Exhibit 10.3 to 2003 10-Q
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SECURITY AGREEMENT
Dated as of June 30, 2003
between
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Agent for the Secured Parties
and accepted and agreed to by
CONVERGYS CORPORATION
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TABLE OF CONTENTS
1. Definitions...............................................................2
2. Grant of Security Interest................................................3
3. Representations and Warranties............................................4
4. Payment of Obligations....................................................4
5. Other Covenants...........................................................5
6. Default; Remedies.........................................................5
7. Remedies Not Exclusive....................................................6
8. Performance by the Agent of the Borrower's Obligations....................6
9. Duty of the Agent.........................................................6
10. Powers Coupled with an Interest...........................................7
11. Execution of Financing Statements.........................................7
12. Security Agreement Under Uniform Commercial Code..........................7
13. Authority of the Agent....................................................8
14. Notices...................................................................8
15. Severability..............................................................8
16. Amendment in Writing; No Waivers; Cumulative Remedies.....................9
17. Section Headings..........................................................9
18. Successors and Assigns....................................................9
19. The Borrower's Waiver of Rights...........................................9
20. GOVERNING LAW............................................................10
21. Obligations Are Without Recourse.........................................10
22. Partial Release; Full Release............................................10
23. Miscellaneous............................................................10
24. Conflicts with Participation Agreement...................................11
25. LESSEE AS A PARTY........................................................11
26. Counterparts.............................................................12
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Exhibit 10.3 to 2003 10-Q
SECURITY AGREEMENT
------------------
This SECURITY AGREEMENT, dated as of June 30, 2003 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, this
"Security Agreement"), is made between WACHOVIA DEVELOPMENT CORPORATION, a North
Carolina corporation, as the borrower (the "Borrower"), and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association ("Bank"), as agent for (a)
the Credit Note Purchasers (hereinafter defined) under the Note Purchase
Agreement dated as of June 30, 2003 (as amended, modified, extended,
supplemented and/or restated from time to time, the "Note Purchase Agreement")
by and among the Borrower, the financial institutions and other institutional
investors from time to time parties thereto (the "Credit Note Purchasers") and
Bank, as the agent for the Credit Note Purchasers, (b) the Mortgage Lenders
(hereinafter defined) under the Mortgage Note Loan Agreement dated as of June
30, 2003 (as amended, modified, extended, supplemented and/or restated from time
to time, the "Mortgage Note Loan Agreement") by and among the Borrower, the
several banks and other financial institutions from time to time parties thereto
(the foregoing banks and financial institutions are collectively referenced as
the "Mortgage Lenders") and Bank, as the agent for the Mortgage Lenders, (c) the
Lessor, and (d) itself. The Agent, the Lessor, the Credit Note Purchasers, and
the Mortgage Lenders, together with their successors and permitted assigns, are
collectively referred to hereinafter as the "Secured Parties." The Bank, in its
capacity as agent for the Secured Parties is referred to hereinafter as the
"Agent," and this Security Agreement is accepted and agreed to by Convergys
Corporation, an Ohio corporation.
Preliminary Statement
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Pursuant to the Note Purchase Agreement, the Credit Note Purchasers have
severally agreed to purchase the Credit Notes to be issued by the Borrower in an
aggregate amount not to exceed the aggregate Credit Note Purchaser Commitments
upon the terms and subject to the conditions set forth therein. Pursuant to the
Mortgage Note Loan Agreement, the Mortgage Lenders have agreed to make Mortgage
Loans to the Borrower in an aggregate amount not to exceed the aggregate
Mortgage Note Commitments upon the terms and subject to the conditions set forth
therein. Pursuant to the Participation Agreement, the Lessor has agreed to make
a Lessor Advance in an aggregate amount not to exceed the Lessor Commitment upon
the terms and subject to the conditions set forth therein. The Borrower is the
legal and beneficial owner of the Property (except the Borrower may have a
ground leasehold interest in certain Property pursuant to one (1) or more Ground
Leases).
Pursuant to the various Operative Agreements, the Bank has agreed to act in
the capacity as Agent.
It is a condition, among others, to the obligation of (i) the Credit Note
Purchasers to purchase the Credit Notes under the Note Purchase Agreement (ii)
the Mortgage Lenders to make their respective Mortgage Loans to the Borrower
under the Mortgage Note Loan Agreement and (iii) the Lessor to make its Lessor
Advances under the Participation Agreement
that the Borrower shall have executed and delivered this Security Agreement to
the Agent, for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the Credit
Note Purchasers to purchase the Credit Notes under the Note Purchase Agreement,
the Mortgage Lenders to make Mortgage Loans under the Mortgage Note Loan
Agreement and the Lessor to make its Lessor Advance under the Participation
Agreement, the Borrower hereby agrees with the Agent, for the benefit of the
Secured Parties, as follows:
1. Definitions.
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(a) The following terms are used herein as defined in the Uniform
Commercial Code as in effect from time to time in the State of New York (the
"UCC"): Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts,
Documents, Equipment, Fixtures, General Intangibles, Instruments, Investment
Property, Letter-of-Credit Rights and Proceeds. Each such term as used in
relationship with the Borrower and/or the Lessee shall mean the Property only to
the extent arising from or relating to the transactions contemplated by the
Operative Agreements or arising directly or indirectly from or otherwise
relating to (i) the ownership by the Borrower and/or the Lessee of, (ii) the
right, title or interest of the Borrower and/or the Lessee in, (iii) the
planning, design, engineering, construction, development, completion, insuring,
operation, maintenance, modification, alteration, lease, sublease or use of, or
(iv) the sale, casualty, condemnation, assignment, transfer, pledge, encumbrance
or other disposition of, the Property or any part thereof. For the avoidance of
doubt, (i) the term "Accounts" as used herein shall exclude all accounts
receivable of the business and operations of the Borrower and/or the Lessee and
(ii) the term "General Intangibles" as used herein shall exclude all trademarks,
trade names and symbols of the Borrower and/or the Lessee.
(b) As used herein, the following terms shall have the following
respective meanings:
"Lessee" shall mean Convergys Corporation, an Ohio corporation, its
successors, permitted assigns and permitted transferees.
(c) Capitalized terms used but not otherwise defined in this Security
Agreement shall have the respective meanings specified in Appendix A to the
Participation Agreement dated as of June 30, 2003 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time in accordance
with the applicable provisions thereof, the "Participation Agreement") among the
Lessee, the various entities which are parties thereto from time to time as
guarantors, the Borrower, the Credit Note Purchasers, the Mortgage Lenders and
the Bank, as the agent for the Primary Financing Parties and respecting the
Security Documents, as the agent for the Secured Parties.
(d) The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
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2. Grant of Security Interest.
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To secure the payment and performance of all the Obligations and any other
amounts advanced under the Note Purchase Agreement in connection with the Credit
Notes, under the Mortgage Note Loan Agreement in connection with the Mortgage
Notes or under the Participation Agreement as a Lessor Advance, all the amounts
now or hereafter owing to the Credit Note Purchasers, the Mortgage Lenders, the
Lessor or the Agent thereunder or under any other Operative Agreement, THE
BORROWER HEREBY CONVEYS, GRANTS, ASSIGNS, TRANSFERS, HYPOTHECATES, MORTGAGES AND
SETS OVER TO THE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, A FIRST PRIORITY
SECURITY INTEREST IN AND LIEN ON ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE BORROWER'S INTEREST (AS THE TERM "BORROWER'S INTEREST" IS DEFINED IN
APPENDIX A TO THE PARTICIPATION AGREEMENT), WHETHER NOW EXISTING OR HEREAFTER
ACQUIRED, IN EACH OF THE FOLLOWING, BUT SOLELY TO THE EXTENT SUCH RIGHT, TITLE
OR INTEREST IS ACQUIRED BY THE BORROWER WITH RESPECT TO OR IN CONNECTION WITH
THE PROPERTY, ANY OPERATIVE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY:
(a) all Accounts;
(b) all Chattel Paper (including without limitation all rights under
the Lease and each Lease Supplement);
(c) all Commercial Tort Claims;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures (including without limitation any Fixtures
constituting the Property, as defined in Appendix A to the Participation
Agreement);
(g) all General Intangibles, including without limitation (i)
all rights to payment and all indemnity rights under the Operative
Agreements, (ii) all computer software, books and records relating to or
used in connection with the operation of the Property or any part thereof,
(iii) all unearned premiums under insurance policies now held or
subsequently obtained by the Lessee relating to the Property or any part
thereof, (iv) all consents, licenses, certificates and other governmental
approvals relating to use or operation of the Property or any part thereof,
and (v) all plans and specifications relating to the Property or any part
thereof; specifically excluding however, trademarks, trade names and
symbols;
(h) all Instruments;
(i) all Investment Property;
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(j) all Letter-of-Credit Rights;
(k) all Property or any part thereof;
(l) all money, cash or cash equivalent and Deposit Accounts;
(m) all Proceeds, including without limitation (i) all Rent and
all other rents, payments, purchase prices, receipts, revenues, issues and
profits payable under the Lease or pursuant to any other lease with respect
to the Property, (ii) subject to application thereof in accordance with the
terms of the Lease, all proceeds of any insurance policies maintained by or
for the benefit of the Borrower, including without limitation any right to
collect and receive such proceeds and (iii) all awards and other
compensation, including without limitation the interest payable thereon and
any right to collect and receive the same, made to the present or any
subsequent owner of the Property for the taking by eminent domain,
condemnation or otherwise, of all or any part of the Property or any
easement or other right therein; and
(n) all right, title and interest of the Borrower in and to all
substitutes, modifications and replacements of, and all additions,
accessions and improvements to, the Fixtures and Equipment, subsequently
acquired or leased by the Borrower or constructed, assembled or placed by
the Borrower on the Property, immediately upon such acquisition, lease,
construction, assembling or placement, and in each such case, without any
further conveyance, assignment or other act by the Borrower.
(All of the foregoing property and rights and interests now owned or held
or subsequently acquired by the Borrower and described in the foregoing clauses
(a) through (n) are collectively referred to as the "Security Assets").
TO HAVE AND TO HOLD the Security Assets and the rights and privileges
hereby granted unto the Agent (for the benefit of the Secured Parties) its
successors and assigns for the uses and purposes set forth, until all of the
Obligations owing to the Credit Note Purchasers, the Mortgage Lenders, the
Lessor and the Agent under the Operative Agreements are paid in full; provided,
that EXCLUDED from the Security Assets at all times and in all respects shall be
all Excepted Payments.
3. Representations and Warranties.
------------------------------
(a) [Reserved].
(b) The Borrower is the legal owner of the Security Assets and has the
right to pledge, sell, assign and transfer the Security Assets.
4. Payment of Obligations.
----------------------
The Borrower shall pay all Obligations in accordance with the terms of the
Note Purchase Agreement, the Credit Notes, the Mortgage Note Loan Agreement, the
Mortgage Notes, the
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Participation Agreement and the other Operative Agreements and perform each term
to be performed by it under the Note Purchase Agreement, the Credit Notes, the
Mortgage Note Loan Agreement, the Mortgage Notes, the Participation Agreement
and the other Operative Agreements.
5. Other Covenants.
---------------
(a) At any time and from time to time, upon the written request of the
Agent, and at the expense of the Borrower (with funds provided by the Lessee for
such purpose in accordance with the terms of the Operative Agreements), the
Borrower will promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Agent reasonably may request for
the purposes of obtaining or preserving the full benefits of this Security
Agreement and of the rights and powers granted by this Security Agreement.
(b) The Borrower will not, and none of the Financing Parties authorizes
the Borrower to, sell, exchange transfer, assign, lease or otherwise dispose of
the Security Assets or any interest therein except as permitted under the
Operative Agreements.
(c) The Borrower shall execute and deliver all agreements, assignments,
instruments or other documents as reasonably requested by the Agent for the
purpose of obtaining and maintaining control within the meaning of the UCC with
respect to any Security Assets consisting of Deposit Accounts and
Letter-of-Credit Rights.
(d) Each of the Borrower and the Lessee will promptly forward to the Agent
written notification of any and all Commercial Tort Claims of which such Person
is aware and execute and deliver such statements, documents and notices and do
and cause to be done all such things as may be required by the Agent or required
by law, including the UCC, to fully create, perfect and maintain the priority of
the Agent's security interest in any Commercial Tort Claims.
6. Default; Remedies.
-----------------
(a) If an Event of Default has occurred and is continuing:
(i) subject to such notice as may be required by applicable
law, the Agent, in addition to all other remedies available at law or in
equity, shall have the right forthwith to enter upon the Property (or any
other place where any component of any Security Assets are located at such
time) without charge, and take possession of all or any portion of the
Security Assets, and to sell, re-let or otherwise dispossess itself of the
Security Assets and receive the rents, issues and profits thereof, to make
repairs and to apply said rentals and profits, after payment of all
necessary or proper charges and expenses, on account of the amounts hereby
secured (subject to the Excepted Payments); and
(ii) the Agent, shall, as a matter of right, be entitled to the
appointment of a receiver for the Security Assets, and the Borrower hereby
consents to such appointment and waives notice of any application therefor.
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(b) If an Event of Default has occurred and is continuing, the Agent may
proceed by an action at law, suit in equity or other appropriate proceeding, to
protect and enforce its rights, whether for the foreclosure of the Lien of this
Security Agreement, or for the specific performance of any agreement contained
herein or for an injunction against the violation of any of the terms hereof.
The proceeds of any sale of any of the Security Assets shall be applied pursuant
to Section 8.7 of the Participation Agreement and the Intercreditor Agreement.
In addition, the Agent may proceed under Section 12 hereof.
7. Remedies Not Exclusive.
----------------------
The Agent shall be entitled to enforce payment of the indebtedness and
performance of the Obligations and to exercise all rights and powers under this
Security Agreement or under any of the other Operative Agreements or any laws
now or hereafter in force, notwithstanding some or all of the Obligations may
now or hereafter be otherwise secured, whether by deed of trust, mortgage,
security agreement, pledge, Lien, assignment or otherwise. Neither the
acceptance of this Security Agreement nor its enforcement, shall prejudice or in
any manner affect the Agent's right to realize upon or enforce any other
security now or hereafter held by the Agent as security for the Obligations, it
being agreed that the Agent shall be entitled to enforce this Security Agreement
and any other security now or hereafter held by the Agent in such order and
manner as the Agent may determine in its absolute discretion. Every power or
remedy given by any of the Operative Agreements to the Agent or to which it may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by the Agent. In no event
shall the Agent, in the exercise of the remedies provided in this Security
Agreement (including without limitation in connection with the assignment of
rents to the Agent, or the appointment of a receiver and the entry of such
receiver onto all or any part of the Property), be deemed a "mortgagee in
possession" or a "pledgee in possession", and the Agent shall not in any way be
made liable for any act, either of commission or omission, in connection with
the exercise of such remedies.
8. Performance by the Agent of the Borrower's Obligations.
------------------------------------------------------
If the Borrower fails to perform or comply with any of its agreements
contained herein the Agent, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
agreement. The reasonable expenses of the Agent incurred in connection with
actions undertaken as provided in this Section 8, together with interest thereon
at a rate per annum equal to the Overdue Rate from the date of payment by the
Agent to the date reimbursed by the Borrower, shall be payable by the Borrower
(with funds provided by the Lessee for such purpose in accordance with the terms
of the Operative Agreements) to the Agent on demand and constitutes part of the
Obligations secured hereby.
9. Duty of the Agent.
-----------------
The Agent's sole duty with respect to the custody, safekeeping and physical
preservation of any Security Assets in its possession, if any, shall be to deal
with it in the same manner as the Agent deals with similar property for its own
account. Neither the Agent nor the Lessor nor any Credit Note Purchaser nor any
Mortgage Lender nor any of their respective directors, officers,
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employees, shareholders, partners or agents shall be liable for failure to
demand, collect or realize upon any of the Security Assets or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Security Assets upon the request of the Borrower or any other Person or to take
any other action whatsoever with regard to the Security Assets or any part
thereof.
10. Powers Coupled with an Interest.
-------------------------------
All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the Liens created hereby are released.
11. Execution of Financing Statements.
---------------------------------
Each of the Borrower and the Lessee authorizes the Agent at the expense of
the Borrower or the Lessee, as applicable (such amounts to be paid with funds
provided by the Lessee for such purpose), to file financing statements with
respect to the Security Assets under this Security Agreement without the
signature of the Borrower or the Lessee, as applicable, in such form and in such
filing offices as the Agent reasonably determines appropriate to perfect the
security interests of the Agent under this Security Agreement. A carbon,
photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. For purposes
of such financing statement, the Borrower or the Lessee, as applicable, shall be
deemed to be the debtor, and the Agent shall be deemed to be the secured party.
The address of the Borrower is Wachovia Development Corporation, c/o Wachovia
Securities, LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxxxx Xxxxxxxxx. The address of the Lessee is 000
Xxxx Xxxxxx Xxxxxx, 000-0000, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx, 00000-0000,
Attention: Xxxxxxx Xxxxxxx. The address of the Agent is Wachovia Bank, National
Association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxxx.
12. Security Agreement Under Uniform Commercial Code.
------------------------------------------------
(a) It is the intention of the parties hereto that this Security Agreement
as it relates to matters of the grant, perfection and priority of security
interests the subject hereof, shall constitute a security agreement within the
meaning of the Uniform Commercial Code of the states in which the Security
Assets are located. If an Event of Default shall occur and be continuing, then
in addition to having any other right or remedy available at law or in equity,
the Agent may proceed under the applicable Uniform Commercial Code and exercise
such rights and remedies as may be provided to a secured party by such Uniform
Commercial Code with respect to all or any portion of the Security Assets which
is personal property (including without limitation taking possession of and
selling the Property). If the Agent shall elect to proceed under the Uniform
Commercial Code, then ten (10) days' notice of sale of the personal property
shall be deemed reasonable notice and the reasonable expenses of retaking,
holding, preparing for sale, selling and the like incurred by the Agent shall
include, but not be limited to, reasonable attorneys' fees and legal expenses.
At the Agent's request, the Borrower shall assemble such
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personal property and make it available to the Agent at a place designated by
the Agent which is reasonably convenient to both parties.
(b) The Borrower, upon reasonable request by the Agent from time to time
as may be necessary to protect Agent's interest in the Security Assets, shall
execute, acknowledge and deliver to the Agent one (1) or more separate security
agreements, in form satisfactory to the Agent, covering all or any part of the
Security Assets and will further execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as the Agent may request
in order to perfect, preserve, maintain, continue or extend the security
interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to pay to
the Agent (with funds provided by the Lessee for such purpose in accordance with
the terms of the Operative Agreements) on demand all costs and expenses incurred
by the Agent in connection with the preparation, execution, recording, filing
and re-filing of any such document and all reasonable costs and expenses of any
record searches for financing statements the Agent shall reasonably require. The
filing of any financing or continuation statements in the records relating to
personal property or chattels shall not be construed as in any way impairing the
right of the Agent to proceed against the Property encumbered by this Security
Agreement.
13. Authority of the Agent.
----------------------
The Borrower acknowledges that the rights and responsibilities of the Agent
under this Security Agreement with respect to any action taken by the Agent or
the exercise or non-exercise by the Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Security Agreement shall be governed by the Note Purchase Agreement
and Section 8.6 of the Participation Agreement, the Intercreditor Agreement and
by such other agreements with respect thereto as may exist from time to time
(until such time as all amounts due and owing to the Secured Parties and the
Agent under the Operative Agreements have been paid in full), but the Agent
shall be conclusively presumed to be acting as agent for the Secured Parties
with full and valid authority so to act or refrain from acting, and the Borrower
shall be under no obligation, or entitlement, to make any inquiry respecting
such authority.
14. Notices.
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All notices required or permitted to be given under this Security Agreement
shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.
15. Severability.
------------
Any provision of this Security Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
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16. Amendment in Writing; No Waivers; Cumulative Remedies.
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Subject to the terms of the Intercreditor Agreement:
(a) None of the terms or provisions of this Security Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with
the terms of Section 12.4 of the Participation Agreement.
(b) No failure to exercise, nor any delay in exercising, on the part of
the Agent, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Agent of any right or
remedy hereunder on any one (1) occasion shall not be construed as a bar to any
right or remedy which the Agent would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
17. Section Headings.
----------------
The section headings used in this Security Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
18. Successors and Assigns.
----------------------
This Security Agreement shall be binding upon the successors of the
Borrower, and the Borrower shall not assign any of its rights or obligations
hereunder or with respect to any of the Security Assets without the prior
written consent of the Agent (at the direction of the Majority Secured Parties).
This Security Agreement shall inure to the benefit of the Agent, the Lessor, the
Credit Note Purchasers and the Mortgage Lenders and their respective successors
and assigns, in accordance with their respective interests herein.
19. The Borrower's Waiver of Rights.
-------------------------------
Except as otherwise set forth herein, to the fullest extent permitted by
law, the Borrower waives the benefit of all laws now existing or that may
subsequently be enacted providing for (a) any appraisement or valuation before
sale of any portion of the Security Assets or interest therein, (b) any stay or
extension of the time for the enforcement of the collection of the indebtedness
or the creation or extension of a period of redemption from any sale made in
collecting such debt, (c) exemption of any portion of the Security Assets from
attachment, levy or sale under execution or exemption from civil process and (d)
marshalling of any portion of the Security Assets or interest therein. Except as
otherwise set forth herein, to the fullest extent the Borrower may do so, the
Borrower agrees that the Borrower will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure
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of this Security Agreement before exercising any other remedy granted hereunder
and the Borrower, for the Borrower and its successors and assigns, and for any
and all Persons ever claiming any interest in the Security Assets, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshalling in the event of
foreclosure of the Liens hereby created.
20. GOVERNING LAW.
-------------
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 12(a) HEREOF, THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW), EXCEPT TO THE
EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR PROPERTY IS LOCATED ARE REQUIRED
TO APPLY.
21. Obligations Are Without Recourse.
--------------------------------
The provisions of the Participation Agreement relating to limitations on
liability of the Borrower are hereby incorporated by reference herein, Mutatis
Mutandis.
22. Partial Release; Full Release.
-----------------------------
The Agent may release for such consideration as it may require any portion
of the Security Assets without (as to the remainder of the Security Assets) in
any way impairing or affecting the Lien, security interest and priority herein
provided for the Agent compared to any other Lien holder or secured party.
Further, the Agent shall execute and deliver to the Borrower such documents and
instruments as may be required to release the Lien and security interest created
by this Security Agreement with respect to the Property as provided in Section
8.8 of the Participation Agreement or to grant the easements and permit the
other matters provided for in Section 8.5 of the Participation Agreement.
23. Miscellaneous.
-------------
(a) This Security Agreement is one (1) of the documents which create Liens
and security interests that secure payment and performance of the Obligations.
The Agent, at its election, may commence or consolidate in a single action all
proceedings to realize upon all such Liens and security interests. The Borrower
hereby waives (i) any objections to the commencement or continuation of an
action to foreclose the Lien of this Security Agreement or exercise of any other
remedies hereunder based on any action being prosecuted or any judgment entered
with respect to the Obligations or any Liens or security interests that secure
payment and performance of the Obligations and (ii) any objections to the
commencement of, continuation of, or entry of a judgment in any such other
action based on any action or judgment connected to this Security Agreement. In
case of a foreclosure sale, the Security Assets may be sold, at the Agent's
election, in one (1) parcel or in more than one (1) parcel and the Agent is
specifically
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empowered (without being required to do so, and in its sole and absolute
discretion) to cause successive sales of portions of the Security Assets to be
held.
(b) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION
TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
24. Conflicts with Participation Agreement.
--------------------------------------
Notwithstanding any other provision hereof, in the event of any conflict
between the terms of this Security Agreement and the Participation Agreement,
the terms of the Participation Agreement shall govern.
25. LESSEE AS A PARTY.
-----------------
(a) LESSEE HAS EXECUTED THIS SECURITY AGREEMENT TO EVIDENCE THE AGREEMENT
OF THE LESSEE TO THE TERMS OF THE SECURITY AGREEMENT (INCLUDING SECTIONS 5(D)
AND 11) AND FOR THE PURPOSE OF SUBJECTING TO THE SECURITY INTEREST AND LIEN
GRANTED HEREUNDER ALL OF ITS RIGHT, TITLE AND INTEREST, IF ANY, IN AND TO THE
SECURITY ASSETS TO SECURE THE PROMPT PAYMENT IN FULL OF ALL AMOUNTS OWING BY THE
LESSEE FROM TIME TO TIME AND THE PERFORMANCE OF ALL OBLIGATIONS OF THE LESSEE TO
THE SECURED PARTIES UNDER THE OPERATIVE AGREEMENTS IN THE EVENT THAT A COURT,
WHEN ENFORCING THIS SECURITY AGREEMENT FOLLOWING THE OCCURRENCE AND CONTINUANCE
OF A LEASE EVENT OF DEFAULT, DETERMINES THAT THE LESSEE'S INTEREST IN THE
PROPERTY IS NOT A LEASEHOLD INTEREST, BUT THAT THE TRANSACTIONS CONTEMPLATED BY
THE LEASE SHALL BE TREATED AS A SECURED BORROWING. TO EFFECT THE FOREGOING,
LESSEE HEREBY GRANTS TO THE AGENT (FOR THE BENEFIT OF THE SECURED PARTIES) A
SECURITY INTEREST IN AND TO ALL OF ITS RIGHT, TITLE AND INTEREST, IF ANY, IN AND
TO THE SECURITY ASSETS (TO THE EXTENT LESSEE, RATHER THAN THE BORROWER, IS
DETERMINED TO HAVE ANY RIGHT, TITLE OR INTEREST THEREIN AND WITHOUT REGARD TO
ANY LANGUAGE IN SECTION 2 OR THE DEFINITION OF "SECURITY ASSETS" OR ANY
DEFINITION OF ANY ITEM CONSTITUTING THE SECURITY ASSETS WHICH OTHERWISE WOULD
LIMIT THE SECURITY ASSETS TO THE RIGHT, TITLE AND INTEREST OF THE BORROWER
THEREIN), TO SECURE THE PROMPT PAYMENT IN FULL OF ALL AMOUNTS OWING BY THE
LESSEE FROM TIME TO TIME AND THE PERFORMANCE OF ALL OBLIGATIONS OF THE LESSEE TO
THE SECURED PARTIES UNDER THE OPERATIVE AGREEMENTS. LESSEE ACKNOWLEDGES AND
AGREES THAT, UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE EVENT OF DEFAULT,
THE AGENT SHALL HAVE THE RIGHT TO EXERCISE ANY OR ALL OF ITS REMEDIES HEREUNDER
AS AGAINST ANY SUCH RIGHT, TITLE OR INTEREST OF LESSEE IN OR TO THE SECURITY
ASSETS. THE SECURITY ASSETS SHALL NOT INCLUDE EQUIPMENT ACQUIRED OR FINANCED
WITH FUNDS (I) OTHER THAN THE CREDIT PROCEEDS, THE MORTGAGE LOANS AND THE LESSOR
ADVANCE AND ALL
11
PROCEEDS THEREOF AND (II) OTHER THAN PROCEEDS PROVIDED DIRECTLY OR INDIRECTLY BY
THE LESSEE OR ONE OF ITS AFFILIATES WHERE THE LESSEE IS EXPRESSLY REQUIRED BY
ANY OPERATIVE AGREEMENT TO ACQUIRE ANY ASSET BY OR ON BEHALF OF THE LESSOR, IN
EACH CASE INCLUDING ANY REPLACEMENT OF SUCH ASSETS WHETHER SUCH REPLACEMENT IS
MADE WITH THE PROCEEDS OF INSURANCE OR OTHERWISE.
(b) In furtherance of Section 5.1 of the Lease, the Agent hereby
acknowledges and agrees that so long as no Lease Event of Default shall exist
and be continuing, the Agent will not disturb the possession of Lessee, will not
terminate the Lease or join Lessee in summary ejectment or foreclosure
proceedings (unless such joinder is required to effect such ejectment or
foreclosure proceedings against the Borrower, but subject to the non-disturbance
rights of Lessee hereunder), and shall recognize the leasehold estate and
contractual rights of the Lessee under the Lease, including without limitation
the Purchase Option granted thereunder to the Lessee, it being understood that
such leasehold estate and rights of the Lessee shall be unaffected by any
foreclosure action or enforcement of remedies by the Agent hereunder so long as
no Lease Event of Default shall exist and be continuing.
26. Counterparts.
------------
This Security Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together, shall
constitute one instrument.
[signature page follows]
12
IN WITNESS WHEREOF, each of the undersigned has caused the Security
Agreement to be duly executed and delivered as of the date first above written.
WACHOVIA DEVELOPMENT CORPORATION,
as the Borrower
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
--------------------------------
Title: Vice President
--------------------------------
(signature pages continue)
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Agent for the Secured Parties
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
(signature pages continue)
Accepted and Agreed to:
CONVERGYS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: V.P. & Treas.
-------------------------------
(signature pages end)
