SAH » Topics » 4.4 Rights of Parties Before the Occurrence of an Event of Default.

This excerpt taken from the SAH 8-K filed May 13, 2009.

4.4 Rights of Parties Before the Occurrence of an Event of Default.

(a) Exercising Rights and Receipt of Cash Proceeds Prior to an Event of Default. Unless and until any Event of Default shall occur and be continuing:

(i) With respect to all Disposition Proceeds Collateral, subject to the other provisions of this Agreement, the Grantors shall be entitled to receive all cash dividends or interest paid in respect of or attributable to such Disposition Proceeds Collateral and any and all other Distributions. As used herein “Distributions” shall mean the declaration or payment of any dividend or other distribution on or with respect to such Disposition Proceeds Collateral, and any other payment made with respect to such Disposition Proceeds Collateral other than in respect of a Disposition thereof.

(ii) With respect to all Disposition Proceeds Collateral, each Grantor shall have the right to vote and give consents with respect to all such Disposition Proceeds Collateral owned by it and to consent to, ratify, or waive notice of any and all meetings and take such other action as it deems appropriate to protect or further its interests in respect thereof, provided that such right shall in no case be exercised for any purpose contrary to, or in violation of, any of the terms or provisions of this Agreement, the Securities, the Indenture, or any other Note Document.

(iii) The relevant Grantor shall be entitled to receive and retain the cash purchase price for any sale of Restricted Equity Interests that is permitted under the Indenture and shall not be required to deliver such cash to the Collateral Agent pursuant to any provision hereof.

(b) Exercising Rights in Disposition Proceeds Collateral After the Occurrence of an Event of Default. Upon the occurrence and during the continuance of an Event of Default, at the option of the Collateral Agent, without the consent of any Grantor, the Collateral Agent may:

(i) At any time vote or consent in respect of any Disposition Proceeds Collateral and authorize any such Disposition Proceeds Collateral to be voted and such consents to be given, ratify and waive notice of any and all meetings, and take such other action as shall seem desirable to the Collateral Agent, in its sole discretion, to protect or further the interests of the Collateral Agent and the Secured Parties in respect of any such Disposition Proceeds Collateral as though it were the outright owner thereof, and, each Grantor hereby irrevocably constitutes and appoints the Collateral Agent, after the occurrence and during the continuance of an Event of Default, its sole proxy and attorney-in-fact, with full power of substitution to vote and act with respect to any and all


such Disposition Proceeds Collateral standing in the name of such Grantor or with respect to which such Grantor is entitled to vote and act. The proxy and power of attorney herein granted are coupled with interests, are irrevocable, and shall continue throughout the term of this Agreement;

(ii) In respect of any Disposition Proceeds Collateral, join in and become a party to any plan of recapitalization, reorganization or readjustment (whether voluntary or involuntary) as shall seem desirable to the Collateral Agent in respect of any such Disposition Proceeds Collateral, and deposit any such Disposition Proceeds Collateral under any such plan; make any exchange, substitution, cancellation or surrender of such Disposition Proceeds Collateral required by any such plan and take such action with respect to any such Disposition Proceeds Collateral as may be required by any such plan or for the accomplishment thereof and no such disposition, exchange, substitution, cancellation or surrender shall be deemed to constitute a release of such Disposition Proceeds Collateral from the Security Interest of this Agreement;

(iii) Receive for application as provided in Section 406 of the Indenture all payments of whatever kind made upon or with respect to any Disposition Proceeds Collateral; and

(iv) Subject to the provisions of Section 4.4(c) hereof transfer or endorse into its name, or into the name or names of its nominee or nominees, all or any of the Disposition Proceeds Collateral.

(c) Right of Sale of Disposition Proceeds Collateral After the Occurrence of an Event of Default. Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent may sell, without recourse to judicial proceedings, by way of one or more contracts, with the right (except at private sale) to bid for and buy, free from any right of redemption, any Disposition Proceeds Collateral upon ten (10) days’ notice (which notice is agreed to be reasonable notice for the purposes hereof) to the Grantors of the time and place of sale, for cash, upon credit or for future delivery, at the Collateral Agent’s option and in the Collateral Agent’s complete discretion:

(i) At public sale, including a sale at any broker’s board or exchange; or

(ii) At private sale in any manner which will not require the Disposition Proceeds Collateral, or any part thereof, to be registered in accordance with the Securities Act or any other law or regulation, at the best price reasonably obtainable by the Collateral Agent at any such private sale or other disposition in the manner mentioned above.

The Collateral Agent is also hereby authorized, but not obligated, to take such actions, give such notices, obtain such consents, and do such other things as the Collateral Agent may deem required or appropriate in the event of sale or disposition of such Disposition Proceeds Collateral. Each Grantor understands that the Collateral Agent may in its sole discretion approach a restricted number of potential purchasers and that a sale under such circumstances may yield a lower price for such Disposition Proceeds Collateral, or any portion thereof, than


would otherwise be obtainable if the same were registered and sold in the open market. Each Grantor agrees (A) that in the event the Collateral Agent shall so sell such Disposition Proceeds Collateral, or any portion thereof, at such private sale or sales, the Collateral Agent shall have the right to rely upon the advice and opinion of any member firm of a national securities exchange as to the best price reasonably obtainable upon such a private sale thereof (any expense borne by the Collateral Agent in obtaining such advice to be paid by the Grantors as an expense related to the exercise by the Collateral Agent of its rights hereunder), and (B) that such reliance shall be conclusive evidence that the Collateral Agent handled such matter in a commercially reasonable manner. No Secured Party shall be under any obligation to take any steps to permit such Disposition Proceeds Collateral to be sold at a public sale or to delay a sale to permit the Escrow Subsidiaries to register such Disposition Proceeds Collateral for public sale under the Securities Act or applicable state securities law. In ease of any sale by the Collateral Agent of the Disposition Proceeds Collateral on credit or for future delivery, the Disposition Proceeds Collateral sold may be retained by the Collateral Agent until the selling price is paid by the purchaser, but the Collateral Agent shall incur no liability in case of failure of the purchaser to take up and pay for the Disposition Proceeds Collateral so sold. In case of any such failure, such Disposition Proceeds Collateral so sold may be again similarly sold. In connection with the sale of the Disposition Proceeds Collateral, the Collateral Agent is authorized, but not obligated, to limit prospective purchasers to the extent deemed necessary or desirable by the Collateral Agent to render such sale exempt from the registration requirements of the Securities Act and any applicable state securities laws, and no sale so made in good faith by the Collateral Agent shall be deemed not to be “commercially reasonable” because so made. In no event, however, shall the Collateral Agent or any Secured Party have any right to sell, foreclose upon, or compel the sale of any Escrowed Shares.

(d) Other Rights After an Event of Default. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent, at its election, may with respect to all Disposition Proceeds Collateral exercise any and all rights available to a secured party under the UCC or the Uniform Commercial Code as enacted in any other applicable jurisdiction, in addition to any and all other rights afforded hereunder, under the Indenture, the Securities, under the other Note Documents, at law, in equity or otherwise.

(e) Application of Proceeds. Any and all Disposition Proceeds Collateral, including cash proceeds and the proceeds from the disposition as hereinabove provided, received by Holders or any part thereof shall be applied as provided in Section 406 of the Indenture.

4.5 Right to File as Financing Statement. The Collateral Agent shall have the right at any time to execute and file this Agreement as a financing statement, but the failure of the Collateral Agent to do so shall not impair the validity or enforceability of this Agreement or the Security Interest.

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