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EXHIBIT 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of April 30, 1998 among Packaged
Ice, Inc., a Texas corporation ("Debtor") and Antares Leveraged Capital Corp.,
a Delaware corporation (the "Secured Party"), as agent for the benefit of the
"Lenders" (as such term is hereinafter defined).
W I T N E S S E T H:
WHEREAS, Debtor has entered into that certain Credit Agreement of
even date herewith (the same, as it may be amended, restated, modified or
supplemented and in effect from time to time, being herein referred to as the
"Credit Agreement") with Secured Party, as agent for the benefit of all lenders
and individually as a lender (together with all other "Lenders" thereunder as
defined therein, the "Lenders"), and the other Lenders parties thereto,
providing for the Lenders to make available to Debtor certain term and
revolving credit facilities on the terms and conditions set forth therein; and
WHEREAS, to induce the Secured Party and the Lenders to enter
into the Credit Agreement and make the Loans thereunder, Debtor has agreed to
pledge and grant a security interest in the Collateral (as hereinafter defined)
as security for the Liabilities (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein without
definition and defined in the Credit Agreement are used herein as defined
therein. In addition, as used herein:
"Accounts" means, as at any date of determination, all "accounts"
(as such term is defined in the Uniform Commercial Code) of Debtor,
including, without limitation, the unpaid portion of the obligation of a
customer of Debtor in respect of Inventory purchased by and shipped to
such customer and/or the rendition of services by Debtor, as stated on
the respective invoice of Debtor, net of any credits, rebates or offsets
owed to such customer.
"Chattel Paper" means any "chattel paper," as such term is
defined in the Uniform Commercial Code.
"Collateral" shall have the meaning ascribed thereto in Section 3
hereof.
"Contracts" means all contracts, undertakings, or other
agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments) in or under
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which Debtor may now or hereafter have any right, title or interest,
including, without limitation, with respect to an Account, any agreement
relating to the terms of payment or the terms of performance thereof.
"Copyrights" means any copyrights, rights and interests in
copyrights, works protectable by copyrights, copyright registrations and
copyright applications, including, without limitation, the copyright
registrations and applications listed on Schedule III attached hereto,
and all renewals of any of the foregoing, all income, royalties, damages
and payments now and hereafter due and/or payable under or with respect
to any of the foregoing, including, without limitation, damages and
payments for past, present and future infringements of any of the
foregoing and the right to xxx for past, present and future
infringements of any of the foregoing.
"Documents" means any "documents," as such term is defined in the
Uniform Commercial Code, and shall include, without limitation, all
documents of title (as defined in the Uniform Commercial Code), bills of
lading or other receipts evidencing or representing Inventory or
Equipment.
"Equipment" means any "equipment," as such term is defined in the
Uniform Commercial Code and, in any event, shall include, Motor
Vehicles.
"Fixtures" means any "fixtures," as such term is defined in the
Uniform Commercial Code, and, in any event, shall include, without
limitation, all plant fixtures, trade fixtures, business fixtures, other
fixtures and storage facilities.
"General Intangibles" means any "general intangibles," as such
term is defined in the Uniform Commercial Code, and, in any event, shall
include, without limitation, all right, title and interest in or under
any Contract, models, drawings, materials and records, claims, literary
rights, goodwill, rights of performance, Copyrights, Trademarks,
Patents, warranties, rights under insurance policies and rights of
indemnification.
"Goods" means any "goods", as such term is defined in the Uniform
Commercial Code.
"Instruments" means any "instrument," as such term is defined in
the Uniform Commercial Code, and shall include, without limitation,
promissory notes, drafts, bills of exchange, trade acceptances, letters
of credit, and Chattel Paper.
"Inventory" means all of the "inventory" (as such term is
defined in the Uniform Commercial Code) of Debtor, including, but not
limited to, all
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merchandise, raw materials, parts, supplies, work-in-process and
finished goods intended for sale, together with all the containers,
packing, packaging, shipping and similar materials related thereto, and
including such inventory as is temporarily out of the Debtor's custody
or possession, including inventory on the premises of others and items
in transit.
"Investment Property" means any "investment property", as such
term is defined in the Uniform Commercial Code.
"Liabilities" shall mean all obligations and liabilities of
Debtor under or in respect of this Agreement and the Credit Agreement.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers,
trucks and other like property, whether or not the title thereto is
governed by a certificate of title or ownership.
"Patents" means any patents and patent applications, including,
without limitation, the inventions and improvements described and
claimed therein, all patentable inventions and those patents and patent
applications listed on Schedule IV attached hereto, and the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
of any of the foregoing, and all income, royalties, damages and payments
now or hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for past,
present and future infringements of any of the foregoing and the right
to xxx for past, present and future infringements of any of the
foregoing.
"Proceeds" means "proceeds," as such term is defined in the
Uniform Commercial Code and, in any event, includes, without limitation,
(a) any and all proceeds of any insurance, indemnity, warranty or
guaranty payable with respect to any of the Collateral and with respect
to any General Intangible not otherwise constituting Collateral, (b) any
and all payments (in any form whatsoever) made or due and payable from
time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral
by any governmental body, authority, bureau or agency (or any person
acting under color of governmental authority), and (c) any and all other
amounts from time to time paid or payable under, in respect of or in
connection with any of the Collateral and any General Intangible not
otherwise constituting Collateral.
"Representative" means any Person acting as agent, representative
or trustee on behalf of the Secured Party from time to time.
"Trademarks" means any trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service
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marks, logos, other business identifiers, prints and labels on which any
of the foregoing have appeared or appear, all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, the trademarks and applications listed in
Schedule V attached hereto and renewals thereof (but specifically
excluding all "intent to use" applications to the extent that such
applications are non-transferable under applicable law), and all income,
royalties, damages and payments now or hereafter due and/or payable
under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to xxx for past,
present and future infringements of any of the foregoing.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
as in effect from time to time in the State of Illinois.
Section 2. Representations, Warranties and Covenants of
Debtor. After giving effect to the Related Transactions, Debtor represents and
warrants to, and covenants with, the Secured Party, for the benefit of the
Secured Party and the Lenders, as follows:
(a) Debtor is the owner of the Collateral in which it purports
to grant a security interest pursuant to Section 3 hereof (subject, with
respect to after acquired Collateral, to Debtor acquiring the same) and no Lien
other than Permitted Liens exists or will exist upon such Collateral at any
time;
(b) this Agreement is effective to create in favor of Secured
Party for the benefit of the Secured Party and the Lenders a valid security
interest in and Lien upon all of Debtor's right, title and interest in and to
the Collateral, and, upon the filing of appropriate Uniform Commercial Code
financing statements in the jurisdictions listed on Schedule I attached hereto,
such security interest will be duly perfected in all the Collateral in which a
security interest can be perfected by the filing of a financing statement, and
upon delivery of the Instruments to the Secured Party or its Representative,
duly endorsed by Debtor or accompanied by appropriate instruments of transfer
duly executed by Debtor, the security interest in the Instruments will be duly
perfected;
(c) all of the Equipment, Inventory and Goods owned by Debtor
is located at the places as specified on Schedule I attached hereto. Except as
disclosed on Schedule I, none of the Collateral is in the possession of any
bailee, warehousemen, processor or consignee. The chief place of business,
chief executive office and the office where Debtor keeps its books and records
are located at the place as specified on Schedule I. Debtor (including any
Person acquired by Debtor) does not do business and has not done business
during the past five (5) years under any trade name or fictitious business name
except as disclosed on Schedule II attached hereto;
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(d) no Copyrights, Patents or Trademarks listed on Schedules
III, IV and V, respectively, if any, that are material to the operation of the
business of Debtor have been adjudged invalid or enforceable or have been
canceled, in whole or in part, or are not presently subsisting. Each of such
Copyrights, Patents and Trademarks that are material to the operation of the
business of Debtor is valid and enforceable. Debtor is the sole and exclusive
owner of the entire and unencumbered right, title and interest in and to each
of such Copyrights, Patents and Trademarks, identified on Schedules III, IV and
V, as applicable, as being owned by Debtor, free and clear of any liens,
charges and encumbrances, including without limitation licenses, shop rights
and covenants by Debtor not to xxx third persons, other than Permitted Liens.
Debtor has adopted, used and is currently using, or has a current bona fide
intention to use, all of such Trademarks and Copyrights that are material to
the operation of the business of Debtor. Debtor has no notice of any suits or
actions commenced or threatened with reference to the Copyrights, Patents or
Trademarks owned by it.
(e) Debtor agrees to deliver to the Secured Party an updated
Schedule I, II, III, IV and/or V within five (5) days of any change thereto
with respect to Debtor.
(f) All depositary and other accounts maintained by Debtor are
described on Schedule VI hereto, which description includes for each such, the
name, address and telephone and telecopy numbers of the financial institution
at which such account is maintained, the account number and the account
officer, if any, of such account. Debtor shall not open any new accounts
unless Debtor shall have given Secured Party ten (10) Business Days' prior
written notice of its intention to open any such new accounts. Debtor shall
deliver to Secured Party a revised version of Schedule VI showing any changes
thereto within five (5) Business Days of any such change with respect to
Debtor. Debtor hereby authorizes the financial institutions at which Debtor
maintains an account to provide Secured Party with such information with
respect to such account as Secured Party from time to time reasonably may
request, and Debtor hereby consents to such information being provided to
Secured Party.
Section 3. Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Liabilities, Debtor hereby pledges and grants to the Secured
Party, for the benefit of the Secured Party and the Lenders, a Lien on and
security interest in and to all of Debtor's right, title and interest in the
following property and interests in property, whether now owned by Debtor or
hereafter acquired and whether now existing or hereafter coming into existence
and wherever located (all being collectively referred to herein as
"Collateral"):
(a) the Instruments of Debtor, together with all payments
thereon or thereunder:
(b) all Accounts;
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(c) all Inventory;
(d) all General Intangibles (excluding any General Intangible
as to which the grant of a security interest therein would constitute a
violation of a valid and enforceable restriction on such grant (until such time
as any required consent shall have been obtained, Debtor agreeing to use its
commercially reasonable efforts to obtain any such required consent));
(e) all Equipment;
(f) all Documents;
(g) all Contracts (excluding any General Intangible as to
which the grant of a security interest therein would constitute a violation of
a valid and enforceable restriction on such grant (until such time as any
required consent shall have been obtained, Debtor agreeing to use its
commercially reasonable efforts to obtain any such required consent));
(h) all Goods;
(i) all Fixtures;
(j) all Investment Property;
(k) the balance from time to time in all bank and depository
accounts maintained by Debtor; and
(l) all other tangible and intangible property of Debtor,
including, without limitation, all Proceeds, products, accessions, rents,
profits, income, benefits, substitutions, additions and replacements of and to
any of the property of Debtor described in the preceding clauses of this
Section 3 (including, without limitation, any proceeds of insurance thereon and
all rights, claims and benefits against any Person relating thereto and
including all Proceeds of Contracts and other General Intangibles excluded from
clauses (d) and (g) above) and all books, correspondence, files, records,
invoices and other papers, including without limitation all tapes, cards,
computer runs, computer programs, computer files and other papers, documents
and records in the possession or under the control of Debtor or any computer
bureau or service company from time to time acting for Debtor.
Section 4. Covenants; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, Debtor hereby
agrees with the Secured Party, for the benefit of Secured Party and the
Lenders, as follows:
4.1. Delivery and Other Perfection; Maintenance, etc.
(a) Delivery of Instruments. Debtor shall deliver and pledge
to the Secured Party or its Representative any and all Instruments, duly
endorsed and/or accompanied by such
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instruments of assignment and transfer executed by Debtor in such form and
substance as the Secured Party or its Representative may request; provided,
that so long as no Event of Default shall have occurred and be continuing,
Debtor may retain for collection in the ordinary course of business any
Instruments received by Debtor in the ordinary course of business, and the
Secured Party or its Representative shall, promptly upon request of Debtor,
make appropriate arrangements for making any other Instruments pledged by
Debtor available to Debtor for purposes of presentation, collection or renewal
(any such arrangement to be effected, to the extent deemed appropriate by the
Secured Party or its Representative, against trust receipt or like document).
(b) Other Documents and Actions. Debtor shall give, execute,
deliver, file and/or record any financing statement, notice, instrument,
document, agreement or other papers that may be necessary or desirable (in the
reasonable judgment of the Secured Party or its Representative) to create,
preserve, perfect or validate the security interest granted pursuant hereto or
to enable the Secured Party or its Representative to exercise and enforce the
rights of the Secured Party hereunder with respect to such pledge and security
interest, provided that notices to account debtors in respect of any Accounts
or Instruments shall be subject to the provisions of clause (e) below.
(c) Books and Records. Debtor shall maintain at its own cost
and expense complete and accurate books and records of the Collateral,
including, without limitation, a record of all payments received and all
credits granted with respect to the Collateral and all other dealings with the
Collateral. Upon the occurrence and during the continuation of any Event of
Default, Debtor shall deliver and turn over any such books and records (or true
and correct copies thereof) to the Secured Party or its Representative at any
time on demand. Debtor shall permit any Representative of the Secured Party to
inspect such books and records at any time during reasonable business hours and
will provide photocopies thereof at Debtor's expense to the Secured Party upon
request of the Secured Party.
(d) Motor Vehicles. Debtor shall, promptly upon the request of
the Secured Party or its Representative, cause the Secured Party to be listed
as the lienholder on each certificate of title or ownership covering any items
of Equipment, including Motor Vehicles.
(e) Notice to Account Debtors; Verification. (i) Upon the
occurrence and during the continuance of any Event of Default, upon request of
the Secured Party or its Representative, Debtor shall promptly notify (and
Debtor hereby authorizes the Secured Party and its Representative so to notify)
each account debtor in respect of any Accounts or Instruments that such
Collateral has been assigned to the Secured Party hereunder, and that any
payments due or to become due in respect of such Collateral are to be made
directly to the Secured Party, and (ii) the Secured Party and its
Representative shall have the right at any time or times to make direct
verification with the account debtors of any and all of the Accounts.
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(f) Intellectual Property. Debtor represents and warrants
that the Copyrights, Patents and Trademarks listed on Schedules III, IV and V,
respectively, constitute all of the registered Copyrights and all of the
Patents and Trademarks now owned by Debtor. If Debtor shall (i) obtain rights
to any new patentable inventions, any registered Copyrights or any Patents or
Trademarks, or (ii) become entitled to the benefit of any registered Copyrights
or any Patents or Trademarks or any improvement on any Patent, the provisions
of this Agreement above shall automatically apply thereto and Debtor shall give
to Secured Party prompt written notice thereof. Debtor hereby authorizes
Secured Party to modify this Agreement by amending Exhibits III, IV and V, as
applicable, to include any such registered Copyrights or any such Patents and
Trademarks. Debtor shall have the duty (i) to prosecute diligently any patent,
trademark, or service xxxx applications pending as of the date hereof or
hereafter, (ii) to make application on unpatented but patentable inventions and
on trademarks, copyrights and service marks, as appropriate, (iii) to preserve
and maintain all rights in the Copyrights, Patents and Trademarks, to the
extent material to the operations of the business of Debtor and (iv) to ensure
that the Copyrights, Patents and Trademarks are and remain enforceable, to the
extent material to the operations of the business of Debtor. Any expenses
incurred in connection with Debtor's obligations under this Section 4.1(f)
shall be borne by Debtor. Debtor shall not abandon any right to file a patent,
trademark or service xxxx application, or abandon any pending patent,
application or any other Copyright, Patent or Trademark without the written
consent of Secured Party, which consent shall not be unreasonably withheld.
(g) Further Identification of Collateral. Debtor will, when
and as often as requested by the Secured Party or its Representative, furnish
to the Secured Party or such Representative, statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Secured Party or its Representative may reasonably
request, all in reasonable detail.
(h) Investment Property. Debtor will take any and all actions
required or requested by the Secured Party, from time to time, to (i) cause the
Secured Party to obtain exclusive control of any Investment Property owned by
Debtor in a manner acceptable to the Secured Party and (ii) obtain from any
issuers of Investment Property and such other Persons, for the benefit of the
Secured Party, written confirmation of the Secured Party's control over such
Investment Property. For purposes of this Section 4.1(h), the Secured Party
shall have exclusive control of Investment Property if (i) such Investment
Property consists of certificated securities and Debtor delivers such
certificated securities to the Secured Party (with appropriate endorsements if
such certificated securities are in registered form); (ii) such Investment
Property consists of uncertificated securities and either (x) Debtor delivers
such uncertificated securities to the Secured Party or (y) the issuer thereof
agrees, pursuant to documentation in form and substance satisfactory to the
Secured Party, that it will comply with instructions originated by the Secured
Party without further consent by Debtor, and (iii) such Investment Property
consists of security entitlements and either (x) the Secured Party becomes the
entitlement holder thereof or (y) the appropriate securities intermediary
agrees, pursuant to the documentation in form and
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substance satisfactory to the Secured Party, that it will comply with
entitlement orders originated by the Secured Party without further consent by
Debtor.
(i) Compliance with Loan Documents. Debtor shall comply with
the provisions of the Loan Documents applicable thereto, including, without
limitation, maintenance of insurance, restrictions on dispositions, and
providing Secured Party and its representatives the right to inspections with
respect to the Collateral.
4.2. Other Liens. Debtor will not create, permit or suffer to
exist, and will defend the Collateral against and take such other action as is
necessary to remove, any Lien on the Collateral except Permitted Liens, and
will defend the right, title and interest of the Secured Party in and to the
Collateral and in and to all Proceeds thereof against the claims and demands of
all Persons whatsoever.
4.3. Preservation of Rights. Whether or not any Event of
Default has occurred or is continuing, the Secured Party and its Representative
may, but shall not be required to, after notice to Debtor in the absence of a
continuing Event of Default, take any steps the Secured Party or its
Representative deems necessary or appropriate to preserve any Collateral or any
rights against third parties to any of the Collateral, including obtaining
insurance of Collateral at any time when Debtor has failed to do so, and Debtor
shall promptly pay, or reimburse the Secured Party for, all expenses incurred
in connection therewith.
4.4. Name Change; Location; Bailees.
(a) Debtor will notify Secured Party promptly in writing prior
to any change in Debtor's name, identity or corporate structure or the proposed
use by Debtor of any tradename or fictitious business name other than any such
name set forth on Schedule II attached hereto.
(b) Except for the sale of Inventory in the ordinary course of
business and except as permitted by the Credit Agreement, Debtor will keep the
Collateral at the locations specified in Schedule I applicable to Debtor.
Debtor will give Secured Party thirty (30) day's prior written notice of any
change in Debtor's chief place of business or of any new location for any of
the Collateral.
(c) If any Collateral is at any time in the possession or
control of any warehousemen, bailee, consignee or processor, Debtor shall, upon
the request of Secured Party or its Representative, notify such warehousemen,
bailee, consignee or processor of the Lien and security interest created hereby
and shall instruct such Person to hold all such Collateral for Secured Party's
account subject to Secured Party's instructions.
4.5. Bank Accounts.
(a) At Secured Party's request, on or prior to the Closing
Date, or at any time thereafter, the Secured Party and Debtor shall enter into
a bank agency agreement ("Bank
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Agency Agreement"), in a form specified by the Secured Party, with each
financial institution with which Debtor maintains from time to time any deposit
accounts (general or special), which financial institutions are set forth on
Schedule VI attached hereto. Pursuant to the Bank Agency Agreements and
pursuant hereto, Debtor grants and shall grant to the Secured Party a
continuing lien upon, and security interest in, all such accounts and all funds
at any time paid, deposited, credited or held in such accounts (whether for
collection, provisionally or otherwise) or otherwise in the possession of such
financial institutions, and each such financial institution shall act as the
Secured Party's agent in connection therewith. Following the Closing Date,
Debtor shall not establish any deposit account with any financial institution
unless prior thereto, at the request of Secured Party, the Secured Party and
Debtor shall have entered into a Bank Agency Agreement with such financial
institution.
(b) Upon the Secured Party's request following the occurrence
of an Event of Default, Debtor shall establish lock-box or blocked accounts
(collectively, "Blocked Accounts") in Debtor's name with such banks as are
acceptable to the Secured Party ("Collecting Banks"), subject to irrevocable
instructions in a form specified by the Secured Party, to which the obligors of
all Accounts shall directly remit all payments on Accounts and in which Debtor
will immediately deposit all cash payments for Inventory or other cash payments
constituting proceeds of Collateral in the identical form in which such payment
was made, whether by cash or check. In addition, the Secured Party may
establish one or more depository accounts at each Collecting Bank or at a
centrally located bank (collectively, the "Depository Account"). From and
after receipt by any Collecting Bank of written notice from the Secured Party
to such Collecting Bank that an Event of Default has occurred and is
continuing, all amounts held or deposited in the Blocked Accounts held by such
Collecting Bank shall be transferred to the Depository Account. Subject to the
foregoing, Debtor hereby agrees that all payments received by the Secured Party
or any Lender whether by cash, check, wire transfer or any other instrument,
made to such Blocked Accounts or otherwise received by the Secured Party or any
Lender and whether in respect of the Accounts or as proceeds of other
Collateral or otherwise will be the sole and exclusive property of the Secured
Party for the benefit of the Secured Party and the Lenders. Debtor, and any of
its Affiliates, employees, agents and other Persons acting for or in concert
with Debtor shall, acting as trustee for the Secured Party, receive, as the
sole and exclusive property of the Secured Party, any moneys, checks, notes,
drafts or other payments relating to and/or proceeds of Accounts or other
Collateral which come into the possession or under the control of Debtor or any
Affiliates, employees, agent or other Persons acting for or in concert with
Debtor, and immediately upon receipt thereof, Debtor or Persons shall deposit
the same or cause the same to be deposited in kind, in a Blocked Account.
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4.6. Events of Default, Etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) Debtor shall, at the request of the Secured Party or its
Representative, assemble the Collateral at such place or places as may be
reasonably designated by the Secured Party or its Representative;
(b) the Secured Party or its Representative may make any
reasonable compromise or settlement deemed desirable with respect to any of the
Collateral and may extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, any of the Collateral;
(c) the Secured Party shall have all of the rights and
remedies with respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Uniform Commercial Code is in effect in
the jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted, including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Secured Party were the sole
and absolute owner thereof (and Debtor agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Secured Party or its Representative in their
discretion may, in the name of the Secured Party or in the name of Debtor or
otherwise, demand, xxx for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so;
(e) the Secured Party or its Representative may take immediate
possession and occupancy of any premises owned, used or leased by Debtor and
exercise all other rights and remedies of an assignee which may be available to
the Secured Party; and
(f) the Secured Party may, upon ten (10) Business Days' prior
written notice to Debtor of the time and place (which notice Debtor hereby
agree is commercially reasonable notification for purposes hereof), with
respect to the Collateral or any part thereof which shall then be or shall
thereafter come into the possession, custody or control of the Secured Party or
its Representative, sell, lease, assign or otherwise dispose of all or any part
of such Collateral, at such place or places as the Secured Party deems best,
and for cash or for credit or for future delivery (without thereby assuming any
credit risk), at public or private sale, without demand of performance or
notice of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute and
cannot be waived), and the Secured Party or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of whatsoever
kind, including any right or equity of redemption (statutory or otherwise), of
Debtor, any such demand, notice and right or equity being hereby expressly
waived and released. The Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be
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adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the sale may be
so adjourned.
The proceeds of each collection, sale or other disposition under
this Section 4.6 shall be applied in accordance with Section 4.9 hereof.
4.7. Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs and
expenses of such realization and the payment in full of the Liabilities, Debtor
shall remain liable for any deficiency.
4.8. Private Sale. Debtor recognizes that the Secured Party may
be unable to effect a public sale of any or all of the Collateral consisting of
securities by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Act"), and applicable state securities laws, but may be
compelled to resort to one or more private sales thereof to a restricted group
of purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Secured Party shall be under no obligation
to delay a sale of any of the Collateral to permit Debtor to register such
Collateral for public sale under the Act, or under applicable state securities
laws, even if Debtor would agree to do so. The Secured Party shall not incur
any liability as a result of the sale of any such Collateral, or any part
thereof, at any private sale provided for in this Agreement conducted in a
commercially reasonable manner, and Debtor hereby waives any claims against the
Secured Party arising by reason of the fact that the price at which the
Collateral may have been sold at such a private sale was less than the price
which might have been obtained at a public sale or was less than the aggregate
amount of the Liabilities, even if the Secured Party accepts the first offer
received and does not offer the Collateral to more than one offeree.
Debtor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales of any portion
or all of any such Collateral valid and binding and in compliance with any and
all applicable laws, regulations, orders, writs, injunctions, decrees or awards
of any and all courts, arbitrators or governmental instrumentalities, domestic
or foreign, having jurisdiction over any such sale or sales, all at Debtor's
expense, provided that Debtor shall be under no obligation to take any action
to enable any or all of such Collateral to be registered under the provisions
of the Act. Debtor further agrees that a breach of any of the covenants
contained in this Section 4.8 will cause irreparable injury to the Secured
Party, that the Secured Party has no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant contained in
this Section 4.8 shall be specifically enforceable against Debtor, and Debtor
hereby waives and agrees not to
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assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing.
4.9. Application of Proceeds. The proceeds of any collection,
sale or other realization of all or any part of the Collateral, and any other
cash at the time held by the Secured Party under this Agreement, shall be
applied:
first, to payment of all expenses payable or reimbursable under
the Loan Documents executed by Debtor;
second, to payment of all accrued unpaid interest on the
Obligations;
third, to payment of principal of the Obligations;
fourth, to payment of any other amounts owing constituting
Obligations; and
last, any remainder shall be for the account of and paid to the
applicable Debtor.
4.10. Attorney-in-Fact. Debtor hereby irrevocably constitutes
and appoints the Secured Party, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of Debtor and in the name of Debtor or in its own name, from
time to time upon the occurrence and during the continuation of an Event of
Default, in the discretion of the Secured Party, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives the Secured
Party the power and right, on behalf of Debtor, without notice to or assent by
Debtor, to do the following upon the occurrence and during the continuation of
any Event of Default:
(a) to ask, demand, collect, receive and give acquittance and
receipts for any and all moneys due and to become due under any Collateral and,
in the name of Debtor or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other Instruments
for the payment of moneys due under any Collateral and to file any claim or to
take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Secured Party for the purpose of collecting any and
all such moneys due under any Collateral whenever payable and to file any claim
or to take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Secured Party for the purpose of collecting
any and all such moneys due under any Collateral whenever payable;
(b) to pay or discharge charges or liens levied or placed on
or threatened against the Collateral (other than the Permitted Liens), to
effect any insurance called for by the terms of this Agreement and to pay all
or any part of the premiums therefor;
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(c) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due, and to become due
thereunder, directly to the Secured Party or as the Secured Party shall direct,
and to receive payment of and receipt for any and all moneys, claims and other
amounts due, and to become due at any time, in respect of or arising out of any
Collateral;
(d) to sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and other
Documents constituting or relating to the Collateral;
(e) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any part thereof and to enforce any other right in
respect of any Collateral;
(f) to defend any suit, action or proceeding brought against
Debtor with respect to any Collateral;
(g) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Secured Party may deem appropriate; and
(h) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Secured Party were the absolute owners thereof for all
purposes, and to do, at the Secured Party's option and at Debtor's expense, at
any time, or from time to time, all acts and things which the Secured Party
reasonably deems necessary to protect, preserve or realize upon the Collateral
and the Secured Party's lien therein, in order to effect the intent of this
Agreement, all as fully and effectively as Debtor might do.
Debtor hereby ratifies, to the extent permitted by law, all that
such attorneys lawfully do or cause to be done by virtue hereof. The power of
attorney granted hereunder is a power coupled with an interest and shall be
irrevocable until the Liabilities are indefeasibly paid in full and the Credit
Agreement is terminated.
Debtor also authorizes the Secured Party, at any time from and
after the occurrence and during the continuation of any Event of Default, (x)
to communicate in its own name with any party to any Contract with regard to
the assignment of the right, title and interest of Debtor in and under the
Contracts hereunder and other matters relating thereto and (y) to execute, in
connection with any sale of Collateral provided for in Section 4.5 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
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4.11. Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, Debtor shall:
(a) file such financing statements, assignments for security
and other documents in such offices as may be necessary or as the Secured Party
or the Representative may request to perfect the security interests granted by
Section 3 of this Agreement; and
(b) at Secured Party's request, deliver to the Secured Party
or its Representative the originals of all Instruments together with, in the
case of Instruments constituting promissory notes, allonges attached thereto
showing such promissory notes to be payable to the order of a blank payee.
4.12. Termination. This Agreement and the Liens and security
interests granted hereunder shall not terminate until the termination of the
Credit Agreement and the full and complete performance and indefeasible
satisfaction of all the Liabilities (regardless of whether the Credit Agreement
shall have earlier terminated), whereupon the Secured Party shall forthwith
cause to be assigned, transferred and delivered, against receipt but without
any recourse, warranty or representation whatsoever, any remaining Collateral
to or on the order Debtor. The Secured Party shall also execute and deliver to
Debtor upon such termination such Uniform Commercial Code termination
statements, certificates for terminating the liens on the Motor Vehicles (if
any) and such other documentation as shall be reasonably requested by Debtor to
effect the termination and release of the Liens and security interests in favor
of the Secured Party affecting the Collateral.
4.13. Further Assurances. (a) At any time and from time to
time, upon the written request of the Secured Party or its Representative, and
at the sole expense of Debtor, Debtor will promptly and duly execute and
deliver any and all such further instruments, documents and agreements and take
such further actions as the Secured Party or its Representative may reasonably
require in order for the Secured Party to obtain the full benefits of this
Agreement and of the rights and powers herein granted in favor of the Secured
Party, including, without limitation, using Debtor's best efforts to secure all
consents and approvals necessary or appropriate for the assignment to the
Secured Party of any Collateral held by Debtor or in which Debtor has any
rights not heretofore assigned, the filing of any financing or continuation
statements under the Uniform Commercial Code with respect to the liens and
security interests granted hereby, transferring Collateral to the Secured
Party's possession (if a security interest in such Collateral can be perfected
by possession), placing the interest of the Secured Party as lienholder on the
certificate of title of any Motor Vehicle and obtaining waivers of liens from
landlords and mortgagees. Debtor also hereby authorizes the Secured Party and
its Representative to file any such financing or continuation statement without
the signature of such Debtor to the extent permitted by applicable law.
(b) Upon the request of the Secured Party, Debtor shall
procure insurers' acknowledgments of any assignments of key man life insurance
policies which may be assigned
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to the Secured Party as additional security for the Liabilities (if any) and
will take all such further action as required by any insurer or the Secured
Party in connection with any such assignment.
4.14. Limitation on Duty of Secured Party. The powers conferred
on the Secured Party under this Agreement are solely to protect the Secured
Party's interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. The Secured Party shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers
and neither the Secured Party nor its Representative nor any of their
respective officers, directors, employees or agents shall be responsible to
Debtor for any act or failure to act, except for gross negligence and willful
misconduct. Without limiting the foregoing, the Secured Party and any
Representative shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in their possession if such Collateral is
accorded treatment substantially equivalent to that which the relevant Secured
Party or any Representative, in its individual capacity, accords its own
property consisting of the type of Collateral involved, it being understood and
agreed that neither the Secured Party nor any Representative shall have any
responsibility for taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above) to preserve rights
against any person with respect to any Collateral.
Also without limiting the generality of the foregoing, neither
the Secured Party nor any Representative shall have any obligation or liability
under any Contract or license by reason of or arising out of this Agreement or
the granting to the Secured Party of a security interest therein or assignment
thereof or the receipt by the Secured Party or any Representative of any
payment relating to any Contract or license pursuant hereto, nor shall the
Secured Party or any Representative be required or obligated in any manner to
perform or fulfill any of the obligations of Debtor under or pursuant to any
Contract or license, or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it or the sufficiency of
any performance by any party under any Contract or license, or to present or
file any claim, or to take any action to collect or enforce any performance or
the payment of any amounts which may have been assigned to it or to which it
may be entitled at any time or times.
Section 5. Miscellaneous.
5.1. No Waiver. No failure on the part of the Secured Party or
any of its Representatives to exercise, and no course of dealing with respect
to, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Secured Party or any of its Representatives of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The rights and remedies hereunder provided are
cumulative and may be exercised singly or concurrently, and are not exclusive
of any rights and remedies provided by law.
5.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws and decisions of the State of
Illinois, without regard to conflict
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of law principles thereof, except to the extent that the perfection of the
security interest hereunder, or remedies hereunder, in respect of any
particular Collateral are mandatorily governed by the laws of a jurisdiction
other than the State of Illinois.
5.3. Notices. All notices, approvals, requests, demands and
other communications hereunder shall be in writing and delivered by hand or by
nationally recognized overnight courier, or sent by first class mail or sent by
telecopy (with such telecopy to be confirmed promptly in writing sent by first
class mail), sent:
(a) if to Debtor: Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: _______________________
Facsimile: (000) 000-0000
(b) if to Secured Party, to: Antares Leveraged Capital Corp.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses or telecopy number or numbers as any
party hereto may most recently have designated in writing to the other party by
such notice. All such communications shall be deemed to have been given or
made (i) if delivered in person, when delivered, (ii) if delivered by telecopy,
on the date of transmission if transmitted on a Business Day before 4:00 p.m.
Chicago time, otherwise on the next Business Day, (iii) if delivered by
overnight courier, one (1) Business Day after delivery to the courier properly
addressed and (iv) if mailed, three (3) Business Days after deposited in the
United States mail, certified or registered.
5.4. Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by
and the Secured Party. Any such amendment or waiver shall be binding upon the
Secured Party and the Debtor and their respective successors and assigns.
5.5. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of each
of the parties hereto, provided, that Debtor shall not assign or transfer its
rights hereunder without the prior written consent of the Secured Party.
5.6. Counterparts; Headings. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one
and the same instrument and any
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of the parties hereto may execute this Agreement by signing any such
counterpart. The headings in this Agreement are for convenience of reference
only and shall not alter or otherwise affect the meaning hereof.
5.7. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law, (a) the other provisions hereof shall remain in full force and effect in
such jurisdiction and shall be liberally construed in favor of the Secured
Party and its Representative in order to carry out the intentions of the
parties hereto as nearly as may be possible and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
5.8. Other Loan Documents. This Agreement supplements the
other Loan Documents and nothing in this Agreement shall be deemed to limit or
supersede the rights granted to the Secured Party or the Lenders or their agent
in any other Loan Document. In the event of any conflict between this
Agreement and the Credit Agreement, the provisions of the Credit Agreement
shall govern.
5.9. SUBMISSION TO JURISDICTION; WAIVER OF VENUE. (A) DEBTOR
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND DEBTOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF SECURED PARTY TO BRING PROCEEDINGS
AGAINST DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY DEBTOR AGAINST SECURED PARTY OR ANY LENDER OR ANY AFFILIATE
THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS.
(B) DEBTOR DESIGNATES AND APPOINTS CT CORPORATION SYSTEM AND
SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY IT WHICH IRREVOCABLY AGREES
IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY DEBTOR TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A
COPY OF ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO DEBTOR
AT ITS ADDRESS PROVIDED IN THIS AGREEMENT EXCEPT THAT UNLESS
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OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY DEBTOR
REFUSES TO ACCEPT SERVICE, DEBTOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL
SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
5.10. WAIVER OF RIGHT TO TRIAL BY JURY. DEBTOR AND SECURED PARTY
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. DEBTOR AND
SECURED PARTY EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED
BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
DEBTOR:
PACKAGED ICE, INC., a Texas
corporation
By:
--------------------------------
Title:
-----------------------------
SECURED PARTY:
ANTARES LEVERAGED CAPITAL CORP., as
Agent for the benefit of Lenders
By:
--------------------------------
Title:
-----------------------------
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