Exhibit 10.4
SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of March 16, 1999, between ON-DEMAND
SOLUTIONS, a Massachusetts corporation (the "Company"), and BANKBOSTON, N.A., a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and other banking institutions (hereinafter, collectively,
the "Banks") which are or may become parties to an Amended and Restated
Revolving Credit and Term Loan Agreement dated as of June 11, 1998 (as amended
and in effect from time to time, the "Credit Agreement"), among XxxxxXxxx.xxx
Corporation ("SalesLink"), InSolutions Incorporation ("InSolutions"), the
Company (collectively with SalesLink and InSolutions, the "Borrowers"), Pacific
Direct Marketing Corp. (the "Subsidiary Guarantor"), the Banks and the Agent.
WHEREAS, the Borrowers, the Subsidiary Guarantor, the Banks and the Agent
are parties to that certain First Amendment to Amended and Restated Revolving
Credit and Term Loan Agreement dated as of the date hereof (the "First
Amendment"), pursuant to which the parties thereto have agreed, subject to the
conditions contained therein, to amend the Credit Agreement to, among other
things, permit the Company to become a Borrower under the Credit Agreement; and
WHEREAS, it is a condition precedent to the Banks' continuing to make loans
or otherwise extend credit to the Borrower under the Credit Agreement that the
Company execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a security agreement in substantially the form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of the
Agent, for the benefit of the Banks and 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
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shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein.
2. Grant of Security Interest.
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2.1. Collateral Granted. The Company hereby grants to the Agent, for
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the benefit of the Banks and the Agent, to secure the payment and
performance in full of all of the Obligations, a security interest in and
so pledges and assigns to the Agent, for the benefit of the Banks and the
Agent, the following properties, assets and rights of the Company, wherever
located, whether now owned or hereafter acquired or arising,
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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 furniture, fixtures, equipment, raw
materials, inventory, other goods, accounts, contract rights, rights
to the payment of money, insurance refund claims and all other
insurance claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts, rights to proceeds of letters of credit and all general
intangibles including, without limitation, all tax refund claims,
license fees, patents, patent applications, trademarks, trademark
applications, trade names, copyrights, copyright applications, rights
to xxx and recover for past infringement of patents, trademarks and
copyrights, computer programs, computer software, engineering
drawings, service marks, customer lists, goodwill, and all licenses,
permits, agreements of any kind or nature pursuant to which the
Company possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess, use or
have authority to possess or use property (whether tangible or
intangible) of the Company, and all recorded data of any kind or
nature, regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and
schematics.
2.2. Delivery of Instruments, etc.
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(a) Pursuant to the terms hereof, the Company has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments, certificated securities and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment duly
executed in blank as the Agent may have specified. In the event that
the Company shall, after the date of this Agreement, acquire any other
negotiable or non-negotiable instruments, certificated securities or
chattel paper to be pledged by it hereunder, 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.
(b) To the extent that 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 cause the
issuer to note on its books the security interest of the Agent in such
securities and shall cause the issuer, pursuant to an agreement in
form and substance satisfactory to the Agent, to agree to comply with
instructions from the Agent as to such securities, without further
consent of the Company or
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such nominee. To the extent that any securities, whether certificated
or uncertificated, or other investment property now or hereafter
acquired by the Company is held by the Company or its nominee through
a securities intermediary or commodity intermediary, the Company
shall, at the request of the Agent, cause such securities intermediary
or (as the case may be) commodity intermediary, pursuant to an
agreement in form and substance satisfactory to the Agent, to agree to
comply 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, without further consent of the Company or such
nominee. 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 unless
an Event of Default has occurred and is continuing and the Agent has
elected to exercise its rights and remedies as contemplated by (S)14.
(c) To the extent that the Company is a beneficiary under any
written letter of credit now or hereafter issued in favor of the
Company, the Company shall deliver such letter of credit to the Agent.
The Agent shall from time to time, at the request and expense of the
Company, make such arrangements with the Company as are in the Agent's
reasonable judgment necessary and appropriate so that the Company may
make any drawing to which the Company is entitled under such letter of
credit, without impairment of the Agent's perfected security interest
in the Company's rights to proceeds of such letter of credit or in the
actual proceeds of such drawing. At the Agent's request, the Company
shall, for any letter of credit, whether or not written, now or
hereafter issued in favor of the Company as beneficiary, execute and
deliver to the issuer and any confirmer of such letter of credit an
assignment of proceeds form, in favor of the Agent and satisfactory to
the Agent and such issuer or (as the case may be) such confirmer,
requiring the proceeds of any drawing under such letter of credit to
be paid directly to the Agent for application as provided in the
Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions of
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this (S)2, such grant of security interest shall not extend to, and the term
"Collateral" shall not include, any chattel paper and general intangibles which
are now or hereafter held by the Company as licensee, lessee or otherwise, to
the extent that (a) such chattel paper and general intangibles are not
assignable or capable of being encumbered as a matter of law or under the terms
of the license, lease or other agreement applicable thereto (but solely to the
extent that any such restriction shall be enforceable under applicable law),
without the consent of the licensor
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or lessor thereof or other applicable party thereto and (b) such consent
has not been obtained; provided, however, that the foregoing grant of
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security interest shall extend to, and the term "Collateral" shall include,
(i) any and all proceeds of such chattel paper and general intangibles to
the extent that the assignment or encumbering of such proceeds is not so
restricted and (ii) upon any such licensor, lessor or other applicable
party consent with respect to any such otherwise excluded chattel paper or
general intangibles being obtained, thereafter such chattel paper or
general intangibles as well as any and all proceeds thereof that might have
theretofore have been excluded from such grant of a security interest and
the term "Collateral".
3. Title to Collateral, etc. The Company is the owner of the Collateral
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free from 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. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in (S)9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. None of the account debtors in respect of any
accounts, chattel paper or general intangibles and none of the obligors in
respect of any instruments included in the Collateral is a governmental
authority subject to the Federal Assignment of Claims Act.
4. Continuous Perfection. The Company's place of business or, if more than
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one, chief executive office is indicated on the Perfection Certificate delivered
to the Agent herewith (the "Perfection Certificate"). The Company will not
change the same, or the name, identity or corporate structure of the Company in
any manner, without providing at least 30 days prior written notice to the
Agent. The Collateral, to the extent not delivered to the Agent pursuant to
(S)2.2, 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 30 days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
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permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from 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 or any
of the Banks. The Company shall not pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
6. No Transfers. The Company will not sell or offer to sell or otherwise
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transfer the Collateral or any interest therein except for (a) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business and (b) sales or other dispositions of obsolescent items of equipment
in the ordinary course of business consistent with past practices.
7. Insurance.
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7.1. Maintenance of Insurance. The Company will maintain with
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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 for the benefit of the Banks and
the Agent. 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.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
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respect of any casualty loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property
covered thereby, (a) so long as no Default or Event of Default has occurred
and is continuing and to the extent that the amount of such proceeds is
less than $25,000, 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
with the Total Commitment (if not then terminated) being reduced by the
amount so applied to the Obligations.
7.3. Notice of Cancellation, etc. All policies of insurance shall
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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
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Company shall furnish the Agent with certificates of insurance and policies
evidencing compliance with the foregoing insurance provision.
8. Maintenance of Collateral; Compliance with Law. The Company will keep
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the Collateral in good order and repair and will not use the same in violation
of law or any policy of insurance thereon. The Agent, or its designee, may
inspect the Collateral at any reasonable time, wherever located. 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 such Collateral or incurred in connection with this Agreement. The Company
has at all times operated, and 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.
9. Collateral Protection Expenses; Preservation of Collateral.
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9.1. Expenses Incurred by Agent. In its discretion, the Agent may
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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.
The Company agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to the Company to
make any such expenditures, nor shall the making thereof relieve the
Company of any default.
9.2. Agent's Obligations and Duties. Anything herein to the contrary
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notwithstanding, the Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by the
Company thereunder. Neither the Agent nor any Bank shall 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 or any Bank of
any payment relating to any of the Collateral, nor shall the Agent or any
Bank 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 or any Bank 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 or any Bank 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 (S)9-207
of the Uniform Commercial Code of the Commonwealth of Massachusetts 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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10. Securities and Deposits. The Agent may at any time after the
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occurrence 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, after the occurrence 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 or any Bank
to the Company may at any time be applied to or set off against any of the
Obligations.
11. Notification to Account Debtors and Other Obligors. If an Event of
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Default shall have occurred and be continuing, the Company shall, at the request
of the Agent, notify account debtors on accounts, chattel paper and general
intangibles of the Company and obligors on instruments for which the Company is
an obligee of the security interest of the Agent in any account, chattel paper,
general intangible or instrument and that payment thereof is to be made directly
to the Agent or to any financial institution designated by the Agent as the
Agent's 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 obligors. 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 and instruments
received by the Company as trustee for the Agent, for the benefit of the Banks
and 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 and
instruments received by the Agent to the Obligations, such proceeds to be
immediately entered after final payment in cash or solvent credits of the items
giving rise to them.
12. Further Assurances. The Company, at its own expense, shall do, make,
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execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may require more completely to vest in
and assure to the Agent and the Banks their respective rights hereunder or in
any of the Collateral, including, without limitation, (a) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (b) obtaining governmental and other third
party consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in (S)2.3, (c) obtaining
waivers from mortgagees and landlords and (d) taking all actions required by
Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or Sections 8-106
and 9-115 of the Uniform Commercial Code (1994), as applicable in each relevant
jurisdiction, with respect to certificated and uncertificated securities.
13. Power of Attorney.
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13.1. Appointment and Powers of Agent. The Company hereby irrevocably
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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 desirable 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 deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to do
at the Company' expense, at any time, or from time to time, all acts
and things which the Agent deems necessary 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 as 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 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 in a commercially reasonable manner 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 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.
13.2. Ratification by Company. To the extent permitted by law, the
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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 shall be irrevocable.
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13.3. No Duty on Agent. The powers conferred on the Agent hereunder
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are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent 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.
14. Remedies. If an Event of Default shall have occurred and be
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continuing, the Agent may, without notice to or demand upon the Company, declare
this Agreement to be in default, and the Agent shall thereafter 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, including, without limitation, the 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 state(s) of the Company's principal
office(s) or at such other locations as the Agent may 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 Agent shall give to the
Company at least five 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 five 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 hereunder, including, without limitation, its right following an
Event of Default to take immediate possession of the Collateral and to exercise
its rights with respect thereto. To the extent that any of the Obligations are
to be paid or performed by a person other than the Company, the Company waives
and agrees not to assert any rights or privileges which it may have under (S)9-
112 of the Uniform Commercial Code of the Commonwealth of Massachusetts.
15. No Waiver, etc. The Company waives demand, notice, protest, notice of
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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 thereon, nor as to the preservation
of rights against prior parties, nor as to the
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preservation of any rights pertaining thereto beyond the safe custody thereof as
set forth in (S)9.2. The Agent shall not be deemed to have waived any of its
rights upon or under the Obligations or the Collateral unless such waiver shall
be in writing and signed by the Agent with the consent of the Majority Banks. No
delay or omission on the part of the Agent in exercising any right shall operate
as a waiver of such right or any other right. A waiver on any one occasion shall
not be construed as a bar to or waiver of any right 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.
16. Marshalling. Neither the Agent nor any Bank shall be required to
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marshal any present or future collateral security (including but not limited to
this Agreement and 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 the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, 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 under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. The Company shall pay to the Agent
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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 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 of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as is provided in the Credit Agreement, 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 Section 9-504(1)(c) of the Uniform Commercial
Code of the Commonwealth of Massachusetts, any excess shall be returned to the
Company, and the Company shall remain liable for any deficiency in the payment
of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by the
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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.
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19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the Commonwealth of Massachusetts 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 signature page of 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.
20. Waiver of Jury Trial. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
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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 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 or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this (S)20.
21. Miscellaneous. The headings of each section of this Agreement are for
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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 respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective 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.
ON-DEMAND SOLUTIONS, INC.
By:
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Title:
Accepted:
BANKBOSTON, N.A.,
as Agent
By:
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Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF _______________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ____ day of March, 1999, personally appeared _________ to me
known personally, and who, being by me duly sworn, deposes and says that he is
the ______ of On-Demand Solutions, Inc., 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:
