.13 Swiss Collateral.
(a) In relation to Foreign Collateral which is subject to a security document governed by Swiss law, the LC Collateral Agent in its capacity as Foreign Collateral Agent shall:
(i) hold and administer any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by Swiss law as fiduciary (treuhänderisch)
in its own name but for the benefit of the Secured Parties; and
(ii) hold and administer any accessory Collateral (akzessorische Sicherheit) governed by Swiss law as direct representative (direkter
Stellvertreter) in the name and on behalf of the Secured Parties.
(b) The LC Collateral Agent in its capacity as Foreign Collateral Agent shall be empowered to:
(i) exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Foreign Collateral Agent under the relevant security documents governed by Swiss law together with
such powers and discretions as are reasonably incidental thereto;
(ii) take such action on its behalf as may from time to time be authorized under or in accordance with the relevant Foreign Collateral Documents governed by Swiss law; and
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right granted in
favor of any Secured Party under Swiss law in connection with the Notes Documents and/or the LC Documents and to agree to and execute in its name and on its behalf as its direct representative (direkter
Stellvertreter) any amendments, confirmations and/or alterations to any security document governed by Swiss law which creates a pledge or any other accessory security right (akzessorische
Sicherheit) including the release or confirmation of release of such Collateral, all subject to the provisions of this Agreement.
SECTION 6.14 Scottish Collateral.
(a) The Foreign Collateral Agent declares that it holds on trust for the Secured Parties, on the terms contained in this Article VI: (i) the Foreign Collateral expressed to be subject to the Liens created in favor of the
Foreign Collateral Agent as trustee for the Secured Parties by or pursuant to each Foreign Collateral Document which is governed by or subject to the laws of Scotland, and all proceeds of that Foreign Collateral; (ii) all obligations
expressed to be undertaken by any Grantor to pay amounts in respect of the Obligations to the Foreign Collateral Agent as trustee for the Secured Parties and secured by any Foreign Collateral Document which is governed by or subject to
the laws of Scotland together with all representations and warranties expressed to be given by any Grantor or any other person in favour of the Foreign Collateral Agent as trustee for the Secured Parties; and (iii) any other amounts or
property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Foreign Collateral Agent is required by the terms of the Notes Documents or the LC Documents to hold as trustee on trust for the
Secured Parties.
(b) Without prejudice to the other provisions of this Article VI, each other Collateral Agent hereby irrevocably authorizes the Foreign Collateral Agent to perform the duties, obligations and responsibilities and to exercise
the rights, powers, authorities and discretions specifically given to the Foreign Collateral Agent as trustee for the Secured Parties under or in connection with the Notes Documents and the LC Documents together with any other
incidental rights, powers, authorities and discretions. For the avoidance of doubt, the Foreign Collateral Agent in its capacity as trustee for the Secured Parties shall have the same rights, powers, immunities, indemnities and
exclusions from liability as are prescribed in favor of the Foreign Collateral Agent in this Agreement, which shall apply mutatis mutandis.
SECTION 6.15 Benefits of Foreign Collateral Agent
The provisions of this Article VI granting rights, privileges, immunities and indemnities to the LC
Collateral Agent or Notes Collateral Agent, as applicable, when acting as Foreign Collateral Agent, are intended to be in addition to, and shall not impair, the rights, privileges, immunities and indemnities granted to the LC Collateral
Agent and Notes Collateral Agent, as applicable, under the LC Documents and Notes Documents, as the case may be.
ARTICLE VII
Miscellaneous
SECTION 7.01 Legends. Each Security Document shall (and, to the extent already in existence, shall be amended to) include a
legend, substantially similar to the form provided below, describing this Agreement (except in the case of any foreign jurisdiction, where such legend is not customary or where otherwise prohibited by applicable law):
Reference is made to the Intercreditor Agreement (the “Intercreditor Agreement”),
dated as of August 28, 2020, among BTA Institutional Services Australia Limited (ABN 48 002 916 396), in its capacity as trustee of the LC Australian Security Trust referred to herein (when joined to such agreement, in such capacity,
together with its successors in substantially the same capacity as may from time to time be appointed, the “LC Australian Collateral Agent”), Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent and collateral agent for
the LC Secured Parties referred to herein (in such capacity, together with its successors and co-agents and, as applicable, sub-agents (including with respect to the LC Australian Collateral, the LC Australian Collateral Agent), in
substantially the same capacity as may from time to time be appointed, the “LC Collateral Agent”), Wilmington Trust, National Association (“Wilmington Trust”), as collateral agent for the Notes Secured Parties referred to herein (in such
capacity, together with its successors and co-agents and, as applicable, sub-agents, in substantially the same capacity as may from time to time be appointed, the “Notes Collateral Agent”), Weatherford International plc (“Parent”) and the
other Subsidiaries of the Parent from time to time party thereto. Each [Notes Secured Party] [LC Secured Party], through its Collateral Agent, by obtaining the benefits of this Agreement, (a) consents to the subordination of Liens
provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the [Notes Collateral Agent] [LC
Collateral Agent] to enter into the Intercreditor Agreement as [Notes Collateral Agent ] [LC Collateral Agent] on behalf of such Secured Party. The foregoing provisions are intended as an inducement to the [Notes Secured Parties] [LC
Secured Parties] to extend credit to [LC Borrowers] [Notes Issuer] or to acquire any notes or other evidence of any debt obligation owing from the [LC Borrowers] [Notes Issuer] and such [Notes Secured Parties] [LC Secured Parties] are
intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Agreement, the Liens
created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Notes Security Documents
and LC Security Documents (as defined in the ntercreditor Agreement). In the event of any conflict or inconsistency between the
provisions of this Agreement and the Intercreditor Agreement, the provisions of
the Intercreditor Agreement shall control.
SECTION 7.02 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Notes Collateral Agent, to it at:
Wilmington Trust, National Association
Global Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, Minnesota 55402
USA
Attention: Weatherford International Notes Administrator
Fax: 612-217-5651
(b) if to the LC Collateral Agent, to it at:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, Weatherford, SF0580
Fax: (646) 961-3317
(c) if to the LC Australian Collateral Agent, to it at:
BTA Institutional Services Australia Limited
Level 2, 1 Bligh Street
Sydney NSW 2000
Australia
Attention: Global Client Services
Fax: +61 2 9260 6009
Email: BNYM_CT_Aus_RMG@bnymellon.com
(d) if to the Grantors, to them at:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: General Counsel
Telephone: (713) 836-4000
Email: LegalWeatherford@weatherford.com
with a copy to:
c/o Weatherford International, LLC
2000 St. James Place
Houston, TX 77056
USA
Attention: Treasurer
Telephone: (713) 836-7460
Email: Mark.Rothleitner@weatherford.com; Josh.Silverman@weatherford.com
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to
the other parties hereto (and for this purpose a notice to the Parent shall be deemed to be a notice to each Grantor). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business
Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 7.02 or in accordance with the latest unrevoked direction from such party
given in accordance with this Section 7.02. As agreed to in writing among the Parent, the Notes Collateral Agent, the LC Collateral Agent, notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable Person provided from time to time by such Person.
SECTION 7.03 Waivers; Amendment.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)
of this Section 7.03, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Subject to Sections 2.03, 2.10, 2.11, Article 6 and 7.15 hereof, and except as set forth in Section 7.18, neither this Agreement nor any provision hereof may be terminated, waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by each Representative, each Collateral Agent and the Parent (for and on behalf of each of the other Grantors).
SECTION 7.04 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns,
all of whom are intended to be bound by this Agreement.
SECTION 7.05 Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 7.06 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall
constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 7.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of
which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.08 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to conflict of law
provisions, other than 5-1401 and 5‑1402 of the New York General Obligations Law.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto 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. Nothing in this
Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section 7.08. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.02. Nothing in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.10 Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 7.11 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the Notes Documents
and/or any of the LC Documents, the provisions of this Agreement shall control, except with respect to provisions governing the rights, privileges, immunities and indemnities of the Collateral Agents and Representatives, in their
capacities as such, in which case the applicable Notes Documents or LC Documents shall control.
SECTION 7.12 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative
rights of the Notes Secured Parties and the LC Secured Parties in relation to one another. None of the Grantors shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that
nothing in this Agreement (other than Sections 2.05, 2.06, 2.10, 2.11, Article V and Article VI) is intended to or will amend, waive or otherwise modify the provisions of the Notes Documents or any LC Documents), and none of the
Grantors may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair or relieve the obligations of the Grantors, which are absolute and unconditional, to pay the Obligations as and when the same shall become
due and payable in accordance with their terms. Notwithstanding anything to the contrary herein or in any Notes Document or any LC Obligations Document, the Grantors shall not be required to act or refrain from acting (a) pursuant to
this Agreement or any LC Obligations Document with respect to any Notes Priority Collateral in any manner that would cause a default under any Notes Document, or (b) pursuant to this Agreement or any Notes Document with respect to any
LC Priority Collateral in any manner that would cause a default under any LC Obligations Document. For the avoidance of doubt, the provisions of this agreement shall apply to the Notes Secured Parties solely in their capacity as Notes
Secured Parties and not in any other capacity.
SECTION 7.13 Agent Capacities. Except as expressly set forth herein, neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian
Collateral
Agent), shall have (i) any duties or obligations in respect of any of the Collateral, all of such duties and
obligations, if any, being subject to and governed by the Notes Documents and the LC Documents, as the case may be, or (ii) any liability or responsibility for the actions or omissions of any other Secured Party or for any other Secured
Party’s compliance with (or failure to comply with) the terms of this Agreement. Neither the Notes Collateral Agent, nor the LC Collateral Agent (including the LC Australian Collateral Agent) shall have individual liability to any Person
if it shall mistakenly pay over or distribute to any Secured Party (or Grantor) any amounts in violation of the terms of this Agreement, so long as such Person is acting in good faith and without willful misconduct. Furthermore, and
notwithstanding anything to the contrary contained herein, the LC Australian Collateral Agent shall act or refrain from acting with respect to the LC Australian Collateral only at the direction of the LC Administrative Agent.
SECTION 7.14 Supplements. Upon the execution by any Subsidiary of Parent of a supplement hereto in form and substance satisfactory to the Collateral Agents, such
subsidiary shall be a party to this Agreement and shall be bound by the provisions hereof to the same extent as each Grantor are so bound. The Parent shall cause any Subsidiary that becomes a Grantor to execute and deliver such
supplement.
SECTION 7.15 Collateral Agent Rights, Protections and Immunities.
In acting under or by virtue of this Agreement, the LC Collateral Agent and the LC Australian
Collateral Agent shall have the rights, protections, immunities and indemnities granted to the “Administrative Agent” and its respective sub-agents under the LC Credit Agreement, all of which are incorporated by reference herein, mutatis mutandis. In acting under or by virtue of this Agreement, the Notes Collateral Agent shall have the rights, protections, immunities and indemnities granted to the “Collateral Agent” under the
Notes Indenture, all of which are incorporated by reference herein, mutatis mutandis. In acting under or by virtue of this Agreement, the LC Australian Collateral Agent shall have the rights,
protections and immunities granted to the “LC Australian Collateral Agent” under the LC Australian Security Trust Deed.
SECTION 7.16 Other Junior Intercreditor Agreements.
In addition, in the event that the Parent or any Subsidiary incurs any obligations secured by a lien
on any Collateral that is junior to the LC Obligations or the Notes Obligations, then the Notes Collateral Agent and the LC Collateral Agent shall enter into an intercreditor agreement (at the sole cost and expense of the Grantors) with
the agent or trustee for the secured parties with respect to such secured obligation to reflect the relative lien priorities of such parties with respect to the Collateral and governing the relative rights, benefits and privileges as
among such parties in respect of the Collateral, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as such secured
obligations are permitted under, and the terms of such intercreditor agreement do not violate or conflict with, the provisions of this Agreement or the other Notes Documents or LC Documents, as the case may be. Each party hereto agrees
that the Notes Secured Parties (as among themselves) and the LC Secured Parties (as among themselves) may each enter into intercreditor agreements (or similar arrangements) with the Applicable Senior Collateral Agent governing the rights,
benefits and privileges as among the Notes Secured Parties or the LC Secured Parties, as the case may be, in respect of the Collateral, this Agreement and the applicable Senior
Secured Obligations Collateral Documents, as the case may be, including as to the application of proceeds of the
Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or the other applicable Senior
Secured Obligations Collateral Documents, as the case may be. If any such intercreditor agreement (or similar arrangement) is entered into, the provisions thereof shall not be (or be construed to be) an amendment, modification or other
change to this Agreement or any other Notes Document or LC Document, and the provisions of this Agreement and the other Notes Documents and LC Documents shall remain in full force and effect in accordance with the terms hereof and thereof
(as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms thereof, including to give effect to any intercreditor agreement (or similar arrangement)).
SECTION 7.17 Additional Grantors.
Promptly upon request by any Collateral Agent, any Person that becomes a Grantor after the date
hereof will provide to the Collateral Agents a fully signed acknowledgement, substantially in the form attached hereto as Exhibit B, consenting to the provisions of this Agreement and the intercreditor arrangements provided for
herein; provided that no failure on the part of any Collateral Agent to request or obtain such acknowledgement will in any way diminish or impair any of the rights of the Secured Parties
hereunder.
SECTION 7.18 Joinder of LC Australian Collateral Agent.
Substantially concurrently with its entry into the LC Australian Security Trust Deed, BTA
Institutional Services Australia Limited shall, without requiring the consent of any other party hereto, join to this Agreement by executing and delivering a joinder agreement substantially in the form attached hereto as Exhibit C.
SECTION 7.19 Purchase Right.
(a) Without prejudice to the enforcement of the LC Secured Parties’ rights and remedies, the LC Secured Parties agree that following the occurrence of (i) the occurrence of an Event of Default and acceleration of the LC Obligations
in accordance with the terms of the LC Documents, (ii) any enforcement action by any LC Secured Party with respect to any material portion of the Collateral, (iii) any Insolvency or Liquidation Proceeding, or (iv) any bankruptcy or
payment default under the Notes Indenture (each such event, a “Purchase Option Event”), then some or all of the Notes Secured Parties shall have the right to elect to purchase all but not less than all of the outstanding LC
Obligations, at par, without regard to any prepayment penalty or premium and without warranty, representation or recourse, for the Purchase Price (defined below); provided, with respect to any LC Obligations constituting Bank Product
Obligations, at the time of any such purchase pursuant to this Section 7.19, the Bank Product Obligations shall have been terminated in accordance with their terms. The participating Notes Secured Parties shall irrevocably exercise each
such purchase right by delivery of written notice of their intent to purchase the LC Obligations to the LC Collateral Agent at any time following the Purchase Option Event; provided,
unless the LC Collateral Agent otherwise consents, such written notice must be received by the LC Collateral Agent no later than the earlier to occur of (A) 10 Business Days after the LC Collateral Agent delivers to the Notes Trustee
written notice of the occurrence of any
Purchase Option Event described in clause (i), (ii) or (iii) above, or (B) if any bankruptcy or payment default under
the Notes Indenture has occurred and is continuing, 10 Business Days after LC Collateral Agent delivers written notice to the Notes Trustee that the LC Facility Secured Parties desire to sell or assign the LC Obligations and are actively
seeking to identify one or more Persons to purchase and acquire its LC Obligations from such LC Facility Secured Parties. The parties shall close such purchase and sale within 20 Business Days (or such shorter time as reasonably
specified by the participating Notes Secured Parties in such notice) after such delivery of such notice. To the extent that more than one Notes Secured Party elects to purchase the LC Obligations in accordance with this Section 7.19,
unless otherwise agreed upon by such Notes Secured Parties electing to purchase the LC Obligations, such Notes Secured Parties shall purchase all of the LC Obligations in accordance with this Section 7.19 on a ratable basis based
on their outstanding Notes Obligations.
(b) On the date of such purchase and sale (the “Purchase Date”), the participating Notes Secured Parties shall (i) pay to LC Collateral Agent (on behalf of all LC Facility Secured Parties) as the purchase price therefor, the
full amount of all the LC Obligations (other than LC Obligations cash collateralized in accordance with clause (b)(ii) below) then outstanding and unpaid, and (ii) furnish cash collateral to the LC Collateral Agent in such amounts as
the LC Collateral Agent determines is reasonably necessary to secure the LC Secured Parties in connection with any issued and outstanding Letters of Credit (as defined in the LC Credit Agreement) (but not in any event in an amount
greater than (I) 105% of the face amount of letters of credit denominated in a currency other than U.S. dollars and (II) 103% of the face amount with respect to letters of credit denominated in U.S. dollars. Such purchase price and
cash collateral (collectively, the “Purchase Price”) shall be remitted by wire transfer in federal funds to such bank account of the LC Collateral Agent as the LC Collateral Agent may designate in writing to the participating
Notes Secured Parties for such purpose. Interest shall be calculated to but exclude the Business Day on which such purchase and sale shall occur.
(c) Such purchase shall be expressly made without representation or warranty of any kind by the LC Secured Parties as to the LC Obligations or LC Documents so purchased or otherwise and without recourse to any LC Secured Party;
except that each LC Secured Party shall represent and warrant: (i) the amount of the LC Obligations being purchased from such LC Secured Party, (ii) that such LC Secured Party owns the LC Obligations free and clear of any Liens, and
(iii) that such LC Secured Party has the right to assign such LC Obligations and the assignment is duly authorized.
(d) In the event that the participating Notes Secured Parties exercise and consummate the purchase option set forth in this Section 7.19, (i) LC Collateral Agent and any other agent under the LC Documents shall have the
right, but not the obligation, to immediately resign under the LC Documents, and (ii) the participating Notes Secured Parties shall have the right, but not the obligation, to require LC Collateral Agent and such other agent to
immediately resign under the LC Documents.
(e) With respect to any cash collateral held under Section 7.4(b)(ii) above, after giving effect to any payment made and applied to amounts coming due with respect to any letters of credit (or termination thereof without a
drawing thereon), the amount of any cash collateral then on deposit with the LC Collateral Agent with respect to such obligations which exceeds the sum
of (x) 105% of the face amount of letters of credit denominated in a currency other than U.S. dollars and (y) 103% of
the face amount with respect to letters of credit denominated in U.S. dollars, shall promptly be returned to the Notes Collateral Agent (for the benefit of the applicable Notes Secured Parties).
(f) For the avoidance of doubt, notwithstanding anything to the contrary herein, (i) any obligations to pay the purchase price or furnish cash collateral in connection with the exercise of the purchase option set forth herein shall
be obligations of the participating Notes Secured Parties (and not the Notes Trustee or the Notes Collateral Agent) and (ii) the Notes Trustee and the Notes Collateral Agent shall have no obligations under this Section 7.19
except to the extent they are required to act in an administrative agent capacity for the applicable Notes Secured Parties in accordance with the applicable Notes Documents.
[Remainder of this page intentionally left blank; signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Notes Collateral Agent
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By:
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____________________________
Name:
Title:
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as LC Collateral Agent
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By:
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____________________________
Name:
Title:
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By:
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____________________________
Name:
Title:
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AUSTRALIA INITIAL GUARANTOR
Executed by WEATHERFORD AUSTRALIA PTY LIMITED ACN 008 947 395 in
accordance with section 127 of the Corporations Act 2001 (Cth):
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Signature of director
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Signature of company secretary
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Bruno Teixeira Bezarra
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Robert Antonio De Gasperis
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Full name of director
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Full name of company secretary
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BERMUDA INITIAL GUARANTORS
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WEATHERFORD INTERNATIONAL LTD.
By:_________________________________
Name:
Title:
WEATHERFORD INTERNATIONAL HOLDING (BERMUDA) LTD.
By:_________________________________
Name:
Title:
WEATHERFORD PANGAEA HOLDINGS LTD.
By:_________________________________
Name:
Title:
SABRE DRILLING LTD.
By:_________________________________
Name:
Title:
KEY INTERNATIONAL DRILLING COMPANY LIMITED
By:_________________________________
Name:
Title:
WEATHERFORD BERMUDA HOLDINGS LTD.
By:_________________________________
Name:
Title:
WEATHERFORD SERVICES, LTD.
By:_________________________________
Name:
Title:
WOFS ASSURANCE LIMITED
By:_________________________________
Name:
Title:
WEATHERFORD HOLDINGS (BERMUDA) LTD.
By:_________________________________
Name:
Title:
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BRITISH VIRGIN ISLANDS INITIAL GUARANTORS
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WEATHERFORD DRILLING INTERNATIONAL HOLDINGS (BVI) LTD.
By:_________________________________
Name:
Title:
WEATHERFORD DRILLING INTERNATIONAL (BVI) LTD.
By:_________________________________
Name:
Title:
WEATHERFORD COLOMBIA LIMITED
By:_________________________________
Name:
Title:
WEATHERFORD HOLDINGS (BVI) LTD.
By:_________________________________
Name:
Title:
WEATHERFORD OIL TOOL MIDDLE EAST LIMITED
By:_________________________________
Name:
Title:
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CANADA INITIAL GUARANTORS
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WEATHERFORD CANADA LTD.
By:_________________________________
Name:
Title:
WEATHERFORD (NOVA SCOTIA) ULC
By:_________________________________
Name:
Title:
PRECISION ENERGY SERVICES ULC
By:_________________________________
Name:
Title:
PRECISION ENERGY INTERNATIONAL LTD.
By:_________________________________
Name:
Title:
PRECISION ENERGY SERVICES COLOMBIA LTD.
By:_________________________________
Name:
Title:
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ENGLAND INITIAL GUARANTORS
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SIGNED for and on behalf of
WEATHERFORD EURASIA LIMITED
By:_________________________________
Name:
Title:
SIGNED for and on behalf of
WEATHERFORD U.K. LIMITED
By:_________________________________
Name:
Title:
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GERMANY INITIAL GUARANTORS
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SIGNED for and on behalf of
WEATHERFORD OIL TOOL GMBH
By:_________________________________
Name:
Title:
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IRELAND INITIAL GUARANTORS
GIVEN under the COMMON SEAL
of WEATHERFORD INTERNATIONAL PUBLIC LIMITED COMPANY
and this Deed was delivered:
_________________________________
Director
_________________________________
Director/Secretary
GIVEN under the COMMON SEAL
of WEATHERFORD IRISH HOLDINGS LIMITED
and this Deed was delivered:
_________________________________
Director
_________________________________
Director/Secretary
LUXEMBOURG INITIAL GUARANTORS
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WEATHERFORD INTERNATIONAL (LUXEMBOURG) HOLDINGS S.À R.L.
société à responsabilité limitée
8-10, avenue de la Gare
L-1610 Luxembourg
R.C.S. Luxembourg B146.622
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
WEATHERFORD EUROPEAN HOLDINGS (LUXEMBOURG) S.À R.L.
société à responsabilité limitée
8-10, avenue de la Gare
L-1610 Luxembourg
R.C.S. Luxembourg B150.992
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
|
NETHERLANDS INITIAL GUARANTOR
|
WEATHERFORD NETHERLANDS B.V.
By:_________________________________
Name:
Title:
|
NORWAY INITIAL GUARANTOR
|
WEATHERFORD NORGE AS
By:_________________________________
Name:
Title:
|
PANAMA INITIAL GUARANTOR
|
WEATHERFORD SERVICES S. DE R.L.
By:_________________________________
Name:
Title:
|
SWITZERLAND INITIAL GUARANTORS
|
WOFS INTERNATIONAL FINANCE GMBH
By:_________________________________
Name:
Title:
WEATHERFORD WORLDWIDE HOLDINGS GMBH
By:_________________________________
Name:
Title:
WEATHERFORD SWITZERLAND TRADING AND DEVELOPMENT GMBH
By:_________________________________
Name:
Title:
WEATHERFORD MANAGEMENT COMPANY SWITZERLAND SÀRL
By:_________________________________
Name:
Title:
WEATHERFORD PRODUCTS GMBH
By:_________________________________
Name:
Title:
WEATHERFORD HOLDINGS (SWITZERLAND) GMBH
By:_________________________________
Name:
Title:
|
UNITED STATES INITIAL GUARANTORS
|
WEATHERFORD INTERNATIONAL, LLC
By:_________________________________
Name:
Title:
WEUS HOLDING, LLC
By:_________________________________
Name:
Title:
WEATHERFORD ARTIFICIAL LIFT SYSTEMS, LLC
By:_________________________________
Name:
Title:
PD HOLDINGS (USA), L.P.
By:_________________________________
Name:
Title:
PRECISION ENERGY SERVICES, INC.
By:_________________________________
Name:
Title:
WEATHERFORD U.S., L.P.
By:_________________________________
Name:
Title:
WEATHERFORD/LAMB, INC.
By:_________________________________
Name:
Title:
WEATHERFORD INVESTMENT INC.
By:_________________________________
Name:
Title:
PRECISION OILFIELD SERVICES, LLP
By:_________________________________
Name:
Title:
VISUAL SYSTEMS, INC.
By:_________________________________
Name:
Title:
COLUMBIA OILFIELD SUPPLY, INC.
By:_________________________________
Name:
Title:
EPRODUCTION SOLUTIONS, LLC
By:_________________________________
Name:
Title:
ADVANTAGE R&D, INC.
By:_________________________________
Name:
Title:
DISCOVERY LOGGING, INC.
By:_________________________________
Name:
Title:
CASE SERVICES, INC.
By:_________________________________
Name:
Title:
WARRIOR WELL SERVICES, INC.
By:_________________________________
Name:
Title:
DATALOG ACQUISITION, LLC
By:_________________________________
Name:
Title:
EDINBURGH PETROLEUM SERVICES AMERICAS INCORPORATED
By:_________________________________
Name:
Title:
WEATHERFORD GLOBAL SERVICES LLC
By:_________________________________
Name:
Title:
INTERNATIONAL LOGGING S.A., LLC
By:_________________________________
Name:
Title:
IN-DEPTH SYSTEMS, INC.
By:_________________________________
Name:
Title:
BENMORE IN-DEPTH CORP.
By:_________________________________
Name:
Title:
WEATHERFORD TECHNOLOGY HOLDINGS, LLC
By:_________________________________
Name:
Title:
STEALTH OIL & GAS, INC.
By:_________________________________
Name:
Title:
WEATHERFORD MANAGEMENT, LLC
By:_________________________________
Name:
Title:
WEATHERFORD (PTWI), L.L.C.
By:_________________________________
Name:
Title:
WEATHERFORD LATIN AMERICA LLC
By:_________________________________
Name:
Title:
WIHBV LLC
By:_________________________________
Name:
Title:
WUS HOLDING, L.L.C.
By:_________________________________
Name:
Title:
WEATHERFORD DISC INC.
By:_________________________________
Name:
Title:
HIGH PRESSURE INTEGRITY, INC.
By:_________________________________
Name:
Title:
TOOKE ROCKIES, INC.
By:_________________________________
Name:
Title:
COLOMBIA PETROLEUM SERVICES CORP.
By:_________________________________
Name:
Title:
INTERNATIONAL LOGGING LLC
By:_________________________________
Name:
Title:
PRECISION DRILLING GP, LLC
By:_________________________________
Name:
Title:
VISEAN INFORMATION SERVICES INC.
By:_________________________________
Name:
Title:
WEATHERFORD URS HOLDINGS, LLC
By:_________________________________
Name:
Title:
|
EXHIBIT A
Exhibit A – Joinder to Intercreditor Agreement
Exhibit A-1
JOINDER AGREEMENT
(LC Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time,
this “Agreement”), dated as of [___], is among [____], as a LC Collateral Agent (the “New Collateral Agent”),
Wilmington Trust, as Notes Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020
(as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New
Collateral Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as LC Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Collateral Agent as if it had originally been party to the Intercreditor
Agreement as an LC Collateral Agent.
SECTION 2.02 The New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the LC Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________] is acting in its capacity as LC Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by
facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
Exhibit A-2
JOINDER AGREEMENT
(Notes Obligations)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time,
this “Agreement”), dated as of [___], is among [_____], as a Notes Collateral Agent (the “New Collateral Agent”),
Wilmington Trust, as Notes Collateral Agent, DBTCA, as LC Collateral Agent, and Parent (on behalf of itself and its Subsidiaries).
This Agreement is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020
(as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New
Collateral Agent) referred to above. This Agreement has been entered into to record the accession of the New Collateral Agent as Notes Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The New Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the Notes Collateral Agent as if it had originally been party to the
Intercreditor Agreement as a Notes Collateral Agent.
SECTION 2.02 The New Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
SECTION 2.03 Each party to this Agreement (other than the New Collateral Agent) confirms the acceptance of the New Collateral Agent as the Notes Collateral Agent for purposes of the Intercreditor Agreement.
SECTION 2.04 [________] is acting in its capacity as Notes Collateral Agent solely for the Secured Parties under [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This Agreement and any claim, controversy or dispute arising under or related to such Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by
facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
[INSERT SIGNATURE BLOCKS]
EXHIBIT B
Exhibit B – Grantor Acknowledgement to Intercreditor Agreement
INTERCREDITOR AGREEMENT ACKNOWLEDGMENT
1. Acknowledgement.
[______________] (“New Grantor”) acknowledges, as of [___], that it has received a copy of the Intercreditor Agreement dated as of August 28, 2020, between Wilmington Trust, National Association, as Notes Collateral Agent,
Deutsche Bank Trust Company Americas as LC Collateral Agent, and Weatherford International PLC and certain of its affiliates party thereto as Grantors (the “Intercreditor Agreement”) as in effect on the date hereof, and consents
thereto, agrees to recognize all rights granted thereby to the Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent and the other LC Secured Parties, and agrees that it shall not do any act or perform any
obligation which is not in accordance with the agreements set forth in the Intercreditor Agreement as in effect on the date hereof (as amended or otherwise modified in accordance with the provisions thereof, including any necessary
consents by each Grantor to the extent required thereby). New Grantor further acknowledges and agrees that (a) New Grantor is not a beneficiary or third party beneficiary of the Intercreditor Agreement, (b) New Grantor has no rights
under the Intercreditor Agreement, and New Grantor may not rely on the terms of the Intercreditor Agreement, and (c) that the obligations of the New Grantor under the Notes Security Documents, the LC Security Documents or the Foreign
Collateral Documents will in no way be diminished or otherwise affected by the provisions or arrangements in the Intercreditor Agreement.
2. Notices.
The address of the New Grantor and the other Grantors for purposes of Section 7.02 of the Intercreditor Agreement is:
[_____________]
[_____________]
[_____________]
with a copy to:
[_____________]
[_____________]
[_____________]
3. Counterparts.
This Acknowledgement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one document. Delivery of an executed signature page to this
Acknowledgement by facsimile transmission or by email as a “.pdf” or “.tif” attachment shall be as effective as delivery of a manually signed counterpart of this Acknowledgement.
4. Governing
Law. THIS ACKNOWLEDGEMENT AND ANY CLAIM CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INTERCREDITOR AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CONFLICT OF LAWS PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. Sections 7.08 and 7.09 of the Intercreditor Agreement are hereby incorporated by reference herein, mutatis mutandis.
5. Credit
Document. This Acknowledgement shall constitute a Notes Document and a LC Document and as a “Loan Document” under the LC Credit Agreement and an “Indenture Document” under the Notes Indenture.
6. Miscellaneous.
The Notes Collateral Agent, the other Notes Secured Parties, the LC Collateral Agent, the other LC Secured Parties, and the Foreign Collateral Agent are the intended beneficiaries of this Acknowledgement. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
[signature page follows]
EXHIBIT C
Exhibit C – Joinder Agreement (LC Australian Collateral Agent)
JOINDER AGREEMENT
(LC Australian Collateral Agent)
This JOINDER AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time,
this “Joinder”), dated as of [___], is provided by BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust
(the “LC Australian Collateral Agent”).
This Joinder is supplemental to that certain Intercreditor Agreement, dated as of August 28, 2020 (as
the same may be amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among Wilmington Trust, DBTCA, the Parent and its
Subsidiaries party thereto. This Joinder has been entered into to record the joinder of BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED ABN 48 002 916 396 in its capacity as trustee of the LC Australian Security Trust as LC Australian
Collateral Agent under the Intercreditor Agreement.
ARTICLE I
Definitions
SECTION 1.01 Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
ARTICLE II
Accession
SECTION 2.01 The LC Australian Collateral Agent agrees to become, with immediate effect, a party to and agrees to be bound by the terms of, the Intercreditor Agreement as the LC Australian Collateral Agent as if it had originally been party
to the Intercreditor Agreement as an LC Australian Collateral Agent.
SECTION 2.02 The LC Australian Collateral Agent confirms that its address details for notices pursuant to the Intercreditor Agreement are as follows: [_____________].
ARTICLE III
Miscellaneous
SECTION 3.01 This Joinder and any claim, controversy or dispute arising under or related to such Joinder shall be governed by, and construed in accordance with, the law of the State of New York.
SECTION 3.02 This Joinder may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Joinder by
facsimile transmission or any other electronic means shall be as effective as delivery of a manually signed counterpart of this Joinder.
SECTION 3.03 Clause [___] (Limitation of liability of LC Australian Collateral Agent) of the LC Australian Security Trust Deed is incorporated by reference in this Joinder as if set out in full herein, mutatis
mutandis.
[Remainder of this page intentionally left blank; signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Joinder to be duly executed by their
respective authorized officers as of the day and year first above written.
BTA INSTITUTIONAL SERVICES AUSTRALIA LIMITED (ABN 48 002 916 396) in its capacity as trustee of the LC Australian
Security Trust, as LC Australian Collateral Agent
By attorney:_______________________________
Name:
Title:
under power of attorney dated 1 September 2007 in the presence of:
Witness:___________________________________
Name:
SCHEDULE I
Schedule I – Foreign Collateral Documents
|
|
Jurisdiction of Guarantor
|
Jurisdiction of Collateral
|
1
|
Amendment Agreement by Weatherford Oil Tool GmbH, Weatherford Technology Holdings, LLC, Weatherford/Lamb, Inc., Weatherford U.K. Limited, Weatherford
Norge AS, Weatherford Worldwide Holdings GmbH, Weatherford Holding GmbH
|
Germany,
US, England, Norway, Switzerland
|
Germany
|
2
|
Assignment Agreement in relation to receivables (trade receivables, intra group receivables) to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
3
|
German law governed inventory transfer agreement to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
4
|
Assignment Agreement in relation to IP Rights to be entered into by Weatherford Technology Holdings LLC, Weatherford / Lamb Inc., Weatherford UK Limited,
Weatherford Norge AS
|
US, England, Norway
|
Germany
|
5
|
Account Pledge Agreement to be entered into by Weatherford Oil Tool GmbH
|
Germany
|
Germany
|
6
|
Share Pledge Agreement in relation to shares in Weatherford Central Europe GmbH to be entered into by Weatherford Worldwide Holdings GmbH
|
Switzerland
|
Germany
|
7
|
Share Pledge Agreement in relation to shares in Weatherford Oil Tool GmbH to be entered into by Weatherford Holding GmbH
|
Germany
|
Germany
|
9
|
Quota pledge agreement regarding quotas in Weatherford Worldwide Holdings GmbH, entered into by Weatherford Irish Holdings Limited, as amended on the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Ireland
|
Switzerland
|
10
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Management Company Switzerland Sàrl
|
Switzerland
|
Switzerland
|
11
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Products GmbH
|
Switzerland
|
Switzerland
|
12
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Switzerland Trading and Development GmbH
|
Switzerland
|
Switzerland
|
13
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Worldwide Holdings GmbH
|
Switzerland
|
Switzerland
|
14
|
Quota pledge agreement regarding quotas in Weatherford South America GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
15
|
Quota pledge agreement regarding quotas in Weatherford Products GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
16
|
Quota pledge agreement regarding quotas in Weatherford Switzerland Trading and Development GmbH, entered into by Weatherford Worldwide Holdings GmbH, as
amended as of the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
17
|
Quota pledge agreement regarding quotas in Weatherford Management Company Switzerland Sàrl, entered into by Weatherford Worldwide Holdings GmbH, as
amended as of the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
18
|
Quota pledge agreement regarding quotas in WOFS International Finance GmbH, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the
date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
19
|
Quota pledge agreement regarding quotas in Weatherford Holdings (Switzerland) GmbH, entered into by Weatherford Worldwide Holdings GmbH, as amended as of
the date hereof by a confirmation and amendment agreement to quota pledge agreements
|
Switzerland
|
Switzerland
|
20
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
WOFS International Finance GmbH
|
Switzerland
|
Switzerland
|
21
|
Security assignment agreement regarding trade receivables, intra-group receivables, insurance receivables and bank account claims, to be entered into by
Weatherford Holdings (Switzerland) GmbH,
|
Switzerland
|
Switzerland
|
22
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Holdings (Switzerland) GmbH, as amended as of the
date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
23
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Management Company Switzerland Sàrl, as amended as
of the date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
24
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Products GmbH, as amended as of the date hereof by
a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
265
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Switzerland Trading and Development GmbH, as
amended as of the date hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
26
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by Weatherford Worldwide Holdings GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
27
|
IP pledge agreement regarding existing and future IP rights in Switzerland, entered into by WOFS International Finance GmbH, as amended as of the date
hereof by a confirmation and amendment agreement to pledge agreements
|
Switzerland
|
Switzerland
|
28
|
Pledge agreements regarding Rental Tools, to be entered into by Weatherford Products GmbH,
|
Switzerland
|
Switzerland
US
|
29
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford Technology Holdings, LLC, as amended as of the date hereof by
a confirmation and amendment agreement to pledge agreements
|
US
|
Switzerland
|
30
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Visual Systems, Inc., as amended as of the date hereof by a confirmation
and amendment agreement to pledge agreements
|
US
|
Switzerland
|
31
|
IP pledge agreement regarding certain IP rights in Switzerland, entered into by Weatherford U.S., L.P., as amended as of the date hereof by a confirmation
and amendment agreement to pledge agreements
|
US
|
Switzerland
|
U.S. SECURITY AGREEMENT
dated as of December 13, 2019
as amended by Amendment No. 1, dated as of August 28, 2020
among
WEATHERFORD INTERNATIONAL PLC,
WEATHERFORD INTERNATIONAL LTD.,
WEATHERFORD INTERNATIONAL, LLC,
and
the other GRANTORS from time to time party hereto,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Reference is made to the Intercreditor Agreement (the “Intercreditor Agreement”), dated as of
August 28, 2020, among BTA Institutional Services Australia Limited (ABN 48 002 916 396), when joined thereto, as LC Australian Collateral Agent (as defined in the Intercreditor Agreement), Deutsche Bank Trust Company Americas, as
LC Collateral Agent (as defined in the Intercreditor Agreement) for the LC Secured Parties referred to therein, Wilmington Trust, National Association, as Notes Collateral Agent (as defined in the Intercreditor Agreement) for the
Notes Secured Parties referred to therein, Weatherford International plc, a public limited company incorporated in the Republic of Ireland, and the other Subsidiaries of the Parent from time to time party thereto. Each LC Secured
Party, through the LC Collateral Agent, by obtaining the benefits hereof, (a) consents to the subordination of Liens provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary
to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the LC Collateral Agent to enter into the Intercreditor Agreement as LC Collateral Agent on behalf of such Secured Party. The foregoing provisions
are intended as an inducement to the LC Secured Parties to extend credit to the Borrowers (as defined herein) or to acquire any notes or other evidence of any debt obligation owing from the Borrowers and such LC Secured Parties are
intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
Notwithstanding any other provision contained herein, this Security Agreement, the Liens created hereby and the rights, remedies,
duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Notes Security Documents and LC Security Documents (as
defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Security Agreement and the Intercreditor Agreement, subject to Section 4.6.4 hereof and any other limitation on
rights of the Agent or other Secured Party with respect to the ULC Shares hereunder, the provisions of the Intercreditor Agreement shall control.
AMENDMENT NO. 1, dated as of August 28, 2020, to U.S. SECURITY AGREEMENT, dated as of December
13, 2019 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Security Agreement”), by and among the entities listed on the
signature pages hereto (such listed entities, collectively, the “Initial Grantors” and, together with any other Subsidiaries of Weatherford International plc, an Irish public
limited company (“WIL-Ireland”),whether now existing or hereafter formed or acquired, that become parties to this Security Agreement from time to time in accordance with the
terms of the LC Credit Agreement described below by executing a Security Agreement Supplement hereto in substantially the form of Annex I, each, a “Grantor” and,
collectively, the “Grantors”), and Deutsche Bank Trust Company Americas in its capacity as administrative agent (in such capacity, the “Agent”) for itself and on behalf and for the benefit of the other Secured Parties (as defined below).
PRELIMINARY STATEMENTS
WIL-Ireland, Weatherford International Ltd., a Bermuda exempted company (“WIL-Bermuda”), Weatherford International LLC, a Delaware limited liability company (“WIL-Delaware” and together with
WIL-Bermuda, the “Borrowers”), the Agent, and the Lenders are entering into that certain LC Credit Agreement dated as of December 13, 2019 (as amended by Amendment No. 1 to
LC Credit Agreement, dated as of August 28, 2020 and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “LC Credit Agreement”).
The Grantors are entering into this Security Agreement in order to induce the Lenders to enter
into and extend credit to the Borrowers under the LC Credit Agreement on the terms set forth therein.
ACCORDINGLY, the Grantors and the Agent, for itself and on behalf and for the benefit of the
other Secured Parties, hereby agree as follows:
DEFINITIONS
1.1. Terms Defined in the LC Credit Agreement and the Intercreditor Agreement. All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to such terms in the LC Credit
Agreement and the Intercreditor Agreement.
1.2. Terms Defined in UCC. Terms defined in the UCC that are not otherwise defined in this Security Agreement are used herein as defined in the UCC.
1.3. Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the terms defined in the Preliminary Statement, the following terms shall have the following meanings:
“Accounts” shall have the meaning set forth in Article 9 of the UCC.
“Article” means a numbered article of this Security Agreement, unless another document is
specifically referenced.
“Chattel Paper” shall have the meaning set forth in Article 9 of the UCC.
“Collateral” means, with respect to any Grantor that is organized or incorporated in the
United States, all Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instruments, Intellectual Property, Inventory, Investment Property,
letters of credit, Letter of Credit Rights, Pledged Deposits, Supporting Obligations and Other Collateral, wherever located, in which any Grantor now has or hereafter acquires any right or interest, and the proceeds (including Stock
Rights), insurance proceeds and products thereof, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto. Notwithstanding any of
the foregoing, Collateral shall not include any Excluded Assets.
“Commercial Tort Claims” means commercial tort claims, as defined in the UCC of any
Grantor, including each commercial tort claim specifically described in Exhibit “F”.
“Control” shall have the meaning set forth in Article 8 or, if applicable, in Section
9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC or Section 16 of the UETA, as applicable.
“Control Agreement” means a control agreement, in form and substance reasonably
satisfactory to the Agent, executed and delivered by a Grantor, the Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account), or an equivalent agreement under
any applicable foreign jurisdiction.
“Copyrights” means, with respect to any Person, all of such Person’s right, title, and
interest in and to the following: (i) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (ii) all renewals of any of the foregoing; (iii) all
income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; and (iv) all rights
corresponding to any of the foregoing throughout the world.
“Copyright Security Agreement” means each Confirmatory Grant in U.S. Copyrights executed
and delivered by any Grantor in favor of Agent in a form substantially similar to the Trademark Security Agreement and the Patent Security Agreement.
“Deposit Accounts” shall have the meaning set forth in Article 9 of the UCC.
“Determination Date” means the most recent to occur of (i) in the case of an Initial
Grantor, the date hereof or, in the case of any other Grantor, the date such Grantor becomes a party hereto and (ii) the most recent date on which the Borrowers deliver to the Agent a Compliance Certificate accompanied by updated
Exhibits to this Security Agreement pursuant to Section 4.11 hereof.
“Documents” shall have the meaning set forth in Article 9 of the UCC.
“Domestic Grantor” means any Grantor that is a Domestic Subsidiary.
“Equipment” shall have the meaning set forth in Article 9 of the UCC.
“Exclusive Copyright License” means an exclusive license to a U.S. registered copyright.
“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document
is specifically referenced.
“Farm Products” shall have the meaning set forth in Article 9 of the UCC.
“Fixtures” shall have the meaning set forth in Article 9 of the UCC.
“Foreign Grantor” means any Grantor that is not a Domestic Grantor.
“General Intangibles” shall have the meaning set forth in Article 9 of the UCC and, in any
event, includes payment intangibles, contract rights, rights to payment, rights arising under common law, statutes, or regulations, choses in action, Intellectual Property, programs, programming materials, blueprints, drawings,
purchase orders, customer lists, monies due or recoverable from pension funds, route lists, computer programs, information contained on computer disks or tapes, software, literature, reports, catalogs, pension plan refunds, pension
plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the UCC, and any other personal property
other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, Goods, Investment Property, negotiable Collateral, and oil, gas, or other minerals before extraction.
“Goods” shall have the meaning set forth in Article 9 of the UCC.
“Industrial Designs” means (i) registered industrial designs and industrial design
applications, and also includes registered industrial designs and industrial design applications listed in Exhibit “B”, (ii) all renewals, divisions and any industrial design registrations issuing thereon and any and all
foreign applications corresponding thereto, (iii) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith
and damages and payments for past or future infringements thereof, (iv) the right to sue for past, present and future infringements thereof; and (v) all rights corresponding to any of the foregoing throughout the world.
“Instruments” shall have the meaning set forth in Article 9 of the UCC.
“Intercompany Instrument” means an Instrument between a Grantor, as the payee thereunder,
and WIL-Ireland or any of its Restricted Subsidiaries, as the payor thereunder.
“Intellectual Property” means all Patents, Trademarks, Copyrights, Licenses, Industrial
Designs and any other intellectual property.
“Inventory” shall have the meaning set forth in Article 9 of the UCC.
“Investment Property” shall have the meaning set forth in Article 9 of the UCC.
“Legal Reservations” means (i) the principle that equitable remedies are remedies which
may be granted or refused at the discretion of the court, the principle of fairness and
reasonableness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors, (ii) the time barring of claims under applicable limitation laws including the Limitation Act 1980 and the Foreign
Limitation Periods Act 1984 in the United Kingdom, the possibility that an undertaking to assume liability for, or to indemnify a person against, non-payment of stamp duty may be void and defences of set-off and counterclaim, and
(iii) similar principles, rights and defences under the laws of any relevant jurisdiction.
“Letter of Credit Rights” shall have the meaning set forth in Article 9 of the UCC.
“Licenses” means, with respect to any Person, all of such Person’s right, title, and
interest in and to (i) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights or Trademarks, (ii) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with
respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and (iii) all rights to sue for past, present, and future breaches thereof.
“Other Collateral” means any personal property of the Grantors, not included within the
defined terms Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Fixtures, Farm Products, General Intangibles, Goods, Instruments, Intellectual Property, Inventory, Investment Property, Letter of
Credit Rights, Pledged Deposits and Supporting Obligations, including, without limitation, all cash on hand, letters of credit, Stock Rights or any other deposits (general or special, time or demand, provisional or final) with any
bank or other financial institution, it being intended that the Collateral include all personal property of the Grantors, subject to the exclusions or limitations contained in Article II of this Security Agreement; provided, however,
that Other Collateral shall not include any Excluded Assets.
“Patents” means, with respect to any Person, all of such Person’s right, title, and
interest in and to: (i) any and all patents and patent applications; (ii) all inventions and improvements described and claimed therein; (iii) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part
thereof; (iv) all licenses of the foregoing whether as licensee or licensor; (v) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation,
damages and payments for past and future infringements thereof; (vii) all rights to sue for past, present, and future infringements thereof; and (viii) all rights corresponding to any of the foregoing throughout the world.
“Patent Security Agreement” means each Confirmatory Grant in U.S. Patents executed and
delivered by any Grantor in favor of Agent in substantially the form of Exhibit “K”.
“Pledged Collateral” means all Instruments, Securities and other Investment Property of
the Grantors to the extent constituting Collateral hereunder, whether or not physically delivered to the Agent pursuant to this Security Agreement.
“Pledged Deposits” means all time deposits of money (other than Deposit Accounts and
Instruments), whether or not evidenced by certificates, which a Grantor may from time to time designate as pledged to the Agent or to any Secured Party as security for any Secured Obligations, and all rights to receive interest on
said deposits.
“Receivables” means the Accounts, Chattel Paper, Documents, Investment Property, Instruments
or Pledged Deposits, and any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral; provided, however, that Receivables shall not include any Excluded
Assets.
“Section” means a numbered section of this Security Agreement, unless another document is
specifically referenced.
“Securities Account” shall have the meaning set forth in Article 8 of the UCC.
“Security” shall have the meaning set forth in Article 8 of the UCC.
“Specified Deposit Account” means any Deposit Account of a Grantor other than the Excluded
Accounts.
“Specified Intellectual Property” means any Intellectual Property of one or more Grantors
(i) the book value of which exceeds $5,000,000 individually or in the aggregate, (ii) which generates annual revenue, royalties or license fees of greater than $5,000,000 or (iii) which, in the commercially reasonable judgment of the
Grantors, is material to the conduct of all or a material portion of the business of WIL-Ireland and its Restricted Subsidiaries.
“Stock Rights” means any securities, dividends, instruments or other distributions and
any other right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to
receive Capital Stock and any right to receive earnings, in which any Grantor now has or hereafter acquires any right, issued by an issuer of such securities.
“Supporting Obligation” shall have the meaning set forth in Article 9 of the UCC.
“Trademarks” means, with respect to any Person, all of such Person’s right, title, and
interest in and to the following: (i) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by
the foregoing; (ii) all licenses of the foregoing, whether as licensee or licensor; (iii) all renewals of the foregoing; (iv) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto,
including, without limitation, damages, claims, and payments for past and future infringements thereof; (v) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving
claims and demands for royalties owing; and (vi) all rights corresponding to any of the foregoing throughout the world.
“Trademark Security Agreement” means each Confirmatory Grant in U.S. Trademarks executed
and delivered by any Grantor in favor of Agent in substantially the form of Exhibit “L”.
“UETA” means the Uniform Electronic Transactions Act as in effect from time to time in any
applicable jurisdiction.
“ULC” means a Person that is an unlimited company, unlimited liability corporation or
unlimited liability company.
“ULC Laws” means the Companies Act (Nova Scotia),
the Business Corporations Act (Alberta), the Business Corporations Act (British Columbia) and any other present or future Laws governing ULCs.
“ULC Shares” means shares in the capital stock of, or other equity interests of, a ULC.
The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.
ARTICLE II
GRANT OF SECURITY INTEREST
Each of the Grantors hereby pledges, assigns (except in the case of the ULC Shares) and grants to
the Agent, on behalf of and for the benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest, whether now owned or hereafter acquired, in and to the Collateral to secure the prompt and
complete payment and performance of the Secured Obligations. For the avoidance of doubt, the grant of a security interest herein shall not be deemed to be an assignment of any ULC Shares or any intellectual property rights owned by
the Grantors (other than the collateral assignment pursuant hereto).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Initial Grantors represents and warrants to the Agent and the Secured Parties, and
each Grantor that becomes a party to this Security Agreement pursuant to the execution of a Security Agreement Supplement in substantially the form of Annex I represents and warrants (after giving effect to supplements to each
of the Exhibits hereto, with respect to such subsequent Grantor, as attached to such Security Agreement Supplement), that:
3.1. Title, Authorization, Validity and Enforceability. Subject to Section 3.10.10, such Grantor has good and valid rights in or the power to transfer its respective Collateral, free and clear of all Liens
except for Liens permitted under Section 8.04 of the LC Credit Agreement, and has the corporate, unlimited liability company, limited liability company or partnership, as applicable, power and authority to grant to the Agent the
security interest in such Collateral pursuant hereto. The execution and delivery by such Grantor of this Security Agreement have been duly authorized by corporate, unlimited liability company, limited liability company, limited
partnership or partnership, as applicable, proceedings or actions, and this Security Agreement constitutes a legal, valid and binding obligation of such Grantor and creates a security interest which is enforceable against such
Grantor in all Collateral it now owns or hereafter acquires, except (i) as enforceability may be limited by bankruptcy, insolvency, examinership, reorganization, moratorium, fraudulent transfer or other similar laws relating to or
affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a proceeding in equity or at law),
(ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy, and (iii) in the case of each Grantor incorporated in England and Wales, is
subject to Legal Reservations or the need for filings and registrations necessary to create or perfect the Liens on
the Collateral granted by each Grantor incorporated in England and Wales in favor of the Secured Parties. When financing statements have been filed in the appropriate offices against such Grantor in the locations listed in Exhibit
“E”, Agent shall have a perfected security interest (with the priority set forth in the Intercreditor Agreement and subject only to Liens permitted by Section 8.04 of the LC Credit Agreement) in the Collateral of each Grantor to
the extent such security interest can be perfected by the filing of a financing statement under the Code.
3.2. Conflicting Laws and Contracts. Neither the execution and delivery by such Grantor of this Security Agreement, the creation and perfection of the security interest in the Collateral granted hereunder, nor
compliance with the terms and provisions hereof (i) will breach or violate any applicable Requirement of Law binding on such Grantor, (ii) will result in any breach or violation of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien prohibited under the LC Credit Agreement, upon any of its property or assets pursuant to the terms of (a) the Senior Secured Notes Indenture or (b) any other
indenture, agreement or other instrument to which such Grantor is a party or by which any property or asset of it is bound or to which it is subject, except for breaches, violations and defaults under clauses (i) and (ii)(b)
that collectively for the Grantors would not have a Material Adverse Effect, or (iii) will violate any provision of such Grantor’s charter, articles or certificate of incorporation or formation, memorandum of association,
partnership agreement, by-laws, bye-laws or operating agreement (or similar constitutive document).
3.3. Principal Location. Such Grantor’s mailing address and the location of its place of business (if it has only one) or its chief executive office (if it has more than one place of business), are disclosed, as of
the applicable Determination Date, in Exhibit “A”.
3.4. Property Locations. Exhibit “A” lists, as of the applicable Determination Date, all of such Grantor’s locations (limited, in the case of any Foreign Grantor, to its United States locations) where
Inventory and Equipment constituting Collateral are located (other than any such location where the book value of all Inventory and Equipment located thereon does not exceed $10,000,000). Such Exhibit “A” shall indicate
whether such locations are locations (i) owned by a Grantor, (ii) leased by such Grantor as lessee or (iii) at which Inventory is held in a public warehouse or is otherwise held by a bailee or on consignment by such Grantor.
3.5. No Other Names; Etc. Within the five-year period ending as of the date such Person becomes a Grantor hereunder, such Grantor has not conducted business under any other name, changed its jurisdiction of
organization or incorporation, merged with or into or consolidated or amalgamated with any other Person, except as disclosed in Exhibit “A”. The name in which such Grantor has executed this Security Agreement (or a Security
Agreement Supplement) is, as of the date such agreement is executed and delivered, the exact name as it appears in such Grantor’s charter or certificate of incorporation or formation (or similar formation document), as amended, as
filed with such Grantor’s jurisdiction of organization or incorporation as of the date such Person becomes a Grantor hereunder.
3.6. Accounts and Chattel Paper. The names of the obligors, amounts owing, due dates and other information with respect to the Accounts and Chattel Paper owned by such Grantor and constituting Collateral are and
will be correctly stated in all material respects in all records of such
Grantor relating thereto and in all invoices and reports with respect thereto furnished to the Agent by such Grantor
from time to time. As of the time when each Account or each item of Chattel Paper constituting Collateral arises, such Grantor shall be deemed to have represented and warranted that such Account or Chattel Paper, as the case may be,
and all records relating thereto, are genuine and in all respects what they purport to be, except, in each case, as could not be reasonably expected to result in a Material Adverse Effect.
3.7. No Financing Statements, Security Agreements. No financing statement or security agreement describing all or any portion of the Collateral (other than a financing statement or security agreement that has lapsed
or been terminated) naming such Grantor as debtor has been filed or is of record in any jurisdiction except financing statements (i) naming the Agent on behalf of the Secured Parties as the secured party and (ii) in respect of Liens
permitted by Section 8.04 of the LC Credit Agreement; provided, that nothing herein shall be deemed to constitute an agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise
permitted under Section 8.04 of the LC Credit Agreement or except as set forth in the Intercreditor Agreement.
3.8. Federal Employer Identification Number; State Organization Number; Jurisdiction of Organization. Such Grantor’s federal employer identification number (if any) is, and if such Grantor is a registered
organization, such Grantor’s state of organization, type of organization and state of organization identification number (if any) are, as of the applicable Determination Date, listed in Exhibit “G”.
3.9. Pledged Securities and Other Investment Property. Exhibit “D” sets forth, as of the applicable Determination Date, a complete and accurate list of the Instruments (other than the Intercompany
Instruments), Securities and other Investment Property constituting Collateral and delivered to the Agent. Each Grantor is the direct and beneficial owner of each Instrument, Security and other type of Investment Property listed in
Exhibit “D” as being owned by it, free and clear of any Liens, except for the security interest granted to the Agent for the benefit of the Secured Parties hereunder or as permitted by Section 8.04 of the LC Credit Agreement.
Each Grantor further represents and warrants that (i) all Pledged Collateral owned by it constituting Capital Stock has been (to the extent such concepts are relevant with respect to such Pledged Collateral) duly authorized and
validly issued, are fully paid and non-assessable and constitute, as of the applicable Determination Date, the percentage of the issued and outstanding shares of stock (or other Capital Stock) of the respective issuers thereof
indicated in Exhibit “D” hereto and (ii) all such Pledged Collateral held by a securities intermediary (including in a Securities Account) is covered by a Control Agreement among such Grantor, the securities intermediary and
the Agent pursuant to which the Agent has Control to the extent required by Section 4.5. In addition, each Grantor hereby represents and warrants that (i) no partnership agreement or operating agreement (or similar
constitutive document) with respect to Pledged Collateral in respect of a limited liability company or partnership provides that such Pledged Collateral constitute securities governed by Article 8 of the UCC as in effect in any
relevant jurisdiction and (ii) no Collateral constitutes “certificated securities” within the meaning of Article 8 of the Uniform Commercial Code as in effect in any relevant jurisdiction (such securities, “Certificated
Securities”), except as otherwise indicated on Exhibit “D”. Each Grantor covenants that for so long as this Security Agreement is in effect, it shall not permit any of its Subsidiaries whose Capital Stock is Pledged
Collateral (the “Acknowledgment Parties”) (i) except as otherwise indicated on Exhibit “D”, to cause such Capital
Stock to become Certificated Securities, or (ii) except as otherwise indicated on Exhibit “D”, for any such
Subsidiaries that are limited liability companies or partnerships, to elect that its membership interests becomes governed by Article 8 of the Uniform Commercial
Code as in effect in any relevant jurisdiction without the consent of all pledgees of such membership interests or the delivery of any applicable limited liability company certificate or
control agreement necessary to perfect each such pledgee's interests in the applicable membership interests. Each Grantor further agrees to cause each Acknowledgment Party, other than any
Acknowledgment Party that is a ULC, to execute and deliver an acknowledgment substantially in the form of Exhibit “M” hereto promptly upon such party
becoming an Acknowledgment Party.
3.10. Intellectual Property.
3.10.1 Exhibit “B” contains a complete and accurate listing as of the applicable Determination Date of all of the below-described Specified Intellectual Property of each of the Grantors (limited, in
the case of each Foreign Grantor, to U.S. Specified Intellectual Property): (i) state, U.S. and foreign trademark registrations, and applications for trademark registration, (ii) U.S. and foreign patents and patent applications,
together with all reissuances, continuations, continuations in part, revisions, extensions, and reexaminations thereof, (iii) U.S. and foreign copyright registrations and applications for registration, (iv) Exclusive Copyright
Licenses, (v) foreign industrial design registrations and industrial design applications, and (vi) domain names. All of the U.S. registrations, applications for registration or applications for issuance of such Specified
Intellectual Property are valid and subsisting, in good standing and, subject to Section 3.10.10, are recorded or in the process of being recorded in the name of the applicable Grantor, except as could not be reasonably
expected to result in a Material Adverse Effect.
3.10.2 Such Intellectual Property in Exhibit “B” is valid, subsisting, unexpired (where registered) and enforceable and has not been abandoned or adjudged invalid or unenforceable, in whole or in
part, except as could not be reasonably expected to result in a Material Adverse Effect.
3.10.3 Subject to Section 3.10.10, (i) no Person other than the respective Grantor (or any other Grantor) has any right or interest of any kind or nature in or to the Specified Intellectual
Property owned by such Grantor, including any right to sell, license, lease, transfer, distribute, use or otherwise exploit such Specified Intellectual Property or any portion thereof outside of the ordinary course of the respective
Grantor’s business, except as could not be reasonably expected to result in a Material Adverse Effect and (ii) each Grantor has good, marketable and exclusive title to, and the valid and enforceable power and right to sell, license,
transfer, distribute, use and otherwise exploit, its Specified Intellectual Property, except as could not be reasonably expected to result in a Material Adverse Effect.
3.10.4 Each Grantor has taken or caused to be taken steps so that none of its Specified Intellectual Property, the value of which to the Grantors are contingent upon maintenance of the confidentiality
thereof, have been disclosed by such Grantor to any Person other than any Affiliate owners thereof and employees, contractors, customers, representatives and agents of the Grantors or such Affiliate owners who are parties to
customary confidentiality and nondisclosure agreements with the Grantors or such Affiliate
owners, as applicable.
3.10.5 To each Grantor’s knowledge, no Person has violated, infringed upon or breached, or is currently violating, infringing upon or breaching, any of the rights of the Grantors to the Specified
Intellectual Property or has breached or is breaching any duty or obligation owed to the Grantors in respect of the Specified Intellectual Property except where those breaches, individually or in the aggregate, could not be
reasonably expected to result in a Material Adverse Effect.
3.10.6 No settlement or consents, covenants not to sue, nonassertion assurances, or releases have been entered into by any Grantor or to which any Grantor is bound that adversely affects its rights to own
or use any Specified Intellectual Property except as could not be reasonably expected to result in a Material Adverse Effect, in each case individually or in the aggregate.
3.10.7 No Grantor has received any written notice that remains outstanding challenging the validity, enforceability, or ownership of any Specified Intellectual Property except where those challenges could
not reasonably be expected to result in a Material Adverse Effect, and to such Grantor’s knowledge at the date hereof there are no facts upon which such a challenge could be made.
3.10.8 Each Grantor owns directly or is entitled to use, by license or otherwise, all Specified Intellectual Property necessary for the conduct of such Grantor’s business, and the conduct of each Grantor’s
business does not infringe upon the Intellectual Property of any other Person, except as could not reasonably be expected to result in a Material Adverse Effect.
3.10.9 The consummation of the transactions contemplated by the Loan Documents will not result in the termination or material impairment of any material Specified Intellectual Property owned by such
Grantor.
3.10.10 Each party hereto acknowledges that certain Specified Intellectual Property is owned in part by the Grantors and in part by Affiliates of the Grantors, in each case as scheduled
on Exhibit “B”.
3.11. Specified Deposit Accounts and Securities Accounts. All of such Grantor’s Specified Deposit Accounts and Securities Accounts (limited, in the case of each Foreign Grantor, to Specified Deposit Accounts and
Securities Accounts located in the United States) as of the applicable Determination Date are listed on Exhibit “H”.
ARTICLE IV
COVENANTS
From the date of this Security Agreement and thereafter until this Security Agreement is
terminated, each of the Initial Grantors agrees, and from and after the effective date of any Security Agreement Supplement applicable to any Grantor (and after giving effect to supplements to each
of the Exhibits hereto with respect to such subsequent Grantor as attached to such Security Agreement Supplement)
and thereafter until this Security Agreement is terminated each such subsequent Grantor agrees:
4.1. General.
4.1.1 Records. Each Grantor shall keep and maintain, in a manner consistent with prudent business practices, reasonably complete, accurate and proper books and records with respect to the
Collateral owned by such Grantor.
4.1.2 Financing Statements and Other Actions; Defense of Title. Each Grantor hereby authorizes the Agent to file, and if requested will execute and deliver to the Agent, all financing statements
describing the Collateral owned by such Grantor and other documents and take such other actions as may from time to time reasonably be requested by the Agent in order to maintain a perfected security interest with the priority set
forth in the Intercreditor Agreement in and Lien on, and, if applicable, Control of, the Collateral owned by such Grantor, subject to Liens permitted under Section 8.04 of the LC Credit Agreement; provided that nothing
herein shall be deemed to constitute an agreement to subordinate any of the Liens of the Agent under the Loan Documents to any Liens otherwise permitted under Section 8.04 of the LC Credit Agreement. Such financing statements may
describe the Collateral in the same manner as described herein or may contain an indication or description of Collateral that describes such Collateral in any other manner as the Agent may reasonably determine is necessary,
advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Agent herein, including, without limitation, describing such property as “all assets of the debtor whether now owned or
hereafter acquired and wheresoever located, including all accessions thereto and proceeds thereof” or an equivalent formulation. Each Grantor will take any and all actions reasonably necessary to defend title to the Collateral owned
by such Grantor against all persons and to defend the security interest of the Agent in such Collateral and the priority thereof against any Lien, in each case, not expressly permitted hereunder or under the LC Credit Agreement.
4.1.3 Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name. Each Grantor will, except as otherwise permitted by the LC Credit Agreement:
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(i)
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preserve its existence and corporate structure as in effect on the Effective Date;
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(ii)
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not change its name or jurisdiction of organization or incorporation;
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(iii)
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not maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location
specified in Exhibit “A”; and
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(iv)
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not change its taxpayer identification number (if any) or its mailing address,
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unless, in each such case, such Grantor shall have given the Agent not less than 10 days’ (or such shorter period as
the Agent may agree) prior written notice of such event or occurrence.
4.1.4 Other Financing Statements. No Grantor will suffer to exist or authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral owned by such
Grantor, except any financing statement authorized under Section 4.1.2 hereof or in respect of a Lien permitted under Section 8.04 of the LC Credit Agreement. Each Grantor acknowledges that it is not authorized to file any
financing statement or amendment or termination statement with respect to any financing statement filed in connection herewith prior to termination of this Security Agreement in accordance with the first sentence of Section 8.13
hereof. without the prior written consent of the Agent, subject to such Grantor’s rights under Section 9-509(d)(2) of the UCC.
4.2. Receivables.
4.2.1 Certain Agreements on Receivables. After the occurrence and during the continuation of an Event of Default, no Grantor will make or agree to make any discount, credit, rebate or other
reduction in the original amount owing on a Receivable or accept in satisfaction of a Receivable less than the original amount thereof, except as permitted by the LC Credit Agreement. Prior to the occurrence and continuation of an
Event of Default, such Grantor may, in its sole discretion, adjust the amount of Accounts arising from the sale of Inventory or the rendering of services in substantially accordance with its present policies and in the ordinary
course of business and as otherwise permitted under the LC Credit Agreement.
4.2.2 Collection of Receivables. Except as otherwise provided in this Security Agreement or as otherwise permitted under the LC Credit Agreement, each Grantor will use commercially reasonable
efforts to collect and enforce, at such Grantor’s sole expense, all amounts due or hereafter due to such Grantor under the Receivables owned by such Grantor.
4.2.3 Delivery of Invoices. Each Grantor will deliver to the Agent promptly upon its request after the occurrence and during the continuance of an Event of Default duplicate invoices with respect
to each Account owned by such Grantor and, if requested by the Agent, bearing such language of assignment as the Agent shall reasonably specify.
4.2.4 Disclosure of Counterclaim on Receivables. After the occurrence and during the continuation of an Event of Default if (i) any discount, credit or agreement to make a rebate or to otherwise
reduce the amount owing on a Receivable owned by such Grantor exists or (ii) to the knowledge of such Grantor, any dispute, setoff, claim, counterclaim or defense exists or has been asserted or threatened with respect to a
Receivable, such Grantor will disclose such fact to the Agent in writing in connection with the inspection by the Agent of any record of such Grantor relating to such Receivable and in connection with any invoice or report furnished
by such Grantor to the Agent relating to such Receivable.
4.2.5 Electronic Chattel Paper. Each Grantor shall promptly notify Agent if any amount in excess of $5,000,000, individually, or $10,000,000 in the aggregate payable under or in
connection with any electronic chattel paper or a “transferable record” (as defined in the UETA), and shall take such action as the Agent may reasonably request to establish the Agent’s Control of such electronic chattel paper or
transferable record. The Agent agrees with such Grantor that the Agent will arrange, pursuant to procedures reasonably satisfactory to the Agent and so long as such procedures will not result in the Agent’s loss of Control, for the
Grantor to make alterations to the electronic chattel paper or transferable record permitted under Section 9-105 of the UCC or Section 16 of the UETA for a party in Control to allow without loss of Control, unless an Event of
Default has occurred and is continuing or would occur after taking into account any action by such Grantor with respect to such electronic chattel paper or transferable record.
4.2.6 Account Verification. Each Grantor will, and will cause each of its Subsidiaries to, permit Agent, in Agent's name or in the name or a nominee of Agent, after the occurrence and during the
continuation of an Event of Default, to verify the validity, amount or any other matter relating to any Account, by mail, telephone, facsimile transmission or other electronic means of transmission or otherwise. Further, at the
reasonable request of Agent, each Grantor will, and will cause each of its Subsidiaries to, send requests for verification of Accounts or, after the occurrence and during the continuance of an Event of Default, send notices of
assignment of Accounts to Account Debtors and other obligors.
4.3. Maintenance of Goods. Each Grantor will do all things reasonably necessary to maintain, preserve, protect and keep the Inventory and the Equipment owned by such Grantor and constituting Collateral in good
repair, working order and saleable condition (ordinary wear and tear excepted) and make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be conducted in the
ordinary course, consistent with past practices, except in each case where the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
4.4. Instruments, Securities, Chattel Paper, Documents and Pledged Deposits. Each Grantor will (i) upon the Agent’s request, deliver to the Agent, the originals of all Chattel Paper and Instruments (other than
Intercompany Instruments; provided that such Intercompany Instruments shall not be delivered to any Person which is not a Grantor, the Senior Secured Notes Trustee or the Agent), in each case, to the extent evidencing
amounts in excess of $5,000,000 individually, or $10,000,000 in the aggregate, and constituting Collateral (if any then exist) and Securities constituting Collateral (to the extent certificated); (ii) hold in trust for the Agent
upon receipt and, upon the Agent’s request, promptly thereafter deliver to the Agent any Chattel Paper and Instruments (other than Intercompany Instruments; provided, that such Intercompany Instruments shall not be delivered
to any Person who is not a Grantor, the Senior Secured Notes Trustee or the Agent), in each case, to the extent evidencing amounts in excess of $5,000,000 individually or $10,000,000 in the aggregate, and constituting Collateral (if
any then exist) and Securities (to the extent certificated); (iii) upon the designation by a Grantor of any Pledged Deposits (as set forth in the definition thereof) as Collateral, deliver to the Agent such Pledged Deposits which
are evidenced by certificates included in the Collateral endorsed in blank, marked with such legends and assigned as the Agent shall reasonably specify; (iv) upon the Agent’s
request, after the occurrence and during the continuation of an Event of Default (subject to the terms of the
Intercreditor Agreement), deliver to the Agent (and thereafter hold in trust for the Agent upon receipt and promptly deliver to the Agent) any Document evidencing or constituting Collateral; and (v) upon the Agent’s request, deliver
to the Agent, promptly after the delivery of a Compliance Certificate, a duly executed amendment to this Security Agreement, in the form of Exhibit “I” hereto (the “Amendment”), pursuant to which such Grantor will
specify such additional Collateral pledged hereunder. Such Grantor hereby authorizes the Agent to attach each Amendment to this Security Agreement and agrees that all additional Collateral owned by it set forth in such Amendments
shall be considered to be part of the Collateral.
4.5. Uncertificated Securities and Certain Other Investment Property. Each Grantor will, following the reasonable request of the Agent (and after the occurrence and during the continuation of an Event of Default,
will permit the Agent to) from time to time cause the appropriate issuers (and, if held with a securities intermediary, such securities intermediary) of uncertificated securities or other types of Investment Property owned by such
Grantor and constituting Collateral that are not represented by certificates which are Collateral to mark their books and records with the numbers and face amounts of all such uncertificated securities or other types of Investment
Property not represented by certificates and all rollovers and replacements therefor to reflect the Lien of the Agent granted pursuant to this Security Agreement. With respect to Investment Property having a value in excess of
$5,000,000 individually or $10,000,000 in the aggregate and constituting Collateral owned by such Grantor held with a financial intermediary (including in a Securities Account), such Grantor shall, within 30 days following the
Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be agreed to by the Agent in its sole discretion), cause such financial intermediary to enter into a Control
Agreement with the Agent in form and substance reasonably satisfactory to the Agent, in order to give the Agent Control (subject to the terms of the Intercreditor Agreement) of such Investment Property.
4.6. Stock and Other Ownership Interests.
4.6.1 Registration of Pledged Securities and other Investment Property. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit any registrable Collateral owned
by such Grantor to be registered in the name of the Agent or its nominee at any time at the option of the Required Lenders following the occurrence and during the continuance of an Event of Default and without any further consent of
such Grantor.
4.6.2 Exercise of Rights in Pledged Securities. Subject to Section 4.6.4 hereof in the case of ULC Shares, each Grantor will permit the Agent or its nominee at any time after the occurrence
and during the continuance of an Event of Default, without notice, to exercise or refrain from exercising any and all voting and other consensual rights pertaining to Pledged Collateral owned by such Grantor or any part thereof, and
to receive all dividends and interest in respect of such Pledged Collateral.
4.6.3 ULCs. For greater certainty, the Agent shall have no right under any circumstance to vote ULC Shares or receive dividends from any ULC until such time as
notice is given to the applicable Grantor and further steps are taken so as to register the Agent
as the holder of the applicable ULC Shares.
4.6.4 ULC Shares. Each Grantor acknowledges that certain of the Collateral of such Grantor may now or in the future consist of ULC Shares, and that it is the intention of the Agent and each
Grantor that neither the Agent nor any other Secured Party should under any circumstances prior to realization thereon be held to be a “member” or a “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws.
Therefore, notwithstanding any provision to the contrary contained in this Security Agreement, the LC Credit Agreement or any other Loan Document, where a Grantor is the registered owner of ULC Shares which are Collateral of such
Grantor, such Grantor shall remain the sole registered owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the Agent, any other Secured Party, or any other Person on the books and
records of the applicable ULC. Accordingly, each Grantor shall be entitled to receive and retain for its own account any dividend on or other distribution, if any, with respect to such ULC Shares (except for any dividend or
distribution comprised of certificated Securities pledged of such Grantor, which shall be delivered to the Agent to hold hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and
policies of the applicable ULC to the same extent as such Grantor would if such ULC Shares were not pledged to the Agent pursuant hereto. Nothing in this Security Agreement, the LC Credit Agreement or any other Loan Document is
intended to, and nothing in this Security Agreement, the LC Credit Agreement or any other Loan Document shall, constitute the Agent, any other Secured Party, or any other Person other than the applicable Grantor, a member or
shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Grantor and further steps are taken pursuant hereto or thereto so as to
register the Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any provision hereof would have the effect of constituting the Agent or any other
Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Collateral of any Grantor without
otherwise invalidating or rendering unenforceable this Security Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Collateral of any Grantor which is not ULC Shares. Except upon the
exercise of rights of the Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Security Agreement, each Grantor shall not cause or permit, or enable a Subsidiary that is a ULC to cause or permit, the
Agent or any other Secured Party to: (i) be registered as a shareholder or member of such Subsidiary; (ii) have any notation entered in their favour in the share register of such Subsidiary; (iii) be held out as shareholders or
members of such Subsidiary; (iv) receive, directly or indirectly, any dividends, property or other distributions from such Subsidiary by reason of the Agent holding a Lien over the ULC Shares; or (v) act as a shareholder of such
Subsidiary, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Subsidiary or to vote its ULC Shares.
4.7. Specified Deposit Accounts. Each Grantor will cause each bank or other financial institution in which it maintains a Specified Deposit Account to enter into a Control Agreement
with the Agent, in form and substance reasonably satisfactory to the Agent in order to give the Agent Control
(subject to the terms of the Intercreditor Agreement) of the Specified Deposit Account within 60 days following the Effective Date or such later date on which it becomes a Grantor hereunder (in each case, or such later date as may be
agreed to by the Agent in its sole discretion). In the case of deposits maintained with Lenders, the terms of such letter shall be subject to the provisions of the LC Credit Agreement regarding setoffs.
4.8. Letter of Credit Rights. Each Grantor will, upon the Agent’s request, cause each issuer of a letter of credit in excess of $5,000,000 individually or in the aggregate to consent to the assignment of proceeds of
such letter of credit in order to give the Agent Control (subject to the terms of the Intercreditor Agreement) of the Letter of Credit Rights to such letter of credit.
4.9. Intellectual Property.
4.9.1 If, after the date hereof, any Grantor obtains rights to, including, but not limited to filing and acceptance of a statement of use or an amendment to allege use with the United States Patent and
Trademark Office, or applies for or seeks registration of, any new Patent, Trademark or Copyright (limited, in the case of any Foreign Grantor, to any new U.S. Patent, Trademark or Copyright) in addition to the Patents, Trademarks
and Copyrights described in Exhibit “B”, then to the extent the foregoing constitutes Specified Intellectual Property, such Grantor agrees promptly and within 60 days following the date on which financial statements are
required to be delivered pursuant to Section 7.01(a) and/or Section 7.01(b) of the LC Credit Agreement, to execute and deliver to the Agent any supplement to this Security Agreement or any other document reasonably requested by the
Agent to evidence such security interest in a form appropriate for recording in the applicable U.S. federal office. In the event the applicable Grantor does not comply with the above deadline, each Grantor also hereby authorizes the
Agent to (i) modify this Security Agreement unilaterally by amending Exhibit “B” to include any future Patents, Trademarks and/or Copyrights constituting Specified Intellectual Property of which such Grantor is required to
notify the Agent pursuant hereto and (ii) record, in addition to and not in substitution for this Security Agreement, a duplicate original of this Security Agreement containing in Exhibit “B” a description of such future
registrations and applications for Patents, Trademarks and/or Copyrights constituting Specified Intellectual Property.
4.9.2 As of the applicable Determination Date, no Grantor has any interest in, or title to, any U.S. Intellectual Property registrations or applications, except as set forth in Exhibit “B”. As of
the applicable Determination Date, this Security Agreement is effective to create a valid and continuing Lien on each Grantor’s interest in its Intellectual Property pledged hereunder and, upon timely filing of the IP Short Form
with respect to Copyrights with the United States Copyright Office and filing of the IP Short Form with respect to Patents and the IP Short Form with respect to Trademarks with the United States Patent and Trademark Office, and the
filing of appropriate financing statements in the jurisdictions listed in Exhibit “E” hereto, all action necessary or desirable to protect and perfect the security interest in, to and on each Grantor’s interest in U.S.
Patents, Trademarks or Copyrights that are set forth in Exhibit “B” as of the applicable Determination Date shall have been taken and such perfected security interest shall be enforceable as such as against any and all
creditors of and purchasers from any Grantor.
4.10. Commercial Tort Claims. If, after the date hereof, any Grantor identifies the existence of a Commercial Tort Claim constituting Collateral belonging to such Grantor that has arisen in the course of such
Grantor’s business in addition to the Commercial Tort Claims described in Exhibit “F”, which are all of such Grantor’s Commercial Tort Claims as of the Effective Date, then such Grantor shall give the Agent prompt notice
thereof, but in any event not less frequently than quarterly. Each Grantor agrees promptly upon request by the Agent to execute and deliver to the Agent any supplement to this Security Agreement or any other document reasonably
requested by the Agent to evidence the grant of a security interest therein in favor of the Agent.
4.11. Updating of Exhibits to Security Agreement. The Borrowers will provide to the Agent, concurrently with the delivery of each Compliance Certificate required by Section 7.01(e) of the LC Credit Agreement, updated
versions of the Exhibits to this Security Agreement (provided that if there have been no changes to any such Exhibits since the previous updating thereof required hereby, the Borrowers shall indicate that there has been “no
change” to the applicable Exhibit(s)). Any reference to any Exhibit herein shall mean such Exhibit after giving effect to any updates thereof by the Borrowers or such Grantor pursuant to this Section 4.11 or otherwise.
ARTICLE V
DEFAULT
5.1. Remedies.
5.1.1 Upon the occurrence and during the continuation of an Event of Default, the Agent may, and at the direction of the Required Lenders shall, subject to the Intercreditor Agreement, exercise any or all
of the following rights and remedies:
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(i)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, those rights and remedies provided in this Security Agreement, the LC Credit Agreement or any
other Loan Document, provided that this clause (i) shall not be understood to limit any rights or remedies available to the Agent and the Secured Parties prior to an Event of Default.
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(ii)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, those rights and remedies available to a secured party under the UCC (whether or not the UCC
applies to the affected Collateral) or under any other applicable law when a debtor is in default under a security agreement.
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(iii)
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Give notice of sole control or any other instruction under any Control Agreement or other control agreement with any securities intermediary and take any action therein
with respect to such Collateral.
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(iv)
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Without notice (except as specifically provided in Section 8.1 hereof or elsewhere herein), demand or advertisement of any kind to any Grantor or any other
Person enter the premises of any Grantor where any Collateral is located (through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to
purchase or otherwise dispose of,
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deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or
private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place at any Grantor’s premises or elsewhere), for cash, on credit or for future delivery without assumption of any
credit risk, and upon such other terms as the Agent may deem commercially reasonable.
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(v)
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Subject to Section 4.6.4 hereof in the case of the ULC Shares, concurrently with written notice to the applicable Grantor, transfer and register in its name or
in the name of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect
to the Pledged Collateral as though the Agent was the outright owner thereof.
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5.1.2 The Agent, on behalf of the Secured Parties, shall comply with any applicable state or federal law requirements in connection with a disposition of the Collateral, and such compliance will not be
considered to adversely affect the commercial reasonableness of any sale of the Collateral.
5.1.3 The Agent shall have the right upon any such public sale or sales and, to the extent permitted by law, upon any such private sale or sales, to purchase for the benefit of the Agent and the other
Secured Parties, the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption the Grantor hereby expressly releases.
5.1.4 Until the Agent is able to effect a sale, lease, or other disposition of Collateral, the Agent shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems
appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriate by the Agent. The Agent may, if it so elects, seek the appointment of a receiver or keeper to take possession of
Collateral and to enforce any of the Agent’s remedies (for the benefit of the Agent and other Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment.
5.1.5 Notwithstanding the foregoing, neither the Agent nor any other Secured Party shall be required to (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, any Grantor,
any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Secured Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or
indirect guarantee thereof, (ii) marshal the Collateral or any guarantee of the Secured Obligations or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any Collateral. To
the extent that it lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of Agent's rights and remedies under this
Security Agreement or under any other instrument creating or evidencing any of the
Secured Obligations or under which any of the Secured Obligations is outstanding or by which any
of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.
5.1.6 Each Grantor recognizes that the Agent may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance
with Section 5.1.1 above. Each Grantor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Agent shall be under no obligation to delay a sale of any of the Pledged
Collateral for the period of time necessary to permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities
laws, even if the applicable Grantor and the issuer would agree to do so.
5.2. Grantors’ Obligations Upon Default. Upon the written request of the Agent after the occurrence and during the continuation of an Event of Default, subject to the Intercreditor Agreement, each Grantor will:
5.2.1 Assembly of Collateral. Assemble and make available to the Agent the Collateral and all books and records relating thereto at any place or places specified in writing by the Agent.
5.2.2 Secured Party Access. Permit the Agent, by the Agent’s representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records
relating thereto, or both, are located, to take possession of all or any part of the Collateral, or the books and records relating thereto, or both, to remove all or any part of the Collateral, or the books and records relating
thereto, or both, and to conduct sales of the Collateral, without any obligation to pay the Grantor for such use and occupancy.
5.2.3 Prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with the SEC or any other applicable government agency, registration statements, a prospectus and such other
documentation in connection with the Pledged Collateral as the Agent may request, all in form and substance reasonably satisfactory to the Agent, and furnish to the Agent, or cause an issuer of Pledged Collateral to furnish to the
Agent, any information regarding the Pledged Collateral in such detail as the Agent may specify.
5.2.4 Subject to Section 4.6.4 hereof in the case of ULC Shares, take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral
to enable the Agent to consummate a public sale or other disposition of the Pledged Collateral.
5.3. License. The Agent is hereby granted a sublicenseable license or other right to use, following the occurrence and during the continuance of an Event of Default and, subject to the
Intercreditor Agreement, without charge, each Grantor’s Intellectual Property constituting Collateral and to access
all media and materials containing same. In addition, each Grantor hereby irrevocably agrees that the Agent may, following the occurrence and during the continuance of an Event of Default, subject to the Intercreditor Agreement, sell
any of such Grantor’s Inventory constituting Collateral directly to any person, including without limitation persons who have previously purchased such Grantor’s Inventory from such Grantor and in connection with any such sale or
other enforcement of the Agent’s rights under this Security Agreement, may sell such Inventory which bears any trademark owned by or licensed to such Grantor and any such Inventory that is covered by any copyright owned by or licensed
to such Grantor and the Agent may (but shall have no obligation to) finish any work in process and affix any Trademark owned by or licensed to such Grantor and sell such Inventory as provided herein.
5.4. Remedies Cumulative. Each right, power, and remedy of Agent or any other Secured Party as provided for in this Security Agreement, the other Loan Documents, any Swap Agreements or any Banking Services
Agreements now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Security Agreement, the
other Loan Documents, any Swap Agreements or any Banking Services Agreements now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Agent or any other Secured Party
of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by Agent or such other Secured Parties of any or all such other rights, powers, or remedies.
ARTICLE VI
WAIVERS, AMENDMENTS AND REMEDIES
No delay or omission of the Agent or any Secured Party to exercise any right or remedy granted
under this Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not
preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in
writing signed by the Agent and each Grantor, and then only to the extent in such writing specifically set forth; provided, that the addition of any Subsidiary as a Grantor hereunder by execution of a Security Agreement
Supplement in the form of Annex I (with such modifications as shall be acceptable to the Agent) shall not require receipt of any consent from or execution of any documentation by any other Grantor party hereto. All rights and
remedies contained in this Security Agreement or by law afforded shall be cumulative and all shall be available to the Agent and the Secured Parties until the Secured Obligations have been paid in full.
ARTICLE VII
PROCEEDS; COLLECTION OF RECEIVABLES
7.1. Lockboxes. Upon request of the Agent after the occurrence and during the continuation of an Event of Default and subject to the Intercreditor Agreement, each Grantor shall execute and deliver to the Agent
irrevocable lockbox agreements in the form provided by or otherwise reasonably acceptable to the Agent, which agreements, if so required by the Agent, shall be accompanied by an acknowledgment by the bank where the lockbox is
located of the Lien of the Agent granted hereunder and of irrevocable instructions to wire all amounts collected therein to a special collateral account at the Agent.
7.2. Collection of Receivables. The Agent may at any time after the occurrence and during the continuation of an Event of Default and subject to the Intercreditor Agreement, by giving each Grantor written notice,
elect to require that the Receivables be paid directly to the Agent for the benefit of the Secured Parties. In such event, subject to the Intercreditor Agreement, each Grantor shall, and shall permit the Agent to, promptly notify
the account debtors or obligors under the Receivables owned by such Grantor of the Agent’s interest therein and direct such account debtors or obligors to make payment of all amounts then or thereafter due under such Receivables
directly to the Agent. Upon receipt of any such notice from the Agent, each Grantor shall thereafter during the continuation of any Event of Default and subject to the Intercreditor Agreement hold in trust for the Agent, on behalf
of the Secured Parties, all amounts and proceeds received by it with respect to the Receivables and Other Collateral and immediately and at all times thereafter deliver to the Agent all such amounts and proceeds in the same form as
so received, whether by cash, check, draft or otherwise, with any necessary endorsements. The Agent shall hold and apply funds so received as provided by the terms of Sections 7.3 and 7.4 hereof.
7.3. Special Collateral Account. Upon the occurrence and during the continuation of an Event of Default and subject to the Intercreditor Agreement, the Agent may require, by giving the Grantors written notice, that
all cash proceeds of the Collateral to be deposited in a special non-interest bearing cash collateral account with the Agent and held there as security for the Secured Obligations. No Grantor shall have any control whatsoever over
such cash collateral account. The Agent shall from time to time deposit the collected balances in such cash collateral account into the applicable Grantor’s general operating account with the Agent. Subject to the Intercreditor
Agreement, if any Event of Default has occurred and is continuing, the Agent may (and shall, at the direction of the Required Lenders), from time to time, apply the collected balances in such cash collateral account to the payment
of the Secured Obligations.
7.4. Application of Proceeds. Subject to the Intercreditor Agreement, the proceeds of the Collateral shall be applied by the Agent to payment of the Secured Obligations of the Grantors, as provided under Sections
4.01 and 9.04 of the LC Credit Agreement.
7.5. Swiss Limitations.
7.5.1 If and to the extent that the security granted by a Grantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to art. 9 of
the Swiss Withholding Tax Act (the “Swiss Grantor”) under this Security Agreement secures obligations other than obligations of one of its direct or indirect subsidiaries (i.e. obligations of the Swiss Grantor's direct or
indirect parent companies (up-stream liabilities) or sister companies (cross-stream liabilities)) (the “Restricted Obligations”) and that using the proceeds from the
enforcement of such security would under Swiss corporate law (inter
alia, prohibiting capital repayments or restricting profit distributions) not be permitted at such time, then the proceeds from the enforcement of such security to be applied towards discharging Restricted Obligations shall
from time to time be limited to the amount permitted under applicable Swiss law; provided, that such limited amount shall at no time be less than the Swiss Grantor's distributable capital (presently being the balance sheet
profits and any reserves available for distribution) at the time or times of enforcement for Restricted Obligations, and further provided that such limitation (as may apply from time to time or not) shall not (generally or
definitively) affect the security granted by the Swiss Grantor under this Security Agreement in excess thereof, but merely postpone the time of using such proceeds from Enforcement of such security until such times as application
towards discharging the Restricted Obligations is again permitted notwithstanding such limitation.
7.5.2 In case the Swiss Grantor who must make a payment in respect of Restricted Obligations under this Security Agreement is obliged to withhold Swiss Withholding Tax in respect of such payment, the
Swiss Grantor shall:
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(i)
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procure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the
liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax;
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(ii)
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if the notification procedure pursuant to Section 7.5.2(i) hereof does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force
from time to time), or if the notification procedure pursuant to Section 7.5.2(i) hereof applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the
discharge of part of such tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such taxes to the Swiss Federal Tax Administration;
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(iii)
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notify the Agent that such notification, or as the case may be, deduction has been made and provide the Agent with evidence that such a notification of the Swiss Federal
Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; and
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(iv)
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in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person other than the Agent, which is entitled to a full or partial refund
of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction:
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(A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties) and pay to the Agent upon receipt any amounts so refunded; or
(B) if the Agent or a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the Agent, provide the Agent and/or the relevant Secured Party
those documents that are required by law and applicable tax treaties to be provided by the payer of such tax in order to enable the Agent and/or the relevant Secured Party to prepare a claim for refund of Swiss Withholding Tax.
7.5.3 If the Swiss Grantor is obliged to withhold Swiss Withholding Tax in accordance with Section 7.5.1 hereof, the Agent shall be entitled to further request payment as per this Section 7.5
and other indemnity granted to it under this Security Agreement and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss
Withholding Tax were required, whereby such further payments shall always be limited to the maximum amount of the freely distributable capital of the Swiss Grantor as set out in Section 7.5.1 hereof. In case the proceeds
irrevocably received by the Agent and the Secured Parties pursuant to Section 7.5.2(iv) hereof and this paragraph (additional enforcements) have the effect that the proceeds received by the Agent and the Secured Parties
exceed the Secured Obligations, then the Agent or the relevant Secured Party shall return such overcompensation to the Swiss Grantor.
7.5.4 If and to the extent requested by the Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Agent (and the
Secured Parties) to obtain a maximum benefit under this Security Agreement, the Swiss Grantor shall promptly implement the following:
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(i)
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the preparation of an up-to-date audited balance sheet of the Swiss Grantor;
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(ii)
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the confirmation of the auditors of the Swiss Grantor that the relevant amount represents the maximum of freely distributable profits;
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(iii)
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the prompt convening of a meeting of the shareholders of the Swiss Grantor which will approve the (resulting) profit distribution;
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(iv)
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if the enforcement of any Restricted Obligations would be limited as a result of any matter referred to in this Section 7.5, the Swiss Grantor shall, to the
extent permitted by applicable law, (a) write up or realise any of its assets shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realisation, however, only
if such assets are not necessary for the Swiss Grantor’s business (nicht betriebsnotwendig) and/or (b) reduce its share capital to the extent permitted by applicable law; and
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(v)
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all such other measures reasonably necessary and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow the Swiss Grantor and relevant
parent company to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum
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of limitations.
7.6. Norwegian Limitations.
7.6.1 The Norwegian Financial Agreements Act shall not apply to this Security Agreement, except as required by § 2 of the Financial Agreements Act (if applicable). The liability of each Grantor
incorporated in Norway in its capacity as Grantor (each a “Norwegian Grantor”) shall be limited to USD $240,000,000, plus any interest, default interest, commissions, charges, fees and expenses due under any Secured
Obligation. Notwithstanding any other provision of this Security Agreement to the contrary, the obligations and liabilities of any Norwegian Grantor under this Security Agreement shall be limited by such mandatory provisions of
sections 8-7 and/or 8-10 of the Norwegian Limited Liability Companies Act of 13 June 1997 (the “Act”) regarding restrictions on a Norwegian limited liability company’s ability to grant guarantees, loans, security or other
financial assistance. The obligations of the Norwegian Grantors shall only be limited to the extent this is required from time to time, and the Norwegian Grantors shall be liable to the fullest extent permitted by the Act as amended
from time to time. To the extent permitted by applicable law, if a payment under this Security Agreement by a Norwegian Grantor has been made in contravention of the limitations contained in this Section 7.6.1, the Secured Parties
shall not be liable for any damages in relation thereto, and the maximum amount repayable by the Secured Parties as a consequence of such contravention shall be the amount received from that Norwegian Grantor.
7.6.2 The Norwegian Grantors' Collateral is limited to such Norwegian Grantors' Patents being held and registered in the United States, and does not extend to any Collateral held or registered outside the
jurisdiction of the United States.
7.6.3 Each Norwegian Grantor and the Agent hereby confirms and acknowledges that each representation and warranty made by the Norwegian Grantors under Article III, each covenant made under Article
IV and each provision under Articles VII and VIII are made subject to Section 8.23, and that any failure to comply with any of the Sections under such Articles does not constitute a breach of any such provisions
or Event of Default to the extent that failure to comply is by reason of Norwegian law.
ARTICLE VIII
GENERAL PROVISIONS
8.1. Notice of Disposition of Collateral; Condition of Collateral. Each Grantor hereby waives notice of the time and place of any public sale or the time after which any private sale or other disposition of all or
any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be deemed reasonable if sent to the Grantors, addressed as set forth in Article IX, at least 10
days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. To the maximum extent permitted by applicable law, each Grantor waives all claims, damages, and
demands against the Agent or any other Secured Party arising out of the repossession, retention or sale of the Collateral, except such as arise solely out of the gross negligence or willful misconduct
of the Agent or such other Secured Party, or its or their agents, employees, officers, nominees or other
representatives, as finally determined by a court of competent jurisdiction. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to
assert against the Agent or any other Secured Party, any valuation, stay, appraisal, extension, moratorium, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for
this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise
specifically provided herein, each Grantor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral.
8.2. Limitation on Agent’s and other Secured Parties’ Duty with Respect to the Collateral. The Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Agent and each other
Secured Party shall use reasonable care with respect to the Collateral in its possession or under its control (or in the possession or under the care of any agent, employee, officer, nominee or other representative of the Agent or
such other Secured Party). Neither the Agent nor any other Secured Party shall have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Agent or such other
Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that applicable law imposes duties on the Agent to exercise remedies in a
commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Agent (i) to fail to incur expenses deemed significant by the Agent to prepare Collateral for disposition or otherwise
to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against account debtors or other Persons
obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against account debtors and other Persons obligated on Collateral directly or through the use of collection
agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons,
whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral,
whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable
capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to
purchase insurance or credit enhancements to insure the Agent against risks of loss, collection or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or disposition of Collateral, or (xii)
to the extent deemed appropriate by the Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Agent in the collection or disposition of any of the Collateral. Each
Grantor acknowledges that the purpose of this Section 8.2 is to provide non-exhaustive indications of what actions or omissions by the Agent would be commercially reasonable in the Agent’s exercise of remedies against the
Collateral and that other actions or
omissions by the Agent shall not be deemed commercially unreasonable solely on account of not being indicated in
this Section 8.2. Without limitation upon the foregoing, nothing contained in this Section 8.2 shall be construed to grant any rights to any Grantor or to impose any duties on the Agent that would not have been granted
or imposed by this Security Agreement or by applicable law in the absence of this Section 8.2.
8.3. Compromises and Collection of Collateral. Each Grantor and the Agent recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that
certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered
with respect to a Receivable. In view of the foregoing, each Grantor agrees, subject to applicable bankruptcy laws, that the Agent may at any time and from time to time, if an Event of Default has occurred and is continuing, and
subject to the Intercreditor Agreement, compromise with the obligor on any Receivable, accept in full payment of any Receivable such amount as the Agent in its sole discretion shall determine or abandon any Receivable, and any such
action by the Agent shall be commercially reasonable so long as the Agent acts in good faith based on information known to it at the time it takes any such action.
8.4. Secured Party Performance of Grantor’s Obligations. Without having any obligation to do so, the Agent may perform or pay any obligation which any Grantor has agreed to perform or pay in this Security Agreement
and fails to so perform or pay and such Grantor shall reimburse the Agent for any reasonable and documented amounts paid by the Agent pursuant to this Section 8.4. Each Grantor’s obligation to reimburse the Agent pursuant to
the preceding sentence shall be a Secured Obligation payable on demand.
8.5. Authorization for Secured Party to Take Certain Action. Each Grantor irrevocably authorizes the Agent at any time and from time to time in the sole discretion of the Agent and appoints the Agent as its attorney
in fact (i) to execute on behalf of such Grantor as debtor and to file financing statements necessary or desirable in the Agent’s sole discretion to perfect and to maintain the perfection and priority of the Agent’s security
interest in the Collateral, (ii) to indorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other reproduction of this Security Agreement or any financing statement with respect to the
Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or add a debtor) in such offices as the Agent in its sole discretion deems
necessary or desirable to perfect and to maintain the perfection and priority of the Agent’s security interest in the Collateral, (iv) to contact and enter into one or more agreements with the issuers of uncertificated securities
which are Collateral owned by such Grantor and which are Securities or with financial intermediaries holding other Investment Property which is Collateral as may be necessary or advisable to give the Agent Control (subject to the
Intercreditor Agreement) over such Securities or other Investment Property, (v) solely to the extent an Event of Default has occurred and is continuing, to enforce payment of the Instruments, Accounts and Receivables constituting
Collateral in the name of the Agent or such Grantor, (vi) solely to the extent an Event of Default has occurred and is continuing, to apply the proceeds of any Collateral received by the Agent to the Secured Obligations as provided
in Article VII and (vii) to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder or under any other Loan Document), and each
Grantor agrees to reimburse the Agent on demand for any reasonable and documented payment made or any reasonable and
documented expense incurred by the Agent in connection therewith; provided, that this authorization shall not relieve any Grantor of any of its obligations under this Security Agreement or under the LC Credit Agreement.
8.6. Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of any of the covenants contained in Section 5.2, or in Article VII hereof will cause irreparable
injury to the Agent and the other Secured Parties, that the Agent and the other Secured Parties have no adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right of the Agent or the other
Secured Parties to seek and obtain specific performance of other obligations of the Grantors contained in this Security Agreement, that the covenants of the Grantors contained in the Sections referred to in this Section 8.6
shall be specifically enforceable against the Grantors.
8.7. Use and Possession of Certain Premises. Upon the occurrence and during the continuation of an Event of Default, subject to the Intercreditor Agreement, the Agent shall be entitled to occupy and use any premises
owned or leased by the Grantors where any of the Collateral or any records relating to the Collateral are located until the Secured Obligations are paid or the Collateral is removed therefrom, whichever first occurs, without any
obligation to pay any Grantor for such use and occupancy, subject to Section 8.2 hereof all respects.
8.8. Reinstatement. This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against any Grantor for liquidation or reorganization, should any
Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of any Grantor’s assets, and shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by
any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
8.9. Benefit of Agreement. The terms and provisions of this Security Agreement shall be binding upon and inure to the benefit of the Grantors, the Agent and the Secured Parties and their respective successors and
assigns (including all persons who become bound as a debtor to this Security Agreement); provided that the Grantors shall not have the right to assign their rights or delegate their obligations under this Security Agreement
or any interest herein, except as permitted under the LC Credit Agreement. No sales of participations, assignments, transfers, or other dispositions of any agreement governing the Secured Obligations or any portion thereof or
interest therein shall in any manner impair the Lien granted to the Agent, for the benefit of the Agent and the other Secured Parties, hereunder.
8.10. Survival of Representations. All representations and warranties of the Grantors contained in this Security Agreement shall survive the execution and delivery of this Security Agreement.
8.11. Taxes and Expenses. To the extent required by Section 4.02 of the LC Credit Agreement, any Other Taxes payable or ruled payable by a Governmental Authority in respect of this Security Agreement shall be paid by
the applicable Grantor. The Grantors shall reimburse the Agent for any and all of its reasonable out-of-pocket expenses (including reasonable external legal, auditors’ and accountants’ fees) if and to the extent the Borrowers are
required to reimburse such amounts under Section 11.03 of the LC Credit Agreement. Any and all costs and expenses incurred by the Grantors in the performance of actions required pursuant to the terms hereof shall be borne solely by
the Grantors.
8.12. Headings. The title of and section headings in this Security Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Security
Agreement.
8.13. Termination. This Security Agreement shall continue in effect (notwithstanding the fact that from time to time there may be no Secured Obligations outstanding) until Payment in Full. Notwithstanding the
foregoing, the obligations of any individual Grantor under this Security Agreement shall automatically terminate to the extent provided in and in accordance with Section 11.23 of the LC Credit Agreement.
8.14. Entire Agreement. This Security Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
8.15. Governing Law; Jurisdiction; Waiver of Jury Trial.
8.15.1 THIS SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
8.15.2 Each Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or
the state courts sitting in the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, in any suit, action or proceeding arising out of or
relating to this Security Agreement or any other Loan Document (other than any Security Agreement governed by Norwegian law), or for recognition or enforcement of any judgment, and each Grantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final,
non-appealable 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. Nothing in this Security Agreement or any other
Loan Document shall (including this Section 8.15) affect any right that any Secured Party may otherwise have to bring any suit, action or proceeding relating to this Security Agreement or any other Loan Document against any
Grantor or its properties in the courts of any jurisdiction.
8.15.3 Each Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. Each Grantor hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
8.15.4 Each party to this Security Agreement irrevocably consents to service of process in the manner provided for notices in Article IX of this Security Agreement other than by facsimile. Nothing
in this Security Agreement or any other Loan Document will affect the right of any party to this Security Agreement to serve process in any other manner permitted by law. Notwithstanding any other provision of this Security
Agreement, each Foreign Grantor hereby irrevocably designates CT Corporation System, 28 Liberty Street, New York, New York 10005, as the designee, appointee and agent of such Foreign Grantor to receive, for and on behalf of such
Foreign Grantor, service of process in the State of New York in any suit, action or proceeding arising out of or relating to this Security Agreement or any other Loan Document.
8.15.5 Each Grantor agrees that any suit, action or proceeding brought by any Grantor or any of their respective Subsidiaries relating to this Security Agreement or any other Loan Document (other than any
Security Agreement governed by Norwegian law) against the Agent, any other Secured Party or any of their respective Affiliates shall be brought in the United States District Court for the Southern District of New York (or the state
courts sitting in the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, unless no such court shall accept jurisdiction.
8.15.6 The Agent hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the United States District Court for the Southern District of New York (or the state
courts sitting in the Borough of Manhattan in the event the Southern District of New York lacks subject matter jurisdiction), and any appellate court from any thereof, in any suit, action or proceeding arising out of or relating to
this Security Agreement or any other Loan Document (other than any Security Agreement governed by Norwegian law), or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final, non-appealable 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.
8.15.7 The Agent hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Security Agreement or any other Loan Document in any court referred to in Section 8.15.2. The Agent hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
8.15.8 To the extent that any Grantor has or hereafter may acquire any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, such Grantor hereby irrevocably waives such immunity in respect of its obligations under the Loan Documents.
8.15.9 EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS SECURITY AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
8.16. Indemnity. Each Grantor hereby agrees, jointly with the other Grantors and severally, to indemnify the Agent and the Secured Parties in accordance with Section 11.04 of the LC Credit Agreement, mutatis mutandis.
8.17. Severability. Any provision in this Security Agreement that is held to be inoperative, unenforceable, not permissible, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, not permissible, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of
this Security Agreement are declared to be severable.
8.18. Counterparts. This Security Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Security Agreement by telecopy, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed
signature page shall be effective as delivery of a manually executed counterpart of this Security Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be
signed in connection with this Security Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the UETA.
8.19. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Lien and security interest granted to the Agent pursuant to or in connection with this Security Agreement, and the exercise of any
right or remedy by the Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement and this Security Agreement, subject to Section
4.6.4 hereof and any other limitation on rights of the Agent or other Secured Party with respect to ULC Shares hereunder, the terms of the Intercreditor Agreement shall control. For so long as the Intercreditor Agreement
remains in effect, the delivery of any Collateral to the Senior Secured Notes Trustee as required by the Intercreditor Agreement shall satisfy any delivery requirement with respect to such Collateral hereunder.
8.20. Loan Document. This Security Agreement constitutes a Loan Document for all purposes under the LC Credit Agreement and all other Loan Documents.
8.21. Further Assurances. Each Grantor shall, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements, instruments, forms and notices and will take or cause to be taken
such further actions (including the filing and recording of financing statements and other documents serving notices of assignment and such other actions or deliveries of the type required by Section 5.01 of the LC Credit Agreement,
as applicable), which may be required by law or which the Agent may, from time to time, reasonably request to carry out the terms and conditions of this Security Agreement and to ensure perfection and priority of the Liens created
or intended to be created hereby, all at the expense of the Grantors.
8.22. Swiss Security Limitation. If and to the extent the Collateral is subject to any Swiss Security Documents, the security interests created under the respective Swiss Security Documents shall rank
senior to the security interests created hereunder and the provisions of the respective Swiss Security Documents shall prevail.
8.23. Norwegian Security Limitation. If and to the extent the Collateral is subject to any Collateral Documents governed by the law of Norway (the “Norwegian Security Documents”), the security interests
created under the respective Norwegian security documents shall rank senior to the security interests created hereunder and the provisions of the respective Norwegian Security Documents shall prevail.
8.24. Foreign Grantors. Notwithstanding anything to the contrary set forth in this Security Agreement, the parties hereto acknowledge that the representations and warranties, covenants and obligations
hereunder of any Foreign Grantor shall apply with respect to the Collateral or, if applicable, any other assets of such Foreign Grantor only to the extent such Collateral or other assets are registered in a jurisdiction located in
the United States or, in the case of Capital Stock and Stock Rights pledged pursuant to this Security Agreement by a Foreign Grantor, any such Capital Stock or Stock Rights that are issued by a Domestic Subsidiary.
ARTICLE IX
NOTICES
9.1. Sending Notices. All notices, requests and other communications to any party hereunder shall be given in the manner prescribed in Section 11.02 of the LC Credit Agreement with respect to the Agent at its notice
address therein and, with respect to any Grantor, in the care of Weatherford International, LLC, as provided and at the notice address set forth in the Credit Agreement, or such other address or telecopy number as such party may
hereafter specify for such purpose in accordance with the provisions of Section 11.02 of the LC Credit Agreement. Any notice delivered to the Borrowers on behalf of the Grantors shall be deemed to have been delivered to all of the
Grantors.
9.2. Change in Address for Notices. Each of the Grantors, the Agent and the Lenders may change the address for service of notice upon it by a notice in writing to the other parties.
[Signature Pages Follow]
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