Exhibit 10.6
GUARANTOR SECURITY AGREEMENT
GUARANTOR SECURITY AGREEMENT, dated as of June 27, 2002, made by Boundless
Corporation and Boundless Acquisition Corp. (the "Guarantors"), in favor of The
CIT Group/Business Credit, Inc,. (the "Lender").
R E C I T A L S
WHEREAS, Lender has entered into a certain Financing Agreement, dated June
27, 2002 (the "Financing Agreement"), with Boundless Technologies, Inc. and
Boundless Manufacturing Services, Inc. (collectively, the "Borrowers"); and
WHEREAS, Guarantors have executed and delivered or are about to execute
and deliver a guarantee in favor of Lender pursuant to which each Guarantor
absolutely and unconditionally guarantees to Lender the payment and performance
of all now existing and hereafter arising obligations, liabilities and
indebtedness of Borrowers to Lender.
NOW, THEREFORE, each Guarantor hereby agrees with the Lender as follows:
1. Defined Terms.
1.1 Definitions. (a) Unless otherwise defined in this Agreement,
capitalized terms shall have the meanings given to them in the Financing
Agreement.
(b) The following terms shall have the following meanings:
"Accounts": as defined in the Code.
"Accounts Receivable": all right, title and interest of each Guarantor to
the Accounts and all of its right, title and interest in any returned goods,
together with all rights, titles, securities and guaranties with respect to the
Accounts, including any rights to stoppage in transit, replevin, reclamation and
resales, and all related security interests, liens and pledges, whether
voluntary or involuntary.
"Agreement": this Guarantor Security Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"Chattel Paper": as defined in the Code.
"Code": the Uniform Commercial Code as from time to time in effect in the
State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"Collateral Account": any collateral account established by the Lender in
accordance with the provisions of this Agreement.
"Commercial Tort Claims": any claim of either Guarantor arising in tort.
"Contracts": all rights of each Guarantor under contracts and agreements
to which each Guarantor is a party or under which each Guarantor has any right,
title or interest or to which each Guarantor or any property of each Guarantor
is subject, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (a) all rights of each
Guarantor to receive moneys due and to become due to it thereunder or in
connection therewith, (b) all rights of each Guarantor to damages arising out
of, or with respect to any breach or default in respect thereof, and (c) all
rights of each Guarantor to exercise all remedies thereunder, in each case to
the extent the grant by each Guarantor of a security interest pursuant to this
Agreement in its rights under such contract or agreement is not prohibited
without the consent of any other Person, or is permitted with consent if all
necessary consents to such grant of a security interest have been obtained from
all such other Persons (it being understood that the Guarantors shall each use
its best efforts to secure such consents and that the Guarantors shall obtain
the consent of all of their Affiliates that are necessary); provided that the
foregoing limitation shall not affect, limit, restrict or impair the grant by
the Guarantors of a security interest pursuant to this Agreement in any
Collateral or any money or other amounts due or to become due under any contract
or agreement.
"Copyrights": all copyrights, copyright registrations and copyright
applications owned by the Guarantor, or in which such Guarantor acquires any
right or interest, at any time prior to the termination of this Agreement.
"Deposit Accounts": as defined in the Code.
"Documents": all Instruments, files, records, ledger sheets, and documents
covering or relating to any of the Accounts, Equipment, General Intangibles,
Inventory, Copyrights, Patents, Trademarks and Proceeds.
"Equipment": as defined in the Code.
"Fixtures": as defined in the Code.
"General Intangibles": as defined in the Code; provided, however, that
with respect to any general intangibles arising under any Contract or agreement,
the term "General Intangibles" shall include such general intangibles only if
the grant by each Guarantor of a security interest pursuant to this Agreement in
its rights under such contract or agreement is not prohibited without the
consent of any other Person, or is permitted with consent and all necessary
consents to such grant of a security interest have been obtained from all such
other Persons (it being understood that each Guarantor shall use its best
efforts to secure such consents and that each Guarantor shall obtain the consent
of all of its Affiliates that are necessary); provided that the foregoing
limitation shall not affect, limit, restrict or impair the grant by each
Guarantor of a security interest pursuant
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to this Agreement in any Account or any money or other amounts due or to become
due under any Contract.
"Instruments": as defined in the Code.
"Inventory": as defined in the Code.
"Investment Property": as defined in the Code.
"Letter-of-Credit Rights": as defined in the Code.
"Obligations": any and all obligations, liabilities and indebtedness of
every kind, nature and description owing by each Guarantor to Lender, including
principal, interest, charges, fees, costs and expenses whether arising under the
Guaranty, this Agreement or otherwise, whether direct or indirect, whether now
existing or hereafter arising.
"Patents": all of the patents, patent registrations and patent
applications are owned by each Guarantor, or in which each Guarantor acquires
any right or interest, at any time prior to the termination of this Agreement.
"Payment Intangibles": as defined in the Code.
"Proceeds": as defined in the Code; provided, however, that the Proceeds
include, without limitation, all cash and negotiable instruments received or
held on behalf of the Lender pursuant to Section 4.8 of this Agreement.
"Promissory Notes": as defined in the Code.
"Supporting Obligations": as defined in the Code.
"Trademarks" means all the trademarks, trademark registrations, tradenames
and trademark applications owned by each Guarantor, or in which each Guarantor
acquires any right or interest, at any time prior to the termination of this
Agreement.
1.2 Other Definitions. (a) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and subsection references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined in this Agreement shall be
equally applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for the prompt and
complete payment and performance when and as due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, each Guarantor
hereby grants to the Lender,
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a security interest in all of the following property now owned or at any time
hereafter acquired by each of the Guarantors (collectively, the "Collateral"):
(a) all Accounts Receivable;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Commercial Tort Claims;
(e) all Copyrights;
(f) all Deposit Accounts;
(g) all Documents;
(h) all Equipment;
(i) all Fixtures;
(j) all General Intangibles, including Payment Intangibles;
(k) all Instruments, including Promissory Notes;
(l) all Inventory;
(m) all Investment Property;
(n) all Patents;
(o) all Supporting Obligations;
(p) all Trademarks;
(q) all books and records pertaining to the Collateral;
(r) Subject to the rights of the Existing Mortgagees in fixtures,
all proceeds of any and all of the foregoing Collateral (including, without
limitation, all Proceeds that constitute property of the types described in
clauses (a) through (q) above) and, to the extent not otherwise included, all
payments under insurance (whether or not the CIT is the loss payee thereof), any
Commercial Tort Claims, or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the foregoing
items.
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3. Representations and Warranties. The Guarantors hereby represent and
warrant that on the Closing Date:
3.1 Title; No Other Liens. Except for the security interest granted to the
Lender, each Guarantor owns each item of the Collateral applicable to it free
and clear of any and all liens or claims of others. No security agreement,
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any public office, except for such
agreements, statements and notices that have been filed (i) in favor of the
Lender pursuant to this Agreement, and (ii) to perfect Permitted Encumbrances.
3.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement shall constitute valid and duly perfected security
interests in the Collateral in favor of the Lender, and are prior to all other
liens other than Permitted Encumbrances.
3.3 Inventory and Equipment. All of the Inventory and the Equipment are
kept at the locations set forth on Schedule 3.3 to this Agreement, as amended
pursuant to Section 4.4 of this Agreement.
3.4 Chief Executive Office; State of Incorporation. Each Guarantor's chief
executive office, chief place of business and state of incorporation are set
forth on Schedule 3.4 to this Agreement, as amended pursuant to Section 4.4 of
this Agreement.
3.5 Account Records. The location or locations at which each Guarantor
keeps its records concerning the Accounts are set forth on Schedule 3.5 of this
Agreement, as amended pursuant to Section 4.4 of this Agreement.
4. Covenants. Each Guarantor covenants and agrees with the Lender from and
after the Closing Date until this Agreement is terminated and the security
interests created hereby are released:
4.1 Maintenance of Insurance. (a) Each Guarantor shall maintain insurance
policies in accordance with the requirements of the Financing Agreement.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Lender of written notice
thereof, and (ii) name the Lender as loss payee.
(c) In the event any of the Guarantors fails to provide the Lender
with timely evidence, acceptable to the Lender, of its maintenance of insurance
coverage required pursuant to the Financing Agreement, the Lender may purchase,
at the Guarantors' expense, insurance to protect the Lender's interests in the
Collateral.
4.2 Payment of Obligations. Each Guarantor shall pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all material taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of income or profits therefrom, as
well as all claims of any kind
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(including, without limitation, claims for labor, materials and supplies)
against or with respect to the Collateral, except that no such charge need be
paid if the amount or validity thereof is currently being contested in good
faith by appropriate proceedings, reserves in conformity with generally accepted
accounting principles with respect thereto have been provided on the books of
each Guarantor and such proceedings do not involve any material risk of the
sale, forfeiture or loss of any material part of the Collateral.
4.3 Maintenance of Perfected Security Interest; Further Documentation. (a)
(a) Any financing statements required to be filed in order to create, in favor
of the Lender, a first perfected security interest in the Collateral, subject
only to the Permitted Encumbrances, shall have been properly filed in each
office in each jurisdiction required in order to create in favor of the Lender a
perfected lien on the Collateral. The Lender shall have received acknowledgement
copies of all such filings (or, in lieu thereof, the Lender shall have received
other evidence satisfactory to the Lender that all such filings have been made)
and the Lender shall have received evidence that all necessary filing fees and
all taxes or other expenses related to such filings have been paid in full. Upon
each Guarantor's receipt of any interest in any Collateral after the Closing
Date, each Guarantor shall promptly take all actions required to provide the
Lender with a valid and duly perfected first priority security interest in such
Collateral. Each Guarantor shall maintain the security interests created in
favor of the Lender, in the Collateral pursuant to this Agreement as valid and
duly perfected first priority security interests subject only to Permitted
Encumbrances and shall defend such security interests against claims and demands
of all Persons whomsoever.
(b) At any time and from time to time, upon the written request of
the Lender, and at the sole expense of the Guarantors, each Guarantors shall
promptly and duly execute and deliver such further instruments and documents and
take such further action as the Lender may reasonably request for the purpose of
obtaining or preserving all of the benefits, rights and powers granted to the
Lender pursuant to this Agreement.
4.4 Changes in Locations, Name, etc.
Each Guarantor shall not permit any of the changes described below to
occur unless (x) at least thirty (30) days prior to such change, the Lender
shall have received written notice of such change and, upon request, an updated
copy of each schedule to this Agreement that is required to be updated as a
result of such change, and (y) all filings and notices have been made to
maintain in favor of the Lender, a valid and duly perfected first priority
security interest in the Collateral, subject to no liens other than Permitted
Encumbrances:
(a) permit any change in the location of any Collateral, Inventory
or Equipment to be kept at a location other than those set forth on Schedule 3.3
to this Agreement, as amended;
(b) change the location of its chief executive office, chief place
of business or state of incorporation from that set forth on Schedule 3.4 to
this Agreement, as amended;
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(c) change the location of the place where it keeps its records
concerning the Accounts from those set forth on Schedule 3.5 to this Agreement,
as amended; or
(d) change its name, identity or corporate structure to such an
extent that any financing statement filed in favor of the Agent in connection
with this Agreement would become inaccurate or misleading.
4.5 Further Identification of Collateral. Each Guarantor shall furnish to
the Lender from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Lender may reasonably request, all of which shall be in form
and substance satisfactory to the Lender.
4.6 Notices. The Guarantors shall advise the Lender promptly, in
reasonable detail, at its addresses as set forth in the Financing Agreement, of:
(a) any Lien (other than Permitted Encumbrances) on any Collateral;
and
(b) the occurrence of any other event that could, individually or in
the aggregate, reasonably be expected to have a material adverse effect on (i)
the security interests created in favor of the Lender, in the Collateral
pursuant to this Agreement or any other Loan Document, or (ii) the aggregate
value of the Collateral.
4.7 Indemnification. Each Guarantor agrees to pay, and to save the Lender
harmless from, any and all liabilities, costs and expenses (including, without
limitation, legal fees and expenses) with respect to, or resulting from, any
failure or delay by the Guarantors in (a) paying any and all excise, sales or
other taxes that may be payable or determined to be payable by the Borrower with
respect to any of the Collateral, and (b) in complying with any Requirement of
Law applicable to any of the Collateral. The provisions of this Section 4.7
shall survive the termination of this Agreement.
4.8 Use and Disposition of Collateral. The Guarantors Borrower shall not
(i) make or permit to be made an assignment, pledge or hypothecation of the
Collateral, and shall grant no other security interest in the Collateral (other
than pursuant to the Loan Documents and except for any Permitted Encumbrances),
or (ii) make or permit to be made any transfer of the Collateral, and shall
remain at all times in possession of the Collateral other than transfers to the
Lender pursuant to the provisions of this Agreement; provided, however, that
notwithstanding the foregoing, the Borrower may use and dispose of the
Collateral in any lawful manner not in violation of the provisions of this
Agreement, Financing Agreement or any other Loan Document unless the Lender
shall, after an Event of Default has occurred and during the continuance
thereof, notify the Guarantor not to sell, convey, lease, assign, transfer or
otherwise dispose of any Collateral.
4.9 Collections on Accounts. (a) The Lender hereby authorizes the
Guarantors to collect the Accounts, and the Lender may curtail or terminate said
authority at any time after the occurrence and during the continuance of an
Event of Default. If required by the Lender at any time after the occurrence and
during the continuance of an Event of Default,
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any payments of Accounts, when collected by each Guarantor during the
continuance of such an Event of Default, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Guarantor in the exact form
received, duly indorsed by such Guarantor to the Lender if required, in a
Collateral Account maintained under the sole dominion and control of and on
terms and conditions reasonably satisfactory to the Lender and (ii) until so
turned over, shall be held by such Guarantor in trust for the Lender, segregated
from all other funds of such Guarantor.
(b) At the Lender's request after the occurrence and during the
continuance of an Event of Default, each Guarantor shall deliver to the Lender
all original and other documents evidencing, and relating to, the agreements and
transactions that gave rise to the Accounts (including, without limitation, all
original orders, invoices and shipping receipt).
5. Remedies.
5.1 Notice to Account Debtors and Contract Parties. Upon the request of
the Lender at any time after the occurrence and during the continuance of an
Event of Default, the Guarantors shall notify account debtors on the Accounts
and the other parties to the Contracts that the Accounts and the Contracts have
been assigned to the Lender, and that payments in respect of such Accounts and
Contracts shall be made directly to the Lender.
5.2 Code Remedies. If an Event of Default shall have occurred and be
continuing, the Lender may exercise, in addition to all other rights and
remedies granted to the Lender in this Agreement, any Loan Document and any
other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code (whether
or not the Code applies to any part of the Collateral) and any other applicable
laws. Without limiting the generality of the foregoing, the Lender, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon the Guarantors or any other Person (all and each of such demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral or any
part thereof, or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange broker's board or office of the Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Lender shall have the right upon any such
public sale or sales and (to the extent permitted by law) upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of (to the extent permitted by law) any right or equity of redemption in each
Guarantor, which right or equity is hereby (to the extent permitted by law)
waived or released. Each Guarantor further agrees, at the Lender's request, to
assemble the Collateral and make it available to the Lender at places that the
Lender shall reasonably select, whether at the Guarantor's premises or
elsewhere. The Lender shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses incurred therein or
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incidental to the care or safekeeping of any of the Collateral or reasonably
relating to the Collateral or the rights of the Lender under this Agreement
(including, without limitation, attorneys' fees and disbursements) to the
payment in whole or in part of the Obligations, in such order as the Lender may
elect, and only after such application and after the payment by, the Lender of
any other amount required by any provision of law (including, without
limitation, Section 9-504(1)(c) and Section 9-608(a)(1)(C) of the Code need the
Lender account for the surplus, if any, to the Guarantors. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be in writing and deemed reasonable and proper if given at least 10
days before such sale or other disposition.
5.3 Waiver; Deficiency. The Guarantors waive and agree not to assert any
rights or privileges that they may acquire under Section 9-112 of the Code. The
Guarantors shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by the Lender to collect
such deficiency.
6. Lender's Appointment as Attorney-in-Fact; Lender's Performance of
Guarantors' Obligations.
6.1 Powers. Each Guarantor hereby irrevocably constitutes and appoints the
Lender and any officer or agent of the Lender (each, an "Attorney") with full
power of substitution, as its true and lawful attorney-in-fact, with full
irrevocable power and authority in the place and stead of each Guarantor and in
the name of each Guarantor or in its own name from time to time in the Lender's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement and, without limiting the generality of the foregoing, each
Guarantor hereby gives each Attorney the power and right, on behalf each
Guarantor, without notice to or assent by each Guarantor, to do the following
upon the occurrence and during the continuance of an Event of Default:
(a) in the name of each Guarantor or its own name, or otherwise, to
take possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account, Instrument, General Intangible or Contract or with respect to any other
Collateral and to file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by the Lender for the
purpose of collecting any and all such moneys due under any Account, Instrument,
General Intangible or Contract or with respect to any other Collateral whenever
payable;
(b) in the case of any Copyrights, Patents or Trademarks, to execute
and deliver any and all agreements, instruments, documents, and papers as the
Lender may reasonably request to evidence the security interest of the Lender,
for itself and for the ratable benefit of the Banks, in such Collateral and the
goodwill and general intangibles of each Guarantor relating thereto or
represented thereby;
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(c) to pay or discharge taxes and liens levied or placed on or
threatened against the Collateral, to effect any repairs or obtain any insurance
required by the terms of this Agreement and to pay all or any part of the
premiums therefor and the costs thereof;
(d) to execute, in connection with any sale provided for in Section
5.2 of this Agreement, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral or any part thereof; and
(e) (i) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due thereunder
directing to the Lender or as the Lender shall direct; (ii) to ask or demand
for, collect, receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising out of
any Contract or other Collateral; (iii) to sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other documents in
connection with any part of the Collateral; (iv) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to protect, preserve, or realize upon the Collateral or any part
thereof and to enforce any other right in respect of any part of the Collateral;
(v) to defend any suit, action or proceeding brought against either Guarantor or
the Guarantors with respect to any part of the Collateral; (vi) to settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Lender may deem
appropriate; (vii) to assign, license or sublicense any, Copyrights, Patents or
Trademarks (along with the goodwill of the business to which any such Collateral
pertains) throughout the world for such term or terms on such conditions, and in
such manner, as the Lender shall in its sole discretion determine; and (viii)
generally, to sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any part of the Collateral as fully and completely as though
the Lender were the absolute owner thereof for all purposes, and to do, at the
Lender's option and the Guarantors' expense, at any time, or from time to time,
all acts and things that the Lender reasonably deems necessary to protect,
preserve or realize upon the Collateral or any part thereof and the security
interests of the Lender, for itself and for the ratable benefit of the Banks,
and to effect the intent of this Agreement, all as fully and effectively as the
Guarantors might do.
6.2 Performance by an Attorney of Guarantors' Obligations. If either
Guarantor fails to perform or comply with any of its agreements contained in
this Agreement, at the option of the Lender, an Attorney may, but without any
obligation, perform or comply, or otherwise cause performance or compliance,
with such agreement.
6.3 Ratification; Power Coupled With an Interest. Each Guarantor hereby
ratifies all actions taken by each Attorney pursuant to this Section 7. All
powers, authorizations and agencies contained in this Agreement are coupled with
an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
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7. Execution of Financing Statements. Pursuant to Section 9-402, Sections
9-502 and 9-509 of the Code, each Guarantor authorizes the Lender to file
financing statements with respect to the Collateral without the signature of
either Guarantor in such form and in such filing offices as the Lender
reasonably determines appropriate to perfect the security interests granted to
the Lender, pursuant to this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction. The Lender is authorized to describe the Collateral
covered by any financing statement filed by it under the Code as "all assets" or
"all personal property" of the each Guarantor.
8. Termination and Release. (a) (a) This Agreement and the security
interests created in favor of the Lender pursuant to this Agreement shall
terminate when all of the Obligations have been fully and indefeasibly paid and
when the Lender has no further Commitments under the Financing Agreement, at
which time the Lender shall execute and deliver to each Guarantor, or to such
person or persons as each Guarantor shall reasonably designate, all Uniform
Commercial Code termination statements and similar documents prepared by the
Lender, either Guarantors at the Guarantors' expense that each Guarantor shall
reasonably request to evidence the release of the liens and the security
interests created by this Agreement with respect to the Collateral.
(b) All Collateral used, sold, transferred or otherwise disposed of
by the Guarantors in accordance with the terms of the Financing Agreement
(including, without limitation, pursuant to a waiver or amendment of the terms
of the Financing Agreement), shall be used, sold, transferred or otherwise
disposed of free and clear of the Lien and the security interest created under
this Agreement. In connection with any such sale, transfer or disposition of
Collateral, (i) the Lender shall deliver to the Guarantors, or to such person or
persons as each Guarantor shall reasonably designate, all Uniform Commercial
Code termination statements and similar documents prepared by such Guarantor at
the Guarantors' expense that such Guarantor shall reasonably request to evidence
the release of the liens and security interests created under such Agreement
with respect to such Collateral, and (ii) any representation, warranty or
covenant contained in this Agreement relating to such Collateral shall no longer
be deemed to be made with respect to such used, sold, transferred or otherwise
disposed Collateral.
9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10. Amendments in Writing; No Waiver; Cumulative Remedies.
11. Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with the Financing Agreement and pursuant to a written instrument
executed by the Guarantors and the Lender; provided, however, that the schedules
to this Agreement shall
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be amended and updated by the either Guarantor as and to the extent required by
this Agreement.
12. No Waiver by Course of Conduct. The Lender shall not, by any act
(except by a written instrument pursuant to Section 11 of this Agreement) or
delay be deemed to have waived any right or remedy under this Agreement or to
have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions of this Agreement. No failure to exercise, nor any
delay in exercising, on the part of the Lender, any right, power or privilege
under this Agreement shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege under this Agreement shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Lender of any right or remedy under this Agreement
on any one occasion shall not be construed as a bar to any right or remedy that
the Lender would otherwise have on any future occasion.
13. Remedies Cumulative. The rights and remedies provided to the Lender in
this Agreement are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
Notwithstanding anything herein to the contrary, to the extent that any
provisions herein are directly contrary to the provisions of the Financing
Agreement, such provisions in the Financing Agreement shall control.
15. Section Headings. The section and subsection headings used in this
Agreement are for convenience of reference only and are not to affect the
construction of this Agreement or be taken into consideration in the
interpretation of this Agreement.
16. Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of each
Guarantor, the Lender and their successors and assigns; provided, however, that
neither Guarantor may not assign any of its rights, or delegate any of its
duties or obligations, under this Agreement without the prior written consent of
the Lender. If an assignment is made, each Guarantor shall render performance
under this Agreement to the assignee. Each Guarantor waives and will not assert
against any assignee any claims, defenses or set-offs that it could assert
against the Lender except defenses that cannot be waived.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PROVISIONS THEREOF.
IN WITNESS WHEREOF, the undersigned has caused this Guarantor Security
Agreement to be duly executed and delivered as of the date first above written.
-12-
BOUNDLESS ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
BOUNDLESS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
-13-
Schedule 3.3
000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
1200, 1202, and 0000X Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000
0000 Xxxx Xxxx Xxxxx, Xxxxx X xxx X, Xxxxx Xxxxxxxx, XX 00000
0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, XX 00000
XxXxxxx Xxxxxxx 00, XX-0000 XX Xxxxx, Xxxxxxxxxxx (warehouse)
Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxx XX0 0XX, Xxxxxxxx (warehouse)
-14-
Schedule 3.4
Chief Executive Office: 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000
Chief Place of Business: 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000
State of Incorporation: Delaware
-15-
Schedule 3.5
Records located at: 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of June in the year 2002, before me personally came
______________________, to me known, who being by me duly sworn, did depose and
say that he is the _______________________ of Boundless Corporation, the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of said
corporation.
________________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of June in the year 2002, before me personally came
______________________, to me known, who being by me duly sworn, did depose and
say that he is the _______________________ of Boundless Acquisition Corp., the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of said
corporation.
________________________________
Notary Public
INITIAL ___________
