EX-10.3 6 e10_3.htm EXHIBIT 10.3

Exhibit 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (“Agreement”) is made as of March 14, 2007, by and among FRANKLIN COVEY CO., a Utah corporation (“Borrower”), FRANKLIN COVEY PRINTING, INC., a Utah corporation, FRANKLIN DEVELOPMENT CORPORATION, a Utah corporation (“Development”), FRANKLIN COVEY TRAVEL, INC., a Utah corporation, FRANKLIN COVEY CATALOG SALES, INC., a Utah corporation, FRANKLIN COVEY CLIENT SALES, INC., a Utah corporation (“Client”), FRANKLIN COVEY PRODUCT SALES, INC., a Utah corporation, FRANKLIN COVEY SERVICES, L.L.C., a Utah limited liability company (“Services”), and FRANKLIN COVEY MARKETING, LTD., a Utah limited partnership (“Marketing”) (individually and collectively, as the context requires, “Guarantor” and, together with Borrower, individually and collectively, as the context requires, “Debtor”), JPMORGAN CHASE BANK, N.A., a national banking association (“Collateral Agent”), not in its individual capacity, but solely as collateral agent for JPMORGAN CHASE BANK, N.A., a national banking association (“Chase”), and ZIONS FIRST NATIONAL BANK, a national banking association (“Zions” and, together with Chase, individually and collectively, as the context requires, the “Secured Party”), in conjunction with the Guaranty made by Guarantor in favor of Secured Party and the Loan made to Borrower by Secured Party pursuant to the Loan Agreement.
WHEREAS, Guarantor has executed the Guaranty in favor of Secured Party, pursuant to which Guarantor has agreed to guaranty repayment of the Loan;
WHEREAS, Borrower and Secured Party, as lender, have entered into the Loan Agreement, pursuant to which Secured Party, subject to the terms and conditions contained therein, is to make the Loan to Borrower;
WHEREAS, it is a condition precedent to Secured Party’s making any loans or otherwise extending credit to Borrower under the Loan Agreement that Debtor execute and deliver to Secured Party a security agreement in substantially the form hereof encumbering all of the personal property assets of Debtor; and
WHEREAS, Debtor wishes to grant a security interest in favor of Collateral Agent in all of Debtor’s personal property assets as herein provided.
NOW, THEREFORE, in consideration of the promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions shall have the respective meanings provided therefor in the Chase Loan Agreement. All terms defined in the Utah Uniform Commercial Code, Utah Code Annotated Sections 70A-9a-101 et seq., and used herein shall have the same definitions herein as specified therein. However, if a term is defined in Article 9a of the Utah Uniform Commercial Code differently than in another Article of the Utah Uniform Commercial Code, the term has the meaning specified in Article 9a. In addition to the foregoing, the following terms as used herein (including, without limitation, in the Recitals to this Agreement) are defined as follows:
1.1 “Chase Guaranty” means that certain Repayment Guaranty of even date herewith from Guarantor in favor of Chase, as the same may be amended or modified from time to time.
1.2 “Chase Loan” means the revolving line of credit extended by Chase to Borrower pursuant and subject to the Chase Note, the Chase Loan Agreement and the other Chase Loan Documents.
1.3 “Chase Loan Agreement” means that certain Revolving Line of Credit Agreement of even date herewith by and between Borrower and Chase, as the same may be amended or modified from time to time.
1.4 “Chase Loan Documents” means, collectively, the Chase Loan Agreement, the Chase Note, the Security Documents, the Intercreditor Agreement and all other documents that from time to time govern or evidence the Chase Obligations or secure payment or performance thereof, as such documents may be amended or modified from time to time.
1.5 “Chase Note” means that certain Secured Promissory Note of even date herewith executed by Borrower and payable to Chase in the maximum principal amount of $18,000,000, as the same may be amended or modified from time to time.
1.6 “Chase Obligations” means, collectively, (a) payment of the Chase Loan; (b) with respect to Guarantor, the payment of the Guarantor Obligations (as defined in the Chase Guaranty); (c) all of the terms, conditions, agreements, stipulations, covenants, and provisions of this Agreement, all other Chase Loan Documents, and any other agreement, document or instrument (and any and all renewals, replacements, amendments, modifications or extensions thereof), given by Debtor to Chase to evidence or to secure the indebtedness secured hereby; (d) all late charges, default interest, prepayment charges or premiums, loan fees, commitment fees and extension fees described in this Agreement and all other Chase Loan Documents and all costs of collecting the indebtedness or other amounts evidenced by this Agreement and all other Chase Loan Documents, including any and all costs and expenditures of a receiver in possession and reasonable attorneys’ fees; (e) payment of all sums advanced by Chase to protect the Personal Property, with interest thereon equal to the highest default interest rate as provided by the Chase Note; and (f) all modifications, extensions and renewals of any of the obligations secured hereby, however evidenced. This Agreement shall also secure the payment and performance of any additional loans that may hereafter be made by Chase to Debtor which are evidenced by a promissory note or notes or other writings stating that they are secured by this Agreement. This Agreement shall also secure all amounts, including costs of collection, payable under any guarantee(s) now or hereafter relating to the obligations secured hereby.
1.7 “Event of Default” means the failure of Debtor to pay or perform any of the Obligations as and when due to be paid or performed under the terms of the Loan Documents.
1.8 “Guaranty” means, individually and collectively, as the context requires, the Chase Guaranty and the Zions Guaranty.
1.9 "Intercreditor Agreement" means that certain Intercreditor Agreement of even date herewith by and among Collateral Agent and Secured Party, as the same may be amended or modified from time to time.
1.10 “Loan” means, individually and collectively, as the context requires, the Chase Loan and the Zions Loan.
1.11 “Loan Agreement” means, individually and collectively, as the context requires, the Chase Loan Agreement and the Zions Loan Agreement.
1.12 “Loan Documents” means, individually and collectively, as the context requires, the Chase Loan Documents and the Zions Loan Documents.
1.13 “Note” means, individually and collectively, as the context requires, the Chase Note and the Zions Note.
1.14 “Obligations” means, individually and collectively, as the context requires, the Chase Obligations and the Zions Obligations.
1.15 “Personal Property” means all right, title, and interest of Debtor in (i) all personal property now or hereafter owned by Debtor, (ii) all other rights and interests of Debtor now or hereafter held in personal property, including, without limiting the foregoing, all of Debtor’s present and future “Accounts,” “Cash Proceeds,” “Chattel Paper,” “Collateral,” “Deposit Accounts,” “Electronic Chattel Paper,” “Equipment,” “Fixtures,” “General Intangibles,” “Goods,” “Instruments,” “Inventory,” “Investment Property,” “Letter-of-Credit Rights,” “Noncash Proceeds,” and “Tangible Chattel Paper” (as such terms are defined in the Uniform Commercial Code as in effect from time to time in the State of Utah, or any other jurisdiction, as applicable (the “Uniform Commercial Code”)), (iii) all personal property and rights and interests in personal property of similar type or kind hereafter acquired by Debtor, (iv) all of Debtor’s right, title and interest in and to all deposit accounts maintained with Secured Party or any affiliate of Secured Party, (v) all appurtenances and additions thereto and substitutions or replacements thereof, and (vi) all proceeds thereof (as hereinafter provided).
1.16 “Zions Guaranty” means that certain Repayment Guaranty of even date herewith from Guarantor in favor of Zions, as the same may be amended or modified from time to time.
1.17 “Zions Loan” means the revolving line of credit extended by Zions to Borrower pursuant and subject to the Zions Note, the Zions Loan Agreement and the other Zions Loan Documents.
1.18 "Zions Loan Agreement" means that certain Revolving Line of Credit Agreement of even date herewith by and between Borrower and Zions, as teh same may be amended or modified from time to time.
1.19 "Zions Loan Documents" means, collectively, the Zions Loan Agreement, the Zions Note, the Security Documents, the Intercreditor Agreement and all other documents that from time to time govern or evidence the Zions Obligations or secure payment of performance thereof, as such documents may be amended or modified from time to time.
1.20 "Zions Note" means that certain Secured Promissory Note of even date herewith executed by Borrower and payable to Zions in the maximum principal amount of $7,000,000, as the same may be amended or modified from time to time.
1.21 “Zions Obligations” means, collectively, (a) payment of the Zions Loan; (b) with respect to Guarantor, the payment of the Guarantor Obligations (as defined in the Zions Guaranty); (c) all of the terms, conditions, agreements, stipulations, covenants, and provisions of this Agreement, all other Zions Loan Documents, and any other agreement, document or instrument (and any and all renewals, replacements, amendments, modifications or extensions thereof), given by Debtor to Zions to evidence or to secure the indebtedness secured hereby; (d) all late charges, default interest, prepayment charges or premiums, loan fees, commitment fees and extension fees described in this Agreement and all other Zions Loan Documents and all costs of collecting the indebtedness or other amounts evidenced by this Agreement and all other Zions Loan Documents, including any and all costs and expenditures of a receiver in possession and reasonable attorneys’ fees; (e) payment of all sums advanced by Zions to protect the Personal Property, with interest thereon equal to the highest default interest rate as provided by the Zions Note; and (f) all modifications, extensions and renewals of any of the obligations secured hereby, however evidenced. This Agreement shall also secure the payment and performance of any additional loans that may hereafter be made by Zions to Debtor which are evidenced by a promissory note or notes or other writings stating that they are secured by this Agreement. This Agreement shall also secure all amounts, including costs of collection, payable under any guarantee(s) now or hereafter relating to the obligations secured hereby.
2. Grant of Security Interest. Debtor hereby grants to Collateral Agent, to secure the payment and performance in full of all of the Obligations, a security interest in and so pledges and assigns to Collateral Agent all of the “Collateral” as described in the Loan Agreement, together with all of Debtor’s Personal Property and all other personal property assets of Debtor, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof (all of the same being hereinafter called the “Collateral”), including, without limitation, “Accounts,” “Cash Proceeds,” “Chattel Paper,” “Collateral,” “Deposit Accounts,” “Electronic Chattel Paper,” “Equipment,” “Fixtures,” “General Intangibles,” “Goods,” “Instruments,” “Inventory,” “Investment Property,” “Letter-of-Credit Rights,” “Noncash Proceeds,” and “Tangible Chattel Paper,” as defined in the Uniform Commercial Code, as more particularly described on Exhibit A hereto, and all insurance claims and other proceeds or products thereof, whether now owned or existing or hereafter acquired or arising, wherever located and whether in Debtor’s possession and control or in the possession and control of a third party. Collateral Agent acknowledges that the attachment of its security interest in any additional commercial tort claim as original collateral is subject to Debtor’s compliance with Section 4.7.
3. Authorization to File Financing Statements. Debtor hereby irrevocably authorizes Collateral Agent at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all assets of Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9a of the Uniform Commercial Code, or (ii) as being of an equal or lesser scope or with greater detail, and (b) provide any other information required by part 5 of Article 9a of the Uniform Commercial Code, for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether Debtor is an organization, the type of organization and any organizational identification number issued to Debtor and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. Debtor agrees to furnish any such information to Collateral Agent promptly upon Collateral Agent’s request. Debtor also ratifies its authorization for Collateral Agent to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.
4. Other Actions. To further the attachment, perfection and first priority of, and the ability of Collateral Agent to enforce, Collateral Agent’s security interest in the Collateral, and without limitation on Debtor’s other obligations in this Agreement, Debtor agrees, in each case at Debtor’s expense, to take the following actions with respect to the following Collateral:
4.1 Promissory Notes and Tangible Chattel Paper. If Debtor shall at any time hold or acquire any promissory notes or tangible chattel paper having an original principal amount of $100,000 or more (but excluding loans made pursuant to Borrower’s management common stock loan program (as described on Schedule 5.20 to the Chase Loan Agreement)), Debtor shall forthwith endorse, assign and deliver such promissory notes or tangible chattel paper to Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank as Collateral Agent may from time to time specify.
4.2 Deposit Accounts. For each deposit account that Debtor at any time opens or maintains, Debtor shall, at Collateral Agent’s request and option, pursuant to an agreement in form and substance satisfactory to Collateral Agent, either (a) cause the depositary bank to comply at any time with instructions from Collateral Agent to such depositary bank directing the disposition of funds from time to time credited to such deposit account, without further consent of Debtor, or (b) arrange for Collateral Agent to become the customer of the depositary bank with respect to the deposit account, with Debtor being permitted, only with the consent of Collateral Agent, to exercise rights to withdraw funds from such deposit account. Collateral Agent agrees with Debtor that Collateral Agent shall not give any such instructions or withhold any withdrawal rights from Debtor, unless an Event of Default has occurred and is continuing, or would occur, if effect were given to any withdrawal not otherwise permitted by the Loan Documents. The provisions of this paragraph shall not apply to (i) any deposit account for which Debtor, the depositary bank and Collateral Agent have entered into a cash collateral agreement specially negotiated among Debtor, the depositary bank and Collateral Agent for the specific purpose set forth therein, (ii) a deposit account for which Collateral Agent is the depositary bank and is in automatic control, and (iii) deposit accounts specially and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Debtor’s salaried employees.
4.3 Investment Property. If Debtor shall at any time hold or acquire any certificated securities in any Guarantor, Debtor shall forthwith endorse, assign and deliver the same to Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank as Collateral Agent may from time to time specify. If any securities now or hereafter acquired by Debtor are uncertificated and are issued to Debtor or its nominee directly by the issuer thereof, Debtor shall promptly notify Collateral Agent thereof and, at Collateral Agent’s request and option, pursuant to an agreement in form and substance satisfactory to Collateral Agent, either (a) cause the issuer to agree to comply with instructions from Collateral Agent as to such securities, without further consent of Debtor or such nominee, or (b) arrange for Collateral Agent to become the registered owner of the securities. If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by Debtor are held by Debtor or its nominee through a securities intermediary or commodity intermediary, Debtor shall promptly notify Collateral Agent thereof and, at Collateral Agent’s request and option, pursuant to an agreement in form and substance satisfactory to Collateral Agent, either (i) cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply with entitlement orders or other instructions from Collateral Agent to such securities intermediary as to such securities or other investment property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by Collateral Agent to such commodity intermediary, in each case without further consent of Debtor or such nominee, or (ii) in the case of financial assets or other investment property held through a securities intermediary, arrange for Collateral Agent to become the entitlement holder with respect to such investment property, with Debtor being permitted, only with the consent of Collateral Agent, to exercise rights to withdraw or otherwise deal with such investment property. Collateral Agent agrees with Debtor that Collateral Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by Debtor, unless an Event of Default has occurred and is continuing, or, after giving effect to any such investment and withdrawal rights not otherwise permitted by the Loan Documents, would occur. Without the prior written consent of Lender, neither Borrower, Development, Client, Services nor Marketing shall (x) amend or cause to be amended the Guarantor Operating Documents of Services or Marketing to provide that the membership interests of Services or the partnership interests of Marketing are a security and are governed by Article 8 of the Uniform Commercial Code or (y) issue certificates evidencing the ownership of the membership or partnership interests of Services or Marketing, respectively. The provisions of this paragraph shall not apply to any financial assets credited to a securities account for which Collateral Agent is the securities intermediary.
4.4 Collateral in the Possession of a Bailee. If any Collateral is at any time in the possession of a bailee, Debtor shall promptly notify Collateral Agent thereof and, at Collateral Agent’s request and option, shall promptly obtain an acknowledgement from the bailee, in form and substance satisfactory to Collateral Agent, that the bailee holds such Collateral for the benefit of Collateral Agent, and that such bailee agrees to comply, without further consent of Debtor, with instructions from Collateral Agent as to such Collateral. Collateral Agent agrees with Debtor that Collateral Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by Debtor with respect to the bailee.
4.5 Electronic Chattel Paper and Transferable Records. If Debtor at any time holds or acquires an interest in any electronic chattel paper or any “transferable record,” as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, Debtor shall promptly notify Collateral Agent thereof and, at the request and option of Collateral Agent, shall take such action as Collateral Agent may reasonably request to vest in Collateral Agent control, under Section 9a-105 of the Uniform Commercial Code, of such electronic chattel paper or control under Section 201 of the federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. Collateral Agent agrees with Debtor that Collateral Agent will arrange, pursuant to procedures satisfactory to Collateral Agent and so long as such procedures will not result in Collateral Agent’s loss of control, for Debtor to make alterations to the electronic chattel paper or transferable record permitted under Section 9a-105 of the Uniform Commercial Code or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to make without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by Debtor with respect to such electronic chattel paper or transferable record.
4.6 Letter-of-Credit Rights. If Debtor is at any time a beneficiary under a letter of credit, Debtor shall promptly notify Collateral Agent thereof and, at the request and option of Collateral Agent, Debtor shall, pursuant to an agreement in form and substance satisfactory to Collateral Agent, either (i) arrange for the issuer and any confirmer or other nominated person of such letter of credit to consent to an assignment to Collateral Agent of the proceeds of the letter of credit, or (ii) arrange for Collateral Agent to become the transferee beneficiary of the letter of credit.
4.7 Commercial Tort Claims. If Debtor shall at any time hold or acquire a commercial tort claim, Debtor shall promptly notify Collateral Agent in a writing signed by Debtor of the particulars thereof and grant to Collateral Agent in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Collateral Agent.
4.8 Other Actions as to Any and All Collateral. Debtor further agrees, at the request and option of Collateral Agent, to take any and all other actions Collateral Agent may determine to be necessary or useful for the attachment, perfection and first priority of, and the ability of Collateral Agent to enforce, Collateral Agent’s security interest in any and all of the Collateral, including, without limitation, (a) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the Uniform Commercial Code, to the extent, if any, that Debtor’s signature thereon is required therefor, (b) causing Collateral Agent’s name to be noted as secured party on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of Collateral Agent to enforce, Collateral Agent’s security interest in such Collateral, (c) complying with any provision of any statute, regulation or treaty of the United States as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Collateral Agent to enforce, Collateral Agent’s security interest in such Collateral, (d) using commercially reasonable efforts to obtain governmental and other third party waivers, consents and approvals in form and substance satisfactory to Collateral Agent, including, without limitation, any consent of any licensor, lessor or other person obligated on Collateral, (e) using commercially reasonable efforts to obtain waivers from mortgagees in form and substance satisfactory to Collateral Agent, (f) taking all actions under any earlier versions of the Uniform Commercial Code or under any other law, as reasonably determined by Collateral Agent to be applicable in any relevant Uniform Commercial Code or other jurisdiction, including any foreign jurisdiction, and (g) acknowledging the Intercreditor Agreement (but not any amendments or other modifications of the Intercreditor Agreement). Borrower shall use commercially reasonable efforts to cause to be delivered to Collateral Agent, within sixty (60) days after the Closing Date, a landlord waiver and consent in a form reasonably acceptable to Collateral Agent, from each of (a) Franklin SaltLake LLC, the landlord of the premises leased by Development pursuant to that certain Master Lease Agreement dated June 12, 2005, and (b) (i) CB Richard Ellis Investors, L.L.C. (“CBREI”), the master landlord of the premises leased by EDS Information Services L.L.C. (“EDS”) pursuant to that certain Lease Agreement dated as of June 26, 2001 with Development, the landlord’s interest under which was assigned to CBREI by Development pursuant to that certain Assignment of Lease dated as of June 26, 2001, and (ii) EDS, the sublandlord of the premises subleased by Borrower pursuant to that certain Sublease Agreement dated as of June 26, 2001. Upon the execution of each other real property lease to which Borrower or Guarantor is a party as a tenant, Borrower shall use commercially reasonable efforts to cause to be delivered to Collateral Agent a landlord waiver and consent from the landlord under each such lease, in a form reasonably acceptable to Collateral Agent.
4.9 Contesting Liens. Borrower shall promptly discharge, or cause to be discharged, any liens or claims of lien filed or otherwise asserted in writing against the Collateral other than the Permitted Exceptions. If Borrower fails either to promptly discharge or contest any such liens or claims of lien, then Collateral Agent may, in its sole and absolute discretion, but shall not be required to, procure the release and discharge of any such lien and any judgment or decree thereon, and in furtherance thereof may, in its sole and absolute discretion, effect any settlement or compromise. All amounts expended by Collateral Agent in connection with the provisions of this Section shall be deemed to constitute an Advance under a Loan Agreement. In settling, compromising or arranging for the discharge of any liens under this Section, Collateral Agent shall not be required to establish or confirm the validity or amount of the lien.
5. Relation to Other Loan Documents. The provisions of this Agreement supplement the provisions of any other Loan Documents granted by Debtor to Collateral Agent which secures the payment or performance of any of the Obligations. Nothing contained in the other Loan Documents shall derogate from any of the rights or remedies of Collateral Agent hereunder.
6. Intentionally Omitted.
7. Representations and Warranties Concerning Debtor’s Legal Status. If requested by Collateral Agent, Debtor shall complete and deliver to Collateral Agent a certificate signed by Debtor and entitled “Perfection Certificate” (the “Perfection Certificate”). Debtor represents and warrants to Collateral Agent as follows: (a) Debtor’s exact legal name is that indicated in the introductory paragraph hereto and in the Perfection Certificate, if any, and on Exhibit B attached hereto, (b) Debtor is an organization of the type, and is organized in the jurisdiction set forth in the introductory paragraph hereto and in the Perfection Certificate, if any, and on Exhibit B attached hereto, (c) the Perfection Certificate, if any, and Exhibit B attached hereto accurately set forth Debtor’s organizational identification number or accurately state that Debtor has none, (d) the Perfection Certificate, if any, and Exhibit B attached hereto accurately set forth Debtor’s place of business or, if more than one, its chief executive office, as well as Debtor’s mailing address, if different, (e) all other information set forth on the Perfection Certificate, if any, pertaining to Debtor is accurate and complete as of the date on which it was executed by Debtor, and (f) Borrower will promptly notify Lender in writing of a change in any information provided in the Perfection Certificate since the date on which it was executed by Debtor.
8. Covenants Concerning Debtor’s Legal Status. Debtor covenants with Collateral Agent as follows: (a) without providing at least thirty (30) days’ prior written notice to Collateral Agent, Debtor will not change its name, its place of business or, if more than one, chief executive office, or its mailing address or organizational identification number if it has one, (b) if Debtor does not have an organizational identification number and later obtains one, Debtor shall forthwith notify Collateral Agent of such organizational identification number, and (c) Debtor will not change its type of organization, jurisdiction of organization or other legal structure.
9. Representations and Warranties Concerning Collateral, etc. Debtor further represents and warrants to Collateral Agent as follows: (a) Debtor is the owner of or has other rights in or power to transfer the Collateral, free from any right or claim or any person or any adverse Lien or Encumbrance or security interest, except for Liens or Encumbrances and security interests in favor of Collateral Agent, Permitted Exceptions and other Liens or Encumbrances permitted by the Loan Agreement, (b) none of the Collateral constitutes, or is the proceeds of, “farm products” as defined in Section 9-102(a)(34) of the Uniform Commercial Code, (c) Debtor holds no commercial tort claim except as indicated on the Perfection Certificate, or as Debtor has notified Collateral Agent in writing, (d) Debtor has at all times operated its business in compliance with all applicable provisions of the federal Fair Labor Standards Act, as amended, and with all applicable provisions of federal, state and local statutes and ordinances dealing with the control, shipment, storage or disposal of hazardous materials or substances except, in each case where failure to comply would not result in a Material Adverse Change, (e) all other information set forth on the Perfection Certificate, if any, pertaining to the Collateral is accurate and complete in all material respects as of the date of such certificate, and (f) the security interests granted herein are perfected and are of first priority, except to the extent of the Permitted Exceptions.
10. Covenants Concerning Collateral, etc. Debtor further covenants with Collateral Agent as follows except to the extent that failure to do so would not cause a Material Adverse Change: (a) the Collateral, to the extent not delivered to Collateral Agent pursuant to Section 4, will be kept at those locations listed on the Perfection Certificate, if any, and on Exhibit B attached hereto and Debtor will not remove the Collateral from such locations, other than in the ordinary course of business or as permitted under the Loan Agreement or the Guaranty, without providing at least thirty (30) days’ prior written notice to Collateral Agent, (b) except for the security interest herein granted and liens permitted by the Loan Documents, including without limitation the Permitted Exceptions, Debtor shall be the owner of or have other rights in the Collateral free from any right or claim of any other person, lien, security interest or other encumbrance, and Debtor shall defend the same against all claims and demands of all persons at any time claiming the same or any interests therein adverse to Collateral Agent, (c) Debtor shall not pledge, mortgage or create, or suffer to exist any right of any person in or claim by any person to the Collateral, or any security interest, lien or encumbrance in the Collateral in favor of any person, other than Collateral Agent, except for liens permitted by the Loan Documents, including without limitation the Permitted Exceptions, (d) Debtor will keep the Collateral in good order and repair, normal wear and tear excepted, and will not use the same in violation of law, (e) Debtor will permit Collateral Agent, or its designee, upon reasonable prior notice, to enter upon any portion of the premises where any Collateral may be located for purposes of inspection of the Collateral; provided, however, that inspection by Collateral Agent (or by Collateral Agent’s inspector) of the Collateral or any portion thereof is for the sole purpose of protecting the security of Collateral Agent and is not to be construed as a representation by Collateral Agent that there has been compliance with applicable law or any other requirement or condition and Debtor may make or cause to be made such other independent inspections as Debtor may desire for its own protection, and nothing contained herein shall be construed as requiring Collateral Agent to oversee or supervise the Collateral, (f) Debtor will pay promptly when due all taxes, assessments, governmental charges and levies upon the Collateral or incurred in connection with the use or operation of such Collateral or incurred in connection with this Agreement, (g) Debtor will continue to operate its business in compliance with all applicable provisions of the federal Fair Labor Standards Act, as amended, and with all applicable provisions of federal, state and local statutes and ordinances dealing with the control, shipment, storage or disposal of hazardous materials or substances, and (h) unless such action would result in a Material Adverse Change (without taking into consideration subsections (iii) and (iv) of the definition of Material Adverse Change), Debtor may sell or otherwise dispose, or offer to sell or otherwise dispose, of the Collateral or any interest therein except that Debtor shall not sell or otherwise dispose of, or offer to sell or otherwise dispose of, all or a substantial part of the Collateral other than to Borrower or a Guarantor.
11. Insurance.
11.1 Maintenance of Insurance. Debtor will maintain with financially sound and reputable insurers insurance with respect to its properties and business against such casualties and contingencies as shall be in accordance with general practices of businesses engaged in similar activities in similar geographic areas. All such insurance policies shall (a) be in such minimum amounts that Debtor will not be deemed a co-insurer under applicable insurance laws, regulations and policies, (b) be issued by an insurance company licensed to do business in the state where the property is located having a rating of “A-” VIII or better by A.M. Best Co., in Best’s Rating Guide, (c) name “JPMorgan Chase Bank, N.A., any and all subsidiaries as their interest may appear” as additional insureds on all liability insurance, (d) be endorsed to show that Borrower’s insurance shall be primary and all insurance carried by Collateral Agent is strictly excess and secondary and shall not contribute with Borrower’s insurance, (e) be evidenced by a certificate of insurance to be provided to Collateral, (f) include either policy or binder numbers on the Accord form, and (g) otherwise shall be in such amounts, contain such terms, be in such forms and be for such periods as may be reasonably satisfactory to Collateral Agent. In addition, all such insurance shall be payable to Collateral Agent as loss payee. Without limiting the foregoing, Debtor will (x) keep all of its physical property insured with casualty or physical hazard insurance on an “all risks” basis, with broad form flood and earthquake coverages and electronic data processing coverage, with a full replacement cost endorsement and an “agreed amount” clause in an amount equal to 100% of the full replacement cost of such property, (y) maintain all such workers’ compensation or similar insurance as may be required by law, and (z) maintain, in amounts and with deductibles equal to those generally maintained by businesses engaged in similar activities in similar geographic areas, general public liability insurance against claims of bodily injury, death or property damage occurring, on, in or about the properties of Debtor; and business interruption insurance.
11.2 Insurance Proceeds. The proceeds of any casualty insurance in respect of any casualty loss of any of the Collateral shall, subject to the rights, if any, of other parties with an interest having priority in the property covered thereby, (a) so long as no Event of Default has occurred and is continuing, be disbursed to Debtor for direct application by Debtor solely to the repair or replacement of Debtor’s property so damaged or destroyed, and (b) in all other circumstances, be held by Collateral Agent as cash collateral for the Obligations. Collateral Agent may, at its reasonable option which option shall be exercised within ten (10) Business Days of receipt of such proceeds, disburse from time to time all or any part of such proceeds so held as cash collateral, upon such terms and conditions as Collateral Agent may reasonably prescribe, for direct application by Debtor solely to the repair or replacement of Debtor’s property so damaged or destroyed, or Collateral Agent may ratably distribute to each Secured Party all or any part of such proceeds for application to the Obligations.
11.3 Continuation of Insurance. All policies of insurance shall provide for at least thirty (30) days’ prior written cancellation notice to Collateral Agent. In the event of failure by Debtor to provide and maintain insurance as herein provided, Collateral Agent may, at its option, provide such insurance and charge the amount thereof to Debtor. Debtor shall furnish Collateral Agent with certificates of insurance and policies evidencing compliance with the foregoing insurance provision.
12. Collateral Protection Expenses; Preservation of Collateral.
12.1 Expenses Incurred by Collateral Agent or Secured Party. In Collateral Agent’s or any Secured Party’s sole and absolute discretion, if Debtor fails to do so, Collateral Agent or such Secured Party may discharge taxes and other encumbrances (other than Permitted Exceptions) at any time levied or placed on any of the Collateral, unless such taxes and encumbrances are being contested in good faith, maintain any of the Collateral, make repairs thereto and pay any necessary filing fees or insurance premiums. Debtor agrees to reimburse Collateral Agent or such Secured Party on demand for all expenditures so made. Neither Collateral Agent nor any Secured Party shall have any obligation to Debtor to make any such expenditures, nor shall the making thereof be construed as the waiver or cure of any Default or Event of Default.
12.2 Collateral Agent’s Obligations and Duties. Anything herein to the contrary notwithstanding, Debtor shall remain obligated and liable under each contract or agreement comprised in the Collateral to be observed or performed by Debtor thereunder. Collateral Agent shall not have any obligation or liability under any such contract or agreement by reason of or arising out of this Agreement or the receipt by Collateral Agent of any payment relating to any of the Collateral, nor shall Collateral Agent be obligated in any manner to perform any of the obligations of Debtor under or pursuant to any such contract or agreement, to make inquiry as to the nature or sufficiency of any payment received by Collateral Agent in respect of the Collateral or as to the sufficiency of any performance by any party under any such contract or agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to Collateral Agent or to which Collateral Agent may be entitled at any time or times. Collateral Agent’s sole duty with respect to the custody, safe keeping and physical preservation of the Collateral in its possession, under Section 9a-207 of the Uniform Commercial Code or otherwise, shall be to deal with such Collateral in the same manner as Collateral Agent deals with similar property for its own account.
13. Securities and Deposits. Collateral Agent may at any time following and during the continuance of an Event of Default, at its sole option, transfer to itself or any nominee any securities constituting Collateral, receive any income thereon and hold such income as additional Collateral or apply it to the Obligations. Whether or not any Obligations are due, Collateral Agent may following and during the continuance of an Event of Default, demand, sue for, collect, or make any settlement or compromise which it deems desirable with respect to the Collateral. Regardless of the adequacy of Collateral or any other security for the Obligations and during the continuance of an Event of Default, any deposits or other sums at any time credited by or due from Collateral Agent to Debtor may at any time be applied to or set off against any of the Obligations. If Collateral Agent exercises such setoff right, Collateral Agent exercising such right agrees promptly to notify Debtor after any such setoff and application made by Collateral Agent; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application.
14. Notification to Account Debtors and Other Persons Obligated on Collateral. If an Event of Default shall have occurred and be continuing, Debtor shall, at the request and option of Collateral Agent, notify account debtors and other persons obligated on any of the Collateral of the security interest of Collateral Agent in any account, chattel paper, general intangible, instrument or other Collateral and that payment thereof is to be made directly to Collateral Agent or to any financial institution designated by Collateral Agent as Collateral Agent’s agent therefor, and Collateral Agent may itself, if an Event of Default shall have occurred and be continuing, without notice to or demand upon Debtor, so notify account debtors and other persons obligated on Collateral. After the making of such a request or the giving of any such notification, Debtor shall hold any proceeds of collection of accounts, chattel paper, general intangibles, instruments and other Collateral received by Debtor as trustee for Collateral Agent without commingling the same with other funds of Debtor and shall turn the same over to Collateral Agent in the identical form received, together with any necessary endorsements or assignments. Collateral Agent shall ratably distribute to each Secured Party the proceeds of collection of accounts, chattel paper, general intangibles, instruments and other Collateral received by Collateral Agent, for application by each Secured Party to the Obligations, such proceeds to be immediately credited after final payment in cash or other immediately available funds of the items giving rise to them.
15. Power of Attorney.
15.1 Appointment and Powers of Collateral Agent. Debtor hereby irrevocably constitutes and appoints Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Debtor or in Collateral Agent’s own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or useful to accomplish the purposes of this Agreement and, without limiting the generality of the foregoing, hereby gives said attorneys the power and right, on behalf of Debtor, without notice to or assent by Debtor, to do the following:
(a) upon the occurrence and during the continuance of an Event of Default, generally to sell, transfer, pledge, make any agreement with respect to or otherwise dispose of or deal with any of the Collateral in such manner as is consistent with the Uniform Commercial Code and as fully and completely as though Collateral Agent were the absolute owner thereof for all purposes, and to do, at Debtor’s expense, at any time, or from time to time, all acts and things which Collateral Agent deems necessary or useful to protect, preserve or realize upon the Collateral and Collateral Agent’s security interest therein, in order to effect the intent of this Agreement, all at least as fully and effectively as Debtor might do, including, without limitation, (i) the filing and prosecuting of registration and transfer applications with the appropriate federal, state, local or other agencies or authorities with respect to trademarks, copyrights and patentable inventions and processes, (ii) upon written notice to Debtor, the exercise of voting rights with respect to voting securities, which rights may be exercised, if Collateral Agent so elects, with a view to causing the liquidation of assets of the issuer of any such securities, and (iii) the execution, delivery and recording, in connection with any sale or other disposition of any Collateral, of the endorsements, assignments or other instruments of conveyance or transfer with respect to such Collateral;
(b) to the extent that Debtor’s authorization given in Section 3 is not sufficient, to file such financing statements with respect hereto, with or without Debtor’s signature, or a photocopy of this Agreement in substitution for a financing statement, as Collateral Agent may deem appropriate and to execute in Debtor’s name such financing statements and amendments thereto and continuation statements which may require Debtor’s signature; and
(c) to file for record, at Borrower’s cost and expense and in Borrower’s name, any notices that Collateral Agent considers necessary or desirable to protect the Collateral.
15.2 Ratification by Debtor. To the extent permitted by law, Debtor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and is irrevocable.
15.3 No Duty on Collateral Agent. The powers conferred on Collateral Agent hereunder are solely to protect its interests in the Collateral and shall not impose any duty upon it to exercise any such powers. Collateral Agent shall be accountable only for the amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to Debtor for any act or failure to act, except for Collateral Agent’s own gross negligence or willful misconduct.
16. Rights and Remedies. If an Event of Default shall have occurred and be continuing, Collateral Agent, without any other notice to or demand upon Debtor, shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the Uniform Commercial Code and any additional rights and remedies which may be provided to a secured party in any jurisdiction in which Collateral is located, including, without limitation, the right to take possession of the Collateral, and for that purpose Collateral Agent may, so far as Debtor can give authority therefor, enter upon any premises on which the Collateral may be situated and remove the same therefrom. During continuance of an Event of Default, Collateral Agent may in its discretion require Debtor to assemble all or any part of the Collateral at such location or locations within the jurisdiction(s) of Debtor’s principal office(s) or at such other locations as Collateral Agent may reasonably designate. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Collateral Agent shall give to Debtor at least ten Business Days prior written notice of the time and place of any public sale of Collateral or of the time after which any private sale or any other intended disposition is to be made. Debtor hereby acknowledges that ten Business Days prior written notice of such sale or sales shall be reasonable notice. In addition, Debtor waives any and all rights that it may have to a judicial hearing in advance of the enforcement of any of Collateral Agent’s rights and remedies hereunder, including, without limitation, its right following an Event of Default to take immediate possession of the Collateral and to exercise its rights and remedies with respect thereto.
17. Standards for Exercising Rights and Remedies. To the extent that applicable law imposes duties on Collateral Agent to exercise remedies in a commercially reasonable manner, Debtor acknowledges and agrees that it is not commercially unreasonable for Collateral Agent (a) to fail to incur expenses reasonably deemed significant by Collateral Agent to prepare Collateral for disposition or otherwise to fail to complete raw material or work in process into finished goods or other finished products for disposition, (b) 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, (c) to fail to exercise collection remedies against account debtors or other persons obligated on Collateral or to fail to remove liens or encumbrances on or any adverse claims against Collateral, (d) 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, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other persons, whether or not in the same business as Debtor, for expressions of interest in acquiring all or any portion of the Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (h) 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 capability of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, (k) to purchase insurance or credit enhancements to insure Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to Collateral Agent a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Collateral Agent in the collection or disposition of any of the Collateral. Debtor acknowledges that the purpose of this Section 17 is to provide non-exhaustive indications of what actions or omissions by Collateral Agent would fulfill Collateral Agent’s duties under the Uniform Commercial Code or other law of the State of Utah or any other relevant jurisdiction in Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by Collateral Agent shall not be deemed to fail to fulfill such duties solely on account of not being indicated in this Section 17. Without limitation upon the foregoing, nothing contained in this Section 17 shall be construed to grant any rights to Debtor or to impose any duties on Collateral Agent that would not have been granted or imposed by this Agreement or by applicable law in the absence of this Section 17.
18. No Waiver by Collateral Agent, etc. Collateral Agent shall not be deemed to have waived any of its rights or remedies in respect of the Obligations or the Collateral unless such waiver shall be in writing and signed by Collateral Agent. No delay or omission on the part of Collateral Agent in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion. All rights and remedies of Collateral Agent with respect to the Obligations or the Collateral, whether evidenced hereby or by any other instrument or papers, shall be cumulative and may be exercised singularly, alternatively, successively or concurrently at such time or at such times as Collateral Agent deems expedient.
19. Suretyship Waivers by Debtor. Debtor waives demand, notice, protest, notice of acceptance of this Agreement, notice of loans made, credit extended, Collateral received or delivered or other action taken in reliance hereon and all other demands and notices of any description. With respect to both the Obligations and the Collateral, Debtor assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of or failure to perfect any security interest in any Collateral, to the addition or release of any party or person primarily or secondarily liable, to the acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof, all in such manner and at such time or times as Collateral Agent may deem advisable. Collateral Agent shall have no duty as to the collection or protection of the Collateral or any income therefrom, the preservation of rights against prior parties, or the preservation of any rights pertaining thereto beyond the safe custody thereof as set forth in Section 12.2. Debtor further waives any and all other suretyship defenses.
20. Marshalling. Collateral Agent shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, Debtor hereby agrees that it will not invoke any law relating to the marshalling of collateral which might cause delay in or impede the enforcement of Collateral Agent’s rights and remedies under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, Debtor hereby irrevocably waives the benefits of all such laws.
21. Proceeds of Dispositions; Expenses. Debtor shall pay to Collateral Agent on demand any and all expenses, including reasonable attorneys’ fees and disbursements, incurred or paid by Collateral Agent in protecting, preserving or enforcing Collateral Agent’s rights and remedies under or in respect of any of the Obligations or any of the Collateral. After deducting all of said expenses, the residue of any proceeds of collection or sale or other disposition of the Collateral shall, to the extent actually received in cash, be distributed ratably to each Secured Party, which shall be applied to the payment of the Obligations in such order or preference as each Secured Party may determine, proper allowance and provision being made for any Obligations not then due. Upon the final payment and satisfaction in full of all of the Obligations and after making any payments required by Sections 9-608(a)(1)(C) or 9a-615(a)(3) of the Uniform Commercial Code, any excess shall be returned to Debtor. In the absence of final payment and satisfaction in full of all of the Obligations, Debtor shall remain liable for any deficiency.
22. Overdue Amounts. Until paid, all amounts due and payable by Debtor hereunder shall be a debt secured by the Collateral and shall bear, whether before or after judgment, interest at the rate of interest for overdue principal set forth in the Loan Documents.
23. CHOICE OF LAW. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY BE TRIED AND LITIGATED IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF SALT LAKE, STATE OF UTAH OR, IN ANY OTHER COURT IN WHICH A PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF DEBTOR AND COLLATERAL AGENT WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ANY STATE OR FEDERAL COURT LOCATED IN THE COUNTY OF SALT LAKE, STATE OF UTAH.
24. WAIVER OF JURY TRIAL. EACH OF DEBTOR AND COLLATERAL AGENT 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER THEORY). EACH OF DEBTOR AND COLLATERAL AGENT (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.
25. WAIVER OF SPECIAL DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DEBTOR SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST COLLATERAL AGENT, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS, THE LOAN OR THE USE OF THE PROCEEDS THEREOF.
26. MISCELLANEOUS WAIVERS. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH, A “PROCEEDING”), DEBTOR IRREVOCABLY (A) SUBMITS TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION IN THE CITY OF SALT LAKE, COUNTY OF SALT LAKE AND STATE OF UTAH, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. NOTHING IN THIS AGREEMENT SHALL PRECLUDE COLLATERAL AGENT FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A PROCEEDING IN ANY OTHER JURISDICTION. DEBTOR FURTHER AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY UTAH STATE OR UNITED STATES COURT SITTING IN THE CITY OF SALT LAKE AND COUNTY OF SALT LAKE MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO DEBTOR AT THE ADDRESS INDICATED IN THE GUARANTY OR THE LOAN AGREEMENT, AS THE CASE MAY BE, AND SERVICE SO MADE SHALL BE COMPLETE UPON RECEIPT; EXCEPT THAT IF DEBTOR SHALL REFUSE TO ACCEPT DELIVERY, SERVICE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
27. Miscellaneous. The headings of each section of this Agreement are for convenience only and shall not define or limit the provisions thereof. This Agreement and all rights and obligations hereunder shall be binding upon Debtor and its respective successors and assigns, and shall inure to the benefit of Collateral Agent and its successors and assigns. If any term of this Agreement shall be held to be invalid, illegal or unenforceable, the validity of all other terms hereof shall in no way be affected thereby, and this Agreement shall be construed and be enforceable as if such invalid, illegal or unenforceable term had not been included herein. Debtor acknowledges receipt of a copy of this Agreement. All notices required or permitted hereunder shall be made in the manner required or permitted by the Uniform Commercial Code and otherwise in accordance with the terms and at the addresses set forth in the Chase Loan Agreement and the Chase Guaranty. Debtor hereby authorizes Collateral Agent, at its sole discretion and without notice to or consent of Debtor, to disclose to Zions or Chase on a confidential basis any information, financial or otherwise, which it may possess concerning Debtor. Collateral Agent acknowledges that it is aware, and Collateral Agent will advise its directors, officers, employees, agents and advisors (collectively, “Representatives”) who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any Person who has received from an issuer material, non-public information concerning such issuer from purchasing or selling securities of such issuer or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell securities. Lender further agrees that it will keep, and it will advise its Representatives of its obligations to keep, confidential any material non-public information disclosed to Collateral Agent by Borrower or any Person acting on Borrower’s behalf. This Section is a confidentiality agreement for purposes of Regulation FD promulgated under the Securities Exchange Act of 1934.
[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, intending to be legally bound, Debtor has caused this Agreement to be duly executed as of the date first above written.

| FRANKLIN COVEY CO.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer and Vice President of Investor Relations

| FRANKLIN COVEY PRINTING, INC.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN DEVELOPMENT CORPORATION
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title:Vice President

| FRANKLIN COVEY TRAVEL, INC.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN COVEY CATALOG SALES, INC.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN COVEY CLIENT SALES, INC
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN COVEY PRODUCT SALES, INC.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN COVEY SERVICES, L.L.C.
|  | a Utah liability company
| By: | FRANKLIN COVEY SERVICES, L.L.C. a Utah corporation, its member /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer

| FRANKLIN COVEY CO.
|  | a Utah corporation
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Treasurer and Vice President of Investor Relations

By: | FRANKLIN COVEY DEVELOPMENT CORPORATION
|  | a Utah corporation, its member
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title:Vice President

| FRANKLIN COVEY CO.
|  | a Utah corporation
By: | FRANKLIN DEVELOPMENT CORPORATION
|  | a Utah corporation, its general partner
| By: | /s/ RICHARD PUTNAM
| Name: Richard Putnam
| Title: Vice President "Debtor"

| JPMORGAN CHASE BANK, N.A.
|  | a national banking association
| By: | /s/ TONY C. NIELSEN
| Name: Tony C. Nielsen
| Title: Senior Vice President "Collateral Agent"

EXHIBIT A
DESCRIPTION OF PERSONAL PROPERTY
All of Debtor’s assets, including, without limitation, “Accounts,” “Cash Proceeds,” “Chattel Paper,” “Collateral,” “Deposit Accounts,” “Electronic Chattel Paper,” “Equipment,” “Fixtures,” General Intangibles,” “Goods,” “Instruments,” “Inventory,” “Investment Property,” “Letter-of-credit Rights,” “Noncash Proceeds,” and “Tangible Chattel Paper,” as defined in the Uniform Commercial Code. Such assets include, without limitation:
(a) All personal property, (including, without limitation, all goods, supplies, equipment, furniture, furnishings, fixtures, machinery, inventory, construction materials and software embedded in any of the foregoing) in which Debtor now or hereafter acquires an interest or right, together with any interest of Debtor in and to personal property which is leased or subject to any superior security interest, and all books, records, leases and other agreements, documents, and instruments of whatever kind or character, relating to such personal property;
(b) All fees, income, rents, issues, profits, earnings, receipts, royalties, and revenues which, after the date hereof and while any portion of the Obligations remains unpaid or unperformed, may accrue from such personal property or any part thereof, or which may be received or receivable by Debtor from any hiring, using, letting, leasing, subhiring, subletting, subleasing, occupancy, operation, or use thereof;
(c) All of Debtor’s present and future rights to receive payments of money, services, or property, including, without limitation, rights to receive capital contributions or subscriptions from Debtor’s partners or shareholders, amounts payable on account of the sale of partnership interests in Debtor or the capital stock of Debtor, accounts and other accounts receivable, deposit accounts, chattel paper (whether tangible or electronic), notes, drafts, contract rights, instruments, general intangibles, and principal, interest, and payments due on account of goods sold or leased, services rendered, loans made or credit extended, together with title to or interest in all agreements, documents, and instruments evidencing securing or guarantying the same;
(d) All other intangible property (and related software) and rights relating to the personal property described in Paragraph (a) above or the operation or use thereof, including, without limitation, all governmental and private contracts, agreements, permits, licenses, and approvals relating thereto, all names under or by which such property may at any time be sold, marketed, operated or known, all rights to carry on business under any such names, or any variant thereof, all trade names and trademarks, copyrights, patents, trademark, patent and copyright applications and registrations, patterns, designs, drawings, plans and specifications, other proprietary information and intellectual property, and royalties relating in any way thereto, and all goodwill and software in any way relating thereto;
(e) Debtor’s rights under all insurance policies covering the Personal Property, or any other part of the Collateral, and any and all proceeds, loss payments, and premium refunds payable regarding the same;
(f) All causes of action, claims, compensation, and recoveries for any damage to, destruction of, or condemnation or taking of the Personal Property, or any other part of the Collateral, or for any conveyance in lieu thereof, whether direct or consequential, or for any damage or injury to the Personal Property, or any other part of the Collateral, or for any loss or diminution in value of the Personal Property, or any other part of the Collateral;
(g) All Debtor’s rights in proceeds of the Loan evidenced by the Note;
(h) All of Debtor’s rights under any agreements affecting the Personal Property, whether now existing or hereafter arising; and
(i) All proceeds from sale or disposition of any of the aforesaid collateral.
As used in this Exhibit A the terms “Obligations,” “Note,” “Collateral,” and “Personal Property” shall have the meanings set forth in the Security Agreement to which this Exhibit A is attached.
EXHIBIT B
FINANCING STATEMENT INFORMATION
The Collateral Agent is:
JPMorgan Chase Bank, N.A.
80 West Broadway, Suite 200
Salt Lake City, Utah 84101
The Debtor is:

Name, Type of Organization and Jurisdiction | Address | Organizational Identification No. | Employer Identification No.
FRANKLIN COVEY CO., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 852657-0142 | 87-0401551
FRANKLIN COVEY PRINTING, INC., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 848770-0142 | 87-0401876
FRANKLIN DEVELOPMENT CORPORATION, a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 976652-0142 | 87-0448924
FRANKLIN COVEY TRAVEL, INC., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 1303276-0142 | 87-0555873
FRANKLIN COVEY CATALOG SALES, INC., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 1318674-0142 | 87-0561599
FRANKLIN COVEY CLIENT SALES, INC., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 1318682-0142 | 87-0561601
FRANKLIN COVEY PRODUCT SALES, INC., a Utah corporation | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 1318690-0142 | 87-0561600
FRANKLIN COVEY SERVICES, L.L.C., a Utah limited liability company | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 2028086-0160 | 87-0563642
FRANKLIN COVEY MARKETING, LTD., a Utah limited partnership | 2200 West Parkway Blvd. Salt Lake City, Utah 84119 | 2115011-0180 | 87-0563643

The Collateral is the Personal Property described on Exhibit A to the Security Agreement.