EXHIBIT 4.1(j)
AMENDED AND RESTATED
SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of May 14, 2003, by and
among each of the entities identified on the signature page hereto under the
heading "Grantor" (each a "Grantor" and, collectively, the "Grantors") and
JPMORGAN CHASE BANK (the "Secured Party").
RECITALS
A. The Grantors and the Secured Party are parties to that certain Security
Agreement, dated as of September 10, 2002 (the "Original Security Agreement").
B. Global Payment Technologies, Inc., a Delaware corporation (the
"Company") and the Secured Party have entered into an Amended and Restated
Credit Agreement, dated as of September 10, 2002 (as the same may be hereafter
amended, modified, restated or supplemented from time to time, the "Credit
Agreement") pursuant to which the Company has received and may hereafter receive
loans and other financial accommodations from the Secured Party and has incurred
and may hereafter incur Obligations (as hereinafter defined).
C. To induce the Secured Party to continue to make extensions of credit
available to the Company on and after the date hereof as provided in the Credit
Agreement, the parties desire to amend and restate the Original Security
Agreement as hereinafter provided and each Grantor desires to grant the Secured
Party security and assurance in order to secure the payment and performance of
all Obligations and to that effect to grant the Secured Party a first priority
perfected security interest in certain of its assets, as provided below, and, in
connection therewith, to execute and deliver this Agreement.
Accordingly, the parties hereto hereby agree as follows:
DEFINITIONS
(a) Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Uniform Commercial Code as in
effect in the State of New York (the "UCC").
(b) Capitalized terms used herein and not otherwise defined shall have the
following meanings:
"Agreement": this Agreement and shall include all amendments,
modifications and supplements hereto and shall refer to this Agreement as the
same may be in effect at the time such reference becomes operative.
"Business Day": has the meaning assigned to such term in the Credit
Agreement.
"Collateral": the following property of each Grantor, wherever located,
and whether now owned or hereafter acquired or arising:
(i) Accounts;
(ii) Chattel paper, including Electronic Chattel Paper, arising
from the sale of inventory by a Grantor in the ordinary course
of its business;
(iii) Instruments, including Promissory Notes, arising from the sale
of inventory by a Grantor in the ordinary course of its
business;
(iv) General Intangibles (to the extent arising from Accounts, but
not including, any patents, patent application, trademarks,
trademark application, or copyrights);
(v) Inventory;
(vi) all U.S. and foreign currency used by the Company in
connection with the testing of the Company' s products,
including, without limitation, the U.S. and foreign currency
as more particularly described on Schedule B (collectively,
"Test Currency"); and
(vii) to the extent not listed above as original collateral,
proceeds and products of the foregoing.
"Default": the meaning assigned to such term in the Credit Agreement.
"Event of Default": the meaning assigned to such term in the Credit
Agreement.
"Liens": the meaning assigned to such term in the Credit Agreement.
"Loan Documents": the meaning assigned to such term in the Credit
Agreement.
"Loans": the meaning assigned to such term in the Credit Agreement.
"Obligations": (i) all obligations, liabilities and indebtedness of each
Grantor to the Secured Party, whether now existing or hereafter created,
absolute or contingent, direct or indirect, due or not, whether created directly
or acquired by assignment or otherwise, including, without limitation,
obligations, liabilities and indebtedness, arising under or relating to this
Agreement or any other Loan Document to which it is a party (including, without
limitation, with respect to the Company, all obligations, liabilities and
indebtedness with respect to the principal of and interest on the Loans)
including the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, and interest
that but for the filing of a petition in bankruptcy with respect to any Grantor
would accrue on such obligations, whether or not a claim is allowed against such
Grantor for such
interest in the related bankruptcy proceeding), and all fees, costs, expenses
and indemnity obligations of the Grantors to the Secured Party hereunder, or
under any other Loan Document, and (ii) all obligations of the Company under
each interest rate swap, collar, cap, floor or forward rate agreement or other
agreement regarding the hedging of interest rate risk exposure of the Company
and under each foreign currency exchange agreement, in each case, entered into
with the Secured Party.
"Person": the meaning assigned to such term in the Credit Agreement.
(c) TERMS GENERALLY. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and the neuter. Except as otherwise herein
specifically provided, each accounting term used herein shall have the meaning
given to it under Generally Accepted Accounting Principles. The term "including"
shall not be limited or exclusive, unless specifically indicated to the
contrary. The word "will" shall be construed to have the same meaning in effect
as the word "shall". The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole, including the
exhibits and schedules hereto, all of which are by this reference incorporated
into this Agreement.
I. SECURITY
SECTION 1.01. GRANT OF SECURITY. As security for the Obligations, each
Grantor hereby transfers, assigns and grants to the Secured Party a security
interest in the Collateral.
SECTION 1.02. RELEASE AND SATISFACTION. Upon the termination of this
Agreement and the indefeasible payment in full of the Obligations, the Secured
Party shall deliver to each Grantor, upon request therefor and at such Grantor'
s expense, releases and satisfactions of all financing statements, notices of
assignment and other registrations of security and, if permitted by law, the
Grantors may file such releases and satisfactions delivered to them by the
Secured Party.
II. REPRESENTATIONS AND WARRANTIES
SECTION 2.01. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO SECURITY.
Each Grantor hereby represents and warrants to the Secured Party as follows:
(a) NAME. Each Grantor's exact legal name, state of incorporation or
organization and organizational number is set forth on Schedule A annexed
hereto.
(b) OWNERSHIP OF COLLATERAL. Each Grantor owns all of its personal
property and assets, including, without limitation, the Collateral, free and
clear of all Liens, other than the Liens permitted under Section 7.01 of the
Credit Agreement.
(c) ACCOUNTS. Annexed hereto as Schedule A is a list identifying the chief
executive office or principal place of business of each Grantor and all
addresses at which each Grantor maintains books or records relating to its
Accounts as of the date of this Agreement.
(d) TRADE NAMES. Except as set forth on Schedule A annexed hereto, each
Grantor has not done during the five years prior to this Agreement, and does not
currently do, business under fictitious business names or trade names. No
Grantor has been known under any other name during such five year period. Each
Grantor will only change its name during the term of this Agreement after giving
not less than thirty (30) Business Days' prior written notice to the Secured
Party. Each Grantor will promptly notify the Secured Party of any fictitious
business names or trade names used by such Grantor on or after the date hereof.
(e) ACQUIRED COLLATERAL. Except as set forth on Schedule A annexed hereto,
the Collateral has been acquired or originated by each Grantor in the ordinary
course of such Grantor's business and was not acquired pursuant to any
acquisition of all or a portion of the business of any Person whether by merger,
acquisition of assets or otherwise.
(f) THIRD PARTY LOCATIONS. Except as set forth on Schedule A annexed
hereto, no Collateral is in the possession of, or under the control of, any
Person other than a Grantor or the Secured Party.
(g) INVENTORY. Annexed hereto as Schedule A is a list identifying all
addresses where each Grantor maintains its Inventory as of the date of this
Agreement. No Grantor's Inventory is currently maintained or will be maintained
with any bailee that issues negotiable warehouse receipts or other negotiable
instruments therefor.
(h) ENFORCEABILITY OF SECURITY INTERESTS. Upon the execution of this
Agreement by each Grantor and the filing of financing statements properly
describing the Collateral and identifying such Grantor and the Secured Party in
the applicable jurisdiction required pursuant to the UCC, security interests and
liens granted to the Secured Party under Section 1.01 hereof shall constitute
valid, perfected and first priority security interests and liens in and to the
Collateral of such Grantor, other than Collateral which may not be perfected by
filing under the UCC, and subject to the Liens permitted pursuant to Section
7.01 of the Credit Agreement, in each case enforceable against all third parties
and securing the payment of the Obligations.
III. COVENANTS OF GRANTORS
SECTION 3.01. RECORDS; LOCATION OF COLLATERAL. So long as a Grantor shall
have any Obligation to the Secured Party: (a) such Grantor shall not change the
jurisdiction of its incorporation or organization or move its chief executive
office, principal place of business or office at which is kept its books and
records (including computer printouts and programs) from the locations existing
on the date hereof and listed on Schedule A annexed hereto; (b) a Grantor shall
not establish any offices or other places of business at any other location; (c)
a Grantor shall not move any of the Collateral, excluding Inventory having an
aggregate value of not more than $100,000, to any location other than those
locations existing on the date hereof and listed on Schedule A annexed hereto;
provided, however, that the Company, as a Grantor hereunder, shall
at all times maintain (i) all records relating to the Grantor's Accounts and
(ii) at least seventy-five percent (75%) of the total value of its Inventory at
the Company's Hauppauge, New York facility; or (d) a Grantor shall not change
its corporate name in any respect, unless, in each case of clauses (a), (b), (c)
and (d) above, (i) a Grantor shall have given the Secured Party thirty (30)
Business Days' prior written notice of its intention to do so, identifying the
new location and providing such other information as the Secured Party deems
necessary, and (ii) a Grantor shall have delivered to the Secured Party such
documentation, in form and substance satisfactory to the Secured Party and as
required by the Secured Party, to preserve the Secured Party's security interest
in the Collateral.
SECTION 3.02. OTHER COLLATERAL. Each Grantor shall promptly notify the
Secured Party upon acquiring or otherwise obtaining any Collateral after the
date hereof consisting of Deposit Accounts, Electronic Chattel Paper, or
Instruments, to the extent the same constitute Collateral hereunder.
SECTION 3.03. FURTHER ACTIONS.
(a) PROMISSORY NOTES AND TANGIBLE CHATTEL PAPER. If any Grantor shall at
any time hold or acquire any Promissory Notes or Tangible Chattel Paper, to the
extent the same constitute Collateral hereunder. such Grantor shall forthwith
endorse, assign or deliver the same to the Secured Party accompanied by
instruments of transfer or assignment duly executed in blank as the Secured
Party may from time to time specify.
(b) COLLATERAL IN THE POSSESSION OF THIRD PARTIES. If any Collateral is at
any time in the possession of any person or entity other than a Grantor or the
Secured Party (a "Third Party"), the Grantor shall promptly notify the Secured
Party thereof, and at the Secured Party's request and option, shall promptly
obtain an acknowledgment from the Third Party, in form and substance
satisfactory to the Secured Party that the Third Party holds such collateral for
the benefit of the Secured Party and such Third Party's agreement to comply,
without further consent of the Grantor, at any time with the instructions of the
Secured Party as to such Collateral. The Secured Party agrees with the Grantor
that the Secured Party shall not give any such instructions unless an Event of
Default has occurred and is continuing.
(c) ELECTRONIC CHATTEL PAPER. If any Grantor at any time holds or acquired
an interest in any Electronic Chattel Paper, such Grantor shall promptly notify
the Secured Party thereof and, at the request and option of the Secured Party,
shall take such action as the Secured Party may reasonably request to vest in
the Secured Party control under Section 9105 of the UCC of such Electronic
Chattel Paper.
(d) TEST CURRENCY. Upon the occurrence and during the continuance of an
Event of Default, the Secured Party shall have the right to appoint an agent of
the Secured Party, at the Grantors expense, to be situated at the Company's
Hauppauge, New York facility for the purpose of taking possession of the Test
Currency and monitoring the use of the Test Currency at such site such that the
Secured Party, through its appointed agent, shall be exercising sole dominion
and control over the Test Currency. Further, in the event the Secured Party has
taken any action permitted to be taken under the last paragraph of Section 8.01
of the Credit Agreement, or in the
event such has occurred automatically in accordance with the terms thereof,
then, upon the request of the Secured Party, the Grantors shall promptly deliver
the Test Currency to the Secured Party and upon the Secured Party' s receipt of
the Test Currency, the Grantors' acknowledge that such Test Currency will be
held under the Secured Party's sole dominion and control.
(e) GENERAL. Each Grantor further agrees, upon the request of the Secured
Party and at the Secured Party's option, to take any and all other actions as
the Secured Party may determine to be necessary or useful for the attachment,
perfection and first priority of, and the ability of the Secured Party to
enforce, the Secured Party' s security interest in any and all of the
Collateral, including without limitation, (a) executing and delivering and where
appropriate filing financing statements and amendments relating thereto under
the UCC to the extent, if any, that such Grantor's signature thereon is required
therefor, (b) comply with any provision of any statute, regulation or treaty of
the United States as to any Collateral if compliance with such provision is a
condition to attachment, perfection or priority of, or ability of the Secured
Party to enforce the Secured Party's security interest in such Collateral, and
(c) obtaining governmental and other third party waivers, consents and approvals
in form and substance reasonably satisfactory to the Secured Party, including,
without limitation, any consent of any licensor, lessor or other persons
obligated on Collateral. Each Grantor further authorizes the Secured Party to
file initial financing statements describing the Collateral, and any amendments
thereto.
SECTION 3.04. INSURANCE AND ASSESSMENTS. The Company, as a Grantor
hereunder, shall at all times maintain insurance covering the Test Currency in
an amount not less than $1,000,000 and naming the Lender as loss payee thereon.
In the event any Grantor shall fail to purchase or maintain insurance, or pay
any tax, assessment, government charge or levy, to the extent required hereunder
or under the Credit Agreement, or in the event that any lien, encumbrance or
security interest prohibited hereby shall not be paid in full or discharged, or
in the event such Grantor shall fail to perform or comply with any other
covenant, promise or obligation to the Secured Party hereunder, or under the
Credit Agreement or any other Loan Document, in each of the foregoing cases,
after the giving of any required notice, the lapse of time, or both, the Secured
Party may, but shall not be required to, perform, pay, satisfy, discharge or
bond the same for the account of such Grantor, and all money so paid by the
Secured Party, including reasonable attorney's fees, shall be deemed to be
Obligations.
SECTION 3.05. INSPECTION. Upon reasonable notice to a Grantor, the Secured
Party may, during such Grantor's normal business hours, examine and inspect any
Collateral and may examine, inspect and copy all books and records with respect
thereto or relevant to the Obligations.
SECTION 3.06. PERSONAL PROPERTY. The Collateral shall remain personal
property at all times. No Grantor shall affix any of the Collateral to real
property in any manner which would change its nature from that of personal
property to real property or to a fixture.
SECTION 3.07. MAINTENANCE OF CORPORATE EXISTENCE. Each Grantor shall
preserve and maintain its corporate existence and, except as otherwise permitted
pursuant to the Credit Agreement, shall not merge with or into or consolidate
with any other entity.
SECTION 3.08. INDEMNIFICATION. Each Grantor agrees to indemnify the
Secured Party and hold it harmless from and against any and all injuries,
claims, damages, judgments, liabilities, costs and expenses (including, without
limitation, reasonable fees and disbursements of counsel), charges and
encumbrances which may be incurred by or asserted against the Secured Party in
connection with or arising out of any assertion, declaration or defense of the
Secured Party's rights or security interest under the provisions of this
Agreement or any other Loan Document, permitting it to collect, settle or adjust
Accounts or to deal with account debtors in any way or in connection with the
realization, repossession, safeguarding, insuring or other protection of the
Collateral to the extent permitted hereunder, or under the Credit Agreement, the
other Loan Documents, the UCC or other applicable law, or in connection with the
collecting, perfecting or protecting the Secured Party's liens and security
interests hereunder or under any other Loan Document.
IV. POWER OF ATTORNEY; NOTICES
SECTION 4.01. POWER OF ATTORNEY. Each Grantor hereby irrevocably
constitutes and appoints the Secured Party and any officer or agent thereof,
with full power of substitution, as its true and lawful attorneys-in-fact with
full irrevocable power and authority in the place and stead of such Grantor or
in the Secured Party's own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments that may be necessary or useful to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, hereby give said attorneys the power and right, on behalf of the
Grantor, without notice to or assent by the Grantor, to (a) endorse the names of
such Grantor on any checks, notes, drafts or other forms of payment or security
that may come into the possession of the Secured Party or any affiliate of the
Secured Party, to sign the Grantor's name on invoices or bills-of-lading, drafts
against customers, notices of assignment, verifications and schedules, (b) sell,
transfer, pledge, make any arrangement with respect to or otherwise dispose of
or deal with any of the Collateral consistent with the UCC and (c) do acts and
things which the Secured Party deems necessary or useful to protect, preserve or
realize upon the Collateral and the Secured Party's security interest therein.
The powers granted herein, being coupled with an interest, are irrevocable until
all of the Obligations are indefeasibly paid in full and this Agreement is
terminated. The powers conferred on the Secured Party hereunder are solely to
protect its interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Neither the Secured Party nor any attorney-in-fact
shall be liable for any act or omission, error in judgment or mistake of law
provided the same is not the result of gross negligence or willful misconduct.
Notwithstanding anything to the contrary herein, the power of attorney granted
to the Secured Party pursuant to this Section 4.01 shall be exercisable only
after the occurrence and during the continuance of an Event of Default.
SECTION 4.02. NOTICES. Upon the occurrence and during the continuance of
an Event of Default, the Secured Party may notify account debtors and other
persons obligated on any of the Collateral that the Collateral has been assigned
to the Secured Party or of its security interest therein and to direct such
account debtors and other persons obligated on any of the Collateral to make
payment of all amounts due or to become due to a Grantor directly to the Secured
Party and upon such notification and at such Grantor's expense to enforce
collection of
any such Collateral, and to adjust, compromise or settle for cash, credit or
otherwise upon any terms the amount of payment thereof. The Secured Party may,
at any time following the occurrence and during the continuance of an Event of
Default, notify the Postal Service authorities to change the address of delivery
of mail to an address designated by the Secured Party. After making of such a
request or the giving of any such notification, each Grantor shall hold any
proceeds of collection of all Collateral received by it as trustee for the
Secured Party without commingling the same with such Grantor and shall turn the
same over to the Secured Party in the identical form received, together with any
necessary endorsements or assignments. The Secured Party shall apply the
proceeds of collection of such Collateral received by the Secured Party to the
Obligations, in such order as the Secured Party, in its sole discretion, shall
determine, such proceeds to be immediately credited after final payment in cash
or other immediately available funds of the items giving rise to them. The
Secured Party shall return to each Grantor any mail delivered to the Secured
Party pursuant to the authority granted to it hereunder which does not consist
of the proceeds of collection of Collateral.
V. REMEDIES OF SECURED PARTY
SECTION 5.01. ENFORCEMENT. Upon the occurrence and during the continuance
of an Event of Default, the Secured Party shall have, in addition to all of its
other rights under this Agreement and the other Loan Documents by operation of
law or otherwise (which rights shall be cumulative), all of the rights and
remedies of a secured party under the UCC and shall have the right, to the
extent permitted by law, without charge, to enter any Grantor's premises, and
until it completes the enforcement of its rights in the Collateral subject to
its security interest hereunder and the sale or other disposition of any
property subject thereto, for the purpose of preparing any Collateral for
disposition and for the disposition of or collecting any Collateral. Without
limiting the foregoing, upon the occurrence and during the continuance of an
Event of Default, the Secured Party may, without demand, advertising or notice,
all of which such Grantor hereby waives (except as the same may be required by
law), sell, lease, license or otherwise dispose of and grant options to a third
party to purchase, lease, license or otherwise dispose of any and all Collateral
held by it or for its account at any time or times in one or more public or
private sales or other dispositions, for cash, on credit or otherwise, at such
prices and upon such terms as the Secured Party, in its sole discretion, deems
advisable. At any such sale the Collateral or any portion thereof may be sold in
one lot as an entirety or in separate parcels as the Secured Party in its sole
discretion deems advisable. Each Grantor agrees that if notice of sale shall be
required by law such requirement shall be met if such notice is mailed, postage
prepaid, to such Grantor at its address set forth above or such other address as
it may have, in writing, provided to the Secured Party, at least ten (10) days
before the time of such sale or disposition. The Secured Party may postpone or
adjourn any sale of any Collateral from time to time by an announcement at the
time and place of the sale to be so postponed or adjourned, without being
required to give a new notice of sale. Notice of any public sale shall be
sufficient if it describes the security of the Collateral to be sold in general
terms, stating the amounts thereof, the nature of the business in which such
Collateral was created and the location and nature of the properties covered by
the other security interests or mortgages and the prior liens thereof. The
Secured Party may be the purchaser at any such sale if it is public, free from
any right of redemption, which such Grantor also waives, and payment may be
made, in whole or in part, in respect of such purchase price by the application
of the Obligations by the Secured Party. Each Grantor
with respect to its property constituting such Collateral, shall be obligated
for, and the proceeds of sale shall be applied first to, the costs of taking,
assembling, finishing, collecting, refurbishing, storing, guarding, insuring,
preparing for sale, and selling the Collateral, including the fees and
disbursements of attorneys, auctioneers, appraisers and accountants employed by
the Secured Party. Proceeds shall then be applied to the payment, in whatever
order the Secured Party may elect, of all of the Obligations. The Secured Party
shall return any excess to such Grantor or to whomever may be fully entitled to
receive the same or as a court of competent jurisdiction may direct. In the
event that the proceeds of any sale or other disposition of the Collateral are
insufficient to pay in full the Obligations, such Grantor shall remain liable
for any deficiency.
SECTION 5.02. STANDARDS FOR EXERCISING RIGHTS AND REMEDIES. To the extent
that applicable law imposes duties on the Secured Party to exercise remedies in
a commercially reasonable manner, each Grantor acknowledges and agrees that it
is not commercially unreasonable for the Secured Party (a) to fail to incur
expenses reasonably deemed significant by the Secured Party to prepare
Collateral for disposition, (b) to fail to obtain third party consents for
access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the
collection or disposition of Collateral to be collected or disposed of, (c) to
fail to exercise collection remedies against account debtors or other persons
obligated on Collateral or to fail to remove liens or encumbrances on or any
adverse claims against Collateral, (d) to exercise collection remedies against
account debtors and other persons obligated on Collateral directly or through
the use of collection agencies and other collection specialists, (e) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (f) to
contact other persons, whether or not in the same business each Grantor, for
expressions of interest in acquiring all or any portion of the Collateral, (g)
to hire one or more professional auctioneers to assist in the disposition of
Collateral, whether or not the collateral is of a specialized nature, (h) to
dispose of Collateral by utilizing Internet sites that provide for the auction
of assets of the types included in the Collateral or that have the reasonable
capability of doing so, or that match buyers and sellers of assets, (i) to
dispose of assets in wholesale rather than retail markets, (j) to disclaim
disposition warranties, (k) to purchase insurance or credit enhancements to
insure the Secured Party against risk of loss, collection or disposition of
Collateral or to provide to the Secured Party a guaranteed return from the
collection or disposition of Collateral, or (l) to the extent deemed appropriate
by the Secured Party, to obtain the services of other brokers, investment
bankers, consultants and other professionals to assist the Secured Party in the
collection or disposition of any of the Collateral. Each Grantor acknowledges
that the purpose of this Section 5.02 is to provide non-exhaustive indications
of what actions or omissions by the Secured Party would fulfill the Secured
Party's duties under the UCC or the Uniform Commercial Code as in effect in
other relevant jurisdiction in the Secured Party's exercise of remedies against
the Collateral and that other actions or omissions by the Secured Party shall
not be deemed to fail to fulfill such duties solely on account of not being
indicated in this Section 5.02. Without limitation upon the foregoing, nothing
contained in this Section 5.02 shall be construed to grant any rights to each
Grantor or to impose any duties on the Secured Party that would not have been
granted or imposed by this Agreement or by applicable law in the absence of this
Section 5.02.
SECTION 5.03. WAIVER. Each Grantor waives any right, to the extent
applicable law permits, to receive prior notice of, or a judicial or other
hearing with respect to, any action or prejudgment remedy or proceeding by the
Secured Party to take possession, exercise control over, or dispose of any item
of the Collateral in any instance (regardless of where such Collateral may be
located) where such action is permitted under the terms of this Agreement or any
other Loan Document, or by applicable law, or of the time, place or terms of
sale in connection with the exercise of the Secured Party's rights hereunder and
such Grantor also waives, to the extent permitted by law, any bond, security or
sureties required by any statute, rule or otherwise by law as an incident to any
taking of possession by the Secured Party of property subject to the Secured
Party's Lien. Each Grantor further waives any damages (direct, consequential or
otherwise) occasioned by the enforcement of the Secured Party's rights under
this Agreement and any other Loan Document including the taking of possession of
any Collateral all to the extent that such waiver is permitted by law and to the
extent that such damages are not caused by the Secured Party's gross negligence
or willful misconduct. These waivers and all other waivers provided for in this
Agreement and any other Loan Documents have been negotiated by the parties and
each Grantor acknowledges that it has been represented by counsel of its own
choice and has consulted such counsel with respect to its rights hereunder.
SECTION 5.04. OTHER RIGHTS. Each Grantor agrees that the Secured Party
shall not have any obligation to preserve rights to any Collateral against prior
parties or to proceed first against any Collateral or to xxxxxxxx any Collateral
of any kind for the benefit of any other creditors of such Grantor or any other
Person. The Secured Party is hereby granted, to the extent that such Grantor is
permitted to grant a license or right of use, a license or other right to use,
without charge, labels, patents, copyrights, rights of use, of any name, trade
secrets, trade names, trademarks and advertising matter, or any property of a
similar nature of such Grantor as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and such
Grantor's rights under all licenses and any franchise, sales or distribution
agreements shall inure to the Secured Party's benefit.
SECTION 5.05. EXPENSES. Each Grantor agrees that it shall pay on demand
therefor all costs and expenses incurred in amending, implementing, perfecting,
collecting, defending, declaring and enforcing the Secured Party's rights and
security interests in the Collateral hereunder or under the Credit Agreement or
any other Loan Document or other instrument or agreement delivered in connection
herewith or therewith, including, but not limited to, (a) searches and filings,
(b) the Secured Party's reasonable attorneys' fees (regardless of whether any
litigation is commenced, whether a default is declared hereunder, and regardless
of tribunal or jurisdiction) and (c) any stamp duties, and interest and
penalties thereon, which may be payable to any Governmental Authority.
VI. GENERAL PROVISIONS
SECTION 6.01. TERMINATION. This Agreement shall remain in full force and
effect until all the Obligations shall have been indefeasibly fully paid and
satisfied and the Credit Agreement shall have expired or been terminated and,
until such time, the Secured Party shall retain all security in and title to all
existing and future Collateral held by it hereunder.
SECTION 6.02. REMEDIES CUMULATIVE. The Secured Party's rights and remedies
under this Agreement shall be cumulative and non-exclusive of any other rights
or remedies which it may have under the Credit Agreement, any other Loan
Document or any other agreement or instrument, by operation of law or otherwise
and may be exercised alternatively, successively or concurrently as the Secured
Party may deem expedient.
SECTION 6.03. BINDING EFFECT. This Agreement is entered into for the
benefit of the parties hereto and their successors and assigns. It shall be
binding upon and shall inure to the benefit of the said parties, their
successors and assigns. No Grantor shall assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Secured Party and
any attempted assignment shall be null and void.
SECTION 6.04. NOTICES. Wherever this Agreement provides for notice to
either party (except as expressly provided to the contrary), it shall be in
writing and given in the manner specified in Section 9.01 of the Credit
Agreement. Such notices to each Grantor shall be delivered to the address for
notices set forth on Schedule A annexed hereto.
SECTION 6.05. WAIVER. No delay or failure on the part of the Secured Party
in exercising any right, privilege, remedy or option hereunder shall operate as
a waiver of such or any other right, privilege, remedy or option, and no waiver
shall be valid unless in writing and signed by an officer of the Secured Party
and only to the extent therein set forth.
SECTION 6.06. MODIFICATIONS AND AMENDMENTS. This Agreement and the other
agreements to which it refers constitute the complete agreement between the
parties with respect to the subject matter hereof and may not be changed,
modified, waived, amended or terminated orally, but only by a writing signed by
the party to be charged.
SECTION 6.07. SEVERAL AGREEMENTS. This Agreement shall constitute the
several obligations and agreements of each Grantor and may be amended, restated,
supplemented or otherwise modified from time to time, with respect to any
Grantor without the consent or approval of any other Grantor, and no such
amendment, restatement, supplement or modification shall be deemed to amend,
restate, supplement or modify the obligations of any other Grantor hereunder.
SECTION 6.08. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of each Grantor made or deemed made herein shall
survive the execution and delivery of this Agreement.
SECTION 6.09. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, in such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 6.10. APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OR CHOICE OF LAWS. EACH GRANTOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE XXXXX XX XXX
XXXX, XXXXXX XX XXX XXXX, XXXXXX OF NASSAU OR COUNTY OF SUFFOLK IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH GRANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR
ANY DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER THEREOF
MAY NOT BE LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH GRANTOR AGREES (I) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT
AND (II) NOT TO ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM CONSTITUTES A COMPULSORY COUNTERCLAIM UNDER APPLICABLE
RULES OF CIVIL PROCEDURE. EACH GRANTOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET
FORTH IN THIS AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK. EACH
GRANTOR AND THE SECURED PARTY EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
SECTION 6.11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6.12. AMENDMENT AND RESTATEMENT. This Agreement amends and
restates, and is given in substitution for, but not in satisfaction of, that
certain Security Agreement, dated as of September 10, 2002, between the Grantor
and the Secured Party (the "Prior Security Agreement"), provided that nothing
contained in this Agreement, the Credit Agreement or any other Loan Document
shall limit or affect the liens and security interests heretofore granted,
pledged and/or assigned to the Secured Party under the Prior Security Agreement,
provided, further that all such liens and security interests shall be deemed
granted, pledged and/or assigned to the Lender.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized as of the day and year
first above written.
JPMORGAN CHASE BANK
By: _____________________________
Name:
Title:
GRANTORS:
GLOBAL PAYMENT TECHNOLOGIES, INC.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
ABACUS FINANCIAL MANAGEMENT SYSTEMS LTD.,
USA
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
SCHEDULE A
TO SECURITY AGREEMENT
A. GLOBAL PAYMENT TECHNOLOGIES, INC.
1. Name of Grantor: Global Payment Technologies, Inc.
2. State of Incorporation or Organization: Delaware
3. Organizational Number: 2717415
4. Chief Executive Office or Principal Place of Business: 000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx
00000
5. Other offices at which books or records with respect to Accounts are
maintained: NONE
6. Inventory Locations:
000X Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxx, Xxxxx 0
Xxxxxxxxx, Xxx Xxxx 00000 Xxx Xxxxx, Xxxxxx 00000
GPT (Europe) Limited Xxxxxx Xxxxxxx (Peru)
00 Xxxx Xxxxx Xxxxx Xxxxxx Xxxx Cocrane 000-X
Xxxxxxxxx Xxx Xxxxxxxxxx
Xxxxxx XX000XX, Xxxxxxx Lima, Peru
Xxxxxx 00 XXX - Xxxxxxxxx
Xxxxxxxxxxxxx 00 Xxxxx Xxxxx
Xxxxxx 000000 Russia 00-00 Xxxx Xxxx Xxxx
Xxxxxxxxx Xxxx, XXX 0000 Xxxxxxxxx
o Vendors in the ordinary course of business
7. Non-Ordinary Course Collateral Acquisitions: NONE
8. Trade Names: NONE
9. Collateral in the possession or control of third parties:
o GPT - Australia
First Floor
00-00 Xxxx Xxxx Xxxx
Xxxxxxxxx Xxxx, XXX 0000 Xxxxxxxxx
o Vendors in the ordinary course of business
10. Address for Notices:
000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Telecopy: (000) 000-0000
B. ABACUS FINANCIAL MANAGEMENT SYSTEMS LTD., USA
1. Name of Grantor: Abacus Financial Management Systems Ltd., USA
2. State of Incorporation or Organization: New York
3. Organizational Number: NONE
4. Chief Executive Office or Principal Place of Business: 000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx
00000
5. Other offices at which books or records with respect to Accounts are
maintained: NONE
6. Inventory Locations:
000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
7. Non-Ordinary Course Collateral Acquisitions: NONE
8. Trade Names: NONE
9. Collateral in the possession or control of third parties: NONE
10.Address for Notices:
000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Telecopy: (000) 000-0000
SCHEDULE B
TO SECURITY AGREEMENT
(Test Currency)
[DETAILED DESCRIPTION TO BE PROVIDED]
