EXHIBIT 10.20
COLLATERAL AGENCY AND SECURITY AGREEMENT
THIS COLLATERAL AGENCY AND SECURITY AGREEMENT, dated as of April 23,
2003 (this "Agreement"), among ELCOM INTERNATIONAL, INC., a Delaware corporation
(the "Company"), Xxxxxx Xxxxxxxx, as Collateral Agent ("Collateral Agent") and
the holders of the Debentures which are signatories hereto (the "Secured
Parties");
WITNESSETH:
WHEREAS, the Company shall from time to time issue 10% Convertible
Senior Debentures (the "Debentures") in a 2003 private placement (the
"Offering") pursuant to a Subscription Agreement between the Company and each
Secured Party, a copy of which agreement is available for inspection at the
Company's principal office at 00 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000;
WHEREAS, the Secured Parties have conditioned their purchase of the
Debentures upon the Company's granting a security interest in favor of the
Secured Parties as contemplated hereby;
WHEREAS, the Secured Parties desire to appoint a collateral agent
for the purposes of facilitating the perfection and enforcement of the security
interests created hereby;
In consideration of the mutual promises hereof, and other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Debentures.
As used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and the plural
forms of the terms defined).
"Agreement" means this Agreement (including without limitation each
amendment, if any) unless the context otherwise clearly requires.
"Collateral" means all of the personal property and intellectual
property of the Company, wherever located, and now owned or hereafter acquired,
including without limitation: Accounts, Chattel Paper, Inventory, Equipment,
Instruments, Investment Property, Documents, Deposit Accounts, Letter-of-Credit
Rights, General Intangibles (including Payment Intangibles), Supporting
Obligations; and to the extent not listed above as original collateral, Proceeds
and Products of the foregoing (each capitalized term used herein which is
defined in Article 8 or Revised Article 9 of the UCC has the meaning ascribed to
such term by the UCC).
"Debentures" means the 10% Convertible Senior Debentures issued by
the Company from time to time in the Offering, as the same may be amended or
supplemented from time to time.
"Event of Default" means the occurrence of any event which
constitutes an Event of Default under the Debentures.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Obligations" shall mean all financial and other obligations of the
Company to the holders of the Debentures pursuant to the Debentures and all
Related Expenses.
"Permitted Liens" means (a) Liens for taxes not yet due or which are
being actively contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with generally accepted
accounting principles, (b) other statutory Liens incidental to the conduct of
the Company's business or the ownership of the Collateral or other assets which
do not in the aggregate materially detract from the value of the Collateral or
materially impair the use thereof in the operation of the Company's business,
(c) any Lien created hereunder, and (d) purchase money Liens on fixed assets
provided that such Lien only attaches to the property being acquired and secures
only that amount necessary for the acquisition of such property.
"Ratable Portion" means, with respect to any Secured Party, the
quotient (expressed as a percentage) obtained at any time by dividing (x) the
principal amount of such Secured Party's Debenture(s) by (y) the sum of the
aggregate amount of all outstanding Debentures.
"Related Expenses" means any and all costs, liabilities, and
expenses (including without limitation, losses, damages, penalties, claims,
actions, reasonable attorney's fees and legal expenses, judgments, suits, and
disbursements) incurred by, imposed upon, or asserted against, the Collateral
Agent or any Secured Party in connection with any attempt by the Collateral
Agent or any Secured Party: (a) to preserve, perfect, or enforce any security
interest evidenced by this Agreement, (b) to obtain payment, performance, and
observance of any and all of the Obligations to the extent specified herein or
in the Debentures, (c) to maintain, insure, collect, preserve, repossess, and
dispose of any of the Collateral, or (d) incidental or related to (a) through
(c) above including, without limitation, interest thereupon from the date
incurred, imposed, or asserted until paid at the rate payable with respect to
the Debentures, but in no event greater than the highest rate permitted by law.
"Required Secured Parties" means Secured Parties holding at least
fifty-one percent (51%) of the aggregate amount of the Obligations outstanding
under the Debentures at the time of determination.
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"UCC" means the Uniform Commercial Code as in effect from time to
time in the Commonwealth of Massachusetts.
2. Security. The Company grants a security interest in the
Collateral to the Collateral Agent, for the benefit of the Purchasers, to secure
the payment or performance of the Obligations.
3. Representations and Warranties: In addition to the
representations and warranties set forth in the Debenture, the Company
represents and warrants to Collateral Agent and the Secured Parties as follows:
3.01 Company's chief executive office is located at 00 Xxxxxx Xxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000. All of Company's records relating to Accounts are
located at its aforesaid chief executive office.
3.02 Except in the case of Inventory being shipped to or from
Company in the ordinary course of business, all Collateral consisting of Goods
is located at those locations set forth on Schedule A attached hereto. Except as
set forth on Schedule A hereto, such premises are owned by the Company.
3.03 The Company's state of incorporation is the State of Delaware,
and the Company's exact legal name is as set forth in the first paragraph of
this Agreement.
3.04 The Company has rights in or the power to transfer the
Collateral, and its title to the Collateral is free of all adverse Liens (other
than Permitted Liens) and restrictions on transfer or pledge, except as created
by this Security Agreement and except as permitted by the Debentures.
4. Perfection; Possession; Control. The Company authorizes the
Collateral Agent to file one or more financing statements (the "Financing
Statements") describing the Collateral. The Company shall have possession of the
Collateral, except where expressly otherwise provided in this Security Agreement
or where the Collateral Agent chooses to perfect its security interest by
possession in addition to the filing of the Financing Statements. Where
Collateral is in the possession of a third party, the Company will, upon the
Collateral Agent's request, join with the Collateral Agent in notifying the
third party of the Collateral Agent's security interest and obtaining an
acknowledgment from the third party that such third party is holding the
Collateral for the benefit of the Collateral Agent. The Company will cooperate
with the Collateral Agent in obtaining control with respect to the Collateral
consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights and
Electronic Chattel Paper.
5. Further Assurances. The Company will make and do all such acts
and things as the Collateral Agent may from time to time reasonably require for
the better evidencing, validation, perfection or other protection of its
security interest or to enable it to enforce its rights and remedies hereunder
with respect to any Collateral, all at Company's expense.
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6. Collateral Agent May Perform. Unless otherwise provided herein,
if Company fails to perform any agreement contained herein, upon ten (10) days'
prior notice, Collateral Agent may, and upon the request of the Required Secured
Parties shall, itself perform or cause performance, of such agreement, and the
expenses of Collateral Agent incurred in connection therewith shall be payable
by Company under Section 15 hereof. However, the powers conferred on Collateral
Agent 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, Collateral 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.
7. Schedules. Upon request by Collateral Agent, Company will
furnish to Collateral Agent as of the date hereof and from time to time
hereafter statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
Collateral Agent may reasonably request, all in reasonable detail.
8. Change of Name; State of Incorporation; Corporate Existence.
Without the Collateral Agent's prior written consent, the Company will not (a)
change the state of its incorporation, (b) change its corporate name without
providing Collateral Agent with 30 days' prior written notice, or (c) in one
transaction or a series of transactions, merge into or consolidate with any
other entity, or sell all or substantially all of its assets.
9. Transfer of Collateral; Liens; Locations. Without Collateral
Agent's prior written consent, Company will not (a) sell or otherwise transfer
the Collateral or any part thereof (other than (i) Inventory in the ordinary
course of business and (ii) Equipment which shall, in the good faith judgment of
the Company, have become obsolete or no longer useful in the business of the
Company) outside the ordinary course of business, (b) permit a Lien on the
Collateral except for Permitted Liens, or (c) move or permit anyone else to move
material amounts of the Collateral or any part thereof from the location or
locations specified herein in Schedule A, provided, however, that Collateral may
be moved to different locations without the Collateral Agent's prior written
consent if (i) the Collateral Agent is notified of the new location within 10
days after such moving, and (ii) the Collateral Agent's Lien on such Collateral
continues to be a perfected Lien in such new location.
10. Insurance. The Company shall, at its own expense, insure the
Collateral at all times against such risks as is customary for businesses of the
type owned by the Company and will provide the Collateral Agent with evidence
thereof as often as the Collateral Agent shall reasonably request. Each policy
of insurance shall (a) name the Collateral Agent as a loss payee as its interest
shall appear and (b) provide for not less than thirty (30) days' prior written
notice to the Collateral Agent of the cancellation of or any material reduction
in coverage provided by such policy. If the Company fails to maintain
satisfactory insurance, the Collateral Agent as the Company's agent may, but
shall not be required to, immediately obtain such insurance or obtain insurance
covering only the Collateral Agent's interest; if the Collateral Agent elects to
do either, the Company shall repay upon demand all amounts the Collateral Agent
so expends, and, until such repayment, such amounts shall be part of the
Obligations hereunder.
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11. Remedies. Upon the occurrence and continuation of an Event of
Default, in addition to the rights and remedies provided for elsewhere in this
Agreement, and under the UCC, the Collateral Agent may, and upon the request of
the Required Secured Parties shall, exercise the following rights and remedies:
11.01 Possession of Collateral. The Collateral Agent may, and upon
the request of the Required Secured Parties shall, take immediate possession of
the Collateral and all Proceeds relating to such Collateral and: (a) exercise
any and all rights and remedies of the Company in respect of the Collateral, (b)
require the Company, at the Company's expense, to assemble the Collateral and
make it available to the Collateral Agent at the Company's Norwood,
Massachusetts-area facilities, (c) enter any of the premises of the Company or
wherever any Collateral shall be located and to keep and store the same on such
premises until sold. If the premises on which the Collateral is located is owned
or leased by the Company, then the Company shall not charge the Collateral Agent
for storage of such Collateral on such premises, occupy any premises owned or
leased by Company where the Collateral or any part thereof is assembled for a
reasonable period in order to effectuate its rights and remedies hereunder or
under law, without obligation to Company in respect of such occupation and
Collateral Agent may exclude Company, its agents, employees and servants
therefrom, and having and holding the same may use, operate, manage and conduct
the business of Company and do any acts which it deems necessary or desirable to
preserve the value and marketability of the Collateral, or any part thereof or
interest therein, all without prior notice to Company, except as specifically
provided below with respect to a formal public or private sale (including,
without limitation, the right to fill and ship in accordance with then existing
purchase orders, the right to solicit orders; and to do all such things and acts
as Collateral Agent deems reasonably necessary or desirable in order to maximize
the value of the Collateral) and upon every such entry, Collateral Agent, at the
expense of Company, shall have the right to manage and operate and carry on the
business thereof and exercise all rights and powers of Company with respect
thereto in the name of Company or otherwise as is reasonably deemed appropriate,
after deducting the expenses of conducting the business thereof and of all
maintenance, repairs, replacements, alterations, additions, betterments and
improvements and amounts necessary to pay for taxes, assessments, insurance and
prior insurance or other proper charges upon the Collateral, Company's business
or any part thereof, as well as just and reasonable compensation for its
services and for all attorneys, counsel, agents, clerks, servants and other
employees by it engaged and employed, shall apply the moneys arising as
aforesaid pursuant to the provisions of this Agreement (except as required by
applicable law, nothing contained herein shall be construed to impose upon
Collateral Agent any obligation to preserve or protect the Collateral or
Company's business following the occurrence of an Event of Default). Collateral
Agent may demand that Company deliver to Collateral Agent all of Company's books
and records in respect of the Collateral.
11.02 Notification of Account Debtors. Company irrevocably
authorizes and directs each account debtor to honor any demand by Collateral
Agent that all payments in the respect of the Accounts thereafter be paid
directly to Collateral Agent.
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11.03 Enforcement of Accounts. Collateral Agent may, and upon the
request of the Required Secured Parties shall, enforce payment of the Accounts
by suit or otherwise, but Collateral Agent shall have no duty to institute any
suit or to take any other action to enforce the Accounts (or any security
therefor) or, having started any such suit or attempt, thereafter to continue
the same. In each case Collateral Agent may proceed with counsel of Collateral
Agent's choosing and Company agrees to reimburse Collateral Agent for Collateral
Agent's out-of-pocket costs and expenses including, without limitation,
attorney's fees, court costs and costs of sale.
11.04 Foreclosure of Liens. The Collateral Agent may, and upon the
request of the Required Secured Parties shall, foreclose the Liens created under
this Agreement or under any other agreement relating to the Collateral.
11.05 Disposition of Collateral. The Collateral Agent may, and upon
the request of the Required Secured Parties shall, sell or to otherwise dispose
of all or any Collateral in its then condition, or after any further
manufacturing or processing thereof, at public or private sale or sales,
wholesale dispositions, or sales pursuant to one or more contracts, with such
notice as may be required by law, in lots or in bulk, for cash or on credit, all
as the Collateral Agent, in its discretion, may deem advisable in accordance
with applicable laws. The Collateral Agent shall have the right to conduct such
sales on the Company's premises, without charge therefor, and such sales may be
adjourned from time to time in accordance with applicable law without further
requirement of notice to the Company. Each Secured Party shall have the right to
bid or credit bid any such sale on its own behalf.
11.06 Application of Collateral. The Collateral Agent, with or
without proceeding with sale or foreclosure or demanding payment of the
Obligations, shall have the right, without notice, at any time, to appropriate
and apply to any Obligations any and all Collateral in the possession of the
Collateral Agent or the Secured Parties.
12. The Collateral Agent.
12.01 Appointment as Collateral Agent. Each Secured Party
irrevocably appoints the Collateral Agent to act as Collateral Agent under this
Agreement and any other agreements affecting the Collateral for the benefit of
such Secured Party, with full authority to take such actions, and to exercise
such powers, on behalf of the Secured Parties in respect of this Agreement and
the other agreements with respect to the Collateral as are herein and therein
respectively delegated to the Collateral Agent or as are reasonably incidental
to those delegated powers. The Collateral Agent in such capacity shall be deemed
to be an independent contractor of the Secured Parties. Each Secured Party
hereby expressly agrees that, unless requested by the Collateral Agent upon the
concurrence of the Required Secured Parties, none of the Secured Parties will
take or cause to be taken, in respect of the Obligations or the Collateral, any
action or remedy that is independent from the actions or remedies taken or to be
taken (or the decision not to take any action or remedy) by the Collateral
Agent.
12.02 Nature of Appointment. The Collateral Agent shall have no
fiduciary relationship with any Secured Party by reason of this Agreement or any
other agreement relating
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to the Collateral. The Collateral Agent shall not have any duty or
responsibility whatsoever to any Secured Party except those expressly set forth
in this Agreement. Without limiting the generality of the foregoing, each
Secured Party acknowledges that the Collateral Agent is acting as such solely as
a convenience to the Secured Parties and not as a manager of the Obligations
evidenced by the Debentures. This Section 12 does not confer any rights upon the
Company or anyone else (except the Secured Parties), whether as a third party
beneficiary or otherwise.
12.03 Collateral Agent as a Secured Party; Other Transactions. The
Collateral Agent's rights as a Secured Party under this Agreement shall not be
affected by its serving as the Collateral Agent. The Collateral Agent and its
Affiliates may generally transact any Secured Party, financial, trust, advisory
or other business with the Company without notice to the Secured Parties,
without accounting to the Secured Parties, and without prejudice to the
Collateral Agent's rights as a Secured Party under this Agreement except as may
be expressly required under this Agreement.
12.04 Instructions from Secured Parties. The Collateral Agent shall
not be required to exercise any discretion or take any action as to matters not
expressly provided for by this Agreement (including, without limitation,
collection and enforcement actions in respect of the Collateral or this
Agreement) except that the Collateral Agent shall take such action (or omit to
take such action) as may be reasonably requested of it in writing by the
Required Secured Parties with instructions and which actions and omissions shall
be binding upon all of the Secured Parties; provided, however, that the
Collateral Agent shall not be required to act (or omit any act) if, in its
judgment, any such action or omission might expose the Collateral Agent to
personal liability or might be contrary to this Agreement or any applicable Law.
12.05 Secured Party's Diligence. Each Secured Party: (a) represents
and warrants that it has made its own decision to enter into this Agreement and
the Debentures and (b) agrees that it will make its own decision as to taking or
not taking future actions in respect of this Agreement and the Debentures; in
each case without reliance on the Collateral Agent or any other Secured Party
and on the basis of its independent credit analysis and its independent
examination of and inquiry into such documents and other matters as it deems
relevant and material.
12.06 No Implied Representations. The Collateral Agent shall not be
liable for any representation, warranty, agreement or obligation of any kind of
any other party to this Agreement or anyone else, whether made or implied by the
Company in this Agreement, the Debentures or any other agreement or documents or
by a Secured Party in any notice or other communication or by anyone else or
otherwise.
12.07 Sub-Collateral Agents. The Collateral Agent may employ agents
and shall not be liable (except as to money or property received by it or its
agents) for any negligence or willful misconduct of any such agent selected by
it with reasonable care.
12.08 Collateral Agent's Diligence. The Collateral Agent shall not
be required: (a) to keep itself informed as to anyone's compliance with any
provision of this Agreement, the Debentures or any other agreement, (b) to make
any inquiry into the properties, financial
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condition or operation of the Company or any other matter relating to this
Agreement, the Debentures or any other agreement, (c) to report to any Secured
Party any information that the Collateral Agent or any of its Affiliates may
have or acquire in respect of the properties, business or financial condition of
the Company or any other matter relating to this Agreement, the Debentures or
any other agreement or (d) to inquire into the validity, effectiveness or
genuineness of this Agreement, the Debentures or any other agreement.
12.09 Notice of Default. The Collateral Agent shall not be deemed to
have knowledge of any Event of Default unless and until it shall have received a
written notice describing it and citing the relevant provision of this Agreement
or the Debenture. The Collateral Agent shall give each Secured Party reasonably
prompt notice of any such written notice except, of course, to any Secured Party
that shall have given the written notice.
12.10 Collateral Agent's Liability. Neither the Collateral Agent nor
any of its directors, officers, employees, attorneys, and other agents shall be
liable for any action or omission on their respective parts except for gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Collateral Agent: (a) may consult with legal counsel, independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice or such counsel, accountants or experts which have been selected by
the Collateral Agent with reasonable care; (b) makes no warranty or
representation to any Secured Party and shall not be responsible to any Secured
Party for any statements, warranties or representations made in or in connection
with this Agreement, the Debentures or any agreement, including, without
limitation, the truth of the statements made in any certificate delivered by the
Company in this Agreement, the Debentures, any Offering document or other
agreement related to any of the foregoing, the Collateral Agent being entitled
for the purposes of determining fulfillment of the conditions set forth therein
to rely conclusively upon any certificate signed by the Company; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or the Debentures or
to inspect the property (including the books and records) of the Company; (e)
shall not be responsible to any Secured Party for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
or collateral covered by any agreement, the Debentures or any other agreement or
document and (f) shall incur no liability under or in respect of this Agreement,
the Debentures or any other agreement or document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopy)
believed by it in good faith to be genuine and correct and signed or sent by the
proper party or parties.
Neither the Collateral Agent nor any of its directors, officers,
employees or sub-Collateral agents shall have any responsibility to the Company
on account of the failure of or delay in performance or breach by any Secured
Party of any of its obligations hereunder or to any Secured Party on account of
the failure of or delay in performance or breach by any other Secured Party or
the Company of any of their respective obligations hereunder, under the
Debentures or under any other agreement or in connection herewith or therewith.
The Secured Parties each hereby acknowledge that the Collateral Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Secured Parties.
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12.11 Collateral Agent's Indemnity. The Secured Parties shall
indemnify the Collateral Agent, in its capacity as Collateral Agent, (to the
extent the Collateral Agent is not reimbursed by the Company) from and against:
(a) any loss or liability (other than any caused by the Collateral Agent's gross
negligence or willful misconduct) incurred by the Collateral Agent as such in
respect of this Agreement (as the Collateral Agent), (b) the fees charged to the
Company (to the extent not paid by the Company) by the Collateral Agent for
performing its obligations hereunder, (c) any Related Expenses and (d) any
out-of-pocket expenses incurred in defending itself or otherwise related to this
Agreement or the Collateral (other than any caused by the Collateral Agent's
gross negligence or willful misconduct) including, without limitation,
reasonable fees and disbursements of legal counsel of its own selection
(including, without limitation, the reasonable interdepartmental charges of its
salaried attorneys) in the defense of any claim against it or in the prosecution
of its rights and remedies as the Collateral Agent (other than the loss,
liability or costs incurred by the Collateral Agent in the defense of any claim
against it by the Secured Parties arising in connection with its actions in its
capacity as Collateral Agent); provided, however, that each Secured Party shall
be liable for only its Ratable Portion of the whole loss or liability.
12.12 Resignation or Removal of Collateral Agent. The Collateral
Agent may resign as Collateral Agent effective ten (10) Business Days after
giving notice thereof to the Secured Parties for any reason, and the Collateral
Agent may be removed at the unanimous election of all of the Secured Parties
(other than the Secured Party that is also the Collateral Agent) for any reason.
If the Collateral Agent shall resign or be removed as Collateral Agent under
this Agreement, the Required Secured Parties shall appoint from among the
Secured Parties (other than the Secured Party that has resigned or was removed)
a successor Collateral Agent for the Secured Parties, which successor Collateral
Agent shall be reasonably acceptable to the Company. If, however, in the case of
resignation by the Collateral Agent, no successor Collateral Agent shall have
been appointed by the time such resignation becomes effective, then the retiring
Collateral Agent may, on behalf of the Secured Parties, appoint a successor
Collateral Agent from among the remaining Secured Parties. Upon appointment
(whether effected by the Required Secured Parties or the retiring Collateral
Agent on behalf of the Secured Parties), the successor Collateral Agent shall
succeed to the rights, powers and duties of the Collateral Agent, and the term
"Collateral Agent" shall mean such successor Collateral Agent, effective upon
its appointment, and the former Collateral Agent's rights, powers and duties as
Collateral Agent shall be terminated, without any other or further act or deed
on the part of such former Collateral Agent or any of the parties to this
Agreement or any holder of the Debentures. After any retiring Collateral Agent's
resignation or removal hereunder as Collateral Agent, the provisions of Section
12.11 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Collateral Agent under this Agreement.
13. Pro-Rata Treatment. Any and all (i) payments made by the Company
upon any of the Debentures (whether as principal or interest), (ii) collections
with respect to the enforcement of the obligations of the Company hereunder and
the enforcement of the Liens created hereby and (iii) payments made by the
Company to the Collateral Agent pursuant hereto, shall be shared with each of
the Secured Parties in accordance with its Ratable Portion. Each Secured Party
that receives any payment amount in excess of its respective Ratable Portion,
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agrees that it shall hold it in trust for the benefit of, and shall pay it to,
any Secured Party receiving less than its respective Ratable Portion.
14. Collateral Agent as Attorney-In-Fact. Collateral Agent is hereby
irrevocably appointed Company's attorney-in-fact, with full authority in the
place and stead of Company and in the name of Company, upon the occurrence and
during the continuance of an Event of Default (unless otherwise specified), to
take any action and to execute any instrument which Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, to the
extent permitted by applicable law, to take any and all appropriate action and
to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement.
15. Indemnification; Expenses. Company agrees to indemnify
Collateral Agent and each of the Secured Parties from and against any and all
claims, losses and liabilities growing out of or resulting from its breach or
violation of this Agreement, the Debentures and any other agreement or document
executed in connection therewith (including, without limitation, enforcement of
this Agreement), except claims, losses or liabilities resulting from Collateral
Agent's or any Secured Party's gross negligence or willful misconduct. Company
will upon demand pay to Collateral Agent the amount of any and all reasonable
expenses, including all attorneys' fees, expenses and fees of any experts and
agents, which Collateral Agent or any Secured Party may incur consistent with
the terms of this Agreement and the Debentures in connection with (a) the
administration of this Agreement, (b) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any of
the Collateral, as provided for herein, (c) the exercise or enforcement of any
of the rights of Collateral Agent under this Agreement, (d) the failure by
Company to perform or observe any of the provisions hereof or (e) any
environmental or other laws relating to Company, the Collateral, the Offering or
the transactions contemplated hereby.
16. Security Interest Absolute. All rights of Collateral Agent and
the security interests hereunder, and all obligations of Company hereunder,
shall be absolute and unconditional, irrespective of (a) any lack of validity or
enforceability of the Debenture or any other agreement or instrument relating
thereto; (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations or any other amendment or waiver of
or any consent to any departure from this Agreement or the Debentures; (c) any
exchange, release or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to departure from any guaranty, for all or any
of the obligations; or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Company or a third
party grantor of a security interest other than the performance and payment of
the Obligations in full.
17. Notice. Any notices and other communications provided for
hereunder shall be in writing (including telecopied) and mailed by first class
mail (return receipt requested), telecopied or hand delivered, if to the
Company, at its address at 00 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Chairman and Chief Executive Officer, if to any Secured Party, at the
address set forth below its name on the signature pages hereof; and if to the
Collateral Agent, at his address at __________________________, Attention:
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_________________________, or as to each party, at such other address as shall
be designated by such party in a written notice to each of the other parties.
All such notices and communications shall (a) be effective five (5) business
days after deposited, postage prepaid, in the US mails and (b) be effective on
the next business day when deposited, prepaid, with any nationally recognized
overnight delivery service.
18. No Waiver; Remedies Cumulative; Amendment. Each right, power or
privilege specified in this Agreement is in addition to, not in limitation of,
any other rights, powers and privileges Collateral Agent may otherwise have or
acquire by other contract or otherwise. No course of dealing, omission or delay
by Collateral Agent in the exercise of any right, power or privilege referred to
in this Agreement shall operate as a waiver thereof, nor shall any partial
exercise thereof preclude any further exercise thereof, as Collateral Agent may
exercise each such right, power and privilege either independently or
concurrently and as often and in such order as Collateral Agent deems expedient.
The Collateral Agent, upon the request of the Required Secured Parties, may
consent to any waiver, release of collateral or consent requested by the Company
or execute any amendment to this Agreement (except that the amendment of this
Section 18 and the definitions of "Required Secured Parties" and "Ratable
Portion" shall require the consent of all of the Secured Parties).
19. Termination; Succession; Assignment. This Agreement shall (a)
terminate on April 23, 2005, (b) benefit Collateral Agent, its successors,
assigns and any other holder who derives from Collateral Agent title to or
interest in any Obligations and (c) shall bind Company and Company's heirs,
executors, administrators, successors and assigns. Without limiting the
generality of the foregoing, Collateral Agent may assign or otherwise transfer
all or any portion of its rights under this Agreement 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 Collateral Agent herein or
otherwise. Upon (x) the payment and performance in full of all of the
Obligations or (y) the occurrence of a conversion as described in Section B of
the Debentures, and upon the termination of any and all obligations of
Collateral Agent hereunder, the security interest granted hereby shall terminate
and all rights to the Collateral shall revert to Company. Upon any such
termination, Collateral Agent will, at Company's expense, execute and deliver to
Company such documents as Company shall reasonably request to evidence such
termination.
20. Section Headings. The section headings in this Agreement are
included for convenience of reference only and shall not constitute part of this
Agreement for any other purposes.
21. Illegality. If any provision in this Agreement, the Debentures
or any other agreement related thereto shall for any reason be or become
illegal, void or unenforceable, that illegality, voidness or unenforceability
shall not affect any other provision.
22. Entire Agreement. This Agreement, Debentures and the fee letter
between the Collateral Agent and the Company of even date herewith set forth the
entire agreement of the parties as to the transactions contemplated by this
Agreement.
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23. Execution in Counterparts. This Agreement 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 but one and the same agreement. Each
Secured Party, upon becoming a holder of a Debenture, shall execute a
counterpart of this Agreement in the form of an acknowledgment as set forth
below and, until such fully executed acknowledgment is delivered to the
Collateral Agent and the Company, no such Secured Party shall be entitled to the
benefits of this Agreement.
24. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS UNLESS
OTHERWISE DEFINED HEREIN OR IN THE DEBENTURE TERMS USED IN ARTICLE 9 OF THE UCC
ARE USED HEREIN AS THEREIN DEFINED.
{Signature Page Follows}
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their officers duly authorized to execute the same on the day and
year first above written.
ELCOM INTERNATIONAL, INC.
----------------------------------
By:
-------------------------------
Title:
----------------------------
----------------------------------,
Xxxxxx Xxxxxxxx, Collateral Agent
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ACKNOWLEDGMENT OF SECURED PARTY
The undersigned hereby acknowledges and agrees and becomes a party
to that certain Collateral Agency and Security Agreement, dated as of April 23,
2003, among _________________________ as Collateral Agent, Elcom International,
Inc. (the "Company") and the Secured Parties which are signatories thereto.
{ }
------------------------------
--------------------------------
Print Name:
---------------------
Title:
--------------------------
Date:
---------------------------
Address for Notices:
(no P.O. Boxes please)
--------------------------------
---------------------------------
--------------------------------
Attention:
Fax: ( )
---------------------
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SCHEDULE A
TO
COLLATERAL AGENCY AND SECURITY AGREEMENT
Location of Chief Executive Xxxxxx
00 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
Locations of Goods Collateral
00 Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
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