SECURITY AGREEMENT
SECURITY AGREEMENT, (together with all amendments, if any, from time
to time hereto, this "Security Agreement") dated as of July 2, 2002 by and among
EACH OF THE GRANTORS SIGNATORY HERETO AND EACH ADDITIONAL PARTY THAT BECOMES A
GRANTOR HERETO PURSUANT TO SECTION 26 HEREOF (together with their respective
successors and assigns, collectively "Grantors" and each individually, a
"Grantor"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in
its capacity as Agent ("Agent") for the benefit of itself and the Lenders from
time to time party to the Credit Agreement described below.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of the
date hereof, by and among Xxxxx International Enterprises Corp., a New York
corporation ("Xxxxx") and Blue Ridge Textile Manufacturing Inc., a Georgia
corporation ("Blue Ridge") (Xxxxx and Blue Ridge are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"); the
other Credit Parties signatory thereto; General Electric Capital Corporation,
for itself, as Lender, and as Agent for Lenders, and the other Lenders signatory
thereto from time to time (including all annexes, exhibits and schedules
thereto, as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), Lenders have agreed to make the Loans and to
incur Letter of Credit Obligations on behalf of the Grantors;
WHEREAS, Grantors directly or indirectly benefit from the credit
facilities made available to Borrowers, under the Credit Agreement, in order to
induce Agent and Lenders to enter into the Credit Agreement and other Loan
Documents and to induce Lenders to make the Loans and to incur Letter of Credit
Obligations as provided for in the Credit Agreement, Grantors have agreed to
grant a continuing Lien on the Collateral to secure all of the Obligations;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS.
(a) All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Credit Agreement or in Annex A thereto. All
other terms contained in this Security Agreement, unless the context indicates
otherwise, have the meanings provided for by the Code to the extent the same are
used or defined therein.
(b) "Uniform Commercial Code jurisdiction" means any jurisdiction that
has adopted all or substantially all of Article 9 as contained in the 2000
Official Text
of the Uniform Commercial Code, as recommended by the National Conference of
Commissioners on Uniform State Laws and the American Law Institute, together
with any subsequent amendments or modifications to the Official Text.
2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance and
observance of all of the Obligations (and with respect to each Grantor who is a
Borrower, specifically including, without limitation, such Grantor's Obligations
arising under the cross guaranty provisions of Section 12 of the Credit
Agreement), each Grantor hereby grants, assigns, conveys, mortgages, pledges,
hypothecates and transfers to Agent, (i) for itself and the benefit of holders
of A Obligations, a continuing first priority security interest in and Lien upon
all of its right, title and interest in, to and under all personal property and
other assets and (ii) for the benefit of the holders of B Obligations, a
continuing second priority security interest in and lien upon all its right,
title and interest in the following in each case, whether presenting existing or
hereafter acquired by or arising in favor of such Grantor (including under any
trade names, styles or derivations thereof), and whether owned or consigned by
or to, or leased from or to, such Grantor, and regardless of where located (all
of which being hereinafter collectively referred to as the "Collateral"),
including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and
Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts, of any Grantor, including all
Blocked Accounts, Concentration Accounts, Disbursement Accounts, and all other
bank accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any Grantor;
(x) all Supporting Obligations and Letter of Credit Rights of
any Grantor;
2
(xi) the following commercial tort claims set forth on Schedule
A attached hereto; and
(xii) to the extent not otherwise included, all Proceeds, tort
claims, insurance claims and other rights to payments not otherwise included in
the foregoing and products of the foregoing and all accessions to, substitutions
and replacements for, and rents and profits of, each of the foregoing.
(b) In addition, to secure the prompt and complete payment,
performance and observance of the Obligations and in order to induce Agent and
Lenders as aforesaid, each Grantor hereby grants to Agent, for itself and the
benefit of Lenders, a right of setoff, against the property of such Grantor held
by Agent or any Lender, consisting of property described above in Section 2(a)
now or hereafter in the possession or custody of or in transit to Agent or any
Lender, for any purpose, including safekeeping, collection or pledge, for the
account of such Grantor, or as to which such Grantor may have any right or
power.
3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) It is expressly agreed by Grantors that, anything herein to the
contrary notwithstanding, each Grantor shall remain liable under each of its
Contracts and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Neither Agent nor any
Lender shall have any obligation or liability under any Contract or License by
reason of or arising out of this Security Agreement or the granting herein of a
Lien thereon or the receipt by Agent or any Lender of any payment relating to
any Contract or License pursuant hereto. Neither Agent nor any Lender shall be
required or obligated in any manner to perform or fulfill any of the obligations
of any Grantor under or pursuant to any Contract or License, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract or License, or to present or file any claims, or to take any action
to collect or enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times.
(b) Agent may at any time after an Event of Default has occurred and
be continuing (or if any rights of set-off (other than set-offs against an
Account arising under the Contract giving rise to the same Account) or contra
accounts may be asserted with respect to the following), without prior notice to
any Grantor, notify Account Debtors and other Persons obligated on the
Collateral that Agent has a security interest therein, and that payments shall
be made directly to Agent. Upon the request of Agent, each Grantor shall so
notify Account Debtors and other Persons obligated on Collateral. Once any such
notice has been given to any Account Debtor or other Person obligated on the
Collateral, the affected Grantor shall not give any contrary instructions to
such Account Debtor or other Person without Agent's prior written consent.
3
(c) Agent may at any time in Agent's own name, in the name of a
nominee of Agent or in the name of any Grantor communicate (by mail, telephone,
facsimile or otherwise) with Account Debtors, parties to Contracts and obligors
in respect of Instruments to verify with such Persons, to Agent's satisfaction,
the existence, amount and terms of, and any other matter relating to, Accounts,
payment intangibles, Instruments or Chattel Paper. If a Default or Event of
Default shall have occurred and be continuing, each Grantor, at its own expense,
shall cause the independent certified public accountants then engaged by such
Grantor to prepare and deliver to Agent and each Lender at any time and from
time to time promptly upon Agent's request the following reports with respect to
each Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all
Accounts; (iii) trial balances; and (iv) a test verification of such Accounts as
Agent may request. Each Grantor, at its own expense, shall deliver to Agent the
results of each physical verification, if any, which such Grantor may in its
discretion have made, or caused any other Person to have made on its behalf, of
all or any portion of its Inventory.
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants that:
(a) Each Grantor has rights in and the power to transfer each item of
the Collateral upon which it purports to xxxxx x Xxxx hereunder free and clear
of any and all Liens other than Permitted Encumbrances.
(b) No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except such as
may have been filed (i) by any Grantor in favor of Agent pursuant to this
Security Agreement or the other Loan Documents, and (ii) in connection with any
other Permitted Encumbrances.
(c) This Security Agreement is effective to create a valid and
continuing Lien on and, upon the filing of the appropriate financing statements
at the locations listed on Schedule I hereto, a perfected Lien in favor of
Agent, for itself and the benefit of Lenders, on the Collateral with respect to
which a Lien may be perfected by filing pursuant to the Code. Such Lien is prior
to all other Liens, except Permitted Encumbrances that would be prior to Liens
in favor of Agent for the benefit of Agent and Lenders as a matter of law, and
is enforceable as such as against any and all creditors of and purchasers from
any Grantor (other than purchasers and lessees of Inventory in the ordinary
course of business) and non-exclusive licensees of General Intangibles in the
ordinary course of business. All action by any Grantor necessary or desirable to
protect and perfect such Lien on each item of the Collateral has been duly
taken.
(d) Schedule II hereto lists all Instruments, Letter of Credit Rights
and Chattel Paper of each Grantor. All action by any Grantor necessary or
desirable to protect and perfect the Lien of Agent on each item set forth on
Schedule II (including the delivery of all originals thereof to Agent and the
legending of all Chattel Paper as required by Section 5(b) hereof) has been duly
taken. The Lien of Agent, for the benefit
4
of Agent and Lenders, on the Collateral listed on Schedule II hereto is prior to
all other Liens, except Permitted Encumbrances that would be prior to the Liens
in favor of Agent as a matter of law, and is enforceable as such against any and
all creditors of and purchasers from any Grantor.
(e) Each Grantor's name as it appears in official filings in the
state of its incorporation or other organization, the type of entity of each
Grantor (including corporation, partnership, limited partnership or limited
liability company), organizational identification number issued by each
Grantor's state of incorporation or organization or a statement that no such
number has been issued, each Grantor's state of organization or incorporation,
the location of each Grantor's chief executive office, principal place of
business, offices, all warehouses and premises where Collateral is stored or
located, and the locations of all of its books and records concerning the
Collateral are set forth on Schedule III, hereto. Each Grantor has only one
state of incorporation or organization.
(f) With respect to the Accounts, except as specifically disclosed in
the most recent Collateral Report delivered to Agent (i) they represent bona
fide sales of Inventory or rendering of services to Account Debtors in the
ordinary course of each Grantor's business and are not evidenced by a judgment,
Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes
existing or asserted with respect thereto and no Grantor has made any agreement
with any Account Debtor for any extension of time for the payment thereof, any
compromise or settlement for less than the full amount thereof, any release of
any Account Debtor from liability therefor, or any deduction therefrom except a
discount or allowance allowed by such Grantor in the ordinary course of its
business for prompt payment, provided that Grantor has provided Agent with
notice of such discounts or allowances allowed as part of the ordinary course of
such Grantor's business; (iii) to each Grantor's knowledge, there are no facts,
events or occurrences which in any way impair the validity or enforceability
thereof or could reasonably be expected to reduce the amount payable thereunder
as shown on any Grantor's books and records and any invoices, statements and
Collateral Reports delivered to Agent and Lenders with respect thereto; (iv) no
Grantor has received any notice of proceedings or actions which are threatened
or pending against any Account Debtor which might result in any adverse change
in such Account Debtor's financial condition; and (v) no Grantor has knowledge
that any Account Debtor is unable generally to pay its debts as they become due.
Further with respect to the Accounts (x) the amounts shown on all invoices,
statements and Collateral Reports which may be delivered to the Agent with
respect thereto are actually and absolutely owing to such Grantor as indicated
thereon and are not in any way contingent; (y) no payments have been or shall be
made thereon except payments immediately delivered to the applicable Blocked
Accounts or the Agent as required pursuant to the terms of Annex C to the Credit
Agreement; and (z) to each Grantor's knowledge, all Account Debtors have the
capacity to contract.
(g) With respect to any Inventory scheduled or listed on the most
recent Collateral Report delivered to Agent pursuant to the terms of this
Security
5
Agreement or the Credit Agreement, (i) such Inventory is located at one of the
applicable Grantor's locations set forth on Schedule III hereto, (ii) no
Inventory is now, or shall at any time or times hereafter be stored at any other
location without Agent's prior consent, and if Agent gives such consent, each
applicable Grantor will concurrently therewith obtain, to the extent required by
the Credit Agreement, bailee, landlord and mortgagee agreements, (iii) the
applicable Grantor has good, indefeasible and merchantable title to such
Inventory and such Inventory is not subject to any Lien or security interest or
document whatsoever except for the Lien granted to Agent, for the benefit of
Agent and Lenders, and except for Permitted Encumbrances, (iv) except as
specifically disclosed in the most recent Collateral Report delivered to Agent,
such Inventory is Eligible Inventory of good and merchantable quality, free from
any defects, (v) such Inventory is not subject to any licensing, patent,
royalty, trademark, trade name or copyright agreements with any third parties
which would require any consent of any third party upon sale or disposition of
that Inventory or the payment of any monies to any third party upon such sale or
other disposition, and (vi) the completion of manufacture, sale or other
disposition of such Inventory by Agent following an Event of Default shall not
require the consent of any Person and shall not constitute a breach or default
under any contract or agreement to which any Grantor is a party or to which such
property is subject.
(h) No Grantor has any interest in, or title to, any Patent,
Trademark or Copyright except as set forth in Schedule IV hereto. This Security
Agreement is effective to create a valid and continuing Lien on and, upon filing
of the Intellectual Property Security Agreement with the United States Copyright
Office and the United States Patent and Trademark Office and the filing of
appropriate financing statements at the locations listed on Schedule I hereto,
perfected Liens in favor of Agent on each Grantor's Patents, Trademarks and
Copyrights and such perfected Liens are enforceable as such as against any and
all creditors of and purchasers from any Grantor. Upon filing of the
Intellectual Property Security Agreement with the United States Copyright Office
and the United State Patent and Trademark Office and the filing of appropriate
financing statements in the locations listed on Schedule I hereto, all action
necessary or desirable to protect and perfect Agent's Lien on each Grantor's
Patents, Trademarks or Copyrights shall have been duly taken.
(i) All motor vehicles owned by each Grantor are listed on Schedule V
hereto, by model, model year and vehicle identification number ("VIN"). Each
Grantor shall deliver to Agent motor vehicle title certificates for all motor
vehicles from time to time owned by it and shall cause those title certificates
to be filed (with Agent's lien noted thereon) in the appropriate state motor
vehicle filing office.
5. COVENANTS. Each Grantor jointly and severally covenants and
agrees with Agent, for the benefit of Agent and Lenders, that from and after the
date of this Security Agreement and until the Termination Date:
(a) Further Assurances: Pledge of Instruments; Chattel Paper.
6
(i) At any time and from time to time, upon the written
request of Agent and at the sole expense of Grantors, each Grantor shall
promptly and duly execute and deliver any and all such further instruments and
documents and take such further actions as Agent may deem desirable to obtain
the full benefits of this Security Agreement and of the rights and powers herein
granted, including (A) using its best efforts to secure all consents and
approvals necessary or appropriate for the assignment to or for the benefit of
Agent of any License or Contract held by such Grantor and to enforce the
security interests granted hereunder; and (B) filing any financing or
continuation statements under the Code with respect to the Liens granted
hereunder or under any other Loan Document as to those jurisdictions that are
not Uniform Commercial Code jurisdictions.
(ii) Unless Agent shall otherwise consent in writing (which
consent may be revoked), each Grantor shall deliver to Agent all Collateral
consisting of negotiable Documents, certificated securities, Chattel Paper and
Instruments (in each case, accompanied by stock powers, allonges or other
instruments of transfer executed in blank) promptly after such Credit Party
receives the same.
(iii) Each Grantor shall, in accordance with the terms of and to
the extent required by the Credit Agreement, obtain waivers or subordination of
Liens from landlords and mortgagees, and each Credit Party shall in all
instances obtain signed acknowledgments of Agent's Liens from bailees having
possession of any Grantor's Goods that they hold for the benefit of Agent.
(iv) If required by the terms of the Credit Agreement and not
waived by Agent in writing (which waiver may be revoked), each Grantor shall
obtain authenticated Control Letters from each issuer of uncertificated
securities, securities intermediary, or commodities intermediary issuing or
holding any financial assets or commodities to or for any Grantor.
(v) In accordance with Annex C to the Credit Agreement, each
Grantor shall obtain a blocked account, lockbox or similar agreement with each
bank or financial institution holding a Deposit Account for such Grantor.
(vi) Each Grantor that is or becomes the beneficiary of a
letter of credit shall promptly, and in any event within two (2) Business Days
after becoming a beneficiary, notify Agent thereof and, if Agent so requests,
enter into a tri-party agreement with Agent and the issuer and/or confirmation
bank with respect to Letter of Credit Rights assigning such Letter of Credit
Rights to Agent and directing all payments thereunder to the Collection Account,
all in form and substance reasonably satisfactory to Agent.
(vii) Each Grantor shall take all steps necessary to grant the
Agent control of all electronic chattel paper in accordance with the Code and
all
7
"transferable records" as defined in each of the Uniform Electronic Transactions
Act and the Electronic Signatures in Global and National Commerce Act.
(viii) Each Grantor 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 such Grantor or
words of similar effect, regardless of whether any particular asset comprised in
the Collateral falls within the scope of Article 9 of the Code or such
jurisdiction, or (ii) as being of an equal or lesser scope or with greater
detail, and (b) contain any other information required by part 5 of Article 9 of
the Code for the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether such Grantor is an organization,
the type of organization and any organization identification number issued to
such Grantor, 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. Each
Grantor agrees to furnish any such information to the Agent promptly upon
request. Each Grantor also ratifies its authorization for the Agent to have
filed in any Uniform Commercial Code jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
(ix) Each Grantor shall promptly, and in any event within two
(2) Business Days after the same is acquired by it, notify Agent of any
commercial tort claim (as defined in the Code) acquired by it and unless
otherwise consented by Agent, such Grantor shall enter into a supplement to this
Security Agreement, granting to Agent a Lien in such commercial tort claim.
(b) Maintenance of Records. Grantors shall keep and maintain, at
their own cost and expense, satisfactory and complete records of the Collateral,
including a record of any and all payments received and any and all credits
granted with respect to the Collateral and all other dealings with the
Collateral. Grantors shall xxxx their books and records pertaining to the
Collateral to evidence this Security Agreement and the Liens granted hereby. If
any Grantor retains possession of any Chattel Paper or Instruments with Agent's
consent, such Chattel Paper and Instruments shall be marked with the following
legend: "This writing and the obligations evidenced or secured hereby are
subject to the security interest of General Electric Capital Corporation, as
Agent, for the benefit of Agent and certain Lenders."
(c) Covenants Regarding Patent, Trademark and Copyright Collateral.
Grantors shall notify Agent immediately if they know or have reason to know that
any application or registration relating to any Patent, Trademark or Copyright
(now or hereafter existing) may become abandoned or dedicated, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States
8
Copyright Office or any court) regarding any Grantor's ownership of any Patent,
Trademark, or Copyright, its right to register the same, or to keep and maintain
the same.
(i) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an application for the
registration of any Patent, Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency without giving Agent prior written notice thereof, and, upon request
of Agent, Grantor shall execute and deliver any and all Patent Security
Agreements, Intellectual Property, Copyright Security Agreements or Trademark
Security Agreements as Agent may request to evidence Agent's Lien on such
Patent, Trademark or Copyright, and the General Intangibles of such Grantor
relating thereto or represented thereby.
(ii) Grantors shall take all actions necessary or requested by
Agent to maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of the Patents, Trademarks
and Copyrights (now or hereafter existing), including the filing of applications
for renewal, affidavits of use, affidavits of noncontestability and opposition
and interference and cancellation proceedings provided that Grantors may, with
the consent of Agent, abandon any application or registration which Grantors
deem to be no longer material to the conduct of their business or operations.
(iii) In the event that any of the Patent, Trademark or
Copyright Collateral is infringed upon, or misappropriated or diluted by a third
party, such Grantor shall comply with Section 5(a)(ix) of this Security
Agreement. Such Grantor shall, unless such Grantor shall reasonably determine
that such Patent, Trademark or Copyright Collateral is in no way material to the
conduct of its business or operations, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and shall take such other actions as
Agent shall deem appropriate under the circumstances to protect such Patent,
Trademark or Copyright Collateral.
(d) Indemnification. In any suit, proceeding or action brought by
Agent or any Lender relating to any Collateral for any sum owing with respect
thereto or to enforce any rights or claims with respect thereto, each Grantor
will save, indemnify and keep Agent and Lenders harmless from and against all
expense (including reasonable attorneys' fees and expenses), loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
of liability whatsoever of the Account Debtor or other Person obligated on the
Collateral, arising out of a breach by any Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to, or in favor of, such obligor or its successors from such Grantor,
except in the case of Agent or any Lender, to the extent such expense, loss, or
damage is attributable solely to the gross negligence or willful misconduct of
Agent or such Lender as finally determined by a court of competent jurisdiction.
All such Obligations of
9
Grantors shall be and remain enforceable against and only against Grantors and
shall not be enforceable against Agent or any Lender.
(e) Compliance with Terms of Accounts, etc. In all material respects,
each Grantor will perform and comply with all obligations in respect of the
Collateral and all other agreements to which it is a party or by which it is
bound relating to the Collateral.
(f) Limitation on Liens on Collateral. No Grantor will create, permit
or suffer to exist, and each Grantor will defend the Collateral against, and
take such other action as is necessary to remove, any Lien on the Collateral
except Permitted Encumbrances, and will defend the right, title and interest of
Agent and Lenders in and to any of such Grantor's rights under the Collateral
against the claims and demands of all Persons whomsoever.
(g) Limitations on Disposition. No Grantor will sell, license, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or contract
to do so except as permitted by the Credit Agreement.
(h) Further Identification of Collateral. Grantors will, if so
requested by Agent, furnish to Agent, as often as Agent requests, statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Agent may reasonably request, all
in such detail as Agent may specify.
(i) Notices. Grantors will advise Agent promptly, in reasonable
detail, (i) of any Lien (other than Permitted Encumbrances) or claim made or
asserted against any of the Collateral, and (ii) of the occurrence of any other
event which would have a material adverse effect on the aggregate value of the
Collateral or on the Liens created hereunder or under any other Loan Document.
(j) Good Standing Certificates. Not less frequently than once during
each calendar quarter, each Grantor shall, unless Agent shall otherwise consent,
provide to Agent a certificate of good standing from its state of incorporation
or organization.
(k) No Reincorporation. Without limiting the prohibitions on mergers
involving the Grantors contained in the Credit Agreement, no Grantor shall
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is incorporated or organized as of the date hereof
without the prior written consent of Agent.
(l) Terminations; Amendments Not Authorized. Each Grantor
acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement
without the prior written consent of Agent and agrees that it will not do so
without the prior written consent of Agent, subject to such Grantor's rights
under Section 9-509(d)(2) of the Code.
10
(m) Authorized Terminations. Agent will promptly deliver to each
Grantor for filing or authorize each Grantor to prepare and file termination
statements and releases in accordance with Section 11.2(e) of the Credit
Agreement.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each Grantor shall execute and deliver to Agent a
power of attorney (the "Power of Attorney") substantially in the form attached
hereto as Exhibit A. The power of attorney granted pursuant to the Power of
Attorney is a power coupled with an interest and shall be irrevocable until the
Termination Date. The powers conferred on Agent, for the benefit of Agent and
Lenders, under the Power of Attorney are solely to protect Agent's interests
(for the benefit of Agent and Lenders) in the Collateral and shall not impose
any duty upon Agent or any Lender to exercise any such powers. Agent agrees that
(a) except for the powers granted in clause (h) of the Power of Attorney, it
shall not exercise any power or authority granted under the Power of Attorney
unless an Event of Default has occurred and is continuing, and (b) Agent shall
account for any moneys received by it in respect of any foreclosure on or
disposition of Collateral pursuant to the Power of Attorney provided that
neither Agent nor any Lender shall have any duty as to any Collateral, and Agent
and Lenders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers. NONE OF AGENT, LENDERS OR THEIR
RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES
SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY
POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY
TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR
CONSEQUENTIAL DAMAGES.
7. REMEDIES: RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it under
this Security Agreement, the Credit Agreement, the other Loan Documents and
under any other instrument or agreement securing, evidencing or relating to any
of the Obligations, if any Event of Default shall have occurred and be
continuing, Agent may exercise all rights and remedies of a secured party under
the Code. Without limiting the generality of the foregoing, each Grantor
expressly agrees that in any such event Agent, without demand of performance or
other demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon such Grantor or
any other Person (all and each of which demands, advertisements and notices are
hereby expressly waived to the maximum extent permitted by the Code and other
applicable law), may forthwith enter upon the premises of such Grantor where any
Collateral is located through self-help, without judicial process, without first
obtaining a final judgment or giving such Grantor or any other Person notice and
opportunity for a
11
hearing on Agent's claim or action and may collect, receive, assemble, process,
appropriate and realize upon the Collateral, or any part thereof, and may
forthwith sell, lease, license, assign, give an option or options to purchase,
or sell or otherwise dispose of and deliver said Collateral (or contract to do
so), or any part thereof, in one or more parcels at a public or private sale or
sales, at any exchange at such prices as it may deem acceptable, for cash or on
credit or for future delivery without assumption of any credit risk. Agent or
any Lender shall have the right upon any such public sale or sales and, to the
extent permitted by law, upon any such private sale or sales, to purchase for
the benefit of Agent and Lenders, the whole or any part of said Collateral so
sold, free of any right or equity of redemption, which equity of redemption each
Grantor hereby releases. Such sales may be adjourned and continued from time to
time with or without notice. Agent shall have the right to conduct such sales on
any Grantor's premises or elsewhere and shall have the right to use any
Grantor's premises without charge for such time or times as Agent deems
necessary or advisable.
If any Event of Default shall have occurred and be continued, each
Grantor further agrees, at Agent's request, to assemble the Collateral and make
it available to Agent at a place or places designated by Agent which are
reasonably convenient to Agent and such Grantor, whether at such Grantor's
premises or elsewhere. Until Agent is able to effect a sale, lease, or other
disposition of Collateral, Agent shall have the right to hold or use Collateral,
or any part thereof, to the extent that it deems appropriate for the purpose of
preserving Collateral or its value or for any other purpose deemed appropriate
by Agent. Agent shall have no obligation to any Grantor to maintain or preserve
the rights of such Grantor as against third parties with respect to Collateral
while Collateral is in the possession of Agent. Agent may, if it so elects, seek
the appointment of a receiver or keeper to take possession of Collateral and to
enforce any of Agent's remedies (for the benefit of Agent and Lenders), with
respect to such appointment without prior notice or hearing as to such
appointment. Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the Obligations as
provided in the Credit Agreement, and only after so paying over such net
proceeds, and after the payment by Agent of any other amount required by any
provision of law, need Agent account for the surplus, if any, to any Grantor. To
the maximum extent permitted by applicable law, each Grantor waives all claims,
damages, and demands against Agent or any Lender arising out of the
repossession, retention or sale of the Collateral except such as arise solely
out of the gross negligence or willful misconduct of Agent or such Lender as
finally determined by a court of competent jurisdiction. Each Grantor agrees
that ten (10) days prior notice by Agent of the time and place of any public
sale or of the time after which a private sale may take place is reasonable
notification of such matters. Grantors shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral are insufficient to
pay all Obligations, including any attorneys' fees and other expenses incurred
by Agent or any Lender to collect such deficiency.
12
(b) Except as otherwise specifically provided herein, each Grantor
hereby waives presentment, demand, protest or any notice (to the maximum extent
permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, each Grantor acknowledges
and agrees that it is not commercially unreasonable for the Agent (i) to fail to
incur expenses reasonably deemed significant by the Agent to prepare Collateral
for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) 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, (iii) to fail to exercise collection remedies against Account
Debtors or other Persons obligated on Collateral or to remove Liens on or any
adverse claims against Collateral, (iv) 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, (v) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as the Grantor, for
expressions of interest in acquiring all or any portion of such Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition
of Collateral, whether or not the Collateral is of a specialized nature, (viii)
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 capacity of doing so, or that match buyers and sellers of assets,
(ix) to dispose of assets in wholesale rather than retail markets, (x) to
disclaim disposition warranties, such as title, possession or quiet enjoyment,
(xi) 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
(xii) to the extent deemed appropriate by the Agent, to obtain the services of
other brokers, investment bankers, consultants and other professionals to assist
the Agent in the collection or disposition of any of the Collateral. Each
Grantor acknowledges that the purpose of this Section 7(c) is to provide
non-exhaustive indications of what actions or omissions by the Agent would not
be commercially unreasonable in the Agent's exercise of remedies against the
Collateral and that other actions or omissions by the Agent shall not be deemed
commercially unreasonable solely on account of not being indicated in this
Section 7(c). Without limitation upon the foregoing, nothing contained in this
Section 7(c) shall be construed to grant any rights to any Grantor or to impose
any duties on Agent that would not have been granted or imposed by this Security
Agreement or by applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any
demand upon, or pursue or exhaust any of their rights or remedies against, any
Grantor,
13
any other obligor, guarantor, pledgor or any other Person with respect to the
payment of the Obligations or to pursue or exhaust any of their rights or
remedies with respect to any Collateral therefor or any direct or indirect
guarantee thereof. Neither the Agent nor the Lenders shall be required to
marshal the Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, and all of its and
their rights hereunder or under any other Loan Document shall be cumulative. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives
and relinquishes the benefit and advantage of, and covenants not to assert
against the Agent or any Lender, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a
surety now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. For the
purpose of enabling Agent to exercise rights and remedies under Section 7 hereof
(including, without limiting the terms of Section 7 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for
sale, sell or otherwise dispose of Collateral) at such time as Agent shall be
lawfully entitled to exercise such rights and remedies, each Grantor hereby
grants to Agent, for the benefit of Agent and Lenders, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to such Grantor) to use, for any purpose, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL.
Agent and each Lender shall use reasonable care with respect to the Collateral
in its possession or under its control. Neither Agent nor any Lender shall have
any other duty as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of Agent or such Lender, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any Grantor or any Credit Party for liquidation or reorganization,
should any Grantor or any Credit Party become insolvent or make an assignment
for the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of such Grantor's or such Credit
Party's assets, and shall continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Obligations, whether as
a
14
"voidable preference," "fraudulent conveyance," or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Obligations shall
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
11. NOTICES. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any
of the parties desires to give or serve upon another any such communication with
respect to this Security Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall be
addressed to the party to be notified at the address set forth in Annex I to the
Credit Agreement (or such other address as may be substituted by notice given in
the manner required by Section 11.10 of the Credit Agreement), and given in the
manner required by Section 11.10 of the Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement. This Security Agreement is to be read, construed and applied
together with the Credit Agreement and the other Loan Documents which, taken
together, set forth the complete understanding and agreement of Agent, Lenders
and Grantors with respect to the matters referred to herein and therein.
13. NO WAIVER. Agent's failure, at any time or times, to require
strict performance by the Credit Parties of any provision of this Security
Agreement shall not waive, affect or diminish any right of Agent thereafter to
demand strict compliance and performance herewith or therewith. Subject to the
provisions of Xxxxxxx 00 xxxxxx, xxxx of the undertakings, agreements,
warranties, covenants and representations of any Grantor contained in this
Security Agreement or any of the other Loan Documents and no Default or Event of
Default by any Grantor shall be deemed to have been suspended or waived by
Agent, unless such waiver or suspension is by an instrument in writing signed by
an officer of or other authorized employee of Agent, and directed to Borrowers
specifying such suspension or waiver.
14. CUMULATIVE REMEDIES. Agent's and Lenders' rights and remedies
under this Security Agreement shall be cumulative and nonexclusive of any other
rights and remedies that Agent or any Lender may have under any other agreement,
including the other Loan Documents, by operation of law or otherwise. Recourse
to the Collateral shall not be required.
15
15. AMENDMENTS. None of the terms or provisions of this Security
Agreement may be waived, altered, modified or amended except by an instrument in
writing, duly executed by Agent and Grantors.
16. LIMITATION BY LAW. All rights, remedies and powers provided in
this Security Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
of this Security Agreement are intended to be subject to all applicable
mandatory provisions of law that may be controlling and to be limited to the
extent necessary so that they shall not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
17. TERMINATION OF THIS SECURITY AGREEMENT. Subject to Section 10
hereof, this Security Agreement shall terminate upon the Termination Date.
18. SUCCESSORS AND ASSIGNS. This Security Agreement and all
obligations of Grantors hereunder shall be binding upon the successors and
assigns of each Grantor and Agent and their respective successors and assigns
(including in the case of any Grantor any debtor-in-possession on behalf of such
Grantor). No Grantor may assign, sell, hypothecate or otherwise transfer any
interest in or obligation under this Security Agreement without the rights and
remedies of Agent, for the benefit of Agent and Lenders, hereunder, inure to the
benefit of Agent and lenders, all future holders of any instrument evidencing
any of the Obligations and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any portion
thereof or interest therein shall in any manner impair the Lien granted to
Agent, for the benefit of Agent and Lenders, hereunder. No Grantor may assign,
sell, hypothecate or otherwise transfer any interest in or obligation under this
Security Agreement.
19. COUNTERPARTS. This Security Agreement may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
20. GOVERNING LAW. THIS SECURITY AGREEMENT, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EACH GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GRANTORS, AGENT AND LENDERS
PERTAINING TO
16
THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE GRANTORS ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY X XXXXX XXXXXXX XXXXXXX XX XXX
XXXX XXXXXX; PROVIDED FURTHER, THAT NOTHING IN THIS SECURITY AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT. EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH GRANTOR
HEREBY WAIVES ANY OBJECTION THAT SUCH GRANTOR MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH GRANTOR AT THE ADDRESS SET FORTH
IN ANNEX I OF THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH GRANTOR'S ACTUAL RECEIPT THEREOF OR 3 DAYS
AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
21. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY GRANTOR ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
17
22. SECTION TITLES. The Section titles contained in this Security
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
23. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Security Agreement. In the event
an ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
24. ADVICE OF COUNSEL. Each of the parties represents to each other
party hereto that it has discussed this Security Agreement and, specifically,
the provisions of Section 20 and Section 21, with its counsel.
25. BENEFIT OF LENDERS. All Liens granted or contemplated hereby
shall be for the benefit of Agent, individually, and Lenders, and all proceeds
or payments realized from Collateral in accordance herewith shall be applied to
the Obligations in accordance with the terms of the Credit Agreement.
26. ADDITIONAL GRANTORS. The initial Grantors hereunder shall be the
Credit Parties as are signatories hereto on the date hereof. From time to time
subsequent to the date hereof, additional direct and indirect Subsidiaries of
the Grantors may become parties hereto, as additional Grantors (each, an
"Additional Grantor"), by executing a counterpart of this Security Agreement
substantially in the form of Exhibit B attached hereto. Upon delivery of any
such counterpart to Agent, notice of which is hereby waived by the Grantors,
each Additional Grantor shall be a Grantor and shall be as fully a party hereto
as if such Additional Grantor were an original signatory hereto. Each Grantor
expressly agrees that its Obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Grantor hereunder nor by any
election of Agent not to cause any Subsidiary of any Grantor to become an
Additional Grantor hereunder. This Security Agreement shall be fully effective
as to any Grantor that is or becomes a party hereto regardless of whether any
other Person becomes or fails to become or ceases to be a Grantor hereunder.
27. Intercreditor Agreements. The Lenders have agreed, among themselves,
that the Lien created in favor of the holders of A Obligations shall be prior
and superior to any Lien or other interests created in favor of or held by the
holders of the B Obligations in respect of the Collateral, such priority as
between the holders of the A Obligations and the holders of the B Obligations,
shall give the holders of the A Obligations all the rights, powers and
privileges of a first priority secured creditor under the Code, other applicable
law and otherwise in respect of the Collateral, with the rights, powers and
privileges of holders of the B Obligations in respect of the Collateral being
subject to and subordinate to the Lien for the benefit of the holders of the A
Obligations. The application and receipt of Proceeds of Collateral are subject
to the provisions of Section
18
1.18 of the Credit Agreement. The Lien priorities provided herein and in the
Collateral Documents shall not be altered or otherwise affected by any
modification, renewal, restatement, extension or refinancing of any Obligations.
The Lenders acknowledge and consent to the granting of the Liens on the
Collateral as provided for herein and shall not (and hereby waive any right to)
contest in any proceeding the validity, priority or enforceability of the Lien
on the Collateral of the holders of A Obligations. The provisions of this
Section 27 and the rights and benefits hereof shall inure solely to the benefit
of the Lenders and their respective successors and permitted assigns and no
other Person (including, without limitation, the Credit Parties) shall have or
be entitled to assert rights or benefits under this Section 27.
19
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security Agreement to be executed and delivered by its duly authorized officer
as of the date first set forth above.
XXXXX INTERNATIONAL ENTERPRISES
CORP.
By:_____________________________
Name:___________________________
Title:__________________________
BLUE RIDGE TEXTILE MANUFACTURING
INC.
By:_____________________________
Name:___________________________
Title:__________________________
OHIO GARMENT RENTAL, INC.
By:_____________________________
Name:___________________________
Title:__________________________
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:_____________________________
Name:___________________________
Its: Duly Authorized Signatory
SCHEDULE A
TO SECURITY AGREEMENT
COMMERCIAL TORT CLAIMS
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS,
CHATTEL PAPER
AND
LETTER OF CREDIT RIGHTS
[to be completed by Grantors]
SCHEDULE III
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING GRANTORS' COLLATERAL
State legal name, entity type, state of incorporation and Charter ID# for each
Grantor:
-------------------------------------------------------------------------------------------
Domestic
Name of Entity Entity Type Jurisdiction Charter ID #
-------------------------------------------------------------------------------------------
Xxxxx International Enterprises Corp. Corporation New York
-------------------------------------------------------------------------------------------
Blue Ridge Textile Manufacturing Inc. Corporation Georgia
-------------------------------------------------------------------------------------------
Ohio Garment Rental, Inc. Corporation Ohio
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Chief Executive Office and principal place of business of each Grantor:
The Chief Executive Office for each Grantor is [__________]. The
principal place of business each Grantor is [___________].
Corporate Offices of each Grantor:
The corporate offices for each Grantor is [__________].
Warehouses:
1.
2.
3.
4.
5.
6.
7.
Other Premises at which Collateral is Stored or Located:
1.
Locations of Records Concerning Collateral:
[to be completed by Grantors]
SCHEDULE IV
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
[to be completed by Grantors]
SCHEDULE V
to
SECURITY AGREEMENT
Motor Vehicle
Name of Grantor Make/Model Model Year VIN
--------------- ---------- ---------- ---
[to be completed by Grantors]
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by
_______________________, a _____________________ corporation ("Grantor") to
General Electric Capital Corporation, a Delaware corporation (hereinafter
referred to as "Attorney"), as Agent for the benefit of Agent and the Lenders,
under a Credit Agreement and a Security Agreement, both dated as of [__________
__], 2002 and other related documents (the "Loan Documents"). No person to whom
this Power of Attorney is presented, as authority for Attorney to take any
action or actions contemplated hereby, shall be required to inquire into or seek
confirmation from Grantor as to the authority of Attorney to take any action
described below, or as to the existence of or fulfillment of any condition to
this Power of Attorney, which is intended to grant to Attorney unconditionally
the authority to take and perform the actions contemplated herein, and Grantor
irrevocably waives any right to commence any suit or action, in law or equity,
against any person or entity which acts in reliance upon or acknowledges the
authority granted under this Power of Attorney. The power of attorney granted
hereby is coupled with an interest, and may not be revoked or canceled by
Grantor without Attorney' s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and
all officers, employees or agents designated by Attorney), with full power of
substitution, as Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor or in its own name, from time to time in Attorney's discretion,
to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of the Loan Documents and, without limiting the generality of the
foregoing, Grantor hereby grants to Attorney the power and right, on behalf of
Grantor, without notice to or assent by Grantor, and at any time, to do the
following: (a) change the mailing address of Grantor, open a post office box on
behalf of Grantor, open mail for Grantor, and ask, demand, collect, give
acquittances and receipts for, take possession of, endorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against Grantor or its property;
(d) defend any suit, action or proceeding brought against Grantor if Grantor
does not defend such suit, action or proceeding or if Attorney believes that
Grantor is not pursuing such defense in a manner that will maximize the recovery
to Attorney, and settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or releases
as Attorney may deem appropriate; (e) file or prosecute any claim, litigation,
suit or proceeding in any court of competent jurisdiction or before any
arbitrator, or
take any other action otherwise deemed appropriate by Attorney for the purpose
of collecting any and all such moneys due to Grantor whenever payable and to
enforce any other right in respect of Grantor's property; (f) cause the
certified public accountants then engaged by Grantor to prepare and deliver to
Attorney at any time and from time to time, promptly upon Attorney's request,
the following reports: (1) a reconciliation of all accounts, (2) an aging of all
accounts, (3) trial balances, (4) test verifications of such accounts as
Attorney may request, and (5) the results of each physical verification of
inventory; (g) communicate in its own name with any party to any Contract with
regard to the assignment of the right, title and interest of such Grantor in and
under the Contracts and other matters relating thereto; (h) to file such
financing statements with respect to the Security Agreement, with or without
Grantor's signature, or to file a photocopy of the Security Agreement in
substitution for a financing statement, as the Agent may deem appropriate and to
execute in Grantor's name such financing statements and amendments thereto and
continuation statements which may require the Grantor's signature; and (i)
execute, in connection with any sale provided for in any Loan Document, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral and to otherwise direct such sale or resale, all as
though Attorney were the absolute owner of the property of Grantor for all
purposes, and to do, at Attorney's option and Grantor's expense, at any time or
from time to time, all acts and other things that Attorney reasonably deems
necessary to perfect, preserve, or realize upon Grantor's property or assets and
Attorney's Liens thereon, all as fully and effectively as Grantor might do.
Grantor hereby ratifies, to the extent permitted by law, all that said Attorney
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by
Grantor, and Grantor has caused its seal to be affixed pursuant to the authority
of its board of directors this _____________ day of ______________________.
[ GRANTOR ]
-----------------------------------
By:__________________________________
Name:________________________________
Title:_______________________________
NOTARY PUBLIC CERTIFICATE
On this _____ day of ______________, 200_, [officer's name] who
is personally known to me appeared before me in his/her capacity as the [title]
of [Grantor] ("Grantor") and executed on behalf of Grantor the Power of Attorney
in favor of General Electric Capital Corporation to which this Certificate is
attached.
__________________________________
Notary Public
{seal}
EXHIBIT B
COUNTERPART TO SECURITY AGREEMENT
This counterpart, dated _________,200__, is delivered pursuant to
Section 26 of that certain Security Agreement dated as of ___________ __, 2002
(as from time to time amended, modified or supplemented, the "Security
Agreement"; the terms defined therein and not otherwise defined herein being
used as therein defined), among Xxxxx, Blue Ridge, Ohio Garment Rental, Inc. as
Grantors and General Electric Capital Corporation, as Agent. The undersigned
hereby agrees (i) that this counterpart may be attached to the Security
Agreement, and (ii) that the undersigned will comply with and be subject to,
including representations and warranties, all the terms and conditions of the
Security Agreement as if it were an original signatory thereto.
[NAME OF ADDITIONAL GRANTOR]
By:_________________________________
Name:
Title:
