SECOND AMENDED AND RESTATED SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (the "Security
Agreement"), made this 27th day of April, 1999, by INSTALLATION TECHNICIANS,
INC., a Missouri corporation (hereinafter called the "Debtor"), having its
principal address at Xxxxxxxxxx City, Missouri, who, for valuable consideration,
the receipt and sufficiency of which is, hereby, acknowledged, hereby grants to
DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an international
bank agency licensed by the State of Florida, BANK LEUMI USA, a New York banking
corporation, ISRAEL DISCOUNT BANK LIMITED, Miami Agency, an international bank
agency licensed by the State of Florida, (collectively, "Existing Secured
Parties"), and ABN AMRO BANK N.V., Miami Agency, an international bank agency
licensed by the State of Florida, BANQUE SUDAMERIS, Miami Agency, an
international bank agency licensed by the State of Florida, THE FIRST NATIONAL
BANK OF CHICAGO, a national banking association, FIRST UNION NATIONAL BANK, a
national banking association; WACHOVIA BANK N.A., a National Banking Association
(collectively "New Secured Parties") (Existing Secured Parties and New Secured
Parties together, "Secured Party"), and renews and/or amends, a lien upon and
security interest in the property and any replacements thereof described in
Exhibit "A" attached hereto and by this reference made a part hereof as well as
all proceeds therefrom and insurance thereon (said property being hereinafter
called the "Collateral"). All terms not defined herein shall have the meanings
assigned to them under the Second Amended and Restated Facility Agreement of
even date herewith, as amended or modified from time to time (the "Second
Amended Facility Agreement") among the Borrower, the Debtor, the other
Guarantors named therein and the Secured Party.
This Security Agreement is entered into to secure payment of and
performance of any and all of Obligations to Secured Party now or hereafter
existing under the Second Amended Facility Agreement, the Notes, and the other
Collateral Documents thereto of even date herewith as well as any obligations
arising under or in connection with Hedging Instruments entered into from time
to time ("Rate Hedging Obligations" and, together with the "Obligations" the
"Secured Obligations"), and has been amended and restated to provide for, among
other things, the inclusion of New Secured Parties as additional obligees and
for the continuation, amendment and renewal of the Security Agreement between
Existing Secured Parties and Debtor dated as of April 28, 1997 as amended and
restated by that certain Amended and Restated Security Agreement dated April 29,
1998. Any documents including, but not limited to, any notes, mortgages,
security agreements, including Security Agreement, securing or evidencing the
Secured Obligations and are hereinafter collectively called the "Collateral
Documents."
Incident thereto, Debtor agrees with Secured Party as follows:
1. Debtor warrants and represents that:
(a) Debtor is the lawful owner of such Collateral and has good
right to pledge, sell, assign, co-sign, transfer and create a security interest
in the same;
(b) Debtor will, at Secured Party's request, defend the
Collateral from all claims and demands of all persons;
(c) All tangible Collateral is to be kept at the business to
be maintained at Debtor's principal place of business, and will not be removed
therefrom, except in the ordinary course of business, without the prior written
consent of Secured Party; provided, however, that it may move tangible
Collateral to a location of an affiliate with respect to which Secured Party
also has a perfected security interest in like Collateral; and
(d) Debtor will, at its own cost and expense, keep the
Collateral in as good and substantial repair as the same is in at this date, or
as the same exists when acquired, reasonable wear and tear excepted, making
replacements when and where necessary and, in this connection, Secured Party
hereby agrees that it will give its written consent to the removal by Debtor of
the same, or any part thereof, from the
above described property if and to the extent that such removal is necessary or
advisable so to do in connection with Debtor's fulfilling of its obligations
under this subparagraph `1', as long as such Collateral is replaced by
Collateral which is unencumbered and of equal value and if, in the opinion of
Secured Party, the priority of its security interest therein will not be
jeopardized.
(e) The Collateral is not subject to any other liens except
the first priority liens in favor of Secured Party set forth herein.
2. Upon request and as instructed by Administrative Agent, Debtor
agrees to comply with the requirements of all applicable state and federal laws
in order to grant to Secured Party a valid lien upon, and a security interest
in, the Collateral described herein, or which may be described in any amendment
supplementary hereto.
3. Debtor will pay, when due, all taxes, assessments, and other charges
lawfully and validly levied or assessed upon the Collateral or any part thereof,
and Debtor will pay any and all fees, costs and expenses, of whatever kind and
nature, which Administrative Agent may incur in filing public notices, and the
reasonable charges of any attorneys whom Administrative Agent may engage in
preparing and filing such documents, making title examinations and rendering
opinion letters, as well as expenses incurred by Administrative Agent, including
reasonable attorney's fees, in protecting, maintaining, preserving, enforcing or
foreclosing the security interest granted to Administrative Agent hereunder,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions or proceedings arising out of or relating to this
transaction, promptly after Debtor shall have been notified by Secured Party of
the amount of such fees, costs or expenses.
4. Debtor agrees that Secured Party, or its agents, may enter upon
Debtor's property at any time, and from time to time, for the purpose of
inspecting the Collateral, and any and all records pertaining thereto. Debtor
agrees to promptly notify Administrative Agent of any change in its mailing
address or principal place of business, in order that a prompt refiling of any
outstanding notices may be made, if necessary. Debtor shall also advise
Administrative Agent, within thirty (30) days, of any new facts known to Debtor
which, under the applicable provisions of law, would affect the priority of the
security interest granted to Secured Party by this instrument.
5. Debtor will have and maintain insurance at all times with respect to
all Collateral in types, forms, amounts and in the manner as specified in the
Second Amended Facility Agreement, this Security Agreement and any other
Collateral Document, such insurance to be payable to Administrative Agent on
behalf of Secured Party and Debtor, as their interests may appear. All policies
of insurance shall provide for thirty (30) days written minimum cancellation
notice to Administrative Agent and Debtor shall furnish Administrative Agent
with certificates or other evidence satisfactory to Secured Party of compliance
with the foregoing insurance provisions as set forth herein and in the
Collateral Documents.
6. At its option, Administrative Agent may discharge taxes, liens or
security interests or other encumbrances at any time levied or placed on the
Collateral, may pay for insurance on the Collateral and may pay for the
maintenance and preservation of the Collateral. All such sums, as well as costs,
advanced by Secured Party pursuant to this Security Agreement shall be due
immediately from Debtor to Secured Party, shall be secured hereby and shall bear
interest at the highest default rate of interest specified in any note or other
agreement evidencing the Secured Obligations and if no such instrument exists,
then at the highest rate allowed by law, from the date of payment by Secured
Party until the date of repayment by Debtor. Until Default, Debtor may have
possession of the Collateral and use it in any lawful manner not inconsistent
with this Security Agreement and not inconsistent with any policy of insurance
thereon.
7. (a) Upon the occurrence of any Event of Default and acceleration of
the Obligations under the Second Amended Facility Agreement or acceleration of
any Rate Hedging Obligation under any Hedging Instruments, Secured Party shall
have the remedies of a secured party under the Uniform Commercial Code as
adopted in Florida. Secured Party may require Debtor to assemble and deliver the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to
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both parties. Administrative Agent on behalf of Secured Party may peaceably, by
its own means or with judicial assistance, enter Debtor's Property and Debtor
will not resist or interfere with such action. Unless the Collateral is
perishable or threatens to decline speedily in value or is a type customarily
sold on a recognized market, Administrative Agent will give Debtor reasonable
notice of the time and place of any public sale thereof, or of the time after
which any private sale or any other intended disposition thereof is to be made.
The requirements of reasonable notice shall be met if such notice is mailed,
postage prepaid, to the address of Debtor shown at the beginning of this
Security Agreement at least twenty (20) days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale, selling or the
like shall include Secured Party's reasonable attorney's fees and legal
expenses.
(b) In case of the exercise of any of the rights of Secured
Party hereunder, all Collateral, and other property or security given to secure
the indebtedness secured hereby, may be offered for sale for one total price,
and the proceeds of such sale accounted for in one account without distinction
between items of security or without assigning to them any proportion of the
proceeds of such sale, Debtor insofar as it legally may so do hereby waiving the
application of any doctrine of marshalling, or the Collateral, or such other
property or security, may be offered for sale separately, and sales may be held
from time to time, and all powers of Secured Party shall not be fully executed
until all Collateral, and such other property or security, shall have been sold.
(c) any proceeds derived from the sale or disposition of any
Collateral shall be distributed as follows:
(i) first, to the payment of any expenses of Secured
Party in the enforcement of its rights hereunder;
(ii) second, for the payment of fees due under the
Second Amended Facility Agreement;
(iii) third, to the payment of any accrued interest
and/or penalties payable to Lenders;
(iv) fourth, to the payment of the principal amount
of any outstanding Advances and outstanding Rate Hedging Obligations pari passu;
(v) fifth, any other Secured Obligation including,
without limitation, obligations under Letters of Credit that are not yet
outstanding; and
(vi) sixth, to Debtor, or as a court of competent
jurisdiction may decide.
8. No waiver by Secured Party of any default shall operate as a waiver
of any other default or of the same default on a future occasion. All rights of
Secured Party hereunder shall inure to the benefit of its successors and
assigns; and all obligations of Debtor shall bind its successors and assigns. If
there be more than one Debtor, their obligations hereunder shall be joint and
several.
9. The covenants and agreements herein contained shall extend to, inure
to the benefit of, and be binding upon, the respective successors and assigns of
the parties hereto, the same as if they were in every case named and expressed.
10. Debtor covenants and agrees to execute such financing statements,
security agreements or other instruments with respect to the Collateral as
Administrative Agent or any Lender may request, and hereby authorizes
Administrative Agent or any Lender to execute and file, at any time, such
financing statements without Debtor's signature. Debtor agrees that
Administrative Agent or any Lender may file this Security Agreement in lieu of
any such financing statement.
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11. This Security Agreement shall be construed in accordance with and
governed by the laws of the State of Florida, without giving effect to any
choice of law principles.
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT
AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SECURED PARTY
ENTERING INTO THIS SECURITY AGREEMENT.
IN WITNESS WHEREOF, Debtor has caused this instrument to be duly
executed on its behalf as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxx Xxxxxxx INSTALLATION TECHNICIANS, INC.,
---------------------------- a Missouri corporation
/s/ Xxxx X. Xxxxxx
----------------------------
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx,
[Executive Chairman of the Board of
Directors/Vice-President]
STATE OF GEORGIA )
) SS
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 27th day of
April 1999, by Xxxxxx X. Xxxxxxx, as Vice President of Installation Technicians,
Inc., a Missouri corporation, who produced the following as identification FLDL
P432836380130 and who did (did not) take an oath.
/s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
NOTARY PUBLIC, STATE OF GEORGIA
My Commission Expires:
September 29, 2002
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EXHIBIT "A"
Description of the Collateral
All of the Debtor's right, title and interest in the following items of
personal property, wherever located, whether now owned or hereafter acquired or
arising, together with all replacements and additions therefor and all cash and
non-cash proceeds (including insurance proceeds) and products thereof:
(A) All machinery, equipment, vehicles, vessels, aircraft,
fixtures, buildings, appliances, furniture and other tangible assets.
(B) All inventory.
(C) All accounts, contract rights and accounts receivable, and
all returned or repossessed goods arising from or relating to any of the said
accounts or rights.
(D) All instruments, documents, chattel paper and general
intangibles, rights in trademarks, trade names, patents, copyrights and
licenses.
(E) All cash or non-cash proceeds of any of the foregoing,
including insurance proceeds.
(F) All ledger sheets, files, records, documents, and
instruments (including but not limited to, computer programs, tapes and related
electronic data processing software) evidencing an interest or relating to the
above.
(G) All substitutes and replacements for, accessions,
attachments, and other additions to, and tools, parts, and equipment used in
connection with any of the above, and all products or proceeds of the above.
Together with all instruments, documents, chattel papers and general
intangibles relating to or arising from the foregoing Collateral and all cash
and non-cash proceeds and products thereof.
THIS EXHIBIT "A" TO SECURITY AGREEMENT executed by Debtor this ____ day
of April, 1999.
[BORROWER/GUARANTOR]
a ______________ corporation
By_________________________________
Xxxxxx X. Xxxxxxx,
Title: _______________________
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