Exhibit 10.8
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 CORRPRO COMPANIES, INC., an Ohio corporation ("Corrpro"), CCFC, Inc.
("CCFC"), OCEAN CITY RESEARCH CORP. ("OCRC"), and CORRPRO INTERNATIONAL, INC.,
f/k/a Corrpro Companies Latin America, Inc., a Delaware corporation ("CCII" and
together with Corrpro, CCFC and, OCRC, individually and collectively, the
"Grantor") and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware
corporation, in its capacity as administrative agent for the purchasers referred
to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Grantor has entered into a Note and Equity Purchase Agreement
dated as of a date even herewith (as further amended or otherwise modified from
time to time, the "Note and Equity Purchase Agreement") with the direct and
indirect subsidiaries of CCII, various purchasers named therein and the Agent,
pursuant to which such purchasers have agreed to purchase the Notes; and
WHEREAS, it is a condition precedent to Purchasers buying the Notes
that Grantor enter into a security agreement to secure the obligations of
Grantor under the Note and Equity Purchase Agreement and other Purchase
Documents;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to Grantor under or in
connection with the Note and Equity Purchase Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, (a) the terms Account, Account
Debtor, Certificated Security, Chattel Paper, Commercial Tort Claim, Deposit
Account, Document, Electronic Chattel Paper, Equipment, Financial Asset,
Fixtures, Goods, Health-Care-Insurance Receivable, Inventory, Instrument,
Investment Property, Letter-of-Credit Rights, Payment Intangibles, Proceeds,
Security, Security Entitlement, Software, Supporting Obligations and
Uncertificated Security have the respective meanings assigned thereto in the UCC
(as defined below); (b) capitalized terms which are not otherwise defined have
the respective meanings assigned thereto in the Note and Equity Purchase
Agreement; and (c) the following terms have the following meanings (such
definitions to be applicable to both the singular and plural forms of such
terms):
Assignee Deposit Account - see Section 4.
Collateral means, with respect to Grantor, all property and rights of
Grantor in which a security interest is granted hereunder.
Computer Hardware and Software means, with respect to Grantor, all of
Grantor's rights (including rights as licensee and lessee) with respect to (i)
computer and other electronic data processing hardware, including all integrated
computer systems, central processing units, memory units, display terminals,
printers, computer elements, card readers, tape drives, hard and soft disk
drives, cables, electrical supply hardware, generators, power equalizers,
accessories, peripheral devices and other related computer hardware; (ii) all
software programs designed for use on the computers and electronic data
processing hardware described in clause (i) above, including all operating
system software, utilities and application programs in whatsoever form (source
code and object code in magnetic tape, disk or hard copy format or any other
listings whatsoever); (iii) any firmware associated with any of the foregoing;
and (iv) any documentation for hardware, software and firmware described in
clauses (i), (ii) and (iii) above, including flow charts, logic diagrams,
manuals, specifications, training materials, charts and pseudo codes.
Derivative Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option bond, note or xxxx option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.
General Intangibles means, with respect to Grantor, all of Grantor's
"general intangibles" as defined in the UCC and, in any event, includes (without
limitation) all of Grantor's trademarks, trade names, patents, copyrights, trade
secrets, customer lists, inventions, designs, software, software programs, mask
works, goodwill, registrations, licenses, franchises, tax refund claims,
guarantee claims, Payment Intangibles, security interests and rights to
indemnification.
Intellectual Property means all present and future: trade secrets and
other proprietary information; trademarks, service marks, business names,
Internet domain names, designs, logos, trade dress, slogans, indicia and other
source and/or business identifiers, and the goodwill of the business relating
thereto and all registrations or applications for registrations which have
heretofore been or may hereafter be issued thereon throughout the world;
copyrights (including copyrights for computer programs and software) and
copyright registrations or applications for registrations which have heretofore
been or may hereafter be issued throughout the world and all tangible property
embodying the copyrights; unpatented inventions (whether or not patentable);
patent applications and patents; industrial designs, industrial design
applications and registered industrial designs; license agreements related to
any of the foregoing and income therefrom; books, records, writings, computer
tapes or disks, flow diagrams, specification sheets, source codes, object codes
and other physical manifestations, embodiments or incorporations of any of the
foregoing; the right to xxx for all past, present and future infringements of
any of the foregoing; and all common law and other rights throughout the world
in and to all of the foregoing.
Liabilities means, as to Grantor, all obligations (monetary or
otherwise) of Grantor under the Note and Equity Purchase Agreement, any Note,
any other Purchase Document or any other document or
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instrument executed in connection therewith, in each case howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due.
Non-Tangible Collateral means, with respect to Grantor, collectively,
Grantor's Accounts and General Intangibles.
Organizational I.D. Number means, with respect to Grantor, the
organizational identification number assigned to Grantor by the applicable
governmental unit or agency of the jurisdiction of organization for Grantor.
Purchasers means each Purchaser under and as defined in the Note and
Equity Purchase Agreement.
Type of Organization means, with respect to Grantor, the kind or type
of entity of Grantor, such as a corporation or limited liability company.
UCC means the Uniform Commercial Code as in effect in the State of New
York the date of this Agreement, as may be amended or modified from time to
time; provided that, as used in Section 8 hereof, "UCC" shall mean the Uniform
Commercial Code as in effect from time to time in any applicable jurisdiction.
2. Grant of Security Interest. As security for the payment of all
Liabilities, each Grantor hereby assigns to the Agent for the benefit of the
Purchasers, and grants to the Agent for the benefit of the Purchasers a
continuing security interest in all of the property of Grantor whether now or
hereafter existing or acquired, regardless of where located including, without
limitation:
All of Grantor's:
(a) Accounts, including Health-Care-Insurance Receivables;
(b) Certificated Securities;
(c) Chattel Paper, including Electronic Chattel Paper;
(d) Computer Hardware and Software and all rights with respect
thereto, including, any and all licenses, options, warranties,
service contracts, program services, test rights, maintenance
rights, support rights, improvement rights, renewal rights and
indemnifications, and any substitutions, replacements,
additions or model conversions of any of the foregoing;
(e) Commercial Tort Claims;
(f) Deposit Accounts;
(g) Documents;
(h) Financial Assets;
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(i) General Intangibles;
(j) Goods (including all of its Equipment, Fixtures and
Inventory), and all embedded software, accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor;
(k) Instruments;
(l) Intellectual Property;
(m) Investment Property;
(n) Letter-of-Credit Rights
(o) money (of every jurisdiction whatsoever);
(p) Security Entitlements;
(q) Supporting Obligations;
(r) Uncertificated Securities; and
(s) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and all Proceeds,
products, offspring, rents, issues, profits and returns of and from any of the
foregoing; provided that to the extent that the provisions of any lease or
license of Computer Hardware and Software or Intellectual Property expressly
prohibit (which prohibition is enforceable under applicable law) the assignment
thereof, and the grant of a security interest therein, the Agent will not
enforce its security interest (other than in respect of the Proceeds thereof)
for so long as such prohibition continues, it being understood that upon request
of the Agent, Grantor will in good faith use reasonable efforts to obtain
consent for the creation of a security interest in favor of the Agent (and to
Agent's enforcement of such security interest) in Grantor's rights under such
lease or license.
3. Warranties. Each Grantor warrants that: (a) no financing
statement (other than any which may have been filed on behalf of the Agent or in
connection with liens expressly permitted by the Note and Equity Purchase
Agreement ("Permitted Liens")) covering any of the Collateral is on file in any
public office; (b) Grantor is the lawful owner of all Collateral, free of all
liens, claims, security interests and encumbrances whatsoever, other than the
security interest hereunder and Permitted Liens, with full power and authority
to execute this Agreement and perform Grantor's obligations hereunder, and to
subject the Collateral to the security interest hereunder; (c) all information
with respect to Collateral and Account Debtors set forth in any schedule,
certificate or other writing at any time heretofore or hereafter furnished by
Grantor to the Agent or any Purchaser is and will be true and correct in all
material respects as of the date furnished; (d) Grantor's chief executive office
and principal place of business are as set forth on Schedule I hereto (and
Grantor has not maintained its chief executive office and principal place of
business at any other location at any time after five (5) years prior to the
date of this Agreement), and each other location where Grantor maintains a place
of business is also set forth on Schedule I hereto; (e) Grantor is a corporation
duly organized, validly existing and in good standing under the laws of the
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state set forth on Schedule II hereto and is a Type of Organization and its
Organizational I.D. Number are as set forth on Schedule II; (f) except as set
forth on Schedule III hereto, Grantor is not now known and during the five (5)
years preceding the date hereof has not previously been known by any trade name;
(g) Grantor's exact legal name is as set forth on the signature pages of this
Agreement, and except as set forth on Schedule III hereto, during the five (5)
years preceding the date hereof Grantor has not been known by any different
legal name nor has Grantor been the subject of any merger or other corporate
reorganization; (h) Schedule IV hereto contains a complete listing of all of
Grantor's Intellectual Property which is subject to registration statutes; (i)
the execution and delivery of this Agreement and the performance by Grantor of
its obligations hereunder are within Grantor's corporate powers, have been duly
authorized by all necessary corporate action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law or of the certificate of
incorporation or by-laws of Grantor or of any material agreement, indenture,
instrument or other document, or any material judgment, order or decree, which
is binding upon Grantor; (j) this Agreement is a legal, valid and binding
obligation of Grantor, enforceable in accordance with its terms, except that the
enforceability of this Agreement may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); (k) Grantor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which would reasonably be expected to result in a
Material Adverse Effect; (l) Schedule V hereto contains a complete listing of
all of Grantor's Instruments, Investment Property, Letter-of-Credit Rights,
Chattel Paper, Documents and Commercial Tort Claims; (m) except as set forth on
Schedule VI hereto, Grantor has no tangible Collateral located outside of the
United States; (n) Schedule VII hereto contains a complete listing of Grantor's
tangible Collateral located with any bailee, warehousemen or other third
parties; (o) Schedule VIII hereto contains a complete listing of all of
Grantor's Collateral which is subject to certificate of title statutes; and (p)
Schedule IX hereto contains a complete listing of all of Grantor's Deposit
Accounts and other bank accounts, including locations and applicable account
numbers.
4. Collections, etc. Until such time as the Agent shall notify
Grantor of the revocation of such power and authority, Grantor (a) may, in the
ordinary course of its business, at its own expense, sell, lease or furnish
under contracts of service any of the Inventory normally held by Grantor for
such purpose, use and consume, in the ordinary course of its business, any raw
materials, work in process or materials normally held by Grantor for such
purpose, and use, in the ordinary course of its business (but subject to the
terms of the Note and Equity Purchase Agreement), the cash proceeds of
Collateral and other money which constitutes Collateral, (b) will, at its own
expense, endeavor to collect, as and when due, all amounts due under any of the
Non-Tangible Collateral, including the taking of such action with respect to
such collection as the Agent may reasonably request or, in the absence of such
request, as Grantor may deem advisable, and (c) may grant, in the ordinary
course of business, to any party obligated on any of the Non-Tangible
Collateral, any rebate, refund or allowance to which such party may be lawfully
entitled, and may accept, in connection therewith, the return of Goods, the sale
or lease of which shall have given rise to such Non-Tangible Collateral. The
Agent, however, may, following the occurrence and during the continuance of an
Event of Default, whether before or after any revocation of such power and
authority or the maturity of any of the Liabilities, notify an Account Debtor or
other Person obligated on Collateral to make payment or otherwise render
performance to or for the benefit of the Agent and enforce, by suit or otherwise
the obligations of an Account Debtor or other Person obligated on Collateral and
exercise the rights of Grantor with respect to the obligation of the Account
Debtor or other Person obligated on Collateral to make payment or otherwise
render performance to Grantor, and with respect to any property that secures the
obligations of the Account Debtor or other Person obligated on the Collateral.
In connection with exercise of such rights and remedies, the Agent may
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any
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period (whether or not longer than the original period) any indebtedness
thereunder or evidenced thereby. Upon the request of the Agent, following the
occurrence and during the continuance of an Event of Default, Grantor will, at
its own expense, notify any or all parties obligated on any of the Non-Tangible
Collateral to make payment to the Agent of any amounts due or to become due
thereunder.
Upon request by the Agent, following the occurrence and during the
continuance of an Event of Default, Grantor will forthwith, upon receipt,
transmit and deliver to the Agent, in the form received, all cash, checks,
drafts and other instruments or writings for the payment of money (properly
endorsed, where required, so that such items may be collected by the Agent)
which may be received by Grantor at any time in full or partial payment or
otherwise as proceeds of any of the Collateral. Except as the Agent may
otherwise consent in writing, any such items which may be so received by Grantor
will not be commingled with any other of its funds or property, but will be held
separate and apart from its own funds or property and upon express trust for the
Agent until delivery is made to the Agent. Grantor will comply with the terms
and conditions of any consent given by the Agent pursuant to the foregoing
sentence.
Following the occurrence and during the continuance of an Event of
Default, all items or amounts which are delivered by Grantor to the Agent on
account of partial or full payment or otherwise as proceeds of any of the
Collateral shall be deposited to the credit of a deposit account (each an
"Assignee Deposit Account") of Grantor with a financial institution selected by
the Agent) over which the Agent has sole dominion and control, as security for
payment of the Liabilities. Grantor shall not have any right to withdraw any
funds deposited in the applicable Assignee Deposit Account. The Agent may, from
time to time, in its discretion, and shall upon request of Grantor from time to
time, apply all or any of the then balance, representing collected funds, in the
Assignee Deposit Account toward payment of the Liabilities, whether or not then
due, in such order of application as the Agent may determine, and the Agent may,
from time to time, in its discretion, release all or any of such balance to
Grantor.
The Agent (or any designee of the Agent) is authorized to endorse, in
the name of Grantor, any item, howsoever received by the Agent, representing any
payment on or other Proceeds of any of the Collateral.
5. Certificates, Schedules and Reports. Grantor will from time to
time, as the Agent may request, deliver to the Agent such schedules,
certificates and reports respecting all or any of the Collateral at the time
subject to the security interest hereunder, and the items or amounts received by
Grantor in full or partial payment of any of the Collateral, as the Agent may
reasonably request. Any such schedule, certificate or report shall be executed
by a duly authorized officer of Grantor and shall be in such form and detail as
the Agent may reasonably specify. Grantor shall immediately notify the Agent of
the occurrence of any event causing any loss or depreciation in the value of its
Inventory or other Goods which is material to Grantor and its Subsidiaries taken
as a whole, and such notice shall specify the amount of such loss or
depreciation.
6. Agreements of Grantor. Grantor (a) will, at the Agent's
request, at any time and from time to time, execute and deliver to the Agent
such financing statements, amendments and other documents and do such acts as
the Agent deems reasonably necessary in order to establish and maintain valid,
attached and perfected security interests in the Collateral in favor of the
Purchasers, free and clear of all Liens and claims and rights of third parties
whatsoever except Permitted Liens. Grantor hereby irrevocably authorizes the
Agent at any time, and from time to time, to file in any jurisdiction any
initial financing statements and amendments thereto that (i) indicate the
Collateral (x) as all assets of Grantor or words of similar effect, regardless
of whether any particular asset comprised in the Collateral falls within the
scope of Article 9 of the UCC of the jurisdiction wherein such financing
statement or amendment is
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filed, or (y) as being of an equal or lesser scope or within greater detail, and
(ii) contain any other information required by Section 5 of Article 9 of the UCC
of the jurisdiction wherein such financing statement or amendment is filed
regarding the sufficiency or filing office acceptance of any financing statement
or amendment, including (x) whether Grantor is an organization, the Type of
Organization the Organization ID Number issued to Grantor and (y) in the case of
a financing statement filed as a fixture filing or indicating Collateral to be
extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates, Grantor further ratifies and affirms
its authorization for any financing statements and/or amendments thereto, filed
by the Agent in any jurisdiction prior to the date of this Agreement, (b) except
for movement of equipment, inventory and related assets for performance of
services in the ordinary course of business, will keep all its Inventory at, and
will not maintain any place of business at any location other than, its
address(es) shown on Schedule I hereto or at such other addresses of which
Grantor shall have given the Agent not less than 30 days' prior written notice,
(c) will keep its records concerning the Non-Tangible Collateral in such a
manner as will enable the Agent or its designees to determine at any time the
status of the Non-Tangible Collateral; (d) will furnish the Agent such
information concerning Grantor, the Collateral and the Accounts as the Agent may
from time to time reasonably request; (e) will keep, and cause each Subsidiary
to keep, its books and records in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; permit, and cause each Subsidiary to permit, any Purchaser or the Agent or
any representative thereof to inspect the properties and operations of Grantor's
or such Subsidiary; and permit, and cause each Subsidiary to permit, at any
reasonable time and with reasonable notice, any Purchaser or the Agent or any
representative thereof to visit any or all of its offices, to discuss its
financial matters with its officers, and to examine (and, at the expense of
Grantor or the applicable Subsidiary, photocopy extracts from) any of its books
or other records; and permit, and cause each Subsidiary to permit, the Agent and
its representatives to inspect the Inventory and other tangible assets of
Grantor or such Subsidiary, to conduct environmental reviews and inspections of
any real property encumbered by a Mortgage in accordance with the terms of any
Mortgage, to perform appraisals of the machinery, equipment or other collateral
of Grantor or such Subsidiary, and to inspect, audit, check and make copies of
and extracts from the books, records, computer data, computer programs,
journals, orders, receipts, correspondence and other data relating to Inventory,
Accounts Receivable and any other collateral including, without limitation,
semi-annual collateral audits (all such inspections or audits by the Agent shall
be at Grantor's expense, provided that so long as no Default or Event of Default
exists, Grantor shall not be required to reimburse the Agent for appraisals and
inspections more frequently than semi-annually); (f) will, upon request of the
Agent, stamp on its records concerning the Collateral, and add on all Chattel
Paper and Instruments constituting a portion of the Collateral, a notation, in
form satisfactory to the Agent, of the security interest of the Agent hereunder;
(g) except for the sale or lease of Inventory in the ordinary course of its
business and sales of Equipment which is no longer useful in its business or
which is being replaced by similar Equipment, will not sell, lease, assign or
create or permit to exist any Lien on any Collateral other than Permitted Liens;
(h) without limiting the provisions of Section 7.1(c) of the Note and Equity
Purchase Agreement, will at all times keep all of its Inventory and other Goods
insured under policies maintained with reputable, financially sound insurance
companies against loss, damage, theft and other risks to such extent as is
customarily maintained by companies similarly situated at commercially
reasonable levels for businesses engaged in similar activities or lines of
business or owning similar assets or properties, and cause all such policies to
provide that loss thereunder shall be payable to the Agent as its interest may
appear (it being understood that (A) so long as no Event of Default shall have
occurred and be continuing, the Agent shall deliver any proceeds of such
insurance which may be received by it to Grantor and (B) whenever a Default
shall be existing, the Agent may apply any proceeds of such insurance which may
be received by it toward payment of the Liabilities, whether or not due, in such
order of application as provided in the Note and Equity Purchase Agreement, and
such policies or certificates thereof shall, if the Agent so requests, be
deposited with or furnished to the Agent; (i) will take such actions as are
reasonably necessary to keep its Goods in good repair and condition; (j) will
take such actions as are reasonably necessary to keep its Equipment in good
repair and
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condition and in good working order, ordinary wear and tear excepted; (k) will
promptly pay when due all license fees, registration fees, taxes, assessments
and other charges which may be levied upon or assessed against the ownership,
operation, possession, maintenance or use of its Equipment and other Goods; (l)
will, upon request of the Agent, (i) cause to be noted on the applicable
certificate, in the event any of its Equipment is covered by a certificate of
title, the security interest of the Agent in the Equipment covered thereby, and
(ii) deliver all such certificates to the Agent or its designees; (m) will take
all steps reasonably necessary to protect, preserve and maintain all of its
rights in the Collateral; (n) except (i) as listed on Schedule VI, and (ii) for
movement of equipment, inventory, and related assets for performance of services
in the ordinary course of business, will keep all of the tangible Collateral in
the United States; and (o) promptly notify the Agent in writing upon acquiring
or otherwise obtaining any Collateral after the date hereof consisting of
Deposit Accounts, Investment Property, Letter-of-Credit Rights or Electronic
Chattel Paper and, upon the request of the Agent, will promptly execute such
other documents, and do such other acts or things deemed appropriate by the
Agent to deliver to Senior Lender as agent for the Agent, subject to the terms
of the Subordination Agreement, control with respect to such Collateral; (p)
promptly notify the Agent in writing upon acquiring or otherwise obtaining any
Collateral after the date hereof consisting of Documents or Instruments and,
upon the request of the Agent, will promptly execute such other documents, and
do such other acts or things deemed appropriate by the Agent to deliver to the
Senior Lender as agent for the Agent, subject to the terms of the Subordination
Agreement, possession of such Documents which are negotiable and Instruments,
and, with respect to nonnegotiable Documents, to have such nonnegotiable
Documents issued in the name of the Agent; (q) with respect to Collateral in the
possession of a third party, other than Certificated Securities and Goods
covered by a Document, use its best efforts to obtain an acknowledgment from the
third party that it is holding the Collateral for benefit of the Agent; (r)
promptly notify the Agent in writing upon incurring or otherwise obtaining a
Commercial Tort Claim after the date hereof against any third party, and, upon
the request of the Agent, will promptly enter into an amendment to this
Agreement, and do such other acts or things deemed appropriate by the Agent to
give the Agent a security interest in such Commercial Tort Claim; (s) further
agrees to take other action reasonably requested by the Agent to insure the
attachment, perfection and priority of, and the ability of the Agent to enforce,
the security interests in any and all of the Collateral including, without
limitation, (i) executing, delivering and, where appropriate, filing financing
statements and amendments relating thereto under the UCC, to the extent, if any,
that Grantor's signature thereon is required therefor, (ii) complying with any
provision of any statute, regulation or treaty of the United States as to any
Collateral if compliance with such provision is a condition to attachment,
perfection or priority of, or ability of the Agent to enforce, the security
interests in such Collateral, (iii) obtaining governmental and other third party
consents and approvals, including without limitation any consent of any
licensor, lessor or other Person obligated on Collateral, (iv) using its best
efforts to obtain waivers from mortgagees and landlords in form and substance
satisfactory to the Agent, and (v) taking all actions required by the UCC in
effect from time to time or by other law, as applicable in any relevant UCC
jurisdiction, or by other law as applicable in any foreign jurisdiction, (t) not
change its state of incorporation or organization or Type of Organization; and
(u) not change its legal name without providing the Agent with at least 30 days'
prior written notice.
Any expenses incurred in protecting, preserving or maintaining any
Collateral shall be borne by Grantor. Except as otherwise expressly set forth in
Section 2, following the occurrence and during the continuance of an Event of
Default, the Agent shall have the right to bring suit to enforce any or all of
the Intellectual Property or licenses thereunder, in which event Grantor shall
at the request of the Agent do any and all lawful acts and execute any and all
proper documents required by the Agent in aid of such enforcement and Grantor
shall promptly, upon demand, reimburse and indemnify the Agent for all costs and
expenses incurred by the Agent in the exercise of its rights under this Section
6. Notwithstanding the foregoing, the Agent shall have no obligation or
liability regarding the Collateral or any thereof by reason of, or arising out
of, this Agreement.
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To the extent Grantor uses any of the proceeds of the Notes to purchase
Collateral, Grantor's repayment of the Notes shall apply on a
"first-in-first-out" basis so that the portion of the Notes used to purchase a
particular item of Collateral shall be paid in the chronological order Grantor
purchased the Collateral.
7. Default and Remedies upon a Default. (a) If an Event of
Default shall have occurred and be continuing, the Agent may exercise (or cause
its sub-agents to exercise) any or all of the remedies available to it (or to
such sub-agents) under this Agreement.
(b) Without limiting the generality of the foregoing, if an Event
of Default shall have occurred and be continuing, the Agent may exercise on
behalf of the Purchasers all the rights of a secured party under the UCC
(whether or not in effect in the jurisdiction where such rights are exercised)
with respect to any Collateral and, in addition, the Agent may, without being
required to give any notice, except as herein provided or as may be required by
mandatory provisions of law, withdraw all cash held in the Assignee Deposit
Account and apply such cash as provided in Section 8 and, if there shall be no
such cash or if such cash shall be insufficient to pay all the Liabilities in
full, sell, lease, license or otherwise dispose of the Collateral or any part
thereof. Notice of any such sale or other disposition shall be given to Grantor
as required in Section 9.
8. Application of Proceeds. (a) If an Event of Default shall have
occurred and be continuing, the Agent may apply the proceeds of any sale or
other disposition of all or any part of the Collateral, in the following order
or priorities (subject to the provisions of the Subordination Agreement):
first, to pay the expenses of such sale or other disposition,
including reasonable compensation to agents of and counsel for the
Agent, and all expenses, liabilities and advances incurred or made by
the Agent in connection with the collateral documents, and any other
amounts then due and payable to the Agent pursuant to the Purchase
Documents;
second, to pay the unpaid principal of the Liabilities
ratably, until payment in full of the principal of all Liabilities
shall have been made (or so provided for);
third, to pay ratably all interest (including post-petition
interest) and all facility and other fees payable under the Purchase
Documents, until payment in full of all such interest and fees shall
have been made;
fourth, to pay all other Liabilities ratably, until payment in
full of all such other Liabilities shall have been made (or so provided
for); and
finally, to pay to Grantor, or as a court of competent
jurisdiction may direct, any surplus then remaining from the proceeds
of the Collateral owned by it.
The Agent may make such distributions hereunder in cash or in kind or,
on a ratable basis, in any combination thereof.
(b) All distributions made by the Agent pursuant to this Section
shall be final (except in the event of manifest error) and the Agent shall have
no duty to inquire as to the application by any Purchaser or any amount
distributed to it.
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9. Authority to Administer Collateral. Grantor irrevocably
appoints the Agent its true and lawful attorney with full power of substitution,
in the name of Grantor, any Purchaser or otherwise, for the sole use and benefit
of the Purchaser, but at Grantor's expense, to the extent permitted by law to
exercise, at any time and from time to time while an Event of Default shall have
occurred and be continuing, all or any of the following powers with respect to
all or any of Grantor's Collateral (to the extent necessary to pay the
Liabilities in full):
(a) to demand, xxx for, collect, receive and give acquittance for
any and all monies due or to become due upon or by virtue thereof;
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto;
(c) to sell, lease, license or otherwise dispose of the same or
the Proceeds thereof, as fully and effectually as if the Agent were the absolute
owner thereof, and
(d) to extend the time of payment of any or all thereof and to
make any allowance or other adjustment with reference thereto;
provided that, except in the case of Collateral that is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Agent will give Grantor at least ten (10) days' prior written notice
of the time and place of any public sale thereof or the time after which any
private sale or other intended disposition thereof will be made.
10. Limitation on Duty in Respect of Collateral. Beyond the
exercise of reasonable care in the custody and preservation thereof, the Agent
will have no duty as to any Collateral in its possession or control or in the
possession or control of any sub-agent or bailee or any income therefrom or as
to the preservation of rights against prior parties or any other rights
pertaining thereto. The Agent will be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its possession or control
if such Collateral is accorded treatment substantially equal to that which it
accords its own property, and will not be liable or responsible for any loss or
damage to any Collateral, or for any diminution in the value thereof, by reason
of any act or omission of any sub-agent or bailee selected by the Agent in good
faith or by reason of any act or omission by the Agent pursuant to instructions
form the Agent, except to the extent that such liability arises from the Agent's
gross negligence or willful misconduct.
To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, Grantor acknowledges and
agrees that it is not commercially unreasonable for the Agent (a) to fail to
incur expenses reasonably deemed significant by the Agent to prepare Collateral
for disposition or otherwise to complete raw material or work-in-process into
finished goods or other finished products for disposition, (b) to exercise
collection remedies against Account Debtors and other Persons obligated on
Collateral directly or through the use of collection agencies and other
collection specialists, (c) to advertise dispositions of Collateral through
publications or media of general circulation, whether or not the Collateral is
of a specialized nature, (d) to contact other Persons, whether or not in the
same business as Grantor, for expressions of interest in acquiring all or any
portion of the Collateral, (e) to hire one or more professional auctioneers to
assist in the disposition of Collateral, whether or not the collateral is of a
specialized nature, (f) to dispose of Collateral by utilizing Internet sites
that provide for the auction of assets of the types included in the Collateral
or that have the reasonable capability of doing so, or that match buyers and
sellers of assets, (g) to dispose of assets in wholesale rather than retail
markets, (h) to disclaim disposition warranties, including, without limitation,
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any warranties of title, (i) to purchase insurance of credit enhancements to
insure the Agent against risks of loss, collection or disposition of Collateral,
or to provide to the Agent a guaranteed return from the collection or
disposition of Collateral, or (j) to the extent deemed appropriate by the Agent,
to obtain the services of other brokers, investment bankers, consultants and
other professionals to assist the Agent in the collection or disposition of any
of the Collateral. Grantor acknowledges that the purpose of this Section is to
provide non-exhaustive indications of what actions or omissions by the Agent
would not be commercially unreasonable in the Agent's exercise of remedies
against the Collateral and that other actions or omissions by the Agent shall
not be deemed commercially unreasonable solely on account of not being indicated
in this Section. Without limitation upon the foregoing, nothing contained in
this Section shall be construed to grant any right to Grantor or to impose any
duties on the Agent that would not have been granted or imposed by this
Agreement or by applicable law in the absence of this Section.
12. General. (a) All notices hereunder shall be in writing
(including facsimile or e-mail transmission) and shall be sent to the applicable
party at its address shown on Schedule I or at such other address as such party
may, by written notice received by the other parties, have designated as its
address for such purpose. Notices sent by facsimile and e-mail transmission
shall be deemed to have been given upon receipt of a confirmation that such
notice was successfully transmitted; notices sent by mail shall be deemed to
have been given three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier service shall be deemed to have been given when received.
(b) Grantor agrees to pay all expenses, including reasonable
attorney's fees and charges (including time charges of attorneys who are
employees of the Agent or any Purchaser) paid or incurred by the Agent or any
Purchaser in endeavoring to collect the Liabilities of Grantor, or any part
thereof, and in enforcing this Agreement against Grantor, and such obligations
will themselves be Liabilities.
(c) No delay on the part of the Agent in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by the Agent of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
(d) This Security Agreement shall remain in full force and effect
until all Liabilities have been paid in full. If at any time all or any part of
any payment theretofore applied by the Agent or any Purchaser to any of the
Liabilities is or must be rescinded or returned by the Agent or such Purchaser
for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of Grantor), such Liabilities shall, for the purposes of this
Agreement, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Agent or such Purchaser, and this Agreement shall continue to be effective
or be reinstated, as the case may be, as to such Liabilities, all as though such
application by the Agent or such Purchaser had not been made.
(e) This Agreement shall be construed in accordance with and
governed by the laws of the State of New York applicable to contracts made and
to be performed entirely within such State. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(f) The rights and privileges of the Agent hereunder shall inure
to the benefit of its successors and assigns.
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(g) This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement. At any time after the date of
this Agreement, one or more additional Persons may become parties hereto by
executing and delivering to the Agent a counterpart of this Agreement together
with supplements to the Schedules hereto setting forth all relevant information
with respect to such party as of the date of such delivery. Immediately upon
such execution and delivery (and without any further action), each such
additional Person will become a party to, and will be bound by all the terms of,
this Agreement.
(h) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER PURCHASE DOCUMENT, SHALL BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF OHIO OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF OHIO AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE. PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH
ON SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN
WRITING TO THE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF [OHIO]. PLEDGOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) EACH PLEDGOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH PURCHASER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER PURCHASE DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
PLEDGOR:
CORRPRO COMPANIES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Title: Senior VP/Secretary
CCFC, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Title: Secretary
OCEAN CITY RESEARCH CORP.
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Title: Asst. Secretary
CORRPRO INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Title: Secretary
AGENT:
AMERICAN CAPITAL FINANCIAL SERVICES, INC.,
as Agent
By: /s/ J XxxXxxxxx
----------------------------------------
Title: Principal
