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EXHIBIT 10.73
GENERAL SECURITY AGREEMENT
(XXXXX CORPORATION)
1. GRANT OF SECURITY INTEREST.
For valuable consideration, receipt whereof is acknowledged, and as
general and continuing security for the payment of all obligations, indebtedness
and liabilities in any currency of XXXXX CORPORATION, FORMERLY KNOWN AS ACCESS
BEYOND, INC. of 0000 Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (the
"Undersigned") to THE CIT GROUP/CREDIT FINANCE, INC. ("Lender") with an office
at 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, whether
incurred prior to, at the time of or subsequent to the execution hereof,
including extensions or renewals, and all other liabilities of the Undersigned
to Lender, direct or indirect, absolute or contingent, matured or not,
wheresoever and howsoever incurred (whether incurred by the Undersigned alone or
with another or others, whether incurred as principal or surety and whether
arising from dealings between Lender and the Undersigned or from other dealings
or proceedings by which Lender may be or become in any manner whatever a
creditor of the Undersigned) and any ultimate unpaid balance thereof, whether
the same is from time to time reduced and thereafter increased or entirely
extinguished and thereafter incurred again, including, without limiting the
generality of the foregoing, (i) liability of the Undersigned under any contract
of guarantee now or hereafter in existence whereby the Undersigned guarantees
payment of the debts, liabilities and obligations of a third party to Lender,
including, but not limited to, that certain Guaranty dated of even date herewith
from the Undersigned to Lender, as hereafter modified, amended or otherwise
altered (the "Guaranty"), pursuant to which the Undersigned has guaranteed all
debts, liabilities and obligations of Xxxxx Microcomputer Products, Inc.
("Borrower"), whether now existing or hereafter arising, to Lender, and (ii) all
interest, commissions, legal and other costs, charges and expenses
(collectively, the "Obligations"), the Undersigned hereby grants, assigns,
transfers, sets over, mortgages and charges to Lender, its successors and
assigns, and grants to Lender, its successors and assigns, a continuing security
interest in and lien upon, the Collateral (as defined in paragraph 2 hereof). If
the security interest in the Collateral is not sufficient, in the event of
default as hereinafter defined, to satisfy all Obligations of the Undersigned to
Lender, the Undersigned acknowledges and agrees that the Undersigned shall
continue to be liable for any Obligations remaining outstanding and Lender shall
be entitled to pursue full payment thereof.
2. DESCRIPTION OF COLLATERAL.
The Collateral of the Undersigned shall be deemed to include:
(a) Accounts. All accounts, including contract rights, deposit
accounts in banks, credit unions, trust companies and similar
institutions, debts, claims, dues, moneys,
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demands and choses in action of every nature and kind
howsoever arising which now are or which may at any time
hereafter be due, owing or accruing due to or owned by the
Undersigned, and also all securities, bills, notes, letters of
credit and other documents now held or owned or which may be
hereafter taken, held or owned by the Undersigned or anyone on
behalf of the Undersigned in respect of the said accounts,
debts, claims, dues, moneys, demands and choses in action or
any part thereof, and also all books and papers recording,
evidencing or relating to the said accounts, debts, claims,
dues, moneys, demands and choses in action or any part
thereof, and also all claims of any kind which the Undersigned
now has or may hereafter have, including, but not limited to,
claims under insurance policies ("Accounts");
(b) Chattel Paper. All chattel paper now or hereafter owned by the
Undersigned ("Chattel Paper");
(c) Documents of Title. All warehouse receipts, bills of lading
and other documents of title, whether negotiable or otherwise,
now or hereafter owned by the Undersigned ("Documents of
Title");
(d) Instruments. All instruments now or hereafter owned by the
Undersigned ("Instruments");
(e) Equipment. All goods, machinery, equipment and other tangible
personal property now owned or hereafter acquired or
reacquired by the Undersigned, which are neither Inventory as
described in subparagraph 2(g) nor consumer goods, used or
intended for use in or about the places designated in Schedule
A hereto or in any business conducted elsewhere by the
Undersigned, including, without limiting the generality of the
foregoing, all machinery, equipment, fixtures, furniture,
plant, tools, vehicles, other tangible personal property, and
all accessories installed in or affixed or attached or
appertaining to any of the foregoing ("Equipment");
(f) Intangibles. All intangible property now owned or hereafter
acquired or reacquired by the Undersigned which is not
Accounts as defined in subparagraph 2(a), including, without
limiting the generality of the foregoing, all general
intangibles, contract rights, contracts, agreements, options,
permits, licenses, consents, approvals, authorizations,
orders, judgments, certificates, rulings, insurance policies,
agricultural and other quotas, subsidies, franchises,
immunities, privileges, and benefits as well as all goodwill,
patents, trade marks, trade names, trade secrets, inventions,
processes, copyrights and other industrial or intellectual
property, whether foreign or domestic ("Intangibles");
(g) Inventory. All inventory of whatever kind and wherever
situated now owned or hereafter acquired or reacquired by the
Undersigned including, without limiting the
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generality of the foregoing, all goods, merchandise, raw
materials, goods or work in process, finished goods, other
tangible personal property held for sale, lease or resale or
that have been leased or consigned to or by the Undersigned or
furnished or to be furnished under contracts for service or
used or consumed in the business of the Undersigned
("Inventory");
(h) Securities. All shares, stock, warrants, rights, bonds,
debentures, debenture stock, instruments or other securities,
securities accounts, securities entitlements, money, letters
of credit, advices of credit and checks now or hereafter owned
by the Undersigned together with renewals thereof,
substitutions therefor, accretions thereto and all rights and
claims in respect thereof ("Security"); and
(i) Books, Records etc. With respect to the personal property
described in subparagraphs 2(a) to 2(i) inclusive, all books,
accounts, invoices, letters, papers, documents, disks, and
other records in any form, electronic or otherwise, evidencing
or relating thereto and all contracts, securities, bills,
notes, instruments, writings and other documents and other
rights and benefits in respect thereof now or hereafter held
or owned by the Undersigned or anyone on behalf of the
Undersigned;
and includes all parts, components, renewals, substitutions and replacements
thereof, all attachments, accessories, increases, additions and accessions
thereto and any interest of the Undersigned therein and further includes the
proceeds, in whatever form, of any sale, lease or other disposition of the
foregoing and all personal property in any form or fixtures derived directly or
indirectly from any dealing with any of the foregoing or proceeds therefrom, any
insurance or other payment that indemnifies or compensates for destroyed,
damaged, stolen or lost Collateral (as hereinafter defined) and any payment made
in total or partial discharge or redemption of an Intangible, Instrument,
Document of Title, Chattel Paper or Security (collectively, the "Collateral").
In this General Security Agreement, the words "consumer goods" and
"goods" shall have the same meanings as their defined meanings where such words
are defined in the Uniform Commercial Code of Georgia, as in effect from time to
time in Georgia (the "Code"). Any reference herein to "Collateral" shall, unless
the context otherwise requires, be deemed a reference to "Collateral or any part
thereof".
3. REPRESENTATIONS AND WARRANTIES OF THE UNDERSIGNED.
The Undersigned hereby represents and warrants, and so long as this
General Security Agreement remains in effect shall be deemed to continuously
represent and warrant, to Lender that:
(a) Except for the security interest created hereby, the other
security interests granted by the Undersigned which are
hereafter approved by Lender in writing prior to their
creation or assumption, or which are Permitted Liens (as
defined in subparagraph 4(e) hereof), the Undersigned is, or
with respect to Collateral acquired after the date
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hereof will be, the sole beneficial owner of the Collateral,
free and clear of any mortgage, lien, pledge, charge, security
interest, hypothecation, adverse interest, encumbrance, tax or
assessment.
(b) The Undersigned has, or with respect to Collateral acquired
after the date hereof will have, the right to grant a security
interest in the Collateral in favor of Lender.
(c) To the extent applicable, each Account, Chattel Paper,
Instrument, Document of Title, Intangible and Security which
constitutes Collateral is enforceable in accordance with its
terms against the party obligated to pay the same (the "Third
Party Debtor"), and the amount represented by the Undersigned
to Lender from time to time as owing by each Third Party
Debtor or by all Third Party Debtors will be the correct
amount actually and unconditionally owing by such Third Party
Debtor or Third Party Debtors, except for normal cash
discounts where applicable, and no Third Party Debtors will
have any defense, set-off, claim or counterclaim against the
Undersigned which can be asserted against Lender, whether in
any proceeding to enforce the Collateral, this General
Security Agreement or otherwise.
(d) The locations specified in Schedule A hereto as to business
operations and records are accurate and complete and the
Collateral insofar as it consists of goods (other than
Inventory in transit from suppliers or in transit to
customers) and other tangible property is at and will be kept
at one of such locations or at such other locations as the
Undersigned shall specify in writing to Lender and, subject to
the provisions of this General Security Agreement, none of the
Collateral shall be moved therefrom without the prior written
consent of Lender.
(e) The Undersigned's chief executive address is as set out in
Schedule A hereto.
(f) The Undersigned is duly incorporated and organized and validly
existing under the laws of Delaware and has full corporate
power, authority and capacity to conduct its business and own
the Collateral in all jurisdictions in which the Undersigned
carries on business.
(g) The Undersigned has full corporate power, authority and
capacity to execute, deliver and perform all of its
obligations under this General Security Agreement.
(h) All corporate action on the part of the Undersigned, its
directors or shareholders, necessary for the authorization,
execution, delivery and performance of this General Security
Agreement has been duly taken.
(i) The officers of the Undersigned executing this General
Security Agreement and any other instrument or agreement
required hereunder hold the offices which they purport to hold
and are fully and duly authorized to execute the same.
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(j) This General Security Agreement when duly executed and
delivered by the Undersigned will be a legal, valid and
binding obligation of the Undersigned, enforceable against it
in accordance with its terms, subject only as such enforcement
may be limited by bankruptcy, insolvency and any other similar
laws or proceedings relating to the enforcement of creditors'
rights generally and to the extent that equitable remedies
such as specific performance and injunction are in the
discretion of a court of competent jurisdiction.
(k) There is no charter, by-law, or capital stock provision of the
Undersigned and no provision of any indenture, mortgage, lease
or agreement, written or oral, to which the Undersigned is a
party or under which the Undersigned is obligated, nor to the
knowledge of the Undersigned is there any law, statute, rule
or regulation, or any judgment, decree or order of any court
or agency binding on the Undersigned, which would be violated,
contravened, breached by or under which default would occur as
a result of the execution and delivery of this General
Security Agreement or by the performance of any provision,
condition, covenant or other term hereof.
(l) There is no litigation, tax claim, proceeding or dispute in
progress, pending or, to the knowledge of the Undersigned,
threatened, against, relating to or affecting the Undersigned
or its property, the adverse determination of which might
adversely affect the Undersigned's financial condition or
operations or impair the Undersigned's ability to perform its
obligations hereunder or under any other instrument or
agreement required hereunder.
(m) The undersigned is solvent in the sense that the fair saleable
value of all of its assets exceeds the total amount of its
liabilities.
4. COVENANTS OF THE UNDERSIGNED.
So long as this General Security Agreement remains in effect, the
Undersigned hereby covenants and agrees that:
(a) Without the prior written consent of Lender, the Undersigned
shall not assume, create or permit the creation of any
mortgage, lien, charge, pledge, security interest,
hypothecation or encumbrance whatsoever (other than a
Permitted Lien) on any of the Collateral, including, without
limiting the generality of the foregoing, any purchase money
security interest as defined in the Code.
(b) The Undersigned shall diligently defend its title to the
Collateral against the claims and demands of all persons
claiming the same or an interest therein.
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(c) The Undersigned shall diligently maintain, use and operate the
Collateral and shall carry on and conduct its business in a
proper and efficient manner so as to preserve and protect the
Collateral and the earnings, incomes, rents, issues and
profits thereof.
(d) The Undersigned shall (i) cause the Collateral to be properly
insured and kept properly insured with reputable insurers as
shall be acceptable to Lender against loss or damage by fire,
windstorm, water, theft, malicious mischief and extended
coverage, and such other risks as Lender may require, to the
full insurable value thereof, (ii) either assign the insurance
policies to Lender or have the loss thereunder made payable to
Lender, as Lender may require, (iii) deliver to Lender the
originals of such policies or certified copies thereof with
satisfactory lender's loss payable endorsements naming Lender
as sole loss payee, mortgagee, assignee and additional
insured, as appropriate, and (iv) deliver to Lender evidence
of such insurance satisfactory to Lender. Should the
Undersigned neglect to maintain such insurance, Lender may
(but shall not be required to) insure the Collateral, and any
premiums paid by Lender together with interest thereon shall
be payable by the Undersigned to Lender upon demand.
(e) The Undersigned shall keep the Collateral free and clear of
all taxes, assessments, claims, liens and encumbrances except
for ("Permitted Liens"):
(i) security interests and liens at any time granted in
favor of Lender;
(ii) liens for taxes that are not yet due or are being
contested in good faith by the Undersigned by
appropriate proceedings promptly instituted and
diligently conducted, when the Undersigned has
established appropriate reserves therefor, but only
if nonpayment of such taxes will not have a material
adverse effect upon the business, operations,
properties, condition (financial or otherwise), or
the business prospects of the Undersigned or the
Collateral and no lien is imposed upon the
Undersigned's assets with respect to such taxes
unless such lien is at all times junior and
subordinate in priority to the security interests and
liens in favor of Lender;
(iii) statutory liens arising in the ordinary course of the
Undersigned's business by operation of law or
regulation, but only if (a) payment in respect of any
such lien is not at the time required or such liens
are being contested in good faith by the Undersigned
by appropriate proceedings promptly instituted and
diligently conducted, when the Undersigned has
established appropriate reserves therefor, (b) such
liens do not, in the aggregate, materially detract
from the value of the Collateral or materially impair
the use thereof in the operation of the Undersigned's
business, and (c) such liens are at all times junior
and subordinate to the security interests and liens
in favor of Lender; and
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(iv) such other liens as Lender may hereafter approve in
writing.
(f) The Undersigned shall pay all rents, taxes, rates, levies,
assessments, government fees, dues and other charges of every
nature lawfully levied, assessed or imposed against or in
respect of the Undersigned or the Collateral or any part
thereof as and when the same shall become due and payable, and
shall exhibit to Lender, when required, the receipts and
vouchers establishing such payments.
(g) The Undersigned shall preserve and maintain its corporate
existence, rights, franchises and privileges and shall duly
observe and conform to all valid requirements of any
governmental authority relative to its business, credit or any
of the Collateral and all covenants, terms and conditions upon
or under which the Collateral is held.
(h) The Undersigned shall notify Lender in writing:
(i) promptly after the Undersigned's learning thereof, of
the commencement of any litigation or claims before
any court, administrative board or other tribunal
relating to or affecting the Undersigned or any of
its properties, whether or not the claim is
considered by the Undersigned to be covered by
insurance;
(ii) of the occurrence of any event or the existence of
any fact which renders any representation or warranty
in this General Security Agreement inaccurate,
incomplete or misleading;
(iii) promptly after the Undersigned's learning thereof, of
any default by the Undersigned under any note
indenture, loan agreement, mortgage, lease, deed,
guaranty or other similar agreement relating to any
indebtedness of the Undersigned exceeding $300,000;
(iv) promptly after the occurrence thereof, of any Event
of Default;
(v) promptly after the occurrence thereof, of any default
by any obligor under any note or other evidence of
indebtedness payable to the Undersigned;
(vi) promptly after the occurrence thereof, of any
judgment rendered against the Undersigned in an
amount exceeding $300,000;
(vii) at least thirty (30) days prior to the occurrence
thereof, the details of any proposed material
acquisition of Collateral and, promptly after the
occurrence thereof, the details of any acquisition of
any vehicle, mobile home, trailer, boat, aircraft or
aircraft engine;
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(viii) promptly after the Undersigned's learning thereof, of
any event which occurs that would have an adverse
effect upon the Collateral or upon the financial
condition of the Undersigned, including, without
limiting the generality of the foregoing, any loss of
or damage to the Collateral, any default by any Third
Party Debtors in the payment or other performance of
its obligations with respect to the Collateral or the
return to or repossession by the Undersigned of
Collateral where such return or repossession of
Collateral is material in relation to the business of
the Undersigned; and
(ix) promptly (and in any event within 2 Business Days)
after the Undersigned's learning thereof, of the
termination of or assertion by a landlord of the
Undersigned of any default under any lease between
such landlord and the Undersigned.
(i) The Undersigned shall not sell, exchange, transfer, lease,
assign or otherwise dispose of or change the use of the
Collateral or any interest therein (except for sales of
Inventory in the ordinary course of the Undersigned's business
so long as no Event of Default exists hereunder) or modify,
amend, discount, compromise or terminate any Chattel Paper,
Document of Title, Instrument, Security, Intangible or
Accounts, or assign, factor or discount any of the Accounts to
a third party, without the prior written consent of Lender.
All proceeds of the Collateral shall be held in trust by the
Undersigned for Lender.
(j) The Undersigned shall prevent the Collateral, except the
Collateral sold or leased as permitted hereby, from being or
becoming an accession to other property not covered by this
General Security Agreement.
(k) The Undersigned shall not create or permit the creation of any
trust deed or similar instrument without the prior written
consent of Lender.
(l) The Undersigned shall keep proper books of account in
accordance with sound accounting practice and complete and
accurate records concerning the Collateral. The Undersigned
shall from time to time forthwith, on request, furnish to
Lender in writing all information and statements, including
financial information and statements, requested relating to
the Undersigned's business, the Collateral or any part
thereof, and Lender or its authorized agents shall be entitled
from time to time to inspect the tangible Collateral wherever
located, including, without limiting the generality of the
foregoing, the books and records, financial or otherwise,
maintained by the Undersigned with respect to the Collateral,
and to make copies thereof and take extracts therefrom, and
for such purpose Lender or its authorized agents shall have
access to all places where the Collateral or any part thereof
is located and to all premises occupied by the Undersigned.
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(m) The Undersigned shall keep all Collateral, other than
Inventory in transit, at one or more locations set forth in
Schedule A attached hereto, and all such Collateral shall not,
without the prior written consent of Lender, be moved
therefrom, except prior to an Event of Default, for (i) sales
of Inventory in the ordinary course of business and (ii) the
storage of Inventory at locations within Maryland and Georgia
other than those shown on Schedule A if, prior to storage of
any such Inventory at such locations, all filings that are
necessary to perfect or continue to perfect Lender's security
interests in or liens upon the Collateral have been filed.
(n) The Undersigned shall provide Lender with all agreements
hereafter entered into between the Undersigned and any
landlord or warehouseman which owns any premises at which any
Inventory may hereafter be kept. The Undersigned shall obtain
a lien waiver or subordination, in the form requested by
Lender, from each landlord of a premises leased by the
Undersigned.
(o) The Undersigned shall furnish Lender with Inventory reports,
which reports shall describe the Inventory by each location
and be substantially in the form requested by Lender, at such
times as Lender may request. The Undersigned shall conduct a
physical inventory no less frequently than annually and shall
provide to Lender reports based on each such physical
inventory promptly thereafter, together with such supporting
information as Lender shall reasonably request.
(p) The Undersigned shall deliver to Lender from time to time
promptly upon request such other information concerning the
Collateral, the Undersigned and the Undersigned's business and
affairs as Lender may reasonably request.
(q) The Undersigned shall not change its name or the location of
its chief executive office or principal place of business
without having given Lender at least sixty (60) days prior
written notice thereof.
5. USE AND VERIFICATION OF COLLATERAL.
Subject to compliance with the Undersigned's covenants contained herein
and paragraph 7 hereof, the Undersigned may, until an Event of Default, possess,
operate, collect, use, enjoy and deal with the Collateral in the ordinary course
of the Undersigned's business in any lawful manner not inconsistent with the
provisions of this General Security Agreement; provided always that Lender shall
have the right at any time and from time to time to verify the existence and
state of the Collateral in any manner Lender may consider appropriate and the
Undersigned agrees to furnish all assistance and information and to perform all
such acts as Lender may request in connection therewith and for such purpose,
the Undersigned shall permit Lender and its representatives, from time to time,
and as often as may be requested, but only during normal business hours, to (i)
visit and inspect the properties at which any Collateral is located, (ii)
inspect, audit and make extracts from its books and records and (iii) discuss
with the Undersigned's officers, employees and
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independent accountants, the Undersigned's business, assets, liabilities,
financial condition, business prospects and results of operations.
6. SECURITIES.
If Collateral at any time includes Securities, the Undersigned hereby
authorizes Lender to transfer the same or any part thereof into its own name or
that of its nominee(s) so that Lender or its nominee(s) may appear of record as
the sole registered owner thereof; provided, that, until the occurrence of Event
of Default, Lender shall deliver promptly to the Undersigned all notices or
other communications received by it or its nominee(s) as such registered owner
and, upon demand and receipt of payment of any reasonable expenses in connection
thereof, shall issue to the Undersigned or its order a proxy to vote and take
all action with respect to such Securities. After the occurrence of an Event of
Default, the Undersigned waives all rights to receive any notices or
communications received by Lender or its nominee(s) as such registered owner and
agrees that no proxy issued by Lender to the Undersigned or its order as
aforesaid shall thereafter be effective. Lender shall be entitled but not bound
or required to vote in respect of such Securities at any meeting at which the
holder thereof is entitled to vote and, generally, to exercise any of the rights
which the holder of such Securities may at any time have; provided, that, Lender
shall not be responsible for any loss occasioned by the exercise of any of such
rights or by the failure to exercise the same within the time limited for the
exercise thereof.
7. COLLECTION AND VERIFICATION OF ACCOUNTS AND OTHER DEBTS.
To expedite collection, the Undersigned shall endeavor to make
collection of its Accounts and all debts evidenced by its Chattel Paper or its
Instruments for Lender. Any of Lender's officers, employees or agents shall have
the right, at any time or times thereafter, in the name of Lender, any designee
of Lender or the Undersigned, to verify the validity, amount or any other matter
relating to any Account with the account debtor of such Account by mail,
telephone, telecopier or otherwise. The Undersigned shall cooperate fully with
Lender to facilitate and promptly conclude any such verification process.
8. PROCEEDS, INCREASES, PROFITS, PAYMENTS OR DISTRIBUTIONS.
Whether or not an Event of Default has occurred, Lender may take
control of or receive all proceeds of, income from or interest on Collateral and
may apply any money taken as Collateral to the satisfaction of the Obligations
secured hereby. Lender may hold as additional security any increase or profits
received from any Collateral in Lender's possession, may receive any payment or
distribution upon redemption or retirement of the Collateral or upon the
dissolution or liquidation of the issuer of the Collateral and may apply any
money received from such Collateral to reduce the Obligations secured hereby and
may hold any balance as additional security for such part of the Obligations as
may not yet be due, whether absolute or contingent. If the Undersigned receives
any such increase or profits or payments or distributions, the Undersigned will
deliver the same promptly to Lender to be held by Lender as herein provided.
Lender will not be obligated to keep any
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Collateral separate or identifiable. In the case of any Instrument, Security or
Chattel Paper, Lender will not be obligated to take any necessary or other steps
to preserve rights against other persons.
9. EVENT OF DEFAULT.
The occurrence of one or more of the following events shall constitute
an "Event of Default":
(a) The Undersigned shall default in the payment of all or any
part of the Obligations of the Undersigned to Lender as the
same falls due, whether by acceleration or otherwise.
(b) The Undersigned shall default in the performance or observance
of any covenant, obligation, term, condition, undertaking,
provision or agreement heretofore, herein or hereafter given
to Lender, whether contained herein or in any other agreement
to which the Undersigned and Lender are parties, including,
without limiting the generality of the foregoing, any covenant
or undertaking set out in the Guaranty.
(c) Any of the representations and warranties heretofore, herein
or hereafter given to Lender is or becomes incorrect in any
respect at any time or any certificate, statement or audit
report heretofore, herein or hereafter given or delivered to
Lender is incorrect in any respect at the time such
certificate, statement or audit report is given or delivered
to Lender.
(d) If any execution, judgment or any other process of any court
shall become enforceable against the Undersigned or any
guarantor of any of the Obligations or any distress or
analogous process shall be levied upon the Collateral or any
part thereof.
(e) The Undersigned or any guarantor of any of the Obligations
shall become insolvent, file a bankruptcy petition, make an
assignment in bankruptcy, make a bulk sale of its assets or
otherwise transfer all or substantially all of its assets,
propose a compromise or arrangement to its creditors or take
advantage of provisions for relief under the U.S. Bankruptcy
Code or any other legislation for the benefit of insolvent
debtors.
(f) If a bankruptcy petition shall be filed or presented against
the Undersigned or any guarantor of any of the Obligations and
not be bona fide opposed by the Undersigned or any guarantor
of any of the Obligations, any proceeding is taken, whether in
court or under the terms of any agreement or appointment in
writing, with respect to a compromise or arrangement to have
the Undersigned or any guarantor of any of the Obligations
dissolved, liquidated or wound up, or to have a receiver or
similar official appointed in respect of the Undersigned or
any guarantor of any of the Obligations or of any part of the
Collateral, or if any encumbrance becomes
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enforceable against any Collateral or any encumbrancer takes
possession of any part thereof.
(g) The Undersigned or any guarantor of any of the Obligations
shall cease or threaten to cease to carry on business for a
period which significantly affects the Undersigned's capacity
to continue its business, on a profitable basis; or the
Undersigned shall suffer the loss or revocation of any license
or permit now held or hereafter acquired by the Undersigned
which is necessary to the continued or lawful operation of its
business; or the Undersigned shall be enjoined, restrained or
in any way prevented by court, governmental or administrative
order from conducting all or any material part of its business
affairs.
(h) An Event of Default shall have occurred under (and as defined
in) the Loan and Security Agreement dated December 21, 1995,
between Lender and Borrower, as modified, amended or otherwise
altered (the "Loan Agreement").
(i) If the Undersigned enters into any reorganization, merger or
other similar arrangement.
(j) The Undersigned shall be criminally indicted or convicted
under any law that could lead to forfeiture of any property of
the Undersigned.
(k) Lender shall have commercially reasonable grounds to believe
that the prospect of payment of the Obligations or performance
of the obligations under this General Security Agreement or
under any other agreement between the Undersigned and Lender
are about to be impaired or that the Collateral is about to be
in danger of being lost, damaged, confiscated or placed in
jeopardy.
(l) The Undersigned or any other guarantor of all or any part of
the Obligations shall revoke or attempt to revoke its
guaranty.
The provisions of this clause are not intended in any way to affect any rights
of Lender with respect to any Obligations which may now or hereafter be payable
on demand.
10. REMEDIES ON DEFAULT.
(a) Upon or at any time after the occurrence of any Event of
Default, Lender, at its sole discretion, may declare all or
any part of the Obligations, whether or not any such
Obligation is not by its terms payable on demand, to be
immediately due and payable in full, without demand or notice
of any kind.
(b) If Lender declares that the Obligations shall immediately
become due and payable in full, Lender may withhold any future
advances, may proceed to enforce payment
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of the Obligations, take immediate possession of the
Collateral, enter upon any premises of the Undersigned,
otherwise enforce this General Security Agreement and enforce
any rights of the Undersigned in respect of the Collateral by
any manner permitted by applicable law, and may use the
Collateral in the manner and to the extent that Lender may
consider appropriate and may hold, insure, repair, process,
maintain, preserve, prepare for disposition and dispose of the
same and may require the Undersigned to assemble and deliver
the Collateral or make the Collateral available to Lender at a
place designated by Lender. Lender may also take proceedings
in any court of competent jurisdiction for the appointment of
a receiver (which term shall include a receiver and manager)
of the Collateral or of any part thereof or may by instrument
in writing appoint any person to be a receiver of the
Collateral or of any part thereof and may remove any receiver
so appointed by Lender and appoint another in his stead; and
any such receiver appointed by instrument in writing shall, to
the extent permitted by applicable law or to such lesser
extent permitted, have all of the rights, remedies, benefits
and powers of Lender hereunder or under the Code or otherwise
and, without limiting the generality of the foregoing, have
power (i) to take possession of the Collateral or any part
thereof, (ii) to carry on or concur in carrying on all or any
part or parts of the business of the Undersigned, (iii) to
file such proofs of claim and other documents as may be
necessary or advisable in order to have his claim lodged in
any bankruptcy, winding-up or other judicial proceedings
relative to the Undersigned, (iv) to borrow money required for
the seizure, repossession, retaking, repair, insurance,
maintenance, preservation, protection, collection, preparation
for disposition, disposition or realization of the Collateral
or any part thereof and for the enforcement of this General
Security Agreement or for the carrying on of the business of
the Undersigned on the security of the Collateral in priority
to the security interest created under this General Security
Agreement, and (v) to sell, lease or otherwise dispose of, or
concur in the sale, lease or other disposition of, the whole
or any part of the Collateral at public auction, by public
tender or by private sale, lease or other disposition, either
for cash or upon credit, at such time and upon such terms and
conditions as the receiver may determine, provided that if any
such disposition involves a deferred payment or payments,
Lender will not be accountable for and the Undersigned will
not be entitled to be credited with the proceeds of any such
disposition until the monies therefor are actually received.
Any such receiver shall for all purposes be deemed to be the
agent of the Undersigned. Lender may from time to time fix the
remuneration of such receiver. All moneys from time to time
received by such receiver shall be paid by him first in
discharge of the reasonable expenses of Lender incurred in
retaking, holding, repairing, processing and preparing for
disposition and disposing of the Collateral including, without
limitation, all rents, taxes, rates, insurance premiums and
outgoings affecting the Collateral, remuneration of the
receiver, such other amounts referred to in subparagraph 12(b)
hereof, costs of keeping in good standing any liens and
charges on the Collateral prior to the security constituted by
this General Security Agreement and any other reasonable
expenses
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incurred by Lender, and secondly in or toward payment of such
parts of the Obligations of the Undersigned to Lender in such
manner and order as Lender may in its sole discretion
determine, and any residue of such moneys so received shall be
paid to the Undersigned. Lender in appointing or refraining
from appointing such receiver shall not incur any liability to
the receiver, the Undersigned or otherwise and shall not in
any way be responsible for any misconduct or negligence of any
such receiver.
(c) In addition to the rights and remedies specifically provided
herein, Lender shall, upon the occurrence of an Event of
Default, have the rights and remedies of a secured party under
the Code and other applicable legislation and as otherwise
provided by applicable law.
(d) If the disposition of the Collateral fails to satisfy all of
the Obligations, the Undersigned shall be liable to pay for
any deficiency on demand.
(e) When required to do so by the Code, Lender shall give to the
Undersigned the written notice required by the Code of any
intended disposition of the Collateral by serving such notice
personally on the Undersigned or by mailing such notice by
registered mail to the last known address of the Undersigned
or by any other method authorized or permitted by the Code.
11. ACCOUNTS.
In addition to the remedies set out in paragraph 10 hereof, Lender may
collect, realize, sell or otherwise deal with the Accounts or any part thereof
in such manner, upon such terms and conditions and at such time or times after
the occurrence of an Event of Default as may seem to it advisable and without
notice to the Undersigned (except in the case of sale and then subject to
subparagraph 10(e) hereof). Lender shall not be liable or accountable for any
failure to collect, realize, sell or obtain payment of the Accounts or any part
thereof and shall not be bound to institute proceedings for the purpose of
collecting, realizing or obtaining payment of the same or for the purpose of
preserving any rights of Lender, the Undersigned or any other person, firm or
corporation in respect of the same. All moneys collected or received by the
Undersigned in respect of the Accounts shall be received as trustee for Lender
and shall be forthwith paid over to Lender. All moneys collected or received by
Lender in respect of the Accounts or other Collateral may be applied, after
deduction of the reasonable expenses of realization from the money collected and
subject to any applicable requirements of the Code, on account of such parts of
the Obligations of the Undersigned as to Lender deems best or in the discretion
of Lender may be released to the Undersigned, all without prejudice to the
liability of the Undersigned or Lender' right to hold and realize this security.
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12. CHARGES AND EXPENSES.
(a) Upon the Undersigned's failure to perform any of its duties
hereunder, Lender may, but shall not be obligated to, perform
any or all of such duties, without waiving any rights to
enforce this General Security Agreement, and the Undersigned
shall pay to Lender, forthwith upon written demand therefor,
an amount equal to the costs, fees and expenses incurred by
Lender in so doing (including, without limiting the generality
of the foregoing, costs, fees and expenses associated with
legal advice and services).
(b) Lender may charge on its own behalf and pay to others
reasonable sums for costs, fees and expenses incurred and for
services rendered (including, without limiting the generality
of the foregoing, legal advice and services) in or in
connection with seizing, repossessing, retaking, repairing,
insuring, realizing, disposing of, retaining or collecting the
Collateral or any part thereof, and such sums shall be a first
charge on the proceeds of such realization, disposition or
collection. Subject to any applicable requirements of the Code
and the provisions of paragraph 10 hereof, the proceeds of any
such disposition of any Collateral may be applied by Lender to
the payment of all such costs, fees and expenses and any
balance of such proceeds may be applied by Lender towards the
payment of the Obligations in such order of application as
Lender may from time to time determine.
(c) All of the above costs, fees and expenses and all amounts
borrowed on the security of the Collateral under paragraph 10
hereof shall bear interest at a rate equal to two percent
(2.0%) per annum above the Interest Rate (as such term is
defined in the Loan Agreement) then in effect under the Loan
Agreement and shall be Obligations under this General Security
Agreement.
13. FURTHER ASSURANCES.
The Undersigned shall from time to time forthwith on Lender's request
furnish further assurance of title to the Collateral and further security to
Lender and execute and deliver all such financing statements, further
assignments, documents and instruments, and do or make all such further acts,
matters and things as may be required by Lender with respect to the Collateral
or any part thereof or as may be required or desirable to give effect to the
purposes and provisions of this General Security Agreement, and the Undersigned
further covenants and agrees to pay all costs and expenses incurred in
connection therewith. The Undersigned hereby irrevocably constitutes and
appoints Lender the true and lawful attorney of the Undersigned, with full power
of substitution, to do, make, sign, execute and deliver on behalf of the
Undersigned all such statements, assignments, documents, instruments, acts,
matters and things, as the Undersigned has agreed by these presents to do, make,
sign, execute or deliver or as may be required by Lender to give effect to these
presents or in the exercise of the powers on Lender hereby conferred, with the
right to use the name of the Undersigned, whenever and wherever Lender may deem
it necessary or expedient to do so. The power of attorney granted herein may be
exercised in the name and on behalf of the successors or
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assigns of the Undersigned. None of the powers hereby granted shall be revoked
by the bankruptcy of the Undersigned.
14. DEALINGS BY LENDER.
Lender may grant extensions of time, additional advances, renewals,
extensions and other indulgences, take and give up securities, accept
compositions, grant releases and discharges and otherwise deal with the
Undersigned, debtors of the Undersigned, sureties and others and with the
Collateral and other securities as Lender may see fit without prejudice to the
liability of the Undersigned or Lender's rights under this General Security
Agreement.
15. GENERAL.
The Undersigned and Lender further agree that:
(a) This General Security Agreement shall constitute and be a
continuing security agreement in every respect, shall not be
considered as satisfied or discharged by any intermediate
payment of all or any part of the Obligations and shall be in
addition to and not in substitution for any other security now
or hereafter held by Lender.
(b) Nothing in this General Security Agreement shall obligate
Lender to make any loan or accommodation to the Undersigned or
to grant, continue, renew or extend the time for payment or
satisfaction of the Obligations.
(c) Any failure by Lender to exercise any right set out in this
General Security Agreement shall not constitute a waiver
thereof. No remedy for the enforcement of the rights of Lender
hereunder shall be exclusive of or dependent on any other such
remedy but any one or more of such remedies may from time to
time be exercised in whole or in part, independently or in
combination.
(d) The security interests and liens created or provided for by
this General Security Agreement are intended to attach to
Collateral existing when this General Security Agreement is
signed by the Undersigned and delivered to Lender (or in the
case of property acquired subsequent thereto, immediately upon
the Undersigned acquiring any rights in such property). The
Undersigned acknowledges that it has received value and has
(or in the case of after acquired property, will have) rights
in the Collateral. The parties do not intend to postpone the
attachment of any security interest or lien created hereby.
For greater certainty, it is declared that any and all future
loans, advances or other value which Lender may in its
discretion make or extend to or for the account of the
Undersigned shall be secured by this General Security
Agreement.
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(e) All rights of Lender hereunder shall be assignable and in any
action brought by an assignee to enforce such rights, the
Undersigned shall not assert against the assignee any claim or
defense which the Undersigned now has or may hereafter have
against Lender.
(f) This General Security Agreement shall inure to the benefit of
and be binding upon Lender and the Undersigned, their
successors and assigns.
(g) If the Collateral or any part thereof is being sold or
delivered to the Undersigned by Lender, title and ownership of
each part of the Collateral shall not pass to the Undersigned
but shall be and remain in Lender until all Obligations in
respect of each such part are paid or performed in full.
(h) If more than one person executes this General Security
Agreement, then obligations hereunder shall be joint and
several and the Obligations shall include those of all or any
one or more of them.
(i) This General Security Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed
to be an original and such counterparts together shall
constitute one and the same instrument. Any signature
delivered by a party by facsimile transmission shall be deemed
to be an original signature hereto.
(j) In this General Security Agreement words importing number
shall include the singular and the plural, words importing
gender shall include all genders and the word "person" shall
include all firms, corporations, trusts, partnerships and
other forms of association.
(k) The headings of the paragraphs hereof are inserted for
convenience of reference only and shall not affect the
interpretation or construction of this General Security
Agreement.
(l) Time shall be of the essence of this General Security
Agreement and of each and every part hereof.
(m) This General Security Agreement shall be deemed effective upon
Lender's acceptance thereof. This General Security Agreement
will be governed in all respects by the laws of the State of
Georgia.
(n) No modification of or amendment to this General Security
Agreement shall be valid or binding unless set forth in
writing and duly executed by the Undersigned and Lender and no
waiver of any breach of any term or provision of this General
Security Agreement shall be effective or binding unless made
in writing and signed by the
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party purporting to give the same and, unless otherwise
provided, shall be limited to the specific breach waived.
(o) Any provision of this General Security Agreement, as amended
from time to time, which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidation of the remaining provisions hereof or affecting
the validity or enforceability of such provision in any other
jurisdiction.
16. NOTICES.
Except as otherwise provided in this General Security Agreement, any
notice, demand, request, consent or approval which is required or permitted to
be given or made by one party to any other pursuant to any provision of this
General Security Agreement or as otherwise required by applicable law shall be
given or made in writing and shall be sent by certified or registered mail,
return receipt requested, by personal delivery against receipt, by overnight
courier or by facsimile and, unless expressly provided herein, have been validly
served, given or delivered immediately when delivered against receipt one
business day after deposit in the mail, postage prepaid, or with an overnight
courier or in the case of facsimile notice, when sent, addressed as follows:
If to the Undersigned: Xxxxx Corporation
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
If to Lender: The CIT Group/Credit Finance, Inc.
1211 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Legal Department
Telecopy: (000) 000-0000
or such other address as each party may designated for itself by notice given in
accordance with this paragraph.
17. COPY OF GENERAL SECURITY AGREEMENT.
The Undersigned hereby acknowledges receipt of a copy of this General
Security Agreement. The Undersigned expressly waives the right to receive a copy
of any financing statement or financing change statement which may be registered
by Lender in connection with this General Security Agreement or any verification
statement issued with respect thereto where such waiver is not otherwise
prohibited by law.
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IN WITNESS WHEREOF, the Undersigned has executed this General Security
Agreement under seal, this 2nd day of January, 1998.
ATTEST: XXXXX CORPORATION, FORMERLY KNOWN AS
ACCESS BEYOND, INC.
/s/ By: /s/ Xxxxxx Xxxxxx
-------------------------- -------------------------
Secretary
Title: CEO
[CORPORATE SEAL] -----------------------
Accepted and Agreed to:
THE CIT GROUP/CREDIT FINANCE, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------
Title: AVP
-----------------------
Date: January 2, 1998
------------------------
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SCHEDULE A
(SUBPARAGRAPHS 2(E), 3(D) AND 3(E))
LEGAL DESCRIPTION
ALL LOCATIONS OF COLLATERAL
Location of Chief Executive Office:
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Locations of Records relating to Collateral
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Locations of Collateral
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
