SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement") is entered into as
of April 9, 1997 among Integrated Living Communities Holding, Inc., a Delaware
corporation (the "Borrower"), Integrated Living Communities, Inc., a Delaware
corporation (the "Parent"), Integrated Living Communities of Sarasota, Inc., a
Florida corporation ("Sarasota"), the subsidiaries of the Borrower and Parent
identified on the signature pages hereto and such other subsidiaries of the
Borrower as may from time to time become a Credit Party hereunder by execution
of a Joinder Agreement (such subsidiaries together with the Parent and Sarasota
individually a "Guarantor" and collectively the "Guarantors"; the Guarantors
together with the Borrower individually a "Credit Party", and collectively the
"Credit Parties") and NationsBank, N.A. (South), as agent (in such capacity, the
"Agent") for the lenders from time to time party to the Credit Agreement
described below (the "Lenders").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Borrower, the Guarantors, the Lenders
and the Agent, the Lenders have agreed to make Loans and issue or participate in
Letters of Credit upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Loans and
to issue or participate in Letters of Credit under the Credit Agreement that the
Credit Parties shall have executed and delivered this Security Agreement to the
Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Credit
Agreement. All terms used in this Security Agreement that are defined
in the Uniform Commercial Code in effect in the State of Florida (the
"UCC") and which are not otherwise defined herein shall have the
meanings set forth therein. For purposes of this Security Agreement,
the term "Lender" shall include any Affiliate of any Lender which has
entered into a Hedging Agreement with the Borrower.
(b) In addition, the following terms shall have the following
meanings:
"Copyright Licenses": any written agreement, naming any Credit
Party as licensor, granting any right under any Copyright including,
without limitation, any thereof referred to in Schedule 1(b) hereto.
"Copyrights": (a) all registered United States copyrights in
all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright office
including, without limitation, any thereof referred to in Schedule 1(b)
hereto, and (b) all renewals thereof including, without limitation, any
thereof referred to in Schedule 1(b) hereto.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to a Credit Party of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any thereof referred to in Schedule 1(b) hereto.
"Patents": (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule 1(b) hereto,
and (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any
thereof referred to in Schedule 1(b) hereto.
"Trademark License": means any agreement, written or oral,
providing for the grant by or to a Credit Party of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule 1(b) hereto.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 1(b) hereto, and (b) all renewals
thereof.
"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To secure the prompt
payment and performance in full when due, whether by lapse of time, acceleration
or otherwise, of the Secured Obligations (as defined in Section 3 hereof), each
Credit Party hereby grants to the Agent, for the benefit of the Lenders, a
continuing security interest in, and a right to set off against, any and all
right, title and interest of such Credit Party in and to the following, whether
now owned or existing or owned, acquired, or arising hereafter (collectively,
the "Collateral"):
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(a) All equipment, including, without limitation, all
vehicles, rolling stock, machinery, tools, furniture, furnishings,
office equipment and trade fixtures;
(b) All accounts and receivables and all goods represented by
or securing accounts and receivables, including, without limitation,
all rents and tenant payments, if any;
(c) All inventory, including, without limitation, all raw
materials, all work in process and all goods held by a Credit Party for
sale or lease;
(d) All contract rights, including, without limitation, (i)
all rights under lease agreements, management agreements and tax
sharing agreements and (ii) all rights to payment of money, tax refunds
and insurance proceeds;
(e) All other general intangibles;
(f) All licenses, permits, plans and specifications, drawings,
instruments, documents, chattel paper, securities, policies and
certificates of insurance, deposits, cash or other goods;
(g) All federal, state and local tax refunds and claims of
each Credit Party, all rights in litigation of each Credit Party
presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments of each Credit Party
now or hereafter arising therefrom;
(h) All books, records, files, computer software and other
similar writings or evidence of each Credit Party's business;
(i) All books, records, ledger cards, files, correspondence,
computer programs, tapes, disks, and related data processing software
(owned by such Credit Party or in which it has an interest) that at any
time evidence or contain information relating to any Collateral or are
otherwise necessary or helpful in the collection thereof or realization
thereupon; and
(j) All Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks, Trademark Licenses, proprietary information,
designs, processes, inventions, know-how and trade secrets and all
actions of infringement, including the right to xxx for and to recover
and retain all damages and profits arising from past infringements of a
Credit Party concerning any of the foregoing;
(k) All other personal property of any kind or type whatsoever
owned by a Credit Party;
(l) All accessions and additions to, and substitutions and
replacements of, any and all of the foregoing, whether now existing or
hereafter arising; and
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(m) All proceeds and products of the foregoing and all
insurance relating to the foregoing Collateral and all proceeds thereof
(including, without limitation, insurance proceeds payable on account
of business interruption), whether now existing or hereafter arising.
3. Security for Obligations. The security interest created hereby in
the Collateral constitutes continuing collateral security for all of the
following, whether now existing or hereafter incurred (the "Secured
Obligations"):
(a) In the case of the Borrower, the prompt performance and
observance by the Borrower of all obligations of the Borrower under the
Credit Agreement, the Notes, this Security Agreement and the other
Credit Documents to which the Borrower is a party;
(b) Subject to clause (c) of Section 27 hereof, in the case of
the Guarantors, the prompt performance and observance by such Guarantor
of all obligations of such Guarantor under the Credit Agreement, this
Security Agreement and the other Credit Documents to which such
Guarantor is a party, including, without limitation, its guaranty
obligations arising under Section 4 of the Credit Agreement; and
(c) Subject to clause (c) of Section 27 hereof, all other
indebtedness, liabilities, obligations and expenses of any kind or
nature owing from any Credit Party to any Lender or the Agent in
connection with (i) this Security Agreement or any other Credit
Document, whether now existing or hereafter arising, due or to become
due, direct or indirect, absolute or contingent, and howsoever
evidenced, held or acquired, together with any and all modifications,
extensions, renewals and/or substitutions of any of the foregoing, (ii)
collecting and enforcing the Credit Party Obligations and (iii) all
liabilities and obligations arising under any Hedging Agreements.
The Credit Parties and the Agent, on behalf of the Lenders, hereby acknowledge
and agree that the security interest created hereby in the Collateral (i)
constitutes continuing collateral security for all of the Secured Obligations,
whether now existing or hereafter arising and (ii) is not to be construed as an
assignment of any Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks or Trademark Licenses.
4. Credit Parties Remain Liable. Anything herein to the contrary
notwithstanding, (a) each Credit Party shall remain liable under the contracts
and agreements of such Credit Party included in the Collateral to the extent set
forth therein and to perform all of the duties and obligations thereunder to the
same extent as if this Security Agreement had not been executed, (b) the
exercise by the Agent of any of the rights hereunder shall not release a Credit
Party from any of its duties or obligations under the contracts and agreements
included in the Collateral, and (c) neither the Agent nor any of the Lenders
shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Security Agreement, nor shall the
Agent or any of the Lenders be obligated to perform any of the obligations or
duties of the Credit Parties thereunder or to take any action to collect or
enforce any claim for payment assigned thereunder.
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5. Representations and Warranties. Each Credit Party hereby represents
and warrants to the Agent, for the benefit of the Lenders, that so long as any
of the Secured Obligations remain outstanding or any Credit Document or Hedging
Agreement is in effect or any Loan or Letter of Credit shall remain outstanding,
and until all of the Commitments shall have been terminated:
(a) Location of Collateral. The location of all tangible
property included in the Collateral owned by each Credit Party is as
shown on Schedule 6.21(b) to the Credit Agreement.
(b) Chief Executive Office; Books & Records. Each Credit
Party's chief executive office and chief place of business is (and for
the prior four months have been) located at the locations set forth on
Schedule 6.21(c) to the Credit Agreement, and each Credit Party keeps
its books and records at such locations.
(c) Ownership. Each Credit Party is the legal and beneficial
owner of its Collateral and has the right to pledge, sell, assign or
transfer the same. Each Credit Party's legal name is as shown in this
Security Agreement and no Credit Party has in the past five years
changed its name, been party to a merger, consolidation or other change
in structure or used any tradename except as set forth in Schedule 5(c)
attached hereto.
(d) Security Interest/Priority. This Security Agreement
creates a valid security interest in favor of the Agent, for the
benefit of the Lenders, in the Collateral of each Credit Party and,
when properly perfected by filing or registration, shall constitute a
valid perfected security interest in such Collateral, to the extent
such security can be perfected by filing under the UCC, federal law or
other applicable personal property security legislation, free and clear
of all Liens except for Permitted Liens.
(e) Receivables. (i) Each receivable of the Credit Parties and
the papers and documents relating thereto are genuine and in all
material respects what they purport to be, (ii) in the case of each
receivable which is an account receivable, each receivable arises out
of (A) a bona fide sale of goods sold and delivered by such Credit
Party (or is in the process of being delivered) or (B) services
theretofore actually rendered by such Credit Party to, the account
debtor named therein, (iii) no receivable of such Credit Party is
evidenced by any instrument or chattel paper, unless such instrument or
chattel paper has been theretofore endorsed over and delivered to the
Agent and (vi) no surety bond was required or given in connection with
any receivables of a Credit Party or the contracts or purchase orders
out of which they arose.
(f) Inventory. No inventory is held by a Credit Party pursuant
to consignment, sale or return, sale on approval or similar
arrangement.
(g) Conditions Precedent. There are no conditions precedent to
the effectiveness of this Security Agreement that have not been
satisfied or waived.
(h) Copyrights, Patents and Trademarks.
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(i) Schedule 1(b) hereto includes all Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and
Trademark Licenses owned by the Credit Parties in their own
names as of the date hereof.
(ii) To the best of each Credit Party's knowledge,
each Copyright, Patent and Trademark of such Obligor is valid,
subsisting, unexpired, enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 1(b) hereto,
none of such Copyrights, Patents and Trademarks is the subject
of any licensing or franchise agreement.
(iv) No holding, decision or judgment has been
rendered by any Governmental Authority which would limit,
cancel or question the validity of any Copyright, Patent or
Trademark.
(v) No action or proceeding is pending seeking to
limit, cancel or question the validity of any Copyright,
Patent or Trademark, or which, if adversely determined, would
have a material adverse effect on the value of any Copyright,
Patent or Trademark.
(vi) All applications pertaining to the Copyrights,
Patents and Trademarks of each Credit Party have been duly and
properly filed, and all registrations or letters pertaining to
such Copyrights, Patents and Trademarks have been duly and
properly filed and issued, and all of such Copyrights, Patents
and Trademarks are valid and enforceable.
(vii) No Credit Party has made any assignment or
agreement in conflict with the security interest in the
Copyrights, Patents or Trademarks of each Credit Party
hereunder.
6. Covenants. Each Credit Party covenants that, so long as any of the
Secured Obligations remain outstanding or any Credit Document or Hedging
Agreement is in effect or any Loan or Letter of Credit shall remain outstanding,
and until all of the Commitments shall have been terminated, such Credit Party
shall:
(a) Other Liens. Defend the Collateral against the claims and
demands of all other parties claiming an interest therein, keep the
Collateral free from all Liens, except for Permitted Liens, and not
sell, exchange, transfer, assign, lease or otherwise dispose of the
Collateral or any interest therein, except as permitted under the
Credit Agreement.
(b) Preservation of Collateral. Keep the Collateral in good
order, condition and repair and not use the Collateral in violation of
the provisions of this Security Agreement or any other agreement
relating to the Collateral or any policy insuring the Collateral or any
applicable statute, law, bylaw, rule, regulation or ordinance.
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(c) Instruments/Chattel Paper. If any amount payable under or
in connection with any of the Collateral shall be or become evidenced
by any instrument or chattel paper, immediately deliver to the Agent
duly endorsed in a manner satisfactory to the Agent all instruments and
chattel paper representing or relating to the Collateral.
(d) Change in Location or Name. Not, without providing 30 days
prior written notice to the Agent and without filing such amendments to
any previously filed financing statements as the Agent may require, (i)
change the location of its chief executive office and chief place of
business (as well as its books and records) from the locations set
forth on Schedule 6.21(c) to the Credit Agreement, (ii) change the
location of its Collateral from the locations set forth for such Credit
Party on Schedule 6.21(b) to the Credit Agreement, or (iii) change its
name, be a party to a merger, consolidation or other change in
structure or use any tradename other than as set forth on Schedule 5(c)
attached hereto.
(e) Inspection. At all times allow the Agent and any Lender or
their representatives to visit and inspect the Collateral to the extent
set forth in Section 7.11 of the Credit Agreement.
(f) Perfection of Security Interest. Execute and deliver to
the Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of
existing documents, as the Agent may reasonably request) and do all
such other things as the Agent may reasonably deem necessary or
appropriate (i) to assure to the Agent the effectiveness and priority
of its security interests hereunder, including, but not limited to, (A)
such financing statements (including renewal statements) or amendments
thereof or supplements thereto or other instruments as the Agent may
from time to time reasonably request in order to perfect and maintain
the security interests granted hereunder in accordance with the UCC,
(B) with regard to Copyrights, a Notice of Grant of Security Interest
in Copyrights in the form of Schedule 5(f)(i) attached hereto, (C) with
regard to Patents, a Notice of Grant of Security Interest in Patents
for filing with the United States Patent and Trademark Office in the
form of Schedule 5(f)(ii) attached hereto and (D) with regard to
Trademarks, a Notice of Grant of Security Interest in Trademarks for
filing with the United States Patent and Trademark Office in the form
of Schedule 5(f)(iii) attached hereto and any other personal property
security legislation in the appropriate state(s) or province(s), (ii)
to consummate the transactions contemplated hereby and (iii) to
otherwise protect and assure the Agent of its rights and interests
hereunder. To that end, each Credit Party agrees that the Agent may
file one or more financing statements disclosing the Agent's security
interest in any or all of the Collateral of such Credit Party without,
to the extent permitted by law, such Credit Party's signature thereon,
and further each Credit Party also hereby irrevocably makes,
constitutes and appoints the Agent, its nominee or any other Person
whom the Agent may designate, as such Credit Party's attorney in fact
with full power and for the limited purpose to sign in the name of such
Credit Party any such financing statements, or amendments and
supplements to financing statements, renewal financing statements,
notices or any similar documents which in the Agent's reasonable
discretion would be necessary, appropriate or convenient in order to
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perfect and maintain perfection of the security interests granted
hereunder, such power, being coupled with an interest, being and
remaining irrevocable so long as the Credit Agreement is in effect or
any amounts payable thereunder or under any other Credit Document, any
Letter of Credit, any Hedging Agreement or any Loan shall remain
outstanding, and until all of the Commitments thereunder shall have
terminated. Each Credit Party hereby agrees that a carbon, photographic
or other reproduction of this Security Agreement or any such financing
statement is sufficient for filing as a financing statement by the
Agent without notice thereof to such Credit Party wherever the Agent
may in its sole discretion desire to file the same. In the event for
any reason the law of any jurisdiction other than Florida becomes or is
applicable to the Collateral of any Credit Party or any part thereof,
or to any of the Secured Obligations, such Credit Party agrees to
execute and deliver all such instruments and to do all such other
things as the Agent in its sole discretion reasonably deems necessary
or appropriate to preserve, protect and enforce the security interests
of the Agent under the law of such other jurisdiction (and, if a Credit
Party shall fail to do so promptly upon the request of the Agent, then
the Agent may execute any and all such requested documents on behalf of
such Credit Party pursuant to the power of attorney granted
hereinabove). If any Collateral is in the possession or control of a
Credit Party's agents and the Agent so requests, such Credit Party
agrees to notify such agents in writing of the Agent's security
interest therein and, upon the Agent's request, instruct them to hold
all such Collateral for the Lenders' account and subject to the Agent's
instructions. Each Credit Party agrees to xxxx its books and records to
reflect the security interest of the Agent in the Collateral.
(g) Treatment of Receivables. Not grant or extend the time for
payment of any receivable, or compromise or settle any receivable for
less than the full amount thereof, or release any Person or property,
in whole or in part, from payment thereof, or allow any credit or
discount thereon, other than as normal and customary in the ordinary
course of a Credit Party's business.
(h) Covenants Relating to Copyrights.
(i) Employ the Copyright for each Work with such
notice of copyright as may be required by law to secure
copyright protection.
(ii) Not do any act or knowingly omit to do any act
whereby any material Copyright may become invalidated and (A)
not do any act, or knowingly omit to do any act, whereby any
material Copyright may become injected into the public domain;
(B) notify the Agent immediately if it knows, or has reason to
know, that any material Copyright may become injected into the
public domain or of any adverse determination or development
(including, without limitation, the institution of, or any
such determination or development in, any court or tribunal in
the United States or any other country) regarding a Credit
Party's ownership of any such Copyright or its validity; (C)
take all necessary steps as it shall deem appropriate under
the circumstances, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each
registration of each material Copyright
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owned by a Credit Party including, without limitation, filing
of applications for renewal where necessary; and (D) promptly
notify the Agent of any material infringement of any material
Copyright of a Credit Party of which it becomes aware and take
such actions as it shall reasonably deem appropriate under the
circumstances to protect such Copyright, including, where
appropriate, the bringing of suit for infringement, seeking
injunctive relief and seeking to recover any and all damages
for such infringement.
(iii) Not make any assignment or agreement in
conflict with the security interest in the Copyrights of each
Credit Party hereunder.
(i) Covenants Relating to Patents and Trademarks.
(i) (A) Continue to use each Trademark on each and
every trademark class of goods applicable to its current line
as reflected in its current catalogs, brochures and price
lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in
the past the quality of products and services offered under
such Trademark, (C) employ such Trademark with the appropriate
notice of registration, (D) not adopt or use any xxxx which is
confusingly similar or a colorable imitation of such Trademark
unless the Agent, for the ratable benefit of the Lenders,
shall obtain a perfected security interest in such xxxx
pursuant to this Security Agreement, and (E) not (and not
permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark may become
invalidated.
(ii) Not do any act, or omit to do any act, whereby
any Patent may become abandoned or dedicated.
(iii) Notify the Agent immediately if it knows, or
has reason to know, that any application or registration
relating to any Patent or Trademark may become abandoned or
dedicated, or of any adverse determination or development
(including, without limitation, the institution of, or any
such determination or development in, any proceeding in the
United States Patent and Trademark Office or any court or
tribunal in any country) regarding a Credit Party's ownership
of any Patent or Trademark or its right to register the same
or to keep and maintain the same.
(iv) Whenever a Credit Party, either by itself or
through an agent, employee, licensee or designee, shall file
an application for the registration of any Patent or Trademark
with the United States Patent and Trademark Office or any
similar office or agency in any other country or any political
subdivision thereof, a Credit Party shall report such filing
to the Agent within five Business Days after the last day of
the fiscal quarter in which such filing occurs. Upon request
of the Agent, a Credit Party shall execute and deliver any and
all agreements, instruments, documents and papers as the Agent
may request to evidence the Agent's security
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interest in any Patent or Trademark and the goodwill and
general intangibles of a Credit Party relating thereto or
represented thereby.
(v) Take all reasonable and necessary steps,
including, without limitation, in any proceeding before the
United States Patent and Trademark Office, or any similar
office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each
registration of the Patents and Trademarks, including, without
limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(vi) Promptly notify the Agent after it learns that
any Patent or Trademark included in the Collateral is
infringed, misappropriated or diluted by a third party and
promptly xxx for infringement, misappropriation or dilution,
to seek injunctive relief where appropriate and to recover any
and all damages for such infringement, misappropriation or
dilution, or take such other actions as it shall reasonably
deem appropriate under the circumstances to protect such
Patent or Trademark.
(vii) Not make any assignment or agreement in
conflict with the security interest in the Patents or
Trademarks of each Credit Party hereunder.
(j) New Patents, Copyrights and Trademarks. Promptly provide
the Agent with (i) a listing of all applications, if any, for new
Copyrights, Patents or Trademarks (together with a listing of the
issuance of registrations or letters on present applications), which
new applications and issued registrations or letters shall be subject
to the terms and conditions hereunder, and (ii) (A) with respect to
Copyrights, a duly executed Notice of Security Interest in Copyrights,
(B) with respect to Patents, a duly executed Notice of Security
Interest in Patents, (C) with respect to Trademarks, a duly executed
Notice of Security Interest in Trademarks or (D) such other duly
executed documents as the Agent may request in a form acceptable to
counsel for the Agent and suitable for recording to evidence the
security interest in the Copyright, Patent or Trademark which is the
subject of such new application.
(k) Other Additional Collateral. If, subsequent to the Closing
Date, a Credit Party shall acquire any securities, instruments, chattel
paper or other personal property required to be delivered to the Agent
as Collateral hereunder, the Credit Party shall immediately notify the
Agent of same and take such action (including, but not limited to, the
actions set forth in Section 7.13 of the Credit Agreement as requested
by the Agent and at its own expense (subject to the limitations set
forth in Section 7.13 of the Credit Agreement) to ensure that the Agent
has a first priority perfected Lien in all personal property of the
Credit Parties whether now owned or hereafter acquired, subject only to
Permitted Liens.
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(l) Certificate of Title. Upon the request of the Agent at any
time (or promptly upon the occurrence of an Event of Default), each
Credit Party (i) will deliver to the Agent original certificates of
title for any vehicle owned by such Credit Party along wit the
appropriate instruments or certificates of transfer and delivery, duly
completed and executed to evidence to the Agent's lien and (ii) will
take such other action as the Agent may deem necessary to perfect the
security interest in the vehicles created by this Security Agreement.
7. Advances by Lenders. On failure of any Credit Party to perform any
of the covenants and agreements contained herein, the Agent may, at its sole
option and in its sole discretion, perform the same and in so doing may expend
such sums as the Agent may reasonably deem advisable in the performance thereof,
including, without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or potential Lien,
expenditures made in defending against any adverse claim and all other
expenditures which the Agent may make for the protection of the security hereof
or which may be compelled to make by operation of law. All such sums and amounts
so expended shall be repayable by the Credit Parties on a joint and several
basis (subject to Section 27 hereof) promptly upon notice thereof and demand
therefor, shall constitute additional Secured Obligations and shall bear
interest from the date said amounts are expended at the default rate provided in
Section 3.1(b) of the Credit Agreement for Revolving Loans that are Base Rate
Loans. No such performance of any covenant or agreement by the Agent on behalf
of any Credit Party, and no such advance or expenditure therefor, shall relieve
the Credit Parties of any default under the terms of this Security Agreement or
the other Credit Documents. The Agent may make any payment hereby authorized in
accordance with any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent the
Agent is aware that such payment is being contested in good faith by a Credit
Party in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
8. Events of Default.
The occurrence of an event which under the Credit Agreement would
constitute an Event of Default shall be an Event of Default hereunder (an "Event
of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default, the Agent shall have, in addition to the rights and remedies
provided herein, in the Credit Documents or by law (including, but not
limited to, the rights and remedies set forth in the UCC or equivalent
legislation of the jurisdiction applicable to the affected Collateral),
the rights and remedies of a secured party under the UCC to the extent
permitted by law (regardless of whether the UCC is the law of the
jurisdiction where the rights and remedies are asserted and regardless
of whether the UCC applies to the affected Collateral), and further,
the Agent may, with or without judicial process or the aid and
assistance of others, (i) enter on any premises on which any of the
Collateral may be located and, without resistance or interference by
the Credit Parties, take possession of the Collateral, (ii) dispose of
any
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Collateral on any such premises, (iii) require the Credit Parties to
assemble and make available to the Agent at the expense of the Credit
Parties any Collateral at any place and time designated by the Agent
which is reasonably convenient to both parties, (iv) remove any
Collateral from any such premises for the purpose of effecting sale or
other disposition thereof, and/or (v) without demand and without
advertisement, notice, hearing or process of law, all of which each of
the Credit Parties hereby waives to the fullest extent permitted by
law, at any place and time or times, sell and deliver any or all
Collateral held by or for it at public or private sale, by one or more
contracts, in one or more parcels, for cash, upon credit or otherwise,
at such prices and upon such terms as the Agent deems advisable, in its
sole discretion (subject to any and all mandatory legal requirements).
Each of the Credit Parties acknowledges that any private sale
referenced above may be at prices and on terms less favorable to the
seller than the prices and other terms which might have been obtained
at a public sale and, notwithstanding the foregoing, agrees that such
private sale shall be deemed to have been made in a commercially
reasonable manner. In addition to all other sums due the Agent and the
Lenders with respect to the Secured Obligations, the Credit Parties
shall pay the Agent and each of the Lenders all reasonable costs and
expenses incurred by the Agent or any such Lender, including, but not
limited to, reasonable attorneys' fees and court costs, in obtaining or
liquidating the Collateral, in enforcing payment of the Secured
Obligations, or in the prosecution or defense of any action or
proceeding by or against the Agent or the Lenders or the Credit Parties
concerning any matter arising out of or connected with this Security
Agreement, any Collateral or the Secured Obligations, including,
without limitation, any of the foregoing arising in, arising under or
related to a case concerning a Credit Party under the Bankruptcy Code.
To the extent the rights of notice cannot be legally waived hereunder,
each Credit Party agrees that any requirement of reasonable notice
shall be met if such notice is personally served on or mailed, postage
prepaid, to the Borrower in accordance with the notice provisions of
Section 11.1 of the Credit Agreement at least 10 days before the time
of sale or other event giving rise to the requirement of such notice.
The Agent and the Lenders shall not be obligated to make any sale or
other disposition of the Collateral regardless of notice having been
given. To the extent permitted by law, any Lender may be a purchaser at
any such sale. To the extent permitted by applicable law, each of the
Credit Parties hereby waives all of its rights of redemption with
respect to any such sale. Subject to the provisions of applicable law,
the Agent and the Lenders may postpone or cause the postponement of the
sale of all or any portion of the Collateral by announcement at the
time and place of such sale, and such sale may, without further notice,
to the extent permitted by law, be made at the time and place to which
the sale was postponed, or the Agent and the Lenders may further
postpone such sale by announcement made at such time and place.
(b) Remedies relating to Receivables. Upon the occurrence of
an Event of Default, whether or not the Agent has exercised any or all
of its rights and remedies hereunder, (i) each Credit Party will
promptly upon request of the Agent instruct all account debtors to
remit all payments in respect of the receivables to a mailing location
selected by the Agent and (ii) the Agent or its designee (A) may notify
any Credit Party's customers and account debtors that the receivables
of such Credit Party have been assigned to the Agent or of the Agent's
security interest therein, and (B) may (either in its own name or in
the name
12
of a Credit Party or both) demand, collect (including without
limitation by way of a lockbox arrangement), receive, take receipt for,
sell, xxx for, compound, settle, compromise and give acquittance for
any and all amounts due or to become due on receivables, and, in the
Agent's discretion, file any claim or take any other action or
proceeding to protect and realize upon the security interest of the
Agent in the receivables. Each Credit Party acknowledges and agrees
that the proceeds of its receivables remitted to or on behalf of the
Agent in accordance with the provisions hereof shall be solely for the
Agent's own convenience and that such Credit Party shall not have any
right, title or interest in such accounts or in any such other amounts
except as expressly provided herein. The Agent and the Lenders shall
have no liability or responsibility to any Credit Party for acceptance
of a check, draft or other order for payment of money bearing the
legend "payment in full" or words of similar import or any other
restrictive legend or endorsement or be responsible for determining the
correctness of any remittance. Each Credit Party hereby agrees to
indemnify the Agent and the Lenders from and against all liabilities,
damages, losses, actions, claims, judgments, costs, expenses, charges
and reasonable attorneys' fees suffered or incurred by the Agent or the
Lenders because of the maintenance of the foregoing arrangements except
as relating to or arising out of the gross negligence or willful
misconduct of the Agent or a Lender or its officers, employees or
agents. The foregoing indemnity shall survive the repayment of the
Secured Obligations and the termination of the Commitments.
(c) Access. In addition to the rights and remedies hereunder,
upon the occurrence of an Event of Default, the Agent shall have the
right to enter and remain upon the various premises of the Credit
Parties without cost or charge to the Agent, and use the same, together
with materials, supplies, books and records of the Credit Parties for
the purpose of collecting and liquidating the Collateral, or for
preparing for sale and conducting the sale of the Collateral, whether
by foreclosure, auction or otherwise. In addition, the Agent may remove
Collateral, or any part thereof, from such premises and/or any records
with respect thereto, in order to effectively collect or liquidate such
Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the Agent or
the Lenders to exercise any right, remedy or option under this Security
Agreement or any other Credit Document or as provided by law, or any
delay by the Agent or the Lenders in exercising the same, shall not
operate as a waiver of any such right, remedy or option. No waiver
hereunder shall be effective unless it is in writing, signed by the
party against whom such waiver is sought to be enforced and then only
to the extent specifically stated, which in the case of the Agent or
the Lenders shall only be granted as provided herein. To the extent
permitted by law, neither the Agent, the Lenders nor any party acting
as attorney for the Agent or the Lenders shall be liable hereunder for
any acts or omissions or for any error of judgment or mistake of fact
or law other than their gross negligence or willful misconduct
hereunder. The rights and remedies of the Agent and the Lenders under
this Security Agreement shall be cumulative and not exclusive of any
other right or remedy which the Agent or the Lenders may have.
13
(e) Retention of Collateral. The Agent may, after providing
the notices required by Section 9-505(2) of the UCC and otherwise
complying with the requirements of applicable law of the relevant
jurisdiction, to the extent the Agent is in possession of any of the
Collateral, retain the Collateral in satisfaction of the Secured
Obligations. Unless and until the Agent shall have provided such
notices, however, the Agent shall not be deemed to have retained any
Collateral in satisfaction of any Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to which
the Agent or the Lenders are legally entitled, (subject to Section 27
hereof) the Credit Parties shall be jointly and severally liable for
the deficiency, together with interest thereon at the default rate
specified in Section 3.1(b) of the Credit Agreement for Revolving Loans
that are Base Rate Loans, together with the costs of collection and the
reasonable fees of any attorneys employed by the Agent to collect such
deficiency. Any surplus remaining after the full payment and
satisfaction of the Secured Obligations shall be returned to the Credit
Parties or to whomsoever a court of competent jurisdiction shall
determine to be entitled thereto.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of attorney
contained herein, each Credit Party hereby designates and appoints the
Agent, on behalf of the Lenders, and each of its designees or agents,
as attorney-in-fact of such Credit Party, irrevocably and with power of
substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuance of an Event of
Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the
Collateral of such Credit Party, all as the Agent may
reasonably determine;
(ii) to commence and prosecute any actions
at any court for the purposes of collecting any Collateral of
such Credit Party and enforcing any other right in respect
thereof;
(iii) to defend, settle or compromise any
action brought and, in connection therewith, give such
discharge or release as the Agent may deem reasonably
appropriate;
(iv) to pay or discharge taxes, liens,
security interests, or other encumbrances levied or placed on
or threatened against the Collateral of such Credit Party;
(v) to direct any parties liable for any
payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to the
Agent or as the Agent shall direct;
14
(vi) to receive payment of and receipt for
any and all monies, claims, and other amounts due and to
become due at any time in respect of or arising out of any
Collateral of such Credit Party;
(vii) to sign and endorse any drafts,
assignments, verifications, notices and other documents
relating to the Collateral of such Credit Party;
(viii) to settle, compromise or adjust any
suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as the Agent
may deem reasonably appropriate;
(ix) receive, open and dispose of mail
addressed to a Credit Party and endorse checks, notes, drafts,
acceptances, money orders, bills of lading, warehouse receipts
or other instruments or documents evidencing payment, shipment
or storage of the goods giving rise to the Collateral of such
Credit Party on behalf of and in the name of such Credit
Party, or securing, or relating to such Collateral;
(x) sell, assign, transfer, make any
agreement in respect of, or otherwise deal with or exercise
rights in respect of, any Collateral or the goods or services
which have given rise thereto, as fully and completely as
though the Agent were the absolute owner thereof for all
purposes;
(xi) adjust and settle claims under any
insurance policy relating thereto;
(xii) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, security agreements, affidavits, notices
and other agreements, instruments and documents that the Agent
may determine necessary in order to perfect and maintain the
security interests and liens granted in this Security
Agreement and in order to fully consummate all of the
transactions contemplated therein;
(xiii) institute any foreclosure proceedings
that the Agent may deem appropriate; and
(xiv) do and perform all such other acts and
things as the Agent may reasonably deem to be necessary,
proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (A) for so long as any of the Secured Obligations remain
outstanding, any Credit Document or any Hedging Agreement is in effect
or any Loan or Letter of Credit shall remain outstanding and
15
(B) until all of the Commitments shall have been terminated. The Agent
shall be under no duty to exercise or withhold the exercise of any of
the rights, powers, privileges and options expressly or implicitly
granted to the Agent in this Security Agreement, and shall not be
liable for any failure to do so or any delay in doing so. The Agent
shall not be liable for any act or omission or for any error of
judgment or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions resulting
from its gross negligence or willful misconduct. This power of attorney
is conferred on the Agent solely to protect, preserve and realize upon
its security interest in the Collateral.
(b) Performance by the Agent of Obligations. If any Credit
Party fails to perform any agreement or obligation contained herein,
the Agent itself may perform, or cause performance of, such agreement
or obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Credit Parties on a joint and several
basis pursuant to Section 13 hereof.
(c) Assignment by the Agent. The Agent may from time to time
assign the Secured Obligations and any portion thereof and/or
Collateral and any portion thereof to a successor Agent, and the
assignee shall be entitled to all of the rights and remedies of the
Agent under this Security Agreement in relation thereto.
(d) The Agent's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Collateral while
being held by the Agent hereunder, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood
and agreed that the Credit Parties shall be responsible for
preservation of all rights in the Collateral, and the Agent shall be
relieved of all responsibility for the Collateral upon surrendering it
or tendering the surrender of it to the Credit Parties. The Agent shall
be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is
accorded treatment equal to that which the Agent accords its own
property, it being understood that the Agent shall not have
responsibility for taking any necessary steps to preserve rights
against any parties with respect to any of the Collateral.
11. Rights of Required Lenders. All rights of the Agent hereunder, if
not exercised by the Agent, may be exercised by the Required Lenders, and in
such event the Required Lenders shall be afforded the rights of the Agent
hereunder.
12. Application of Proceeds. Upon the occurrence of an Event of
Default, any payments in respect of the Secured Obligations and any proceeds of
the Collateral, when received by the Agent or any of the Lenders in cash or its
equivalent, will be applied in reduction of the Secured Obligations in the order
set forth in Section 9.3 of the Credit Agreement, and each Credit Party
irrevocably waives the right to direct the application of such payments and
proceeds and acknowledges and agrees that the Agent shall have the continuing
and exclusive right to apply and reapply any and all such payments and proceeds
in the Agent's sole discretion, notwithstanding any entry to the contrary upon
any of its books and records.
16
13. Costs of Counsel. If at any time hereafter, whether upon the
occurrence of an Event of Default or not, the Agent employs counsel to prepare
or consider amendments, waivers or consents with respect to this Security
Agreement, or to take action or make a response in or with respect to any legal
or arbitral proceeding relating to this Security Agreement or relating to the
Collateral, or to protect the Collateral or exercise any rights or remedies
under this Security Agreement or with respect to the Collateral, then the Credit
Parties agree to promptly pay upon demand any and all such reasonable documented
costs and expenses of the Agent or the Lenders, all of which costs and expenses
shall constitute Secured Obligations hereunder.
14. Continuing Agreement.
(a) This Security Agreement shall be a continuing agreement in
every respect and shall remain in full force and effect so long as any
of the Secured Obligations remain outstanding or any Credit Document or
Hedging Agreement is in effect or any Loan or Letter of Credit shall
remain outstanding, and until all of the Commitments thereunder shall
have terminated (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Credit Documents). Upon such payment and termination, this Security
Agreement shall be automatically terminated and the Agent, for the
benefit of the Lenders, shall, upon the request and at the expense of
the Credit Parties, forthwith release all of its liens and security
interests hereunder and shall execute and deliver all UCC termination
statements and/or other documents reasonably requested by the Credit
Parties evidencing such termination. Notwithstanding the foregoing all
releases and indemnities provided hereunder shall survive termination
of this Security Agreement.
(b) This Security Agreement shall continue to be effective or
be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Agent or any
Lender as a preference, fraudulent conveyance or otherwise under any
bankruptcy, insolvency or similar law, all as though such payment had
not been made; provided that in the event payment of all or any part of
the Secured Obligations is rescinded or must be restored or returned,
all reasonable costs and expenses (including without limitation any
reasonable legal fees and disbursements) incurred by the Agent or any
Lender in defending and enforcing such reinstatement shall be deemed to
be included as a part of the Secured Obligations.
15. Amendments; Waivers; Modifications. This Security Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except as set forth in Section 11.6 of the Credit Agreement.
16. Successors in Interest. This Security Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Credit Party, its successors and assigns and shall inure, together with the
rights and remedies of the Agent and the Lenders hereunder, to the benefit of
the Agent and the Lenders and their successors and assigns; provided, however,
that none of the Credit Parties may assign its rights or delegate its duties
hereunder without the prior written consent of each Lender or the Required
Lenders, as required by the Credit Agreement.
17
17. No Liability to the Agent or Lenders. To the fullest extent
permitted by law, each Credit Party hereby releases the Agent in its individual
capacity or its capacity as attorney-in-fact, each Lender in its individual
capacity or its capacity as attorney-in-fact, their respective successors and
assigns and any party acting as attorney for the Agent or the Lenders, from any
liability for any act or omission or for any error of judgment or mistake of
fact or law relating to this Security Agreement or the Collateral, except for
any liability arising from the gross negligence or willful misconduct of the
Agent, or such Lender, or its officers, employees or agents.
18. Notices. All notices required or permitted to be given under this
Security Agreement shall be in conformance with Section 11.1 of the Credit
Agreement.
19. Counterparts. This Security Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
20. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Security Agreement.
21. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. Any
legal action or proceeding with respect to this Security Agreement may
be brought in the courts of the State of Florida or of the United
States located in the State of Florida and, by execution and delivery
of this Security Agreement, each Credit Party hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each Credit Party
further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1 of
the Credit Agreement, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of the Agent to
serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any
other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Security Agreement brought in the courts referred to in subsection
(a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
18
22. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS SECURITY
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
23. Severability. If any provision of the Security Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
24. Entirety. This Security Agreement, the other Credit Documents and
the Hedging Agreements represent the entire agreement of the parties hereto and
thereto, and supersede all prior agreements and understandings, oral or written,
if any, including any commitment letters or correspondence relating to the
Credit Documents, the Hedging Agreements or the transactions contemplated herein
and therein.
25. Survival. All representations and warranties of the Credit Parties
hereunder shall survive the execution and delivery of this Security Agreement
and the other Credit Documents and Hedging Agreements, the delivery of the Notes
and the making of the Loans and the issuance of the Letters of Credit under the
Credit Agreement.
26. Other Security. To the extent that any of the Secured Obligations
are now or hereafter secured by property other than the Collateral (including,
without limitation, real property and securities owned by a Credit Party), or by
a guarantee, endorsement or property of any other Person, then the Agent and the
Lenders shall have the right to proceed against such other property, guarantee
or endorsement upon the occurrence of any Event of Default, and the Agent and
the Lenders shall have the right, in their sole discretion, to determine which
rights, security, liens, security interests or remedies the Agent and the
Lenders shall at any time pursue, relinquish, subordinate, modify or take with
respect thereto, without in any way modifying or affecting any of them or any of
the Agent's and the Lenders' rights or the Secured Obligations under this
Security Agreement or under any other of the Credit Documents or under any
Hedging Agreement.
27. Joint and Several Obligations of Credit Parties.
(a) Subject to clause (c) of this Section 27, each of the
Credit Parties is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the
Lenders under the Credit Agreement, for the mutual benefit, directly
and indirectly, of each of the Credit Parties and in consideration of
the undertakings of each of the Credit Parties to accept joint and
several liability for the obligations of each of them.
(b) Subject to clause (c) of this Section 27, each of the
Credit Parties jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as
19
a co-debtor, joint and several liability with the other Credit Parties
with respect to the payment and performance of all of the Secured
Obligations arising under this Security Agreement, the other Credit
Documents and the Hedging Agreements, it being the intention of the
parties hereto that all the Secured Obligations shall be the joint and
several obligations of each of the Credit Parties without preferences
or distinction among them.
(c) Notwithstanding any provision to the contrary contained
herein or in any other of the Credit Documents, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of
any applicable state, provincial or federal law relating to fraudulent
conveyances or transfers) then the obligations of each Guarantor
hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
[remainder of page intentionally left blank]
20
Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: INTEGRATED LIVING COMMUNITIES
HOLDING, INC., a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
GUARANTORS: INTEGRATED LIVING COMMUNITIES, INC.,
a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES OF
VIRGINIA BEACH, INC.,
a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES OF
REDGATE, INC., a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES OF
PORTSMOUTH, INC., a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
[Signatures Continue]
21
INTEGRATED LIVING COMMUNITIES OF
GLOUCESTER, INC., a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES OF
SARASOTA, INC., a Florida corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES OF
WEST PALM BEACH, INC., a
Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED LIVING COMMUNITIES AT
TERRACE GARDENS, INC.,
a Delaware corporation
By:____________________________
Name: ________________________
Title: ________________________
INTEGRATED MANAGEMENT-
XXXXXXXXXX POINTE, INC.,
a Delaware corporation
By:____________________________
Name: ________________________
Title:________________________
22
Accepted and agreed as of the date first above written.
NATIONSBANK, N.A. (SOUTH), as Agent
By:___________________________
Name:_________________________
Title:__________________________
23
SCHEDULE 1(b)
to
Security Agreement
dated as of April 9, 1997
in favor of NationsBank, N.A. (South),
as Agent
INTELLECTUAL PROPERTY
24
SCHEDULE 5(c)
to
Security Agreement
dated as of April 9, 1997
in favor of NationsBank, N.A. (South),
as Agent
MERGERS, CONSOLIDATIONS, CHANGE IN STRUCTURE
OR USE OF TRADENAMES
25
SCHEDULE 5(f)(i)
to
Security Agreement
dated as of April 9, 1997
in favor of NationsBank, N.A. (South),
as Agent
NOTICE OF GRANT OF SECURITY INTEREST
IN COPYRIGHTS
United States Copyright Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
April ___, 1997 (as the same may be amended, modified, extended or restated from
time to time, the "Security Agreement") by and among the Credit Parties party
thereto (each a "Credit Party" and collectively, the "Credit Parties") and
NationsBank, N.A. (South), as Agent (the "Agent") for the lenders referenced
therein (the "Lenders"), the undersigned Credit Party has granted a continuing
security interest in and continuing lien upon, the copyrights and copyright
applications shown below to the Agent for the ratable benefit of the Lenders:
COPYRIGHTS
Date of
Copyright No. Description of Copyright Copyright
Copyright Applications
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
26
The Credit Parties and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing copyrights and
copyright applications (i) may only be terminated in accordance with the terms
of the Security Agreement and (ii) is not to be construed as an assignment of
any copyright or copyright application.
Very truly yours,
----------------------------------
[Credit Party]
By:______________________________
Name:____________________________
Title:___________________________
Acknowledged and Accepted:
NATIONSBANK, N.A. (South), as Agent
By:_____________________________
Name:___________________________
Title:__________________________
27
STATE OF ___________________
COUNTY OF __________________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ Secretary of
_____________________________, a ________________________ corporation, and that
by authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its ___________ President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
28
STATE OF ________________
COUNTY OF _______________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ of NationsBank, N.A. (South), a national
banking association, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its ___________
President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
29
SCHEDULE 5(f)(ii)
to
Security Agreement
dated as of April 9, 1997
in favor of NationsBank, N.A. (South),
as Agent
NOTICE OF GRANT OF SECURITY INTEREST
IN PATENTS
United States Patent and Trademark Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
April ___, 1997 (the "Security Agreement") by and among the Credit Parties party
thereto (each a "Credit Party" and collectively, the "Credit Parties") and
NationsBank, N.A. (South), as Agent (the "Agent") for the lenders referenced
therein (the "Lenders"), the undersigned Credit Party has granted a continuing
security interest in and continuing lien upon, the patents and patent
applications shown below to the Agent for the ratable benefit of the Lenders:
PATENTS
Description of Patent Date of
Patent No. Item Patent
Patent Applications
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
30
The Credit Parties and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing patents and
patent applications (i) may only be terminated in accordance with the terms of
the Security Agreement and (ii) is not to be construed as an assignment of any
patent or patent application.
Very truly yours,
----------------------------------
[Credit Party]
By:_____________________________
Name:___________________________
Title:__________________________
Acknowledged and Accepted:
NATIONSBANK, N.A. (South), as Agent
By:_____________________________
Name:___________________________
Title:__________________________
31
STATE OF __________________
COUNTY OF _________________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ Secretary of
_____________________________, a ________________________ corporation, and that
by authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its ___________ President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
32
STATE OF _________________
COUNTY OF ________________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ of NationsBank, N.A. (South), a national
banking association, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its ___________
President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
33
SCHEDULE 5(f)(iii)
to
Security Agreement
dated as of April 9, 1997
in favor of NationsBank, N.A. (South),
as Agent
NOTICE OF GRANT OF SECURITY INTEREST
IN TRADEMARKS
United States Patent and Trademark Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
April ___, 1997 (the "Security Agreement") by and among the Credit Parties party
thereto (each a "Credit Party" and collectively, the "Credit Parties") and
NationsBank, N.A. (South), as Agent (the "Agent") for the lenders referenced
therein (the "Lenders"), the undersigned Credit Party has granted a continuing
security interest in and continuing lien upon, the trademarks and trademark
applications shown below to the Agent for the ratable benefit of the Lenders:
TRADEMARKS
Description of Trademark Date of
Trademark No. Item Trademark
Trademark Applications
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
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The Credit Parties and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing trademarks and
trademark applications (i) may only be terminated in accordance with the terms
of the Security Agreement and (ii) is not to be construed as an assignment of
any trademark or trademark application.
Very truly yours,
----------------------------------
[Credit Party]
By:_____________________________
Name:___________________________
Title:__________________________
Acknowledged and Accepted:
NATIONSBANK, N.A. (South), as Agent
By:________________________
Name:______________________
Title:_____________________
35
STATE OF ___________________
COUNTY OF _____________________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ Secretary of
_____________________________, a ________________________ corporation, and that
by authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its ___________ President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
36
STATE OF __________________
COUNTY OF _____________________
I, ______________________, a Notary Public of the County and State
aforesaid, certify that _____________, personally came before me this day and
acknowledged that (s)he is ___________ of NationsBank, N.A. (South), a national
banking association, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its ___________
President.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
-----------------------------------
Notary Public
My Commission Expires:
-----------------------------------
(Notary Seal)
37
