EXHIBIT 10.6
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of June 24, 2003, between Xxx-Xxxx
Corporation, a Delaware corporation (the "COMPANY"), and CITIZENS BANK OF
MASSACHUSETTS, as administrative agent (the "Agent") for the Lenders (as
hereinafter defined).
WHEREAS, pursuant to a certain revolving Credit and Term Loan Agreement of
even date herewith (as amended and restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Company, Xxx-Xxxx
Services, Inc., Intirion Corporation, the Agent, as agent for the Lenders named
therein (the "Lenders"), the Lenders have agreed to make certain revolving
credit and term loans to the Company;
WHEREAS, it is a condition precedent to the Lenders making any loans to the
Company under the Credit Agreement that the Company execute and deliver to the
Agent a security agreement in substantially the form hereof; and
WHEREAS, the Company wishes to grant a security interest in favor of the
Agent 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 Credit Agreement. The term
"STATE", as used herein, means the Commonwealth of Massachusetts. All terms
defined in the Uniform Commercial Code of the State and used herein shall have
the same definitions herein as specified therein. However, if a term is defined
in Article 9 of the Uniform Commercial Code of the State differently than in
another Article of the Uniform Commercial Code of the State, the term has the
meaning specified in Article 9.
2. GRANT OF SECURITY INTEREST. The Company hereby grants to the Agent for
the ratable benefit of the Lenders and the Agent as security for the payment and
performance in full of all of the Obligations, a security interest in and
pledges and assigns to the Agent the following properties, assets and rights of
the Company, 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"): all personal and fixture property of every
kind and nature, including without limitation all goods (including inventory,
equipment and any accessions thereto), instruments (including promissory notes),
documents, accounts (including receivables), chattel paper (whether tangible or
electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, supporting obligations, any other contract
rights or rights to the payment of money, insurance claims and proceeds, and all
general intangibles (including all payment intangibles and all websites, domain
names and URLs and all goodwill associated with such intangibles). The Agent
acknowledges that the attachment of its security interest in
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any commercial tort claim as original collateral is subject to the Company's
compliance with Section 4.7.
3. AUTHORIZATION TO FILE FINANCING STATEMENTS. The Company hereby
irrevocably authorizes the 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 the Company or words of similar effect, regardless of whether
any particular asset comprised in the Collateral falls within the scope of
Article 9 of the Uniform Commercial Code of the State or such jurisdiction, 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 9 of the Uniform
Commercial Code of the State or such other jurisdiction for the sufficiency or
filing office acceptance of any financing statement or amendment, including (i)
whether the Company is an organization, the type of organization and any
organization identification number issued to the Company 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. The Company agrees to furnish any such
information to the Agent promptly upon the Agent's request. The Company also
ratifies its authorization for the 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. Further to insure the attachment, perfection and first
priority of, and the ability of the Agent to enforce, the Agent's security
interest in the Collateral for the ratable benefit of the Lenders and the Agent,
the Company agrees, in each case at the Company's expense, to take the following
actions with respect to the following Collateral and without limitation on the
Company's other obligations contained in this Agreement:
4.1. PROMISSORY NOTES AND TANGIBLE CHATTEL PAPER. If the Company
shall, now or at any time hereafter, hold or acquire any promissory notes
or tangible chattel paper, the Company shall forthwith endorse, assign and
deliver the same to the Agent, accompanied by such instruments of transfer
or assignment duly executed in blank as the Agent may from time to time
specify.
4.2. DEPOSIT ACCOUNTS. For each deposit account that the Company at
any time opens or maintains, the Company shall, at the Agent's request and
option, pursuant to an agreement in form and substance satisfactory to the
Agent, either (a) cause the depository bank to agree to comply, without
further consent of the Company, at any time with instructions from the
Agent to such depository bank directing the disposition of funds from time
to time credited to such deposit account, or (b) arrange for the Agent to
become the customer of the depository bank with respect to the deposit
account, with the Company being permitted, only with the consent of the
Agent, to exercise rights to withdraw funds from such deposit account. The
Agent agrees with the Company that the Agent shall not give any such
instructions or withhold any withdrawal rights from the Company,
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unless an Event of Default has occurred and is continuing, or, if effect
were given to any withdrawal not otherwise permitted by the Loan Documents,
would occur. The provisions of this paragraph shall not apply to (i) any
deposit account for which the Company, the depository bank and the Agent
have entered into a cash collateral agreement specially negotiated among
the Company, the depository bank and the Agent for the specific purpose set
forth therein, (ii) a deposit account for which the Agent is the depositary
bank and is in automatic control, and (iii) any deposit accounts specially
and exclusively used for payroll, payroll taxes and other employee wage and
benefit payments to or for the benefit of the Company's salaried employees.
4.3. INVESTMENT PROPERTY. If the Company shall at any time hold or
acquire any certificated securities, the Company shall forthwith endorse,
assign and deliver the same to the Agent, accompanied by such instruments
of transfer or assignment duly executed in blank as the Agent may from time
to time specify. If any securities now or hereafter acquired by the Company
are uncertificated and are issued to the Company or its nominee directly by
the issuer thereof, the Company shall immediately notify the Agent thereof
and, at the Agent's request and option, pursuant to an agreement in form
and substance satisfactory to the Agent, either (a) cause the issuer to
agree to comply, without further consent of the Company or such nominee, at
any time with instructions from the Agent as to such securities, or (b)
arrange for the 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 the Company are held by the Company
or its nominee through a securities intermediary or commodity intermediary,
the Company shall immediately notify the Agent thereof and, at the Agent's
request and option, pursuant to an agreement in form and substance
satisfactory to the Agent, either (i) cause such securities intermediary or
(as the case may be) commodity intermediary to agree to comply, in each
case without further consent of the Company or such nominee, at any time,
with entitlement orders or other instructions from the 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 the Agent to such commodity intermediary,
or (ii) in the case of financial assets or other investment property held
through a securities intermediary, arrange for the Agent to become the
entitlement holder with respect to such investment property, with the
Company being permitted, only with the consent of the Agent, to exercise
rights to withdraw or otherwise deal with such investment property. The
Agent agrees with the Company that the 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 the
Company, 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. The provisions of
this paragraph shall not apply to any financial assets credited to a
securities account for which the Agent is the securities intermediary.
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4.4. COLLATERAL IN THE POSSESSION OF A BAILEE. If any Collateral is at
any time in the possession of a bailee, the Company shall promptly notify
the Agent thereof and, at the Agent's request and option, shall promptly
obtain an acknowledgement from the bailee, in form and substance
satisfactory to the Agent, that the bailee holds such Collateral for the
benefit of the Agent and such bailee's agreement to comply without further
consent of the Company, at any time with instructions of the Agent as to
such Collateral. The Agent agrees with the Company that the 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 the
Company with respect to the bailee.
4.5. ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If the Company
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, the Company shall promptly notify the Agent thereof
and, at the request and option of the Agent, shall take such action as the
Agent may reasonably request to vest in the Agent control, under Section
9-105 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. The Agent agrees with the Company that the Agent will
arrange, pursuant to procedures satisfactory to the Agent and so long as
such procedures will not result in the Agent's loss of control, for the
Company to make alterations to the electronic chattel paper or transferable
record permitted under UCC Section 9-105 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 the Company with respect to such electronic chattel paper or
transferable record.
4.6. LETTER-OF-CREDIT RIGHTS. If the Company is at any time a
beneficiary under a letter of credit now or hereafter, the Company shall
promptly notify the Agent thereof and, at the request and option of the
Agent, the Company shall, pursuant to an agreement in form and substance
satisfactory to the Agent, either (a) arrange for the issuer and any
confirmer or other nominated person of such letter of credit to consent to
an assignment to the Agent of the proceeds of the letter of credit or (b)
arrange for the Agent to become the transferee beneficiary of the letter of
credit, with the Agent agreeing, in each case, that the proceeds of the
letter of credit are to be applied as provided in the Credit Agreement.
4.7. COMMERCIAL TORT CLAIMS. If the Company shall, now or at any time
hereafter, hold or acquire a commercial tort claim, the Company shall
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immediately notify the Agent in a writing signed by the Company of the
particulars thereof and grant to the 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
the Agent and the Agents.
4.8. OTHER ACTIONS AS TO ANY AND ALL COLLATERAL. The Company further
agrees, upon request of the Agent and at the Agent's option, to take any
and all other action as the Agent or the Lenders may determine to be
necessary or useful for the attachment, perfection and first priority of,
and the ability of the Agent to enforce, the Agent's security interest in
any and all of the Collateral for the ratable benefit of the Lenders and
the Agent, 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 the
Company's signature thereon is required therefor, (b) causing the 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 the Agent to enforce, the 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 the Agent to enforce, the Agent's security
interest in such Collateral, (d) obtaining governmental and other third
party waivers, consents and approvals in form and substance satisfactory to
the Agent, including, without limitation, any consent of any licensor,
lessor or other person obligated on Collateral, (e) obtaining waivers from
mortgagees and landlords in form and substance satisfactory to the Agent
and (f) taking all actions under any earlier versions of the Uniform
Commercial Code or under any other law, as reasonably determined by the
Agent to be applicable in any relevant Uniform Commercial Code or other
jurisdiction, including any foreign jurisdiction.
5. RELATION TO OTHER SECURITY DOCUMENTS. The provisions of this Agreement
supplement the provisions of any real estate mortgage or deed of trust granted
by the Company to the Agent and which secures the payment or performance of any
of the Obligations. Nothing contained in any such real estate mortgage or deed
of trust shall derogate from any of the rights or remedies of the Agent
hereunder. In addition, to the provisions of this Agreement being so read and
construed with any such mortgage or deed of trust, the provisions of this
Agreement shall be read and construed with the other Security Documents referred
to below in the manner so indicated.
6. REPRESENTATIONS AND WARRANTIES CONCERNING COMPANY'S LEGAL STATUS. The
Company has previously delivered to the Agent a certificate signed by the
Company and entitled "Perfection Certificate" (the "PERFECTION CERTIFICATE").
The Company represents and warrants to the Agent for the benefit of the Lenders
and the Agent as follows: (a) the Company's exact legal name is that indicated
on the Perfection Certificate and on the signature page hereof, (b) the Company
is an organization of the type, and is organized in the jurisdiction, set forth
in the Perfection Certificate, (c) the
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Perfection Certificate accurately sets forth the Company's organizational
identification number or accurately states that the Company has none, (d) the
Perfection Certificate accurately sets forth the Company's place of business or,
if more than one, its chief executive office, as well as the Company's mailing
address, if different, (e) all other information set forth on the Perfection
Certificate pertaining to the Company is accurate and complete, and (f) there
has been no change in any of such information since the date on which the
Perfection Certificate was signed by the Company.
7. COVENANTS CONCERNING COMPANY'S LEGAL STATUS. The Company covenants with
the Agent as follows: (a) without providing at least thirty (30) days prior
written notice to the agent, the Company 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 the Company does not
have an organizational identification number and later obtains one, the Company
will forthwith notify the Agent of such organizational identification number,
and (c) the Company will not change its type of organization, jurisdiction of
organization or other legal structure.
8. REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL, ETC. The Company
further represents and warrants to the Agent as follows: (a) the Company is the
owner of the Collateral, free from any right or claim of any person or any
adverse lien, security interest or other encumbrance, except for the security
interest created by this Agreement and other liens permitted by the Credit
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 of
the State, (c) none of the account debtors or other persons obligated on any of
the Collateral is a governmental authority covered by the Federal Assignment of
Claims Act or like federal, state or local statute or rule in respect of such
Collateral, (d) the Company holds no commercial tort claim except as indicated
on the Perfection Certificate, and (e) the Company 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, (f) all other information set
forth on the Perfection Certificate pertaining to the Collateral is accurate and
complete, and (g) there has been no change in any of such information since the
date on which the Perfection Certificate was signed by the Company.
9. COVENANTS CONCERNING COLLATERAL, ETC. The Company further covenants with
the Agent as follows: (a) the Collateral, to the extent not delivered to the
Agent pursuant to Section 4, will be kept at those locations listed on the
Perfection Certificate and the Company will not remove the Collateral from such
locations, without providing at least thirty (30) days prior written notice to
the Agent, (b) except for the security interest herein granted and liens
permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from any right or claim of any other person or any lien,
security interest or other encumbrance, and the Company shall defend the same
against all claims and demands of all persons at any time claiming the same or
any interests therein adverse to the Agent, (c) the Company shall not pledge,
mortgage or create, or
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suffer to exist any right of any person in or claim by any person to the
Collateral, or any security interest, lien or other encumbrance in the
Collateral in favor of any person, other than the Agent except for liens
permitted by the Credit Agreement, (d) the Company will keep the Collateral in
good order and repair and will not use the same in violation of law or any
policy of insurance thereon, (e) the Company will permit the Agent, or its
designee, to inspect the Collateral at any reasonable time, wherever located,
(f) the Company 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 the Collateral or incurred in connection with this Agreement, (g)
the Company 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) the Company will not sell or otherwise dispose,
or offer to sell or otherwise dispose, of the Collateral or any interest therein
except for (i) sales of inventory and licenses of general intangibles in the
ordinary course of business and (ii) so long as no Event of Default has occurred
and is continuing, sales or other dispositions of obsolescent items of equipment
consistent with past practices.
10. INSURANCE.
10.1. MAINTENANCE OF INSURANCE. The Company 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. Such insurance shall be in such
minimum amounts that the Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause. Without limiting the foregoing,
the Company will (a) 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, (b) maintain all such workers' compensation or similar insurance
as may be required by law and (c) 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 the Company; business interruption insurance;
and product liability insurance.
10.2. 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 and to
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the extent that the amount of such proceeds is less than $300,000.00, be
disbursed to the Company for direct application by the Company solely to
the repair or replacement of the Company's property so damaged or destroyed
and (b) in all other circumstances, be held by the Agent as cash collateral
for the Obligations. The Agent may, at its sole option, disburse from time
to time all or any part of such proceeds so held as cash collateral, upon
such terms and conditions as the Agent may reasonably prescribe, for direct
application by the Company solely to the repair or replacement of the
Company's property so damaged or destroyed, or the Agent may apply all or
any part of such proceeds to the Obligations.
10.3. CONTINUATION OF INSURANCE. All policies of insurance shall
provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by the Company to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to the Company. The Company shall
furnish the Agent with certificates of insurance and policies evidencing
compliance with the foregoing insurance provision.
11. COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL.
11.1. EXPENSES INCURRED BY AGENT. In the Agent's discretion, if the
Company fails to do so, the Agent may discharge taxes and other
encumbrances at any time levied or placed on any of the Collateral, make
repairs thereto and pay any necessary filing fees or insurance premiums.
The Company agrees to reimburse the Agent on demand for all expenditures so
made. The Agent shall have no obligation to the Company to make any such
expenditures, nor shall the making thereof be construed as a waiver or cure
of any Event of Default.
11.2. AGENT'S OBLIGATIONS AND DUTIES. Anything herein to the contrary
notwithstanding, the Company shall remain obligated and liable under each
contract or agreement comprised in the Collateral to be observed or
performed by the Company thereunder. The 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 the Agent of any payment
relating to any of the Collateral, nor shall the Agent be obligated in any
manner to perform any of the obligations of the Company under or pursuant
to any such contract or agreement, to make inquiry as to the nature or
sufficiency of any payment received by the 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 the Agent or to which the Agent may be
entitled at any time or times. The Agent's sole duty with respect to the
custody, safe keeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Uniform Commercial Code of the State
or otherwise, shall be to deal with such Collateral in the same manner as
the Agent deals with similar property for its own account.
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12. SECURITIES AND DEPOSITS. The Agent may at any time following and during
the continuance of an Event of Default, at its 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, the Agent may following and during the
continuance of an Event of Default demand, xxx 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, any deposits or other sums at any time credited by or due from
the Agent to the Company may at any time be applied to or set off against any of
the Obligations.
13. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER PERSONS OBLIGATED ON
COLLATERAL. If an Event of Default shall have occurred and be continuing, the
Company shall, at the request and option of the Agent, notify account debtors
and other persons obligated on any of the Collateral of the security interest of
the Agent in any account, chattel paper, general intangible, instrument or other
Collateral and that payment thereof is to be made directly to the Agent or to
any financial institution designated by the Agent as its agent therefor, and the
Agent may itself, if an Event of Default shall have occurred and be continuing,
without notice to or demand upon the Company, so notify account debtors and
other persons obligated on Collateral. After the making of such a request or the
giving of any such notification, the Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles, instruments and
other Collateral received by the Company as trustee for the Agent without
commingling the same with other funds of the Company and shall turn the same
over to the Agent in the identical form received, together with any necessary
endorsements or assignments. The Agent shall apply the proceeds of collection of
accounts, chattel paper, general intangibles, instruments and other Collateral
received by the Agent 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.
14. POWER OF ATTORNEY.
14.1. APPOINTMENT AND POWERS OF AGENT. The Company hereby irrevocably
constitutes and appoints the Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorneys-in-fact with
full irrevocable power and authority in the place and stead of the Company
or in the 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 the Company, without notice to or assent by the
Company, 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
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such manner as is consistent with the Uniform Commercial Code of the
State and as fully and completely as though the Agent were the
absolute owner thereof for all purposes, and to do, at the Company's
expense, at any time, or from time to time, all acts and things which
the Agent deems necessary or useful to protect, preserve or realize
upon the Collateral and the Agent's security interest therein, in
order to effect the intent of this Agreement, all no less fully and
effectively as the Company might do, including, without limitation,
(i) the filing and prosecuting of registration and transfer
applications with the appropriate federal, state or local agencies or
authorities with respect to trademarks, copyrights and patentable
inventions and processes, (ii) upon written notice to the Company, the
exercise of voting rights with respect to voting securities, which
rights may be exercised, if the 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; and
(b) to the extent that the Company's authorization given in
Section 3 is not sufficient, to file such financing statements with
respect hereto, with or without the Company's signature, or a
photocopy of this Agreement in substitution for a financing statement,
as the Agent may deem appropriate and to execute in the Company's name
such financing statements and amendments thereto and continuation
statements which may require the Company's signature.
14.2. RATIFICATION BY COMPANY. To the extent permitted by law, the
Company 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.
14.3. NO DUTY ON AGENT. The powers conferred on the agent hereunder
are solely to protect its interests in the Collateral and shall not impose
any duty upon it to exercise any such powers. The 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 the Company for any
act or failure to act, except for the Agent's own gross negligence or
willful misconduct.
15. REMEDIES. If an Event of Default shall have occurred and be continuing,
the Agent, without any other notice to or demand upon the Company, 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 of the State and any additional rights and remedies as
may be provided to a secured party in any jurisdiction in which Collateral is
located, including, without limitation, the
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right to take possession of the Collateral, and for that purpose the Agent may,
so far as the Company can give authority therefor, enter upon any premises on
which the Collateral may be situated and remove the same therefrom. The Agent
may in its discretion require the Company to assemble all or any part of the
Collateral at such location or locations within the jurisdiction(s) of the
Company's principal office(s) or at such other locations as the 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, the shall give to the Company at least ten (10) 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. The Company hereby acknowledges that ten (10) Business Days prior written
notice of such sale or sales shall be reasonable notice. In addition, the
Company waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the 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.
16. STANDARDS FOR EXERCISING RIGHTS AND REMEDIES. To the extent that
applicable law imposes duties on the Agent to exercise remedies in a
commercially reasonable manner, the Company acknowledges and agrees that it is
not commercially unreasonable for the Agent (a) to fail to incur expenses
reasonably deemed significant by the 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 the Company, 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 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 (l) to the extent deemed
appropriate by the Agent, to obtain the services of brokers, investment bankers,
consultants and other professionals to assist the Agent in the collection or
disposition of any of the Collateral. The Company acknowledges that the purpose
of this Section 16 is to provide non-exhaustive indications of what actions or
omissions by the Agent would
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fulfill the Agent's duties under the Uniform Commercial Code of the State or any
other relevant jurisdiction in the Agent's exercise of remedies against the
Collateral and that other actions or omissions by the Agent shall not be deemed
to fail to fulfill such duties solely on account of not being indicated in this
Section 16. Without limitation upon the foregoing, nothing contained in this
Section 16 shall be construed to grant any rights to the Company or to impose
any duties on the Agent that would not have been granted or imposed by this
Agreement or by applicable law in the absence of this Section 16.
17. NO WAIVER BY AGENT, ETC. The Agent shall not be deemed to have waived
any of its rights and remedies in respect of the Obligations or the Collateral
unless such waiver shall be in writing and signed by the Agent. No delay or
omission on the part of the 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 the 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 the Agent deems expedient.
18. SURETYSHIP WAIVERS BY COMPANY. The Company 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, the Company 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 the Agent may deem advisable. The 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 11.2. The Company further waives any and all other suretyship defenses.
19. MARSHALLING. The 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, the Company 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 the 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
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payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
20. PROCEEDS OF DISPOSITIONS; EXPENSES. The Company shall pay to the Agent
on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the 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 Collateral
shall, to the extent actually received in cash, be applied to the payment of the
Obligations in such order or preference as the Agent 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 9-615(a)(3) of the
Uniform Commercial Code of the State, any excess shall be returned to the
Company. In the absence of final payment and satisfaction in full of all of the
Obligations, the Company shall remain liable for any deficiency.
21. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the Company
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 Credit Agreement.
22. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE. The Company agrees that any action or
claim arising out of any dispute in connection with this Agreement, any rights
or obligations hereunder or the performance or enforcement of such rights or
obligations may be brought in the courts of the State or any federal court
sitting therein and consents to the non-exclusive jurisdiction of such court and
to service of process in any such suit being made upon the Company by mail at
the address specified in the Credit Agreement. The Company hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
23. WAIVER OF JURY TRIAL. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OR
ENFORCEMENT OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the
Company waives any right which it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. The Company (a) certifies that neither the Agent nor any
representative, agent or attorney of the Agent has represented, expressly or
otherwise, that the Agent would not, in the event of litigation, seek to enforce
the foregoing waivers or other waivers contained in this Agreement and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents
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to which the Agent is a party, the Agent is relying upon, among other things,
the waivers and certifications contained in this Section 23.
24. 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 the
Company and its successors and assigns, and shall inure to the benefit of the
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. The Company acknowledges receipt of a copy of this
Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
XXX-XXXX CORPORATION
By:
--------------------------------------
Title:
Accepted:
CITIZENS BANK OF
MASSACHUSETTS
By:
----------------------------
Title: Xxxxxxx St. Xxxx
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS______________________)
) ss.
COUNTY OF SUFFOLK__________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ___ day of June, 2003, personally appeared _____________ to
me known personally, and who, being by me duly sworn, deposes and says that
[s]he is the _____________ of ___________, and that said instrument was signed
and sealed on behalf of said corporation by authority of its Board of Directors,
and said ____________ acknowledged said instrument to be the free act and deed
of said corporation.
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Notary Public
My commission expires:
