SECURITY AGREEMENT
THIS
INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT DATED AS OF AUGUST 2, 2006 (AS AMENDED BY THE FIRST
AMENDMENT THERETO DATED AUGUST 23, 2007 AND THE SECOND AMENDMENT THERETO DATED
AS OF SEPTEMBER 23, 2008, THE "SUBORDINATION
AGREEMENT")
AMONG
LAMINAR DIRECT CAPITAL, L.L.C. (AS SUCCESSOR TO LAMINAR DIRECT CAPITAL L.P.),
PAC-VAN, INC. (THE "COMPANY")
AND
LASALLE BANK NATIONAL ASSOCIATION (TOGETHER WITH ITS SUCCESSORS AND ASSIGNS,
THE
"SENIOR
AGENT"),
TO
THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANY PURSUANT TO THAT
CERTAIN AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 23, 2007 AMONG
THE COMPANY, THE SENIOR AGENT AND THE SENIOR LENDERS FROM TIME TO TIME PARTY
THERETO (THE "LOAN
AGREEMENT"),
AND
THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT) AS SUCH LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS MAY BE AMENDED, RESTATED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS REFINANCING THE
INDEBTEDNESS THEREUNDER AS CONTEMPLATED BY THE SUBORDINATION AGREEMENT; AND
EACH
HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO
BE
BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
SECURITY
AGREEMENT
THIS
SECURITY AGREEMENT (this "Agreement")
dated
as of October 1, 2008
is
by and among GFN NORTH AMERICA CORP., a Delaware corporation
(the "Debtor")
and
LAMINAR DIRECT CAPITAL, L.L.C., as collateral agent (in such capacity, the
"Agent")
for
the for the lenders (collectively, the "Lenders"
and
each individually, a "Lender")
from
time to time party to the Investment Agreement described below.
RECITALS
A. The
Lenders have made certain financial accommodations to Pac-Van, Inc., an Indiana
corporation (the "Borrower"),
pursuant to that certain Investment Agreement made and entered into as of August
2, 2006, among the Borrower (as successor in interest to PVI Acquisition
Corporation, an Indiana corporation), Mobile Office Acquisition Corp., a
Delaware corporation ("MOAC"),
the
Lenders from time to time party thereto and the Agent (as successor to Laminar
Direct Capital L.P.) (as amended by the First Amendment to Investment Agreement
and Waiver dated as of August 23, 2007 and the Second Amendment to Investment
Agreement dated as of September 23, 2008, the "Original
Investment Agreement"),
and
as evidenced by the Notes.
B. Pursuant
to the Parent Merger Agreement, MOAC has agreed to consummate a merger (the
"Parent
Merger")
with
the Assignor in which the Assignor will be the surviving corporation and as
a
result of which the Assignor shall (i) assume all of the obligations and
liabilities of MOAC, including becoming a party to and assuming all of the
obligations of MOAC under the Loan Documents and (ii) acquire all of the assets
of MOAC, including all of the issued and outstanding Capital Stock of the
Borrower.
C. In
connection with the transactions contemplated by the Parent Merger Agreement,
(i) the parties to the Original Investment Agreement have agreed to amend and
restate the Original Investment Agreement in the form of that certain Amended
and Restated Investment Agreement dated as of the date hereof by and among
the
Borrower, the Guarantor, the Lenders from time to time party thereto and the
Agent (as from time to time amended, modified, extended, renewed, refinanced,
or
restated, the "Investment
Agreement")
and
(ii) the Lenders have required the Assignor to amend and restate that certain
Continuing Unconditional Guaranty dated as of August 2, 2006 (which was given
by
MOAC in favor of the Agent, for the ratable benefit of the Lenders, connection
with the closing of the Original Investment Agreement) in the form of that
certain Amended and Restated Continuing Unconditional Guaranty dated as of
the
date hereof (as from time to time amended, modified, extended, renewed,
refinanced, or restated, the "Subdebt
Parent Guaranty").
E. In
connection with the transactions contemplated by the Parent Merger Agreement,
and as a condition to the Agent's and the Lenders' consent to the Parent Merger,
entering into the Investment Agreement and continued extension and continuation
of credit by the Lenders to the Borrower under the Investment Agreement and
the
Notes, the Lenders require that the Debtor
shall
have executed and delivered this Agreement to the Collateral
Agent
for the
ratable benefit of the Lenders to secure the performance of the Debtor under
the
Subdebt Parent Guaranty and of the Borrower under the Investment Agreement
and
the Notes;
.
NOW,
THEREFORE,
in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
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(a)
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Capitalized
terms used and not otherwise defined herein shall have the meanings
ascribed to such terms in the Investment Agreement, and the following
terms which are defined in the Uniform Commercial Code in effect
in the
State of New York except as such terms may be used in connection
with the
perfection of the Collateral and then the applicable jurisdiction
with
respect to such affected Collateral shall apply (as hereinafter defined)
(the
"UCC")
on
the date hereof are used herein as so defined: Accessions, Account
Debtor,
Accounts, As-Extracted Collateral, Certificated Security, Chattel
Paper,
Commercial Tort Claims, Commingled Goods, Consumer Goods, Control,
Deposit
Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products,
Financial Assets, Fixtures, General Intangibles, Goods,
Health-care-insurance Receivable, Instruments, Inventory, Investment
Property, Letter-of-Credit Rights, Manufactured Homes, Payment Intangible,
Proceeds, Promissory Note, Securities Account, Securities Intermediary,
Security, Security Entitlement, Software, Standing Timber, Supporting
Obligation, Tangible Chattel Paper and Uncertificated Security.
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| (b) |
In
addition, the following terms shall have the following
meanings:
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"Collateral"
has the
meaning set forth in Section
2
hereof.
"Lender"
has the
meaning set forth in the Preamble hereof.
"Secured
Obligations"
means,
without duplication, (i) all of the Subdebt Obligations and
(ii)
all costs and expenses incurred in connection with enforcement and collection
of
the Subdebt Obligations, including reasonable attorneys’ fees.
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2.
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Grant
of Security Interest in the Collateral.
To secure the prompt and full payment and complete performance of
all
Secured Obligations of Debtor to the Lenders, for valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Debtor
hereby grants, pledges and assigns to the Agent, for the benefit
of the
Lenders, a continuing security interest in, and a right of set off
against, any and all right, title and interest of the Debtor in and
to the
following described property of the Debtor (collectively, the
"Collateral"):
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(a) All
property of, or for the account of, the Debtor now or hereafter coming into
the
possession, Control or custody of, or in transit to, the Lenders or any agent
or
bailee for the Lenders or any parent, affiliate or subsidiary of the Lenders
or
any participant with the Lenders in the Loan (whether for safekeeping, deposit,
collection, custody, pledge, transmission or otherwise), including all earnings,
dividends, interest, or other rights in connection therewith and the products
and proceeds therefrom, including the proceeds of insurance thereon; and
(b) The
additional property of the Debtor, whether now existing or hereafter arising
or
acquired, and wherever now or hereafter located, together with all additions
and
accessions thereto, substitutions for, and replacements, products and proceeds
therefrom, and all of the Debtor's books and records and recorded data relating
thereto (regardless of the medium of recording or storage), together with all
of
the Debtor's right, title and interest in and to all computer software required
to utilize, create, maintain and process any such records or data on electronic
media, identified and set forth as follows:
(i) All
Accounts and all Goods whose sale lease or other disposition by the Debtor
has
given rise to Accounts and have been returned to, or repossessed or stopped
in
transit by, the Debtor, or rejected or refused by an Account Debtor;
(ii) All
Inventory, including, without limitation, raw materials, work-in-process and
finished goods;
(iii) All
Goods, including, without limitation, embedded software, Equipment, vehicles,
furniture and Fixtures
(iv) All
Software and computer programs;
(v) All
Securities, Investment Property, Financial Assets and Deposit
Accounts;
(vi) All
Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of
Credit Rights, all proceeds of letters of credit, Health-care-insurance
Receivables, Supporting Obligations, notes secured by real estate, Commercial
Tort Claims and General Intangibles (including, without limitation, patents,
trademarks, copyrights, applications therefore and licenses thereof, and Payment
Intangibles);
(vii) All
Commercial Tort Claims described on Schedule
1
hereto.
(viii) All
insurance policies and proceeds insuring the foregoing property or any part
thereof, including unearned premiums; and
(ix) To
the
extent not otherwise included, all Accessions and Proceeds of any and all of
the
foregoing.
Debtor
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 (or any applications therefore).
3. General
Representations and Covenants.
In each
case subject to the provisions of the Intercreditor Agreement, Debtor
represents, warrants and covenants as follows:
(a) (i)
Debtor
is, or as to Collateral arising or to be acquired after the date hereof, shall
be, the sole owner of the Collateral free from any and all Liens, security
interests, encumbrances claims and interests (other than Liens permitted by
the
Investment Agreement); and (ii) no security agreement financing statement,
equivalent security or lien instrument or continuation statement covering any
of
the Collateral is on file or of record in any public office (other than in
respect of the Liens permitted under the Investment Agreement).
(b) Debtor
shall not create, permit or suffer to exist, and shall take such action as
is
necessary to remove, any claim to or interest in or Lien or encumbrance upon
the
Collateral (other than Liens permitted under the Investment Agreement) and
shall
defend the right, title and interest of the Agent and Lenders in and to the
Collateral against all claims and demands of all persons and entities at any
time claiming the same or any interest therein.
(c) Debtor
is
a corporation organized and existing under the laws of the State of Indiana.
Debtor's principal place of business and chief executive office is located
at
the address set forth on Schedule
2
attached
hereto ("Executive
Office").
Debtor has no other place of business, except as shown in Schedule
2
attached
to, and made a part of this Agreement. Debtor shall not change its Executive
Office or do business at a location not shown on Schedule
2
without
Agent's prior written consent. Debtor's records concerning the Accounts, Chattel
Paper, General Intangibles, Payment Intangibles, Inventory and other Collateral
shall be maintained at the Debtor's Executive Office.
(d) At
least
thirty (30) days prior to the occurrence of any of the following events, Debtor
shall deliver to Agent written notice of such impending events: (i) a change
in
Debtor's Executive Office or place of business; (ii) the opening or closing
of
any other place of business; or (iii) a change in Debtor's name, identity or
corporate structure.
(e) Subject
to any limitation stated therein or in connection therewith, all information
furnished by Debtor concerning the Collateral or otherwise in connection with
the Secured Obligations, is or shall be at the time the same is furnished,
accurate, correct and complete in all material respects.
(f) The
Collateral is and shall be used primarily for business purposes.
(g) None
of
the Collateral consists of, or is the Accessions or the Proceeds of,
As-Extracted Collateral, Consumer Goods, Farm Products, Manufactured Homes,
or
timber to be cut.
(h) Schedule
1
hereto
sets forth each Commercial Tort Claim by or in favor of the Debtor. Debtor
shall
(i) promptly notify the Administrative Agent in writing of the initiation of
any
Commercial Tort Claim by or in favor of the Debtor, and (ii) execute and deliver
such statements, documents and notices and do and cause to be done all such
things as the Agent may reasonably deem necessary or appropriate, or as are
required by law, to create, perfect and maintain the Agent’s security interest
in any Commercial Tort Claim.
(i) This
Agreement creates a valid security interest in favor of the Agent, for the
benefit of the Lenders, in the Collateral of the Debtor and, when properly
perfected by filing, shall constitute a valid perfected security interest in
such Collateral, to the extent such security interest can be perfected by filing
under the UCC, free and clear of all Liens except for Liens permitted under
the
Investment Agreement.
(j) If
any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Tangible Chattel Paper, or if any property
constituting Collateral shall be stored or shipped subject to a Document, Debtor
shall (i) ensure that such Instrument, Tangible Chattel Paper or Document is
either in the possession of Debtor at all times or, if requested by the Agent,
is promptly delivered to the Agent, duly endorsed in a manner satisfactory
to
the Agent and (ii) at the Agent’s request, ensure that any Collateral consisting
of Tangible Chattel Paper is marked with a legend acceptable to the Agent
indicating the Agent’s security interest in such Tangible Chattel
Paper.
(k) Execute
and deliver all agreements, assignments, instruments or other documents as
the
Agent shall reasonably request for the purpose of obtaining and maintaining
control within the meaning of the UCC with respect to any Collateral consisting
of Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic
Chattel Paper.
(l) If
any
Collateral with a value in excess of $500,000 is at any time in the possession
or control of a warehouseman or bailee of Debtor, Debtor shall notify the Agent
of such possession or control, and if requested by the Agent (i) notify such
Person of the Agent’s security interest in such Collateral, (ii) instruct such
Person to hold all such Collateral for the Agent’s account and subject to the
Agent’s instructions and (iiii) use commercially reasonable efforts to obtain an
acknowledgment from such Person that it is holding such Collateral for the
benefit of the Agent.
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4.
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Collection
of Receivables.
Unless otherwise directed by the Agent after the occurrence and during
the
continuance of an Event of Default under the Investment Agreement,
Debtor
shall collect all of Debtor's acceptances, Accounts, Chattel Paper,
Electronic Chattel Paper, contract rights, Documents, drafts Financial
Assets, General Intangibles, Investment Property, Security Entitlements,
Securities, Letter of Credit Rights, Proceeds of letters of credit,
Supporting Obligations, Payment Intangibles, income and all other
tax
refunds, Instruments, negotiable documents and notes (individually,
"Receivable"
and, collectively, "Receivables"),
and, after an Event of Default, whenever Debtor shall receive payment
of
any Receivable, Debtor shall hold such payment in trust for Agent
for the
benefit of Lenders and shall forthwith deliver the same to Agent
for the
benefit of Lenders in the form received by Debtor without commingling
with
any funds belonging to Debtor. After the occurrence of an Event of
Default, Debtor authorizes Agent to endorse the name of Debtor upon
any
checks or other items received in payment of any Receivable and to
do any
and all things necessary in order to reduce the same to money. All
amounts
received by Agent for the benefit of Lenders representing payment
of
Receivables may be applied by Agent for the benefit of Lenders to
the
payment of the Secured Obligations in such order or preference as
Lenders
may determine, or Agent may, at its option, impound all or any portion
of
such amounts and retain said amounts for the benefit of Lenders as
security for the payment of the Secured Obligations, with the right
on the
part of Debtor, upon approval by Lenders, to obtain the release of
all or
part of such impounded amounts. Agent may, however, at any time,
apply all
or any part of such impounded amounts as aforesaid. Debtor also authorizes
Agent for the benefit of Lenders at any time, after the occurrence
of an
Event of Default, without notice, to appropriate and apply any balances,
credits, deposits, accounts or money of Debtor in Lenders' possession,
custody or control to the payment of any of the Secured Obligations.
If
any of Debtor's Receivables arise out of contracts with or orders
from the
United States or any State or any department, agency or instrumentality
thereof, Debtor shall immediately notify Agent thereof in writing
and
shall execute any instrument and take any steps required by Agent
in order
that all money due and to become due under such contract or order
shall be
assigned to Agent for the benefit of Lenders and due notice thereof
given
to the appropriate governmental agency. Debtor agrees to execute,
deliver,
file and record all such notices, affidavits, assignments, financing
statements and other instruments as shall in the judgment of Lenders
be
necessary or desirable to evidence, validate and perfect the security
interest of Agent for the benefit of Lenders in the Receivables.
After the
occurrence of an Event of Default, Agent shall have the right to
notify
any persons or entities owning any Receivables and to demand and
receive
payment, but Agent shall have no duty so to do. Upon request of Agent
at
any time, after the occurrence of an Event of Default, Debtor shall
notify
such account debtors and shall indicate on all invoices to such account
debtors that the accounts are payable to Agent for the benefit of
Lender.
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5.
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Insurance.
Debtor shall have and maintain insurance at all times with respect
to all
Equipment, Inventory and other tangible real and personal property
(i)
insuring against risks of fire (including so-called extended coverage),
explosion, theft sprinkler leakage and such other casualties as Agent
may
designate, and (ii) insuring against liability for personal injury
and
property damage relating to the Equipment and Inventory of the Debtor,
containing such terms, in such form, for such periods and written
by such
companies as required by the Investment Agreement. Notwithstanding
any
provision of this Agreement or any note or guaranty secured hereby
to the
contrary, such policy or policies of insurance shall contain a mortgagee,
lender loss payee, union, standard or New York clause, in each case
as
required by the Intercreditor Agreement. All policies of insurance
shall
provide for thirty (30) days' written minimum cancellation notice
to
Agent, and, at request of Agent, shall be delivered to and held by
it.
Agent may act as attorney for Debtor in obtaining, adjusting, settling
and
canceling such insurance and endorsing any drafts. In the event of
failure
to provide insurance as herein provided, Agent may, at its option,
provide
such insurance and Debtor shall pay to Agent, for the benefit of
Lenders,
upon demand, the cost thereof. Should Debtor fail to pay said sum
to Agent
upon demand, interest shall accrue thereon, from the date of demand
until
paid in full, at the highest rate set forth in any document or instrument
evidencing any of the Secured Obligations.
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6.
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Inspection.
Debtor shall at all times keep accurate and complete records of the
Receivables and Debtor shall, at all reasonable times and from time
to
time, allow Agent, by or though any of its officers, agents, attorneys
or
accountants, to examine, inspect and make extracts from Debtor's
books and
records and, after the occurrence of an Event of Default, to arrange
for
verification of the Receivables directly with account debtors or
by other
methods and to examine and inspect the Collateral wherever located.
Debtor
shall perform, do, make, execute and deliver all such additional
and
further acts, things, deeds, assurances and instruments as Agent
may
require to more completely vest in and assure to Agent and Lenders
their
rights hereunder and in or to the Collateral.
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| 7. |
Preservation
and Disposition of Collateral.
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(a) Debtor
shall keep the Collateral free from any and all Liens, security interests
encumbrances, claims and interests (other than Liens arising under the Senior
Transaction Documents or Liens otherwise permitted by the Investment Agreement).
Debtor shall advise Agent promptly, in writing and in reasonable detail, (i)
of
any material encumbrance upon or claim asserted against any of the Collateral;
(ii) of any material change in the composition of the Collateral; (iii) of
any
change in location of the Collateral; and (iv) of the occurrence of any other
event that would have a material effect upon the aggregate value of the
Collateral or upon the security interest Lenders.
(b) Except
for the sale of Inventory in the ordinary course of business, Debtor shall
not
sell or otherwise dispose of the Collateral; provided,
however,
that
until default, Debtor may use the Equipment and Inventory in any lawful manner
not inconsistent with this Agreement or with the terms or conditions of any
policy of insurance thereon.
(c) Debtor
shall keep the Collateral in good condition and shall not misuse, abuse,
secrete, waste or destroy any of the same, but only to the extent that such
action would have a material adverse effect on the Collateral.
(d) Debtor
shall not use the Collateral in violation of any statute, ordinance regulation,
rule, decree or order.
(e) Debtor
shall pay promptly when due all taxes, assessments, charges or levies upon
the
Collateral or in respect to the income or profits therefrom, except that no
such
charge need be paid if (i) the validity thereof is being contested in good
faith
by appropriate proceedings; (ii) such proceedings do not involve any danger
of
sale, forfeiture or loss of any Collateral or any interest therein; and (iii)
such charge is adequately reserved against in accordance with generally accepted
accounting principles.
(f) At
its
option, Agent may, for the benefit of Lenders, discharge taxes, liens security
interests or other encumbrances at any time levied or placed on the Collateral
and may pay for the maintenance and preservation of the Collateral. Debtor
agrees to reimburse Agent upon demand for any payment made or any expense
incurred (including reasonable attorneys' fees) by Agent pursuant to the
foregoing authorization. Should Debtor fail to pay said sum to Agent upon
demand, interest shall accrue thereon, from the date of demand until paid in
full, at the highest rate set forth in any document or instrument evidencing
any
of the Secured Obligations.
(g) Upon
Agent's request at any time or times, Debtor shall assign and deliver to Agent,
for the benefit of Lenders, any collateral and shall furnish to Agent additional
collateral of value and character satisfactory to Lenders as security for the
Secured Obligations.
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8.
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Extensions
and Compromises.
With respect to any Collateral held by Agent, for the benefit of
Lenders,
as security for the Secured Obligations, Debtor assents to all extensions
or postponements of the time of payment thereof or any other indulgence
in
connection therewith, to each substitution exchange or release of
Collateral, to the addition or release of any party primarily or
secondarily liable, to the acceptance of partial payments thereon
and to
the settlement, compromise or adjustment thereof, all in such manner
and
at such time or times as Lenders may deem advisable. Neither Agent
nor
Lenders shall have any duty as to the collection or protection of
Collateral or any income therefrom, nor as to the preservation of
rights
against prior parties, nor as to the preservation of any right pertaining
thereto, beyond the safe custody of Collateral in the possession
of Agent
or Lenders.
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9.
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Perfection
of Security Interests; Financing Statements.
At the request of Agent, (a) Debtor shall 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 (A) such 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) such other instruments as the Agent may from time to time
reasonably request for filing with the United States Patent and Trademark
office with respect to patents, trademarks, copyright of the Debtor
and
applications therefore.
To
that end, Debtor authorizes the Agent to file one or more financing
statements (which may describe the collateral as "all assets" or
"all
personal property") disclosing the Agent’s security interest in any or all
of the Collateral of the Debtor without Debtor's signature
thereon.
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10.
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Agent's
Appointment as Attorney-in-Fact.
Debtor hereby irrevocably constitutes and appoints Agent and any
officer
or agent thereof, with full power of substitution, as Debtor's true
and
lawful attorney-in-fact with full irrevocable power and authority,
after
the occurrence and during continuance of an Event of Default, in
the place
and stead of Debtor and in the name of Debtor or in Agent's own name,
from
time to time in Agent's discretion, 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
desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, hereby grants to Agent,
for the
benefit of Lenders, the power and right, on behalf of Debtor without
notice to or assent by Debtor:
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(a) To
execute, file and record all such financing statements, certificates of title
and other certificates of registration and operation and similar documents
and
instruments including, but not limited to, those relating to aircraft or marine
vessels, as Agent may deem necessary or desirable to protect, perfect and
validate the security interest of Agent therein.
(b) Upon
the
occurrence and continuance of any Event of Default, (i) to sign and endorse
any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments verifications and notices in
connection with accounts and other documents relating to the Collateral; (ii)
to
commence and prosecute any suits, actions or proceedings at law or in equity
in
any court of competent jurisdiction to collect the Collateral or any part
thereof and to enforce any other right in respect of any Collateral; (iii)
to
defend any suit, action or proceeding brought against Debtor with respect to
any
Collateral; (iv) to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges or
releases as Lenders may deem appropriate; and (v) generally, to sell, transfer,
pledge, make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though Lenders were the absolute owner
thereof for all purposes and to do, at Agent's option and Debtor's expense,
at
any time or from time to time, all acts and things which Lenders deem necessary
to protect, preserve or realize upon the Collateral and Agent's security
interest therein, in order to effect the intent of this Agreement, all as fully
and effectively as Debtor might do.
Debtor
hereby ratifies all that said attorneys shall lawfully do or cause to be done
by
virtue hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable. The powers conferred upon Agent hereunder are solely
to
protect the Lenders' interests in the Collateral and shall not impose any duty
upon Agent or Lenders to exercise any such powers. Agent and Lenders shall
be
accountable only for amounts that Agent or Lenders actually receive as a result
of the exercise of such powers and neither Agent, any Lenders nor any of their
respective officers, directors, employees or agents shall be responsible to
Debtor for any act or failure to act, except for Agent's or Lenders' own gross
negligence or willful misconduct.
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11.
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Default.
If any Event of Default shall occur and be continuing:
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(a) Agent
may, at its option and without notice, declare the unpaid balance of any or
all
of the Secured Obligations immediately due and payable and this Agreement and
any or all of the Secured Obligations in default.
(b) All
payments received by Debtor under or in connection with any of the Collateral
shall be held by Debtor in trust for Agent, shall be segregated from other
funds
of Debtor and shall forthwith upon receipt by Debtor be turned over to Agent
in
the same form as received by Debtor (duly endorsed by Debtor to Agent, if
required). Any and all such payments so received by Agent (whether from Debtor
or otherwise) may, in the sole discretion of Lenders, be held by Lenders as
collateral security for, and/or then or at any time thereafter be applied in
whole or in part by Lenders against, all or any part the Secured Obligations
in
such order as Lenders may elect. Any balance of such payments held by Agent
or
Lenders and remaining after payment in full of all the Secured Obligations
shall
be paid over to Debtor or to whomsoever may be lawfully entitled to receive
the
same. Nothing set forth in this subparagraph (b) shall authorize or be construed
to authorize Debtor to sell or otherwise dispose of any Collateral without
the
prior written consent of Lender.
(c) Agent
shall have the rights and remedies of a secured party under this Agreement,
under any other instrument or agreement securing, evidencing relating to the
Secured Obligations and under the law of the State of New York. Without limiting
the generality of the foregoing, Agent shall have the right to take possession
of the Collateral and all books and records relating to the Collateral and
for
that purpose Agent may enter upon, in accordance with law, any premises on
which
the Collateral or books and records relating to the Collateral or any part
thereof may be situated and remove the same therefrom. Debtor expressly agrees
that Agent, without demand of performance or other demand, advertisement or
notice of any kind (except the notices specified below of time and place of
public sale or disposition or time after which a private sale or disposition
is
to occur) to or upon Debtor or any other person or entity (all and each of
which
demands, advertisements and/or notices are hereby expressly waived), may
forthwith collect, receive, appropriate and realize upon the Collateral, or
any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase or sell or otherwise dispose of and deliver the Collateral (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any of the offices of any of Lenders or elsewhere
at
such prices as Lenders may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Lenders shall have the right
upon any such public sale or sales, and, to the extent permitted by law, upon
any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in Debtor. Debtor
further agrees, at Agent's request, to assemble the Collateral and to make
it
available to Agent at such places as Agent may reasonably select whether at
Debtor's premises or elsewhere. Debtor further agrees to allow Agent to use
or
occupy Debtor's premises, without charge, for the purpose of effecting Agent's
remedies in respect of the Collateral. Lenders shall apply the net proceeds
of
any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any or all
of
the Collateral or in any way relating to the rights of Agent hereunder,
including reasonable attorneys' fees and legal expenses, to the payment in
whole
or in part of the Secured Obligations, in such order as Lenders may elect,
and
only after so paying over such net proceeds and after the payment by Lenders
of
any other amount required by any provision of law, including Indiana Code
§26-1-9.1-615(a), need Agent or Lenders account for the surplus if any to
Debtor. To the extent permitted by applicable law, Debtor waives all claims,
damages and demands against Agent and Lenders arising out of the repossession,
retention, sale or disposition of the Collateral and waives relief from
valuation and appraisement laws. Debtor agrees that Agent need not give more
than ten (10) days' notice (which notification shall be deemed given when
mailed, postage prepaid, addressed to Debtor at Debtor's address set forth
at
the beginning of this Agreement, or when telecopied or telegraphed to that
address or when telephoned or otherwise communicated orally to Debtor or any
agent of Debtor at that address) of the time and place of any public sale or
of
the time after which a private sale may take place and that such notice is
reasonable notification of such matters. Debtor shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Lenders are entitled. Debtor shall
also
be liable for the costs of collecting any of the Secured Obligations otherwise
enforcing the term thereof or of this Agreement including reasonable attorneys'
fees.
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12.
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Rights
of Lenders; Collateral, Payments and Proceeds of
Collateral.
During the term of the Loans and until all Secured Obligations of
Debtor
to Lenders have been fully performed and paid in full, and so long
as any
commitment of the Lenders is outstanding, without limiting any other
right
power or remedy of Lenders or Agent, if any Lenders (a "Benefitted
Lender")
shall at any time receive any payment (other than regularly scheduled
payments of principal and interest prior to any Event of Default)
of all
or any part of the Loans, or interest thereon, or receive any Collateral
in respect thereof (whether by setoff or otherwise) in a greater
proportion than its pro rata
share, such Benefitted Lender shall purchase for cash from the other
Lenders such portions of the other Lenders' Notes, or shall provide
such
other Lenders with the benefits of any such Collateral, or the proceeds
thereof, as shall be necessary to cause the Benefitted Lender to
share the
excess payment or benefits of such Collateral or proceeds ratably
with the
other Lenders; provided however, that if all or any portion of such
excess
payment or benefits is thereafter recovered from the Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. Debtor
agrees that, to the extent that Debtor makes a payment or payments
to the
Agent or any Lender, or the Agent or any Lender receives any proceeds
of
Collateral, which payment or payments or proceeds or any part thereof
are
subsequently invalidated, declared to be fraudulent or preferential,
set
aside and/or required to be repaid to Debtor, its estate, trustee,
receiver or any other party, including, without limitation, any guarantor,
under any bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such payment or repayment, the Secured
Obligations or the part thereof which has been paid, reduced or satisfied
by such amount shall be reinstated and continued in full force and
effect
as of the date such initial payment, reduction or satisfaction occurred
and shall be secured by the Collateral.
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13.
|
General.
Any provision of this Agreement which is prohibited or unenforceable
in
any jurisdiction shall, as to such jurisdiction, be ineffective to
the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable
such
provision in any other jurisdiction. Neither Agent nor Lenders shall
be
deemed to have waived any of their rights hereunder or under any
other
agreement instrument or paper signed by Debtor unless such waiver
be in
writing and signed by Agent and Lender. No delay or omission on the
part
of Agent or Lenders exercising any right shall operate as a waiver
of such
right or any other right. All of Agent's and Lenders' rights and
remedies,
whether evidenced hereby or by any other agreement, instrument or
paper,
shall be cumulative and may be exercised singularly or concurrently.
Any
written demand upon or written notice to Debtor shall be effective
when
deposited in the mails addressed to Debtor at the address shown at
the
beginning of this Agreement. This Agreement and all rights and obligations
hereunder, including matters of construction, validity and performance,
shall be governed by the law of the State of New York. The provisions
hereof shall, as the case may require, bind or inure to the benefit
of,
the respective heirs, successors, legal representatives and assigns
of
Debtor, Agent and Lenders.
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|
14.
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Authority
of Agent.
Debtor acknowledges that notwithstanding any provision of this Agreement
to the contrary Agent may act on behalf of Lenders and may enforce
on
behalf of all Lenders any right, remedy or power granted Lenders
under
this Agreement. Debtor hereby waives any defense based on lack of
authority of the Agent.
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|
15.
|
Notices.
Any notices required hereby shall be given as provided in Section
10.09
of
the Investment Agreement.
|
|
16.
|
Counterparts.
This Agreement may be executed in two or more counterparts and when
so
executed each counterpart shall constitute an original of this Agreement
which taken together shall be one and the same agreement.
|
|
17.
|
Control
Collateral Held by Control Agent.
Notwithstanding any provision to the contrary herein, any Collateral
that
constitutes Control Collateral (as defined in the Intercreditor Agreement)
that is held by the Agent hereunder shall be deemed to be held by
the
Control Agent (as defined in the Intercreditor Agreement) in accordance
with the Intercreditor Agreement.
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|
18.
|
Intercreditor
Provision.
Notwithstanding anything herein to the contrary, the lien and security
interest granted to the Agent pursuant to this Agreement and the
exercise
of any right or remedy by the Agent hereunder are subject to the
provisions of the Intercreditor Agreement, as the same may be amended,
supplemented, modified or replaced from time to time. In the event
of any
conflict between the terms of the Intercreditor Agreement and this
Security Agreement, the terms of the Intercreditor Agreement shall
govern.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
|
GFN
NORTH AMERICA CORP.
|
|
|
By:
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/s/ Xxxx X. Xxxxxxx |
|
Name:
|
Xxxx X. Xxxxxxx |
|
Title:
|
Chief Operating Officer |
|
AGENT:
|
|
|
LAMINAR
DIRECT CAPITAL, L.L.C.
|
|
|
in
its capacity as Collateral Agent
|
|
|
By:
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/s/ Xxxxxx X. Xxxx |
|
Name:
|
Xxxxxx X. Xxxx |
|
Title:
|
Authorized Secretary |
Schedule
1
Commercial
Tort Claims
NONE
Schedule
0
Xxxxxxxxx
Xxxxxx
XXX
Xxxxx
Xxxxxxx Corp.
00
Xxxx
Xxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
