Exhibit 10.9
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION
AGREEMENT (AS AMENDED, THE "SUBORDINATION AGREEMENT") DATED AS OF MARCH 30,
2004, AMONG AMERICAN CAPITAL FINANCIAL SERVICES, INC., AMERICAN CAPITAL
STRATEGIES, LTD., CORRPRO COMPANIES, INC., THE OTHER OBLIGORS (AS DEFINED
THEREIN) AND CAPITALSOURCE FINANCE LLC, AS AGENT, TO THE SENIOR DEBT (AS DEFINED
THEREIN), AS MORE PARTICULARLY DESCRIBED IN THE SUBORDINATION AGREEMENT, AND
EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE
PROVISIONS OF THE SUBORDINATION AGREEMENT.
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT"), dated as of March
30, 2004, is between COMMONWEALTH XXXXXX HOLDINGS LTD., a corporation
amalgamated under the laws of the Province of Alberta, Canada, CORRPRO CANADA,
INC., a corporation amalgamated under the laws of the Province of Alberta,
Canada, and XXXXX INSPECTIONS LTD., a corporation amalgamated under the laws of
the Province of Alberta, Canada (collectively and individually the "DEBTOR"),
and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation, or its
designated affiliate (the "SECURED PARTY"), as administrative agent for the
benefit of the Purchasers (as such term is defined in the Purchase Agreement
described below) (in such capacity, the "SECURED PARTY").
W I T N E S S E T H:
WHEREAS, Debtor has entered into that certain Note and Equity
Purchase Agreement of even date herewith (the same, as it may be amended,
restated, modified or supplemented and in effect from time to time, being herein
referred to as the "PURCHASE AGREEMENT") with Secured Party, as administrative
agent for the benefit of all Purchasers, providing for, inter alia, the sale to
the Purchasers of Notes by the Debtor and by CORRPRO COMPANIES, INC., an Ohio
corporation ("PARENT"), CCFC, INC., a Nevada corporation, and OCEAN CITY
RESEARCH CORP., a New Jersey corporation (collectively the "US LOAN PARTIES"),
on the terms and conditions set forth therein; and
WHEREAS, the corporations forming the Debtor are affiliated
entities, and each will receive direct or indirect economic benefits from the
Purchasers pursuant to the Purchase Agreement;
AND WHEREAS the Debtor has agreed, jointly and severally, as
an obligor, to provide security for their obligations under and pursuant to the
Purchase Agreement and the Notes, and accordingly the Debtor has agreed to
pledge and grant a security interest in the Collateral (as such term is
hereinafter defined) as security for those obligations under and pursuant to the
Purchase Agreement and the Notes (the "OBLIGATIONS").
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without
definition and defined in the Purchase Agreement are used herein as defined
therein. In addition, as used herein:
"ACCOUNT DEBTOR" means the obligor pursuant to any account.
"ACCOUNTS" means any "account," as such term is defined in the PPSA
and, in any event shall include the unpaid portion of the obligation of
a customer.
"SECURITY" means any "security", as such term is defined in the PPSA.
"CHATTEL PAPER" means any "chattel paper," as such term is defined in
the PPSA.
"COLLATERAL" shall have the meaning ascribed thereto in Section 3
hereof.
"CONTRACTS" means all contracts, undertakings, or other agreements
(other than rights evidenced by Chattel Paper, Documents or
Instruments) in or under which a Debtor may now or hereafter have any
right, title or interest, including, without limitation, with respect
to an Account, any agreement relating to the terms of payment or the
terms of performance thereof.
"COPYRIGHTS" means any copyrights, rights and interests in copyrights,
works protectable by copyrights, copyright registrations and copyright
applications, and all renewals of any of the foregoing, all income,
royalties, damages and payments now and hereafter due and/or payable
under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to xxx for past,
present and future infringements of any of the foregoing.
"DOCUMENTS" means any documents, and shall include, without limitation,
all documents of title, bills of lading or other receipts evidencing or
representing Inventory or Equipment.
"EQUIPMENT" means any "equipment," as such term is defined in the PPSA.
"FIXTURES" means assets which are affixed to real property in such a
manner as to, pursuant to applicable law, be considered a fixture and
form part of the real estate.
"GOODS" means any goods as such term is defined in the PPSA, including,
without limitation, Equipment, Fixtures and embedded software to the
extent included in any of the foregoing.
"INSTRUMENTS" means any instrument as such term is defined in the PPSA,
and shall include, without limitation, promissory notes, drafts, bills
of exchange, trade acceptances, lender letters of credit and other
letters of credit, letter-of-credit rights and chattel paper.
"INTANGIBLES" means any intangibles, as such term is defined in the
PPSA, and, in any event, shall include, without limitation, payment
intangibles, software, and all right, title and interest in or under
all Contracts, models, drawings, materials and records, claims,
literary rights, goodwill, rights of performance, copyrights,
trademarks, patents, warranties, rights under insurance policies and
rights of indemnification.
"INVENTORY" means any inventory, as such term is defined in the PPSA
and, in any event, shall include, without limitation, all "Inventory"
as such term is defined in the Purchase Agreement.
"LIABILITIES" shall mean, collectively, the Obligations and all
obligations, liabilities and Indebtedness of Debtor under or in respect
of this Agreement and the other Purchase Documents.
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"MOTOR VEHICLES" means motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PATENTS" means any patents and patent applications, including, without
limitation, the inventions and improvements described and claimed
therein, all patentable inventions, and the reissues, divisions,
continuations, renewals, extensions and continuations-in-part of any of
the foregoing, all of the goodwill of the business connected with the
use of, and symbolized by all of the foregoing, and all income,
royalties, damages and payments now or hereafter due and/or payable
under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to xxx for past,
present and future infringements of any of the foregoing.
"PPSA" shall mean the Personal Property Security Act (Alberta) as in
effect from time to time.
"PROCEEDS" means proceeds, as such term is defined in the PPSA and, in
any event, includes, without limitation, (a) any and all proceeds of
any insurance, indemnity, warranty or guaranty payable with respect to
any of the Collateral, (b) any and all payments (in any form
whatsoever) made or due and payable from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture
of all or any part of the Collateral by any governmental body,
authority, bureau or agency (or any Person acting under color of
governmental authority), and (c) any and all other amounts from time to
time paid or payable under, in respect of or in connection with any of
the Collateral.
"RECORD" shall mean a record relating to an Intangible or Account.
"REPRESENTATIVE" means any Person acting as agent, representative or
trustee on behalf of Secured Party from time to time.
"SOFTWARE" means all software as such term is understood in the
ordinary course, now owned or hereafter acquired by a Debtor, other
than software embedded in any category of Goods, including, without
limitation, all computer programs and all supporting information
provided in connection with a transaction related to any program.
"TRADEMARKS" means any trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos, other business identifiers, prints and labels on
which any of the foregoing have appeared or appear, all registrations
and recordings thereof, and all applications in connection therewith,
including, without limitation, the trademarks and applications listed
in Schedule III attached hereto and renewals thereof, all of the
goodwill of the business connected with the use of, and symbolized by
each of the foregoing, and all income, royalties, damages and payments
now or hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for
past, present and future infringements of any of the foregoing and the
right to xxx for past, present and future infringements of any of the
foregoing.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code of any
applicable state where registration is required to perfect a security
interest in the Collateral.
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SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTORS.
After giving effect to the transactions contemplated under the Purchase
Documents, Debtor represents and warrants to, and covenants with, Secured Party,
for the benefit of Secured Party and the Purchasers, as follows:
(a) Debtor has full rights to transfer the Collateral in which it
purports to grant a security interest pursuant to Section 3
hereof (subject, with respect to after-acquired Collateral, to
Debtor acquiring an interest in same) and grant to Secured
Party, for the benefit of Secured Party and the Purchasers, a
perfected, first priority (other than with respect to property
or assets covered by Permitted Liens) security interest and
Lien in the Collateral pursuant to this Agreement. Upon the
execution and delivery of this Agreement, and upon the filing
of the necessary Uniform Commercial Code, and Personal
Property Security Act financing statements in the
jurisdictions listed on Schedule I attached hereto, and/or
appropriate filings and/or delivery of the necessary
Instruments and certificates (duly endorsed by Debtor and
accompanied by appropriate instruments of transfer duly
executed by Debtor) evidencing an equity interest, control
and/or possession, as applicable, without any further action,
Secured Party, for the benefit of Secured Party and the
Purchasers, will have a good, valid, first priority (other
than with respect to property or assets covered by Permitted
Liens) and perfected Lien and security interest in the
Collateral, subject to no transfer or other restrictions or
Liens of any kind in favor of any other Person except for
Permitted Liens. No financing statement relating to any of the
Collateral is on file in any public office except those (i) on
behalf of Secured Party, for the benefit of Secured Party and
the Purchasers, (ii) in connection with Permitted Liens,
and/or (iii) in favour of Royal Bank of Canada which
registrations have or will be discharged as a result of the
payout of such secured party by Senior Lender with part of the
proceeds of the initial advance made pursuant to the Senior
Credit Agreement and related documents. Debtor represents and
warrants to Secured Party that it is not party to any
agreement, document or instrument that conflicts with this
Section 2.
(b) all of the Equipment, Inventory and Goods owned by Debtor is
located at the places as specified on Schedule I attached
hereto. Except as disclosed on Schedule I, none of the
Collateral is in the possession of any bailee, warehousemen,
processor or consignee. Schedule I discloses Debtor's name as
of the date hereof as it appears in official filings in the
state of its incorporation, formation or organization, as
applicable, the type of entity of Debtor (including
corporation, partnership, limited partnership or limited
liability company), organizational identification number
issued by Debtor's province of incorporation, formation or
organization, as applicable (or a statement that no such
number has been issued), all applicable identification numbers
required for corporate identification, as applicable, state of
incorporation, formation or organization, as applicable, and
the chief place of business, chief executive office and the
office where Debtor keeps its books and records. Debtor has
only one jurisdiction of incorporation, formation or
organization, as applicable. Debtor (including any Person
acquired by Debtor) does not do business and has not done
business during the past five (5) years under any trade name
or fictitious business name except as disclosed on Schedule II
attached hereto;
(c) no Copyrights, Patents or Trademarks have been adjudged
invalid or unenforceable or have been canceled, in whole or in
part, or are not presently subsisting. Each of such
Copyrights, Patents and Trademarks is valid and enforceable.
Debtor is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of such
Copyrights, Patents and Trademarks, free and clear of any
Liens, charges and
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encumbrances, including without limitation licenses, shop
rights and covenants by Debtor not to xxx third persons.
Debtor has adopted, used and is currently using, or has a
current bona fide intention to use, all of such Trademarks and
Copyrights. Debtor has no notice of any suits or actions
commenced or threatened with reference to the Copyrights,
Patents or Trademarks;
(d) Debtor agrees to deliver to Secured Party an updated Schedule
I within five (5) days of any change thereto; provided, that
delivery or receipt of such subsequent disclosure shall not
relieve or otherwise constitute a waiver by Secured Party or
any Purchaser or a cure of any Default or Event of Default
resulting in connection with the matters disclosed or a breach
of the underlying covenant, representation or warranty
(regardless of such disclosure); and
(e) all deposit accounts and other accounts maintained by Debtor
are described on Schedule I hereto, which description includes
for each such account the name, address and telephone and
facsimile numbers of the financial institution at which such
account is maintained, the account number and the account
officer, if any, of such account. Debtor shall not open any
new accounts unless Debtor shall have given Secured Party ten
(10) Business Days' prior written notice of its intention to
open any such new accounts. Debtor shall deliver to Secured
Party a revised version of Schedule I showing any changes
thereto within five (5) Business Days of any such change.
Debtor hereby authorizes the financial institutions at which
Debtor maintains an account to provide Secured Party with such
information with respect to such account as Secured Party from
time to time reasonably may request, and Debtor hereby
consents to such information being provided to Secured Party.
SECTION 3. COLLATERAL. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Liabilities, Debtor hereby pledges and grants to Secured
Party, for the benefit of Secured Party and the Purchasers, a Lien on and
security interest in and to all of Debtor's right, title and interest in all
personal property, whether now owned by Debtor or in which Debtor hereafter
acquires an interest and whether now existing or hereafter coming into existence
and wherever located (all being collectively referred to herein as
"COLLATERAL"), including, without limitation, all of:
(a) the Instruments of Debtor, together with all payments thereon
or thereunder;
(b) all Accounts;
(c) all Inventory;
(d) all Intangibles;
(e) all Equipment;
(f) all Documents;
(g) all Contracts;
(h) all Goods;
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(j) all deposit accounts, including, without limitation, the
balance from time to time in all bank accounts maintained by
Debtor; and
(k) all other tangible and intangible property of Debtor,
including, without limitation, all Proceeds, tort claims,
products, accessions, rents, profits, income, benefits,
substitutions, additions and replacements of and to any of the
property of Debtor described in the preceding clauses of this
Section 3 (including, without limitation, any proceeds of
insurance thereon, insurance claims and all rights, claims and
benefits against any Person relating thereto), other rights to
payments not otherwise included in the foregoing and all
books, correspondence, files, Records, invoices and other
papers, including without limitation all tapes, cards,
computer runs, computer programs, computer files and other
papers, documents and Records in the possession or under the
control of Debtor or any computer bureau or service company
from time to time acting for Debtor.
SECTION 4. EXCEPTION TO LAST DAY. The security interest granted
hereby shall not extend or apply to, and Collateral shall not include, the last
day of the term of any lease or agreement therefore, but upon the enforcement of
the security interest, Debtor shall stand possessed of such last day in trust to
assign the same to any person acquiring such term.
SECTION 5. EXCEPTION RESPECTING TRADE-MARKS. Notwithstanding
Section 3, Debtor's grant of security in trademarks (as defined in the
Trademarks Act (Canada)) under this Agreement shall be limited to a grant by
Debtor of a security interest in all of Debtor's right, title and interest in
such trademarks.
SECTION 6. COVENANTS; EVENTS OF DEFAULT, REMEDIES. In
furtherance of the grant of the pledge and security interest pursuant to Section
3 hereof, Debtor hereby agrees with Secured Party, for the benefit of Secured
Party and the Purchasers, as follows:
6.1 COVENANTS
(a) Affirmative Covenants. Each of the affirmative covenants
applicable to the Debtor as set out in Article 7.1 of the
Purchase Agreement is hereby specifically adopted and
incorporated by reference herein.
(b) Delivery of Instruments, Documents, Etc. Debtor shall (subject
to the rights of the Senior Lenders) deliver and pledge to
Secured Party or its Representative any and all Instruments,
negotiable Documents, Chattel Paper and Securities
(accompanied by stock powers or assignments separate from
certificate, as applicable, executed in blank) duly indorsed
and/or accompanied by such instruments of assignment and
transfer executed by Debtor in such form and substance as
Secured Party or its Representative may request; provided,
that so long as no Event of Default shall have occurred and be
continuing, Debtor may retain for collection in the ordinary
course of business any Instruments, negotiable Documents and
Chattel Paper received by Debtor in the ordinary course of
business, and Secured Party or its Representative shall,
promptly upon request of a Debtor, make appropriate
arrangements for making any other Instruments, negotiable
Documents and Chattel Paper pledged by Debtor available to
Debtor for purposes of presentation, collection or renewal
(any such arrangement to be effected, to the extent deemed
appropriate by Secured Party or its Representative, against
trust receipt or like document). If a Debtor retains
possession of any Chattel Paper, negotiable Documents or
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Instruments pursuant to the terms hereof, such Chattel Paper,
negotiable Documents and Instruments shall be marked with the
following legend:
"THIS WRITING AND THE OBLIGATIONS EVIDENCED OR SECURED HEREBY ARE
SUBJECT TO THE SECURITY INTEREST OF AMERICAN CAPITAL FINANCIAL SERVICES, INC.,
AS AGENT FOR CERTAIN PURCHASERS."
(c) Other Documents and Actions. Debtor shall give, execute,
deliver, file and/or record any financing statement, notice,
instrument, document, agreement or other papers that may be
necessary or desirable (in the Permitted Discretion of Secured
Party or its Representative) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to
enable Secured Party or its Representative to exercise and
enforce the rights of Secured Party hereunder with respect to
such pledge and security interest, provided, that notices to
Account Debtor in respect of any Accounts or Instruments shall
be subject to the provisions of clause (e) below.
Notwithstanding the foregoing, Debtor hereby irrevocably
authorizes Secured Party at any time and from time to time to
file in any filing office in any Uniform Commercial Code
and/or Personal Property Security Act jurisdiction any initial
financing statements and amendments thereto that (a) indicate
the Collateral (i) as all assets of Debtor or words of similar
effect, regardless of whether any particular asset comprised
in the Collateral falls within the scope of the Uniform
Commercial Code or Personal Property Security Act, as
applicable, or (ii) as being of an equal or lesser scope or
with greater detail, and (b) contain any other information
required by the Uniform Commercial Code or Personal Property
Security Act, as applicable, for the sufficiency or filing
office acceptance of any financing statement or amendment,
including (i) whether Debtor is an organization, the type of
organization and any organization identification number issued
to Debtor, and (ii) in the case of a financing statement filed
as a fixture filing or indicating Collateral as as-extracted
collateral or timber to be cut, a sufficient description of
real property to which the Collateral relates. Debtor agrees
to furnish any such information to Secured Party promptly upon
request. Debtor also ratifies its authorization for Secured
Party to have filed in any Uniform Commercial Code or Personal
Property Security Act jurisdiction any like initial financing
statements or amendments thereto if filed prior to the date
hereof.
(d) Motor Vehicles. Debtor shall, promptly upon the request of
Secured Party or its Representative, and where required to
create or record a security interest, cause Secured Party to
be listed as the lienholder on each certificate of title or
ownership covering any items of Equipment, including Motor
Vehicles.
(e) Notice to Account Debtor; Verification. (i) Upon the
occurrence and during the continuance of any Event of Default
(or if any rights of set-off (other than set-offs against an
Account arising under the Contract giving rise to the same
Account) or contra accounts may be asserted), upon request of
Secured Party or its Representative, Debtor shall promptly
notify (and Debtor hereby authorizes Secured Party and its
Representative to so notify) each Account Debtor in respect of
any Accounts or Instruments or other Persons obligated on the
Collateral that such Collateral has been assigned to Secured
Party hereunder, and that any payments due or to become due in
respect of such Collateral are to be made directly to Secured
Party and (ii) Secured Party and its Representative shall have
the right at any time or times to make direct verification
with the Account Debtor or other Persons obligated on the
Collateral of any and all of the Accounts or other such
Collateral.
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(f) Compliance with Purchase Documents. Debtor shall comply with
the provisions of the Purchase Documents applicable thereto,
including, without limitation, maintenance of insurance,
restrictions on dispositions, and providing Secured Party and
its Representatives with the right to inspections with respect
to the Collateral.
(g) Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, Debtor shall:
(i) file such financing statements, assignments for
security and other documents in such offices as may
be necessary or as Secured Party or its
Representative may request to perfect the security
interests granted by Section 3 of this Agreement;
(ii) at Secured Party's request, deliver to Secured Party
or its Representative the originals of all
Instruments which are capable of perfection of
security interest by possession together with, in the
case of Instruments constituting promissory notes,
allonges attached thereto showing such promissory
notes to be payable to the order of a blank payee;
(iii) as to Motor Vehicles which are owned or registered in
a jurisdiction which is a title jurisdiction at
Secured Party's request, deliver to Secured Party or
its Representative the originals of all Motor Vehicle
titles, if any, duly indorsed indicating Secured
Party's interest therein as lienholder;
(iv) at Secured Party's request, deliver to Secured Party
or its Representative instruments representing or
evidencing all Investment Property, in suitable form
for transfer by delivery or accompanied by applicable
endorsements, where necessary, or duly executed
instruments of transfer or assignment in blank, all
in form and substance satisfactory to Secured Party;
(v) take any other action or do any other thing
reasonably required by Secured Party or its
Representative so that Secured Party shall have a
first priority perfected security interest in the
Collateral, subject only to Permitted Liens; and
(vi) deliver the original of shares certificates which are
the subject matter of the security and pledge granted
in favour of the Secured Party.
(h) Negative Covenants. Each of the negative covenants applicable
to the Debtor as set out in Article 7.2 of the Purchase
Agreement is hereby specifically adopted and incorporated by
reference herein.
(i) Other Liens. Debtor will not create, permit or suffer to
exist, and will defend the Collateral against and take such
other action as is necessary to remove, any Lien on the
Collateral except Permitted Liens, and will defend the right,
title and interest of Secured Party in and to the Collateral
and in and to all Proceeds thereof against the claims and
demands of all Persons whatsoever.
6.2 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs and
expenses of such realization and the payment in full of the Liabilities, Debtor
shall remain liable for any deficiency.
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6.3 PRIVATE SALE. Debtor recognizes that Secured Party may not be
able to effect a public sale of the Collateral, by reasons of law, or by reason
of the determination, in the discretion, of the Secured Party, and may resort to
one or more private sales thereof to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire such Collateral for their
own account for investment and not with a view to the distribution or resale
thereof. Debtor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. Secured Party shall be under no obligation to delay a sale of any of the
Collateral to permit a Debtor to register such Collateral for public sale under
the Securities Act (Alberta) or under any other applicable provincial or state
securities laws (collectively, the "Act"), even if Debtor would agree to do so.
Secured Party shall not incur any liability as a result of the sale of any such
Collateral, or any part thereof, at any private sale provided for in this
Agreement conducted in a commercially reasonable manner, and Debtor hereby
waives any claims against Secured Party arising by reason of the fact that the
price at which the Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale or was less than
the aggregate amount of the Liabilities, even if Secured Party accepts the first
offer received and does not offer the Collateral to more than one offeree.
Debtor further agrees to do or cause to be done all such other acts and things
as may be necessary to make such sale or sales of any portion or all of any such
Collateral valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at Debtor's expense,
provided, that Debtor shall be under no obligation to take any action to enable
any or all of such Collateral to be registered under the provisions of the Act.
Debtor further agrees that a breach of any of the covenants contained in this
Section 6.3 will cause irreparable injury to Secured Party, that Secured Party
has no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section 6.3 shall be
specifically enforceable against Debtor, and Debtor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing.
6.4 ATTORNEY-IN-FACT. Debtor hereby irrevocably constitutes and
appoints Secured Party, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of Debtor and in the name of Debtor or in its own name, from time to time
in the Permitted Discretion of Secured Party, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to accomplish the purposes of this Agreement and, without limiting
the generality of the foregoing, hereby gives Secured Party the power and right,
on behalf of Debtor, without notice to or assent by Debtor, to do the following
upon the occurrence and during the continuance of any Event of Default:
(a) to ask, demand, collect, receive and give acquittance and
receipts for any and all moneys due and to become due under
any Collateral and, in the name of Debtor or its own name or
otherwise, to take possession of and indorse and collect any
checks, drafts, notes, acceptances or other Instruments for
the payment of moneys due under any Collateral and to file any
claim or to take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by Secured
Party for the purpose of collecting any and all such moneys
due under any Collateral whenever payable and to file any
claim or to take any other action or proceeding in any court
of law or equity or otherwise deemed
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appropriate by Secured Party for the purpose of collecting any
and all such moneys due under any Collateral whenever payable;
(b) to pay or discharge charges or Liens levied or placed on or
threatened against the Collateral (other than the Permitted
Liens), to effect any insurance called for by the terms of
this Agreement and to pay all or any part of the premiums
therefor;
(c) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due, and to
become due thereunder, directly to Secured Party or as Secured
Party shall direct, and to receive payment of and receipt for
any and all moneys, claims and other amounts due, and to
become due at any time, in respect of or arising out of any
Collateral;
(d) to sign and indorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection
with Accounts and other Documents constituting or relating to
the Collateral;
(e) to commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to
collect the Collateral or any part thereof and to enforce any
other right in respect of any Collateral;
(f) to defend any suit, action or proceeding brought against a
Debtor with respect to any Collateral;
(g) to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such
discharges or releases as Secured Party may deem appropriate;
(h) to the extent that a Debtor's authorization given in Section
6.1(c) of this Agreement is not sufficient, to file such
financing statements with respect to this Agreement, or to
file a photocopy of this Agreement in substitution for a
financing statement, as Secured Party may deem appropriate,
and to execute in Debtor's name such financing statements and
amendments thereto and continuation statements which may
require Debtor's signature; and
(i) generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as
fully and completely as though Secured Party were the absolute
owner thereof for all purposes, and to do, at Secured Party's
option and at Debtor's expense, at any time, or from time to
time, all acts and things which Secured Party reasonably deems
necessary to protect, preserve or realize upon the Collateral
and Secured Party's Lien therein, in order to effect the
intent of this Agreement, all as fully and effectively as
Debtor might do.
Debtor hereby ratifies, to the extent permitted by law, all that such attorneys
lawfully do or cause to be done by virtue hereof. The power of attorney granted
hereunder is a power coupled with an interest and shall be irrevocable until the
Liabilities are indefeasibly paid in full in cash and the Purchase Agreement is
terminated.
Debtor also authorizes Secured Party, at any time from and after the occurrence
and during the continuance of any Event of Default, (x) to communicate in its
own name with any party to any Contract
10
with regard to the assignment of the right, title and interest of Debtor in and
under the Contracts hereunder and other matters relating thereto and (y) to
execute, in connection with any sale of Collateral, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral.
6.5 EVENTS OF DEFAULT. The occurrence of any one or more of the
Events of Default provided for in Article 8.1 of the Purchase Agreement shall
constitute an Event of Default under this Agreement.
6.6 REMEDIES AFTER DEFAULT.
(a) Upon the occurrence and continuance of an Event of Default,
the Secured Party and its Representatives shall have the right
to exercise any and all rights available to them at law, in
equity or pursuant to the Purchase Agreement as set out in
Article 8.2 of the Purchase Agreement.
(b) Upon the occurrence and continuance of an Event of Default, in
addition to the rights made available to the Secured Party
pursuant to Section 6.6(a) of this Agreement, the Secured
Party may also appoint, remove and reappoint any person or
persons, including an employee of the Secured Party to be a
receiver (the "RECEIVER") which term shall include a receiver
and manager of, or agent for, all or any part of the
Collateral. Any such Receiver shall, as far as concerns
responsibility for his acts, be deemed to be the agent of
Debtor and not of Secured Party, and Secured Party shall not
in any way be responsible for any misconduct, negligence or
nonfeasance of such Receiver, his employees or agents, other
than its gross negligence or willful misconduct. Except as
otherwise directed by Secured Party, all money received by
such Receiver shall be received in trust for and paid to
Secured Party. Such Receiver shall have all of the powers and
rights of Secured Party described in this Agreement and in the
Purchase Agreement. Secured Party may, either directly or
through its agents or nominees, exercise any or all powers and
rights of a Receiver, and, specifically, to facilitate the
realization of the Collateral the Secured Party may carry on
or concur in the carrying on of all or any part of the
business of the Debtor and may to the exclusion of all others,
including the Debtor, enter upon, occupy and use all or any of
the premises, buildings, plant and undertaking of or occupied
or used by the Debtor and use all or any of the tools,
machinery and equipment of the Debtor for such time as the
Secured Party sees fit, free of charge, to manufacture or
complete the manufacture of any inventory and to pack and ship
the finished product, and the Secured Party shall not be
liable to the Debtor for any neglect in so doing or in respect
of any rent, charges, depreciation or damages in connection
with such actions. Debtor shall pay all costs, charges and
expenses incurred by Secured Party or any Receiver, whether
directly or for services rendered (including, without
limitation, solicitor's costs on a solicitor and his own
client basis, auditor's costs, other legal expenses and
Receiver remuneration) in enforcing this Agreement and in
enforcing or collecting Obligations and all such expenses
together with any money owing as a result of any borrowing
permitted hereby shall be a charge on the proceeds of
realization and shall be secured hereby.
SECTION 7. TERMINATION. This Agreement and the Liens and
security interests granted hereunder shall not terminate until the termination
of the Purchase Agreement and the full and complete performance and indefeasible
satisfaction of all the Liabilities (other than contingent indemnification
11
Obligations to the extent no claim giving rise thereto has been asserted),
whereupon Secured Party shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral to or on the order of Debtor.
SECTION 8. FURTHER ASSURANCES.
(a) At any time and from time to time, upon the written request of
Secured Party or its Representative, and at the sole expense
of Debtor, Debtor will promptly and duly execute and deliver
any and all such further instruments, documents and agreements
and take such further actions as Secured Party or its
Representative may reasonably require in order for Secured
Party to obtain the full benefits of this Agreement and of the
rights and powers herein granted in favor of Secured Party,
including, without limitation, using Debtor's best efforts to
secure all consents and approvals necessary or appropriate for
the assignment to Secured Party of any Collateral held by
Debtor or in which a Debtor has any rights not heretofore
assigned, the filing of any financing or continuation
statements under the Uniform Commercial Code and the PPSA with
respect to the Liens and security interests granted hereby,
transferring Collateral to Secured Party's possession (if a
security interest in such Collateral can be perfected by
possession), placing the interest of Secured Party as
lienholder on the certificate of title of any Motor Vehicle
and obtaining waivers of Liens from landlords and mortgagees.
Debtor also hereby authorizes Secured Party and its
Representative to file any such financing or continuation
statement without the signature of Debtor to the extent
permitted by applicable law.
(b) Upon the request of Secured Party, Debtor shall procure
insurers' acknowledgments of any assignments of key man life
insurance policies (if any) which may be assigned to Secured
Party as additional security for the Liabilities and will take
all such further action as required by any insurer or Secured
Party in connection with any such assignment.
SECTION 9. LIMITATION ON DUTY OF SECURED PARTY. The powers
conferred on Secured Party under this Agreement are solely to protect Secured
Party's interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Secured Party shall be accountable only for amounts
that it actually receives as a result of the exercise of such powers and neither
Secured Party nor its Representative nor any of their respective officers,
directors, employees or agents shall be responsible to Debtor for any act or
failure to act, except for willful misconduct. Without limiting the foregoing,
Secured Party and any Representative shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in their
possession if such Collateral is accorded treatment substantially equivalent to
that which the relevant Secured Party or any Representative, in its individual
capacity, accords its own property consisting of the type of Collateral
involved, it being understood and agreed that neither Secured Party nor any
Representative shall have any responsibility for taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above)
to preserve rights against any Person with respect to any Collateral.
Also without limiting the generality of the foregoing, neither Secured Party nor
any Representative shall have any obligation or liability under any Contract or
license by reason of or arising out of this Agreement or the granting to Secured
Party of a security interest therein or assignment thereof or the receipt by
Secured Party or any Representative of any payment relating to any Contract or
license pursuant hereto, nor shall Secured Party or any Representative be
required or obligated in any manner to perform or fulfill any of the obligations
of Debtor under or pursuant to any Contract or license, or to make any payment,
or to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any
Contract or license, or to present or file any
12
claim, or to take any action to collect or enforce any performance or the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
SECTION 10. MISCELLANEOUS.
10.1 NO WAIVER. No failure on the part of Secured Party or any of
its Representatives to exercise, and no course of dealing with
respect to, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by Secured Party or any of its
Representatives of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The rights and remedies
hereunder provided are cumulative and may be exercised singly
or concurrently, and are not exclusive of any rights and
remedies provided by law.
10.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York without giving effect to its choice of law
provisions. Debtor hereby agrees in favour of the Secured
Party that the Secured Party may, in its Permitted Discretion,
and to the extent the Secured Party determines such is
required or desirable in furtherance of its rights and
remedies hereunder, declare that any portion or all of the
terms of this Agreement and the rights and remedies of the
Secured Party are subject to and governed by the laws of the
Province of Alberta and the Debtor hereby attorn to the
jurisdiction of the courts of Alberta to the extent the
Secured Creditor takes any step or action in such court for
the enforcement of its rights and remedies hereunder.
10.3 NOTICES. All notices, approvals, requests, demands and other
communications hereunder shall be given in accordance with the
notice provisions of the Purchase Agreement.
10.4 AMENDMENTS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly
executed by Debtor and Secured Party. Any such amendment or
waiver shall be binding upon Secured Party and Debtor and
their respective successors and assigns.
10.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and
assigns of each of the parties hereto, provided, that no
Debtor shall assign or transfer its rights hereunder without
the prior written consent of Secured Party.
10.6 COUNTERPARTS; HEADINGS. This Agreement may be authenticated in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may authenticate this Agreement by signing any such
counterpart. This Agreement may be authenticated by manual
signature, facsimile or, if approved in writing by Secured
Party, electronic means, all of which shall be equally valid.
The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the
meaning hereof.
10.7 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (a) the other provisions hereof shall remain
in full force and effect in such jurisdiction and shall be
liberally construed in favor of Secured Party and its
Representative in order to carry out the intentions of the
parties
13
hereto as nearly as may be possible and (b) the invalidity or
unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such
provision in any other jurisdiction.
10.8 OTHER PURCHASE DOCUMENTS. This Agreement supplements the other
Purchase Documents and nothing in this Agreement shall be
deemed to limit or supersede the rights granted to Secured
Party or the Purchasers or their agent in any other Loan
Document. In the event of any conflict between this Agreement
and the Purchase Agreement, the provisions of the Purchase
Agreement shall govern.
10.9 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS; WAIVER OF
VENUE. ANY JUDICIAL PROCEEDING AGAINST DEBTOR WITH RESPECT TO
THE LIABILITIES OR THIS AGREEMENT MAY BE BROUGHT IN ANY
FEDERAL OR STATE COURT OF COMPETENT JURISDICTION LOCATED IN
THE STATE OF NEW YORK. BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, DEBTOR (I) ACCEPTS THE NON-EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY, (II) WAIVES PERSONAL SERVICE OF
PROCESS, (III) AGREES THAT SERVICE OF PROCESS UPON IT MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PURSUANT TO ARTICLE 13.6 OF THE PURCHASE AGREEMENT,
AND (IV) WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND AGREES NOT TO ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION, VENUE, CONVENIENCE OR
FORUM NON CONVENIENS. NOTHING SHALL AFFECT THE RIGHT OF
SECURED PARTY OR ANY PURCHASER OR ANY OF THEIR REPRESENTATIVES
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF SECURED PARTY OR ANY PURCHASER OR ANY OF THEIR
REPRESENTATIVES TO BRING PROCEEDINGS AGAINST DEBTOR IN THE
COURTS OF ANY OTHER JURISDICTION HAVING JURISDICTION. ANY
JUDICIAL PROCEEDINGS AGAINST SECURED PARTY OR ANY PURCHASER OR
ANY OF THEIR REPRESENTATIVES INVOLVING, DIRECTLY OR
INDIRECTLY, THE LIABILITIES OR THIS AGREEMENT SHALL BE BROUGHT
ONLY IN A FEDERAL OR STATE COURT LOCATED IN THE STATE OF NEW
YORK. ALL PARTIES ACKNOWLEDGE THAT THEY PARTICIPATED IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT WITH THE ASSISTANCE
OF COUNSEL AND THAT, ACCORDINGLY, NO PARTY SHALL MOVE OR
PETITION A COURT CONSTRUING THIS AGREEMENT TO CONSTRUE IT MORE
STRINGENTLY AGAINST ONE PARTY THAN AGAINST ANY OTHER.
10.10 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN
ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES WITH RESPECT TO THIS AGREEMENT, WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO
14
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION 10.10 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENTS OF THE PARTIES TO THE WAIVER OF THEIR RESPECTIVE
RIGHTS TO TRIAL BY JURY.
[Remainder of page intentionally left blank, signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
DEBTORS:
COMMONWEALTH XXXXXX HOLDINGS LTD. an
Alberta corporation
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: V.P.
Attention: Xxxxx Xxxxxx
Telephone: 780 447.4565
FAX: 780 451.0544
E-MAIL: xxxxx.xxxxxx@xxxxxxx.xx
CORRPRO CANADA, INC. an Alberta corporation
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: V.P.
Attention: Xxxxx Xxxxxx
Telephone: 780 447.4565
FAX: 780 451.0544
E-MAIL: xxxxx.xxxxxx@xxxxxxx.xx
XXXXX INSPECTIONS LTD. an Alberta corporation
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Name: Xxxxxx X. Xxx
Title: Authorized Officer
Attention: Xxxxx Xxxxxx
Telephone: 780 447.4565
FAX: 780 451.0544
E-MAIL: xxxxx.xxxxxx@xxxxxxx.xx
SECURED PARTY:
AMERICAN CAPITAL FINANCIAL SERVICES, INC., a
Delaware corporation, as Agent
By: /s/ J XxxXxxxxx
-----------------------------------
Name: Xxxxxxx X. XxxXxxxxx
Title: Vice President
American Capital Financial Services, Inc.
0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Compliance Officer
Telecopier: (000) 000-0000
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