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EXHIBIT 10.28
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is entered into as
of February 24, 1999 among STERILE RECOVERIES, INC., a Florida corporation (the
"Borrower"), the Subsidiaries of the Borrower identified on the signature pages
hereto and each additional Subsidiary of the Borrower which hereinafter becomes
a party hereto by execution of a Joinder Agreement (the "Guarantors" and,
together with the Borrower, the "Obligors") and FIRST UNION NATIONAL BANK, in
its capacity as collateral agent (in such capacity, the "Agent") for the (i)
the Lenders (as defined below) and (ii) the ELLF Lender (as defined below).
RECITALS
WHEREAS, the Lenders have agreed to make loans (the "Loans") to the
Borrower and to issue Letters of Credit pursuant to the terms of that certain
Credit Agreement, dated as of the date hereof (as amended, modified, extended,
renewed or replaced from time to time, the "Credit Agreement"), among the
Borrower, the Guarantors, the Lenders party thereto and First Union National
Bank in its capacity as agent for the Lenders;
WHEREAS, the ELLF Lender has agreed to make extensions of credit to
the Borrower pursuant to the ELLF Documents (as defined below); and
WHEREAS, the Lenders and the ELLF Lender have each required that the
Obligors secure their obligations to the Lenders and the ELLF Lender,
respectively in accordance with the terms of this Security Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, the following terms which
are defined in the Uniform Commercial Code in effect in the State of
Florida on the date hereof are used herein as so defined: Accounts,
Chattel Paper, Deposit Accounts, Documents, Equipment, Farm Products,
Fixtures, General Intangibles, Instruments, Investment Property,
Inventory and Proceeds. For purposes of this Security Agreement, the
term "Lender" shall include any affiliate of any Lender which has
entered into any Hedging Agreement with the Borrower in respect of the
obligations of the Borrower under the Credit Agreement.
(b) In addition, the following terms shall have the following
meanings:
"Agency Agreement" shall have the meaning assigned thereto in
Appendix A to the Participation Agreement.
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"Contracts": all contracts and agreements to which any Obligor
is a party, as each may be amended, supplemented or otherwise modified
from time to time, including, without limitation, (i) all rights of
any Obligor to receive moneys due and to become due to it thereunder
or in connection therewith, (ii) all rights of any Obligor to damages
arising out of or for breach or default in respect thereof and (iii)
all rights of any Obligor to exercise all remedies thereunder.
"Copyright Licenses": any written agreement, naming any Obligor
as licensor, granting any right under any Copyright including, without
limitation, any thereof referred to in Schedule 1(b) hereto.
"Copyrights": (a) all registered United States copyrights in all
Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright office
including, without limitation, any thereof referred to in Schedule
1(b) hereto, and (b) all renewals thereof including, without
limitation, any thereof referred to in Schedule 1(b) hereto.
"Credit Agreement Agent" means the Agent (as defined in the
Credit Agreement).
"Credit Documents" means the Credit Documents (as defined in the
Credit Agreement).
"ELLF Lender" means First Union National Bank in its capacity as
a holder and as a lender under the Participation Agreement, as its
successors and assigns.
"ELLF Documents" means the collective reference to the
Participation Agreement, the Lease Agreement, the Agency Agreement,
the Trust Agreement and each of the other Operative Agreements, as
amended and/or modified from time to time.
"Event of Default" means the occurrence of any event or the
existence of any condition which is specified as an "Event of Default"
under the Credit Agreement or the Participation Agreement.
"Governmental Authority" means any nation, province, state or
political subdivision thereof, and any government or any Person
exercising executive, legislative, regulatory or administrative
functions of or pertaining to government, and any corporation or other
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Hedging Agreement" means any agreement with respect to an
interest rate swap, collar, cap, floor or a forward rate agreement or
other agreement regarding the hedging of interest rate risk exposure
executed in connection with hedging the interest rate exposure of the
Borrower or any of its Subsidiaries (as defined in the Credit
Agreement) under any agreement executed in connection with any Debt
(as defined in the Credit Agreement),
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and any confirming letter executed pursuant to such hedging agreement,
all as amended or supplemented from time to time.
"Lease Agreement" shall have the meaning assigned thereto in
Appendix A to the Participation Agreement.
"Lenders" means the lenders from time to time party to the
Credit Agreement.
"Operative Agreements" shall have the meaning assigned thereto
in Appendix A to the Participation Agreement.
"Participation Agreement" means that certain Participation
Agreement dated as of February 24, 1999 among the Borrower as
construction agent and lessee, First Security Bank, National
Association, as owner trustee under the SRI Realty Trust 1998-1 and
First Union National Bank, as the lender and holder.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to an Obligor of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any thereof referred to in Schedule 1(b) hereto.
"Patents": (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule 1(b) hereto,
and (b) all applications for letters patent of the United States or
any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any
thereof referred to in Schedule 1(b) hereto.
"Required Lenders" means at the time of any determination
hereunder, Lenders and the ELLF Lender which are then in compliance
with their obligations under Credit Documents and ELLF Documents
respectively holding in the aggregate at least 66% of the sum of
the Secured Obligations then outstanding.
"Secured Obligations": means a collective reference to the
following:
(a) All unpaid principal of and interest on the Loans (as
defined in the Credit Agreement) and all other obligations and
liabilities of the Obligors to the Credit Agreement Agent and the
Lenders (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of
the Loans and interest accruing at the then applicable rate provided
in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Obligor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreement, any notes issued
thereunder, any Hedging Agreement with a Lender or an affiliate of a
Lender to the extent permitted under the Credit Agreement or any other
document made, delivered or given in connection therewith, whether on
account of principal, interest,
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reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements
of counsel to the Credit Agreement Agent or the Lenders that are
required to be paid by the Obligors pursuant to the terms of the
Credit Agreement, any other Credit Document or any Hedging Agreement
with a Lender or an affiliate of a Lender to the extent permitted
under the Credit Agreement);
(b) All obligations, now existing or hereafter arising, owing by
the Obligors and/or any of their affiliates under or pursuant to the
ELLF Documents (including, without limitation, interest accruing
and/or yield at the then applicable rates provided in the ELLF
Documents after the maturity date and interest and/or yield accruing
at the then applicable rates provided in the ELLF Documents after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to any
Obligor, whether or not a claim for post-filing or post-petition
interest in allowed in such proceeding) whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection
with the Participation Agreement, the Lease Agreement, the Agency
Agreement, the Trust Agreement, or any of the other Operative
Agreements, whether on account of principal, advanced amounts,
interest, yield, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the ELLF Lender that are required to be
paid by the Obligors pursuant to the terms of the ELLF Documents.
(c) all other indebtedness, liabilities and obligations of any
kind or nature, now existing or hereafter arising, owing by the
Obligors to any Lender or the ELLF Lender, howsoever evidenced,
created, incurred or acquired, whether primary, secondary, direct,
contingent, or joint and several, and
(d) all liabilities arising under Hedging Agreements between the
Borrower and any Lender or an affiliate of a Lender in respect of the
obligations of the Borrower under the Credit Agreement.
"Secured Parties" means the collective reference to the Lenders
and the ELLF Lender.
"Trademark License": means any agreement, written or oral,
providing for the grant by or to an Obligor of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule 1(b) hereto.
"Trademarks": (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 1(b) hereto, and (b) all renewals
thereof.
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"Trust Agreement" shall have the meaning assigned thereto in
Appendix A to the Participation Agreement.
"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration or otherwise, of the Secured Obligations, each Obligor hereby
grants to the Agent, for the benefit of the Secured Parties, a continuing
security interest in, and a right to set off against, any and all right, title
and interest of such Obligor in and to the following, whether now owned or
existing or owned, acquired, or arising hereafter (collectively, the
"Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Copyrights;
(d) all Copyright Licenses;
(e) all Deposit Accounts;
(f) all Documents;
(g) all Equipment;
(h) all Fixtures;
(i) all General Intangibles, including, without limitation, all
rights under the Contracts;
(j) all Instruments;
(k) all Investment Property;
(l) all Inventory;
(m) all Patents;
(n) all Patent Licenses;
(o) all Trademarks;
(p) all Trademark Licenses;
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(q) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks, and related data processing
software (owned by such Obligor or in which it has an
interest) that at any time evidence or contain information
relating to any Collateral or are otherwise necessary or
helpful in the collection thereof or realization thereupon;
(r) to the extent not otherwise included, all other personal
property of such Obligor; and
(s) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing.
The Obligors and the Agent, on behalf of the Secured Parties, 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 in the nature of a sale of any Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks or Trademark Licenses.
3. Representations and Warranties. Each Obligor hereby represents
and warrants to the Agent, for the benefit of the Secured Parties, that so long
as any of the Secured Obligations remain outstanding or any Credit Document,
ELLF Document or Hedging Agreement is in effect:
(a) Chief Executive Office; Books & Records. Each Obligor's
chief executive office and chief place of business is located at the
location set forth on Schedule 3(a) hereto, and the Borrower keeps its
books and records at such location.
(b) Location of Collateral, Etc. The locations of all Collateral
owned by each Obligor is as shown on Schedule 3(b) hereto.
(c) Ownership. Each Obligor is the legal and beneficial owner of
the Collateral and has the right to pledge, sell, assign or transfer
the same. Each Obligor's legal name is as shown in this Security
Agreement and no Obligor has in the past four months changed its name,
been party to a merger, consolidation or other change in structure or
used any tradename or d/b/a except as set forth in Schedule 3(c)
attached hereto.
(d) Security Interest/Priority. This Security Agreement creates
a valid security interest in favor of the Agent, for the benefit of
the Secured Parties, in the Collateral and, when properly perfected by
filing, shall constitute a valid perfected security interest in the
Collateral, to the extent such security can be perfected by filing
under the UCC, free and clear of all liens and other encumbrances
other than Permitted Liens (as defined in the Credit Agreement).
(e) Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
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(f) Accounts. (i) Each Account of the Obligors and the papers
and documents relating thereto are genuine and in all material
respects what they purport to be, (ii) each Account arises out of (A)
a bona fide sale of goods sold and delivered by such Obligor (or is in
the process of being delivered) or (B) services theretofore actually
rendered by such Obligor to, the account debtor named therein and
(iii) no Account of an Obligor is evidenced by any Instrument or
Chattel Paper unless such Instrument or Chattel Paper has been
theretofore endorsed over and delivered to the Agent.
(g) Copyrights, Patents and Trademarks.
(i) Schedule 1(b) hereto includes all Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark
Licenses owned by the Obligors in their own names as of the date
hereof.
(ii) To the best of each Obligor's knowledge, each
Copyright, Patent and Trademark of the Borrower is valid,
subsisting, unexpired, enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 1(b) hereto, none of
such Copyrights, Patents and Trademarks is the subject of any
licensing or franchise agreement.
(iv) No holding, decision or judgment has been rendered by
any court, tribunal, agency or other Governmental Authority
which would limit, cancel or question the validity of any
Copyright, Patent or Trademark.
(v) No action or proceeding is pending seeking to limit,
cancel or question the validity of any Copyright, Patent or
Trademark, or which, if adversely determined, would have a
material adverse effect on the value of such Copyright, Patent
or Trademark.
(vi) All applications pertaining to the Copyrights, Patents
and Trademarks of each Obligor have been duly and properly
filed, and all registrations or letters pertaining to such
Copyrights, Patents and Trademarks have been duly and properly
filed and issued, and all of such Copyrights, Patents and
Trademarks are valid and enforceable.
(vii) No Obligor has made any assignment or agreement in
conflict with the security interest in the Copyrights, Patents
or Trademarks of each Obligor hereunder.
(h) Inventory. No Inventory is held by an Obligor pursuant to
consignment, sale or return, sale on approval or similar arrangement.
4. Covenants. Each Obligor covenants that, so long as any of the
Secured Obligations remain outstanding or any Credit Document, ELLF Document or
Hedging Agreement is in effect, it shall:
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(a) Other Liens. Defend the Collateral against the claims and
demands of all other parties claiming an interest therein, keep the
Collateral free from all liens and other encumbrances other than
Permitted Liens (as defined in the Credit Agreement), and not sell,
exchange, transfer, assign, lease or otherwise dispose of the
Collateral or any interest therein, except in the ordinary course of
business.
(b) Preservation of Collateral. Keep the Collateral in good
order, condition and repair and not use the Collateral in violation of
the provisions of this Security Agreement or any other agreement
relating to the Collateral or any policy insuring the Collateral or
any applicable statute, law, bylaw, rule, regulation or ordinance.
(c) Instruments/Chattel Paper. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by
any Instrument or Chattel Paper, promptly deliver such Instrument or
Chattel Paper to the Agent, duly endorsed in a manner satisfactory to
the Agent, to be held as Collateral pursuant to this Security
Agreement.
(d) Change in Location. Not, without providing 30 days prior
written notice to the Agent and without filing such amendments to any
previously filed financing statements as the Agent may require, (a)
change the location of its chief executive office and chief place of
business (as well as its books and records) from the locations set
forth on Schedule 3(a) hereto, (b) change the location of its
Collateral from the locations set forth on Schedule 3(b) hereto, or
(c) change its name, be party to a merger, consolidation or other
change in structure or use any tradename or d/b/a.
(e) Inspection. Upon reasonable notice, at such reasonable times
and as often as may be reasonably desired, allow the Agent or its
representatives free access to and right of inspection of the
Collateral.
(f) Perfection of Security Interest. Execute and deliver to the
Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of
existing documents, as the Agent may reasonably request) and do all
such other things as the Agent may reasonably deem necessary or
appropriate (i) to assure to the Agent its security interests
hereunder, including (A) such financing statements (including renewal
statements) or amendments thereof or supplements thereto or other
instruments as the Agent may from time to time reasonably request in
order to perfect and maintain the security interests granted hereunder
in accordance with the UCC, (B) with regard to Copyrights, a Notice of
Grant of Security Interest in Copyrights in the form of Schedule
4(f)(i), (C) with regard to Patents, a Notice of Grant of Security
Interest in Patents for filing with the United States Patent and
Trademark Office in the form of Schedule 4(f)(ii) attached hereto and
(D) with regard to Trademarks, a Notice of Grant of Security Interest
in Trademarks for filing with the United States Patent and Trademark
Office in the form of Schedule 4(f)(iii) attached hereto, (ii) to
consummate the transactions contemplated hereby and (iii) to otherwise
protect and assure the Agent of its rights and interests hereunder. To
that end, each Obligor agrees that the Agent may file one or more
financing statements disclosing the Agent's security interest in any
or all of the Collateral without, to
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the extent permitted by law, such Obligor's signature thereon, and
further each Obligor also hereby irrevocably makes, constitutes and
appoints the Agent, its nominee or any other person whom the Agent may
designate, as such Obligor's attorney in fact with full power and for
the limited purpose to sign in the name of such Obligor any such
financing statements, or amendments and supplements to financing
statements, renewal financing statements, notices or any similar
documents which in the Agent's reasonable discretion would be
necessary, appropriate or convenient in order to perfect and maintain
perfection of the security interests granted hereunder, such power,
being coupled with an interest, being and remaining irrevocable so
long as the Credit Agreement is in effect or any amounts payable
thereunder or under any other Credit Document, any ELLF Document or
any Hedging Agreement shall remain outstanding. Each Obligor hereby
agrees that a carbon, photographic or other reproduction of this
Security Agreement or any such financing statement is sufficient for
filing as a financing statement by the Agent without notice thereof to
such Obligor wherever the Agent may in its sole discretion desire to
file the same. In the event for any reason the law of any jurisdiction
other than Florida becomes or is applicable to the Collateral of any
Obligor or any part thereof, or to any of the Secured Obligations,
such Obligor agrees to execute and deliver all such instruments and to
do all such other things as the Agent in its sole discretion
reasonably deems necessary or appropriate to preserve, protect and
enforce the security interests of the Agent under the law of such
other jurisdiction (and, if an Obligor shall fail to do so promptly
upon the request of the Agent, then the Agent may execute any and all
such requested documents on behalf of such Obligor pursuant to the
power of attorney granted hereinabove). If any Collateral is in the
possession or control of an Obligor's agents and the Agent so
requests, such Obligor agrees to notify such agents in writing of the
Agent's security interest therein and, upon the Agent's request,
instruct them to hold all such Collateral for its account, on behalf
of the Secured Parties, and subject to the Agent's further
instructions. Each Obligor agrees to xxxx its books and records to
reflect the security interest of the Agent in the Collateral.
(g) Covenants Relating to Accounts. Not grant or extend the time
for payment of any Account, or compromise or settle any Account for
less than the full amount thereof, or release any person or property,
in whole or in part, from payment thereof, or allow any credit or
discount thereon, other than as normal and customary in the ordinary
course of the Borrower's business.
(h) Covenants Relating to Inventory.
(i) Maintain, keep and preserve the Inventory in good
condition at its own cost and expense.
(ii) Deliver documents of title to the Agent with respect to
any Inventory which is evidenced by a document of title.
(i) Covenants Relating to Copyrights.
(i) Employ each Copyright with such notice of copyright as
may be required by law to secure copyright protection.
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(ii) Not do any act or knowingly omit to do any act whereby
any Copyright may become invalidated and (A) not do any act, or
knowingly omit to do any act, whereby any Copyright may become
injected into the public domain; (B) notify the Agent
immediately if it knows, or has reason to know, that any
Copyright may become injected into the public domain or of any
adverse determination or development (including, without
limitation, the institution of, or any such determination or
development in, any court or tribunal in the United States or
any other country) regarding an Obligor's ownership of any such
Copyright or its validity; (C) take all necessary steps as it
shall deem appropriate under the circumstances, to maintain and
pursue each application (and to obtain the relevant
registration) and to maintain each registration of each
Copyright owned by an Obligor including, without limitation,
filing of applications for renewal where necessary; and (D)
promptly notify the Agent of any material infringement of any
Copyright of an Obligor of which it becomes aware and take such
actions as it shall reasonably deem appropriate under the
circumstances to protect such Copyright, including, where
appropriate, the bringing of suit for infringement, seeking
injunctive relief and seeking to recover any and all damages for
such infringement.
(iii) Not make any assignment or agreement in conflict with
the security interest in the Copyrights of each Obligor
hereunder.
(j) Covenants Relating to Patents and Trademarks.
(i) (A) Continue to use each Trademark on each and every
trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in
order to maintain such Trademark in full force free from any
claim of abandonment for non-use, (B) maintain as in the past
the quality of products and services offered under such
Trademark, (C) employ such Trademark with the appropriate notice
of registration, (D) not adopt or use any xxxx which is
confusingly similar or a colorable imitation of such Trademark
unless the Agent, for the ratable benefit of the Secured
Parties, shall obtain a perfected security interest in such xxxx
pursuant to this Security Agreement, and (E) not (and not permit
any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby any Trademark may become invalidated.
(ii) Not do any act, or omit to do any act, whereby any
Patent may become abandoned or dedicated.
(iii) Notify the Agent immediately if it knows, or has
reason to know, that any application or registration relating to
any Patent or Trademark may become abandoned or dedicated, or of
any adverse determination or development (including, without
limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office or any court or tribunal in any country)
regarding an Obligor's ownership of any Patent or Trademark or
its right to register the same or to keep and maintain the same.
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(iv) Whenever an Obligor, either by itself or through an
agent, employee, licensee or designee, shall file an application
for the registration of any Patent or Trademark with the United
States Patent and Trademark Office or any similar office or
agency in any other country or any political subdivision
thereof, such Obligor shall report such filing to the Agent
within five Business Days after the last day of the fiscal
quarter in which such filing occurs. Upon request of the Agent,
an Obligor shall execute and deliver any and all agreements,
instruments, documents and papers as the Agent may request to
evidence the Agent's security interest in any Patent or
Trademark and the goodwill and general intangibles of an Obligor
relating thereto or represented thereby.
(v) Take all reasonable and necessary steps, including,
without limitation, in any proceeding before the United States
Patent and Trademark Office, or any similar office or agency in
any other country or any political subdivision thereof, to
maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the Patents
and Trademarks, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of
incontestability.
(vi) Promptly notify the Agent after it learns that any
Patent or Trademark included in the Collateral is infringed,
misappropriated or diluted by a third party and promptly xxx for
infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages for
such infringement, misappropriation or dilution, or take such
other actions as it shall reasonably deem appropriate under the
circumstances to protect such Patent or Trademark.
(vii) Not make any assignment or agreement in conflict with
the security interest in the Patents or Trademarks of each
Obligor hereunder.
(k) New Patents, Copyrights and Trademarks. Promptly provide the
Agent with (i) a listing of all applications, if any, for new
Copyrights, Patents or Trademarks (together with a listing of the
issuance of registrations or letters on present applications), which
new applications and issued registrations or letters shall be subject
to the terms and conditions hereunder, and (ii) (A) with respect to
Copyrights, a duly executed Notice of Security Interest in Copyrights,
(B) with respect to Patents, a duly executed Notice of Security
Interest in Patents, (C) with respect to Trademarks, a duly executed
Notice of Security Interest in Trademarks or (D) such other duly
executed documents as the Agent may request in a form acceptable to
counsel for the Agent and suitable for recording to evidence the
security interest in the Copyright, Patent or Trademark which is the
subject of such new application.
(l) Insurance. Have and maintain at all times the insurance
coverage set forth in the Credit Agreement. All insurance proceeds
shall be subject to the lien of the Agent
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hereunder. The Agent shall be named as loss payee and additional
insured on all casualty and liability policies of such Obligor.
(m) Equipment. At all times, maintain its Equipment in good
working order and in compliance with all applicable safety standards.
5. Special Provisions Relating to Accounts. Anything herein to the
contrary notwithstanding, each of the Obligors shall remain liable under each
of the Accounts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise to each such Account. Neither the Agent nor any
Secured Party shall have any obligation or liability under any Account (or any
agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Agent or any Secured Party of any payment
relating to such Account pursuant hereto, nor shall the Agent or any Secured
Party be obligated in any manner to perform any of the obligations of an
Obligor under or pursuant to any Account (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party under any Account (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
6. Special Provisions Regarding Inventory. Unless and until an
Event of Default occurs and is continuing and the Agent instructs the Obligors
otherwise, each Obligor may, without further consent or approval of the Agent,
use, consume, sell, lease and exchange the Inventory in the ordinary course of
its business as presently conducted, whereupon, in the case of a sale or
exchange, the security interest created hereby in the Inventory so sold or
exchanged (but not in any proceeds arising from such sale or exchange) shall
cease immediately without any further action on the part of the Agent.
7. Advances by Secured Parties. On failure of any Obligor to
perform any of the covenants and agreements contained herein, the Agent may, at
its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Agent may reasonably deem advisable in the
performance thereof, including, without limitation, the payment of any
insurance premiums, the payment of any taxes, a payment to obtain a release of
a lien or potential lien, reasonable expenditures made in defending against any
adverse claim and all other reasonable expenditures which the Agent or the
Secured Parties may make for the protection of the security hereof or which
they may be compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Obligors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in the Credit Agreement. No
such performance of any covenant or agreement by the Agent or the Secured
Parties on behalf of the Borrower, and no such advance or expenditure therefor,
shall relieve the Obligors of any default under the terms of this Security
Agreement or the other Credit Documents, the ELLF Documents or any Hedging
Agreement. The Agent or any Secured Party may make any payment hereby
authorized in accordance with any xxxx, statement or estimate procured from the
12
13
appropriate public office or holder of the claim to be discharged without
inquiry into the accuracy of such xxxx, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by an
Obligor in appropriate proceedings and against which adequate reserves are
being maintained in accordance with GAAP.
8. Events of Default. The occurrence of an event which under the
Credit Agreement would constitute an Event of Default shall be an Event of
Default hereunder (an "Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of Default
and during continuation thereof, the Agent shall have, in addition to
the rights and remedies provided herein, in the Credit Documents, in
the ELLF Documents, in the Hedging Agreements or by law (including,
but not limited to, the rights and remedies set forth in the Uniform
Commercial Code of the jurisdiction applicable to the affected
Collateral), the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where
the rights and remedies are asserted and regardless of whether the UCC
applies to the affected Collateral), and further, the Agent may, with
or without judicial process or the aid and assistance of others, (i)
enter on any premises on which any of the Collateral may be located
and, without resistance or interference by the Obligors, take
possession of the Collateral, (ii) dispose of any Collateral on any
such premises, (iii) require the Obligors to assemble and make
available to the Agent at the expense of the Obligors any Collateral
at any place and time designated by the Agent which is reasonably
convenient to both parties, (iv) remove any Collateral from any such
premises for the purpose of effecting sale or other disposition
thereof, and/or (v) without demand and without advertisement, notice,
hearing or process of law, all of which each of the Obligors hereby
waives to the fullest extent permitted by law, at any place and time
or times, sell and deliver any or all Collateral held by or for it at
public or private sale, by one or more contracts, in one or more
parcels, for cash, upon credit or otherwise, at such prices and upon
such terms as the Agent deems advisable, in its sole discretion
(subject to any and all mandatory legal requirements). In addition to
all other sums due the Agent and the Secured Parties with respect to
the Secured Obligations, the Obligors shall pay to the Agent and each
of the Secured Parties all reasonable documented costs and expenses
incurred by the Agent or any such Secured Party, including, but not
limited to, reasonable attorneys' fees and court costs, in obtaining
or liquidating the Collateral, in enforcing payment of the Secured
Obligations, or in the prosecution or defense of any action or
proceeding by or against the Agent or the Secured Parties or the
Obligors concerning any matter arising out of or connected with this
Security Agreement or the Collateral or the Secured Obligations,
including without limitation any of the foregoing arising in, arising
under or related to a case under the United States Bankruptcy Code. To
the extent the rights of notice cannot be legally waived hereunder,
each Obligor agrees that any requirement of reasonable notice shall be
met if such notice is personally served on or mailed, postage prepaid,
to the Borrower in accordance with the provisions of the Credit
Agreement at least 10 days before the time of sale or other event
giving rise to the requirement of such notice.
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14
The Agent shall not be obligated to make any sale or other disposition
of the Collateral regardless of notice having been given. To the
extent permitted by law, any Secured Party may be a purchaser at any
such sale. To the extent permitted by applicable law, each of the
Obligors hereby waives all of its rights of redemption with respect to
any such sale. Subject to the provisions of applicable law, the Agent
may postpone or cause the postponement of the sale of all or any
portion of the Collateral by announcement at the time and place of
such sale, and such sale may, without further notice, to the extent
permitted by law, be made at the time and place to which the sale was
postponed, or the Agent may further postpone such sale by announcement
made at such time and place.
(b) Access. In addition to the rights and remedies hereunder,
upon the occurrence of an Event of Default and during the continuance
thereof, the Agent shall have the right to take physical possession of
any and all of the Collateral and anything found therein, the right
for that purpose to enter without legal process and without breach of
the peace any premises where the Collateral may be found (provided
such entry be done lawfully), and the right to maintain such
possession on such Obligor's premises (each Obligor hereby agreeing to
lease warehouses and storage facilities to the Agent or its designee
if the Agent so requests) or to remove the Collateral or any part
thereof to such other places as the Agent may desire. Upon the
occurrence of any Event of Default and at any time thereafter, unless
and until such Event of Default has been waived by the Agent with the
consent of each Secured Party or the Required Lenders as provided in
the Credit Agreement or the ELLF Documents, or cured to the
satisfaction of the Secured Parties, the Obligors shall, upon the
Agent's demand, assemble the Collateral and make it available to the
Agent at a place reasonably designated by the Agent. If the Agent
exercises its right to take possession of the Collateral, the Obligors
shall also at their expense perform any and all other steps reasonably
requested by the Agent to preserve and protect the security interest
hereby granted in the Collateral, such as placing and maintaining
signs indicating the security interest of the Agent, appointing
overseers for the Collateral and maintaining inventory records.
(c) Nonexclusive Nature of Remedies. Failure by the Agent or the
Secured Parties to exercise any right, remedy or option under this
Security Agreement, any other Credit Document, any ELLF Document, any
Hedging Agreement or as provided by law, or any delay by the Agent or
the Secured Parties in exercising the same, shall not operate as a
waiver of any such right, remedy or option. No waiver hereunder shall
be effective unless it is in writing, signed by the party against whom
such waiver is sought to be enforced and then only to the extent
specifically stated, which in the case of the Agent and the Secured
Parties shall only be granted as provided herein. To the extent
permitted by law, neither the Agent, the Secured Parties, nor any
party acting as attorney for the Agent or the Secured Parties, shall
be liable hereunder for any acts or omissions or for any error of
judgment or mistake of fact or law other than their gross negligence
or willful misconduct hereunder. The rights and remedies of the Agent
and the Secured Parties under this Security Agreement shall be
cumulative and not exclusive of any other right or remedy which the
Agent or the Secured Parties may have.
14
15
(d) Retention of Collateral. Upon the occurrence and during the
continuance of an Event of Default, the Agent may, after providing the
notices required by Section 9-505(2) of the UCC or otherwise complying
with the requirements of applicable law of the relevant jurisdiction,
to the extent the Agent is in possession of any of the Collateral,
retain the Collateral in satisfaction of the Secured Obligations.
Unless and until the Agent shall have provided such notices, however,
the Agent shall not be deemed to have retained any Collateral in
satisfaction of any Secured Obligations for any reason.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of attorney
contained herein, each Obligor hereby designates and appoints the
Agent, and each of its designees or agents, as attorney-in-fact of
such Obligor, irrevocably and with power of substitution, with
authority to take any or all of the following actions upon the
occurrence and during the continuance of an Event of Default:
(i) to demand, collect or settle, compromise, adjust,
give discharges and releases, all as the Agent may reasonably
determine;
(ii) to commence and prosecute any actions at any court for
the purposes of collecting any Collateral and enforcing any
other right in respect thereof;
(iii) to defend, settle or compromise any action brought
and, in connection therewith, give such discharge or release as
the Agent may deem reasonably appropriate;
(iv) receive, open and dispose of mail addressed to an
Obligor and endorse checks, notes, drafts, acceptances, money
orders, bills of lading, warehouse receipts or other instruments
or documents evidencing payment, shipment or storage of the
goods giving rise to the Collateral on behalf of and in the name
of such Obligor, or securing, or relating to the Collateral;
(v) sell, assign, transfer, make any agreement in respect
of, or otherwise deal with or exercise rights in respect of, any
Collateral or the goods or services which have given rise
thereto, as fully and completely as though the Agent were the
absolute owner thereof for all purposes;
(vi) adjust and settle claims under any insurance policy
relating thereto;
(vii) execute and deliver all assignments, conveyances,
statements, financing statements, renewal financing statements,
security agreements, affidavits, notices and other agreements,
instruments and documents that the Agent may determine necessary
in order to perfect and maintain the security interests and
liens granted in this Security Agreement
15
16
and in order to fully consummate all of the transactions
contemplated therein;
(viii) institute any foreclosure proceedings that the Agent
may deem appropriate; and
(ix) do and perform all such other acts and things as the
Agent may reasonably deem to be necessary, proper or convenient
in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall
be irrevocable for so long as any of the Secured Obligations remain
outstanding or any Credit Document, any ELLF Document or any Hedging
Agreement is in effect. The Agent shall be under no duty to exercise
or withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Agent in this Security
Agreement, and shall not be liable for any failure to do so or any
delay in doing so. The Agent shall not be liable for any act or
omission or for any error of judgment or any mistake of fact or law in
its individual capacity or its capacity as attorney-in-fact except
acts or omissions resulting from its gross negligence or willful
misconduct. This power of attorney is conferred on the Agent solely to
protect, preserve and realize upon its security interest in the
Collateral.
(b) Performance by the Agent of Obligations. If any Obligor
fails to perform any agreement or obligation contained herein, the
Agent itself may perform, or cause performance of, such agreement or
obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Obligors on a joint and several
basis pursuant to Section 11 hereof.
(c) Assignment by the Agent. The Agent may, from time to time,
assign the Secured Obligations and any portion thereof and/or the
Collateral and any portion thereof, to a successor Agent appointed
pursuant to the terms of the Credit Documents and ELLF Documents, and
the assignee shall be entitled to all of the rights and remedies of
the Agent under this Security Agreement in relation thereto.
(d) The Agent's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Collateral while
being held by the Agent hereunder, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood
and agreed that the Obligors shall be responsible for preservation of
all rights in the Collateral, and the Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering
the surrender of it to the Obligors. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the Agent
shall not have responsibility for taking any necessary steps to
preserve rights against any parties with respect to any of the
Collateral.
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17
11. Application of Proceeds. Upon the occurrence of and during the
continuance of an Event of Default, the Proceeds and avails of the Collateral
at any time received by the Agent shall, when received by the Agent in cash or
its equivalent, be applied as follows: first, to all reasonable costs and
expenses of the Agent (including without limitation, reasonable attorneys' fees
and expenses) incurred in connection with the implementation and/or enforcement
of this Security Agreement; second, to the payment of any fees owed to the
Credit Agreement Agent or the ELLF Lender; third, to all costs and expenses of
the Secured Parties (including without limitation reasonable attorneys' fees
and expenses) incurred in connection with the implementation and/or enforcement
of this Security Agreement and/or any of the other Credit Documents and the
Operative Agreements; fourth, to the Secured Parties, ratably, in accordance
with the respective amounts of the Secured Obligations constituting the then
aggregate unpaid principal amount of the Loans, together with all accrued and
unpaid interest thereon at such time and the Secured Obligations constituting
the then aggregate unpaid principal amount and/or advanced amounts owing
pursuant to the ELLF Documents together with all accrued and unpaid interest
and/or yield thereon at such time; fifth, to all other amounts payable with
respect to the Secured Obligations; and sixth, to the payment of the surplus,
if any, to whoever may be lawfully entitled to receive such surplus. The
Obligors shall remain liable to the Agent and the Lenders on a joint and
several basis for any deficiency.
12. Costs of Counsel. If at any time hereafter, whether upon the
occurrence of an Event of Default or not, the Agent employs counsel to prepare
or consider amendments, waivers or consents with respect to this Security
Agreement, or to take action or make a response in or with respect to any legal
or arbitral proceeding relating to this Security Agreement or relating to the
Collateral, or to protect the Collateral or exercise any rights or remedies
under this Security Agreement or with respect to the Collateral, then the
Obligors agree to promptly pay upon demand any and all such reasonable
documented costs and expenses of the Agent or the Secured Parties, all of which
costs and expenses shall constitute Secured Obligations hereunder.
13. Continuing Agreement.
(a) This Security Agreement shall be a continuing agreement in
every respect and shall remain in full force and effect so long as any
of the Secured Obligations remain outstanding or any Credit Document,
any ELLF Document or Hedging Agreement is in effect or any amounts
payable thereunder or under any other Credit Document shall remain
outstanding (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Credit Documents or the ELLF Documents). Upon such payment and
termination, this Security Agreement shall be automatically terminated
and, the Agent shall, upon the request and at the expense of the
Obligors, forthwith release all of its liens and security interests
hereunder and shall execute and deliver all UCC termination statements
and/or other documents reasonably requested by the Obligors evidencing
such termination. Notwithstanding the foregoing all releases and
indemnities provided hereunder shall survive termination of this
Security Agreement.
(b) This Security Agreement shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment,
in whole or in part, of any of the Secured Obligations is rescinded or
must otherwise be restored or returned by the Agent or
17
18
any Secured Party as a preference, fraudulent conveyance or otherwise
under any bankruptcy, insolvency or similar law, all as though such
payment had not been made; provided that in the event payment of all
or any part of the Secured Obligations is rescinded or must be
restored or returned, all reasonable costs and expenses (including
without limitation, any reasonable legal fees and disbursements)
incurred by the Agent or any Secured Party in defending and enforcing
such reinstatement shall be deemed to be included as a part of the
Secured Obligations.
14. Amendments; Waivers; Modifications. This Security Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except by a written instrument executed by the Obligors and the
Agent; provided, that the Agent may not enter into any such amendment, waiver,
supplement or modification without the prior written consent of the Required
Lenders.
15. Successors in Interest. This Security Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Obligor, its successors and assigns and shall inure, together with the rights
and remedies of the Agent and the Secured Parties hereunder, to the benefit of
the Agent and the Secured Parties and their successors and assigns; provided,
however, that none of the Obligors may assign its rights or delegate its duties
hereunder without the prior written consent of the Secured Parties. To the
fullest extent permitted by law, each Obligor hereby releases the Agent and
each Secured Party and their respective successors and assigns, from any
liability for any act or omission relating to this Security Agreement or the
Collateral, except for any liability arising from the gross negligence or
willful misconduct of the Agent, or such Secured Party, or its officers,
employees or agents.
16. Notices. All notices required or permitted to be given under
this Security Agreement shall be in made in writing and delivered to the
parties hereto at the addresses specified below:
if to any Obligor:
Sterile Recoveries, Inc.
------------------------
------------------------
if to the Agent:
First Union National Bank
------------------------
------------------------
17. Counterparts. This Security Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
18
19
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Security Agreement.
19. Governing Law; Submission to Jurisdiction; Venue; Arbitration.
THIS SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF FLORIDA. THE PROVISIONS OF THE CREDIT AGREEMENT RELATING
TO SUBMISSION TO JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OBLIGOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF THIS SECURITY AGREEMENT, THE CREDIT DOCUMENTS, THE
ELLF DOCUMENTS OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR
THERETO.
21. Severability. If any provision of the Security Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
22. Entirety. This Security Agreement, the other Credit Documents,
the ELLF Document and the Hedging Agreements represent the entire agreement of
the parties hereto and thereto, and supersede all prior agreements and
understandings, oral or written, if any, including any commitment letters or
correspondence relating to the Credit Documents, the ELLF Documents, the
Hedging Agreements or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of the Obligors
hereunder shall survive the execution and delivery of this Security Agreement,
the other Credit Documents, the ELLF Documents and the Hedging Agreements and
the making of the Loans.
24. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the Collateral
(including, without limitation, real property and securities owned by an
Obligor), or by a guarantee, endorsement or property of any other Person, then
the Agent and the Secured Parties shall have the right to proceed against such
other property, guarantee or endorsement upon the occurrence of any Event of
Default, and the Agent and the Secured Parties shall have the right, in their
sole discretion, to determine which rights, security, liens, security interests
or remedies the Agent and the Secured Parties shall at any time pursue,
relinquish, subordinate, modify or take with respect thereto, without in any
way modifying or affecting any of them or any of the Agent's and the Secured
Parties' rights or the Secured Obligations under this Security Agreement, under
any other of the Credit Documents, the ELLF Documents or under any Hedging
Agreement.
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25. Rights of Required Lenders. All rights of the Agent hereunder,
if not exercised by the Agent, may be exercised by the Required Lenders.
26. Joint and Several Obligations of Obligors.
(a) Each of the Obligors is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under the Credit Agreement and the ELLF
Lender under the ELLF Documents, for the mutual benefit, directly and
indirectly, of each of the Obligors and in consideration of the
undertakings of each of the Obligors to accept joint and several
liability for the obligations of each of them.
(b) Each of the Obligors jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Obligors with respect to the payment and performance of all of the
Secured Obligations arising under this Security Agreement, the other
Credit Documents, the ELLF Documents and the Hedging Agreements, it
being the intention of the parties hereto that all the Secured
Obligations shall be the joint and several obligations of each of the
Obligors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary contained
herein, in any other of the Credit Documents or in any Hedging
Agreement, the obligations of each Guarantor hereunder shall be
limited to an aggregate amount equal to the largest amount that would
not render such obligations subject to avoidance under Section 548 of
the United States Bankruptcy Code or any comparable provisions of any
applicable state law.
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Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: STERILE RECOVERIES, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------
Title: EVP
--------------------------------
GUARANTORS: XXXXX SURGICAL ENTERPRISES, INC.,
an Ohio corporation
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------
Title: EVP
--------------------------------
AGENT: FIRST UNION NATIONAL BANK,
as Agent
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
22
SCHEDULE 1(b)
INTELLECTUAL PROPERTY
Xxxx Application/Registration No. Filing/Registration Date
---- ---------------------------- ------------------------
Sterile Recoveries, Inc. 75/282,128 4/28/97
SRI 75/282,127 4/28/97
Xxxxx 1,533,180 4/4/89
Xxxxx 1,573,840 12/26/89
------------------------
The Borrower expects to file an application for the following trademarks within
30 days:
Surgical Express
Xxxxxx
00
SCHEDULE 3(a)
CHIEF EXECUTIVE XXXXXX
00000 X.X. Xxxxxxx 00 X.
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
24
SCHEDULE 3(b)
LOCATIONS OF COLLATERAL
See Schedule 6.1(w) to the Credit Agreement. The Obligors' carts and reusable
surgical products circulate continuously between the Obligors' facilities and
their customers' locations.
25
SCHEDULE 3(c)
MERGERS, CONSOLIDATIONS, CHANGE IN STRUCTURE OR USE OF
TRADENAMES OR D/B/A'S
See Schedule 6.1(x) to the Credit Agreement.
26
SCHEDULE 4(f)(i)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
February 24, 1999 as the same may be amended, modified, extended or restated
from time to time, the "Security Agreement") by and between the Obligors party
thereto (the "Obligors") and First Union National Bank, as agent (the "Agent")
for the Secured Parties referenced therein (the "Secured Parties"), the
undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the copyrights and copyright applications shown below to
the Agent for the ratable benefit of Secured Parties:
COPYRIGHTS
-----------------------
Date of
Copyright No. Description of Copyright Copyright
------------- ------------------------ ---------
Copyright Applications
------------------------
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
---------------- ------------------------ -----------------
The Obligors and the Agent hereby acknowledge and agree that the
security interest in the foregoing copyrights and copyright applications (i)
may only be terminated in accordance with the terms of the Security Agreement
and (ii) is not to be construed as an assignment of any copyright or copyright
application.
27
Very truly yours,
[OBLIGOR]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Acknowledged and Accepted:
FIRST UNION NATIONAL BANK,
as Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
2
28
SCHEDULE 4(f)(ii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
February 24, 1999 (the "Security Agreement") by and between the Obligors party
thereto (the "Obligors") and First Union National Bank, as agent (the "Agent")
for the Secured Parties referenced therein (the "Secured Parties"), the
undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the patents and patent applications shown below to the
Agent for the ratable benefit of the Secured Parties:
PATENTS
---------------------------
Description of Patent Date of
Patent No. Item Patent
---------- --------------------- -------
Patent Applications
---------------------------
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
---------------- --------------------- --------------
The Obligors and the Agent hereby acknowledge and agree that the
security interest in the foregoing patents and patent applications (i) may only
be terminated in accordance with the terms of the Security Agreement and (ii)
is not to be construed as an assignment of any patent or patent application.
29
Very truly yours,
[OBLIGOR]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Acknowledged and Accepted:
FIRST UNION NATIONAL BANK,
as Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
2
30
SCHEDULE 4(f)(iii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
February 24, 1999 (the "Security Agreement") by and between the Obligors party
thereto (the "Obligors") and First Union National Bank, as agent (the "Agent")
for the Secured Parties referenced therein (the "Secured Parties"), the
undersigned Obligor has granted a continuing security interest in and
continuing lien upon, the trademarks and trademark applications shown below to
the Agent for the ratable benefit of the Secured Parties:
TRADEMARKS
------------------------------
Description of Trademark Date of
Trademark No. Item Trademark
------------- ------------------------ ---------
Trademark Applications
------------------------------
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
---------------- ------------------------ -----------------
The Obligors and the Agent hereby acknowledge and agree that the
security interest in the foregoing trademarks and trademark applications (i)
may only be terminated in accordance with the terms of the Security Agreement
and (ii) is not to be construed as an assignment of any trademark or trademark
application.
31
Very truly yours,
[OBLIGOR]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Acknowledged and Accepted:
FIRST UNION NATIONAL BANK,
as Agent
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
2
