EXHIBIT 10.21
SUBSIDIARY SECURITY AGREEMENT, dated as of April 1, 2003 (this
"AGREEMENT"), made by GUIDELINE RESEARCH CORP., TABLINE DATA SERVICES, INC.,
GUIDELINE/CHICAGO, INC., ADVANCED ANALYTICS, INC. and GUIDELINE CONSULTING CORP.
(each, individually, a "PLEDGOR" and, collectively, the "PLEDGORS") in favor of
JPMORGAN CHASE BANK (the "SECURED PARTY").
W I T N E S S E T H:
WHEREAS Find/SVP, Inc., a New York corporation (the "BORROWER"),
issued (i) the Amended and Restated Term Promissory Note, dated April 1, 2003
(as amended, supplemented or otherwise modified from time to time, the "TERM
NOTE") in the principal amount of $1,500,000.00 and (ii) the Amended and
Restated Senior Grid Promissory Note, dated April 1, 2003 (as amended,
supplemented or otherwise modified from time to time, the "SENIOR GRID NOTE";
together with the Term Note, the "NOTES") in the principal amount of
$1,000,000.00, each to the order of the Secured Party;
WHEREAS the Borrower directly or indirectly owns 100% of the issued
and outstanding shares of common stock of each Pledgor;
WHEREAS the Pledgors have jointly and severally guaranteed the
payment of all obligations of the Borrower now or hereafter existing to the
Secured Party (including, without limitation, all obligations under the Notes)
pursuant to that certain Subsidiary Guaranty, dated as of April 1, 2003 (as
amended, supplemented or otherwise modified from time to time, the "GUARANTY"),
by the Pledgors in favor of the Secured Party; and
WHEREAS in order to secure the obligations of the Pledgors to the
Secured Party, including, without limitation, the Pledgors' obligations under
the Guaranty, the Secured Party has requested and each Pledgor has agreed to
execute and deliver this Security Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgors hereby agree with the Secured Party as follows:
1. SECURITY INTEREST. As security for the Obligations (as
hereinafter defined), each Pledgor hereby pledges and assigns to the Secured
Party, and grants to the Secured Party a continuing security interest in, all of
such Pledgor's right, title and interest (whether now existing or hereafter
created or acquired by such Pledgor) in: (a) its accounts receivable and other
personal property that constitutes accounts as such term is defined in the
Uniform Commercial Code of the State of New York (the "UNIFORM COMMERCIAL CODE")
(collectively, "ACCOUNTS"); (b) its inventory, including goods, merchandise, raw
materials, goods in process, finished goods and other tangible personal property
that constitutes inventory as such term is defined in the Uniform Commercial
Code (collectively, "INVENTORY"); (c) its equipment, including all
substitutes, replacements, accessions and additions thereto, all tools, parts,
accessories and attachments used in connection therewith and all other tangible
personal property that constitutes equipment as such term is defined in the
Uniform Commercial Code (collectively, "EQUIPMENT"); (d) its other tangible
personal property that constitutes goods as such term is defined in the Uniform
Commercial Code; (e) its intellectual property, goodwill, trademarks, trade
names, servicemarks, copyrights, patents, permits and licenses; (f) its chattel
paper, commercial tort claims, deposit accounts, documents, instruments and
letter-of-credit rights, as each such term is defined in the Uniform Commercial
Code; (g) all contracts, contract rights, bills, notes, drafts, acceptances,
choses in action and all other personal property that constitutes general
intangibles as such term is defined in the Uniform Commercial Code; (h) all
securities, security entitlements and other investment property, as each such
term is defined in the Uniform Commercial Code; (i) all books and records
(including but not limited to computer programs and tapes and related software)
relating to any of the foregoing; and (j) all cash and non-cash proceeds and
products of any of the foregoing (all of the foregoing is collectively called
the "COLLATERAL").
2. OBLIGATIONS SECURED. The security interest granted by this
Agreement is to secure the payment and performance of any and all of each
Pledgor's obligations to the Secured Party of every kind, nature and
description, whether for principal, interest, fees or other amounts (including,
without limitation, all obligations of the Pledgors under the Guaranty), whether
direct or indirect, secured or unsecured, joint and several, absolute or
contingent, due or to become due, now existing or hereafter arising, regardless
of how they arise or by what agreement or instrument and whether or not
evidenced by any agreement or instrument, and all obligations to perform acts or
refrain from taking any action (all of the foregoing, collectively, the
"OBLIGATIONS").
3. UNCONDITIONAL GRANT OF SECURITY INTEREST. (a) Each Pledgor agrees
that this Agreement shall be binding upon such Pledgor and that the grant of the
security interest in the Collateral shall be irrevocable and unconditional,
irrespective of the validity, legality or enforceability of the Obligations, the
absence of any action to enforce the same, any waiver or consent by the Secured
Party with respect to any provisions thereof, or any action to enforce the same
or any other similar circumstances. Each Pledgor's obligations and liabilities
hereunder shall not be conditioned or contingent upon the Secured Party's
pursuit at any time of any right or remedy against any other person or entity
that may be or become liable in respect of all or any part of the Obligations or
against any collateral security or guaranty therefor or right of offset with
respect thereto. Each Pledgor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of such Pledgor's merger or
bankruptcy, protest or notice with respect to any notes evidencing the
Obligations and all demands whatsoever. This Agreement shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon each Pledgor until the Obligations have been indefeasibly paid in
full in cash, notwithstanding that from time to time there may be no Obligations
outstanding.
(b) Each Pledgor agrees that without notice to or further
assent by such Pledgor, its liability or the liability of any other party for or
upon any of the Obligations
may, from time to time, in whole or in part, be renewed, extended, modified,
accelerated, compromised or released by the Secured Party as the Secured Party
may deem advisable, and that any other collateral or liens for any of the
Obligations may, from time to time, in whole or in part, be exchanged, sold or
surrendered by the Secured Party, as the Secured Party may deem advisable, all
without impairing, abridging, affecting or diminishing this Agreement or the
Secured Party's rights hereunder or with respect to the Collateral.
4. REPRESENTATIONS, COVENANTS AND WARRANTIES. Each Pledgor hereby
makes the following representations, covenants and warranties, which shall be
deemed to be repeated and confirmed upon the creation or acquisition by such
Pledgor of each item of Collateral and upon the creation of any Obligation:
(a) Such Pledgor is a corporation, duly organized, validly
existing and in good standing under the laws of the jurisdiction indicated
beneath such Pledgor's signature line of this Agreement, has the requisite
corporate power to own its properties and to carry on its business as now being
conducted, is qualified to engage in business and is in good standing in each
other jurisdiction in which the character of its properties or the transaction
of its business make such qualification necessary, and has the requisite
corporate power to execute, deliver and perform this Agreement.
(b) The execution, delivery and performance of this Agreement
and the granting of the security interest in the Collateral (i) has been duly
authorized by all requisite corporate action of such Pledgor; (ii) will not: (A)
violate any provision of law, any order of any court, tribunal or agency of
government or its certificate of incorporation, bylaws or other charter
documents; (B) violate, be in conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any indenture,
license, sublicense, agreement or other instrument to which such Pledgor is a
party or by which it or any of its properties are bound; (C) violate any
governmental or agency rule or regulation (including, but not limited to,
Regulations U and X of the Board of Governors of the Federal Reserve System); or
(D) result in the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the Collateral, except for the security interest created
by this Agreement; and (iii) do not require any filing or registration with, any
permit, license, consent or approval of, or any exemption by, any governmental
or regulatory authority, except filings of Uniform Commercial Code financing
statements in the public offices listed on Exhibit A hereto.
(c) This Agreement has been duly executed and delivered by
such Pledgor and is its legal, valid and binding obligation, enforceable against
it in accordance with its terms, subject only to bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to or affecting the enforceability of rights of creditors generally and to
general equitable principles that may limit the right to obtain equitable
remedies. This Agreement creates in the Secured Party's favor a valid and, upon
the filing of the appropriate Uniform Commercial Code financing statements in
the public offices listed on Exhibit A hereto, perfected lien on and security
interest in the Collateral, enforceable against such Pledgor and all third
parties and superior in right to all other security interests, liens,
encumbrances or charges, existing or future. Upon such filings or recordings, no
filing or recording of any other financing
statements or other instruments and no recording, filing or indexing of this
Agreement is necessary in order to preserve and protect the Secured Party's
security interest in the Collateral as a legal, valid and enforceable perfected
security interest in the Collateral, except filing of appropriate continuation
statements with respect to Uniform Commercial Code financing statements.
(d) On the date hereof and at any time during the term of this
Agreement during which a security interest in the Secured Party's favor in the
Collateral exists, no financing statement (or similar statement or instrument of
registration under the laws of any jurisdiction) is or will be on file or
registered in any public office covering any interest of any kind with respect
to the Collateral, or intended so to be, other than those relating to the
security interest created by this Agreement and those expressly permitted under
the Guaranty and the Notes, and such Pledgor will be the lawful owner of the
Collateral and will have good right to grant the Secured Party a security
interest therein. Each Pledgor will perform all acts and deeds possible to
assure that all documents and agreements held by such Pledgor with respect to
the Collateral will be true and correct and in all respects what they purport to
be; all signatures and endorsements that appear thereon will be genuine and such
signatories and endorsers will have the full capacity to contract; none of the
transactions underlying or giving rise to the Collateral nor any operation or
use of any of the Collateral will violate any applicable state or federal law or
regulation; and all documents relating to the Collateral will be legally
sufficient under such laws and regulations and will be legally enforceable in
accordance with their terms. None of the Collateral is or will be affixed to
real estate unless such Pledgor has furnished to the Secured Party such
consents, waivers or disclaimers as are necessary to make the Secured Party's
security interest in such of the Collateral valid against persons or entities
holding an interest in such real estate. Such Pledgor will defend the Collateral
against all claims and demands of all other parties claiming the same or an
interest therein, and none of the Collateral will be: (i) sold, assigned or
transferred to any person or entity other than the Secured Party except, with
respect to Inventory, in the ordinary course of such Pledgor's business or (ii)
in any way pledged, mortgaged or otherwise encumbered except to the Secured
Party and except for any other pledges, mortgages or other encumbrances
expressly permitted under the Guaranty and the Notes.
(e) (i) Such Pledgor will perform all acts and deeds possible
to assure that each of its Accounts: (A) is on the date hereof and will be at
all times during the term of this Agreement a good and valid Account
representing an undisputed bona fide indebtedness incurred by the account debtor
named therein for goods theretofore sold by such Pledgor to, or services
theretofore performed by such Pledgor for, such account debtor; (B) will not be
subject to any defense, offset, counterclaim, holdback, discount or allowance;
(C) will not have been made with an account debtor under an agreement pursuant
to which any reduction or discount may be claimed; and (D) will be an Account of
which such Pledgor is the lawful owner and have the right to subject the same to
the Secured Party's security interest; and (ii) no action has been or will be
taken by such Pledgor which has or will have the effect of giving to an account
debtor any defense, setoff, claim or counterclaim against such Pledgor that may
be asserted against the Secured Party, whether in any proceeding to enforce the
Collateral or otherwise. No Account
will have been or hereafter will be sold, assigned or transferred to any person
or entity other than the Secured Party or in any way encumbered except to the
Secured Party and except for any encumbrances expressly permitted under the
Guaranty and the Notes.
(f) To the best of such Pledgor's knowledge, each account
debtor or guarantor or endorser of an Account or other party obligated under an
Account that at any time is or becomes subject to a security interest in favor
of the Secured Party is and will continue to be solvent and fully able to pay
and perform in full when due all Accounts under which such person or entity is
obligated, and such Pledgor will take all steps necessary to preserve the
liability of each account debtor, guarantor, endorser, obligor or secondary
party whose obligations are part of the Collateral.
(g) Such Pledgor will perform all of the terms, covenants and
conditions on its part to be observed or performed under the contracts giving
rise to its Accounts and take all steps necessary to keep such contracts in full
force and effect. Without the Secured Party's prior consent, such Pledgor will
not compromise, adjust, amend, modify or alter any of the terms, covenants or
conditions of any of its Accounts (or extend the time for payment thereof) or
grant any additional discounts, allowances or credits thereon.
(h) Such Pledgor will promptly notify the Secured Party if any
Account becomes evidenced by an instrument, and, upon the Secured Party's
request, promptly deliver said instrument to the Secured Party, appropriately
endorsed in the Secured Party's favor to be held as Collateral hereunder.
(i) Such Pledgor will furnish to the Secured Party at such
times as the Secured Party may request statements, in form and substance
satisfactory to the Secured Party, of all of its Accounts, itemized by account
debtor, and of the location and aggregate value at each such location of all
such Pledgor's Inventory and a statement showing opening Inventory, Inventory
acquired, Inventory sold and held for future delivery, Inventory returned or
repossessed, Inventory used or consumed in such Pledgor's business and closing
Inventory, each such statement to be certified by such Pledgor's chief financial
officer, and, promptly from time to time, such other information as the Secured
Party may reasonably request regarding the Collateral and such Pledgor's
operations, business, affairs and financial condition.
(j) There is no litigation pending or threatened in any court
or jurisdiction, the outcome of which would affect such Pledgor's interest in
the Collateral in a materially adverse manner.
(k) There are no set-offs, counterclaims or defenses with
respect to the Collateral and no agreement has been made with any other person
or party under which any deduction or discount may be claimed with respect to
the Collateral.
(l) The information, exhibits, reports and financial
statements furnished by such Pledgor in connection with the Guaranty or this
Agreement are true and correct in all material respects and do not contain any
omission or misstatement of fact which
would make the statements contained therein false, misleading or incomplete in
any material respect.
(m) Such Pledgor will, promptly upon learning thereof, report
to the Secured Party: (i) any material, adverse change in the information
contained herein relating to such Pledgor, its business or the Collateral; (ii)
the details of any material, adverse claim or litigation affecting such Pledgor
or the Collateral; (iii) any material loss of or damage to the Collateral or any
other matters affecting the value, enforceability or collectibility of any of
the Collateral; and (iv) any reclamation, return or repossession of any material
portion of the Collateral, all material delays in performance, notices of
default, claims made or disputes asserted by any account debtor or other obligor
and any other matters materially, adversely affecting the value, enforceability
or collectibility of any of the Collateral.
(n) Such Pledgor will conduct and carry on its business in a
manner consistent with the manner in which it is conducted on the date hereof so
as to protect and preserve the Collateral and maintain, in accordance with
generally accepted accounting principles, consistently applied, accurate books
and records pertaining to the Collateral and, if so requested by the Secured
Party, such Pledgor will xxxx each of its ledger cards, books of account and
other records relating to the Collateral with appropriate notations,
satisfactory to the Secured Party, disclosing that such Collateral has been
assigned and/or transferred to the Secured Party and that such Pledgor has
granted to the Secured Party a security interest therein.
(o) All Inventory or Equipment now owned by such Pledgor is
kept at the locations indicated on Exhibit B hereto. The location of its
principal office and chief executive office and the location where the originals
of its records pertaining to its Accounts are kept are at the addresses
indicated on Exhibit B hereto. Such Pledgor will not change the location of any
of its Inventory or Equipment or of its principal office or chief executive
office or the location of the office where the records of its Accounts are kept
unless 20 days' prior written notice of such change is given to the Secured
Party. Such Pledgor's name set forth above its signature hereto is its correct
legal name, and such Pledgor has not within the past five years had any other
legal name, nor has such Pledgor done within such five years nor is such Pledgor
now doing business under any other name, except as set forth on Exhibit B to
this Agreement. Such Pledgor will not change its legal name, use any other name
nor change the form of its organization without giving the Secured Party 20
days' prior written notice thereof. Such Pledgor's correct United States tax
identification number is set forth below its signature hereto.
(p) Such Pledgor will do or cause to be done all recordings,
filings and giving of public notice under any applicable law or ordinance
necessary to comply fully with such law or ordinance, including any notices to
the United States government under the Federal Assignment of Claims Act, and
such Pledgor will from time to time do whatever the Secured Party may reasonably
request by way of obtaining, executing, delivering and/or filing financing
statements, landlord's or mortgagee's lien waivers and other notices of any
kind, and amendments and renewals thereto, and will take any and all steps and
will observe such formalities as the Secured Party may reasonably request, all
in order to create and maintain the Secured Party's valid security interest in
any and all of the Collateral. Such Pledgor will pay all
costs for searches and filings in connection therewith. Such Pledgor agrees to
execute such financing statements, security agreements or other instruments with
respect to any of the Collateral as the Secured Party may request and authorizes
the Secured Party to execute and file at any time such financing statements
without such Pledgor's signature and, if upon request such Pledgor fails to do
so, to execute such security agreements or other instruments on its behalf. The
Secured Party may file a photocopy or other reproduction of this Agreement as a
financing statement.
(q) Such Pledgor will deliver, or cause to be delivered, to
the Secured Party from time to time promptly upon the Secured Party's request:
(i) any documents of title, instruments and chattel paper (and the Secured Party
has been granted a direct security interest in all of such Pledgor's chattel
paper) constituting, representing or relating to the Collateral; (ii) all books
of account, records, ledgers, reports, correspondence, schedules, documents,
statements, lists and the writings relating to the Collateral for the purpose of
inspecting, auditing or copying the same; PROVIDED that such Pledgor shall be
permitted to make copies thereof before delivering such items to the Secured
Party; (iii) all financial statements prepared by or for such Pledgor regarding
its business; (iv) copies of all policies and certificates of insurance relating
to the Collateral; and (v) such information concerning the Collateral or such
Pledgor or any affiliate of such Pledgor as the Secured Party may reasonably
request.
(r) Such Pledgor will at its own expense maintain insurance
with insurance companies reasonably satisfactory to the Secured Party on such of
its assets, in such amounts and against such risks as is customarily maintained
by similar businesses, PROVIDED that, with respect to insurance regarding the
Collateral, all such insurance policies shall contain loss payable clauses
satisfactory to the Secured Party, naming the Secured Party as a loss payee.
(s) Such Pledgor will take adequate care of the Collateral and
pay all costs necessary to preserve the Collateral, including (but not limited
to) all taxes, rates, levies, assessments and other charges of every nature that
may be lawfully levied, assessed or imposed against or in respect of such
Pledgor or the Collateral as and when they become due and payable.
(t) Such Pledgor will give the Secured Party immediate notice
of (i) any default under this Agreement or the Guaranty or (ii) any action or
proceeding to which such Pledgor is a party, or affecting such Pledgor an
adverse determination of which would affect such Pledgor or the Collateral in a
materially adverse manner.
(u) If such Pledgor shall at any time acquire a commercial
tort claim, such Pledgor will immediately notify the Secured Party in a writing
signed by such Pledgor of the brief details thereof and grant the Secured Party
in such writing a security interest therein and in the proceeds thereof, all
upon the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Secured Party.
5. CUSTODY, INSPECTION, COLLATERAL AND HANDLING OF COLLATERAL AND
RECORDS. (a) Subject to compliance with the covenants contained herein, each
Pledgor may, until the occurrence of a default by such Pledgor hereunder,
possess, operate, collect, use and enjoy and
deal with the Collateral in the ordinary course of its business in any manner
not inconsistent with the provisions hereof; PROVIDED always that the Secured
Party shall have the right at any time and from time to time to verify the
existence and state of the Collateral in any manner the Secured Party may
consider appropriate and such Pledgor agrees to furnish all assistance and
information and to perform all such acts as the Secured Party may reasonably
request in connection therewith and for such purpose to grant to the Secured
Party or its agents access to all places where the Collateral may be located and
to all premises occupied by such Pledgor's business. The Secured Party shall be
privileged at any time and from time to time after the occurrence of a default
hereunder to hire and maintain on any of each Pledgor's premises a custodian or
independent contractor selected by the Secured Party who shall have full
authority to do all acts necessary to protect the Secured Party's interests and
to report to the Secured Party thereon. Each Pledgor agrees to cooperate with
any such person and to do whatever the Secured Party may reasonably request by
way of leasing warehouses or otherwise preserving the Collateral. All expenses
incurred by the Secured Party by reason of the employment of any such person
shall be charged to such Pledgor's account, shall be part of the Obligations and
shall be secured by the Collateral.
(b) If the Collateral at any time includes securities, each
applicable Pledgor authorizes the Secured Party to transfer the same or any part
thereof into the Secured Party's own name or that of its nominee(s) so that it
or its nominee(s) may appear of record as the sole owner thereof; PROVIDED that,
until the occurrence of a default by such Pledgor hereunder, the Secured Party
shall deliver promptly to such Pledgor all notices or other communications
received by the Secured Party or its nominee(s) as such registered owner and,
upon demand and receipt of payment of any necessary expenses thereof, shall
issue to such Pledgor or its order a proxy vote and take all action with respect
to such securities. After a default by any Pledgor hereunder, such Pledgor
waives all rights to receive any notices or communications received by the
Secured Party or its nominee(s) as such registered owner and agrees that no
proxy issued by the Secured Party to such Pledgor or its order as aforesaid
shall thereafter be effective.
(c) Until the occurrence of a default by any Pledgor under
this Agreement or the Guaranty, each Pledgor reserves the right to receive any
moneys constituting income from or interest on the Collateral, and if the
Secured Party receives any such moneys before a default by any Pledgor under
this Agreement or the Guaranty and until the Obligations have been satisfied in
full, the Secured Party shall either credit such moneys to the applicable
Pledgor's account or promptly pay them to such Pledgor. After a default by any
Pledgor under this Agreement or the Guaranty, each Pledgor will not request or
receive any moneys constituting income from or interest on the Collateral, and
if any Pledgor receives any such moneys without any request by the Secured
Party, such Pledgor will pay them promptly to the Secured Party.
(d) Whether or not a default under this Agreement or the
Guaranty has occurred, each Pledgor authorizes the Secured Party: (i) to receive
any increase in or profits on the Collateral (other than money) and to hold them
as part of the Collateral (money so received shall be treated as income for the
purposes of paragraph (c) of this Section 5 and dealt with
accordingly); and (ii) to receive any payment or distribution upon redemption or
retirement or upon dissolution and liquidation of the account debtor of any of
the Collateral, to surrender such Collateral in exchange for such payment or
distribution and to hold any such payment or distribution as part of the
Collateral. If any Pledgor receives any such increase or profits (other than
money) or payments or distributions, such Pledgor will deliver them promptly to
the Secured Party to be held by the Secured Party as provided in this Agreement.
(e) Each Pledgor will, promptly upon the Secured Party's
request, at any time or from time to time, and the Secured Party may in its sole
discretion upon a default by any Pledgor under this Agreement or the Guaranty,
notify such Pledgor's account debtors that payment of all Accounts shall be made
to such Pledgor at such address or addresses as the Secured Party may from time
to time specify. Upon such notification, the Secured Party shall have the right
to receive, or its agents or independent contractors shall have the right to
receive on its behalf, the proceeds of, and all documents, instruments or papers
in connection with, such Pledgor's Accounts at such address or addresses and to
receive, endorse, assign or deliver in the Secured Party's name or such
Pledgor's name any and all checks, drafts and other instruments for the payment
of money relating to such Pledgor's Accounts, and such Pledgor waives notice of
presentment, protest and nonpayment of any instrument so endorsed. Each Pledgor
acknowledges that any payments on, or other proceeds of, the Collateral received
by such Pledgor from account debtors, whether before or after notification to
account debtors of the security interest granted by this Agreement and whether
before or after the occurrence of a default under this Agreement or the
Guaranty, shall be received and held by such Pledgor in trust for the Secured
Party and shall be turned over to the Secured Party upon its request to be
subject to the provisions of this Agreement. Proceeds of Accounts so received by
the Secured Party or on its behalf shall be credited, subject to collection, to
such Pledgor's account with the Secured Party or as otherwise determined by the
Secured Party, subject to the Secured Party's right to withhold credit pending
the final collection and settlement of any item and its further right to apply
all or part of such proceeds to the then outstanding Obligations. Each Pledgor
constitutes the Secured Party or its designee as such Pledgor's attorney-in-fact
with power, upon the occurrence and during the continuance of a default under
this Agreement or the Guaranty: to endorse such Pledgor's name upon any notes,
acceptances, checks, drafts, money orders or other evidences of payment or
Collateral that may come into the Secured Party's possession; to sign such
Pledgor's name on any invoice or xxxx of lading relating to such Pledgor's
Accounts, drafts against account debtors, assignments and verifications of such
Pledgor's Accounts and notices to account debtors; to send verifications of
Accounts to any of such Pledgor's account debtors; to notify the postal
authorities to change the address for delivery of mail addressed to such Pledgor
to such address as the Secured Party may designate; and to do all other acts and
things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall
not be liable for any acts of omission or commission nor for any error of
judgment or mistake of fact or law, other than the Secured Party's own gross
negligence or willful misconduct. This power being coupled with an interest is
irrevocable as long as any Obligation remains unpaid or unperformed.
(f) After the occurrence of a default hereunder, the Secured
Party may, without notice to or consent from the Pledgors, xxx upon or otherwise
collect, extend the time of payment of or compromise or settle for cash, credit
or otherwise upon any terms any Account of any Pledgor or any securities,
instruments or insurance applicable thereto and/or release the obligor thereon.
The Secured Party is authorized and empowered in its sole discretion to accept
the return of the goods represented by any Account of any Pledgor without notice
to or consent by the applicable Pledgor, all without discharging or in any way
affecting such Pledgor's liability under this Agreement.
6. DEFAULT. If any default in the payment or performance of any of
the Obligations occurs and is continuing, if any representation, warranty,
report or certificate made in this Agreement, the Guaranty or otherwise
furnished in writing by any Pledgor to the Secured Party in connection with this
Agreement or the Guaranty proves to have been false or misleading in any
material respect when made or deemed made, if any Pledgor defaults in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Agreement or the Guaranty or
if any Pledgor becomes involved as the debtor in any bankruptcy or insolvency
proceedings, then such Pledgor will be in default under this Agreement.
7. RIGHTS AND REMEDIES UPON DEFAULT. (a) Upon any Pledgor's default
under this Agreement or the Guaranty, and at any time thereafter, the Secured
Party may, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, declare any or all of the Obligations to be
immediately due and payable.
(b) Upon any Pledgor's default under this Agreement or the
Guaranty, the Secured Party shall also have the right, without notice to or
assent by the Pledgors, and without affecting the Obligations, in the applicable
Pledgor's name or in the Secured Party's name or otherwise, to: (i) ask for,
demand, collect, receive, compound and give acquittance for the Accounts or any
part thereof; (ii) extend the time of payment of, compromise or settle for cash,
credit or otherwise, and upon any terms and conditions, any of the Accounts;
(iii) endorse the applicable Pledgor's name on any checks, drafts or other
orders or instruments for the payment of moneys payable to such Pledgor issued
in respect of any Accounts or other Collateral; (iv) file any claims and
commence, maintain or discontinue any actions, suits, or other proceedings
deemed by the Secured Party to be necessary or advisable for the purpose of
collecting or enforcing payment of any Accounts; (v) execute any instrument and
do any and all other things necessary and proper to protect and preserve and
realize upon the Accounts or other Collateral and the other rights contemplated
by this Agreement; (vi) notify any or all account debtors under any or all of
the Accounts to make payment thereof directly to the Secured Party for the
applicable Pledgor's account and to require such Pledgor promptly to give
similar notice to the account debtors; and/or (vii) require each Pledgor
promptly to account for and transmit to the Secured Party in the same form as
received all proceeds (other than physical property) of collection of Accounts
received by such Pledgor and, until so transmitted to the Secured Party, to hold
such proceeds in trust for the Secured Party and not commingle them with any
other of such Pledgor's funds.
(c) Upon any Pledgor's default under this Agreement or the
Guaranty, the Secured Party shall also have the right, without notice to or
assent by any Pledgor (except as provided in clause (i) of this paragraph (c)),
and without affecting the Obligations, in the applicable Pledgor's name or in
the Secured Party's name or otherwise, to: (i) upon notice to such effect,
require such Pledgor to deliver, at its expense, any or all of the Collateral
and all books of account, records, ledgers, reports, correspondence, schedules,
documents, statements, lists and other writings relating to the Collateral to
the Secured Party at a place designated by the Secured Party (and after delivery
thereof such Pledgor will have no further claim to or interest in such
Collateral); (ii) take possession of any or all of the Collateral and all books
of account, records, ledgers, reports, correspondence, schedules, documents,
statements, lists and other writings relating to the Collateral and, for that
purpose, to enter, with the aid and assistance of any person or entity, any
premises where the Collateral or any part thereof is or may be placed or
assembled, and to remove any of such Collateral and documents; (iii) execute any
instrument and do all other things necessary and proper to protect and preserve
and realize upon the Collateral and the other rights contemplated by this
Agreement; and/or (iv) without obligation to resort to other security, at any
time and from time to time, sell, re-sell, assign and deliver all or any of the
Collateral, in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right of redemption
thereof, at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices and on such terms as the Secured Party may
determine, with the amounts realized from any such sale to be applied in the
manner provided in Section 9.
(d) In addition to any rights and remedies contained in this
Agreement or now or hereafter granted under applicable law and not by way of
limitation of any such rights and remedies, the Secured Party shall have all the
rights and remedies of a secured party under the Uniform Commercial Code as
enacted in any applicable jurisdiction. The Secured Party may take legal
proceedings for the appointment of a receiver or receivers (to which the Secured
Party shall be entitled as a matter of right) to take possession of the
Collateral pending the sale thereof pursuant either to the power of sale granted
by this Agreement or to a judgment, order or decree made in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement.
(e) Each Pledgor agrees that all of the foregoing rights and
actions specified in paragraphs (a), (b), (c) and (d) of this Section 7 may be
executed or effected without demand, advertisement or notice (except as required
by law or by clause (i) of paragraph (c) of this Section 7), all of which (to
the extent permitted by law) are hereby expressly waived. The Secured Party
shall not be obligated to do any of the acts authorized in this Agreement, but
if the Secured Party elects to do any such act, the Secured Party will not be
responsible to the Pledgors except for the Secured Party's own gross negligence
or willful misconduct.
(f) The Secured Party shall have the right in its sole
discretion to determine which rights, security, liens, guarantees, security
interests or remedies the Secured Party will retain, pursue, release,
subordinate, modify or take any other action with respect to, without in any way
modifying or affecting any other of them or any of its rights under this
Agreement. Any of each Pledgor's moneys, deposits, balances or other property
that may come into the Secured Party's possession at any time or in any manner
may in its sole discretion be retained by the Secured Party and applied to any
of the Obligations. Notwithstanding any other rights the Secured Party may have
under applicable law and under this Agreement, each Pledgor agrees that, should
it at any time be in default under this Agreement or the Guaranty, the Secured
Party shall have the right to apply (including, but not limited to, by way of
setoff) any of such Pledgor's property held by the Secured Party or any of its
affiliates (including, but not limited to, deposit account balances) to a
reduction of the Obligations. The Secured Party shall be deemed to have
exercised such right of setoff immediately at the time of making its decision to
do so even though any charge for such setoff is made or entered on the Secured
Party's records subsequent to such time.
8. SALE OF COLLATERAL. Upon any sale of any of the Collateral,
whether made under the power of sale given by this Agreement or under judgment,
order or decree in any judicial proceeding for foreclosure or involving the
enforcement of this Agreement: (a) the Secured Party may bid for the property
being sold and, upon compliance with the terms of sale, may hold, retain and
possess and dispose of such property in its own absolute right without further
accountability and may, in paying the purchase price for such property, deliver
any notes evidencing the Obligations or claims for interest thereon in lieu of
cash in payment of the amount equal to the unpaid amount of such notes or
claims; (b) the Secured Party may make and deliver to the purchaser or
purchasers a good and sufficient deed, xxxx of sale and instrument of assignment
and transfer of the property sold; (c) the Secured Party is irrevocably
appointed each Pledgor's true and lawful attorney-in-fact in such Pledgor's name
and stead to make all necessary deeds, bills of sale and instruments of
assignment and transfer of the property thus sold and for such other purposes as
are necessary or desirable to effectuate the provisions of this Agreement, and
for that purpose the Secured Party may execute and deliver all necessary deeds,
bills of sale and instruments of assignment and transfer, and may substitute one
or more persons or entities with like power, and such Pledgor ratifies and
confirms all that such Pledgor's said attorney, or such substitute or
substitutes, shall lawfully do by virtue of this appointment, but if so
requested by the Secured Party or by any purchaser such Pledgor will ratify and
confirm any such sale or transfer by executing and delivering to the Secured
Party or to such purchaser all such deeds, bills of sale, instruments of
assignment and transfer and releases as may be designated in any such request;
(d) all of each Pledgor's right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, in and to the property so sold shall be
divested, such sale shall be a perpetual bar both at law and in equity against
such Pledgor, its successors and assigns and against any and all persons or
entities claiming or who may claim the property sold or any part thereof from,
through or under such Pledgor or its successors or assigns; (e) each Pledgor
will terminate and cease forthwith all use of the property so sold; (f) the
Secured Party's receipt or a receipt of the officer making such sale shall be a
sufficient discharge to the purchaser or purchasers at such sale for the
purchase money, and such purchaser or purchasers, and such purchaser's or
purchasers' assigns or personal representatives, shall not, after paying such
purchase money and receiving such receipt, be obligated to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof; and (g) to the extent that each
Pledgor may lawfully do so, such Pledgor
agrees that it will not at any time insist upon or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any appraisement,
valuation, stay, extension or redemption law or any law permitting it to direct
the order in which the Collateral or any part thereof shall be sold, now or at
any time hereafter in force, that may delay, prevent or otherwise affect the
performance or enforcement of this Agreement or the Obligations, and such
Pledgor expressly waives all benefit or advantage of any such law and agrees
that such Pledgor will not hinder, delay or impede the execution of any power
granted or delegated to the Secured Party in this Agreement, but will suffer and
permit the execution of every such power as though no such law were in force. In
the event of any sale of Collateral, the Secured Party shall, at least ten days
before such sale, give the applicable Pledgors written notice of the Secured
Party's intention to sell.
9. APPLICATION OF MONEYS. Except as otherwise provided in this
Agreement, all moneys the Secured Party receives in accordance with the
provisions of this Agreement shall be applied in the following manner: FIRST, to
the payment of all costs and expenses incurred in connection with the
administration and enforcement of, or the preservation of any rights under, this
Agreement or the Guaranty and the realization on the Collateral (including, but
not limited to, the reasonable fees and disbursements of the Secured Party's
counsel and agents); and SECOND, to the payment of all other Obligations in such
order as the Secured Party may choose. Any surplus shall be accounted for as
required by law.
10. WAIVERS, AMENDMENTS, REQUIRED NOTICES. Each Pledgor waives
notice of acceptance of this Agreement, notice of nonpayment, demand,
presentment, protest and notice thereof with respect to any and all instruments,
notice of Collateral received or delivered or any other action taken in reliance
on this Agreement and all other demands and notices of any description, except
such as are expressly provided for in this Agreement or which by applicable law
may not be waived on the date of this Agreement. No failure on the Secured
Party's part to exercise, and no delay in exercising, any right, power or remedy
under this Agreement shall operate as a waiver thereof or of any default by any
Pledgor under this Agreement, nor shall any single or partial exercise by the
Secured Party of any right, power or remedy under this Agreement preclude any
other or future exercise thereof or the exercise of any other right, power or
remedy. No amendment or modification of this Agreement nor any waiver of any
provision of this Agreement or consent to any departure by any Pledgor therefrom
shall be effective unless it is in writing and signed by the Secured Party and
then any such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on any Pledgor
shall, of itself, entitle any Pledgor to any other or further notice or demand
in similar or other circumstances. Except as otherwise provided in this
Agreement, if notice, whether before or after any default by any Pledgor under
this Agreement or the Guaranty has occurred, is required by law to be given by
the Secured Party to the Pledgors, each Pledgor agrees that five days' notice
given in the manner provided in Section 12 will be reasonable notice.
11. CUMULATIVE RIGHTS AND REMEDIES. This Agreement and the security
interest granted by this Agreement are in addition to and not in substitution
for any other security
interest now or hereafter held by the Secured Party, and this Agreement is, and
is intended to be, a continuing agreement and shall not operate as a merger of
any contract debt or suspend the fulfillment of or affect the Secured Party's
rights, remedies or powers in respect of any obligation or other security held
by the Secured Party for the fulfillment thereof. The remedies provided in this
Agreement are cumulative and are not exclusive of any remedy provided by law.
12. NOTICES. Any notice given under this Agreement shall be given in
writing (including teletransmissions) and mailed, teletransmitted or delivered
by the party giving such notice to the other party at the address or telefax
number, if to the Secured Party, indicated beneath its signature line of this
Agreement or, if to any Pledgor, indicated beneath its signature line of this
Agreement or, as to each such party, at such other address or telefax number as
may be designated by such party by notice complying with the terms of this
Section 12. All notices under this Agreement shall be deemed given when
deposited in the mails or delivered or teletransmitted, addressed as provided in
this Section 12.
13. COSTS AND EXPENSES. Each Pledgor agrees to pay, promptly after
demand, whether or not any default by any Pledgor under this Agreement or the
Guaranty has occurred and whether or not any proceeding to enforce this
Agreement or the Obligations has been commenced, all of the Secured Party's
reasonable costs and expenses, including (but not limited to) all reasonable
fees and disbursements of the Secured Party's legal counsel, incurred in
connection with the enforcement of this Agreement, the security interest granted
by this Agreement, the receipt of proceeds of Collateral under this Agreement,
the care and preservation of the Collateral or the preparation of any requested
amendments to this Agreement, modifications of this Agreement or waivers or
consents in connection with this Agreement. Any such expenses so incurred by the
Secured Party shall be specified to the Pledgors, shall be part of the
Obligations and shall be secured by the Collateral.
If any tax, assessment, charge or claim is claimed or made with
respect to the Collateral that in the Secured Party's opinion may possibly
create a valid obligation having priority over the security interest granted to
the Secured Party by this Agreement, the Secured Party may, in its sole
discretion and without notice, pay such taxes, assessments, charges or claims,
and the amount thereof shall be specified to the Pledgors, shall be part of the
Obligations and shall be secured by the Collateral.
Upon any Pledgor's failure to perform any of the its duties under
this Agreement, the Secured Party may, but shall not be obligated to, perform
any or all of such duties, and the Pledgors will pay to the Secured Party on
written demand an amount equal to the cash or out-of-pocket expense incurred by
the Secured Party in so doing plus interest thereon from the date such expense
is incurred until it is paid at a rate per annum equal to the highest rate of
interest payable by the Pledgors from time to time on the Obligations.
14. SUCCESSORS AND ASSIGNS, GOVERNING LAW, SURVIVAL AND
SEVERABILITY. This Agreement, shall inure to the benefit of and shall be binding
upon each of the parties and respective successors and assigns; PROVIDED,
HOWEVER, that no Pledgor may assign its rights or obligations hereunder or any
interest herein and any assignment in violation hereof shall be void.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York. All covenants, agreements, representations and warranties
made by each Pledgor in this Agreement shall survive the execution and delivery
of this Agreement and shall continue in full force and effect so long as any
Obligation remains unpaid or unperformed. If any part of this Agreement is
contrary to, prohibited by or deemed invalid under applicable law or
regulations, such provision shall be inapplicable and deemed omitted to the
extent so contrary, prohibited or invalid, but the remainder of this Agreement
shall not be invalidated and shall be given full force and effect so far as
possible, and any such prohibition or invalidity in any jurisdiction shall not
invalidate such provision or render it unenforceable in any other jurisdiction.
15. NO ASSUMPTIONS OF DUTIES; LIMITATION ON LIABILITIES. (a) Nothing
in this Agreement shall be construed to constitute the Secured Party as any
Pledgor's agent for any purpose whatsoever. The Secured Party does not, by this
Agreement or any assignment or otherwise, assume any obligations of any Pledgor
under any Collateral, or any contract or agreement relating to any Collateral,
and the Secured Party shall not be responsible in any way for performance of any
of the terms and conditions thereof.
(b) Neither the Secured Party nor any of its directors,
officers, agents or employees shall be liable to any person or entity for any
action taken or omitted by it or any of its directors, officers, agents or
employees under this Agreement or with respect to any transaction contemplated
by this Agreement, except for the Secured Party's or such director's, officer's,
agent's or employee's own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, the Secured Party shall not be
responsible or liable for any damage, loss or destruction of any part of the
Collateral, wherever it may be located and regardless of the cause thereof,
unless due to its own gross negligence or willful misconduct. The Secured Party
shall not, under any circumstances or in any event whatsoever, have any
liability for any error or omission or delay of any kind occurring in the
settlement, collection or payment of any Collateral or any instrument received
in payment thereof or for any damage resulting therefrom. Each Pledgor assumes
all responsibility and liability arising from the use of the Collateral and will
pay, and indemnify and holds the Secured Party harmless from and against, any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to its right, title and interest in, to and under the
Collateral.
16. AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO
OBLIGATIONS. Each Pledgor hereby consents that, without the necessity of any
reservation of rights against it and without notice to or further assent by it,
the liability of any other person or entity on or for any part of the
Obligations, or any collateral security or guaranty therefor or right of offset
with respect thereto, may from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released and any other collateral security document or guaranty or document
delivered in connection therewith to which such Pledgor is not a party may be
amended, modified, supplemented, restated or terminated, in whole or in part, as
the Secured Party may deem advisable from time to time, and any collateral
security or guaranty or right of offset at any time held for payment of the
Obligations may be
sold, waived, surrendered or released, all without the necessity of any
reservation of rights against such Pledgor and without notice to or further
assent by such Pledgor, and such Pledgor will remain bound hereunder
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, restatement, termination, sale, exchange,
waiver, surrender or release. Each Pledgor waives any and all notice of or proof
of reliance by the Secured Party on this Agreement, and the Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Agreement, and all dealings between the parties
shall likewise be conclusively presumed to have been had or consummated in
reliance on this Agreement. Each Pledgor waives (to the fullest extent permitted
by applicable law) diligence, presentment, protest, demand for payment and
notice of default or nonpayment to with respect to the Obligations.
17. NO SUBROGATION. Notwithstanding any payment or payments made by
any Pledgor hereunder, the receipt of any amounts by the Secured Party with
respect to the Collateral or any set-off or application of any Pledgor's funds
by the Secured Party, each Pledgor shall not be entitled to be subrogated to any
of the Secured Party's rights against any collateral security or guaranty or
right of offset held by the Secured Party for the payment of the Obligations,
until this Agreement has terminated in accordance with Section 20 hereof.
18. HEADINGS; CONSTRUCTION. The headings used in this Agreement are
for convenience only and are not to be considered a part of this Agreement and
do not in any way limit or amplify the terms and provisions of this Agreement.
When the context so requires, the singular number shall be read as if the plural
were expressed and the provisions of this Agreement shall be read with all
grammatical changes necessary dependent upon the person or entity referred to
being a male, female, firm or corporation.
19. SUBMISSION TO JURISDICTION. Each Pledgor expressly submits to
the jurisdiction of all federal and state courts located in the County of New
York, State of New York and any appellate courts therefrom, and consents that
any order, process or other paper may be served upon it within or without such
court's jurisdiction by registered mail or by personal service at the address
specified pursuant to Section 12 hereof, PROVIDED a reasonable time for
appearance is allowed. Each Pledgor irrevocably waives any objection it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any such court and
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
contained in this Agreement shall affect the Secured Party's right to serve
legal process in any other manner permitted by law or to bring any action or
proceeding against any Pledgor or its property in the courts of other
jurisdictions.
20. DEFEASANCE. Upon the indefeasible satisfaction in full in cash
of the Obligations, this Agreement shall terminate and be of no further force
and effect. Notwithstanding the preceding sentence, the indemnity agreement
contained in Section 15(b) hereof shall survive the termination of this
Agreement.
21. PRIOR UNDERSTANDINGS. This Agreement supersedes all prior
understandings and agreements, whether written or oral, between the parties
relating to the transactions provided for herein.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument. Counterparts of this
Agreement may be executed by facsimile transmission.
23. WAIVER OF JURY TRIAL. EACH PLEDGOR AND, BY ITS ACCEPTANCE OF
THIS AGREEMENT, THE SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT SUCH PLEDGOR OR THE SECURED PARTY MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND
AGREE THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
GUIDELINE RESEARCH CORP.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. Tax ID No.:_______________________
Jurisdiction of incorporation: New York
Address for notices:
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone No.:
Telefax No.:
TABLINE DATA SERVICES, INC.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. Tax ID No.:_______________________
Jurisdiction of incorporation: New York
Address for notices:
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone No.:
Telefax No.:
GUIDELINE/CHICAGO, INC.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. Tax ID No.:_______________________
Jurisdiction of incorporation: Illinois
Address for notices:
000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention:
Telephone No.:
Telefax No.:
ADVANCED ANALYTICS, INC.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. Tax ID No.:_______________________
Jurisdiction of incorporation: New York
Address for notices:
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone No.:
Telefax No.:
GUIDELINE CONSULTING CORP.
By /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
U.S. Tax ID No.:_______________________
Jurisdiction of incorporation: New York
Address for notices:
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone No.:
Telefax No.:
ACCEPTED:
JPMORGAN CHASE BANK
By /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: Vice President
Address for notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
