EXHIBIT 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made as of the 28th day
of June, 2000 by and between ELECTRIC CITY CORP., a Delaware corporation,
having an address at 0000 Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
("Debtor") and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, having an address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Secured Party").
R E C I T A L S:
1. Pursuant to a Loan Agreement dated as of June 28, 2000 by
and between Debtor and Lender (the "Loan Agreement"), Secured Party has
agreed to make a loan (the "Loan") to Debtor up to the aggregate principal
amount of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00).
2. The Loan is evidenced by that certain Revolving Credit Note
of even date herewith made by Debtor to Secured Party in the amount of
$2,000,000.00 (the "Revolving Note"), that certain Equipment Term Note to be
made by Debtor to Secured Party in the amount of $500,000.00 (the "Equipment
Term Note") following the consummation of the Switchboard Acquisition, and
that certain Term Note to be made by Debtor to Secured Party in the amount of
$500,000 (the "Term Note") following the consummation of the Switchboard
Acquisition, which Term Note is secured by that certain Mortgage to be given
by Debtor to Secured Party (the "Mortgage") following the consummation of the
Switchboard Acquisition.
3. Pursuant to the Loan Agreement, Debtor has agreed to grant
to Secured Party a security interest in all the property, whether presently
owned by Debtor, or hereafter acquired, which property is more particularly
described on Exhibit A attached hereto and made a part hereof (the
"Collateral").
4. The Collateral is or will be located at the locations of
Borrower (the "Premises") described in Exhibit B attached hereto.
A G R E E M E N T S:
NOW, THEREFORE, with reference to the above recitals, and in
reliance thereon, and in consideration of the terms and conditions contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. CREATION OF SECURITY INTEREST. Debtor hereby grants
to Secured Party a security interest in, and does hereby collaterally assign,
pledge, mortgage, convey and set over unto the Secured Party, the Collateral and
all of Debtor's present and hereafter acquired right, title and interest in and
to the Collateral, for the purpose of securing payment of all indebtedness,
obligations and liabilities of Debtor to Secured Party arising under or in
connection with the Loan Agreement, the Revolving Note, the Equipment Term Note,
the Term Note, the Mortgage and the other Ancillary
Agreements (as defined in the Loan Agreement) and performance of all
agreements, covenants, terms and conditions contained in the foregoing
documents and instruments. 1.
2. WARRANTIES, REPRESENTATIONS AND COVENANTS OF
DEBTOR. Debtor hereby warrants, represents and covenants to Secured Party as
follows:
(1) Debtor is and will be the sole owner of the
Collateral, free from any lien, security interest, encumbrance or
adverse claim of any kind other than the Ford Lien, the CIB Lien, the
Xxxxxx Xxxx and the other Permitted Encumbrances. Debtor will not
permit any financing statement to be filed with respect to the
Collateral or any portion thereof except in favor of Secured Party or
in connection with the Ford Lien, the CIB Lien and the Xxxxxx Xxxx.
Debtor will notify Secured Party of, and will defend the Collateral
against, all claims and demands of all persons at any time claiming the
same or any interest therein, except in connection with the Ford Lien,
the CIB Lien and the Xxxxxx Xxxx.
(2) The Collateral will not be used and was not purchased
for personal, family or household purposes.
(3) Subject to the terms of subparagraph 2(e) hereof, the
Collateral will be kept on the Premises, and Debtor will not remove the
Collateral from the Premises without the prior written consent of
Secured Party.
(4) At the request of Secured Party, Debtor has or will
join Secured Party in executing one or more financing statements
identifying the Collateral and evidencing the security interest of
Secured Party in the Collateral pursuant to the requirements of the
Uniform Commercial Code and in form satisfactory to Secured Party.
Debtor will pay the cost of filing the same in all public offices
wherever filing is deemed necessary or desirable by Secured Party.
(5) Except as otherwise expressly permitted under the
Loan Agreement, without the prior written consent of Secured Party,
which consent shall not be unreasonably withheld, Debtor will not sell,
exchange, dispose of, lease, offer to sell or otherwise transfer or
otherwise deal with the Collateral or any portion or interest therein,
unless simultaneously therewith, new items of Collateral, which items
may be similar to those proposed to be disposed of and which shall be
of equal or greater value, are substituted therefor. Upon the request
of Second Party, Debtor shall file with Secured Party a certificate
signed by Debtor describing such portion of the Collateral as is being
so disposed of and stating that the same has become obsolete, worn out,
damaged, destroyed, sold, transferred or exchanged, and that such
portion of the Collateral will be replaced immediately upon the removal
thereof. Such certificate likewise shall certify as to the reasonable
and equivalent value of the property so acquired or to be acquired in
replacement or substitution. All after-acquired property of the Debtor
located on the Premises and all additions or replacements acquired
pursuant to the provisions of this Section shall immediately be and
become, without any other act on the part of Debtor, subject to the
security interest and lien of this Agreement, which security interest
shall be prior to any other security interest or lien on such property
other than the Ford Lien and the CIB Lien. Unless expressly recited or
provided to the contrary in this Agreement, the Mortgage or in the
other Ancillary Agreements, Debtor may not hereafter acquire any
property subject to prior security interests. If the Collateral or any
part thereof is sold,
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transferred, exchanged, or otherwise disposed of, the security
interest of Secured Party shall extend to the proceeds of
such sale, transfer, exchange or other disposition.
(6) Debtor shall cause the Collateral at all times to be
kept insured at its own expense under one or more policies with such
companies, for such periods and amounts, against such risks and
liabilities, and in such form as set forth in the Loan Agreement, with
Secured Party named as an additional insured and loss payee and
mortgagee clauses attached to all policies in favor of and in form
satisfactory to Secured Party. Such insurance policies shall provide
for at least thirty (30) days' prior written notice to Secured Party of
any cancellation, termination, lapse or alteration in a manner adverse
to Secured Party, which shall include, but not be limited to, decreases
in the amount of coverage limits under such policies of insurance,
increases in deductibles required to be paid under such policies of
insurance, and elimination or reduction of specific types of coverage
provided under such policies of insurance, and original certificates
evidencing such policies shall be delivered to and held by Secured
Party, together with evidence of payment of premiums thereon. Debtor
will promptly notify Secured Party of any loss or damage to the
Collateral and will not adjust or settle such or any loss without the
written consent of Secured Party, except as otherwise provided in the
Loan Agreement. Upon the occurrence and during the continuance of an
Event of Default, and in the event of foreclosure or sale under this
Agreement, all right, title and interest of Debtor in and to any
insurance policies then in force shall pass to the purchaser at any
sale, and Secured Party is hereby appointed attorney-in-fact for Debtor
to assign and transfer said policies.
In the event of damage or casualty resulting in a loss payable
under any of the aforementioned insurance policies, Secured Party is
authorized, except as otherwise provided in the Loan Agreement (i) to
adjust and settle any claim under the appropriate policy pursuant to
which right Secured Party is hereby appointed attorney-in-fact for
Debtor to make proof of loss, or (ii) to allow Secured Party on behalf
of and in the name and stead of Debtor to adjust and settle any such
claim. In either case, except as otherwise provided in the Loan
Agreement, Secured Party is authorized to collect and receipt for any
such insurance proceeds paid pursuant to the settlement and such
authorization is hereby deemed an assignment to Secured Party by Debtor
of its rights to any such proceeds. Anything in the foregoing to the
contrary notwithstanding, Debtor is hereby authorized to adjust and
settle any claim and to collect and receipt for the proceeds thereof so
long as such claim does not exceed One Hundred Fifty Thousand Dollars
($150,000.00), and all such claims so adjusted and settled do not
exceed the aggregate amount of Two Hundred Fifty Thousand Dollars
($250,000.00).
(7) Debtor will keep the Collateral free from any lien,
security interest or encumbrance other than the Ford Lien, the CIB
Lien, the Xxxxxx Xxxx and the other Permitted Encumbrances, and in good
condition and repair, ordinary wear and tear excepted. Upon the
occurrence and during the continuance of an Event of Default, and at
the request of Secured Party, Debtor will make necessary or desirable
repairs, replacements, and renewals to the Collateral which may be
required by reason of use, wear, obsolescence, damage or destruction,
however caused, to the end that the efficiency of the business
conducted on the Premises shall not be impaired. Debtor will not
misuse, abuse, allow to deteriorate, waste or destroy the Collateral or
any part thereof, except for ordinary wear and tear in the course of
its normal and expected use. Debtor will not use the Collateral in
violation of any statute or governmental rule, regulation or ordinance.
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(8) Except as otherwise provided in the Loan Agreement,
Debtor will pay prior to delinquency all taxes and assessments assessed
against the Collateral or imposed on account of its use or operation
("Charges") and shall deliver to Secured Party, upon the request of
Secured Party, a receipt or other evidence satisfactory to Secured
Party, of the payment thereof.
(9) At Secured Party's request, Debtor will execute any
document, procure any document and do all other acts which from the
character or use of the Collateral may be reasonably necessary to
protect the Collateral against the rights, claims or interests of third
persons other than the Ford Lien, CIB Lien and Xxxxxx Xxxx and will
otherwise preserve the Collateral as security hereunder.
(10) Debtor shall furnish promptly to Secured Party such
information concerning the Collateral as Secured Party may from time to
time request. Debtor shall permit and hereby authorizes Secured Party
to examine and inspect the Collateral and any portion thereof wherever
the same may be located. Upon the occurrence and during the continuance
of an Event of Default, Debtor shall, at the request of Secured Party,
assemble the Collateral or such portion thereof as may be designated by
Secured Party, together with all documents and records pertaining
thereto, at such place as Secured Party may designate.
3. PRESERVATION OF COLLATERAL BY SECURED PARTY. Should
Debtor fail or refuse to make any payment when due, perform or observe any other
covenant, condition or obligation, or take any other action required by the
terms of this Agreement or the Loan Agreement at the time or in the manner
provided, then Secured Party may, at Secured Party's sole discretion, without
notice to or demand upon Debtor, and without releasing Debtor from any
obligation, covenant or condition hereof, make, perform, observe, take or do the
same in such manner and to such extent as Secured Party may deem necessary to
protect its security interest in or the value of the Collateral. Furthermore,
Secured Party may commence, defend, appeal or otherwise participate in any
action or proceeding purporting to affect its security interest in or the value
of the Collateral. Debtor hereby agrees to reimburse Secured Party on demand for
any payment made, or any expense incurred by, Secured Party pursuant to the
foregoing authorization (including court costs and reasonable attorneys' fees
and disbursements), and agrees further to pay interest thereon from the date of
said payment or expenditure at the rate specified in the Loan Agreement as the
Default Rate.
4. USE OF COLLATERAL BY DEBTOR. Until the occurrence and
during the continuance of an Event of Default hereunder, Debtor may have
possession of the Collateral and use it in any lawful manner contemplated in the
Loan Agreement and consistent with this Agreement and any policy of insurance
affecting the Collateral.
5. EVENT OF DEFAULT. The occurrence of any of the
following shall constitute a default ("Event of Default") hereunder:
(1) If an Event of Default shall occur under the Loan
Agreement and be continuing or if Debtor fails to observe or perform
any term, covenant or condition of the Revolving Note, the Equipment
Term Note, the Term Note, the Mortgage or any of the other Ancillary
Agreements and such default is not cured within the time period
expressly established therefor, if any; or
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(2) If any writ or any distress warrant shall be issued
against or levied on the Collateral, or any part thereof; or if the
Debtor shall sell or assign or attempt to sell or assign the
Collateral, or any interest therein in violation of Section 2(e)
hereof, which events shall not be corrected or cured by Debtor within
twenty (20) days after notice thereof by Secured Party; or
(3) If Debtor defaults under this Agreement, which
default is not corrected or cured by Debtor within twenty (20) days
after notice thereof by Secured Party; or
(4) If the Collateral or any part thereof is removed or
transferred, or attempted to be removed or transferred, from the
Premises, or sold or disposed of, in violation of the terms of Sections
2(c) and 2(e), and substitute Collateral is not provided within twenty
(20) days thereafter; or
(5) If any representation or warranty made by Debtor
herein, or in any other instrument, agreement or written statement in
any way related hereto, to the Collateral or any portion thereof, or to
the Loans, shall prove to have been false or incorrect in any material
respect on or after the date when made.
6. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence
and during the continuance of an Event of Default, Secured Party may, in
addition to exercising those remedies specified in the Loan Agreement or in any
of the Ancillary Agreements at any time, at its election, without further
notice, and to the extent permitted by law pursue any one or more of the
following remedies concurrently or successively, it being the intent hereof that
none of such remedies shall be to the exclusion of any others:
(1) Foreclose this Agreement and the security interest
granted hereby, as provided herein, or in any manner permitted by law,
either personally, through agents or by means of a court-appointed
receiver, and take possession of all or any of the Collateral, other
than the Ford Automobiles and the Landmeier Property, and exclude
therefrom Debtor and all others claiming through or under Debtor, and
exercise any and all of the rights and remedies conferred upon Secured
Party by the Loan Agreement, the Revolving Note, the Equipment Term
Note, the Term Note, the Mortgage and the other Ancillary Agreements or
by applicable law, either concurrently or in such order as Secured
Party may determine. Secured Party may sell, lease or otherwise dispose
of, or cause to be sold, leased or otherwise disposed of in such order
as Secured Party may determine, as a whole or in such parcels as
Secured Party may determine, (i) the Collateral described in this
Agreement, other than the Ford Automobiles and the Landmeier Property,
(ii) the Premises described in the Mortgage, or both; or exercise any
of the rights conferred upon Secured Party by this Agreement, the Loan
Agreement, the Revolving Note, the Equipment Term Note, the Term Note,
the Mortgage or other Ancillary Agreements without affecting in any way
the rights or remedies to which Secured Party may be entitled under any
other Ancillary Agreements;
(2) Make such payments and do such acts as Secured Party
may deem necessary to protect its security interest in the Collateral,
including without limitation, paying, purchasing, contesting or
compromising any encumbrance, charge, claim or lien which is prior to
or superior to the security interest granted hereunder, except the Ford
Lien and the CIB Lien, and, in exercising any such powers or authority,
pay all expenses incurred in
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connection therewith, and all funds expended by Secured Party in
protecting its security interest shall be deemed additional
indebtedness secured by this Agreement;
(3) Require Debtor to assemble the Collateral (other than
the Ford Automobiles), or any portion thereof, at any place or places
reasonably designated by Secured Party, and promptly to deliver such
Collateral (other than the Ford Automobiles) to Secured Party, or an
agent or representative designated by it;
(4) Publicly or privately sell, lease or otherwise
dispose of the Collateral, without necessarily having the Collateral at
the place of sale, lease or disposition, and upon terms and in such
manner as Secured Party may determine. Secured Party may be a purchaser
of the Collateral at any public sale. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Secured Party will give Debtor
reasonable notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended
disposition thereof is to be made, and such notice, if given to the
Debtor pursuant to the provisions of Section 8 hereof at least twenty
(20) days prior to the date of any public sale or disposition or the
date after which any private sale or disposition may occur, shall
constitute reasonable notice of such sale, lease or other disposition;
(5) Notify any account debtor or any other party
obligated on or with respect to any of the Collateral to make payment
to Secured Party or its nominee of any amounts due or to become due
thereunder or with respect thereto and otherwise perform its
obligations with respect to the Collateral on behalf of and for the
benefit of Secured Party. Secured Party may enforce collection and
performance with respect to any of the Collateral by suit or otherwise,
in its own name or in the name of Debtor or a nominee, and surrender,
release or exchange all or any part thereof; and compromise, extend or
renew (whether or not for longer than the original period) or transfer,
assign or endorse for collection or otherwise, any indebtedness or
obligation with respect to the Collateral, or evidenced thereby, and
upon request of Secured Party, Debtor will, at its own expense, notify
any person obligated on or with respect to any of the Collateral to
make payment and performance directly to, in the name of, and on behalf
of Secured Party of any amounts or performance due or to become due
thereunder or with respect thereto; and
(6) Exercise any remedies of a Secured Party under the
Uniform Commercial Code or any other applicable law.
To effectuate the foregoing upon the occurrence and during the
continuance of an Event of Default, Debtor hereby agrees that if
Secured Party demands or attempts to take possession of the Collateral
(other than the Ford Automobiles) or any portion thereof in exercise of
its rights and remedies hereunder and under any other Ancillary
Agreement, Debtor will immediately turn over and deliver possession
thereof to Secured Party, and Debtor authorizes, to the extent Debtor
may now or hereafter lawfully grant such authority, Secured Party, its
employees and agents, and potential bidders or purchasers to enter upon
any or all of the premises where the Collateral (other than the Ford
Automobiles) or any portion thereof may at the time be located (or
believed to be located) and Secured Party may (i) remove the same
therefrom, (ii) repair, operate, use or manage the Collateral or any
portion thereof, (iii) maintain, repair or store the Collateral or any
portion thereof, (iv) view, inspect and prepare for sale, lease or
disposition the Collateral (other than the Ford
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Automobiles) or any portion thereof, (v) sell, lease, dispose of
or consume the same or bid thereon or (vi) incorporate the Collateral
or any portion thereof into the Premises.
Debtor hereby agrees to indemnify, defend, protect and hold
harmless Secured Party and its employees, officers and agents from and
against any and all damages, liabilities, claims and obligations which
may be incurred, asserted or imposed upon them or any of them as a
result of or in connection with any use, operation, lease or
consumption of any of the Collateral or as a result of Secured Party's
seeking to obtain performance of any of the obligations due with
respect to the Collateral, except from such damages, liabilities,
claims or obligations as result from gross negligence or intentional
misconduct of Secured Party, its employees, officers or agents.
The proceeds of any sale under this Section 6 shall be applied
first to the payment of any sums owing to Secured Party pursuant to the
provisions of the Revolving Note, the Equipment Term Note, the Term
Note, the Mortgage, this Agreement, or any of the other Ancillary
Agreements in such manner as Secured Party may elect, with any funds
remaining after payment of the foregoing to be paid to Debtor.
Secured Party shall have the right to enforce one or more
remedies hereunder, successively or concurrently, and such action shall
not operate to estop or prevent Secured Party from pursuing any further
remedy which it may have, and any repossession or retaking or sale of
the Collateral pursuant to the terms hereof shall not operate to
release Debtor until full payment of any deficiency has been made in
cash.
7. OTHER REMEDIES. The Mortgage and this Agreement shall
be construed together as a single instrument and in any case in which Secured
Party is authorized to proceed in the manner set forth in Section 6 hereof,
Secured Party may, at its sole option and in lieu of proceeding under Section 6
hereof, proceed as to both the Premises (excluding the Landmeier Property) and
the Collateral (excluding the Ford Automobiles) in accordance with Secured
Party's rights and remedies with respect to the Premises (excluding the
Landmeier Property) under the Mortgage. Any receiver appointed in any
proceedings to foreclose said Mortgage, upon taking possession of the Premises
(excluding the Landmeier Property), shall have full power to take immediate
possession of, manage and control the Collateral (excluding the Ford
Automobiles) and use the same in the operation of a business upon the Premises.
Any and all remedies herein expressly conferred upon Secured Party shall be
deemed cumulative with, and not exclusive of, any other remedy conferred hereby
or by law or equity on Secured Party, and the exercise of any one remedy shall
not preclude the exercise of any other. Except as otherwise specifically
required herein or by applicable law, notice of the exercise of any right,
remedy or power granted to Secured Party by this Agreement is not required to be
given.
8. NOTICES. Except as otherwise provided herein, any
notice required hereunder shall be in writing and shall be deemed to have been
validly served, given or delivered (i) three (3) Business Days after deposit in
the United States mails, with proper postage prepaid, certified or registered
mail, (ii) upon receipt when personally delivered or delivered by reputable
overnight courier or (iii) when sent by confirmed facsimile transmission, in
each case addressed to the party to be notified as follows:
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if to Secured Party: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telefax: (000) 000-0000
with a copy to: Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telefax: (000) 000-0000
if to Debtor: Electric City Corp.
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telefax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
9. WAIVER. By exercising or failing to exercise any of
its rights, options or elections hereunder, Secured Party shall not be deemed to
have waived any breach or default on the part of Debtor or to have released
Debtor from any of its obligations hereunder, unless such waiver or release is
in writing and signed by Secured Party. In addition, the waiver by Secured Party
of any breach hereof or default in payment of any amounts due under the Loan
Agreement, the Revolving Note, the Equipment Term Note, the Term Note, the
Mortgage or this Agreement shall not be deemed to constitute a waiver of any
succeeding breach or default.
10. AFFIXED COLLATERAL. The inclusion in this Agreement
of any Collateral which may now be, or hereafter become, affixed or in any
manner attached to the Premises shall be without prejudice to any claim at any
time made by Secured Party that such Collateral is, or has become, a part of the
Premises, or an accession to the Premises.
11. BINDING AGREEMENT. This Agreement and all provisions
hereof shall be binding upon Debtor, its successors, assigns, executors and
administrators, and all other persons or entities claiming under or through
Debtor, and the word "Debtor," when used herein, shall include all such persons
or entities and any others liable for the payment of the indebtedness secured
hereby or any part thereof, whether or not they have executed the Revolving
Note, the Equipment Term Note, the Term Note, or this Agreement. The word
"Secured Party," when used herein, shall include Secured Party's successors,
assigns and legal representatives, including all other holders, from time to
time, of the Revolving Note, the Equipment Term Note and the Term Note.
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12. GOVERNING LAW; INTERPRETATION. This Security
Agreement shall be governed by the laws of the State of Illinois, in which State
(a) the Loan Agreement, the Revolving Note, the Equipment Term Note, the Term
Note, the Mortgage, and this Agreement were executed and delivered, (b) the
proceeds of the Loan were disbursed by Secured Party and (c) the principal and
interest due under the Revolving Note, the Equipment Term Note and the Term Note
are to be paid. Wherever possible, each provision of this Agreement shall be
interpreted in such a 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. Time is of the essence in this
Agreement.
13. MISCELLANEOUS. Neither this Agreement nor any
provision hereof may be amended, modified, waived, discharged or terminated, nor
may any of the Collateral (excluding the Ford Automobiles and the Landmeier
Property) be released, except by an instrument in writing duly signed by or on
behalf of Secured Party hereunder. The section headings are used herein for
convenience of reference only and shall not define or limit the provisions of
this Agreement. As used in this Agreement, the singular shall include the
plural, and the plural shall include the singular, and masculine, feminine and
neuter pronouns shall be fully interchangeable, where the context so requires.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
DEBTOR:
ELECTRIC CITY CORP.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------
Title: Chief Financial Officer
-------------------------------
SECURED PARTY:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: Assistant Vice President
-------------------------------
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EXHIBIT A
DEBTOR: Electric City Corp., a Delaware Corporation
SECURED PARTY: LaSalle Bank National Association, a national banking association
DESCRIPTION OF COLLATERAL
All of the following property now or at any time hereafter owned by
Debtor or in which the Debtor may now or at anytime hereafter have any interest
or rights, together with all of Debtor's right, title and interest therein:
5. all machinery, furniture, furnishings, equipment, computer
software and hardware, fixtures (including, without limitation, all heating, air
conditioning, plumbing, lighting, communications, elevator, kitchen, medical,
dental or rehabilitation fixtures), cleaning apparatus, carpeting, telephones,
cash registers, computers, lamps, and medical equipment, supplies, and other
property of every kind and nature, whether tangible or intangible, whatsoever
owned by Debtor, or in which Debtor has or shall have an interest, now or
hereafter located upon the Premises and the improvements thereon (the
"Improvements"), or appurtenant thereto, and usable in connection with the
present or future operation and occupancy of the Premises and the Improvements
(hereinafter collectively called the "Equipment"), including any leases of any
of the foregoing, any deposits existing at any time in connection with any of
the foregoing, and the proceeds of any sale or transfer of the foregoing, and
the right, title and interest of Debtor in and to any of the Equipment that may
be subject to any "security interests" as defined in the Uniform Commercial
Code, as adopted and enacted by the state where the Premises are located (the
"Uniform Commercial Code"), superior in lien to the lien of the Mortgage;
6. all awards or payments, including interest thereon, that may
heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and Improvements;
7. all operating leases (alternatively hereinafter referred to
singularly as the "Operating Lease" or collectively as the "Operating Leases" as
the context may require), all guarantees of the Operating Leases, all patient
admissions and resident care agreements ("Patient Occupancy Agreements" or
"Occupancy Agreements") and any and all other commercial leases, and other
agreements or arrangements heretofore or hereafter entered into affecting the
use, enjoyment or occupancy of, or the conduct of any activity upon or in, the
Premises and the Improvements, including any extensions, renewals, modifications
or amendments thereof (all of the foregoing collectively called the "Leases")
and all rents, rent equivalents, moneys payable as damages or in lieu of rent or
rent equivalents, royalties (including, without limitation, all oil and gas or
other mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Debtor or its agents or employees from the Leases and
any and all other sources arising from or attributable to the Premises and the
Improvements (the "Rents"), together
with all proceeds from the sale or other disposition of the Leases and the
Mortgaged Premises and the right to receive and apply the Rents to the
payment of the indebtedness secured hereby;
8. all proceeds of and any unearned premiums on any insurance
policies covering the Premises, including, without limitation, the right to
receive and apply, except as otherwise provided in the Loan Agreement, the
proceeds of insurance, judgments, or settlements made in lieu thereof, for
damage to the Premises;
9. the right, in the name and on behalf of Debtor, to appear in
and defend any action or proceeding brought with respect to the Premises and to
commence any action or proceeding to protect the interest of Secured Party in
the Premises;
10. all accounts located on the Premises, including rights to
payment for goods sold or leased or to be sold or leased or for services
rendered or to be rendered), escrows, documents, instruments, chattel paper,
claims, deposits and general intangibles, as the foregoing terms are defined in
the Uniform Commercial Code, and all franchises, trade names, trademarks,
symbols, service marks, books, records, plans, specifications, designs,
drawings, permits, licenses, contract rights (including, without limitation, any
contract with any architect or engineer or with any other provider of goods or
services for or in connection with any construction, repair, or other work upon
the Premises), approvals, actions, refunds of real estate taxes and assessments
and any other governmental impositions related to the Premises, approvals,
actions and causes of action that now or hereafter relate to, are derived from
or are used in connection with the Premises or the use, operation, maintenance,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter collectively called the "Intangibles"); and
11. all proceeds, products, offspring, rents and profits from any
of the foregoing, including, without limitation, those from sale, exchange,
transfer, collection, loss, damage, disposition, substitution or replacement of
any of the foregoing.
EXHIBIT B
LOCATIONS OF COLLATERAL
Personal property located at:
0000 Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Real property secured by Mortgage and other personal property to be located at:
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
