SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") dated as of March 30, 2000,
is by and among MARKETING SPECIALISTS CORPORATION, a Delaware corporation, XXXX
XXXXX ASSOCIATES, INC., a Michigan corporation, MARKETING SPECIALISTS SALES
COMPANY, a Texas corporation, and BROMAR, INC., a California corporation (each
individually a "Debtor" and collectively, the "Debtors") and THE CHASE MANHATTAN
BANK, as agent for the Banks as that term is defined below (the "Secured
Party").
R E C I T A L S:
The Debtors are entering into that certain Credit Agreement dated as of
even date herewith with the banks parties thereto (each individually a "Bank"
and collectively, the "Banks"), and the Secured Party, as agent for the Banks
(such agreement as it may be amended or otherwise modified from time to time
herein as the "Credit Agreement"). The execution and delivery of this Agreement
is a condition to Secured Party and each Bank entering into the Credit Agreement
and making the extensions of credit thereunder.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Secured Party and Banks to make
the Loans and issue the Letters of Credit under the Credit Agreement, the
parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. DEFINITIONS. As used in this Agreement, the following
terms have the following meanings:
"ACCOUNT" means any "account," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by the Debtor:
(a) all rights of the Debtor to payment for goods sold or leased or
services rendered, whether or not earned by performance, (b) all
accounts receivable of the Debtor, (c) all rights of the Debtor to
receive any payment of money or other form of consideration including,
without limitation, all Payment Intangibles, (d) all security pledged,
assigned or granted to or held by the Debtor to secure any of the
foregoing, (e) all guaranties of, or indemnifications with respect to,
any of the foregoing, (f) all rights of the Debtor as an unpaid seller
of goods or services, including, but not limited to, all rights of
stoppage in transit,
Security Agreement p. 1
replevin, reclamation and resale, (g) all rights to brokerage
commissions; and (h) all other Supporting Obligations, including any
applicable Letter of Credit Rights.
"CHATTEL PAPER" means any "chattel paper," as such term is
defined in Article or Chapter 9 of the UCC, now owned or hereafter
acquired by the Debtor.
"COLLATERAL" has the meaning specified in SECTION 2.1 of
this Agreement.
"DEPOSIT ACCOUNTS" means any and all deposit accounts or other
bank accounts now owned or hereafter acquired or opened by the Debtor
and any account which is a replacement or substitute for any of such
accounts including, without limitation, those deposit accounts
identified on Schedule 3.2.
"DOCUMENT" means any "document," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by the
Debtor, including, without limitation, all documents of title and all
receipts covering, evidencing or representing goods now owned or
hereafter acquired by the Debtor.
"FINANCIAL ASSETS" means any "financial asset," as such
term is defined in the UCC.
"GENERAL INTANGIBLES" means any "general intangibles," as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by the Debtor and, (a) in any event, shall include,
without limitation, each of the following, whether now owned or
hereafter acquired by the Debtor: (i) all of the Debtor's the books and
records, including without limitation, all books and records, computer
runs, invoices, tapes, processing software, processing contracts (such
as contracts for computer time and services) and any computer prepared
information, tapes, or data of every kind and description, whether in
the possession of any Debtor or in the possession of third parties and
all of each Debtor's other data, plans, manuals, computer software,
computer tapes, computer disks, computer programs, source codes, object
codes, rights of the Debtor to retrieve data and other information from
third parties and other data of every kind and description, to the
extent that they indicate, summarize or evidence, or otherwise relate
to, the Accounts or Inventory, whether in the possession of any Debtor
or in the possession of any third party.; (ii) all of the Debtor's
contract rights, including, without limitation, all of Debtor's right,
title and interest in and to the Lockbox Agreements which include,
without limitation, the following: (A) all rights of the Debtor to
receive moneys due and to become due under or pursuant to such
agreements, (B) all rights of the Debtor to receive proceeds of any
insurance, indemnity, warranty, guaranty, or other Supporting
Obligations with respect to such agreements, (C) all claims of the
Debtor for damages arising out of or for breach of or default under
such agreements, and (D) all rights of the Debtor to terminate such
Security Agreement p. 2
agreements, to perform thereunder and to compel performance and
otherwise exercise all rights and remedies thereunder; (iii) all rights
of the Debtor to payment under letters of credit and similar
agreements, including without limitation, all letter of credit rights;
(iv) all choses in action and causes of action of the Debtor (whether
arising in contract, tort or otherwise and whether or not currently in
litigation) and all judgments in favor of the Debtor, including without
limitation, all commercial tort claims; and (v) all rights of the
Debtor under any insurance, surety or similar contract or arrangement
and (b) shall specifically exclude any Intellectual Property.
"INSTRUMENT" means any "instrument," as such term is defined
in Article or Chapter 9 of the UCC, now owned or hereafter acquired by
the Debtor, and, in any event, shall include all promissory notes,
drafts, bills of exchange and trade acceptances of the Debtor, whether
now owned or hereafter acquired.
"INTELLECTUAL PROPERTY" means the Trademarks and Trademark
Licenses.
"INVENTORY" means any "inventory," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by the
Debtor, and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by the Debtor:
(a) all goods and other personal property of the Debtor that are held
for sale or lease or to be furnished under any contract of service; (b)
all raw materials, work-in-process, finished goods, inventory, supplies
and materials of such Debtor; (c) all wrapping, packaging, advertising
and shipping materials of the Debtor; (d) all goods that have been
returned to, repossessed by or stopped in transit by the Debtor; and
(e) all Documents evidencing any of the foregoing.
"INVESTMENT PROPERTY" means any "investment property" as such
term is defined in Article or Chapter 9 of the UCC, now owned or
hereafter acquired by the Debtor, and, in any event, shall include,
without limitation, each of the following, whether now owned or
hereafter acquired by the Debtor: (a) any security, whether
certificated or uncertificated; (b) any security entitlement; (c) any
securities account (including, without limitation, those described on
SCHEDULE 3.2); (d) any commodity contract; and (e) any commodity
account (including, without limitation, those described on Schedule
3.2), PROVIDED, however, that Investment Property shall not include any
Equity Interests issued by Subsidiaries.
"LETTER OF CREDIT RIGHTS" means "letter of credit rights," as
such term is defined in the UCC.
"LOCKBOX ACCOUNTS" shall mean the lockbox accounts described
on SCHEDULE 3.2 and any other accounts established pursuant to the
Lockbox
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Agreements in which all funds received pursuant to the Lockbox
Agreements shall be deposited.
"LOCKBOX AGREEMENTS" shall mean the lockbox or other
agreements described on SCHEDULE 3.2 and any lockbox or other agreement
entered into by a Debtor, with the Secured Party, any Bank or any other
depository institution acceptable to the Secured Party, pursuant to
which a lockbox and deposit account shall be established for a Debtor
into which payments on such Debtor's accounts or other Collateral shall
be sent and deposited, each in form and substance satisfactory to the
Secured Party, as the same may be amended or otherwise modified.
"OBLIGATIONS" means, with respect to each Debtor, all
"Obligations" (as defined in the Credit Agreement) for which such
Debtor is obligated under the terms of the Credit Agreement, as
determined in accordance with Section 4.13 of the Credit Agreement.
"PAYMENT INTANGIBLES" means "payment intangibles" as such
term is defined in the UCC.
"PROCEEDS" means any "proceeds," as such term is defined in
Article or Chapter 9 of the UCC and, in any event, shall include, but
not be limited to, (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to the Debtor from time to time
with respect to any of the Collateral, (b) any and all payments (in any
form whatsoever) made or due and payable to the Debtor from time to
time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting, or purporting to act, for
or on behalf of any Governmental Authority), and (c) any and all other
amounts from time to time paid or payable under or in connection with
any of the Collateral and all other Payment Intangibles relating
thereto.
"SUPPORTING OBLIGATIONS" means "supporting obligations" as
such term is defined in the UCC.
"TRADEMARK LICENSE" means any written agreement now or
hereafter in existence granting to the Debtor any right to use any
Trademark, including, without limitation, the agreements identified on
SCHEDULE 3.5.
"TRADEMARKS" means all of the following: (a) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos, other business
identifiers, prints and labels on which any of the foregoing appear,
all registrations and recordings thereof and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Patent and Trademark
Office or in
Security Agreement p. 4
any similar office or agency of the United States, any state thereof
or any other country or any political subdivision thereof,
including, without limitation, those described in SCHEDULE 3.5; (b) all
reissues, extensions and renewals thereof; (c) all income, royalties,
damages and payments now or hereafter relating to or payable under
any of the foregoing, including, without limitation, damages or
payments for past or future infringements of any of the foregoing;
(d) the right to xxx for past, present and future infringements of
any of the foregoing; (e) all rights corresponding to any of the
foregoing throughout the world; and (f) all goodwill associated with
and symbolized by any of the foregoing; in each case, whether now
owned or hereafter acquired by the Debtor.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York from time to time and for purpose of the definitions
contained in this SECTION 1.1 and the last sentence of SECTION 1.2,
includes the Revised Article 9 of the Uniform Commercial Code included
in the 1998 official text of the Uniform Commercial Code as approved by
the American Law Institute in 1998 and the National Conference of
Commissioners on Uniform State Laws in 1999 ("Revised Article 9"). For
purposes of this SECTION 1.1 and the last sentence of SECTION 1.2, in
the event of any difference between the Uniform Commercial Code as in
effect in the State of New York and Revised Article 9, Revised Article
9 shall control. For purposes of all provisions of this Agreement other
than this SECTION 1.1 and the last sentence of SECTION 1.2, if, by
applicable law, the perfection or effect of perfection or
non-perfection of the security interest created hereunder in any
Collateral is governed by the Uniform Commercial Code as in effect on
or after the date hereof in any other jurisdiction, "UCC" means the
Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or the
effect of perfection or non-perfection.
Section 1.2. OTHER DEFINITIONAL PROVISIONS. Terms used herein that are
defined in the Credit Agreement and are not otherwise defined herein shall have
the meanings therefor specified in the Credit Agreement. References to
"Sections," "subsections," "Exhibits" and "Schedules" shall be to Sections,
subsections, Exhibits and Schedules, respectively, of this Agreement unless
otherwise specifically provided. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. All
references to statutes and regulations shall include any amendments of the same
and any successor statutes and regulations. References to particular sections of
the UCC should be read to refer also to parallel sections of the Uniform
Commercial Code as enacted in each state or other jurisdiction where any portion
of the Collateral is or may be located. Terms used herein, which are defined in
the UCC, unless otherwise defined herein or in the Credit Agreement, shall have
the meanings determined in accordance with the UCC.
Security Agreement p. 5
ARTICLE 2
SECURITY INTEREST
Section 2.1 SECURITY INTEREST. (a) As collateral security for the
prompt payment and performance in full when due of its Obligations (whether at
stated maturity, by acceleration or otherwise), each Debtor hereby pledges and
assigns to the Secured Party, and grants to the Secured Party a continuing lien
on and security interest in, all of its right, title and interest in and to the
following, whether now owned or hereafter arising or acquired and wherever
located (collectively, the "COLLATERAL"):
(i) all Accounts;
(ii) all Inventory;
(iii) all Deposit Accounts and all funds, certificates, Documents,
Instruments, checks, drafts, wire transfer receipts and other
earnings, profits or other Proceeds from time to time
representing, evidencing, deposited into or held in the
Deposit Accounts; and
(iv) all Instruments, Financial Assets, other Investment Property,
Documents, Chattel Paper, General Intangibles, products and
Proceeds evidencing title to, or the right to possession of,
arising from the sale or other disposition of, necessary for
or used in connection with the production, manufacture, sale
or other disposition of, or otherwise relating to, or arising
or created out of the property described in clauses (i)
through (iii) of this SECTION 2.1.
(b) Secured Party disclaims any lien, pledge or security interest in equipment,
fixtures, Intellectual Property, real estate, insurance policies (other than
insurance specifically relating to a loss with respect to the Collateral) or
stock of subsidiaries or any Proceeds thereof (other than proceeds of insurance
specifically relating to a loss with respect to the Collateral).
Section 2.2. DEBTOR REMAINS LIABLE. Notwithstanding anything to the
contrary contained herein, (a) each Debtor shall remain liable under the
documentation included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Secured Party of
any of its rights or remedies hereunder shall not release any Debtor from any of
its duties or obligations under such documentation, (c) the Secured Party shall
not have any obligation under any of such documentation included in the
Collateral by reason of this Agreement, and (d) the Secured Party shall not be
obligated to perform any of the obligations of any Debtor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
Security Agreement p. 6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
To induce the Secured Party and the Banks to enter into this Agreement
and the Credit Agreement, each Debtor represents and warrants to the Secured
Party and the Banks that:
Section 3.1 LOCATION OF INVENTORY; THIRD PARTIES IN POSSESSION. All of
its Inventory is located at the places specified in SCHEDULE 3.1 for such
Debtor. SCHEDULE 3.1 correctly identifies the landlords or mortgagees, if any,
of each location identified in SCHEDULE 3.1 currently leased or owned by such
Debtor. No Persons other than such Debtor and Secured Party has possession of
any of the Collateral except as disclosed on SCHEDULE 3.1 and SCHEDULE 3.2. For
each third Person in possession of Collateral identified on SCHEDULE 3.1,
SCHEDULE 3.1 identifies the Person, the address where the Collateral is held and
the capacity in which such Person holds the Collateral. None of its Collateral
has been located in any location within the past four months other than as set
forth on SCHEDULE 3.1.
Section 3.2 DEPOSIT, COMMODITY AND SECURITIES ACCOUNTS. SCHEDULE 3.2
correctly identifies all of its lockbox agreements and all deposit, commodity
and securities accounts and the institutions holding such accounts. No Person
other than such Debtor has control over any deposit, commodity or securities
account or any Investment Property.
Section 3.3 OFFICE LOCATIONS; FICTITIOUS NAMES; PREDECESSOR
COMPANIES. Its chief place of business, its chief executive office and its
jurisdiction of organization is located at the places identified for it on
SCHEDULE 3.1. Within the last four months it has not had any other chief
place of business, chief executive office or jurisdiction of organization
except as disclosed on SCHEDULE 3.1. It does not do business nor has it done
business during the past five years under any trade-name or fictitious
business name except as disclosed on SCHEDULE 3.3. SCHEDULE 3.3 sets forth an
accurate list of all names of all predecessor companies of such Debtor
including the names of any entities it acquired (by stock purchase, asset
purchase, merger or otherwise) and the chief place of business and chief
executive officer of each such predecessor company. For purposes of the
foregoing, a "predecessor company" shall mean, with respect to a Debtor, any
Person whose assets or Equity Interests are acquired by the Debtor or who was
merged with or into the Debtor within the last four months prior to the
Closing Date.
Section 3.4 DELIVERY OF COLLATERAL. Except as provided by SECTION 4.2,
it has delivered to Secured Party all Collateral the possession of which is
necessary to perfect the security interest of Secured Party therein.
Security Agreement p. 7
ARTICLE 4
COVENANTS
Each Debtor covenants and agrees with the Secured Party that until the
Obligations are paid and performed in full, all commitments of the Secured Party
and the Banks to any Debtor have expired or have been terminated and no Letter
of Credit remains outstanding:
Section 4.1 ACCOUNTS. It shall, in accordance with its customary
business practices, endeavor to collect or cause to be collected from each
account debtor under its Accounts, as and when due, any and all amounts owing
under such Accounts. Without the prior written consent of the Secured Party, it
shall not, outside the ordinary course of business or after the occurrence and
during the continuance of an Event of Default: (a) grant any extension of time
for any payment with respect to any of the Accounts beyond 120 days after such
payment's due date, (b) compromise, compound, or settle any of the Accounts for
less than the full amount thereof, (c) release, in whole or in part, any Person
liable for payment of any of the Accounts, (d) allow any credit or discount for
payment with respect to any Account other than trade or other customary
discounts granted in the ordinary course of business, or (e) release any Lien or
guaranty securing any Account unless the Account has been paid.
Section 4.2 FURTHER ASSURANCES. At any time and from time to time, upon
the request of the Secured Party, and at its sole expense, it shall, subject to
the exceptions to the creation, perfection and/or protection of Liens permitted
by Section 8.10 of the Credit Agreement, promptly execute and deliver all such
further agreements, documents and instruments and take such further action as
the Secured Party may reasonably deem necessary or appropriate to preserve and
perfect its security interest in the Collateral and carry out the provisions and
purposes of this Agreement or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any of the Collateral.
Without limiting the generality of the foregoing, it shall upon reasonable
request by the Secured Party but subject to the exceptions to the creation,
perfection and/or protection of Liens permitted by Section 8.10 of the Credit
Agreement, (a) execute and deliver to the Secured Party such financing
statements as the Secured Party may from time to time require (Debtor also
hereby authorizes Secured Party to file such financing statements without
Debtor's signature naming it as debtor, Secured Party as secured party and
describing the Collateral as Secured Party may deem appropriate); (b) take such
action as the Security Party may request to permit the Secured Party to have
control over each deposit account and any Investment Property; (c) deliver to
the Secured Party all Collateral the possession of which is necessary to perfect
the security interest therein, duly endorsed and/or accompanied by duly executed
instruments of transfer or assignment, all in form and substance satisfactory to
Secured Party; EXCEPT THAT, prior to the occurrence of a Default and when no
Default exists, a Debtor may: (i) retain any letters of credit (other than those
securing Accounts) received in the ordinary course of business, (ii) retain and
utilize in the ordinary course of business all dividends, distributions and
interest paid in
Security Agreement p. 8
respect to any of the Investment Property, and (iii) retain any Documents
received and further negotiated in the ordinary course of business; and
(d) execute and deliver to the Secured Party such other agreements, documents
and instruments as the Secured Party may reasonably require to perfect and
maintain the validity, effectiveness and priority of the Liens intended to be
created by the Loan Documents.
Section 4.3 THIRD PARTIES IN POSSESSION OF COLLATERAL. Other than in
connection with repairs or maintenance to such Collateral, and subject to the
terms of Section 8.10 of the Credit Agreement, it shall not permit any third
Person (including any warehouseman, bailee, agent, consignee or processor) to
hold any Collateral, unless it shall: (i) notify such third Person of the
security interests created hereby; (ii) instruct such Person to hold all such
Collateral for Secured Party's account subject to Secured Party's instructions;
and (iii) take all other actions the Secured Party reasonably deems necessary to
perfect and protect its and such Debtor's interests in such Collateral pursuant
to the requirements of the UCC of the applicable jurisdiction where the
warehouseman, bailee, consignee, agent, processor or other third Person is
located (including the filing of a financing statement in the proper
jurisdiction naming the applicable third Person as debtor and the applicable
Debtor as secured party and notifying the third Person's secured lenders of
Debtor's interest in such Collateral before the third Person receives possession
of the Collateral in question).
Section 4.4 CORPORATE CHANGES. It shall not change its name, identity,
jurisdiction of organization or corporate structure in any manner that might
make any financing statement filed in connection with this Agreement seriously
misleading unless it shall have given the Secured Party thirty (30) days prior
written notice thereof and shall have taken all action reasonably deemed
necessary or desirable by the Secured Party to protect its Liens and the
perfection and priority thereof required by the Loan Documents. It shall not
change its principal place of business, chief executive office or the place
where it keeps its books and records unless it shall have given the Secured
Party thirty (30) days prior written notice thereof and shall have taken all
action reasonably deemed necessary or desirable by the Secured Party to cause
its security interest in the Collateral to be perfected with the priority
required by the Loan Documents.
Section 4.5 INVENTORY. It shall keep its Inventory at (or in transit
to) any of the locations specified on SCHEDULE 3.1 hereto as a location of such
Debtor or, upon thirty (30) days prior written notice to the Secured Party, at
such other places within the United States of America where all action required
to perfect the Secured Party's security interest in such Collateral with the
priority required by the Loan Documents shall have been taken.
Section 4.6 WAREHOUSE RECEIPTS NON-NEGOTIABLE. It agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued in
respect of any portion of the Collateral, such warehouse receipt or receipt in
the nature thereof shall not be "negotiable" (as such term is used in Section
7.104 of the UCC) unless such warehouse receipt or receipt in the nature thereof
is delivered to the Secured Party.
Security Agreement p. 9
Section 4.7 VOTING RIGHTS; DISTRIBUTIONS, ETC. So long as no Event of
Default exists, it shall be entitled to exercise any and all voting and other
consensual rights (including, without limitation, the right to give consents,
waivers and notifications) pertaining to any of the Investment Property;
provided, however, that no vote shall be cast or consent, waiver or ratification
given or action taken without the prior written consent of the Secured Party
which would be inconsistent with or violate any provision of this Agreement or
any other Loan Document.
Section 4.8 INTELLECTUAL PROPERTY COVENANTS. Debtor shall not abandon
any trademark application or any other Intellectual Property which is necessary
for the conduct of Debtor's business without the prior written consent of
Secured Party.
Section 4.9 LOCKBOX OF PROCEEDS. It shall instruct all customers and
other Persons obligated with respect to all of its Accounts and other Collateral
to make all payments with respect thereto to a post office box or boxes in
accordance with the terms of one or more of the Lockbox Agreements. It shall
irrevocably instruct each depository bank who has entered into a Lockbox
Agreement and who receives proceeds of its Accounts to remit all proceeds of
such payments directly to Secured Party on a daily basis by automated clearing
house debit directly for credit to the Concentration Account or by wire transfer
to Secured Party for application in accordance with the Credit Agreement. Any
income received by the Secured Party with respect to the balance from time to
time standing to the credit of the Concentration Account shall remain, or be
deposited, in the Concentration Account. In addition to the foregoing, it agrees
that if any Proceeds (including, without limitation, the payments made in
respect of Accounts) shall be received by it, it shall as promptly as possible
deposit such Proceeds into the Concentration Account. Until so deposited, all
such Proceeds shall be held in trust by such Debtor for the benefit of the
Secured Party and shall be segregated from any other funds or property of such
Debtor.
Section 4.10 DEPOSIT, COMMODITY AND SECURITY ACCOUNTS. It shall not
amend or modify any Lockbox Agreement. It shall not open any new deposit,
commodity or security account or otherwise utilize any deposit account other
than the Contribution Account, the Disbursement Account and the other deposits
accounts disclosed on Schedule 3.2 unless it shall have given the Secured Party
thirty (30) days prior written notice thereof and shall have taken all action
deemed necessary or desirable by the Secured Party to cause its security
interest therein to be perfected with priority required by the Loan Documents.
Prior to the occurrence and continuance of an Event of Default, it may make
purchases and sales of Investment Property and Financial Assets in accordance
with the restrictions on investment set out in the Credit Agreement provided
that at no time shall it purchase or acquire marketable securities or open or
maintain any commodity or security accounts. After the occurrence and during the
continuance of an Event of Default it shall not be authorized to make purchases
and sales of the Investment Property or Financial Assets and it shall take such
steps as Secured Party may reasonably request to give Secured Party
Security Agreement p. 10
control over all Investment Property. It will not give any party control over
any Investment Property or Financial Assets.
Section 4.11 COMMERCIAL TORT CLAIMS. It will grant to Secured Party a
security interest in any commercial tort claim that arises after the date hereof
that relates to or arises out of the Collateral or the conduct of the Debtor's
business in relation thereto.
ARTICLE 5
RIGHTS OF THE SECURED PARTY
Section 5.1 POWER OF ATTORNEY. EACH DEBTOR HEREBY IRREVOCABLY
CONSTITUTES AND APPOINTS THE SECURED PARTY AND ANY OFFICER OR AGENT THEREOF,
WITH FULL POWER OF SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH
FULL IRREVOCABLE POWER AND AUTHORITY IN THE NAME OF SUCH DEBTOR OR IN ITS OWN
NAME, TO TAKE, AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF A DEFAULT, ANY
AND ALL ACTIONS AND TO EXECUTE ANY AND ALL DOCUMENTS AND INSTRUMENTS WHICH THE
SECURED PARTY AT ANY TIME AND FROM TIME TO TIME DEEMS NECESSARY OR DESIRABLE TO
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, EACH DEBTOR HEREBY GIVES THE SECURED PARTY THE POWER AND RIGHT
ON BEHALF OF SUCH DEBTOR AND IN ITS OWN NAME TO DO ANY OF THE FOLLOWING AFTER
THE OCCURRENCE AND DURING THE CONTINUANCE OF A DEFAULT, WITH NOTICE TO SUCH
DEBTOR BUT WITHOUT THE CONSENT OF ANY DEBTOR:
(i) to demand, xxx for, collect or receive, in the name of the
Debtor or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and, in
connection therewith, endorse checks, notes, drafts, acceptances, money orders,
documents of title or any other instruments for the payment of money under the
Collateral or any policy of insurance;
(ii) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(iii) (A) to direct account debtors and any other parties
liable for any payment under any of the Collateral to make payment of any and
all monies due and to become due thereunder directly to the Secured Party or as
the Secured Party shall direct (Debtor agrees that if any Proceeds of any
Collateral (including payments made in respect of Accounts) shall be received by
it while an Event of Default exists, it shall promptly deliver such Proceeds to
the Secured Party with any necessary endorsements, and until such Proceeds are
delivered to the Secured Party, such Proceeds shall be held in trust by
Security Agreement p. 11
such Debtor for the benefit of the Secured Party and shall not be commingled
with any other funds or property of such Debtor); (B) to receive payment of
and receipt for any and all monies, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral; (C) to
sign and endorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments, proxies,
stock powers, verifications and notices in connection with accounts and other
documents relating to the Collateral; (D) to commence and prosecute any suit,
action or proceeding at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce any
other right in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against the Debtor with respect to any Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as the
Secured Party may deem appropriate; (G) to exchange any of the Collateral for
other property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such
terms as the Secured Party may determine; (H) to add or release any
guarantor, endorser, surety or other party to any of the Collateral; (I) to
renew, extend or otherwise change the terms and conditions of any of the
Collateral; (J) to grant or issue any exclusive or nonexclusive license under
or with respect to any of the Intellectual Property (subject to the rights of
third parties under pre-existing licenses); (K) to endorse the Debtor's name
on all applications, documents, papers and instruments necessary or desirable
in order for the Secured Party to use any of the Intellectual Property;
(L) to make, settle, compromise or adjust any claims under or pertaining to
any of the Collateral (including claims under any policy of insurance); and
(M) to sell, transfer, pledge, convey, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though
the Secured Party were the absolute owner thereof for all purposes, and to
do, at the Secured Party's option and the Debtors' expense, at any time, or
from time to time, all acts and things which the Secured Party deems
necessary to protect, preserve, maintain, or realize upon the Collateral and
the Secured Party's security interest therein.
THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.11.
The Secured Party 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 Secured Party in this Agreement, and shall not be liable for any
failure to do so or any delay in doing so. Neither the Secured Party nor any
Person designated by the Secured Party shall be liable for any act or omission
or for any error of judgment or any mistake of fact or law, except any of the
same resulting from its or their gross negligence or willful misconduct. This
power of attorney is conferred on the Secured Party solely to protect, preserve,
maintain and realize upon its security interest in the Collateral. The Secured
Party shall not be responsible for any decline in the value of the Collateral
and shall not be required to take any steps to preserve rights against prior
parties or to protect, preserve or maintain any Lien given to secure the
Collateral.
Security Agreement p. 12
Section 5.2 ASSIGNMENT BY THE SECURED PARTY. The Secured Party and each
Bank may at any time assign or otherwise transfer all or any portion of their
rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, the Obligations) to any other Person, to the
extent permitted by, and upon the conditions contained in, the Credit Agreement,
and such Person shall thereupon become vested with all the benefits thereof
granted to the Secured Party and the Banks, respectively, herein or otherwise.
Section 5.3 POSSESSION; REASONABLE CARE. The Secured Party may, from
time to time, in its sole discretion, appoint one or more agents to hold
physical custody, for the account of the Secured Party, of any or all of the
Collateral that the Secured Party has a right to possess. The Secured Party
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 Secured Party accords its own
property, it being understood that the Secured Party shall not have any
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not the Secured Party has or is deemed to have knowledge
of such matters, or (b) taking any necessary steps to preserve rights against
any parties with respect to any Collateral.
ARTICLE 6
DEFAULT
Section 6.1 RIGHTS AND REMEDIES. If an Event of Default shall have
occurred and be continuing, the Secured Party shall have the following rights
and remedies:
(i) In addition to all other rights and remedies granted to
the Secured Party in this Agreement or in any other Loan Document or by
applicable law, the Secured Party shall have all of the rights and remedies of a
secured party under the UCC (whether or not the UCC applies to the affected
Collateral). Without limiting the generality of the foregoing, the Secured Party
may (A) without demand or notice to any Debtor, collect, receive or take
possession of the Collateral or any part thereof and for that purpose the
Secured Party may enter upon any premises on which the Collateral is located and
remove the Collateral therefrom or render it inoperable, and/or (B) sell, lease
or otherwise dispose of the Collateral, or any part thereof, in one or more
parcels at public or private sale or sales, at the Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms
as the Secured Party may deem commercially reasonable or otherwise as may be
permitted by law. The Secured Party shall have the right at any public sale or
sales, and, to the extent permitted by applicable law, at any private sale or
sales, to bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) and become a purchaser of the Collateral or any
part thereof free of any right or equity of redemption on the part of any
Debtor, which right or equity of redemption is
Security Agreement p. 13
hereby expressly waived and released by each Debtor. Upon the request of the
Secured Party, the Debtors shall assemble the Collateral and make it
available to the Secured Party at any place designated by the Secured Party
that is reasonably convenient to the Debtors and the Secured Party. Each
Debtor agrees that the Secured Party shall not be obligated to give more than
ten (10) days prior written notice of the time and place of any public sale
or of the time after which any private sale may take place and that such
notice shall constitute reasonable notice of such matters. The Secured Party
shall not be obligated to make any sale of Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of Collateral may
have been given. The Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for sale, and such
sale may, without further notice, be made at the time and place to which the
same was so adjourned. The Debtors shall, jointly and severally, be liable
for all reasonable expenses of retaking, holding, preparing for sale or the
like, and all reasonable attorneys' fees, legal expenses and other costs and
expenses incurred by the Secured Party in connection with the collection of
the Obligations and the enforcement of the Secured Party's rights under this
Agreement. The Debtors shall remain liable for any deficiency if the Proceeds
of any sale or other disposition of the Collateral applied to the Obligations
are insufficient to pay the Obligations in full. The Secured Party may apply
the Collateral against the Obligations as provided in the Credit Agreement.
Each Debtor waives all rights of marshalling, valuation and appraisal in
respect of the Collateral. Any cash held by the Secured Party as Collateral
and all cash proceeds received by the Secured Party in respect of any sale
of, collection from or other realization upon all or any part of the
Collateral may, in the discretion of the Secured Party, be held by the
Secured Party as collateral for, and then or at any time thereafter applied
in whole or in part by the Secured Party against, the Obligations in the
order permitted by the Credit Agreement. Any surplus of such cash or cash
proceeds and interest accrued thereon, if any, held by the Secured Party and
remaining after payment in full of all the Obligations shall be promptly paid
over to the Debtors or to whomsoever may be lawfully entitled to receive such
surplus; PROVIDED that the Secured Party shall have no obligation to invest
or otherwise pay interest on any amounts held by it in connection with or
pursuant to this Agreement.
(ii) The Secured Party may cause any or all of the Collateral
held by it to be transferred into the name of the Secured Party or the name or
names of the Secured Party's nominee or nominees.
(iii) The Secured Party may exercise any and all rights and
remedies of any Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of any Debtor to demand or otherwise require
payment of any amount under, or performance of any provision of, any of the
Collateral and any and all voting rights and corporate powers in respect of the
Collateral. Each Debtor shall execute and deliver (or cause to be executed and
delivered) to the Secured Party all such proxies and other instruments as the
Secured Party may reasonably request for the purpose of enabling the Secured
Party to exercise the voting and other rights which it is entitled to exercise
Security Agreement p. 14
pursuant to this clause (iii) and to receive the dividends, interest and
other distributions which it is entitled to receive hereunder.
(iv) The Secured Party may collect or receive all money or
property at any time payable or receivable on account of or in exchange for any
of the Collateral, but shall be under no obligation to do so.
(v) On any sale of the Collateral, the Secured Party is hereby
authorized to comply with any limitation or restriction with which compliance is
necessary, in the view of the Secured Party's counsel, in order to avoid any
violation of applicable law or in order to obtain any required approval of the
purchaser or purchasers by any applicable Governmental Authority.
(vi) For purposes of enabling the Secured Party to exercise
its rights and remedies under this SECTION 6.1 and enabling the Secured Party
and its successors and assigns to enjoy the full benefits of the Collateral in
each case as the Secured Party shall be entitled to exercise its rights and
remedies under this SECTION 6.1, each Debtor hereby grants to the Secured Party
an irrevocable, nonexclusive license (exercisable only during an Event of
Default but without payment of royalty or other compensation to the Debtor) to
use any of the Intellectual Property. This license shall also inure to the
benefit of all successors, assigns and transferees of the Secured Party.
Section 6.2 PRIVATE SALES. Debtors recognize that the Secured Party may
be unable to effect a public sale of any or all of the Collateral by reason of
certain prohibitions contained in the laws of any jurisdiction outside the
United States or in the Securities Act of 1933, as amended from time to time
(the "SECURITIES ACT") and applicable state securities laws, but may be
compelled to resort to one or more private sales thereof to a restricted group
of purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to the
distribution or resale thereof. Each Debtor acknowledges and agrees that any
such private sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall, to the extent permitted
by law, be deemed to have been made in a commercially reasonable manner. Neither
the Secured Party nor the Banks shall be under any obligation to delay a sale of
any of the Collateral for the period of time necessary to permit the issuer of
such securities to register such securities under the laws of any jurisdiction
outside the United States, under the Securities Act or under any applicable
state securities laws ("Registration"), even if such issuer would agree to do
so. Each Debtor further agrees to do or cause to be done, to the extent that
each Debtor may do so under applicable law, all such other reasonable acts and
things as may be necessary to make such sales or resales of any portion or all
of the Collateral valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having
Security Agreement p. 15
jurisdiction over any such sale or sales, all at Debtors' expense, but in no
event shall the Debtors be obligated to cause a Registration to be made.
ARTICLE 7
MISCELLANEOUS
Section 7.1 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of
the Secured Party to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Debtors and the Secured Party and
respective successors and assigns, except that no Debtor may assign any of its
rights or obligations under this Agreement without the prior written consent of
the Banks and Secured Party may not appoint a successor Secured Party except in
accordance with the Credit Agreement.
Section 7.3 AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this
Agreement may be amended or waived only by an instrument in writing signed by
the parties hereto and the Required Banks.
Section 7.4 NOTICES. All notices and other communications provided for
in this Agreement shall be given or made in accordance with the Credit
Agreement.
Section 7.5 GOVERNING LAW. This agreement shall be governed by, and
construed in accordance with, the laws of the State of New York and applicable
laws of the United States of America.
Section 7.6 HEADINGS. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Security Agreement p. 16
Section 7.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by the Secured Party shall affect the
representations and warranties or the right of the Secured Party to rely upon
them.
Section 7.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
Section 7.9 WAIVER OF BOND. In the event the Secured Party seeks to
take possession of any or all of the Collateral by judicial process, each Debtor
hereby irrevocably waives any bonds and any surety or security relating thereto
that may be required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any such suit or
action.
Section 7.10 SEVERABILITY. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 TERMINATION. If all of the Obligations shall have been
paid and performed in full, all commitments of the Secured Party and the Banks
to all Debtors shall have expired or terminated and no Letters of Credit shall
remain outstanding, the Secured Party shall, upon the written request of the
Parent, execute and deliver to the Debtors a proper instrument or instruments
acknowledging the release and termination of the security interests created by
this Agreement, and shall duly assign and deliver to the Debtors (without
recourse and without any representation or warranty) such of the Collateral as
may be in the possession of the Secured Party and has not previously been sold
or otherwise applied pursuant to this Agreement.
Security Agreement p. 17
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTORS:
MARKETING SPECIALISTS CORPORATION
MARKETING SPECIALISTS SALES COMPANY
By:
--------------------------------------------
Name:
---------------------------------------
Authorized Officer of all Borrowers
XXXX XXXXX ASSOCIATES, INC.
BROMAR, INC.
By:
--------------------------------------------
Name:
---------------------------------------
Authorized Officer for all Borrowers
SECURED PARTY:
THE CHASE MANHATTAN BANK, as Agent
By:
---------------------------------------
Name: Xxxxxx Xxxxx XxXxxxxx
Title: Vice President
Security Agreement p. 18
Schedule 3.1
to
Marketing Specialists Corporation
Security Agreement
LOCATIONS
-----------------------------------------------------------------------------------------------------------
A. CHIEF EXECUTIVE OFFICE FOR ALL DEBTORS:
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Landlord:
North Arrowhead/Briargrove Place
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
B. JURISDICTION OF ORGANIZATION AND OTHER LOCATIONS:
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
1. MARKETING SPECIALISTS CORPORATION
-----------------------------------------------------------------------------------------------------------
Jurisdiction of Incorporation: Delaware
-----------------------------------------------------------------------------------------------------------
Inventory Locations: None
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
2. MARKETING SPECIALISTS SALES COMPANY
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Jurisdiction of Incorporation: Texas
-----------------------------------------------------------------------------------------------------------
Inventory Locations Leased or Owned by Debtor:
-----------------------------------------------------------------------------------------------------------
------------------------------------------------------- ---------------------------------------------------
Name and Address of Third Party Landlord/Mortgagee
------------------------------------------------------- ---------------------------------------------------
Stoughton Corporate Center CD-SP Realty Trust
Condominium c/o Hunneman Management Company,
0000 Xxxxxxxx Xxxxxx Inc.
Xxxxxxxxx, XX 00000 00-00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
------------------------------------------------------- ---------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Third Party Inventory Locations
-----------------------------------------------------------------------------------------------------------
Name and Address of Third Party Capacity in Which Inventory is Held
------------------------------------------------------- ---------------------------------------------------
Xxxxxxxx Transfer & Storage Storage and Distribution
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Contact: Xxxxxx Xxxxxxx, Poly Cello
(000) 000-0000 (x104)
Xxxx Xxxxxxxx
(000) 000-0000
------------------------------------------------------- ---------------------------------------------------
Schedule 3.1 to Security Agreement, Page 1
------------------------------------------------------- ---------------------------------------------------
Sonoco Storage and Distribution
00000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Contact: Xxxxx Xxxxxxxx
(000) 000-0000
------------------------------------------------------- ---------------------------------------------------
Pallestro Distribution Storage and Distribution
00000 Xxxxx Xxxx.
Xxxxxxx, XX 00000
Contact: Xxxxxx Xxxxxxx, Poly Cello
(000) 000-0000 (x104)
------------------------------------------------------- ---------------------------------------------------
All State Storage and Distribution
00 Xxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Contact: Xxxxxx Xxxxxxx, Poly Cello
(000) 000-0000 (x104)
------------------------------------------------------- ---------------------------------------------------
Malnove Storage and Distribution
00000 Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Contact: Xxxxx
(000) 000-0000
(000) 000-0000
------------------------------------------------------- ---------------------------------------------------
D&D Storage and Distribution
000 Xxxxx Xxxx Xxxx
Xxxx, XX 00000
Contact: Xxxxxx Xxxxxxx, Poly Cello
(000) 000-0000 (x104)
------------------------------------------------------- ---------------------------------------------------
Xxxxxx Distribution Storage and Distribution
00000 00xx Xxxxxx Xxxxx
Xxxx, XX 00000
Contact: Ginger
(000) 000-0000 (x303)
Xxx
(000) 000-0000 (x304)
------------------------------------------------------- ---------------------------------------------------
Union Industries, Inc. Storage and Distribution
Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Contact: Xxxx Xxxxxx
Xxxxx Xxxxxxxxxxxxx
(000) 000-0000
------------------------------------------------------- ---------------------------------------------------
Graphic Packaging Corporation Packaging
0000 X. Xxxxxx Xxxxx
P. O. Box 17128
Xxxxxxxx, XX 00000
Contact: Xxxx Xxxxxxx
(000) 000-0000
------------------------------------------------------- ---------------------------------------------------
Mohawk Northern Plastics Storage and Distribution
000 X Xxxxxx X.X.
P. O. Xxx 000
Xxxxxx, XX 00000
Contact: Xxxxxxxx Xxxxxxxxx
(000) 000-0000
(000) 000-0000 (x214)
-----------------------------------------------------------------------------------------------------------
Schedule 3.1 to Security Agreement, Page 2
------------------------------------------------------- ---------------------------------------------------
Americold Storage and Distribution
0000 Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Los Angeles County
-----------------------------------------------------------------------------------------------------------
3. BROMAR, INC.
-----------------------------------------------------------------------------------------------------------
Jurisdiction of Incorporation: California
-----------------------------------------------------------------------------------------------------------
Inventory Locations: NONE
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
4. XXXX XXXXX ASSOCIATES, INC.
-----------------------------------------------------------------------------------------------------------
Jurisdiction of Incorporation: Michigan
-----------------------------------------------------------------------------------------------------------
Inventory Locations: NONE
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Prior Chief Executive Office Landlord/Mortgagee
(within last 4 months)
------------------------------------------------------ ----------------------------------------------------
Address
------------------------------------------------------ ----------------------------------------------------
30095 Northwestern Highway Xxxx Xxxxx, L.L.C.
Xxxxxxxxxx Xxxxx, XX 00000 00000 Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx, XX 00000
------------------------------------------------------ ----------------------------------------------------
Schedule 3.1 to Security Agreement, Page 3
Schedule 3.2
to
Marketing Specialists Corporation
Security Agreement
DEPOSIT, LOCKBOX, COMMODITY AND SECURITY ACCOUNTS
[see attached]
Schedule 3.2 to Security Agreement, Page 1
Schedule 3.3
to
Marketing Specialists Corporation
Security Agreement
PRIOR NAMES AND PREDECESSOR COMPANIES
I. Prior Names
A. MARKETING SPECIALISTS CORPORATION
1. Xxxxxxx American
2. Monroe
B. XXXX XXXXX ASSOCIATES, INC.
1. Creative Advertising
C. MARKETING SPECIALISTS SALES COMPANY
1. Food Service Sales
2. Marketing Specialists of Minnesota
3. Marketing Specialists of Tennessee
4. Marketing Specialists
5. Richmont Marketing
6. Xxxxxxx Enterprises
7. Atlas Marketing
8. Meatmaster
9. Xxxxxx-American
10. Towers Marketing
D. BROMAR, INC.
1. Food Service Sales
================================================================================
PREDECESSOR COMPANIES
================================================================================
================================================================================
1. UNITED BROKERAGE COMPANY
================================================================================
Chief Executive Office Location
--------------------------------------------------------------------------------
Kent County, Michigan
================================================================================
2. BUCKEYE SALES & MARKETING, INC.
================================================================================
Chief Executive Office Location
--------------------------------------------------------------------------------
Summit County, Ohio
================================================================================
3. ATLAS MARKETING COMPANY, INC.
================================================================================
Chief Executive Office Location
--------------------------------------------------------------------------------
Mecklenburg County, North Carolina
================================================================================
4. XXXXXXX - XXXXXX, INC.
================================================================================
Chief Executive Office Location
--------------------------------------------------------------------------------
Schedule 3.3 to Security Agreement, Page 1
--------------------------------------------------------------------------------
Renton, Washington
================================================================================
5. MARKETING SPECIALISTS CO., INC.
================================================================================
Chief Executive Office Location
--------------------------------------------------------------------------------
Canton, Massachusetts
--------------------------------------------------------------------------------
Schedule 3.3 to Security Agreement, Page 2
