EXHIBIT 10.11
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("AGREEMENT") dated April 1, 2003, is made and
entered into on the terms and conditions hereinafter set forth, by and between
GUIDELINE RESEARCH CORP., a New York corporation, TABLINE DATA SERVICES, INC., a
New York corporation, GUIDELINE/CHICAGO, INC., an Illinois corporation, ADVANCED
ANALYTICS, INC., a New York corporation, and GUIDELINE CONSULTING CORP., a New
York corporation (collectively, "Guarantors"), and PETRA MEZZANINE FUND, L.P., a
Delaware limited partnership ("LENDER").
RECITALS:
1. Pursuant to a Loan Agreement of even date herewith, by and between
Lender and FIND/SVP, INC., a New York corporation ("BORROWER") (together with
any and all amendments, modifications, supplements, extensions, renewals,
substitutions and/or replacements thereof, herein referred to as the "LOAN
AGREEMENT"; capitalized terms used but not otherwise defined herein shall have
the same meanings as in the Loan Agreement), Lender has agreed to make a term
loan in the original principal amount of Three Million and No/100ths Dollars
($3,000,000.00) (the "LOAN") to Borrower.
2. The Loan is evidenced by a Promissory Note of even date with the Loan
Agreement, in the Loan amount, made and executed by Borrower, payable to the
order of Lender (together with any and all amendments, modifications,
supplements, extensions, renewals, substitutions and/or replacements thereof,
herein referred to as the "NOTE").
3. As a condition to the making of the Loan, Lender has required that
Guarantors enter into that certain Guaranty Agreement of even date herewith (the
"GUARANTY") and grant to Lender a security interest in certain collateral more
particularly described below, which Guarantors have agreed to do as hereinafter
set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. GRANT OF SECURITY INTEREST. Guarantors hereby grant to Lender a
security interest in the following described property and any and all proceeds
and products thereof and accessions thereto (collectively the "COLLATERAL"):
(a) EQUIPMENT. All equipment of Guarantors of any kind and
description, whether now owned or hereafter acquired and wherever located,
together with all parts, accessories and attachments and all replacements
thereof and additions thereto;
(b) INVENTORY, ACCOUNTS, CONTRACT RIGHTS, CHATTEL PAPER AND GENERAL
INTANGIBLES. All of Guarantors' inventory, whether held for lease or sale,
or furnished or to be furnished under contracts of service, and any
agreements for lease of same and rentals therefrom, and all of Guarantors'
accounts, accounts receivable, contract rights, chattel paper and general
intangibles, whether now in existence or owned or hereafter arising or
acquired, entered into or created, and wherever located;
(c) INVESTMENT PROPERTY. All of Guarantors' investment property,
whether now in existence or owned or hereafter arising or acquired,
entered into or created, and wherever located;
(d) TRADEMARKS, ETC. All trademarks and service marks now held or
hereafter acquired by Guarantors, both those that are registered with the
United States Patent and Trademark Office and any unregistered marks used
by Guarantors in the United States, and trade dress, including logos and
designs, in connection with which any such marks are used, together with
all registrations regarding such marks and the rights to renewals thereof,
and the goodwill of the business of Guarantors symbolized by such marks;
(e) COPYRIGHTS. All copyrights now held or hereafter acquired by
Guarantors and any applications for U.S. copyrights hereafter made by
Guarantors; and
(f) PROPRIETARY INFORMATION, COMPUTER DATA, ETC. All proprietary
information and trade secrets of Guarantors with respect to Guarantors'
business and all of Guarantors' computer programs and the information
contained therein and all intellectual property rights with respect
thereto.
2. SECURED INDEBTEDNESS. This Agreement secures the full and prompt
payment and performance of (a) the indebtedness and other obligations of
Borrower and Guarantors to Lender pursuant to the Loan Agreement, the Note and
the other Loan Documents, (b) the obligations of Guarantors pursuant to the
Guaranty, (c) any and all other indebtedness and other obligations of Borrower
or Guarantors to Lender, direct or contingent (including but not limited to
obligations incurred as indorser, guarantor or surety), however evidenced or
denominated, and however and whenever incurred, including but not limited to
indebtedness incurred pursuant to any present or future commitment of Lender to
Borrower or Guarantors, and (d) all future advances made by Lender for taxes,
levies, insurance and preservation of the Collateral and all attorney's fees,
court costs and expenses of whatever kind incident to the collection of any of
said indebtedness or other obligations and the enforcement and protection of the
security interest created hereby.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF GUARANTORS. Guarantors
represent, warrant and agree as follows:
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(a) The location of Guarantors' chief executive offices and other
places of business, and the locations of all tangible Collateral and of
all records concerning the Collateral, are identified on attached SCHEDULE
3(a). Except as set forth on SCHEDULE 3(a), during the five (5) years
preceding the date of this Agreement, Guarantors have not had any other
place of business or location of assets. Guarantors will promptly notify
Lender, in writing, of any new place or places of business and of any
change in the location of the Collateral or any records pertaining
thereto.
(b) Guarantors are the owners of the Collateral free and clear of
any Liens other than Permitted Liens. Guarantors will defend the
Collateral against the claims and demands of all persons other than those
in respect of Permitted Liens.
(c) Guarantors will at all times keep the Collateral insured against
all reasonably insurable hazards in amounts equal to the full insurable
value of the Collateral. Such insurance shall be in such companies as are
reasonably acceptable to Lender, with provisions reasonably satisfactory
to Lender for payment of all losses thereunder to Lender as its interests
appear. If required by Lender, Guarantors shall deposit the policies (or
duplicate originals of such policies) with Lender. Any money received by
Lender under said policies may be applied to the payment of any
indebtedness or obligation secured hereby, if then due and payable; or at
Lender's option may be delivered by Lender to Guarantors for the purpose
of repairing or restoring the Collateral. Upon an Event of Default,
Guarantors shall assign to Lender all right to receive proceeds of
insurance not exceeding the amounts secured hereby, shall direct any
insurer to pay all proceeds directly to Lender, and shall appoint Lender
Guarantors' attorney in fact to endorse any draft or check made payable to
Guarantors in order to collect the benefits of such insurance. If
Guarantors fail to keep the Collateral insured as required by Lender,
Lender shall have the right to obtain such insurance at Guarantors'
expense and add the cost thereof to the other amounts secured hereby.
(d) Guarantors shall, and shall cause each of their Subsidiaries to,
at their sole cost and expense, execute and deliver to Lender all such
further documents, instruments and agreements and perform all such other
acts that reasonably may be required in the opinion of Lender to enable
Lender to exercise and enforce its rights as the secured party under this
Agreement and the other Security Documents and to carry out the provisions
or effectuate the purposes of this Agreement and the other Security
Documents. To the extent permitted by applicable law, Guarantors hereby
authorize Lender to file financing statements and continuation statements
with respect to the security interests granted or assigned under this
Agreement and the other Security Documents, to execute such financing
statements and continuation statements on behalf of the Guarantors and
their Subsidiaries and to do all other things it deems appropriate to
perfect and continue perfection of the security interests created hereby
and to protect the Collateral. Lender shall furnish to Guarantors copies
of all such financing statements and continuation statements filed by
Lender pursuant to this SUBSECTION 3(d).
4. SPECIAL AGREEMENTS WITH RESPECT TO TANGIBLE COLLATERAL. Guarantors
additionally agree and warrant as follows:
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(a) Guarantors will not permit any of the Collateral to be removed
from the location(s) specified herein, except for temporary periods in the
normal and customary use thereof, without the prior written consent of
Lender, and will permit Lender to inspect the Collateral at any time
which, in the absence of a Default or an Event of Default, shall be during
normal business hours upon reasonable prior written notice.
(b) If any of the Collateral is equipment or goods of a type
normally used in more than one jurisdiction (regardless of whether
actually so used), Guarantors will contemporaneously with the execution
and delivery of this Agreement furnish to Lender a list of the
jurisdictions wherein such equipment or goods are or will be used, and
hereafter will notify Lender promptly in writing (1) of any other
jurisdictions in which such equipment or goods are so used, and (2) of any
change in the location of Guarantors' chief executive offices.
(c) Except as permitted by the Loan Agreement, Guarantors will not
sell, exchange, lease or otherwise dispose of any of the Collateral or any
interest therein without the prior written consent of Lender.
(d) Guarantors will keep the Collateral in good condition and repair
(reasonable wear and tear excepted) and will pay and discharge all taxes,
levies and other impositions levied thereon as well as the cost of repairs
to or maintenance of same, and will not permit anything to be done that
may impair the value of any of the Collateral in any material respect. If
Guarantors fail to pay such sums, Lender may do so for Guarantors' account
and add the amount thereof to the other amounts secured hereby.
(e) Prior to the occurrence of an Event of Default, Guarantors shall
be entitled to possession of the Collateral and to use the same in any
lawful manner, provided that such use does not cause excessive wear and
tear to the Collateral, cause it to decline in value at an excessive rate,
or violate the terms of any policy of insurance thereon.
(f) Guarantors will not allow the Collateral to be attached to real
estate in such manner as to become a fixture or a part of any real estate,
except to the extent currently attached to real estate as of the date
hereof.
5. SPECIAL AGREEMENTS WITH RESPECT TO INTANGIBLE AND CERTAIN TANGIBLE
COLLATERAL. Guarantors additionally warrant and agree as follows:
(a) Prior to the occurrence of an Event of Default, Guarantors shall
have the right to process and sell their inventory in the regular course
of business. Lender's security interest hereunder shall attach to all
proceeds of all sales or other dispositions of the Collateral. If at any
time any such proceeds shall be represented by any instruments, chattel
paper or documents of title, then such instruments, chattel paper or
documents of title shall be promptly delivered to Lender and subject to
the security interest granted hereby. If at any time any of Guarantors'
inventory is represented by any document of
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title, such document of title will be delivered promptly to Lender and
subject to the security interest granted hereby.
(b) By the execution of this Agreement, Lender shall not be
obligated to do or perform any of the acts or things provided in any
contracts covered hereby that are to be done or performed by Guarantors,
but upon the occurrence and during the continuance of an Event of Default,
Lender may, at its election, perform some or all of the obligations
provided in said contracts to be performed by Guarantors, and if Lender
incurs any liability or expenses by reason thereof, the same shall be
payable by Guarantors upon demand and shall also be secured by this
Agreement.
(c) Upon the occurrence and during the continuance of an Event of
Default, Lender shall have the right to notify the account debtors
obligated on any or all of Guarantors' accounts to make payment thereof
directly to Lender, and to take control of all proceeds of any such
accounts. Until such time as Lender elects to exercise such right by
notice to Guarantors, Guarantors are authorized, as agents of the Lender,
to collect and enforce said accounts.
6. PROTECTION OF COLLATERAL. Except for Permitted Liens, Guarantors will
not permit any liens or security interests other than those created by this
Agreement to attach to any of the Collateral, nor permit any of the Collateral
to be levied upon under any legal process, nor permit anything to be done that
may impair the security intended to be afforded by this Agreement, nor permit
any tangible Collateral to become attached to or commingled with other goods
without the prior written consent of Lender.
7. INSPECTION AND VERIFICATION OF COLLATERAL. Lender shall have the right,
at any time, by its own auditors, accountants or other agents, to examine or
audit any of the books and records of Guarantors, or the Collateral (which, in
the absence of a Default or an Event of Default, shall be during normal business
hours), all of which will be made available upon prior written request. Such
auditors, accountants or other representatives of Lender will be permitted to
make any verification of the existence of the Collateral or accuracy of the
records that Lender deems reasonably necessary or proper. Any reasonable
expenses incurred by Lender in making such examination, inspection, verification
or audit shall be paid by Guarantors promptly on demand and shall be secured by
the security interest granted hereby, provided that if no Event of Default has
occurred or is continuing, Guarantors' obligation to pay such expenses shall be
limited to two inspections per calendar year.
8. DEFAULT AND REMEDIES. Upon the occurrence of an Event of Default,
Lender may proceed to exercise any and all rights and remedies provided by the
New York Uniform Commercial Code or other applicable law, as well as all other
rights and remedies possessed by Lender, all of which shall be cumulative. Upon
the occurrence of an Event of Default, and upon demand by Lender, Guarantors
shall assemble the Collateral and make it available to Lender at a place
reasonably convenient to Lender and Guarantors. Any notice of sale, lease or
other intended disposition of the Collateral by Lender sent to Guarantors at the
address set forth in the Loan Agreement, or at such other address of Guarantors
as may be shown on Lender's records, at least ten (10) days prior to such
action, shall constitute reasonable notice to Guarantors.
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Lender may waive any default before or after the same has been declared
without impairing its right to declare a subsequent default hereunder, this
right being a continuing one.
9. POWER OF ATTORNEY. Guarantors hereby constitute the Lender or its
designee, as Guarantors' attorney-in-fact with power, upon the occurrence and
during the continuance of an Event of Default, to endorse Guarantors' name upon
any notes, acceptances, checks, drafts, money orders or other evidences of
payment or Collateral that may come into either their or the Lender's
possession; to sign the name of Guarantors on any invoice or xxxx of lading
relating to any of the accounts receivable, drafts against customers,
assignments and verifications of accounts receivable and notices to customers;
to send verifications of accounts receivable; to notify the Post Office
authorities to change the address for delivery of mail addressed to Guarantors
to such address as the Lender may designate; to execute any of the documents
referred to in subsection 3(d) hereof in order to perfect and/or maintain the
security interests and liens granted herein by Guarantors to the Lender; and to
do all other acts and things necessary to carry out this Security Agreement. All
acts of said attorney or designee are hereby ratified and approved, and said
attorney or designee shall not be liable for any acts of commission or omission
(other than acts of gross negligence or willful misconduct), nor for any error
of judgment or mistake of fact or law. This power, being coupled with an
interest, is irrevocable until all of the indebtedness and other obligations
secured hereby have been fully paid or performed.
10. NOTICES. Any and all notices, elections or demands permitted or
required to be made under this Agreement shall be given as provided in the Loan
Agreement.
11. SEVERABILITY. If any provision(s) of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
12. BINDING EFFECT. This Agreement shall inure to the benefit of Lender's
successors and assigns and shall bind Guarantors' heirs, representatives,
successors and assigns. Guarantors' obligations hereunder shall be joint and
several.
13. TERMINATION STATEMENT. Guarantors agree that, notwithstanding the
payment in full of all indebtedness secured hereby and whether or not there is
any outstanding obligation of Lender to make future advances, Lender shall not
be required to send Guarantors a termination statement with respect to any
financing statement filed to perfect Lender's security interest(s) in any of the
Collateral, unless and until Guarantors shall have made written demand therefor.
Upon receipt of proper written demand, Lender may at its option, in lieu of
sending a termination statement to Guarantors, cause said termination statement
to be filed with the appropriate filing officer(s).
14. GOVERNING LAW. This Agreement shall be construed and enforced under
the law of the State of Tennessee.
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15. GENERAL CONSTRUCTION. All terms used but not otherwise defined herein
that are defined or used in Article 9 of the New York Uniform Commercial Code
shall have the respective meanings assigned to them in such Article. As used in
this Agreement, the masculine, feminine and neuter genders and the plural and
singular numbers shall be deemed to include the others in all cases in which
they would so apply. "Includes" and "including" are not limiting, and shall be
deemed to be followed by "without limitation" regardless of whether such words
or words of like import in fact follow same. The word "or" is not intended and
shall not be construed to be exclusive.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers or
other representatives, as of the date first above written.
GUARANTORS:
GUIDELINE RESEARCH CORP.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
TABLINE DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
GUIDELINE/CHICAGO, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
ADVANCED ANALYTICS, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
GUIDELINE CONSULTING CORP.
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
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LENDER:
PETRA MEZZANINE FUND, L.P.
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx III
------------------------------------
Xxxxxx X. X'Xxxxx III,
Managing Member
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