SENIOR SECURITY AGREEMENT
Exhibit 4.15
This
SENIOR SECURITY AGREEMENT dated as of January 15, 2010 (the “Security Agreement”),
is executed by the lenders listed on Schedule 1 hereto
(collectively, the “Lenders” and each a
“Lender”) and
Default Servicing, LLC, a limited liability company organized under the laws of
the State of Delaware (“Guarantor”), which
has its chief executive office located at 000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000. The Guarantor and Lenders are referred to from time
to time in this Security Agreement individually as a “Party” and together as the
“Parties.”
R E C I T
A L S:
A. In
connection with the Senior Loan, Security and Pledge Agreement, dated as of the
date of this Guaranty, among the Lenders and DAL Group, LLC (as amended,
restated or otherwise modified from time to time, the “Loan Agreement”), DAL
Group, LLC (the “Borrower”) has
executed those certain Senior Term Notes, dated as of the date of this Guaranty,
in favor of the Lenders (each as amended, restated or otherwise modified from
time to time, a “Note” and
collectively the “Notes”). As
security for the Obligations (as defined in the Loan Agreement), the Borrower
granted to the Lenders and to the Secured Party Representative (as defined in
the Loan Agreement) a security interest in all of its assets.
B. As
additional security for the Obligations, the Guarantor has executed a Guaranty,
dated as of the date of this Security Agreement (the “Guaranty”), in favor
of the Lenders. To secure the Guaranteed Obligations, the Guarantor
has agreed to grant the Lenders a security interest in all of its assets
pursuant to this Security Agreement.
C. The
Lenders and the Guarantor are each parties to that certain Subordination and
Intercreditor Agreement, dated as of the same date of this Security
Agreement.
NOW
THEREFORE, in consideration of the premises, and the mutual covenants and
agreements set forth herein, the Parties agree as follows:
A G R E E
M E N T S:
Section
1 DEFINITIONS.
1.1 Defined
Terms. For the purposes of this Security Agreement, the
following capitalized words and phrases shall have the meanings set forth
below.
“Affiliate” of any
person or entity shall mean (a) any other person or entity which, directly or
indirectly, controls or is controlled by or is under common control with such
person or entity or (b) any officer or director of such entity. A
person or entity shall be deemed to be “controlled by” any other person or
entity if such person or entity possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of such person or
entity whether by contract, ownership of voting securities, membership interests
or otherwise.
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“Bankruptcy Code”
shall mean the United States Bankruptcy Code, as now existing or hereafter
amended.
“Collateral” shall
have the meaning set forth in Section 2.1 hereof.
“Event of Default”
shall have the meaning set forth in the Loan Agreement.
“Guaranteed
Obligations” has the meaning set forth in the Guaranty.
“Guaranty” shall have
the meaning given to it in the Recitals.
“Intellectual
Property” shall mean the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
patents, service marks and trademarks, and all registrations and applications
for registration therefor and all licensees thereof, trade names, domain names,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
“Loan Agreement” shall
have the meaning given to it in the Recitals.
“Loan Documents” shall
mean the Notes, the Loan Agreement, this Security Agreement, the Subordination
and Intercreditor Agreement and each Guaranty, as each may be amended, restated,
supplemented or modified from time to time.
“Note” and “Notes” shall have the
meaning given to it in the Recitals.
“Obligations” shall
have the meaning set forth in the Loan Agreement.
“Obligor” shall mean
the Borrower, any Guarantor, accommodation endorser, third party pledgor, or any
other party liable with respect to the Obligations.
“Secured Party
Representative” shall have the meaning set forth in the Loan
Agreement.
“Security Agreement Event of
Default” shall have the meaning set forth in Section 4.
“Security Interest”
shall have the meaning set forth in Section 2.1.
“Subordination and
Intercreditor Agreement” shall have the meaning set forth in the Loan
Agreement.
“UCC” shall mean the
Uniform Commercial Code in effect in the State of New York from time to
time.
1.2 Other Terms Defined in
UCC. All other capitalized words and phrases used herein and
not otherwise specifically defined herein shall have the respective meanings
assigned to such terms in the UCC, to the extent the same are used or defined
therein.
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1.3 Other Interpretive
Provisions.
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms. Whenever the context so requires, the
neuter gender includes the masculine and feminine, the single number includes
the plural, and vice versa.
(b) Section
and Schedule references are to this Security Agreement unless otherwise
specified. The words “hereof”, “herein” and “hereunder” and words of
similar import when used in this Security Agreement shall refer to this Security
Agreement as a whole and not to any particular provision of this Security
Agreement
(c) The term
“including” is not limiting, and means “including, without
limitation”.
(d) In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including”; the words “to” and “until” each mean
“to but excluding”, and the word “through” means “to and
including.”
(e) Unless
otherwise expressly provided herein, (i) references to agreements
(including this Security Agreement and the other Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
restatements, supplements and other modifications thereto, but only to the
extent such amendments, restatements, supplements and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to
any statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.
(f) To the
extent any of the provisions of the other Loan Documents are inconsistent with
the terms of this Security Agreement, the provisions of this Security Agreement
shall govern.
(g) This
Security Agreement and the other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative
and each shall be performed in accordance with its terms.
Section
2 SECURITY
FOR THE OBLIGATIONS.
2.1 Security for Guaranteed
Obligations. As security for the payment and performance of
the Guaranteed Obligations, the Guarantor hereby assigns, transfers, delivers
and grants to the Lenders and to the Secured Party Representative on behalf of
the Lenders a continuing and unconditional first priority security interest (the
“Security
Interest”) in and to any and all personal property of the Guarantor, of
any kind or description, tangible or intangible, wherever located and whether
now existing or hereafter arising, created or acquired, including the following
(all of which property, along with the products and proceeds therefrom, are
individually and collectively referred to as the “Collateral”):
(a) all
property of, or for the account of, the Guarantor now or hereafter coming into
the possession, control or custody of, or in transit to, any Lender or any agent
or bailee for any Lender or any parent, affiliate or subsidiary of any Lender or
any participant with the Lenders (whether for safekeeping, deposit, collection,
custody, pledge, transmission or otherwise), including all earnings, dividends,
interest, or other rights in connection therewith and the products and proceeds
therefrom, including the proceeds of insurance thereon; and
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(b) the
additional property of Guarantor, whether now existing or hereafter arising or
acquired, and wherever now or hereafter located, together with all additions and
accessions thereto, substitutions, betterments and replacements therefor,
products and Proceeds therefrom, and all of the Guarantor’s books and records
and recorded data relating thereto (regardless of the medium of recording or
storage), together with all of the Guarantor’s right, title and interest in and
to all computer software required to utilize, create, maintain and process any
such records or data on electronic media, identified and set forth as
follows:
(i) All
Accounts, including but not limited to billed and unbilled accounts receivable,
and all Goods whose sale, lease or other disposition by the Guarantor has given
rise to Accounts and have been returned to, or repossessed or stopped in transit
by, the Guarantor, or rejected or refused by an account borrower;
(ii) All
Inventory, including raw materials, work-in-process and finished
goods;
(iii) All Goods
(other than Inventory), including embedded software, Equipment, vehicles,
furniture and Fixtures;
(iv) All
Software and computer programs;
(v) All
Securities, investment property, Financial Assets and Deposit
Accounts;
(vi) All
Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of
Credit Rights, all proceeds of letters of credit, Supporting Obligations, notes
secured by real estate, Commercial Tort Claims and General Intangibles,
including Payment Intangibles; and
(vii) All
Proceeds (whether Cash Proceeds or Noncash Proceeds) of the foregoing property,
including all insurance policies and proceeds of insurance payable by reason of
loss or damage to the foregoing property, including unearned premiums, and of
eminent domain or condemnation awards.
2.2 No Assumption of
Liability. The Security Interest is granted as security only and, except
as otherwise required by applicable law or as set forth in the Loan Documents,
shall not subject any Lender to, or in any way alter or modify, any obligation
or liability of the Borrower with respect to or arising out of the
Collateral.
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2.3 Perfection of Security
Interest. Guarantor hereby irrevocably authorizes each Lender
and Secured Party Representative on behalf of the Lenders to file financing
statement(s) describing the Collateral in all public offices reasonably deemed
necessary by any Lender or the Secured Party Representative, and to take any and
all actions, including, without limitation, filing all financing statements,
continuation financing statements and all other documents that any Lender or the
Secured Party Representative may reasonably determine to be necessary to perfect
and maintain each Lender’s security interests in the
Collateral. Guarantor shall have possession of the Collateral, except
where expressly otherwise provided in this Security Agreement or where the
Secured Party Representative chooses to perfect its security interest by
possession, whether or not in addition to the filing of a financing
statement. Where Collateral is in the possession of a third party,
Guarantor will join with the Lenders and the Secured Party Representative in
notifying the third party of each Lender’s security interest and obtaining an
acknowledgement from the third party that it is holding the Collateral for the
benefit of the Lenders. Guarantor will cooperate with the Lender and
the Secured Party Representative in obtaining control with respect to Collateral
consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights and
Electronic Chattel Paper. Guarantor will not create any Chattel Paper
without placing a legend on the Chattel Paper reasonably acceptable to the
Lenders and the Secured Party Representative indicating that each Lender has a
security interest in the Chattel Paper. Guarantor shall pay the cost
of filing or recording all financing statement(s) and other
documents. Guarantor agrees to promptly execute and deliver to the
Lenders and the Secured Party Representative all financing statements,
continuation financing statements, assignments, certificates of title,
applications for vehicle titles, affidavits, reports, notices, schedules of
Accounts, designations of Inventory, letters of authority and all other
documents that any Lender may reasonably request in form reasonably satisfactory
to the Lenders and the Secured Party Representative to perfect and maintain each
Lender’s security interests in the Collateral. The Guarantor further
agrees to indemnify and hold each Lender and the Secured Party Representative
harmless against claims of any person or entity not a party to this Security
Agreement concerning disputes arising over the Collateral.
2.4 Preservation of the
Collateral. Any Lender and Secured Party Representative may,
but are not required, to take such actions from time to time as such Lender or
the Secured Party Representative deems reasonably appropriate to maintain or
protect the Collateral. Each Lender and the Secured Party
Representative shall have exercised reasonable care in the custody and
preservation of the Collateral if such Lender or Secured Party Representative
takes such action as the Guarantor shall reasonably request in writing which is
not inconsistent with any Lender’s status as a secured party, but the failure of
any Lender or the Secured Party Representative to comply with any such request
shall not be deemed a failure to exercise reasonable care; provided, however,
each Lender’s or Secured Party Representative’s responsibility for the
safekeeping of the Collateral shall (a) be deemed reasonable if such Collateral
is accorded treatment substantially equal to that which such Lender accords its
own property, and (b) not extend to matters beyond the control of any Lender or
Secured Party Representative, including acts of God, war, insurrection, riot or
governmental actions. In addition, any failure of any Lender or
Secured Party Representative to preserve or protect any rights with respect to
the Collateral against prior or third parties, or to do any act with respect to
preservation of the Collateral, not so requested by the Guarantor, shall not be
deemed a failure to exercise reasonable care in the custody or preservation of
the Collateral. The Guarantor shall have the sole responsibility for
taking such action as may be necessary, from time to time, to preserve all
rights of the Guarantor and each Lender in the Collateral against prior or third
parties. Without limiting the generality of the foregoing, where
Collateral consists in whole or in part of securities, the Guarantor represents
to, and covenants with, each Lender that the Guarantor has made arrangements for
keeping informed of changes or potential changes affecting the securities
(including rights to convert or subscribe, payment of dividends, reorganization
or other exchanges, tender offers and voting rights), and the Guarantor agrees
that neither any Lenders nor the Secured Party Representative shall have any
responsibility or liability for informing the Guarantor of any such or other
changes or potential changes or for taking any action or omitting to take any
action with respect thereto.
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2.5 Collateral in the Possession
of a Warehouseman or Bailee. If any of the Collateral at any
time is in the possession of a warehouseman or bailee, the Guarantor shall
promptly notify the Lenders and the Secured Party Representative thereof, and
shall use commercially reasonable efforts to promptly obtain a Collateral Access
Agreement. No Lender shall give any instructions to such warehouseman
or bailee pursuant to such Collateral Access Agreement unless a Security
Agreement Event of Default has occurred and is continuing or would occur after
taking into account any action by the Guarantor with respect to the warehouseman
or bailee.
2.6 Commercial Tort
Claims. If the Guarantor shall at any time hold or acquire a
Commercial Tort Claim, the Guarantor shall promptly, upon knowledge thereof,
notify the Lenders and the Secured Party Representative in writing signed by the
Guarantor of the details thereof and at the request of any Lender grant to each
Lender, for its own benefit and as agent for its Affiliates, in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Security Agreement, in each case in form and substance reasonably
satisfactory to the Lenders, and shall execute any amendments hereto deemed
reasonably necessary by any Lender to perfect the security interest of the
Lenders in such Commercial Tort Claim.
2.7 Electronic Chattel Paper and
Transferable Records. If the Guarantor at any time holds or
acquires an interest in any electronic chattel paper or any “transferable
record”, as that term is defined in Section 201 of the federal Electronic
Signatures in Global and National Commerce Act, or in Section 16 of the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction, the
Guarantor shall promptly notify the Lenders and the Secured Party Representative
thereof and, at the request of any Lender or the Secured Party Representative,
shall take such action as such Lender or the Secured Party Representative may
reasonably request to vest in the Lenders or the Secured Party Representative
control under Section 9-105 of the UCC of such electronic chattel paper or
control under Section 201 of the federal Electronic Signatures in Global and
National Commerce Act or, as the case may be, §16 of the Uniform Electronic
Transactions Act, as so in effect in such jurisdiction, of such transferable
record. The Lenders or the Secured Party Representative, as the case
may be, will arrange, pursuant to procedures reasonably satisfactory to each
Lender, and so long as such procedures will not result in any Lender’s or the
Secured Party Representative’s loss of control, for the Borrower to make
alterations to the electronic chattel paper or transferable record permitted
under Section 9-105 of the UCC or, as the case may be, Section 201 of the
federal Electronic Signatures in Global and National Commerce Act or Section 16
of the Uniform Electronic Transactions Act for a party in control to make
without loss of control.
Section
3 REPRESENTATIONS
AND WARRANTIES.
To induce
the Lenders to accept the Notes, the Guarantor makes the following
representations and warranties to each Lender, each of which shall survive the
execution and delivery of this Security Agreement:
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3.1 Guarantor Organization and
Name. The Guarantor is duly organized, existing and in good
standing, with full and adequate power to carry on and conduct its business as
presently conducted. The Guarantor is duly licensed or qualified in
all foreign jurisdictions wherein the nature of its activities requires such
qualification or licensing. The exact legal name of the Guarantor is
as set forth in the first paragraph of this Security Agreement.
3.2 Authorization. The
Guarantor has full right, power and authority to enter into this Security
Agreement and the Guaranty and to perform all of its duties and obligations
under this Security Agreement and the Guaranty. The execution and
delivery of this Security Agreement and the Guaranty will not, nor will the
observance or performance of any of the matters and things herein or therein set
forth, violate or contravene any provision of law or of the Guarantor’s
organizational documents, nor require any consent, approval, authorization, or
filings with, notice to or other act by or in respect of, any governmental
authority or any other party (other than any consent or approval which has been
obtained and is in full force and effect). All necessary and
appropriate action has been taken on the part of the Guarantor to authorize the
execution and delivery of this Security Agreement and the Guaranty.
3.3 Validity and Binding
Nature. This Security Agreement and the other Loan Documents
are the legal, valid and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their terms, subject to bankruptcy,
insolvency and similar laws affecting the enforceability of creditors’ rights
generally and to general principles of equity.
3.4 Security
Interest. This Security Agreement creates a valid security
interest in favor of each Lender and the Secured Party Representative on behalf
of the Lenders in the Collateral and, when properly perfected by filing in the
appropriate jurisdictions, or by possession or Control of such Collateral by the
Lenders or the Secured Party Representative on behalf of the Lenders or delivery
of such Collateral to the Lenders or the Secured Party Representative on behalf
of the Lenders, shall constitute a valid, first priority perfected security
interest in such Collateral. None of the Collateral is subject to any
security interest other than as contemplated by this Security Agreement, the
Loan Agreement or in favor of the holder of the Junior Obligations (as defined
in the Loan Agreement), such security interest in favor of the holder of the
Junior Obligations (as defined in the Loan Agreement) to be subordinated to the
security interest granted pursuant to this Security Agreement.
3.5 Place of
Business. The principal place of business and books and
records of the Guarantor is set forth in the preamble to this Security
Agreement, and the location of all Collateral, if other than at such principal
place of business, is as set forth in schedules furnished to the
Lenders. The Guarantor shall promptly notify the Lenders and the
Secured Party Representative of any change in such location(s). The
Guarantor will not remove or permit the Collateral to be removed from such
location(s) without the prior written consent of the Lenders and Secured Party
Representative, except for Inventory sold in the usual and ordinary course of
the Guarantor’s business.
Section
4 EVENTS OF
DEFAULT.
The
Guarantor, without notice or demand of any kind, shall be in default with
respect to its Guaranteed Obligations upon the occurrence of any of the
following events, except to the extent caused by the action or failure to act of
any Lender, any Affiliate of any Lender or the Secured Party Representative for
the purpose of causing a Security Agreement Event of Default (each a “Security
Agreement Event of Default”):
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4.1 Guarantor
shall fail to pay when due the Guaranteed Obligations;
4.2 Any
failure of Guarantor to perform or default by Guarantor in the performance of
any covenant, condition or agreement contained in this Security Agreement (other
than a default covered by Section 4.1) and the continuance of such default or
breach for a period of thirty (30) calendar days after Guarantor has notice
thereof; or
4.3 An Event
of Default which shall not have been cured within the applicable cure period, if
any.
Section
5 REMEDIES.
5.1 Rights and
Remedies. Upon the occurrence and during the continuance of a
Security Agreement Event of Default, each Lender and the Secured Party
Representative on behalf of the Lenders shall have all rights, powers and
remedies set forth in the Loan Documents, in any other written agreement or
instrument relating to any of the Obligations or any security therefor, as a
secured party under the UCC or as otherwise provided at law or in
equity. Without limiting the generality of the foregoing, any of the
Lenders or the Secured Party Representative (on behalf of the Lenders) may, at
such party’s option upon the occurrence and during the continuance of a Security
Agreement Event of Default, declare the Guaranteed Obligations to be immediately
due and payable, provided, however, that upon the occurrence and during the
continuance of an Event of Default under Section 8.6 of the
Loan Agreement, all Guaranteed Obligations shall be automatically due and
payable, all without demand, notice or further action of any kind required on
the part of any Lender and/or the Secured Party Representative. The Guarantor
hereby waives any and all presentment, demand, notice of dishonor, protest, and
all other notices and demands in connection with the enforcement of each
Lender’s and the Secured Party Representative’s rights under the Loan Documents,
and hereby consents to, and waives notice of release, with or without
consideration, of any Guarantor or of any Collateral, notwithstanding anything
contained herein or in the Loan Documents to the contrary. In
addition to the foregoing, upon the occurrence and during the continuance of an
Event of Default:
(a) Possession and Assembly of
Collateral. Any Lender or the Secured Party Representative
may, without notice, demand or legal process of any kind, take possession of any
or all of the Collateral (in addition to Collateral of which any Lender or the
Secured Party Representative may already have in its possession), wherever it
may be found, and for that purpose may pursue the same wherever it may be found,
and may at any time enter into any of the Guarantor’s premises where any of the
Collateral may be or is supposed to be, and search for, take possession of,
remove, keep and store any of the Collateral until the same shall be sold or
otherwise disposed of and the Lenders and Secured Party Representative shall
have the right to store and conduct a sale of the same in any of the Guarantor’s
premises without cost to the Lenders or the Secured Party
Representative. At any Lender’s or Secured Party Representative’s
request, the Guarantor will, at the Guarantor’s sole expense, assemble the
Collateral and make it available to the Lenders or the Secured Party
Representative, as the case may be, at a place or places to be designated by the
Secured Party Representative which is reasonably convenient to the Lenders or
the Secured Party Representative, as the case may be, and the
Guarantor.
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(b) Sale of
Collateral. The Secured Party Representative (on behalf of the
Lenders) may sell any or all of the Collateral at public or private sale, upon
such terms and conditions as the Secured Party Representative may deem
reasonably proper, and any Lender may purchase any or all of the Collateral at
any such sale. The Guarantor acknowledges that the Secured Party
Representative may be unable to effect a public sale of all or any portion of
the Collateral because of certain legal and/or practical restrictions and
provisions which may be applicable to the Collateral and, therefore, may be
compelled to resort to one or more private sales to a restricted group of
offerees and purchasers. The Guarantor consents to any such private
sale so made even though at places and upon terms less favorable than if the
Collateral were sold at public sale. No Lender nor the Secured Party
Representative shall have any obligation to clean-up or otherwise prepare the
Collateral for sale. The Secured Party Representative may apply the
net proceeds, after deducting all reasonable costs, expenses, attorneys’ and
paralegals’ fees incurred or paid at any time in the collection, protection and
sale of the Collateral and the Obligations, to the payment of the Obligations,
in such order of application as the Secured Party Representative may, from time
to time, elect, returning the excess proceeds, if any, to the
Guarantor. The Guarantor shall remain liable for any amount remaining
unpaid after such application, with interest at the rate provided in the Loan
Documents. Any notification of intended disposition of the Collateral
required by law shall be conclusively deemed reasonably and properly given if
given by any Lender or Secured Party Representative at least ten (10) calendar
days before the date of such disposition. The Guarantor hereby
confirms, approves and ratifies all acts and deeds of each Lender and/or the
Secured Party Representative relating to the foregoing, and each part thereof,
and expressly waives any and all claims of any nature, kind or description which
it has or may hereafter have against any Lender or the Secured Party
Representative or its representatives, by reason of taking, selling or
collecting any portion of the Collateral. The Guarantor consents to
releases of the Collateral at any time (including prior to default) and to sales
of the Collateral in groups, parcels or portions, or as an entirety, as any
Lender or Secured Party Representative shall deem reasonably
appropriate. The Guarantor expressly absolves each Lender and the
Secured Party Representative from any loss or decline in market value of any
Collateral by reason of delay in the enforcement or assertion or nonenforcement
of any rights or remedies under this Security Agreement.
5.2 [RESERVED].
5.3 Standards for Exercising
Remedies. Upon the occurrence and during the continuance of an
Event of Default, to the extent that applicable law imposes duties on any Lender
or the Secured Party Representative to exercise remedies in a commercially
reasonable manner, the Guarantor acknowledges and agrees that it is not
commercially unreasonable for any Lender or the Secured Party Representative (a)
to fail to incur expenses reasonably deemed significant by any Lender or the
Secured Party Representative to prepare Collateral for disposition, (b) to fail
to obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not required by other law, to fail to obtain governmental or third
party consents for the collection or disposition of Collateral to be collected
or disposed of, (c) to fail to exercise collection remedies against account
debtors or other party obligated on Collateral or to remove liens or
encumbrances on or any adverse claims against Collateral, (d) to exercise
collection remedies against account debtors and other parties obligated on
Collateral directly or through the use of collection agencies and other
collection specialists, (e) to advertise dispositions of Collateral through
publications or media of general circulation, whether or not the Collateral is
of a specialized nature, (f) to contact other parties, whether or not in the
same business as the Guarantor, for expressions of interest in acquiring all or
any portion of the Collateral, (g) to hire one or more professional auctioneers
to assist in the disposition of Collateral, whether or not the collateral is of
a specialized nature, (h) to dispose of Collateral by utilizing internet sites
that provide for the auction of assets of the types included in the Collateral
or that have the reasonable capability of doing so, or that match buyers and
sellers of assets, (i) to dispose of assets in wholesale rather than retail
markets, (j) to disclaim disposition warranties, including any warranties of
title, (k) to purchase insurance or credit enhancements to insure the Secured
Party Representative and/or any Lender against risks of loss, collection or
disposition of Collateral or to provide to the Secured Party Representative
and/or any Lender a guaranteed return from the collection or disposition of
Collateral, or (l) to the extent deemed reasonably appropriate by the Secured
Party Representative and/or any Lender to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist the Secured
Party Representative and/or any Lender in the collection or disposition of any
of the Collateral. The Guarantor acknowledges that the purpose of
this section is to provide non-exhaustive indications of what actions or
omissions by any Lender and/or the Secured Party Representative would not be
commercially unreasonable in the exercise of remedies against the Collateral by
any Lender and/or the Secured Party Representative and that other actions or
omissions by the Secured Party Representative and/or any Lender shall not be
deemed commercially unreasonable solely on account of not being indicated in
this section. Without limitation upon the foregoing, nothing
contained in this section shall be construed to grant any rights to the
Guarantor or to impose any duties on the Secured Party Representative or any
Lender that would not have been granted or imposed by this Security Agreement or
by applicable law in the absence of this section.
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5.4 UCC and Offset
Rights. Upon the occurrence and during the continuance of a
Security Agreement Event of Default, any Lender and the Secured Party
Representative (on behalf of each Lender) may exercise, from time to time, any
and all rights and remedies available to each of them under the UCC or under any
other applicable law in addition to, and not in lieu of, any rights and remedies
expressly granted in this Security Agreement or in any other agreements between
any Obligor and any Lender, and may, without demand or notice of any kind,
appropriate and apply toward the payment of the Guaranteed Obligations, whether
matured or unmatured, including reasonable costs of collection and attorneys’
and paralegals’ fees, and in such order of application as any Lender may, from
time to time, elect, any indebtedness of any Lender to any Obligor, however
created or arising, including balances, credits, deposits, accounts or moneys of
such Obligor in the possession, control or custody of, or in transit to any
Lender, as applicable.
5.5 Additional
Remedies. Upon the occurrence and during the continuance of an
Event of Default, the Secured Party Representative on behalf of the Lenders
shall have the right and power to:
(a) instruct
the Guarantor, at its own expense, to notify any parties obligated on any of the
Collateral, including any account debtors of Guarantor, to make payment directly
to the Lenders or the Secured Party Representative, as applicable, of any
amounts due or to become due thereunder, or the Lenders or the Secured Party
Representative, as applicable, may directly notify such obligors of the security
interest of the Lenders, and/or of the assignment to the Lenders or the Secured
Party Representative of the Collateral and direct such obligors to make payment
to the Lenders or the Secured Party Representative, as applicable, of any
amounts due or to become due with respect thereto, and thereafter, collect any
such amounts due on the Collateral directly from such party obligated
thereon;
(b) enforce
collection of any of the Collateral, including any Accounts, by suit or
otherwise, or make any compromise or settlement with respect to any of the
Collateral, or surrender, release or exchange all or any part thereof, or
compromise, extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder;
(c) take
possession or control of any proceeds and products of any of the Collateral,
including the proceeds of insurance thereon;
(d) extend,
renew or modify for one or more periods (whether or not longer than the original
period) the Obligations or any obligation of any nature of any other obligor
with respect to the Obligations;
(e) grant
releases, compromises or indulgences with respect to the Obligations, any
extension or renewal of any of the Obligations, any security therefor, or to any
other obligor with respect to the Obligations;
(f) transfer
the whole or any part of securities which may constitute Collateral into the
name of the Lenders, the Lenders’ nominee, or the Secured Party Representative
without disclosing, if any Lender so desires, that such securities so
transferred are subject to the security interest of the Lenders, and any
corporation, association, or any of the managers or trustees of any trust
issuing any of such securities, or any transfer agent, shall not be bound to
inquire, in the event that any Lender or such nominee makes any further transfer
of such securities, or any portion thereof, as to whether such Lender or such
nominee has the right to make such further transfer, and shall not be liable for
transferring the same;
10
(g) make an
election with respect to the Collateral under Section 1111 of the Bankruptcy
Code or take action under Section 364 or any other section of the Bankruptcy
Code; provided, however, that any such action of any Lender or the Secured Party
Representative as set forth herein shall not, in any manner whatsoever, impair
or affect the liability of the Guarantor hereunder, nor prejudice, waive, nor be
construed to impair, affect, prejudice or waive any Lender’s or the Secured
Party Representative’s rights and remedies at law, in equity or by statute, nor
release, discharge, nor be construed to release or discharge, the Guarantor, any
guarantor or other party liable to any Lender for the Obligations;
and
(h) at any
time, and from time to time, accept additions to, releases, reductions,
exchanges or substitution of the Collateral, without in any way altering,
impairing, diminishing or affecting the provisions of this Security Agreement,
the Loan Documents, or any of the other Obligations, or any
Lender’s and/or the Secured Party Representative’s rights hereunder
or relating to the Obligations.
The
Guarantor hereby ratifies and confirms whatever any Lender or the Secured Party
Representative may do with respect to the Collateral and agrees that neither any
Lender nor the Secured Party Representative shall be liable for any error of
judgment or mistakes of fact or law with respect to actions taken in connection
with the Collateral except to the extent resulting from the action, failure to
act, negligence and/or misconduct of any Lender, the Secured Party
Representative and/or any Affiliate of any of the foregoing.
5.6 Attorney-in-Fact. The
Guarantor hereby irrevocably makes, constitutes and appoints each Lender and the
Secured Party Representative (and any officer of any Lender or any party
designated by any Lender for that purpose) as the Guarantor’s true and lawful
proxy and attorney-in-fact (and agent-in-fact) in the Guarantor’s name, place
and stead, with full power of substitution, to (a) take such actions as are
permitted in this Security Agreement, (b) execute such financing statements and
other documents and to do such other acts as any Lender or the Secured Party
Representative may reasonably require to perfect and preserve any Lender’s
security interest in, and to enforce such interests in the Collateral, and (c)
upon the occurrence and during the continuance of an Event of Default, carry out
any remedy provided for in this Security Agreement, including endorsing the
Guarantor’s name to checks, drafts, instruments and other items of payment, and
proceeds of the Collateral, executing change of address forms with the
postmaster of the United States Post Office serving the address of the
Guarantor, changing the address of the Guarantor to that of a Lender or the
Secured Party Representative, opening all envelopes addressed to the Guarantor
and applying any payments contained therein to the Obligations. The
Guarantor hereby acknowledges that the constitution and appointment of such
proxy and attorney-in-fact are coupled with an interest and are
irrevocable. The Guarantor hereby ratifies and confirms all that such
attorney-in-fact may do or cause to be done by virtue of any provision of this
Security Agreement.
5.7 No
Marshaling. No Lender nor the Secured Party Representative
shall be required to marshal any present or future collateral security
(including this Security Agreement and the Collateral) for, or other assurances
of payment of, the Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order. To
the extent that it lawfully may, the Guarantor hereby agrees that it will not
invoke any law relating to the marshaling of collateral which might cause delay
in or impede the enforcement of any Lender’s and/or the Secured Party
Representative’s rights under this Security Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Guarantor hereby irrevocably waives the benefits of all such
laws.
11
5.8 No
Waiver. No Event of Default shall be waived by any Lender or
the Secured Party Representative on behalf of the Lenders except in
writing. No failure or delay on the part of any Lender or the Secured
Party Representative in exercising any right, power or remedy hereunder shall
operate as a waiver of the exercise of the same or any other right at any other
time; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. There shall be no obligation
on the part of any Lender or the Secured Party Representative to exercise any
remedy available to such Lender or the Secured Party Representative in any
order. The remedies provided for herein are cumulative and not
exclusive of any remedies provided at law or in equity. The Guarantor
agrees that in the event that the Guarantor fails to perform, observe or
discharge any of its Obligations or liabilities under this Security Agreement or
any other agreements with any Lender, no remedy of law will provide adequate
relief to any Lender, and further agrees that each Lender shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
Section
6 MISCELLANEOUS.
6.1 Entire
Agreement. This Security Agreement and the other Loan
Documents (a) constitute the entire agreement between the Parties with respect
to the subject matter hereof and thereof; and (b) are the final expression of
the intentions of the Guarantor and the, Lenders. No promises, either
expressed or implied, exist between the Guarantor and the Lenders, unless
contained herein or therein. This Security Agreement, together with
the other Loan Documents supersedes all negotiations, representations,
warranties, commitments, term sheets, discussions, negotiations, offers or
contracts (of any kind or nature, whether oral or written) prior to or
contemporaneous with the execution hereof with respect to any matter, directly
or indirectly related to the terms of this Security Agreement and the other Loan
Documents. This Security Agreement and the other Loan Documents are
the result of negotiations among the Lenders and the Guarantor and the other
parties thereto, and have been reviewed (or have had the opportunity to be
reviewed) by counsel to all such parties, and are the products of all
Parties. Accordingly, this Security Agreement and the other Loan
Documents shall not be construed more strictly against a Lenders merely because
of such Lender’s involvement in their preparation.
6.2 Amendments. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Security Agreement or the other Loan Documents shall in any event be
effective unless the same shall be in writing and acknowledged by the Guarantor
and each 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.
12
6.3 Forum Selection and Consent
to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE STATE AND/OR
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED
THAT NOTHING IN THIS SECURITY AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE
ANY LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS
TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
6.4 Waiver of Jury
Trial. EACH LENDER AND THE GUARANTOR, AFTER CONSULTING OR
HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SECURITY AGREEMENT, ANY
NOTE, ANY OTHER LOAN DOCUMENT, ANY OF THE OTHER OBLIGATIONS, THE COLLATERAL, OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR ANY
COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH ANY LENDER AND THE GUARANTOR ARE
ADVERSE PARTIES, AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH LENDER GRANTING ANY FINANCIAL ACCOMMODATION TO THE
BORROWER.
6.5 Assignability. Any
Lender may at any time assign its rights in this Security Agreement, the other
Loan Documents, the Obligations, or any part thereof and transfer such Lender’s
rights in any or all collateral for the Obligations, and such Lender thereafter
shall be relieved from all liability with respect to such
collateral. The Guarantor may not sell or assign this Security
Agreement, or any other agreement with any Lender or any portion thereof, either
voluntarily or by operation of law, without the prior written consent of each
Lender. This Security Agreement shall be binding upon each Lender and
the Guarantor and their respective legal representatives and
successors. All references herein to the Guarantor shall be deemed to
include any successors, whether immediate or remote.
13
6.6 Governing
Law. This Security Agreement and the other Loan Documents
shall be delivered and accepted in and shall be deemed to be contracts made
under and governed by the internal laws of the State of New York applicable to
contracts made and to be performed entirely within such state, without regard to
conflict of laws principles.
6.7 Enforceability. Wherever
possible, each provision of this Security Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Security Agreement shall be prohibited by, unenforceable or invalid
under any jurisdiction, such provision shall as to such jurisdiction, be
severable and be ineffective to the extent of such prohibition or invalidity,
without invalidating the remaining provisions of this Security Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
6.8 Survival of Guarantor
Representations. All covenants, agreements, representations
and warranties made by the Guarantor herein shall, notwithstanding any
investigation by any Lender, be deemed material and relied upon by each Lender
and shall survive the making and execution of this Security Agreement and the
other Loan Documents and shall be deemed to be continuing representations and
warranties (except to the extent such representations or warranties expressly
relate to an earlier date) until such time as the Guaranty has been irrevocably
terminated and/or the Guaranteed Obligations have been indefeasibly paid in full
in cash. Each Lender, in extending financial accommodations to the
Guarantor, is expressly acting and relying on the aforesaid representations and
warranties.
6.9 [RESERVED].
6.10 Counterparts; Facsimile
Signatures. This Security Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Security
Agreement. Receipt of an executed signature page to this Security
Agreement by facsimile or other electronic transmission shall constitute
effective delivery thereof. Electronic records of executed Loan Documents
maintained by any Lender shall be deemed to be originals thereof.
6.11 Notices. Any
notice, demand, approval, consent or communication required, permitted, or
desired to be given hereunder, will be in writing and will be served on the
Parties at the following respective addresses:
|
If
to Lenders:
|
At
the addresses set forth on Schedule 1
|
|
If
to Guarantor:
|
Default
Servicing, LLC
000
X. Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
ATTN: Chief
Financial Officer
Facsimile: (000)
000-0000
|
|
If
to Secured Party Representative:
|
Chardan
Capital Markets, LLC
00
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
ATTN:
Xxxxx Xxxxxxx
Facsimile:
(000) 000-0000
|
14
or such
other address, or the attention of such other person or officer, as any Party
may by written notice designate. Any notice, demand, or communication
required, permitted, or desired to be given hereunder will be sent either by
hand delivery, by prepaid certified or registered mail, return receipt
requested, postage prepaid in the United States Mail, by a nationally recognized
overnight courier, or via facsimile or other electronic transmission (including
transmission in portable document format by electronic mail). If any
notice, demand or communication is sent by facsimile or electronic mail
transmission, an original must be simultaneously sent by one of the
foregoing mail or courier methods. All such notices, demands or
communications shall be deemed to have been received (a) if by personal
delivery, facsimile machine or other electronic transmission (including
transmission in portable document format by electronic mail), on the date after
such delivery, (b) if by certified or registered mail, on the third business day
after the mailing thereof or (c) if by next-day or overnight courier or
delivery, on the date of such delivery.
6.12 Costs, Fees and
Expenses. The Guarantor shall pay or reimburse each Lender for
all reasonable costs, fees and expenses incurred by such Lender or for which
such Lender becomes obligated in connection with the negotiation, preparation,
consummation, collection of the Guaranteed Obligations or enforcement of this
Security Agreement, the other Loan Documents and all other documents provided
for herein or delivered or to be delivered hereunder or in connection herewith
(including any amendment, supplement or waiver to any Loan Document), or during
any workout, restructuring or negotiations in respect thereof, including,
without limitation, reasonable consultants' fees and attorneys' fees and time
charges of counsel to each Lender, which shall also include reasonable
attorneys' fees and time charges of attorneys who may be employees of any Lender
or any Affiliate of any Lender, plus reasonable costs and expenses of such
attorneys or of any Lender, if the transaction contemplated hereby shall be
consummated. In furtherance of the foregoing, the Guarantor shall pay
any and all stamp and other taxes, UCC search fees, filing fees and other
reasonable costs and expenses in connection with the execution and delivery of
this Security Agreement and the other Loan Documents to be delivered hereunder,
and agrees to save and hold each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such costs and expenses. That portion of the Guaranteed
Obligations consisting of costs, expenses or advances to be reimbursed by the
Guarantor to each Lender pursuant to this Security Agreement or the other Loan
Documents which are not paid on or prior to the date hereof shall be payable by
the Guarantor to applicable Lender on demand. If at any time or times
hereafter any Lender: (a) employs counsel for advice or other representation (i)
with respect to this Security Agreement or the other Loan Documents, (ii) to
represent any Lender in any litigation, contest, dispute, suit or proceeding or
to commence, defend, or intervene or to take any other action in or with respect
to any litigation, contest, dispute, suit, or proceeding (whether instituted by
a Lender, the Guarantor, or any other party) in any way or respect relating to
this Security Agreement, the other Loan Documents or the Guarantor's business or
affairs, or (iii) to enforce any rights of any Lender against the
Guarantor or any other party that may be obligated to any Lender by virtue of
this Security Agreement or the other Loan Documents; (b) takes any action to
protect, collect, sell, liquidate, or otherwise dispose of any Collateral for
the Guaranteed Obligations as permitted pursuant to this Security Agreement or
by applicable law; and/or (c) attempts to or enforces any of any Lender's rights
or remedies under this Security Agreement or the other Loan Documents, the
reasonable costs and expenses incurred by the Lender in any manner or way with
respect to the foregoing, shall be part of the Guaranteed Obligations, payable
by the Guarantor to the applicable Lender on demand.
15
6.13 Secured Party
Representative. Each Lender, with respect to the Guaranteed Obligations,
hereby constitutes and appoints Chardan Capital Markets, LLC, or its designee,
as its representative (the “Secured Party
Representative”) and their true and lawful attorney in fact, with full
power and authority in each of their names and on behalf of each of them to act
on behalf of each of them in the absolute discretion of the Secured Party
Representative, but only with respect to the following provisions of this
Security Agreement, with the power to (a) give and receive notices pursuant this
Security Agreement, (b) waive any provision of this Security Agreement, (c)
collect or accept funds or Collateral on behalf of the Lenders, (d) hold,
maintain and enforce any lien and security interest in the Collateral
(including, without limitation, the naming of Secured Party Representative, as
agent for Creditors, as secured party in all UCC financing statements filed or
to be filed against any Obligor in relation to the Collateral), and (e) to do
all things and to perform all acts, including executing and delivering all
agreements, certificates, receipts, instructions and other instruments
contemplated by or deemed advisable to effectuate the intent of this Security
Agreement, and enforcing any and all security interests and liens on the
Collateral granted by each Obligor or any other person or entity to secure any
Obligations. This appointment and grant of power and authority is by
unanimous approval of the Lenders and the Lenders may change the Secured Party
Representative by a written notice signed by all of the Lenders delivered to the
Guarantor. Each Lender hereby consents to the taking of any and all
actions and the making of any decisions required or permitted to be taken or
made by the Secured Party Representative pursuant to this Security Agreement.
Each Lender agrees that the Secured Party Representative shall have no
obligation or liability to any person for any action or omission taken or
omitted by the Secured Party Representative in good faith hereunder, and each
Lender shall, on a proportionate basis in accordance with the proportion of debt
owed to it by the Borrower, indemnify and hold the Secured Party Representative
harmless from and against any and all loss, damage, expense or liability
(including reasonable counsel fees and expenses) which the Secured Party
Representative may sustain as a result of any such action or omission by the
Secured Party Representative hereunder. The Guarantor shall be entitled to rely
upon any document or other paper delivered by the Secured Party Representative
as (i) genuine and correct, and (ii) having been duly signed or sent by the
Secured Party Representative, and the Guarantor shall not be liable to any
Lender for any action taken or omitted to be taken by the Guarantor in such
reliance. All moneys collected by the Secured Party Representative
upon any sale or other disposition of any Collateral or upon receipt of any
proceeds relating to any Collateral (collectively, the “Collateral
Proceeds”), shall be applied as follows: (A) first, to the payment of (1)
any and all sums advanced by the Secured Party Representative in order to
preserve or protect the any Collateral or preserve or protect its security
interest in the any Collateral, (2) the reasonable out-of-pocket fees and
expenses of liquidating or otherwise disposing or realizing on the Collateral,
or of any exercise by the Secured Party Representative of its rights or remedies
hereunder or under the other Loan Documents, together with reasonable attorneys’
fees and expenses and court costs, incurred by the Secured Party Representative
or any Lender in connection therewith; (B) second, to the extent moneys remain
after the application pursuant to the preceding clause (A), to the payment of
any and all outstanding Guaranteed Obligations owing to each Lender on a pro
rata basis; and (C) third, to the extent moneys remain after the application
pursuant to the preceding clauses (A) and (B), any surplus then remaining shall
be held by the Secured Party Representative as cash collateral pending payment
in full of all Guaranteed Obligations and irrevocable termination of the Loan
Documents, after which any remainder shall be paid to the Guarantor or as
otherwise required by law or as a court of competent jurisdiction shall
direct. In the event any payment or distribution with respect to the
Collateral is made (whether voluntarily, involuntarily, through the exercise of
any right of set-off or counterclaim or otherwise), the entity receiving such
payment shall receive and hold the same in trust, as trustee, for the equal
benefit of Lenders and shall forthwith deliver the same to the Secured Party
Representative for the equal benefit of the Lenders in precisely the form
received. Each such payment or distribution set forth in the
immediately preceding sentence shall be applied by the Secured Party
Representative in accordance with this section.
[Signatures
appear on the following page]
16
IN
WITNESS WHEREOF, the Guarantor and the Lenders have executed this Security
Agreement as of the date first above written.
Guarantor:
By:
_________________________
Name:
_________________________
Title:
_________________________
Agreed
and accepted:
Lenders:
By:
_________________________
Name:
_________________________
Title:
_________________________
Secured
Party Representative:
By:
_________________________
Name:
_________________________
Title:
_________________________
