EXHIBIT 10.21
SECURITY AGREEMENT
by and between
GENERAL MANUFACTURED HOUSING, INC.
and
FIRST SOURCE FINANCIAL LLP
Dated as of December 21, 1995
SECURITY AGREEMENT
------------------
THIS SECURITY AGREEMENT, dated as of December 21, 1995 (herein, as the same
may at any time be amended or modified and in effect, called this "AGREEMENT"),
is by and between GENERAL MANUFACTURED HOUSING, INC., a Georgia corporation
(herein called "BORROWER"), and FIRST SOURCE FINANCIAL LLP, an Illinois
registered limited liability partnership ("LENDER").
BACKGROUND:
----------
1. Borrower and Lender have entered into a certain Secured Credit
Agreement of even date herewith (herein, as it may at any time be amended or
modified from time to time and in effect, called the "SECURED CREDIT
AGREEMENT"), pursuant to which Lender has agreed to make certain Loans (as
defined in the Secured Credit Agreement) to Borrower.
2. It is a condition precedent to the making of the initial Loans under
the Secured Credit Agreement that this Agreement be executed and delivered.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. (a) When used herein, the following terms
shall have the following meanings:
ACCOUNT shall mean any right of Borrower to payment for goods sold or
leased or for services rendered which is not evidenced by an Instrument or
Chattel Paper, whether or not it has been earned by performance.
ACCOUNT DEBTOR shall mean the Person who is obligated on or under any
Account, Chattel Paper or, if appropriate, any of the General Intangibles of
Borrower.
AGENT BANK shall mean any bank serving in the capacity of agent for Lender
under the Bank Agency Agreement. The initial Agent Bank is The First National
Bank of Chicago.
BANK AGENCY AGREEMENT shall mean that certain Bank Agency Agreement by and
among Agent Bank, Borrower, Lender, First Source Financial, Inc., and Citicorp
North America, Inc., dated as of the date hereof, as the same may be amended,
modified or supplemented from time to time, or any similar agreement entered
into among a bank serving in the capacity as agent for Lender, Borrower, Lender,
First Source Financial, Inc., and Citicorp North America, Inc., as the same may
be amended, modified or supplemented from time to time.
BENEFITS - see SECTION 16.
CERTIFICATED SECURITY shall have the meaning assigned to such term in the
Uniform Commercial Code.
CHATTEL PAPER shall have the meaning assigned to such term in the Uniform
Commercial Code.
COLLATERAL shall mean all property or rights in which a Security Interest
is granted hereunder.
COMMITMENTS shall mean, collectively, Lender's commitments to Borrower
pursuant to the Secured Credit Agreement.
COMPUTER HARDWARE AND SOFTWARE COLLATERAL shall mean (i) all computer and
other electronic data processing hardware, integrated computer systems, central
processing units, memory units, display terminals, printers, features, computer
elements, card readers, tape drives, hard and soft disk drives, cables,
electrical supply hardware, generators, power equalizers, accessories and all
peripheral devices and other related computer hardware, whether now owned,
licensed or leased or hereafter acquired by Borrower; (ii) all software programs
(including source code and object code and all related applications and data
files), whether now owned, licensed or leased or hereafter acquired by Borrower,
designed for use on the computers and electronic data processing hardware
described in CLAUSE (I) above; (iii) all firmware associated therewith, whether
now owned, licensed or leased or hereafter acquired by Borrower; (iv) all
documentation (including flow charts, logic diagrams, manuals, guides and
specifications) for such hardware, software and firmware described in the
preceding CLAUSES (I), (II) and (III), whether now owned, licensed or leased or
hereafter acquired by Borrower; and (v) all rights with respect to all of the
foregoing, including, without limitation, any and all copyrights, licenses,
options, warranties, service contracts, program services, test rights,
maintenance rights, support rights, improvement rights, renewal rights and
indemnifications and any substitutions, replacements, additions or model
conversions of any of the foregoing.
COPYRIGHT COLLATERAL shall mean all copyrights and all semiconductor chip
product mask works of Borrower, whether statutory or common law, registered or
unregistered, now or hereafter in force throughout the world, including, without
limitation, all of Borrower's right, title and interest in and to all copyrights
and mask works registered in the United States Copyright Office or anywhere else
in the world and also including, without limitation, the copyrights and mask
works referred to in ITEM A of SCHEDULE III attached hereto, and all
applications for registration thereof, whether pending or in preparation, all
copyright and mask work licenses, including each copyright and mask work license
referred to in ITEM B of SCHEDULE III attached hereto, the right to xxx for
past, present and future infringements of any thereof, all rights corresponding
thereto throughout the world, all extensions and renewals of any thereof and all
proceeds of the foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages and proceeds of suit.
DEFAULT shall mean any Unmatured Event of Default or any Event of Default.
DOCUMENT shall have the meaning assigned to such term in the Uniform
Commercial Code.
EQUIPMENT shall have the meaning assigned to such term in the Uniform
Commercial Code.
EVENT OF DEFAULT shall have the meaning assigned to such term in the
Secured Credit Agreement.
FIXTURE shall have the meaning assigned to such term in the Uniform
Commercial Code.
GENERAL INTANGIBLES shall have the meaning assigned to such term in the
Uniform Commercial Code and shall include, without limitation, goodwill.
GOODS shall have the meaning assigned to such term in the Uniform
Commercial Code.
INSTRUMENT shall have the meaning assigned to such term in the Uniform
Commercial Code.
INTANGIBLE COLLATERAL shall mean all Collateral other than Goods.
INTELLECTUAL PROPERTY COLLATERAL shall mean, collectively, the Computer
Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
INVENTORY shall mean goods, merchandise and other personal property
furnished under any contract of service or intended for sale or lease,
including, without limitation, all raw materials, work in process, finished
goods and materials and supplies, of any kind, nature or description, that are
used or consumed by Borrower's business, or are or might be used in connection
with the manufacture, packing, shipping, advertising, selling or finishing of
such goods, merchandise and other personal property, and all returned or
repossessed goods now or at any time or times hereafter in the possession or
under the control of Borrower or Lender.
MASTER ACCOUNT shall mean the account maintained in Lender's name at Agent
Bank, of which Agent Bank is agent and pledgee-in-possession for
Lender, which account is the "MASTER ACCOUNT" referred to in Section 6.2 of the
Secured Credit Agreement.
NOTES shall mean any and all promissory notes of Borrower evidencing any
loan or advance made by Lender to Borrower, and any promissory notes taken in
extension or renewal of any thereof or in replacement therefor.
OPERATING ACCOUNT shall mean the account maintained in Borrower's name at
Agent Bank, of which Agent Bank is agent and pledgee-in-possession for Lender,
which account is the "OPERATING ACCOUNT" referred to in Section 6.2 of the
Secured Credit Agreement.
PATENT COLLATERAL shall mean:
(a) all letters patent and applications for letters patent throughout
the world, including all patent applications in preparation for filing
anywhere in the world and including each patent and patent application
referred to in ITEM A of SCHEDULE II attached hereto;
(b) all patent licenses, including each patent license referred to in
ITEM B of SCHEDULE II attached hereto;
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
CLAUSES (A) and (B); and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the right
to xxx third parties for past, present or future infringements of any
patent or patent application, including any patent or patent application
referred to in ITEM A of SCHEDULE II attached hereto, and for breach or
enforcement of any patent license, including any patent license referred to
in ITEM B of SCHEDULE II attached hereto, and all rights corresponding
thereto throughout the world.
PERMITTED LIENS shall have the meaning assigned to such term in the Secured
Credit Agreement.
SECURITY shall have the meaning assigned to such term in the Uniform
Commercial Code.
SECURITY INTEREST shall, when used with respect to any Person, mean any
interest in any real or personal property, asset or other right owned or being
purchased or acquired by such Person for its own use, consumption or enjoyment
in its business which secures payment or performance of any obligation and shall
include any mortgage, lien, pledge, encumbrance, charge or other security
interest of any kind, whether arising under a security agreement, mortgage, deed
of trust, chattel mortgage, assignment, pledge, financing or similar statement
or notice or as a matter of law, judicial process or otherwise. As used herein
with respect to the rights granted to Lender hereunder in the Collateral,
"SECURITY INTEREST" means a security interest under the Uniform Commercial Code.
TRADEMARK COLLATERAL shall mean:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade dress, service marks,
certification marks, collective marks, logos, other sources of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like
nature (each of the foregoing items in this CLAUSE (A) being called a
"TRADEMARK"), now existing anywhere in the world or hereafter adopted or
acquired, whether currently in use or not, all registrations and recordings
thereof and all applications in connection therewith, whether pending or in
preparation for filing, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any
office or agency of the United States of America or any State thereof or
any foreign country, including those referred to in ITEM A of SCHEDULE I
attached hereto;
(b) all Trademark licenses, including each Trademark license referred
to in ITEM B of SCHEDULE I attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in CLAUSES (A) and (B);
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, CLAUSES (A) and (B); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by Borrower against third parties for past, present or
future infringement or dilution of any Trademark, Trademark registration or
Trademark license, including any Trademark, Trademark registration or
Trademark license referred to in ITEM A and ITEM B of SCHEDULE I attached
hereto, or for any injury to the goodwill associated with the use of any
such Trademark or for breach or enforcement of any Trademark license.
TRADE SECRETS COLLATERAL shall mean common law and statutory trade secrets
and all other confidential and proprietary information and all know-how obtained
by or used in or contemplated at any time for use in the business of Borrower
(each of the foregoing being called a "TRADE SECRET"), whether or not such Trade
Secret has been reduced to a writing or other tangible form, including all
documents and things embodying, incorporating or referring in any way to such
Trade Secret, all Trade Secret licenses, including each Trade Secret license
referred to in SCHEDULE IV attached hereto, and including the right to xxx for
and to enjoin and to collect damages for the actual or threatened
misappropriation of any Trade Secret and for the breach or enforcement of any
such Trade secret license.
UNCERTIFICATED SECURITY shall have the meaning assigned to such term in the
Uniform Commercial Code.
UNIFORM COMMERCIAL CODE shall mean the Uniform Commercial Code as in effect
in the state of Illinois on the date of this Agreement.
UNMATURED EVENT OF DEFAULT shall mean any event or condition which if it
continues uncured will, with the passage of time or giving of notice, or both,
become an Event of Default.
UNMATURED INSOLVENCY DEFAULT shall mean an Unmatured Event of Default
arising under section 13.1.5 of the Secured Credit Agreement.
WAIVER AGREEMENT shall mean a declaration and agreement substantially in
the form of EXHIBIT A hereto (and in form and substance satisfactory to Lender)
executed and delivered by the appropriate Persons pursuant to SECTION 4(D).
(b) Unless otherwise defined herein, terms defined in the Secured Credit
Agreement shall have the same meaning when used herein. Terms not otherwise
defined herein or in the Secured Credit Agreement shall have the
meanings, if any, ascribed to them under the Uniform Commercial Code, as it may
be in effect in the State of Illinois.
SECTION 2. GRANT OF SECURITY INTEREST. As collateral security for the
prompt and complete payment, performance and observance of all Liabilities,
Borrower hereby mortgages, pledges and assigns to Lender, and grants to Lender a
continuing Security Interest and lien under the Uniform Commercial Code and all
other applicable laws in all of the following property of Borrower wherever
located, whether now or hereafter existing, owned, licensed, leased, consigned,
arising or acquired:
(i) Accounts;
(ii) Goods (including, without limitation, all of Borrower's Equipment,
Fixtures (including, without limitation, the Fixtures located on the
premises described on Schedule VII) and Inventory);
(iii) General Intangibles, including, without limitation,
(A) All tax refunds,
(B) All Intellectual Property Collateral, and
(C) Rights arising out of leases, licenses and contracts which are
not Accounts,
(iv) Chattel Paper, Documents, Instruments, Certificated Securities and
Uncertificated Securities;
(v) Money and property now or at any time in the possession or under the
control of, or in transit to, Lender or Agent Bank, Borrower or any
bailee, agent or custodian of Lender, Agent Bank or Borrower;
(vi) Right, title and interest (if any) in and to the Master Account, the
Operating Account and all other accounts of Borrower maintained by
Agent Bank, and any other accounts maintained by Borrower, all funds
on deposit therein, all investments arising out of such funds, all
claims thereunder or in connection therewith, and all cash,
securities, rights and other property at any time and from time to
time received, receivable or otherwise distributed in respect of such
accounts, such funds or such investments;
(vii) Insurance policies, including claims or rights to payment thereunder;
and
(viii) Liens, guaranties and other rights and privileges pertaining to any
of the Collateral;
together with: (ix) all books, ledgers, books of account, records, writings,
data bases, information and other property relating to, used or useful in
connection with, evidencing, embodying, incorporating or referring to, any of
the foregoing; and (x) all proceeds, products, rents, issues, profits and
returns of and from any of the foregoing.
SECTION 3. BORROWER TO REMAIN LIABLE. Borrower hereby expressly agrees
that, anything herein to the contrary notwithstanding, it shall remain liable
under each contract, agreement, interest or obligation
assigned to Lender hereunder to observe and perform all of the conditions and
obligations to be observed and performed by Borrower thereunder, all in
accordance with and pursuant to the terms and provisions thereof. The exercise
by Lender of any of the rights assigned hereunder shall not release Borrower
from any of its duties or obligations under any such contract, agreement,
interest or obligation. Lender shall not have any duty, responsibility,
obligation or liability under any such contract, agreement, interest or
obligation by reason of or arising out of the assignment thereof to Lender or
the granting to Lender of a Security Interest therein or the receipt by Lender
of any payment relating to any such contract, agreement, interest or obligation
pursuant hereto, nor shall Lender be required or obligated in any manner to
perform or fulfill any of the obligations of Borrower thereunder or pursuant
thereto, or to make any payment, or to make any inquiry as to the nature or
sufficiency of any payment received by it or the sufficiency of any performance
of any party under any such contract, agreement, interest or obligation, or to
present or file any claim, or to take any action to collect or enforce any
performance or the payment of any amounts which may have been assigned to it, in
which it may have been granted a Security Interest or to which it may be
entitled at any time or times.
SECTION 4. REPRESENTATIONS AND WARRANTIES AND AGREEMENTS. Borrower
represents and warrants to, and covenants and agrees with, Lender that:
(a) No Uniform Commercial Code financing statement (other than any which
may have been filed on behalf of Lender or in connection with a Permitted Lien
or which has been, or in connection with execution and delivery hereof is being,
terminated) covering any of the Collateral is on file in any public office.
(b) Borrower has and will have a valid leasehold interest in all
Collateral it leases, and, except as otherwise noted in Schedule VI of the
Secured Credit Agreement, good and marketable title to all its other Collateral,
real and personal, of any nature whatsoever (which, with respect to licenses,
means that Borrower is the lawful owner of its rights under licenses, except as
provided in Section 10.14 of the Secured Credit Agreement), free of all Security
Interests whatsoever, other than the Security Interest created hereby and the
Permitted Liens, with full power and authority to execute this Agreement, to
perform Borrower's obligations hereunder, and to subject the Collateral to the
assignment and Security Interest created hereby.
(c) All of Borrower's books and records are now located at one or more of
the premises shown on SCHEDULE V hereto, and all of Borrower's Equipment,
Inventory and other Goods are located either at one or more of the premises
shown on SCHEDULE V hereto or at one or more of the premises shown on SCHEDULE
VI hereto.
(d) To the extent that any of the premises shown on SCHEDULE V hereto are
leased by Borrower, Borrower shall provide Lender with a Waiver Agreement
executed by the landlord under such lease.
(e) All information with respect to the Collateral and the Account Debtors
set forth in any schedule, certificate, or other writing at any time heretofore
or hereafter furnished by or on behalf of Borrower to Lender, and all other
information heretofore or hereafter furnished by or on behalf of Borrower to
Lender, is and will be true, correct and complete in all material respects as of
the date furnished and does not and will not omit any material fact necessary to
make the statements not misleading.
(f) Borrower will at all times maintain its chief executive office as
identified in SCHEDULE V hereto in the contiguous continental United States and
Borrower shall take such action from time to time as is required so that a
creditor of Borrower would reasonably expect the chief executive office
identified on SCHEDULE V to be its chief executive office for purposes of
Article 9 of the Uniform Commercial Code.
(g) With respect to any Intellectual Property Collateral the loss,
impairment or infringement of which has a reasonable probability of having a
Material Adverse Effect:
(i) Such Intellectual Property Collateral is subsisting and has not
been adjudged invalid or unenforceable, in whole or in part.
(ii) Such Intellectual Property Collateral is valid and enforceable.
(iii) Borrower has made all filings and recordations necessary in the
exercise of reasonable and prudent business judgment to protect its
interest in such Intellectual Property Collateral, including, without
limitation, recordations of all of its interest in the Patent Collateral
and Trademark Collateral in the United States Patent and Trademark Office
and in corresponding offices throughout the world and its claims to the
Copyright Collateral in the United States Copyright Office and in
corresponding offices throughout the world.
(iv) Borrower is the owner of the entire and unencumbered right,
title and interest in and to such Intellectual Property Collateral and no
claim has been made that the use of such Intellectual Property Collateral
does or may violate the asserted rights of any third party.
(v) Borrower has performed and will continue to perform all acts and
has paid and will continue to pay all required fees and taxes to maintain
each and every item of Intellectual Property Collateral in full force and
effect throughout the world, as applicable.
Borrower owns directly, or is entitled to use by license or otherwise, all
Intellectual Property Collateral used in, necessary for or material to the
conduct of Borrower's business. No litigation is pending or, to the best
knowledge of Borrower, threatened which contains allegations respecting the
validity, enforceability, infringement or ownership of any of the Intellectual
Property Collateral.
(h) None of the Collateral (other than Intangible Collateral) has, within
the four (4) months preceding the date of this Agreement, been located at any
place other than Borrower's own premises at the address shown on the signature
page hereto or at one or more of the premises listed on SCHEDULES V and VI
hereto.
(i) Schedule VII to the Secured Credit Agreement lists all trade names by
which Borrower is now known or was previously known.
(j) Borrower may, from time to time, have Goods repurchased by Borrower
pursuant to the Repurchase Agreements in the States listed on SCHEDULE VI
hereto.
SECTION 5. PROCESSING, SALE, COLLECTIONS, ETC.
(a) Until notice from Lender to the contrary, given at any time after the
occurrence and during continuance of any Event of Default or Unmatured
Insolvency Default, Borrower (i) may, in the ordinary course of its business, at
its own expense, sell, lease or furnish under contracts of service any of the
Inventory normally held by Borrower for such purpose, and use and consume, in
the ordinary course of its business, any raw materials, work in process or
materials normally held by Borrower for such purpose (but no such sale or use
shall limit or impair Lender's Security Interest in any proceeds thereof,
including, without limitation, any Account), (ii) will, at its own expense,
endeavor to collect, as and when due, all amounts due with respect to any of the
Intangible Collateral, including the taking of such action with respect to such
collection as Lender may reasonably request or, in the absence of such request,
as Borrower may deem advisable, and (iii) may grant, subject to the next
sentence hereof, to any Person obligated on any of the Intangible Collateral,
any rebate, refund or allowance to which such Person may be lawfully entitled,
and may accept, in connection therewith, the return of goods, the sale or lease
of which shall have given rise to such Intangible Collateral. Lender, however,
may at any time, whether before or after the maturity of any of the Liabilities,
so long as a Default shall have occurred and be continuing, (1) notify any
Person obligated on any of the Intangible Collateral to make payment to Lender
of any amounts due or to become due thereunder; (2) enforce collection of any of
the Intangible Collateral by suit or otherwise; (3) surrender, release or
exchange all or any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any indebtedness
thereunder or evidenced thereby; and (4) notify Borrower (and upon receipt of
such notice Borrower agrees to notify, at its sole expense, any parties
obligated on any of the Collateral) to make payment to Lender of any amount due
or to become due under the Collateral.
(b) Borrower will, forthwith upon receipt, transmit and deliver to Lender
or Agent Bank, in the form received, all cash, checks, drafts and other
instruments or writings for the payment of money (properly endorsed, where
required, so that such items may be collected by Lender or Agent Bank) which may
be received by Borrower at any time in full or partial payment, or other
proceeds of any Collateral. Except as Lender may otherwise consent in writing,
any such items which may be so received by Borrower will not be commingled by
Borrower with any of its other funds or property, but, until delivery to Lender
or Agent Bank, will be held separate and apart from such other funds and
property and in trust for Lender or Agent Bank.
(c) Lender or Agent Bank is authorized to endorse, in the name of
Borrower, any item, howsoever received by Lender or Agent Bank representing any
payment on or other proceeds of any of the Collateral.
SECTION 6. AGREEMENTS OF BORROWER. Borrower shall:
(a) Keep all its Inventory and other Goods, unless Lender shall otherwise
consent in writing, at one or more of its own premises (as shown on SCHEDULE V
hereto) or at one or more of the premises listed on SCHEDULE VI hereto;
PROVIDED, HOWEVER, that (i) so long as no Event of Default or Unmatured
Insolvency Default shall have occurred and be continuing, and subject to SECTION
6(J), Borrower may designate additional premises (such premises shall be located
in the contiguous continental United States) for inclusion on SCHEDULE V hereto
upon delivery to Lender of (A) 30 days' advance written notice and (B) all
documents, and completion of all action, required by Lender to maintain the
Security Interest in favor of Lender in the Collateral, free and clear of any
other Security Interest whatsoever except for Permitted Liens and (ii) in the
case of the premises listed on SCHEDULE VI hereto from time to time, Borrower's
Inventory and other Goods
shall be kept separate from the Inventory and other Goods of those Persons
(other than Borrower) using such premises and shall be clearly and conspicuously
designated as being Borrower's sole property (for example, by posting signs or
by affixing Borrower's name on its Inventory and other Goods).
(b) Immediately notify Lender of (i) the occurrence of any event causing
loss or depreciation in value of any of Borrower's Goods in excess, in the
aggregate during any of Borrower's fiscal years, of $40,000, and (ii) the amount
of such loss or depreciation.
(c) Furnish Lender such information concerning Borrower, the Collateral
and the Account Debtors as Lender may from time to time reasonably request.
(d) Defend Borrower's title to the Collateral against all Persons and
against all claims and demands whatsoever.
(e) Do all acts reasonably necessary to maintain, preserve and protect all
Collateral, keep all Collateral in good condition and repair (ordinary wear and
tear excepted), and prevent any waste or unusual or unreasonable depreciation
thereof.
(f) Permit Lender and designees of Lender, from time to time, to inspect
at reasonable times the Collateral, and to, at reasonable times, inspect, audit
and make copies of and extracts from all records and all other papers in the
possession of Borrower and will, upon request of Lender, deliver to Lender all
of such records and papers which pertain to the Collateral and the Account
Debtors.
(g) Upon request of Lender, stamp on its records concerning the Collateral
(and/or enter into its computer records concerning the Collateral), a notation,
in form satisfactory to Lender, of the Security Interest created hereby.
(h) Except for the sale or lease of Inventory in the ordinary course of
its business and except as otherwise permitted by the Secured Credit Agreement,
not sell, lease, assign, license, sublicense, abandon or otherwise transfer, or
create or permit to exist any Security Interest (other than any Permitted Lien)
on any Collateral to or in favor of anyone other than Lender.
(i) At all times keep all Inventory and Equipment insured against loss,
damage, theft and other risks in the manner required by Section 11.4 of the
Secured Credit Agreement (whether or not the Secured Credit Agreement shall be
in effect) and, if Lender so requests, deposit with Lender originals or
certified copies of the relevant policies and certificates of insurance.
(j) Furnish to Lender, in accordance with Section 9.2 of the Secured
Credit Agreement, notice in writing as soon as possible and in any event no
later than 30 days prior to the occurrence from time to time of (i) any change
in the location of Borrower's chief executive office and (ii) any change in the
name of Borrower or the name under or by which it conducts its business, and
take all action required by Lender to maintain and preserve the Security
Interest in favor of Lender in the Collateral, free and clear of any other
Security Interest whatsoever except for Permitted Liens.
(k) Reimburse Lender for all expenses, including attorneys' fees and
legal expenses and expenses of any repairs to realty or other property to which
any Collateral may be affixed or be a part, incurred by Lender in seeking to
collect or enforce any rights under or with respect to the Collateral, in
seeking to collect the Notes and all other Liabilities, and in enforcing its
rights hereunder, together with interest thereon from the date incurred until
reimbursed by Borrower at a rate per annum equal to the default rate specified
in SECTION 11(B) hereof, after notice to Borrower, if any, as required by the
Secured Credit Agreement.
(l) Not sell, assign or license to any third party any of its right, title
or interest in any of the Intellectual Property Collateral and General
Intangibles other than in Borrower's ordinary course of business.
(m) Not, unless Borrower shall either (i) reasonably and in good faith
determine (and notice of such determination shall have been delivered to Lender)
that any of the Patent Collateral is of negligible economic value to Borrower,
or (ii) have a valid business purpose to do otherwise, do any act, or omit to do
any act, whereby any of the Patent Collateral may lapse or become abandoned or
dedicated to the public or unenforceable.
(n) Not, and shall not permit any of its licensees to, unless Borrower
shall either (i) reasonably and in good faith determine (and notice of such
determination shall have been delivered to Lender) that any of the Trademark
Collateral is of negligible economic value to Borrower, or (ii) have a valid
business purpose to do otherwise,
(A) fail to continue to use any of the Trademark Collateral in order
to maintain all of the Trademark Collateral in full force free from any
claim of abandonment for non-use,
(B) fail to maintain as in the past the quality of products and
services offered under all of the Trademark Collateral,
(C) fail to employ all of the Trademark Collateral registered with
any Federal or State or foreign authority with an appropriate notice of
such registration,
(D) adopt or use any other Trademark which is confusingly similar or
a colorable imitation of any of the Trademark Collateral except in
compliance with applicable law,
(E) use any of the Trademark Collateral registered with any Federal
or State or foreign authority except for the uses for which registration or
application for registration of such Trademark Collateral has been made
except in compliance with applicable law, and
(F) do or permit any act or knowingly omit to do any act whereby any
of the Trademark Collateral is reasonably likely to lapse or become invalid
or unenforceable.
(o) Not, unless Borrower shall either (i) reasonably and in good faith
determine (and notice of such determination shall have been delivered to Lender)
that any of the Copyright Collateral or any of the Trade Secrets Collateral is
of negligible economic value to Borrower, or (ii) have a valid business purpose
to do otherwise, do or permit any act or knowingly omit to do any act whereby
any of the Copyright Collateral or any of the Trade Secrets Collateral is
reasonably likely to lapse or become invalid or unenforceable or placed in the
public domain except upon expiration of the end of an unrenewable term of a
registration thereof.
(p) Notify Lender immediately if it knows that any application or
registration relating to any material item of the Intellectual Property
Collateral may become abandoned or dedicated to the public or placed in the
public domain or invalid or unenforceable, 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 Copyright Office or any foreign counterpart thereof or any
court) regarding Borrower's ownership of any of the Intellectual Property
Collateral, its right to register the same or to keep and maintain and enforce
the same.
(q) Not, nor shall any of Borrower's agents, employees, designees or
licensees, file an application for the registration of any Intellectual Property
Collateral with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in any other country or any
political subdivision thereof, unless it promptly informs Lender, and, upon
request of Lender, executes and delivers any and all agreements, instruments,
documents and papers as Lender may reasonably request to evidence Lender's
Security Interest in such Intellectual Property Collateral and the goodwill and
general intangibles of Borrower relating thereto or represented thereby.
(r) Take all necessary steps, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency in any other country or any political subdivision
thereof, to maintain and pursue any application (and to obtain the relevant
registration) filed with respect to, and to maintain any registration of, the
Intellectual Property Collateral, including the filing of applications for
renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings and the payment of fees and taxes
(except to the extent that dedication, abandonment or invalidation is permitted
under the foregoing CLAUSE (M), (N) or (O)).
(s) Contemporaneously herewith, execute and deliver to Lender an Agreement
(Patent), an Agreement (Trademark) and an Agreement (Copyright) in the forms of
EXHIBITS B, C and D hereto, respectively, and shall execute and deliver to
Lender any other document reasonably required to acknowledge or register or
perfect Lender's interest in any part of the Intellectual Property Collateral.
(t) At its sole expense, (i) without any request by Lender, immediately
deliver or cause to be delivered to Lender, in due form for transfer (I.E.,
endorsed in blank or accompanied by duly executed undated blank stock or bond
powers), all certificated Securities, Chattel Paper, Instruments and Documents,
if any, at any time representing all or any of the Collateral, (ii) upon request
of Lender cause Lender's Security Interest hereunder and under the other
Collateral Documents to be at all times duly noted on any certificate of title
issuable with respect to any of the Collateral and forthwith deliver or cause to
be delivered to Lender each such certificate of title, and (iii) execute and
deliver, or cause to be executed and delivered, to Lender, in due form for
filing or recording (and pay the cost of filing or recording the same in all
public offices deemed necessary or advisable by Lender) such assignments
(including, without limitation, assignments of life insurance, if Borrower
elects or is otherwise required to obtain such insurance), security agreements,
mortgages, deeds of trust, pledge agreements, consents, waivers, financing
statements, stock or bond powers, and other documents, and do such other acts
and things, all as may from time to time be necessary or desirable, to the
satisfaction of Lender, to establish and maintain in favor of Lender, a
valid perfected lien on and Security Interest in all assets of Borrower now or
hereafter existing or acquired (free of all other liens, claims and rights of
third parties whatsoever other than Permitted Liens) to secure payment and
performance of the Liabilities.
(u) At Lender's request after the occurrence and during the continuance of
an Event of Default, transfer all or any part of the Collateral, (including,
with respect to any Trademarks, the goodwill associated therewith) into the name
of Lender or its nominee for the benefit of Lender, with or without disclosing
that such Collateral is subject to the Security Interest hereunder.
(v) At all times comply with the requirements of all applicable laws
(including, without limitation, the provisions of the Fair Labor Standards Act),
rules, regulations and orders of every governmental authority, the non-
compliance with which, as Lender determines would be reasonably likely to
materially and adversely affect the value of the Collateral or the worth of the
Collateral as collateral security, taken as a whole.
SECTION 7. RENEWALS, AMENDMENTS AND OTHER SECURITY; PARTIAL RELEASES.
(a) Lender may from time to time, whether before or after any of the
Liabilities shall become due and payable, without notice to Borrower, take any
or all of the following actions (provided that actions taken under clause (v)
may only be taken after an Event of Default has occurred and is continuing): (i)
retain or obtain a Security Interest in any property to secure payment and
performance of any of the Liabilities, (ii) retain or obtain the primary or
secondary liability of any Person, in addition to Borrower, with respect to any
of the Liabilities, (iii) create, extend or renew for any period (whether or not
longer than the original period) or alter or exchange any of the Liabilities or
release or compromise any obligation of any nature of any Person with respect
thereto, (iv) release or fail to perfect its Security Interest in, or surrender,
release or permit any substitution or exchange for, all or any part of any
property securing any of the Liabilities, or create, extend or renew for any
period (whether or not longer than the original period) or release, compromise,
alter or exchange any obligations of any nature of any Person with respect to
any such property, and (v) resort to the Collateral for payment of any of the
Liabilities whether or not it (1) shall have resorted to any other property
securing payment and performance of the Liabilities or (2) shall have proceeded
against any Person primarily or secondarily liable on any of the Liabilities
(all of the actions referred to in preceding CLAUSES (1) and (2) being hereby
expressly waived by Borrower).
(b) No release from the Security Interest created by this Agreement of any
part of the Collateral by Lender shall in any way alter, vary or diminish the
force or effect of or Security Interest created by this Agreement against the
balance or remainder of the Collateral.
SECTION 8. GRANT OF LICENSE TO USE INTANGIBLES. In addition to SECTION
6(U) and solely for the purpose of enabling Lender to exercise rights and
remedies hereunder, after the occurrence and during the continuance of an Event
of Default, Borrower hereby grants to Lender, after an Event of Default has
occurred and is continuing, an irrevocable (so long as any of the Liabilities
remain outstanding and any or all of the Commitments remain in effect),
nonexclusive license (exercisable without payment of royalty or other
compensation to Borrower) to use, assign, license or sublicense any of
Borrower's General Intangibles, now owned or hereafter acquired by Borrower, and
wherever the same may be located, including in such license reasonable access as
to all media in which any of
the licensed items may be recorded or stored and to all computer programs used
for the compilation or printout thereof. No agreements hereafter acquired or
agreed to or entered into by Borrower shall prohibit, restrict or impair the
rights granted hereunder.
SECTION 9. INFORMATION. Lender and any of the officers, employees, agents
or auditors of Lender shall have the right at reasonable intervals after the
date hereof to make reasonable inquiries by mail, telephone, telegraph or
otherwise to any Person with respect to validity and amount or any other matter
(including, without limitation, the assertion by Account Debtors of claims,
offsets and counterclaims) concerning any of the Collateral.
SECTION 10. EVENT OF DEFAULT.
(a) (i) Whenever an Event of Default or Unmatured Insolvency Default
shall be existing, Lender may exercise from time to time any rights and remedies
available to it hereunder, under the Secured Credit Agreement and under the
Uniform Commercial Code as in effect from time to time in Illinois or otherwise
available to it under applicable law. Borrower hereby expressly waives, to the
fullest extent permitted by applicable law, any and all notices, advertisements,
hearings, or process of law in connection with the exercise by Lender of any of
its rights and remedies after an Event of Default or Unmatured Insolvency
Default occurs.
(ii) Borrower agrees, upon the occurrence of an Event of Default or
Unmatured Insolvency Default and upon the request of Lender, to assemble, at
Borrower's expense, all Collateral at a convenient place acceptable to Lender,
in the State where such Collateral is located. ghgf
(iii) To the fullest extent permitted by applicable law, Borrower hereby
waives the right to object to the manner or sufficiency of advertising,
refurbishing of the Collateral, or solicitation of bids in connection with any
sales or other disposition of the Collateral. Any sale by Lender may be made at
any broker's board or public or private sale, with or without notice or
advertisement, for cash or credit, and for present or future delivery. At any
such public or private sale or other disposition of Collateral, Lender may, to
the extent permissible under applicable law, purchase the whole or any part of
any Collateral sold, or may sell or dispose of the Collateral to any other
Person, free from any and all claims of Borrower or of any other Person claiming
by, through, or under Borrower. Borrower hereby expressly waives and releases,
to the fullest extent permitted by applicable law, any right of redemption on
the part of Borrower. If any notification of intended disposition of any of the
Collateral is required by law, such notification, if mailed, shall be deemed
reasonably and properly given if mailed at least five days before such
disposition, postage prepaid, addressed to Borrower either at the address shown
below, or at any other address of Borrower appearing on the records of Lender.
Any proceeds of any Collateral, or of the disposition by Lender of any of the
Collateral (including, without limitation, Benefits to the extent provided in
SECTION 16 hereof), may be applied by Lender to the payment of expenses in
connection with the Collateral, including attorneys' fees and legal expenses,
and any balance of such proceeds may be applied by Lender toward the payment of
such of the Liabilities, and in such order of application, as Lender may from
time to time elect.
(b) Without limiting any other provision of this Agreement, whenever
an Event of Default or Unmatured Insolvency Default shall be existing,
Lender, with or without process of law, may enter upon any premises where
the Collateral or any part thereof may be, and take possession of all or
any part thereof; and Lender may, without Lender being responsible for loss
or damage, hold, store, keep idle, lease, operate or otherwise use or
permit the use of the Collateral or any part thereof for such time and upon
such terms as Lender may deem to be reasonable, or may render all or part
of the Collateral unusable, and may demand, collect and retain all earnings
and all other sums due and to become due in respect of the Collateral from
any Person whomsoever, accounting only for net earnings, if any, arising
from use or from the sale thereof after charging against all receipts from
use or from the sale thereof all costs and expenses of, and damages or
losses by reason of, such use or sale.
(c) Borrower hereby agrees to pay any and all expenses incurred by Lender
in retaking, holding, preparing for sale, selling and the like with regard to
the Collateral, including, without limitation, attorneys' fees incurred by
Lender in connection therewith.
(d) Borrower agrees that in any sale of any of the Collateral, Lender is
authorized to comply with any limitation or restriction in connection with such
sale as counsel may advise Lender is necessary in order to avoid any violation
of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders or purchasers,
require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to Persons
who will represent and agree that they are purchasing for their own account or
investment and not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the sale or of the
purchaser by any governmental or regulatory authority or official, and Borrower
further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall Lender be liable or accountable to Borrower for any discount allowed
by reason of the fact that such Collateral was sold in compliance with any such
limitation or restriction.
(e) If sufficient sums are not realized upon any disposition of the
Collateral to pay all Liabilities and any expenses of such disposition,
including, without limitation, reasonable attorneys' fees, Borrower hereby
promises to pay immediately any resulting deficiency.
(f) No right or remedy herein conferred is intended to be exclusive of any
other right or remedy, but every such right or remedy shall be cumulative and
shall be in addition to every other right or remedy herein conferred, or
conferred upon Lender by any other agreement or instrument or security, or now
or hereafter existing at law or in equity or by statute.
SECTION 11. AUTHORITY OF LENDER. (a) Lender shall have, and be entitled
to exercise, all such powers hereunder as are specifically delegated to Lender
by the terms hereof, together with such powers as are incidental thereto. Lender
may execute any of its duties hereunder by or through agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
such counsel concerning all matters pertaining to its duties hereunder. Neither
Lender nor any director, officer or employee of Lender shall be liable for any
action taken or omitted to be taken by it hereunder or in connection herewith,
except for its own gross negligence or willful misconduct. Borrower agrees to
reimburse Lender, on demand, for all costs and expenses incurred by Lender in
connection with the administration and enforcement of this Agreement (including
costs and expenses incurred by any agent employed by Lender) and agrees to
indemnify (which indemnification shall survive any termination of this
Agreement) and hold harmless Lender (and any such agent) from and against any
and all liability incurred by Lender (or such agent) hereunder
or in connection herewith, unless such liability shall be due to gross
negligence or willful misconduct on the part of Lender or such agent, as the
case may be.
(b) Lender may from time to time, without notice to Borrower, at its
option, perform any obligation to be performed by Borrower hereunder, under the
Secured Credit Agreement or the Related Documents which shall not have been
performed and take any other action which, in its sole discretion, it deems
necessary or desirable for the maintenance or preservation of any of the
Collateral or Lender's Security Interest in the Collateral. All moneys advanced
by Lender in connection with the foregoing shall, whether or not there are then
outstanding any Loans made under the Secured Credit Agreement, bear interest at
the Default Rate (or such lower maximum rate as shall be legal under applicable
law), and shall be repaid together with such interest by Borrower to Lender,
upon Lender's demand, and shall be secured hereby prior to any other
indebtedness or obligation secured hereby, but the making of any such advance by
Lender shall not relieve Borrower of any default hereunder or thereunder.
SECTION 12. TERMINATION. Subject to Section 15(n) hereof, this Agreement
shall terminate when the Commitments shall be terminated and all the Liabilities
have been fully paid and performed, at which time Lender shall reassign and
redeliver (or cause to be reassigned and redelivered) to Borrower, or to such
person as Borrower shall designate, against receipt, such of the Collateral (if
any) as shall not have been sold or otherwise applied by Lender pursuant to the
terms hereof and shall still be held by it hereunder, together with appropriate
instruments of termination, reassignment, and release. Any such reassignment
shall be without recourse upon, or representation or warranty by, Lender and at
the sole cost and expense of Borrower.
SECTION 13. PROTECTION OF INTELLECTUAL PROPERTY COLLATERAL. (a) Borrower
shall have the duty to protect, preserve and maintain all rights in each of the
items of Intellectual Property Collateral, the loss of which is reasonably
likely to have a Material Adverse Effect on Borrower's business, including,
without limitation, the duty to prosecute, the failure of which to prosecute is
reasonably likely to have a Material Adverse Effect, and/or defend against any
and all suits concerning validity, infringement, enforceability, ownership or
dilution or other aspects of the Intellectual Property Collateral, as well as
the duty to register Copyrights, the failure of which to register is likely to
have a Material Adverse Effect on Borrower's business, with the United States
Copyright Office and to make publications of all materials, which have been
registered with the U.S. Copyright Office, with an appropriate copyright notice.
Any expenses incurred in protecting, preserving and maintaining the Intellectual
Property Collateral shall be borne by Borrower. To the maximum extent permitted
by law, after the occurrence of and during the continuance of an Event of
Default, Lender shall have the right, without taking title to any of the
Intellectual Property Collateral, to bring suit, in Lender's name or in
Borrower's name or in both such names, as determined by Lender, to enforce any
or all of the Intellectual Property Collateral or Lender's Security Interest
therein, in which event Borrower shall, at the request of Lender, do any and all
lawful acts and execute any and all proper documents required by Lender in aid
of such enforcement. All costs, expenses and other moneys advanced by Lender in
connection with the foregoing shall be treated as an advance under SECTION 11(B)
hereof, but the making of any such advance by Lender shall not relieve Borrower
of any default hereunder. All monetary recoveries from any such suits instituted
by Lender shall be retained by and owned solely by Lender. In addition, Borrower
shall indemnify (which indemnification shall survive any
termination of this Agreement) and hold harmless Lender from any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including attorneys' fees and legal expenses)
of any kind whatsoever which may be imposed on, incurred by or asserted against
Lender in connection with or in any way arising out of such suits, proceedings
or other actions. Notwithstanding the foregoing, Lender shall have no
obligations or liabilities regarding any or all of the Intellectual Property
Collateral by reason of, or arising out of, this Agreement.
(b) If any Event of Default shall have occurred and be continuing, upon
the written demand of Lender, Borrower shall execute and deliver to Lender an
assignment or assignments of the Intellectual Property Collateral, and such
other documents as are necessary or appropriate to carry out the intent and
purposes of this Agreement along with, in the case of any Trademark, goodwill
and assets relating to the products sold under such Trademark. Borrower agrees
that such an assignment shall be applied to reduce the Liabilities then due only
to the extent that Lender receives cash proceeds in respect of the sale of, or
other realization upon, the Intellectual Property Collateral or licenses; such
cash proceeds to be applied to the payment of expenses incurred in connection
with the Intellectual Property Collateral or licenses, including attorneys' fees
and legal expenses, and any balance of such proceeds shall be applied by Lender
as provided in SECTION 10(A)(III). Without limiting any other rights and
remedies of Lender, within five (5) Business Days of written notice from Lender,
Borrower shall make available to Lender, to the extent within Borrower's power
and authority, such personnel in Borrower's employ on the date of the Event of
Default as Lender may reasonably designate, by name, title or job
responsibility, to permit Borrower to continue, directly or indirectly, to
advertise and operate the business of Borrower under any Trademark or licenses,
such personnel to be available to perform their prior functions on Lender's
behalf and to be compensated by Lender on a per diem, pro-rata basis consistent
with the salary and benefit structure applicable to each as of the date of such
Event of Default.
SECTION 14. SUBMISSION TO JURISDICTION. LENDER MAY ENFORCE ANY CLAIM
ARISING OUT OF THIS AGREEMENT, ANY COLLATERAL OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH, OR ARISING FROM OR RELATED TO ANY CREDIT RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT IN ANY STATE OR FEDERAL COURT HAVING
SUBJECT MATTER JURISDICTION AND LOCATED IN CHICAGO, ILLINOIS. FOR THE PURPOSE OF
ANY ACTION OR PROCEEDING INSTITUTED WITH RESPECT TO ANY SUCH CLAIM, BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND ALSO HAS
IRREVOCABLY DESIGNATED THE PERSON WHOSE NAME AND ADDRESS ARE SET FORTH IN THE
SECURED CREDIT AGREEMENT TO RECEIVE FOR AND ON BEHALF OF BORROWER SERVICE OF
PROCESS IN ILLINOIS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF SAID COURTS BY MAILING A COPY THEREOF, BY REGISTERED MAIL,
POSTAGE PREPAID, TO BORROWER AND AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT
PERMITTED BY LAW, (i) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON IT IN ANY SUCH SUIT, ACTION OR PROCEEDING AND (ii) SHALL BE TAKEN
AND HELD TO BE VALID PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT. NOTHING
HEREIN CONTAINED SHALL AFFECT THE RIGHT OF LENDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR PRECLUDE LENDER FROM BRINGING AN ACTION OR PROCEEDING
IN RESPECT HEREOF IN ANY OTHER COUNTRY, STATE OR PLACE HAVING JURISDICTION OVER
SUCH ACTION. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT LOCATED
IN CHICAGO, ILLINOIS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 15. MISCELLANEOUS PROVISIONS.
(a) Lender and Agent Bank shall be deemed to have exercised reasonable
care in the custody and preservation of any of the Collateral if they take such
action for that purpose as Borrower requests in writing, but failure of Lender
or Agent Bank to comply with any such request shall not of itself be deemed a
failure to exercise reasonable care, and no failure of Lender or Agent Bank to
preserve or protect any rights with respect to the Collateral against prior or
other parties, or to do any act with respect to the preservation of the
Collateral not so requested by Borrower, shall be deemed a failure to exercise
reasonable care in the custody or preservation of such Collateral.
(b) Borrower hereby appoints Lender, with full power of substitution, as
Borrower's attorney-in-fact for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which Lender
may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, Borrower agrees that Lender, shall have the right
and authority: (i) while any Event of Default or Unmatured Insolvency Event
shall exist, to assign, sell, license, sublicense or otherwise dispose of all
right, title and interest of Borrower in and to the Intellectual Property
Collateral, any other General Intangible or any thereof, including, without
limitation, assignments, recordings, registrations and applications therefor in
the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency of the United States, any State thereof
or any other country or political subdivision thereof, and for the purpose of
the recording, registering and filing of, or accomplishing any other formality
with respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable to
effect such purpose; and (ii) to make claim for, and receive and give
acquittance for payment on account of, loss under any insurance policy covering
the Collateral, or any part thereof, and to receive, endorse and collect all
checks, drafts and other orders for the payment of money representing the
proceeds of such insurance.
(c) All notices or other communications hereunder shall be given in the
manner specified under Section 14.3 of the Secured Credit Agreement, whether or
not then in effect.
(d) No delay on the part of Lender in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy.
(e) No amendment to, modification or waiver of, or consent with respect
to, any provision of this Agreement shall in any event be effective unless the
same shall be in writing and signed and delivered by Lender, and then any such
amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(F) THIS AGREEMENT HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW. WHENEVER
POSSIBLE, EACH PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER
AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS
AGREEMENT SHALL BE PROHIBITED BY OR INVALID UNDER SUCH
LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE
REMAINING PROVISIONS OF THIS AGREEMENT. ALL OBLIGATIONS OF BORROWER, ANY OF ITS
SUBSIDIARIES OR ANY RELATED PERSON AND RIGHTS OF LENDER AND ANY OTHER HOLDER OF
A NOTE OR LIABILITY EXPRESSED IN THIS AGREEMENT SHALL BE IN ADDITION TO AND NOT
IN LIMITATION OF THOSE PROVIDED UNDER APPLICABLE LAW OR IN ANY OTHER WRITTEN
INSTRUMENT OR AGREEMENT RELATING TO ANY OF THE LIABILITIES.
(g) The rights and privileges of Lender hereunder shall inure to the
benefit of its successors and assigns. This Agreement shall be binding upon
Borrower and its successors and assigns.
(h) At the option of Lender, this Agreement, or a carbon, photographic or
other reproduction of this Agreement or of any Uniform Commercial Code financing
statement covering the Collateral or any portion thereof, shall be sufficient as
a Uniform Commercial Code financing statement and may be filed as such.
(i) The section headings in this Agreement are inserted for convenience of
reference and shall not be considered a part of this Agreement or used in its
interpretation.
(j) This Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts and each such counterpart shall
for all purposes be deemed an original, but all such counterparts shall together
constitute but one and the same Agreement. Borrower hereby acknowledges receipt
of a true, correct and complete counterpart of this Agreement.
(K) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATED TO
THIS AGREEMENT, ANY COLLATERAL OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING OR ARISING FROM ANY CREDIT RELATIONSHIP EXISTING IN CONNECTION
WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(l) Borrower hereby expressly waives to the fullest extent permitted by
law: (i) notice of the acceptance by Lender of this Agreement, (ii) notice of
the existence or creation or non-payment of all or any of the Liabilities, (iii)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (iv) all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
(m) Subject to the provisions of the Secured Credit Agreement, Lender may,
from time to time, without notice to Borrower, assign or transfer any or all of
the Liabilities or any interest therein; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of this Agreement,
and each and every immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of the interest of
such assignee or transferee in the Liabilities, be entitled to the benefits of
this Agreement to the same extent as if such assignee or transferee were Lender;
PROVIDED, HOWEVER, that Lender shall have an unimpaired right, prior and
superior to that of any such assignee or transferee, to enforce this Agreement,
as to those of the Liabilities which Lender has not assigned or transferred.
(n) Borrower agrees that, if at any time all or any part of any payment
theretofore applied by Lender to any of the Liabilities is or must be rescinded
or returned by Lender for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of Borrower or any of its
Affiliates), such Liabilities shall, for the purposes of this Agreement, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by Lender, and the
Security Interest granted hereunder shall continue to be effective or be
reinstated, as the case may be, as to such Liabilities, all as though such
application by Lender had not been made. Borrower shall get credit for interest
earned by Lender on such amounts.
(o) Lender is the current holder of all Liabilities but, subject to the
Secured Credit Agreement, may in the future transfer, assign or sell certain
Liabilities.
(p) Borrower hereby acknowledges that there are no conditions to the
effectiveness of this Agreement.
(q) If any item of Collateral hereunder also constitutes collateral
granted to Lender under any other mortgage, agreement or instrument, in the
event of any conflict between the provisions under this Agreement and those
under such other mortgage, agreement or instrument relating to such Collateral,
the provision or provisions selected by Lender shall control with respect to
such Collateral.
(r) In case of conflict between any provision of this Agreement and any
provision of the Secured Credit Agreement, the provisions of the Secured Credit
Agreement shall control.
SECTION 16. APPLICATION OF INSURANCE PROCEEDS. Any loss benefits
("BENEFITS") under any of the insurance policies maintained by Borrower pursuant
to SECTION 6(I) hereof shall be applied as follows:
(a) If no Event of Default has occurred and is continuing, and the amount
of such Benefits, together with all other Benefits previously or
contemporaneously paid to Lender hereunder, is less than $25,000, then such
Benefits shall be paid into the Master Account for application pursuant to the
Secured Credit Agreement.
(b) If no Event of Default has occurred and is continuing and the amount
of such Benefits, together with all other Benefits previously or
contemporaneously paid to Lender hereunder, is $25,000 or greater, then such
Benefits, together with any interest thereon, shall be held by Lender as
additional Collateral hereunder, but, so long as no Event of Default has
occurred and is continuing, such Benefits may, at Borrower's discretion, be
either:
(i) applied by Lender to the repayment of the Loans in the order
of application set forth in Section 7.3 of the Secured Credit Agreement,
subject to all of the terms and conditions of the Secured Credit Agreement,
and to the extent such repayment reduces the principal balance of the
Loans, the Commitments shall be correspondingly reduced, or
(ii) at any time, but subject to the following PARAGRAPH (C),
used by Borrower to repair or replace the damaged or destroyed Collateral
giving rise to such Benefits.
(c) Lender shall have no obligation to release any Benefits to Borrower for
Borrower's use in repairing or replacing damaged or destroyed Collateral unless
Borrower satisfies such conditions as Lender reasonably may impose upon the
release of Benefits and as are customary in the financing of repairs or
purchases of the type proposed by Borrower, including without limitation, the
condition that the available amount of such Benefits shall be sufficient to
complete such repairs or replacements, or Lender shall have received from
Borrower a cash deposit (or Borrower shall maintain borrowing availability)
equal to the excess of the estimated cost of such repair or replacement over the
available amount of such Benefits.
(d) If an Event of Default or an Unmatured Insolvency Default occurs or is
continuing while Lender is holding any Benefits pursuant to this SECTION 16,
Lender may apply such Benefits to the repayment of the Loans in the order of
application set forth in Section 7.3 of the Secured Credit Agreement, subject to
all of the terms and conditions of the Secured Credit Agreement, and to the
extent such repayment reduces the principal balance of the Loans, the
Commitments shall be correspondingly reduced.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
GENERAL MANUFACTURED HOUSING, INC., a
Georgia corporation
Address:
0000 Xxxxxxxxxx Xxxxxxxxx By: /S/ XXXX X. XXXXX
Xxxxxxxx, Xxxxxxx 00000 Name: Xxxx X. Xxxxx
Its: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
FIRST SOURCE FINANCIAL LLP, an Illinois
registered limited liability partnership
By: First Source Financial, Inc., a
Delaware corporation, its Agent/Manager
ADDRESS:
0000 Xxxx Xxxx Xxxx By: /S/ XXXXXX X. XXXXXXXXXX, XX.
5th Floor Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Rolling Meadows, IL 60008 Its: Vice President
Telecopy: (000) 000-0000/7911
Telephone: (000) 000-0000
On and after January 20, 1996:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/7911
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
I, Xxxxx X. Xxxxxxxx, a notary public in and for said County, in the State
of aforesaid, DO HEREBY CERTIFY that Xxxx X. Xxxxx, personally known to me to be
President of GENERAL MANUFACTURED HOUSING, INC., a Georgia corporation, and
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he/she signed and delivered the said instrument as such officer of said
corporation, pursuant to authority, given by the Board of Directors of said
corporation as such person's free and voluntary act, and as the free and
voluntary act and deed of said corporation, for the uses and purposes therein
set forth.
GIVEN under my hand and notarial seal this 21st day of December __, 1995.
/S/ Xxxxx X. Xxxxxxxx
---------------------------------
Notary Public
My Commission Expires:
stamped
--------------------------
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
I, Xxxxx X. Xxxxxxxx, a notary public in and for said County, in the State
of aforesaid, DO HEREBY CERTIFY that Xxxxxx X. Xxxxxxxxxx, Xx. personally known
to me to be a Vice President of FIRST SOURCE FINANCIAL, INC., a Delaware
corporation, the Agent/Manager of First Source Financial LLP, an Illinois
registered limited liability partnership, and personally known to me to be the
same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he/she signed and delivered
the said instrument as such officer of said corporation, pursuant to authority,
given by the Board of Directors of said corporation as such person's free and
voluntary act, and as the free and voluntary act and deed of said corporation,
for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 21st day of December __, 1995.
/S/ Xxxxx X. Xxxxxxxx
------------------------------
Notary Public
My Commission Expires:
STAMPED
SCHEDULE I
to
Security Agreement
Item A. TRADEMARKS
REGISTERED TRADEMARKS
* COUNTRY TRADEMARK REGISTRATION NO. REGISTRATION DATE
State of "Jaguar Homes 1994 S-13433 03/11/94
Georgia . . . the Year of the
Cat"
PENDING TRADEMARK APPLICATIONS
* COUNTRY TRADEMARK SERIAL NO. FILING DATE
NONE
TRADEMARK APPLICATIONS IN PREPARATION
Expected Products/
* COUNTRY TRADEMARK DOCKET NO. FILING DATE SERVICES
NONE
Item B. TRADEMARK LICENSES
* Country or Effective Expiration
TERRITORY TRADEMARK LICENSOR LICENSEE DATE DATE
NONE
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE II
to
Security Agreement
Item A. PATENTS
ISSUED PATENTS
* COUNTRY PATENT NO. ISSUE DATE INVENTOR(S) TITLE
NONE
PENDING PATENT APPLICATIONS
*COUNTRY SERIAL NO. FILING DATE INVENTOR(S) TITLE
NONE
PATENT APPLICATIONS IN PREPARATION
Expected
*COUNTRY DOCKET NO. FILING DATE INVENTOR(S) TITLE
NONE
Item B. PATENT LICENSES
*Country or Effective Expiration Subject
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
NONE
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE III
to
Security Agreement
Item A. COPYRIGHTS/MASK WORKS
REGISTERED COPYRIGHTS/MASK WORKS
* COUNTRY REGISTRATION NO. REGISTRATION DATE AUTHOR(S) TITLE
NONE
COPYRIGHT/MASK WORK PENDING PATENT APPLICATIONS
*COUNTRY SERIAL NO. FILING DATE AUTHOR(S) TITLE
NONE
COPYRIGHT/MASK WORK REGISTRATION APPLICATIONS IN PREPARATION
Expected
*COUNTRY DOCKET NO. FILING DATE AUTHOR(S) TITLE
NONE
Item B. COPYRIGHT/MASK WORK LICENSES
*Country or Effective Expiration Subject
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
NONE
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE IV
to
Security Agreement
TRADE SECRET OR KNOW-HOW LICENSES
Country or Effective Expiration Subject
*TERRITORY LICENSOR LICENSEE DATE DATE MATTER
NONE
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
SCHEDULE V
to
Security Agreement
LOCATIONS OF COLLATERAL
Plant 1 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000
Plant 2 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000
Plant 3 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000
Plant 4 0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
Vacant Lot Adjacent to Plant 4
Plant 5 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, XX 00000
Airplane Hangar at Waycross Xxxx County Airport
LOCATION OF CHIEF EXECUTIVE OFFICE
General Manufactured Housing, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
SCHEDULE VI
to
Security Agreement
THIRD PARTY LOCATIONS OF BORROWER'S GOODS
Borrower may from time to time have property in the following states as
a result of fulfilling its obligations under certain repurchase agreements:
Alabama
Florida
Georgia
Louisiana
Mississippi
North Carolina
Oklahoma
South Carolina
Tennessee
Texas
Virginia
SCHEDULE VII
to
Security Agreement
LEGAL DESCRIPTIONS
EXHIBIT A
LANDLORD'S CONSENT AND ESTOPPEL
1. The undersigned ("Lessor") is the lessor or sublessor under a lease or
sublease, under which _________ ________________________________, is the lessee
or sublessee ("Lessee") of the premises covered thereby (the
"Premises"). A true and correct copy of such lease or sublease (including all
extensions, amendments and renewals thereto) is attached as EXHIBIT A (the
"Lease").
2. In connection with certain financing arrangements (the "Financing
Arrangements") from time to time entered into between Lessee and First Source
Financial LLP ("First Source"), Lessee will (i) grant First Source a first lien
on its interest under the Lease (the "Mortgage") and (ii) grant First Source a
security interest in, among other things, all existing and after-acquired
furniture, fixtures, equipment, machinery, inventory and tangible property owned
by Lessee (the "Property").
3. Lessor consents to the Mortgage, and agrees that if First Source
exercises any of its rights under the Mortgage, Lessor shall recognize First
Source (or any purchaser at a foreclosure sale or any other successor or
assignee of First Source) as the lessee under the Lease, entitled to all of the
benefits thereof.
4. Lessor disclaims and releases any interest in or to the Property
(including rights of levy or distraint for rent). Lessor agrees that none of the
Property shall be considered fixtures or a part of the Premises.
5. If First Source provides written notice to Lessor that Lessee has
defaulted on its obligations to First Source under the Financing Arrangements,
Lessor shall permit First Source to enter the Premises and take possession of,
use, remove, sell (including auction sales), transfer or otherwise dispose of
all or any part of the Property.
6. Lessor represents, warrants, certifies to and covenants and agrees with
First Source and its successors and assigns that on the date hereof: (a) the
Lease is unmodified and in full force and effect and no default exists
thereunder; (b) the Lease represents the entire agreement between the parties
with respect to the Premises; (c) the expiration date of the Lease is
___________________________; (d) monthly rent due under the Lease is
$___________ and has been paid through ; (e) no rent, other than for the current
month, has been paid in advance; (f) the amount of the security deposit
presently held by Lessor is $ ____________; (g) all other charges due under the
Lease have been paid through _____________; (h) neither Lessor nor Lessee has
commenced any action or given or received any notice with respect to termination
of the Lease and (i) the record owner of the Premises is ___________________,
with an address at __________________________________.
7. Lessor agrees to provide written notice to First Source of any default
by Lessee under the Lease. Such notice shall describe the claimed default in
reasonable detail, including, without limitation, the provisions of the Lease
which have been violated. Lessor further agrees that: (a) First Source, at its
option without any obligation to do so, shall have the right to cure (i) any
payment default under the Lease within 10 days after receipt of notice of such
default or (ii) any other default under the Lease within 30 days after receipt
of notice of such default; (b) Lessor shall not exercise any rights or remedies
it might have under the Lease as a result of any such default unless First
Source does not cure such default within the applicable time period set forth
above; and (c) if First Source cures such default, Lessor shall accept such cure
thereby eliminating such default.
8. Lessor agrees that if the Lease is terminated for any reason other than
by expiration of its term, including but not limited to termination due to an
uncured or incurable default, Lessor shall, at the
option of First Source, exercised with 30 days after Lessor notifies First
Source of such termination, lease the Premises to First Source pursuant to a
lease containing the same terms and conditions as provided in the Lease.
9. Lessor agrees that First Source shall have the right to exercise any
option to extend, expand, purchase or renew contained in the Lease on behalf of
Lessee, and in such event Lessor shall recognize First Source as the Lessee,
entitled to all of the benefits thereof. If any such option is not exercised by
Lessee, Lessor will notify First Source, and First Source will have 10 days
after such notice to exercise such option such exercise to be binding on Lessee
and Lessor.
10. Lessor agrees that it shall not enter in to any amendment of the Lease
without first obtaining First Source's written consent to such amendment. Lessor
further agrees that any such amendment made without Landlord's prior written
consent shall be null and void.
11. Notices shall be forwarded by mail and shall be deemed to have been
given three days after the date sent if sent to the addresses listed below by
registered or certified mail, postage prepaid.
If to First Source: If to Lessor:
First Source Financial LLP _________________________________
c/o First Source Financial, Inc. _________________________________
0000 Xxxx Xxxx Xxxx _________________________________
5th Floor _________________________________
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Finance Division
or in the case of either party, at such address as such party may, by written
notice to the other party so designate.
12. This Agreement shall be binding upon Lessor and its successors and
assigns and shall inure to the benefit of First Source, other lenders under the
Financing Arrangements and their respective successors and assigns.
Dated: ______________, 1995 LESSOR:
______________________________
By:___________________________
Title:________________________
EXHIBIT A
TRUE AND CORRECT COPY OF LEASE
Please see attached.
[TO BE PROVIDED BY LESSOR]
Exhibit B
to
Security Agreement
AGREEMENT
(Patent)
THIS AGREEMENT (PATENT), dated as of ____________, 199_ (this "AGREEMENT"),
between ___________________, a ________ corporation ("BORROWER") and FIRST
SOURCE FINANCIAL LLP, an Illinois registered limited liability partnership
("Lender");
W I T N E S S E T H:
WHEREAS, pursuant to a Secured Credit Agreement of even date herewith
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURED CREDIT AGREEMENT"), between Borrower and
Lender, Lender has extended Commitments to make Loans to Borrower; and
WHEREAS, in connection with the Secured Credit Agreement, Borrower has
executed and delivered a Security Agreement, dated as of the date hereof
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURITY AGREEMENT"); and
WHEREAS, as a condition precedent to the making of the initial Loans under
the Secured Credit Agreement, Borrower is required to execute and deliver this
Agreement and to grant to Lender a continuing security interest in all of the
Patent Collateral (as defined below) to secure all Liabilities; and
WHEREAS, Borrower has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce Lender to make Loans (including
the initial Loans) to Borrower pursuant to the Secured Credit Agreement,
Borrower agrees, for the benefit of Lender, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided or provided by reference in the Security
Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to secure all of
the Liabilities, Borrower does hereby mortgage, pledge and assign to Lender, and
grant to Lender a continuing security interest in, all of the following property
(the "PATENT COLLATERAL"), whether now or hereafter owned, acquired or existing:
(a) all letters patent and applications for letters patent throughout
the world, including all patent applications in preparation for filing
anywhere in the world and including each patent and patent application
referred to in ITEM A of ATTACHMENT 1 hereto;
(b) all patent licenses, including each patent license referred to in
ITEM B of ATTACHMENT 1 hereto;
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
the foregoing CLAUSES (A) and B; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the right
to xxx third parties for past, present or future infringements of any
patent or patent application, including any patent or patent application
referred to in ITEM A of ATTACHMENT 1 hereto, and for breach or enforcement
of any patent license, including any patent license referred to in ITEM B
of ATTACHMENT 1 hereto, and all rights corresponding thereto throughout the
world.
SECTION 3. SECURITY AGREEMENT. This Agreement has been executed and
delivered by Borrower for the purpose of registering the security interest of
Lender in the Patent Collateral with the United States Patent and Trademark
Office and corresponding offices in other countries of the world. The security
interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to Lender under the Security
Agreement. The Security Agreement (and all rights and remedies of Lender
thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4. RELEASE OF SECURITY INTEREST. Upon payment in full of all
Liabilities and the termination of all Commitments, Lender shall, at Borrower's
expense, execute and deliver to Borrower all instruments and other documents as
may be necessary or proper to release the lien on and security interest in the
Patent Collateral which has been granted hereunder.
SECTION 5. ACKNOWLEDGMENT. Borrower does hereby further acknowledge and
affirm that the rights and remedies of Lender with respect to the security
interest in the Patent Collateral granted hereby are more fully set forth in the
Security Agreement, the terms and provisions of which (including the remedies
provided for therein) are incorporated by reference herein as if fully set forth
herein.
SECTION 6. RELATED DOCUMENT, ETC. This Agreement is a Related Document
executed pursuant to the Secured Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions of the Secured Credit
Agreement.
SECTION 7. COUNTERPARTS. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
___________________, a ________
corporation
By:_____________________________________
Name Printed:___________________________
Its:____________________________________
________________________________________
________________________________________
Attention:______________________________
Telecopy:_______________________________
Telex: ______ (Answerback: ____________)
Telephone:______________________________
FIRST SOURCE FINANCIAL LLP, an Illinois
registered limited liability partnership
By: First Source Financial, Inc.,
a Delaware corporation, its Agent/
Manager
By: _____________________________
Name: _____________________________
Its: _____________________________
Address:
0000 Xxxx Xxxx Xxxx
0xx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
_____________ of said corporation, pursuant to authority, given by the Board of
Directors of said corporation as such person's free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
_____________ of said corporation, pursuant to authority, given by the Board of
Directors of said corporation as such person's free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
ATTACHMENT 1
to
Agreement
(Patent)
Item A. PATENTS
ISSUED PATENTS
*Country PATENT NO. ISSUE DATE INVENTOR(S) TITLE
PENDING PATENT APPLICATIONS
*COUNTRY SERIAL NO. FILING DATE INVENTOR(S) TITLE
PATENT APPLICATIONS IN PREPARATION
Expected
*COUNTRY DOCKET NO. FILING DATE INVENTOR(S) TITLE
Item B. PATENT LICENSES
*Country or Effective Expiration Subject
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
* List items related to the United States first for ease of recordation. List
items related to other countries next, grouped by country and in alphabetical
order by country name.
EXHIBIT C
to
Security Agreement
AGREEMENT
(Trademark)
THIS AGREEMENT (TRADEMARK), dated as of ____________, 199_ (this
"AGREEMENT"), between ___________________, a ________ corporation ("BORROWER"),
and FIRST SOURCE FINANCIAL LLP, an Illinois registered limited liability
partnership ("Lender");
W I T N E S S E T H:
WHEREAS, pursuant to a Secured Credit Agreement of even date herewith
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURED CREDIT AGREEMENT"), between Borrower and
Lender, Lender has extended Commitments to make Loans to Borrower; and
WHEREAS, in connection with the Secured Credit Agreement, Borrower has
executed and delivered a Security Agreement, dated as of the date hereof
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURITY AGREEMENT"); and
WHEREAS, as a condition precedent to the making of the initial Loans under
the Secured Credit Agreement, Borrower is required to execute and deliver this
Agreement and to grant to Lender a continuing security interest in all of the
Trademark Collateral (as defined below) to secure all Liabilities; and
WHEREAS, Borrower has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce Lender to make Loans (including
the initial Loans) to Borrower pursuant to the Secured Credit Agreement,
Borrower agrees, for the benefit of Lender, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided or provided by reference in the Security
Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to secure all of
the Liabilities, Borrower does hereby mortgage, pledge and assign to Lender, and
grant to Lender a continuing security interest in, all of the following property
(the "TRADEMARK COLLATERAL"), whether now or hereafter owned, acquired or
existing:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade dress, service marks,
certification marks, collective marks, logos, other sources of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (each of the
foregoing items in this CLAUSE (A) being called a "TRADEMARK"), now
existing anywhere in the world or hereafter adopted or acquired, whether
currently in use or not, all registrations and recordings thereof and all
applications in connection therewith, whether pending or in preparation for
filing, including registrations, recordings and applications in the United
States Patent and Trademark
Office or in any office or agency of the United States of America or any
State thereof or any foreign country, including those referred to in ITEM A
of ATTACHMENT 1 hereto;
(b) all Trademark licenses, including each Trademark license referred
to in ITEM B of ATTACHMENT 1 hereto;
(c) all reissues, extensions or renewals of any of the items
described in CLAUSES (A) and (B);
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in CLAUSES (A) and (B); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by Borrower against third parties for past, present or
future infringement or dilution of any Trademark, Trademark registration,
or Trademark license, including any Trademark, Trademark registration or
Trademark license referred to in ITEM A and ITEM B of ATTACHMENT 1 hereto,
or for any injury to the goodwill associated with the use of any Trademark
or for breach or enforcement of any Trademark license.
SECTION 3. SECURITY AGREEMENT. This Agreement has been executed and
delivered by Borrower for the purpose of registering the security interest of
Lender in the Trademark Collateral with the United States Patent and Trademark
Office and corresponding offices in other countries of the world. The security
interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to Lender under the Security
Agreement. The Security Agreement (and all rights and remedies of Lender
thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4. RELEASE OF SECURITY INTEREST. Upon payment in full of all
Liabilities and the termination of all Commitments, Lender shall, at Borrower's
expense, execute and deliver to Borrower all instruments and other documents as
may be necessary or proper to release the lien on and security interest in the
Trademark Collateral which has been granted hereunder.
SECTION 5. ACKNOWLEDGMENT. Borrower does hereby further acknowledge and
affirm that the rights and remedies of Lender with respect to the security
interest in the Trademark Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which (including the
remedies provided for therein) are incorporated by reference herein as if fully
set forth herein.
SECTION 6. RELATED DOCUMENT, ETC. This Agreement is a Related Document
executed pursuant to the Secured Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in accordance
with the terms and provisions of the Secured Credit Agreement.
SECTION 7. COUNTERPARTS. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
______________________, a _______
corporation
By:___________________________________
Name Printed:_________________________
Its:__________________________________
______________________________________
______________________________________
Attention:____________________________
______________________________________
Telecopy:_____________________________
Telex:_______ (Answerback:_______)
Telephone:____________________________
FIRST SOURCE FINANCIAL LLP, an
Illinois registered limited liability
partnership
By: First Source Financial, Inc.,
a Delaware corporation, its Agent/
Manager
By:_______________________________
Name:_____________________________
Its:______________________________
Address:
0000 Xxxx Xxxx Xxxx
0xx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that he/she signed and
delivered the said instrument as _____________ of said corporation, pursuant to
authority, given by the Board of Directors of said corporation as such person's
free and voluntary act, and as the free and voluntary act and deed of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
_____________ of said corporation, pursuant to authority, given by the Board of
Directors of said corporation as such person's free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
ATTACHMENT 1
to
Agreement
(Trademark)
Item A. TRADEMARKS
REGISTERED TRADEMARKS
* COUNTRY TRADEMARK REGISTRATION NO. REGISTRATION DATE
PENDING TRADEMARK APPLICATIONS
* COUNTRY TRADEMARK SERIAL NO. FILING DATE
TRADEMARK APPLICATIONS IN PREPARATION
Expected Products/
* COUNTRY TRADEMARK DOCKET NO. FILING DATE SERVICES
Item B. TRADEMARK LICENSES
* Country or Effective Expiration
TERRITORY TRADEMARK LICENSOR LICENSEE DATE DATE
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
Exhibit D
to
Security Agreement
AGREEMENT
(Copyright)
THIS AGREEMENT (COPYRIGHT), dated as of ____________, 199_ (this
"AGREEMENT"), between ___________________, a ________ corporation ("BORROWER"),
and FIRST SOURCE FINANCIAL LLP, an Illinois registered limited liability
partnership ("Lender");
W I T N E S S E T H:
WHEREAS, pursuant to a Secured Credit Agreement of even date herewith
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURED CREDIT AGREEMENT"), between Borrower and
Lender, Lender has extended Commitments to make Loans to Borrower; and
WHEREAS, in connection with the Secured Credit Agreement, Borrower has
executed and delivered a Security Agreement, dated as of the date hereof
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "SECURITY AGREEMENT"); and
WHEREAS, as a condition precedent to the making of the initial Loans under
the Secured Credit Agreement, Borrower is required to execute and deliver this
Agreement and to grant to Lender a continuing security interest in all of the
Copyright Collateral (as defined below) to secure all Liabilities; and
WHEREAS, Borrower has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce Lender to make Loans (including
the initial Loans) to Borrower pursuant to the Secured Credit Agreement,
Borrower agrees, for the benefit of Lender, as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided or provided by reference in the Security
Agreement.
SECTION 2. GRANT OF SECURITY INTEREST. For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to secure all of
the Liabilities, Borrower does hereby mortgage, pledge and assign to Lender, and
grant to Lender a continuing security interest in, all of the following property
(the "COPYRIGHT COLLATERAL"), whether now or hereafter owned, acquired or
existing, being all copyrights and all semiconductor chip product mask works of
Borrower, whether statutory or common law, registered or unregistered, now or
hereafter in force throughout the world, including, without limitation, all of
Borrower's right, title and interest in and to all copyrights and mask works
registered in the United States Copyright Office or anywhere else in the world
and also including, without limitation, the copyrights and mask works referred
to in ITEM A of ATTACHMENT 1 hereto, and all applications for registration
thereof, whether pending or in preparation, all copyright and mask work
licenses, including each copyright and mask work license referred to in ITEM B
of ATTACHMENT 1 attached hereto, the right to xxx for past, present and future
infringements of any thereof, all rights corresponding thereto throughout the
world, all extensions and renewals of any thereof and all proceeds of the
foregoing, including, without limitation, licenses, royalties, income, payments,
claims, damages and proceeds of suit.
SECTION 3. SECURITY AGREEMENT. This Agreement has been executed and
delivered by Borrower for the purpose of registering the security interest
of Lender in the Copyright Collateral with the United States Copyright Office
and corresponding offices in other countries of the world. The security interest
granted hereby has been granted as a supplement to, and not in limitation of,
the security interest granted to Lender under the Security Agreement. The
Security Agreement (and all rights and remedies of Lender thereunder) shall
remain in full force and effect in accordance with its terms.
SECTION 4. RELEASE OF SECURITY INTEREST. Upon payment in full of all
Liabilities and the termination of all Commitments, Lender shall, at Borrower's
expense, execute and deliver to Borrower all instruments and other documents as
may be necessary or proper to release the lien on and security interest in the
Copyright Collateral which has been granted hereunder.
SECTION 5. ACKNOWLEDGMENT. Borrower does hereby further acknowledge and
affirm that the rights and remedies of Lender with respect to the security
interest in the Copyright Collateral granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which (including the
remedies provided for therein) are incorporated by reference herein as if fully
set forth herein.
SECTION 6. RELATED DOCUMENT, ETC. This Agreement is a Related Document
executed pursuant to the Secured Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in accordance
with the terms and provisions of the Secured Credit Agreement.
SECTION 7. COUNTERPARTS. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
____________________, a ________
corporation
By:__________________________________
Name Printed:________________________
Its:_________________________________
_____________________________________
_____________________________________
Attention:___________________________
Telecopy:____________________________
Telex:_ (Answerback:________________)
Telephone:___________________________
FIRST SOURCE FINANCIAL LLP, an
Illinois registered limited
liability partnership
By: First Source Financial, Inc.,
a Delaware corporation, its Agent/
Manager
By:______________________________
Name:____________________________
Its:_____________________________
Address:
0000 Xxxx Xxxx Xxxx
0xx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
_____________ of said corporation, pursuant to authority, given by the Board of
Directors of said corporation as such person's free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, _______________________, a notary public in and for said County, in the
State of aforesaid, DO HEREBY CERTIFY that ________________________ personally
known to me to be a ___________________________ of ____________________, a
___________ corporation, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
_____________ of said corporation, pursuant to authority, given by the Board of
Directors of said corporation as such person's free and voluntary act, and as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _________, 199_.
__________________________________
Notary Public
My Commission Expires:
___________________________
ATTACHMENT 1
to
Agreement
(Copyright)
Item A. COPYRIGHTS/MASK WORKS
REGISTERED COPYRIGHTS/MASK WORKS
* COUNTRY REGISTRATION NO. REGISTRATION DATE AUTHOR(S) TITLE
COPYRIGHT/MASK WORK PENDING REGISTRATION APPLICATIONS
*COUNTRY SERIAL NO. FILING DATE AUTHOR(S) TITLE
COPYRIGHT/MASK WORK REGISTRATION APPLICATIONS IN PREPARATION
Expected
*COUNTRY DOCKET NO. FILING DATE AUTHOR(S) TITLE
Item B. COPYRIGHT/MASK WORK LICENSES
*Country or Effective Expiration Subject
TERRITORY LICENSOR LICENSEE DATE DATE MATTER
* List items related to the United States first for ease of recordation. List
items related to other countries next, grouped by country and in
alphabetical order by country name.
