EXHIBIT 99(b)(2)
SECURITY AGREEMENT dated as of January 21 , 1999 made by EIN ACQUISITION
CORP., a Florida corporation, as grantor (together with any successor by merger,
the "Borrower") to COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
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"RABOBANK NEDERLAND", NEW YORK BRANCH ("Rabobank"), as agent (the "Agent") for
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the Initial Lender (as hereinafter defined) and other lenders party to the
Credit Agreement (as hereinafter defined) (the "Lenders").
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PRELIMINARY STATEMENTS PRELIMINARY
1. The Borrower, Utrecht-America Finance Co., as Initial Lender (the
"Initial Lender") and the Agent have entered into a Credit Agreement (the
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"Credit Agreement") dated as of January 21, 2000. The terms defined in the
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Credit Agreement and not otherwise defined herein are used herein as therein
defined.
2. It is a condition precedent to the effectiveness of the Credit
Agreement and to the Borrowing thereunder that the Borrower shall have executed
and delivered this Security Agreement.
3. The Borrower will derive substantial benefit from the transactions
contemplated by the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Initial Lender to enter into the Credit Agreement and make the Advance
thereunder, the Borrower hereby agrees as follows:
SECTION 1. Grant of Security. The Borrower hereby assigns and
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pledges to the Agent for its benefit and the ratable benefit of the other
Secured Parties and hereby grants to the Agent for its benefit and the ratable
benefit of the other Secured Parties, a first priority security interest in all
of the Borrower's right, title and interest in and to the following, whether now
owned or hereafter acquired (the "Collateral"):
(a) the Xxxxxx Purchase Agreement, including but not limited to (i) all
distributions, cash and other property from time to time received,
receivable or otherwise distributed in connection with the Xxxxxx Purchase
Agreement, (ii) all rights to receive moneys due and to become due under or
pursuant to the Xxxxxx Purchase Agreement (v) all of the rights of the
Borrower to perform under the Xxxxxx Purchase Agreement and to compel
performance and otherwise exercise all remedies thereunder;
(b) the Real Estate Purchase Agreement, including but not limited to (i)
all distributions, cash and other property from time to time received,
receivable or otherwise distributed in connection with the Real Estate
Purchase Agreement, (ii) all rights to receive moneys due and to become due
under or pursuant to the Real Estate Purchase
Agreement (v) all of the rights of the Borrower to perform under the Real
Estate Purchase Agreement and to compel performance and otherwise exercise
all remedies thereunder;
(c) the Cash Escrow Agreement including but not limited to (i) all
distributions, cash and other property from time to time received,
receivable or otherwise distributed in connection with the Cash Escrow
Agreement, (ii) all rights to receive moneys due and to become due under or
pursuant to the Cash Escrow Agreement (v) all of the rights of the Borrower
to perform under the Cash Escrow Agreement and to compel performance and
otherwise exercise all remedies thereunder;
(d) the Subscription Agreement (together with the Xxxxxx Agreement, the
Real Estate Purchase Agreement and the Cash Escrow Agreement, the
"Collateral Agreements"), including but not limited to (i) all
distributions, cash and other property from time to time received,
receivable or otherwise distributed in connection with the Subscription
Agreement, (ii) all rights to receive moneys due and to become due under or
pursuant to the Subscription Agreement (v) all of the rights of the
Borrower to perform under the Subscription Agreement and to compel
performance and otherwise exercise all remedies thereunder;
(e) All accounts, contract rights, chattel paper, general intangibles and
other obligations of any kind, now or hereafter existing and all rights now
or hereafter existing in and to all security agreements, leases, and other
contracts securing or otherwise relating to any such accounts, contract
rights, chattel paper, general intangibles or obligations, in each case,
relating to the Collateral Agreements; and
(f) All proceeds (as defined in the Uniform Commercial Code in effect in
the State of New York on the date hereof) of any and all of the foregoing
Collateral
SECTION 2. Security for Obligations. This Agreement secures the payment
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of all Obligations of the Borrower now or hereafter existing under the Credit
Agreement and the other Transaction Documents, whether for principal, interest,
fees, expenses or otherwise (all such Obligations being the "Secured
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Obligations"). Without limiting the generality of the foregoing, this Agreement
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secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by the Borrower to the Agent or any other Secured
Party but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the
Borrower.
SECTION 3. Borrower Remains Liable. Anything herein to the contrary
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notwithstanding, (a) the Borrower shall remain liable under the Collateral
Agreements to the extent set forth therein to perform all of the Borrower's
duties and obligations thereunder to the same extent as if this Agreement had
not been executed, (b) the exercise by the Agent of any of the rights hereunder
shall not release the Borrower from any of the Borrower's duties or obligations
under the Collateral Agreements and (c) neither the Agent nor any Secured Party
shall have any obligation or liability under the Collateral Agreements by reason
of this Agreement, nor shall the Agent or any Secured Party be obligated to
perform any of the
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obligations or duties of the Borrower thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
SECTION 4. Representations and Warranties. The Borrower represents and
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warrants as follows:
(a) No consent of any other person or entity and no authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for (i) the grant by
the Borrower of the Lien granted by it pursuant to this Agreement, (ii) the
perfection or maintenance of such liens (including the first priority
nature thereof) except for the filing of financing statements required
pursuant to Section 3.01 of the Credit Agreement, which financing
statements have been duly filed, or (iii) the exercise by the Agent or any
other Secured Party of its rights under this Agreement or the remedies in
respect of the Collateral (except as specifically provided herein).
(b) The chief place of business and chief executive office and the
office where it keeps its records concerning the Collateral, and an
original copy of the Collateral Agreements, are located at its address set
forth in the Credit Agreement.
(c) The Borrower is the legal and beneficial owner of the Collateral,
free and clear of any lien, security interest, charge or encumbrance,
except for security interests created by this Agreement. No effective
financing statement or other instrument similar in effect covering all or
any part of the Borrower's Collateral is on file in any recording office,
except such as may have been filed in favor of the Agent relating to this
Agreement.
(d) This Agreement creates a valid and perfected first priority security
interest in the Collateral enforceable against all third parties, securing
the payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such security interest have
been duly made or taken.
(e) The Collateral Agreements, a true and complete copy of which has
been furnished to the Agent, have been duly authorized, executed and
delivered by the Borrower and, to the best of the Borrower's knowledge,
each other party thereto, have not been amended or otherwise modified, are
in full force and effect and are binding upon and enforceable against all
parties thereto in accordance with their terms. There exists no default
under the Collateral Agreements by the Borrower or, to the best of the
Borrower's knowledge, any other party thereto.
SECTION 5. Further Assurances. (a) The Borrower agrees that at any time
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and from time to time, at the expense of the Borrower, the Borrower will
promptly execute and deliver all further instruments and documents and take all
further action that may be necessary or desirable, or that the Agent may
reasonably request, in order to continue, perfect and protect any assignment or
security interest granted or purported to be granted hereby or to enable the
Agent
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to exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, the Borrower
shall: (i) xxxx conspicuously the Collateral Agreements and, at the request of
the Agent, each of its records pertaining to the Collateral with a legend, in
form and substance satisfactory to the Agent, indicating that the Collateral
Agreements or Collateral is subject to the security interest granted hereby;
(ii) execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Agent may request, in order to perfect and preserve the
assignment and security interest granted or purported to be granted hereby; and
(iii) prepare and execute such reports, applications and other documents as the
Agent may from time to time reasonably request in connection with the exercise
by the Agent of its rights under the Transaction Documents.
(b) The Borrower hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Borrower's Collateral without the signature of the Borrower
where permitted by law. A carbon, photographic or other reproduction of this
Agreement or any financing statement covering the Borrower's Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
(c) In the event any certificates or instruments are issued that
represent or evidence any Collateral, the Borrower shall promptly deliver all
such certificates and instruments to the Agent to be held by or on behalf of the
Agent pursuant hereto, and such certificates and instruments shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Agent. The Agent shall have the right, at any time in its
discretion and without notice to the Borrower, to transfer to or to register in
the name of the Agent or any of its nominees any or all certificates or
instruments representing or evidencing any of the Borrower's Collateral, subject
only to the revocable rights specified in Section 7(a). In addition, the Agent
shall have the right at any time to exchange certificates or instruments or
evidencing Collateral for certificates or instruments of smaller or larger
denominations.
(d) The Borrower has delivered to the Agent the Notification and
Confirmations in substantially the form attached as Exhibit A hereto, dated the
date hereof and otherwise in form and substance satisfactory to the Agent; and
(f) The Agent is hereby authorized to demand specific performance by the
Borrower of the provisions of this Section 5. The Borrower hereby irrevocably
waives any defense based on the adequacy of a remedy at law that might be
asserted as a bar to such remedy of specific performance. The Borrower hereby
acknowledges that the provisions of this Section 5 are intended to be
enforceable at all times, whether before or after the commencement of a
proceeding for the dissolution, winding up, liquidation, arrangement,
reorganization, adjustment, protection, relief or composition of any Borrower or
its debts, whether in any bankruptcy, insolvency, arrangement, reorganization,
receivership, relief or similar proceeding or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of any
Borrower or otherwise.
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SECTION 6. Place of Perfection; Records. The Borrower shall keep its
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chief place of business and chief executive office and the office where it keeps
its records concerning the Collateral and original copies of the Collateral
Agreements at the location therefor specified in Section 4(b) or, upon 30 days'
prior written notice to the Agent, at such other locations in a jurisdiction
where all actions required by Section 5 shall have been taken with respect to
the Collateral.
SECTION 7. Voting Rights; Distributions; Etc. (a) The Agent shall have
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the sole right to exercise or refrain from exercising any and all voting and
other consensual rights, if any, pertaining to the Collateral.
(b) Any and all distributions of any kind or description in respect of
the Borrower's Collateral shall be paid directly to the Agent (and the contract
parties to each of the Collateral Agreements shall be so instructed) to pay or
prepay obligations of the Borrower under the Credit Agreement in accordance with
the terms thereof and shall, if received by the Borrower, be received in trust
for the benefit of the Agent, be segregated from the other property or funds of
the Borrower, and be forthwith delivered to the Agent as Collateral in the same
form as so received (with any necessary endorsement).
SECTION 8. As to the Collateral Agreements.
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(a) At the direction of the Agent, the Borrower shall continue to
collect, at its own expense, all amounts due or to become due to the Borrower
under the Collateral Agreements, if any. In connection with such collections,
the Borrower shall take, at the Agent's direction, such actions as the Agent may
deem necessary or advisable to enforce any or all of the Borrower's rights to
receive payments or other distributions with respect to the Collateral
Agreements. The Agent shall have the right at any time (i) to direct the
parties to the Collateral Agreements to make payment of all amounts due or to
become due to the Borrower under the Collateral Agreements directly to the Agent
and, upon such notification, (ii) at the expense of the Borrower, to enforce
collection of such amounts under the Collateral and (iii) to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as the Borrower might have done.
(b) The Borrower shall at its expense:
(i) perform and observe all the terms and provisions of the Collateral
Agreements to be performed or observed by it, except as otherwise provided
by law, maintain the Collateral Agreements in full force and effect, enforce
the Collateral Agreements in accordance with their respective terms and take
all such action to such end as may be from time to time requested by the
Agent; and
(ii) furnish to the Agent promptly upon receipt thereof, copies of all
(A) notices of cancellation, termination, lapse, extension or renewal of,
notices of default under, waivers of any provisions of, amendments or
modifications to, the Collateral Agreements,
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and (B) upon the request of the Agent, other notices, requests, proposals,
appraisals, correspondence and documents received by the Borrower with
respect to the Collateral Agreements or the Company, and from time to time
upon the reasonable request of the Agent, make such demands and requests for
information or action upon such Persons as the Borrower is entitled to make
under the Collateral Agreements.
SECTION 9. Transfers and Other Liens. The Borrower shall not, without
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the Agent's consent:
(i) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Collateral; or
(ii) create or suffer to exist any Lien upon or with respect to any of
the Collateral except for the assignment and security interest created by
this Agreement.
SECTION 10. Agent Appointed Attorney-in-Fact. The Borrower hereby
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irrevocably appoints the Agent the Borrower's attorney-in-fact, with full
authority in the place and stead of the Borrower and in the name of the Borrower
or otherwise, from time to time in the Agent's discretion, to take any action
and to execute any instrument that the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation:
(a) to ask for, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or
in respect of any of the Collateral;
(b) to receive, endorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
(c) to file any claims or take any action or institute any proceedings
that the Agent may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce compliance with the terms and
conditions of the Collateral Agreements or the rights of the Agent with
respect to any of the Collateral; and
SECTION 11. Agent May Perform. If the Borrower fails to perform any
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agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Borrower under Section 14.
SECTION 12. The Agent's Duties. The powers conferred on the Agent
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hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral. The Agent shall
be deemed to have exercised
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reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which Rabobank accords its own property, it being understood that neither the
Agent nor any other Secured Party shall have responsibility for (i) ascertaining
or taking action with respect to exchanges, maturities, tenders, offers to
purchase, notices to purchase or sell, notices of termination or dissolution or
other matters relative to any Collateral, whether or not the Agent or any other
Secured Party has or is deemed to have knowledge of such matters, or (ii) taking
any necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral.
SECTION 13. Remedies Upon Default. If any Event of Default shall have
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occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party upon default under the
Uniform Commercial Code in effect in the State of New York at such time (the
"New York Uniform Commercial Code") (whether or not the New York Uniform
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Commercial Code applies to the affected Collateral), and also may (i)
exercise any and all rights and remedies of the Borrower, (ii) require the
Borrower to, and the Borrower hereby agrees that it will at its expense and
upon request of the Agent forthwith, assemble all or part of the Collateral
as directed by the Agent and make it available to the Agent at a place to be
designated by the Agent that is reasonably convenient to both parties, and
(iii) without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at one or more public or private sales,
at any of the Agent's offices or elsewhere, for cash, on credit or for
future delivery, to one or more Persons (which may include the Agent, any
Secured Party or any partner of the Company), and upon such other terms as
the Agent may deem commercially reasonable. The Borrower agrees that, to
the extent notice of sale shall be required by law, at least 10 days' notice
to the Borrower of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) All payments received by the Borrower under or in connection with
the Collateral Agreements or otherwise and other distributions received by
the Borrower in respect of the Collateral shall be received in trust for the
benefit of the Agent, shall be segregated from other funds of the Borrower
and shall be forthwith paid over to the Agent in the same form as so
received (with any necessary endorsement).
(c) All payments and other distributions made under or in connection
with the Collateral Agreements or otherwise in respect of the Collateral,
and all cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Agent, be held by the Agent for the ratable
benefit of the Secured Parties as collateral for the Secured Obligations,
and/or
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then or at any time thereafter applied (after payment of any amounts payable
to the Agent pursuant to Section 14) in whole or in part by the Agent for
the ratable benefit of the Secured Parties against, all or any part of the
Secured Obligations in such order as the Agent shall elect. Any surplus of
such cash or cash proceeds held by the Agent and remaining after payment in
full of all the Secured Obligations shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION 14. Indemnity and Expenses. The Borrower will upon demand pay
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to the Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, that
the Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody, preservation, use or operation of, or the sale of, collection
from or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Agent or the other Secured Parties
hereunder or (iv) the failure by the Borrower to perform or observe any of the
provisions hereof.
SECTION 15. Amendments; Waivers; Etc. (a) No amendment or waiver of
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any provision of this Agreement, and no consent to any departure by the Borrower
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No failure on the part of the Agent to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
SECTION 16. Addresses for Notices. All notices and other
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communications provided for hereunder shall be made and be effective as set
forth in the Credit Agreement.
SECTION 17. Continuing Security Interest; Assignments Under Credit
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Agreement. This Agreement shall create a continuing security interest in the
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Collateral and shall (a) remain in full force and effect until the indefeasible
payment in full in cash of the Secured Obligations, (b) be binding upon the
Borrower, its successors and assigns; it being expressly understood that (i) at
any time after the effectiveness of the Merger but prior to the effectiveness of
the Delaware Merger, "Borrower" shall mean and include Echelon as successor by
merger to the Borrower and (ii) at any time after the Delaware Merger,
"Borrower" shall mean and include EIN, as successor by merger to Echelon and (c)
inure, together with the rights and remedies of the Agent hereunder, to the
benefit of the Agent and the other Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of the Advance owing to it and the Note
or Notes held by it) to any other Person or entity, and such other Person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise, in each case as provided in Section
8.07 of the Credit Agreement.
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SECTION 18. Termination. Upon the indefeasible payment in full in cash
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of the Secured Obligations, the assignment and security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the Borrower.
Upon any such termination, the Agent will execute and deliver to the Borrower,
at the Borrower's expense, such documents as the Borrower shall reasonably
request to evidence such termination.
SECTION 19. Borrower Not Released. The exercise by the Agent of any of
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the rights hereunder shall not release the Borrower from any of its or his
duties or obligations under any agreement with the Agent, the Secured Parties or
each other and neither the Agent nor any other Secured Party shall have any
obligation or liability under any such agreement by reason of this Agreement,
nor shall the Agent or any other Secured Party be obligated to perform any of
the obligations or duties of the Borrower thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
SECTION 20. Severability. If any term or provision of this Agreement
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is or shall become illegal, invalid or unenforceable in any jurisdiction, all
other terms and provisions of this Agreement shall remain legal, valid and
enforceable in such jurisdiction and such illegal, invalid or unenforceable
provision shall be legal, valid and enforceable in any other jurisdiction.
SECTION 21. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY
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AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. UNLESS
OTHERWISE DEFINED HEREIN OR IN THE CREDIT AGREEMENT, TERMS USED IN THE NEW YORK
UNIFORM COMMERCIAL CODE ARE USED HEREIN AS THEREIN DEFINED.
SECTION 22. Effectiveness; Execution in Counterparts. This Agreement
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shall become effective as to the Borrower when it shall have been executed by
the Borrower, and may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 23. WAIVER OF JURY TRIAL. THE BORROWER AND THE AGENT HEREBY
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IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
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IN WITNESS WHEREOF, the Borrower has, or has caused this Agreement to
be duly executed and delivered by its officers thereunto duly authorized, as of
the date first above written.
EIN ACQUISITION CORP.
By:___________________
Name:
Title:
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EXHIBIT A
NOTIFICATION AND CONFIRMATION
January __, 2000
Dear Sir or Madam:
Pursuant to the Security Agreement dated as of January __, 2000 (the
"Security Agreement") made by EIN Acquisition Corp., a Florida corporation
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(together with any successor by merger, the "Borrower"), to Cooperatieve
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Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), as agent (the "Agent"), the Borrower has assigned and pledged to
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the Agent for the ratable benefit of the Lenders (as defined in the Security
Agreement) all of the Borrower's right, title and interest in and to the Xxxxxx
Purchase Agreement (as defined in the Security Agreement);
1. The Borrower hereby notifies Xxxxxx Financial, Inc. (the
"Counterparty") of, and the Counterparty hereby acknowledges and agrees to, the
assignment and pledge of the Xxxxxx Purchase Agreement pursuant to the Security
Agreement.
2. The Borrower hereby instructs the Counterparty and the
Counterparty hereby agrees to make any and all payments and other distributions
with respect to the Xxxxxx Purchase Agreement directly to the Agent in payment
of the Obligations (as defined in the Security Agreement).
3. The Counterparty hereby agrees, simultaneously with each notice
delivered to the Borrower pursuant to the Xxxxxx Purchase Agreement to send a
copy of such notice to the Agent at the Agent's address set forth in the
Security Agreement.
EIN ACQUISITION CORP.
By:_____________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
XXXXXX FINANCIAL, INC.
By:_____________________
Name:
Title:
