Exhibit 10.9
SECURITY AGREEMENT
(GREENHILL FUND MANAGEMENT CO., LLC)
(CONTRACT RIGHTS, ACCOUNTS RECEIVABLE, GENERAL INTANGIBLES)
THIS SECURITY AGREEMENT ("Agreement"), dated as of December 31, 2003 is
entered into between GREENHILL FUND MANAGEMENT CO., LLC, a Delaware limited
liability company (hereinafter called "Pledgor"), whose sole place of business
is at the address set forth in Section 1.17 below, and FIRST REPUBLIC BANK as
further defined below.
RECITALS
A. Concurrent herewith First Republic Bank is entering into a Loan
Agreement (Line of Credit) ("Loan Agreement") of even date herewith with
Xxxxxxxxx & Co. Holdings LLC, a New York limited liability company ("Debtor").
B. Pledgor shall benefit from the Loan Agreement in that the Loan
Agreement shall provide funds to Debtor which shall ultimately benefit Pledgor.
C. Pledgor currently provides, and shall provide, management services to
various entities (collectively "Xxxxxxxxx Funds") including without limitation
the entities identified in Exhibit A. Such services are provided pursuant to the
Management Agreement among the Pledgor and the Xxxxxxxxx Funds dated June 30,
2000 ("Management Agreement").
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
have the definitions set forth below. Capitalized terms used but not defined
herein shall have the meaning given them in the Loan Agreement.
1.1 ACCOUNTING TERMS. All accounting terms and computations shall be based
upon generally accepted accounting principles consistently applied.
1.2 AGREEMENT. The term "this Agreement" means this Security Agreement,
any concurrent or subsequent rider to this Security Agreement and any
extensions, supplements, amendments or modifications to this Security Agreement
and/or to any such rider.
1.3 BANK. The term "Bank" shall mean and refer to FIRST REPUBLIC BANK, a
California banking corporation, with a place of business located at 000 Xxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
1.4 BANK EXPENSES. The term "Bank Expenses" means: all reasonable costs
and expenses incurred by Bank in connection with this Agreement, the Loan
Agreement, any other Loan Document or the transactions contemplated hereby,
including, without limitation, (i) all costs or expenses required to be paid by
Pledgor under this Agreement which are paid or advanced by Bank; (ii) all costs
or expenses required to be paid by Pledgor under this Agreement
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which are paid or advanced by Bank; (iii) taxes of every nature and kind of
Pledgor paid by Bank; (iv) reasonable filing or recording paid or incurred by
Bank in connection with Bank's transactions in connection with any Loan
Document; (v) all reasonable costs and expenses incurred by Bank in collecting
or realizing upon the Collateral (with or without suit), to correct any default
or enforce any provision of this Agreement, costs and expenses of suit incurred
by Bank in enforcing or defending this Agreement or any portion hereof; and (vi)
all reasonable attorneys' fees and expenses incurred by Bank as set forth in
Section 13.3 below in connection with this Agreement, the Loan Agreement, or
with any other Loan Document.
1.5 CODE. The term "the Code" means the California Uniform Commercial
Code, as presently in force and effect and any replacements therefore as and
when such replacements become effective, and any and all terms used in this
Agreement which are defined in the Code and not specifically defined herein
shall be construed and defined in accordance with the meaning and definition
ascribed to such terms under the Code.
1.6 COLLATERAL. The term "Collateral" means and includes the assets
identified in Exhibit A.
1.7 DEBTOR. The term "Debtor" shall mean and refer to Xxxxxxxxx & Co.
Holdings LLC a New York limited liability company whose address is 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1.8 EVENT OF DEFAULT. The term "Event of Default" shall have the meaning
set forth in Section 6 of this Agreement.
1.9 GOVERNMENTAL REQUIREMENTS. "Governmental Requirements" means all
existing and future federal, state and local laws, rules, regulations or orders
applicable to the Pledgor, its assets, the Management Agreements, its business
and the Collateral.
1.10 XXXXXXXXX FUNDS. The term Xxxxxxxxx Funds shall have the meaning
specified in Recital C above.
1.11 INSOLVENCY PROCEEDING. The term "Insolvency Proceeding" means any
proceeding commenced by or against any person or entity, including Debtor or
Pledgor, under any provision of the United States Bankruptcy Code, as amended,
or under any other bankruptcy or insolvency law, including, but not limited to,
assignments for the benefit of creditors, formal or informal moratoriums,
compositions or extensions with some or all creditors.
1.12 JUDICIAL OFFICER OR ASSIGNEE. The term "Judicial Officer or Assignee"
means any trustee, receiver, controller, custodian, assignee for the benefit of
creditors or any other person or entity having powers or duties like or similar
to the powers and duties of a trustee, receiver, controller, or assignee for the
benefit of creditors.
1.13 LOAN DOCUMENTS. The term "Loan Documents" means the Loan Agreement,
this Agreement and any other document executed in connection therewith and any
amendment, modification or restatement thereof.
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1.14 MANAGEMENT AGREEMENT. The term "Management Agreement" shall have the
meaning specified in Recital C above.
1.15 MANAGEMENT FEES. The term "Management Fees" shall have the meaning
specified in Exhibit A attached hereto.
1.16 OBLIGATIONS. The term "Obligations" means any and all obligations,
loans, advances, overdrafts, debts, liabilities, covenants, promises and duties
owing to Bank (of any kind and description) under or in connection with or
arising from the Loan Agreement, this Agreement and/or any other Loan Document,
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including, without limitation, all interest
not paid when due and all Bank Expenses.
1.17 PLEDGOR. The term "Pledgor" shall mean and refer to Greenhill Fund
Management Co., LLC whose address is 000 Xxxx Xxx., Xxx Xxxx, XX 00000.
1.18 PLEDGOR'S BOOKS. The term "Pledgor's Books" means all of Pledgor's
minute books; ledgers; books and records indicating, summarizing or evidencing
Pledgor's assets, liabilities, the Collateral, and all information relating
thereto; and all computer programs, disc or tape files, printouts, runs, and
other computer prepared information and the equipment containing such
information.
1.19 PROCEEDS. The term "Proceeds" means whatever is received from the
sale, lease, exchange, collection or other disposition of Collateral or
proceeds, including, without limitation, proceeds of insurance covering
Collateral, and any and all accounts, notes, instruments, chattel paper,
equipment, money, deposit accounts, goods, or other tangible and intangible
property of Pledgor resulting from the sale or other disposition of the
Collateral, and the proceeds thereof.
2. SECURITY INTEREST.
2.1 SECURITY INTEREST.
(a) Pledgor hereby grants to Bank a continuing security interest in
all presently existing and hereafter acquired or arising Collateral in order to
secure prompt repayment and performance of all Obligations. Bank's security
interest in the Collateral shall attach to the Collateral without further act on
the part of Bank or Pledgor.
(b) Such security interest constitutes a valid, first priority
security interest in the presently existing Collateral and will constitute a
valid, first priority security interest in Collateral acquired after the date
hereof.
2.2 SECURITY DOCUMENTS; ATTORNEY-IN-FACT FOR PERFECTION.
(a) Bank may file all financing statements and continuation statements
as it may deem appropriate to perfect and maintain perfected Bank's security
interest.
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(b) Pledgor shall execute and deliver, or cause to be executed and
delivered, to Bank at any time, or times, at the request of Bank, all documents
which Bank may reasonably request, in form satisfactory to Bank, to perfect and
maintain perfected Bank's security interests in the Collateral and in order to
fully consummate all of the transactions contemplated under this Agreement.
(c) Pledgor hereby irrevocably makes, constitutes and appoints Bank
(and any of Bank's officers, employees or agents designated by Bank) to act on
Bank's behalf as Pledgor's true and lawful attorney with power to sign the name
of Pledgor on any documents which need to be executed, recorded, and/or filed in
order to perfect or continue perfection of Bank's security interest in the
Collateral.
(d) The appointment of Bank as Pledgor's attorney, and each and every
one of Bank's rights and powers, are coupled with an interest and, are
irrevocable so long as any Obligations remain unpaid or unperformed.
3. REPRESENTATIONS AND WARRANTIES. In order to induce Bank to enter into this
Agreement and to make the loans contemplated hereby, Pledgor warrants,
represents and agrees that, until all Obligations are fully paid and performed:
3.1 TITLE TO ASSETS. Pledgor has and at all times will have good,
marketable and indefeasible title to the Collateral; the Collateral is and at
all times shall remain free and clear of all liens, claims, encumbrances, or
other security interests (except as held by Bank or as may be consented to, in
writing, by Bank).
3.2 AUTHORIZATION AND ENFORCEABILITY.
(a) This Agreement has been duly authorized by all necessary limited
liability company action, and upon its execution and delivery in accordance with
the provisions hereof will constitute a legal, valid and binding agreement and
obligation of Pledgor enforceable in accordance with its terms.
(b) Pledgor has the authority to, and is able to, grant the security
interest in the Collateral without the consent or approval of the Xxxxxxxxx
Funds or any third party or agency. The execution and delivery of this Agreement
shall create a valid lien on the Collateral subject to the attachment provisions
of the Code.
3.3 MANAGEMENT AGREEMENT. A true and correct copy of the Management
Agreement has been provided to Bank by Pledgor and as of the date hereof the
Management Agreement is in full force and effect.
3.4 NO VIOLATION. The execution, delivery and performance by Pledgor of
this Agreement and the granting of the liens as provided herein shall not: (a)
violate any law or regulation by which Pledgor is bound, (b) constitute a breach
of any provision contained in the Articles of Incorporation, Bylaws, Articles of
Organization, operating agreement or other organization papers of Pledgor, or
(c) constitute an event of default under any agreement to which Pledgor is now
or hereafter becomes a party or by which Pledgor may be bound.
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3.5 NO OFFSETS. All Management Fees are (and shall be) unconditionally
owed to Pledgor and shall not be subject to any offset, deduction, contra,
rebate, commissions, defense or counterclaim except for such discounts Pledgor
commonly provides in the ordinary course of its business as presently conducted.
3.6 LIEN PRIORITY. The liens and security interests of Bank in the
Collateral are and shall remain a first priority lien and encumbrance.
3.7 NO DEFAULTS. There is no event which is or, with notice or lapse of
time or both, would be an Event of Default.
3.8 ADEQUATE CONSIDERATION. Pledgor in entering into this Agreement and
the transaction contemplated by the Loan Documents is receiving consideration
having a value reasonably equivalent to this obligations being incurred
hereunder.
3.9 SOLVENCY. Upon completion of the transaction contemplated by the Loan
Documents, Pledgor shall be solvent and able to pay its debts (including trade
debts) as they mature.
3.10 REPRESENTATIONS AND WARRANTIES CUMULATIVE. Each warranty,
representation and agreement contained in this Agreement shall be true and
correct at the time of execution of this Agreement by Pledgor and shall
constitute continuing representations and warranties as long as any of the
Obligations remain unpaid or unperformed, and shall be conclusively presumed to
have been relied on by Bank regardless of any investigation made or information
possessed by Bank. The warranties, representations and agreements set forth
herein shall be cumulative and in addition to any and all other warranties,
representations and agreements which Pledgor shall give, or cause to be given,
to Bank, either now or hereafter.
4. NEGATIVE COVENANTS. Pledgor will not, without Bank's prior written consent,
during the term hereof and so long as any Obligation remains unpaid or
unperformed:
4.1 LIENS AND ENCUMBRANCES. Grant a security interest in or permit a lien,
claim or encumbrance upon all or any portion of Pledgor's assets or the
Collateral, except in favor of Bank.
4.2 MANAGEMENT FEES. Discount or sell or transfer any of the Management
Fees or any other item of Collateral except (i) to Bank, or (ii) such discounts
as are customarily provided for prompt payment.
4.3 MANAGEMENT AGREEMENT. Make any material modifications to the
Management Agreement without the written consent of Bank in advance, which
consent will not be unreasonably withheld.
5. AFFIRMATIVE COVENANTS. Pledgor hereby covenants and agrees that during the
term hereof and until all Obligations are fully paid and performed:
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5.1 DOCUMENTS. Pledgor shall provide to Bank the following written
documents within the time periods specified:
(a) Upon demand by Bank, Pledgor will deliver to Bank true and correct
and complete copies of all written Management Agreements, and all similar
documents, to which Pledgor is a party and to which Pledgor becomes a party
hereafter during the term of this Agreement.
5.2 REIMBURSEMENTS. Immediately upon demand Pledgor shall reimburse Bank
for all sums expended by Bank which constitute Bank Expenses and Pledgor hereby
authorizes and approves all advances and payments by Bank for items constituting
Bank Expenses.
5.3 STATUTES. To the extent that the Code is superceded by another
statute, Pledgor shall take such action as is reasonably requested by Bank to
enforce, perfect, protect, implement, continue, maintain and preserve Bank's
right hereunder and under the other Loan Documents and the priority of the
Bank's lien.
5.4 COMPLIANCE. Pledgor shall comply with any and all Governmental
Requirements which relate to the Collateral or the Management Agreement, except
to the extent such non compliance would not have a material adverse effect on
Pledgor or on the Collateral.
5.5 LIEN FREE. Pledgor shall keep all Collateral, including without
limitation, the Management Agreements, free and clear of all security interests,
liens and encumbrances, except for liens expressly permitted by Bank in writing.
5.6 RECORDS. Pledgor shall keep accurate and complete books and records
pertaining to the Collateral and submit to Bank such periodic reports concerning
the Collateral and Pledgor's business as Bank may from time to time reasonably
request.
5.7 REPORTS. Upon Bank's request, Pledgor shall deliver to Bank such
reports and information available to Pledgor's management concerning the
Collateral and Pledgor's business and affairs as Bank may reasonably request.
Such reports shall be in such form, for such periods, contain such information,
and shall be rendered with such frequency as Bank may reasonably designate, but
in no case more frequently than every calendar quarter end. All reports and
information provided to Bank by Pledgor shall be complete and accurate in all
material respects at the time provided.
5.8 FURTHER ASSURANCES. At any time and from time to time Pledgor shall
execute and deliver such further instruments and take such further action as may
reasonably be requested by Bank to effect the purposes of this Agreement.
6. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an Event of Default under this Agreement at the option
of Bank:
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6.1 FAILURE TO MAKE PAYMENT. Pledgor fails to make any deposit or payment
of funds as and when required by this Agreement and such failure is not cured
within five (5) Business Days.
6.2 BREACH. Pledgor breaches any covenant representation or warranty
contained in this Agreement and such failure continues beyond the grace period,
if any, expressly applicable thereto.
6.3 CROSS-DEFAULT. The occurrence of an Event of Default under the Loan
Agreement, or any other Loan Document; or Debtor or Pledgor breaches any
covenant, warranty, or representation contained in the Loan Agreement, or in any
of the Loan Documents and which failure of performance continues beyond the
grace period, if any, specified therein.
6.4 LIEN PRIORITY. Bank shall cease to have a valid and perfected first
priority lien upon any of the Collateral.
6.5 MATERIAL IMPAIRMENT. If there is a material impairment (except as
otherwise permitted in this Section 6) of the value of the Collateral or the
priority of Bank's security interests therein and Pledgor does not cure such
impairment within ten (10) days of notice.
6.6 LEVY OR SEIZURE OF ASSETS. If all or any item of Collateral is
attached, levied upon, seized, subjected to a writ or distress warrant, or are
levied upon, or come into the possession of any Judicial Officer or Assignee.
6.7 VOLUNTARY INSOLVENCY. If an Insolvency Proceeding is commenced by
Pledgor.
6.8 INVOLUNTARY INSOLVENCY. If an Insolvency Proceeding is commenced
against Pledgor and not dismissed within sixty (60) days.
6.9 MISREPRESENTATIONS. If any misrepresentation exists in any warranty or
representation made to Bank by Pledgor or any officer, director, member,
manager, executive committee member of Pledgor.
6.10 ADDITIONAL DEFAULTS. If an event occurs which with the passage of time
would constitute an Event of Default.
6.11 ADVERSE ACTION. If any governmental regulatory authority takes or
institutes action which, in the opinion of Bank, will have a material adverse
effect on any item of Collateral.
6.12 CHANGE OF OWNERSHIP. If the current members of Pledgor cease to own at
least seventy-five percent (75%) of the beneficial interest in Pledgor in
aggregate without Bank's prior written consent; which should not be
unreasonably, or if the directors, executive committee members, managers, or
members of Pledgor take action to effect Pledgor's dissolution or liquidation.
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7. BANK'S RIGHTS AND REMEDIES. If an Event of Default shall have occurred and
not been cured or waived in accordance with the terms hereof, Bank shall have
the following rights and powers and may, at its option, without notice of its
election and without demand, do any one or more of the following, all of which
are authorized by Pledgor.
7.1 UCC RIGHTS. Bank shall have all of the rights and remedies of a
secured party under the Code and under all other applicable laws.
7.2 ACCELERATION. Bank may declare any or all of the Obligations to be
immediately due and payable.
7.3 EXTENSIONS OF CREDIT. Bank may discontinue advancing money or
extending credit to or for the benefit of any person or entity in connection
with any Loan or under any other document or agreement between Bank and any
person or entity.
7.4 PROTECTION OF COLLATERAL. Without notice to or demand upon Pledgor,
Bank may make such payments and do such acts as Bank considers necessary or
reasonable to protect its security interest in the Collateral to pay, purchase,
contest or compromise any encumbrance, charge or lien which in the opinion of
Bank appears to be prior or superior to Bank's security interest and to pay all
expenses incurred in connection therewith.
7.5 RIGHTS TO PAYMENT. With respect to any items of Collateral, and
without limiting Bank's rights under Section 7.1 above, Bank may, to the extent
Pledgor would have the right to take the following action under the applicable
documents:
(a) In Bank's or Pledgor's name, demand, collect, receive and give
receipts for any and all money and other property due or to become due in
connection with the Management Agreements, including without limitation a demand
on the other parties to the Management Agreements for payment of amounts arising
thereunder;
(b) Take possession of and endorse and collect any or all notes,
checks, drafts, money orders, or other instruments of payment relating to the
Collateral (including payments made under or with respect to any policy of
insurance); and
(c) File any claim and take any other action in any court of law or
equity which Bank determines to be appropriate for the purpose of collecting any
or all of the Collateral; provided, however, that Bank shall not be obligated in
any manner to make any demand or to make any inquiry as to the nature or
sufficiency of any payment received by it, or to present or file any claim or
take any action to collect or enforce the payment of any or all of the
Collateral.
7.6 POSSESSION OF COLLATERAL. Bank, without a breach of the peace, may
enter any of the premises of Pledgor and search for, take possession of, remove,
keep or store any item of the Collateral which is capable of such possession. If
Bank, at its option, seeks to take possession of any or all of the Collateral by
court process, Pledgor irrevocably and unconditionally agrees that a receiver
may be appointed by a court for such purpose without regard to the adequacy of
the security for the Obligations and such receiver may, at Bank's option,
collect or dispose of all
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or part of the Collateral. If Bank seeks possession of any or all of the
Collateral by court process, Pledgor irrevocably waives: (a) any bond and any
surety or security relating thereto required by any statute, court rule or
otherwise as an incident or condition to such possession; (b) any demand for
possession prior to the commencement of any suit or action to recover
possession; and (c) any requirement that Bank retain possession of and not
dispose of such Collateral until after trial or final judgment.
7.7 JUDICIAL ACTION. Bank may reduce its claims for breach of any of the
Obligations to judgment and foreclose or otherwise enforce its security interest
in any or all of the Collateral by any available judicial procedure. If Bank has
reduced its claims for breach of any of the obligations to judgment, the lien of
any levy which may be made on any or all of the Collateral by virtue of any
execution based upon such judgment shall relate back to the date of Bank's
perfection of its security interest in such Collateral.
7.8 DISCHARGE CLAIMS. Bank may discharge claims, demands, liens, security
interests, encumbrances and taxes affecting any or all of the Collateral and
take such other actions as Bank determines to be necessary or appropriate to
protect the Collateral and Bank's security interest therein. Bank, without
releasing Pledgor or any other party from any of the Obligations, may, but shall
not be required to, perform any of the Obligations in such manner and to such
extent as Bank determines to be necessary or appropriate to protect the
Collateral and Bank's security interest therein.
7.9 PROCEEDS OF COLLATERAL. The proceeds of any sale or disposition or
collection of the Collateral by Bank shall be applied in the following order of
priority:
(a) First, proceeds shall be applied to all liabilities, obligations,
costs, and expenses, including reasonable attorneys' fees and costs, incurred by
Bank in exercising any of its rights or remedies under this Agreement, including
the costs and expenses of retaking, holding, and selling any or all of the
Collateral and the costs and expenses of enforcing and collecting upon the
Collateral;
(b) Second, proceeds shall be applied to the payment of the
Obligations which are then due and payable, in such order and amounts as Bank
may determine in its discretion;
(c) If any Obligations are not then due and payable and if Bank may
not collect such Obligations under the Loan Agreement, Bank may continue to hold
all remaining proceeds in a collateral account until such Obligations have been
performed. If a default occurs in connection such Obligations or if the Bank is
otherwise entitled to collect such obligations, Bank may then apply the
remaining proceeds to such obligations at that time.
(d) Thereafter proceeds shall be applied, to (i) the satisfaction of
indebtedness secured by any subordinate security interest in the Collateral if
written demand therefor is received by Bank before distribution of any such
proceeds; and (ii) to the satisfaction of any subordinate attachment lien or
execution lien if notice of the levy of attachment or execution is received by
Bank before distribution of any such proceeds. If requested by Bank, the holder
of a subordinate security interest in the Collateral shall furnish Bank with
proof of its interest in the
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Collateral acceptable to Bank, and unless such holder does so, Bank shall have
no obligation to comply with such holder's demand; and
(e) The surplus, if any, shall be paid to Pledgor unless there is a
junior lienholder which is entitled to such surplus.
7.10 REMEDIES CUMULATIVE. The remedies of Bank, as provided herein, shall
be cumulative and concurrent, and may be pursued singularly, successively or
together, at the sole discretion of Bank, and may be exercised as often as
occasion therefor shall arise. No act of omission or commission by Bank,
including specifically any failure to exercise any right, remedy or recourse,
shall be deemed to be a waiver or release of the same, such waiver or release to
be effected only through a written document executed by Bank and then only to
the extent specifically recited therein. A waiver or release with reference to
any one event shall not be construed as continuing, as a bar to, or as a waiver
or release of, any subsequent right, remedy or recourse as to a subsequent
event.
8. LIABILITY FOR DEFICIENCY. Any party which is liable for any of the
Obligations shall at all times remain liable for any deficiency remaining on the
Obligations for which such party is liable after any disposition of any or all
of the Collateral and after Bank's application of any proceeds to the
Obligations.
9. POWER OF ATTORNEY RE ENFORCEMENT. Pledgor hereby irrevocably appoints Bank,
with full power of substitution, as Pledgor's attorney-in-fact, coupled with an
interest, with full power, in Bank's own name or in the name of Pledgor to do
any or all of the following at any time after the occurrence, and during the
continuance, of any Event of Default:
(a) Endorse any checks, drafts, money orders, notes, and other
instruments or documents representing or evidencing the Collateral, or proceeds
of the Collateral;
(b) Pay or discharge claims, demands, liens, security interests,
encumbrances, or taxes affecting or threatened against any or all of the
Collateral;
(c) Collect or receive payment on all Collateral;
(d) Settle and adjust, and give releases of, any insurance claim that
relates to any of the Collateral, obtain payment of claim, and make all
determinations and decisions with respect to any such policy of insurance, and
endorse Pledgor's name on any check, draft, instrument or other item of payment
or the proceeds of such policies of insurance;
(e) Instruct any accountant or other third person having custody or
control of any books or records belonging or relating to the Collateral to give
Bank full rights of access with respect thereto;
(f) Execute on behalf of Pledgor any document exercising, transferring
or assigning any option to purchase, sell or otherwise dispose of or to lease,
as lessor or lessee, any real or personal property which constitutes Collateral;
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(g) Sell, transfer, pledge, make any agreement with respect to, or
otherwise deal with any of the Collateral as though Bank were the owner thereof
for all purposes.
10. AUTHORIZATION. Pledgor hereby authorizes Bank, without notice or demand and
without affecting its liability hereunder, and without consent of Pledgor, from
time to time to:
(a) Assign this Security Agreement;
(b) Take and hold additional security for the payment of the Loan with
the consent of the party providing such security; and
(c) Accept guarantors for the payment of the Obligations.
11. WAIVERS.
11.1 APPLICATION OF PAYMENTS OR PROCEEDS. Pledgor waives the right to
direct the application of any and all payments received by Bank on the Loan and
all collections at any time or times hereafter received by Bank on account of
any Collateral. Pledgor agrees that Bank shall have the continuing exclusive
right to apply and reapply such payments or collections to the Obligations in
any manner as Bank may deem advisable.
11.2 ENFORCEMENT. Pledgor hereby waives any right to require Bank (i) to
proceed against any person, (ii) to exhaust any Collateral, or (iii) to pursue
any remedy in Bank's power in any order or whatsoever. Bank shall not be
required to take any action to preserve rights against prior parties with
respect to any of the Collateral. Pledgor waives the right to plead any statute
of limitations or any defense to the personal liability of Pledgor as a defense
to Bank's exercise of any right or remedy hereunder.
11.3 SUBROGATION. To the extent Pledgor has any rights of subrogation,
until the Obligations has been paid or otherwise discharged in full, Pledgor
does hereby waive all rights of subrogation and any right to enforce any remedy
which Bank now has, or may have, and Pledgor does hereby waive any benefit of,
and any right to participate in, any security now or hereafter held by Bank.
Pledgor hereby waives any defense it may have now or in the future based on any
election of remedies by Bank which destroys Pledgor's subrogation rights to
proceed against any party for reimbursement, and Pledgor acknowledges that it
will be liable to Bank even though Pledgor may well have no such recourse
against said party.
11.4 SURETYSHIP DEFENSES. Pledgor hereby waives any and all suretyship
defenses now or hereafter available to it under the California Civil Code or the
California Uniform Commercial Code.
11.5 GENERAL WAIVERS. Without limiting the generality of any other waiver
or other provision of this Agreement, Pledgor hereby waives, to the maximum
extent such waiver is permitted by law, any and all benefits or defenses arising
directly or indirectly under any one or more of: (I) California Civil Code
Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
2846, 2847, 2848, 2849, 2850, 2899, and 3433; (ii) Chapter 2 of Title
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14 of the California Civil Code; (iii) California Code of Civil Procedure
Sections 580a, 580b, 580c, 580d, and 726; or (iv) California Uniform Commercial
Code 3605.
11.6 NO MARSHALLING. Bank shall not be obligated to marshal its collateral.
Pledgor hereby waives any right it might have to compel Bank to marshal its
collateral.
11.7 NOTICES OF DEMAND, ETC. Pledgor waives demand, protest, notice of
protest, maturity, release, compromise, settlement, extension or renewal of any
or all commercial paper, accounts, documents, instruments, chattel paper, and
guaranties at any time held by Bank on which Pledgor may in any way be liable.
11.8 CONFIDENTIALITY OF ACCOUNTING. Pledgor waives the right to assert a
confidential relationship, if any, Pledgor may have with any accounting firm
and/or service bureau in connection with any information requested by Bank
pursuant to or in accordance with this Agreement, and agrees that Bank may
contact directly any such accounting firm and/or service bureau in order to
obtain such information.
12. ACTIONS. Bank shall have the right, but not the obligation, to commence,
appear in, or defend any action or proceeding which affects or which Bank
determines may affect (a) the Collateral; (b) Pledgor's or Bank's rights or
obligations under this Agreement; or (c) Pledgor's or Bank's rights under the
other Loan Agreement. Whether or not Pledgor is in default under the Loan
Agreement, Bank shall at all times have the right to take any and all actions
which Bank in its good faith business judgment determines to be necessary or
appropriate to protect Bank's interest in connection with the Loan.
13. MISCELLANEOUS.
13.1 NOTICES. Any notice, demand or request required hereunder shall be
given in writing (at the addresses set forth below) by any of the following
means: (a) personal service; (b) electronic communication, whether by telex,
telegram or telecopying; (c) overnight courier; or (d) registered or certified,
first class U.S. mail, return receipt requested.
To Pledgor: To Bank:
Greenhill Fund Management Co., LLC First Republic Bank
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000 General Counsel
Fax No.: 000-000-0000
Such addresses may be changed by notice to the other parties given in the same
manner as above provided. Any notice, demand or request sent pursuant to either
subsections (a) or (b), above, shall be deemed received upon such personal
service or upon dispatch by electronic means. Any notice, demand or request sent
pursuant to subsection (c), above, shall be deemed received on the business day
immediately following deposit with the overnight courier, and, if sent pursuant
to
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subsection (d), above, shall be deemed received forty-eight (48) hours following
deposit into the U.S. mail.
13.2 CHOICE OF LAW. The validity of this Agreement, its construction,
interpretation and enforcement, and the rights of the parties hereunder and
concerning the Collateral, shall he determined under, governed by and construed
in accordance with the laws of the State of California. The parties agree that
all actions or proceedings arising in connection with this Agreement shall be
tried and litigated only in the state courts located in the County of San
Francisco, State of California, or the federal courts located in the Northern
District of California. Pledgor waives any right Pledgor may have to assert the
doctrine of forum non conveniens or to object to such venue and hereby consents
to any court-ordered relief.
13.3 ATTORNEYS' FEES. Upon Bank's demand, Pledgor shall reimburse Bank for
all costs and expenses, including without limitation reasonable attorneys' fees
costs and disbursements (and fees and disbursements of Bank's in-house counsel)
(collectively the "Fees and Costs") expended or incurred by Bank in any
arbitration, mediation, judicial reference, legal action, legal proceeding or
otherwise in connection with (a) the amendment, interpretation and enforcement
of this Agreement, including, without limitation, fees and costs incurred in
connection with any workout, attempted workout, and/or in connection with the
rendering of legal advice as to Bank's rights, remedies and obligations under
this Agreement, (b) collecting any sum which becomes due Bank under this
Agreement, (c) any proceeding, or any appeal, or (d) the protection,
preservation of enforcement of any rights of Bank under this Agreement. Fees and
Costs shall include, without limitation, attorneys fees and costs incurred in
connection with the following: (1) contempt proceedings; (2) discovery; (3) any
motion, adversary proceeding, contested matter, confirmation or opposition to
plan of reorganization or any other activity of any kind in connection with a
bankruptcy case or relating to any petition under Title 11 of the United States
Code; (4) garnishment, levy, and debtor and third party examinations; and (5)
postjudgment motions and proceedings of any kind, including without limitation
any activity taken to collection or enforce any judgment.
13.4 AGREEMENT BINDING, ASSIGNMENT. This Agreement shall be binding and
deemed effective when executed by Pledgor and accepted and executed by Bank.
This Agreement shall bind and inure to the benefit of the respective successors
and assigns of each of the parties; provided, however, that Pledgor may not
assign this Agreement or any rights hereunder without Bank's prior written
consent and any prohibited assignment shall be absolutely void. No consent to an
assignment by Bank shall release Pledgor from its obligations to Bank. Bank may
assign this Agreement and its rights and duties hereunder. Bank reserves the
right to sell, assign, transfer, negotiate or grant participations in all or any
part of, or any interest in, Bank's rights and benefits hereunder. In connection
therewith, Bank may disclose all documents and information which Bank now has or
hereafter may have relating to Pledgor or Pledgor's business.
13.5 ARTICLE AND SECTION HEADINGS. Article and section headings and article
and section numbers have been set forth herein for convenience only. Unless the
contrary is compelled by the context, everything contained in each articulate
and section applies equally to this entire Agreement.
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13.6 CONSTRUCTION. Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Bank or Pledgor, whether under any
rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of all parties hereto.
13.7 SEVERABILITY. Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.
13.8 AMENDMENTS. This Agreement may be modified only by a written agreement
signed by Pledgor and the Bank.
13.9 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute
one and the same document.
13.10 ENTIRE AGREEMENT. This Agreement and the other Loan Documents contain
the entire agreement concerning the subject matter of the Loan Documents and
supersede all prior and contemporaneous negotiations, agreements, statements,
understandings, terms, conditions, representations and warranties, whether oral
or written, by and among the Bank, Borrower and Pledgor concerning the Loan
which is the subject matter of this Agreement and the Loan Documents.
13.11 NO WAIVER BY BANK. No waiver by the Bank of any of its rights or
remedies in connection with any of the terms or conditions of this Agreement
shall be effective unless such waiver is in writing and signed by the Bank.
13.12 WAIVER OF JURY TRIAL. BANK AND PLEDGOR HEREBY VOLUNTARILY
UNCONDITIONALLY AND IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, TRIAL BY JURY IN ANY LITIGATION ARBITRATION OR PROCEEDING IN A STATE OR
FEDERAL COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
AGREEMENT OR THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY
OTHER CLAIM OR DISPUTE HOWSOEVER ARISING (INCLUDING TORT AND CLAIMS FOR BREACH
OF DUTY), BETWEEN BANK AND PLEDGOR.
/s/ HJR
---------------- ----------------
Initials Initials
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IN WITNESS WHEREOF, Pledgor and Bank have executed and delivered this
Agreement on the date first hereinabove written.
PLEDGOR: BANK:
GREENHILL FUND MANAGEMENT COMPANY LLC, FIRST REPUBLIC BANK,
A DELAWARE LIMITED LIABILITY COMPANY A CALIFORNIA BANKING CORPORATION
BY: /s/ Xxxxx XxXxxx
----------------------------
BY: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------
XXXXXX X. XXXXXXXXX, XX. ITS: Managing Director
CHIEF FINANCIAL OFFICER ----------------------------
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EXHIBIT A
TO SECURITY AGREEMENT
(GREENHILL FUND MANAGEMENT COMPANY LLC)
A. The term "Greenhill Funds" shall include without limitation the
following entities:
1. Xxxxxxxxx Capital Partners, L.P
2. Xxxxxxxxx Capital Partners (Cayman), L.P.
3. Xxxxxxxxx Capital Partners (Executives), L.P.
B. The term "Collateral" shall include the following:
1. All present and future accounts and other amounts owed as
Management Fees to Pledgor by each and every one of the Greenhill Funds pursuant
to the Management Agreement among the Pledgor and the Greenhill Funds dated June
30, 2000 (collectively the "Management Fees").
2. All other amounts owed to Pledgor in connection with Management
Agreement.
3. All general intangibles evidencing any of the Management Fees.
4. All deposit accounts which contain proceeds of the foregoing
assets.
5. All proceeds of the foregoing assets.
6. Pledgor's Books related to any of the foregoing assets.
Exhibit A
