EXHIBIT 10.6
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SECURITY AGREEMENT
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THIS AGREEMENT made as of August __, 1999, by and between ▇▇▇▇▇▇
COMMUNICATIONS, L.L.C., a California limited liability company with a principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Debtor") and FLEET NATIONAL BANK, a national banking association
organized under the laws of the United States having an office at One Federal
Street, Mail Stop: MA ▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Agent for itself
and each of the other Lenders who are now or hereafter become parties to the
hereinafter defined Loan Agreement ("Secured Party"). Capitalized terms used but
not expressly defined herein shall have the meanings assigned thereto in said
Loan Agreement.
Section 1. Recitals.
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(a) Secured Party, Debtor and the Lenders have this day entered into that
certain Loan Agreement (as the same may be amended from time to time, the "Loan
Agreement") pursuant to the terms of which Lenders have agreed to make loans to
Debtor as set forth therein.
Section 2. The Security Interests. (a) In order to secure (i) payment and
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performance of all of the obligations of Debtor under the Loan Agreement, under
the Notes and under the other Financing Documents, (ii) the performance of all
of the obligations of Debtor to Secured Party contained herein, and (iii) the
payment of all other future advances and other obligations of Debtor to Secured
Party and/or the Lenders, including, without limitation, any future loans and
advances made to Debtor by Secured Party and/or the Lenders prior to, during or
following any (a) application by Debtor for or consent by Debtor to the
appointment of a receiver, trustee or liquidator of Debtor's property, (b)
admission by Debtor in writing of its inability to pay or failure generally to
pay its respective debts as they mature, (c) general assignment by Debtor for
the benefit of creditors, (d) adjudication of Debtor as bankrupt or (e) filing
by Debtor of a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization or an arrangement with creditors or to take advantage of
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debts,
dissolution or liquidation statute, or an answer admitting the material
allegations of a petition filed against it in a proceeding under any such law
(any of the foregoing shall hereinafter be referred to as a "Bankruptcy Event"),
any interest accruing under the Notes and/or the Loan Agreement after the
commencement of a Bankruptcy Event to the extent permitted by applicable law,
and any and all other indebtedness, liabilities and obligations of Debtor to
Secured Party and/or the Lenders of every kind and description, direct, indirect
or contingent, now or hereafter existing, due or to become due (all of the
foregoing being hereinafter called the "Obligations"), Debtor hereby grants to
Secured Party for the benefit of the Lenders a continuing security interest in
the following described fixtures and personal property (hereinafter collectively
called the "Collateral"):
All fixtures and all tangible and intangible personal property of Debtor,
whether now owned or hereafter acquired by Debtor, or in which Debtor may now
have or hereafter acquire an interest, including, without limitation, (a) all
equipment (including all machinery, tools and furniture), inventory and goods
(each as defined in the Uniform Commercial Code, if so defined
therein); (b) all accounts, accounts receivable, other receivables, contract
rights, chattel paper, and general intangibles (including, without limitation,
trademarks, trademark registrations, trademark registration applications,
servicemarks, servicemark registrations, servicemark registration applications,
goodwill, tradenames, trade secrets, patents, patent applications, leases
licenses, permits, copyrights, copyright registrations, copyright registration
applications, moral rights, any other proprietary rights, exclusionary rights or
intellectual property and any renewals and extensions associated with any of the
foregoing, as each of the foregoing may be secured under the laws now or
hereafter in force and effect in the United States of America or any other
jurisdiction) of Debtor (each as defined in the Uniform Commercial Code, if so
defined therein); (c) all instruments, documents of title, policies and
certificates of insurance, securities (whether certificated or uncertificated)
and other investment property (as defined in the Uniform Commercial code), bank
deposits, deposit accounts, checking accounts and cash of Debtor; (d) all
accessions, additions or improvements to, all replacements, substitutions and
parts for, and all proceeds and products of, all of the foregoing and (e) all
books, records and documents relating to any of the foregoing.
(b) All Collateral consisting of accounts receivable, contract rights,
instruments, chattel paper and general intangibles (each as defined in the
Uniform Commercial Code) of Debtor arising from the sale, delivery or provision
of goods and/or services, including, without limitation, all documents, notes,
drafts and acceptances, now owned by Debtor as well as any and all thereof that
may be hereafter acquired by Debtor and in and to all returned or repossessed
goods arising from or relating to any contract rights, accounts or other
proceeds of any sale or other disposition of inventory, are sometimes
hereinafter collectively called the "Customer Receivables".
(c) The security interests granted pursuant to this Section 2 (the
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"Security Interests") are granted as security only and shall not subject Secured
Party to, or transfer or in any way affect or modify, any obligation or
liability of Debtor under any of the Collateral or any transaction which gave
rise thereto.
(d) Notwithstanding the foregoing, the security interest granted herein
shall not extend to and the term "Collateral" shall not include any property,
rights or licenses to the extent the granting of a security interest therein
would be contrary to applicable law or is prohibited by or would constitute a
default under any agreement or document governing such property, rights or
licenses (but only to the extent such prohibition is enforceable under
applicable law).
Section 3. Delivery of Pledged Securities, Chattel Paper and Database. All
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securities including, without limitation, shares of stock and negotiable
promissory notes, of Debtor, whether now owned or hereafter acquired by Debtor,
shall be delivered to Secured Party by Debtor simultaneously with the delivery
hereof or, with respect to after acquired securities, promptly after the same
have been acquired by Debtor (which securities are hereinafter called the
"Pledged Securities") shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed undated instruments of transfer or
assignments in blank, all in form and substance satisfactory to Secured Party.
Exhibit A attached hereto and made a part hereof sets forth a complete
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description of all securities owned by Debtor on the date hereof. Secured Party
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may at any time or from time to time, at its sole discretion, require Debtor to
cause any chattel paper included in the Customer Receivables to be delivered to
Secured Party or any successor agent or representative designated by it for the
purpose of causing a legend referring to the Security Interests to be placed on
such chattel paper and upon any ledgers or other records concerning the Customer
Receivables.
Section 4. Filing; Further Assurances. Debtor will, at its expense,
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execute, deliver, file and record (in such manner and form as Secured Party may
reasonably require), or permit Secured Party to file and record, any financing
statements, any carbon, photographic or other reproduction of a financing
statement or this Security Agreement (which shall be sufficient as a financing
statement hereunder), any specific assignments or other paper that may be
reasonably necessary or desirable, or that Secured Party may reasonably request,
in order to create, preserve, perfect or validate any Security Interest or to
enable Secured Party to exercise and enforce its rights hereunder with respect
to any of the Collateral. Debtor hereby irrevocably appoints Secured Party as
Debtor's attorney-in-fact to execute in the name and behalf of Debtor such
additional financing statements as Secured Party may reasonably request.
Section 5. Representations and Warranties of Debtor. Debtor hereby
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represents and warrants to Secured Party that (a) Debtor is, or to the extent
that certain of the Collateral is to be acquired after the date hereof, will be,
the owner of the Collateral free from any adverse Lien except as permitted under
the Loan Agreement; (b) except for financing statements relating to Liens
against Debtor specifically described in and permitted by the Loan Agreement, no
financing statement covering the Collateral is on file in any public office,
other than the financing statements filed pursuant to this Security Agreement;
(c) all information, representations and warranties contained in Exhibit B
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attached hereto and made a part hereof are true, accurate and complete in all
material respects on the date hereof; and (d) there are no restrictions upon the
voting rights or the transfer of all or any of the Pledged Securities (other
than as may appear on the face of any certificate evidencing any of the Pledged
Securities or as may be imposed by any state or local agency or government or
Federal or State securities laws) and Debtor has the right to vote, pledge,
grant the Security Interest in and otherwise transfer the Pledged Securities
free of any encumbrances (other than applicable restrictions imposed by any
state or local agency or government or Federal or state securities laws or
regulations).
Section 6. Covenants of Debtor. Debtor hereby covenants and agrees with
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Secured Party that Debtor (a) will defend the Collateral against all claims and
demands of all persons at any time claiming any interest therein other than that
of Secured Party; (b) will provide Secured Party with prompt written notice of
(i) any change in the office where Debtor maintains its books and records
pertaining to the Customer Receivables, and (ii) the movement or location of
Collateral to or at any address other than as set forth in Exhibit B attached
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hereto; (c) will promptly pay any and all taxes, assessments and governmental
charges upon the Collateral prior to the date penalties attach thereto except to
the extent permitted under the Loan Agreement; (d) will immediately notify
Secured Party of any event causing a substantial loss or diminution in the value
of all or any material part of the Collateral and the amount or an estimate of
the amount of such loss or diminution; (e) will have and maintain insurance at
all times in accordance with the provisions of the Loan Agreement; (f) except in
the ordinary course of business or as otherwise
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permitted under the Loan Agreement, will not sell or offer to sell or otherwise
assign, transfer or dispose of the Collateral or any interest therein, without
the prior written consent of Secured Party; (g) will keep the Collateral free
from any adverse Lien (other than Liens permitted under the Loan Agreement) and
in good order and repair, reasonable wear and tear excepted, and will not waste
or destroy the Collateral or any part thereof; and (h) will not use the
Collateral in violation of the Loan Agreement or this Agreement.
Section 7. Records Relating to Collateral. Debtor will keep its records
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concerning the Collateral, including the Customer Receivables and all chattel
paper included in the Customer Receivables, at the location(s) set forth in
Exhibit B attached hereto or at such other place or places of business of which
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Secured Party shall have been notified in writing no less than ten (10) days in
advance. Debtor will hold and preserve such records and chattel paper and will,
to the extent provided in the Loan Agreement, (a) permit representatives of
Secured Party at any time during normal business hours to examine and inspect
the Collateral and to make abstracts from such records and chattel paper, and
(b) furnish to Secured Party such information and reports regarding the
Collateral as Secured Party may from time to time reasonably request.
Section 8. Record Ownership of Pledged Securities. Upon the occurrence and
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during the continuance of an Event of Default, Secured Party may cause any or
all of the Pledged Securities to be transferred of record into the name of
Secured Party (or a designee of Secured Party).
Section 9. Right to Receive Distributions on Pledged Securities. Unless an
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Event of Default shall have occurred and be continuing, Debtor shall be
entitled, from time to time, to collect and receive for its own use all
dividends, interest and other payments and distributions made upon or with
respect to the Pledged Securities, except:
(i) dividends of stock;
(ii) dividends payable in securities or other property (except cash
dividends);
(iii) other securities issued with respect to or in lieu of the Pledged
Securities (whether upon conversion of the convertible securities included
therein or through stock split, spin-off, split-off, reclassification,
merger, consolidation, sale of assets, combination of shares or otherwise).
All of the foregoing, together with all new, substituted or additional shares of
capital stock, warrants, options or other rights, or other securities issued in
addition to or in respect of all or any of the Pledged Securities shall be
delivered to Secured Party hereunder as required by Section 3 hereof, to be held
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as Collateral pursuant to the terms hereof in the same manner as the Pledged
Securities delivered to Secured Party on the date hereof.
Section 10. Right to Vote Pledged Securities. Unless an Event of Default
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shall have occurred and be continuing, Debtor shall have the right, from time to
time, to vote and to give consents, ratifications and waivers with respect to
the Pledged Securities and to exercise conversion rights with respect to the
convertible securities included therein, and Secured Party shall, upon receiving
a written request from Debtor accompanied by a certificate signed by
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Debtor's principal financial officer stating that no Event of Default has
occurred and is continuing, deliver to Debtor or as specified in such request
such proxies, powers of attorney, consents, ratifications and waivers in respect
of any Pledged Securities which are registered in Secured Party's name, and make
such arrangements with respect to the conversion of convertible securities as
shall be specified in Debtor's request, such arrangements to be in form and
substance reasonably satisfactory to Secured Party.
If an Event of Default shall have occurred and be continuing, and provided
Secured Party elects to exercise the rights hereinafter set forth by notice to
Debtor of such election, Secured Party shall have the right, to the extent
permitted by law, and Debtor shall take all such action as may be necessary or
reasonably appropriate to give effect to such right, to vote and to give
consents, ratifications and waivers and take any other action with respect to
all the Pledged Securities with the same force and effect as if Secured Party
were the absolute and sole owner thereof.
Section 11. General Authority. Debtor hereby irrevocably appoints Secured
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Party Debtor's lawful attorney, with full power of substitution, in the name of
Debtor, for the sole use and benefit of Secured Party, its successors and
assigns, but at Debtor's expense, to exercise, all or any of the following
powers with respect to all or any of the Collateral during the existence and
continuance of any Event of Default:
(i) to demand, ▇▇▇ for, collect, receive and give acquittance for any
and all monies due or to become due;
(ii) to receive, take, endorse, assign and deliver all checks, notes,
drafts, securities, documents and other negotiable and non-negotiable
instruments and chattel paper taken or received by Secured Party;
(iii) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto;
(iv) to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof or the related goods securing the Customer
Receivables, as fully and effectually as if Secured Party were the absolute
owner thereof;
(v) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
(vi) to discharge any taxes or Liens at any time placed thereon; and
(vii) to execute any document or form, in the name of Debtor, which
may be necessary or desirable in connection with any sale of Pledged
Securities by Secured Party, including without limitation Form 144
promulgated by the Securities and Exchange Commission;
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provided, that Secured Party shall give Debtor not less than ten (10) days'
prior written notice of the time and place of any sale or other intended
disposition of any of the Collateral.
Section 12. Events of Default. Debtor shall be in default under this
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Security Agreement upon the occurrence and continuance of any Event of Default
under the Loan Agreement.
Section 13. Remedies Upon Event of Default. If any Event of Default shall
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have occurred and be continuing, Secured Party may exercise all the rights and
remedies of a secured party under the Uniform Commercial Code. Secured Party may
require Debtor to assemble all or any part of the Collateral and make it
available to Secured Party at a place to be designated by Secured Party which is
reasonably convenient. Secured Party shall give Debtor ten (10) days' written
notice of its intention to make any public or private sale or sale at a broker's
board or on a securities exchange of the Collateral. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as
Secured Party may determine. Secured Party shall not be obligated to make any
such sale pursuant to any such notice. To the extent permitted by law, 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 the sale, and such sale may be made at any time or place to
which the same may be adjourned. Secured Party, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or suits at law or in
equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
Section 14. Application of Collateral and Proceeds. The proceeds of any
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sale of, or other realization upon, all or any part of the Collateral shall be
applied in the following order of priorities: (a) first, to pay the expenses of
such sale or other realization, including reasonable attorneys' fees, and all
expenses, liabilities and advances incurred or made by Secured Party in
connection therewith, and any other unreimbursed expenses for which Secured
Party may be reimbursed pursuant to Section 15; (b) second, to the payment of
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the Obligations in such order of priority as Secured Party, in its sole
discretion, shall determine; and (c) finally, to pay to Debtor, or its
successors or assigns, or as a court of competent jurisdiction may direct, any
surplus then remaining from such proceeds.
Section 15. Expenses; Secured Party's Lien. Debtor will within 30 days
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after the presentation of invoices pay to Secured Party: (a) the amount of any
taxes which Secured Party may have been required to pay by reason of the
Security Interests (including any applicable transfer and personal property
taxes but excluding taxes in respect of Secured Party's income and profits) or
to free any of the Collateral from any Lien thereon (except for any Lien
permitted under the Loan Agreement) and (b) the amount of any and all reasonable
costs and expenses, including the reasonable fees and disbursements of its
counsel and of any agents not regularly in its employ, which Secured Party may
incur in connection with (i) the collection or other disposition of any of the
Collateral, (ii) the exercise by Secured Party of any of the powers conferred
upon it hereunder, (iii) any default on Debtor's part hereunder or (iv) any
Bankruptcy Event.
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Section 16. Termination of Security Interests; Release of Collateral. Upon
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the repayment and performance in full of all the Obligations and the expiration
or termination of any obligations of Secured Party to advance funds to Debtor,
or upon the sale of any Collateral which is permitted under the Loan Agreement
or as otherwise consented to in writing by Secured Party, the Security Interests
on such sold Collateral shall terminate and all rights to the Collateral shall
revert to Debtor. Upon any such termination of the Security Interests or
release of Collateral, Secured Party will execute and deliver to Debtor such
documents as Debtor shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be.
Notwithstanding the foregoing, this Security Agreement shall be reinstated if at
any time any payment made or value received with respect to an Obligation is
rescinded, invalidated, declared to be fraudulent or preferential, or set aside
or is required to be repaid to a trustee, receiver or any other party under any
case or proceeding, voluntary or involuntary, for the distribution, division or
application of all or part of the assets of Debtor or the proceeds thereof,
whether such case or proceeding be for the liquidation, dissolution or winding
up of Debtor or their respective businesses, a receivership, insolvency or
bankruptcy case or proceeding, an assignment for the benefit of creditors or a
proceeding by or against Debtor for relief under the federal Bankruptcy Code or
any other bankruptcy, reorganization or insolvency law or any other law relating
to the relief of debtors, readjustment of indebtedness, reorganization,
arrangement, composition or extension or marshalling of assets or otherwise, all
as though such payment had not been made or value received.
Section 17. Notices. All notices, requests, demands and other
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communications provided for hereunder shall be in writing and mailed or
telefaxed or delivered to the applicable party in the manner set forth in
Section 9.6 of the Loan Agreement.
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Section 18. Additional Provision Regarding Pledged Securities. With
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respect to any Pledged Securities which are delivered to the Secured Party
pursuant to a separate pledge agreement, to the extent any provisions of that
pledge agreement are inconsistent with the terms of this Security Agreement, the
terms of that separate pledge agreement will govern.
Section 19. Miscellaneous. (a) No failure on the part of Secured Party to
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exercise, and no delay in exercising, and no course of dealing with respect to,
any right, power or remedy under this Security Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by Secured Party of any
right, power or remedy under this Security Agreement preclude any other right,
power or remedy. The remedies in this Security Agreement are cumulative and are
not exclusive of any other remedies provided by law. Neither this Security
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally but only by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought;
(b) This Security Agreement shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any state other than The Commonwealth of Massachusetts
with respect to Collateral located in any such other state are governed by the
laws of said state; and.
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(c) This Security Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same Security Agreement.
Section 20. Consent to Jurisdiction and Service of Process.
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(a) Except to the extent prohibited by applicable law, Debtor irrevocably:
(i) agrees that any suit, action, or other legal proceeding arising out of
this Security Agreement or any of the Loans may be brought in the courts of
record of The Commonwealth of Massachusetts or any other state(s) in which
any of the Collateral is located or the courts of the United States located
in The Commonwealth of Massachusetts or any other state(s) in which any of
the Collateral is located;
(ii) consents to the jurisdiction of each such court in any such suit,
action or proceeding; and
(iii) waives any objection which it may have to the laying of venue of
such suit, action or proceeding in any of such courts.
For such time as any of the Obligations of Debtor to Secured Party shall be
unpaid in whole or in part and/or the Commitment is in effect, Debtor
irrevocably designates the registered agent or agent for service of process of
the Debtor as reflected on the records of the Secretary of State of California
as its registered agent, and, in the absence thereof, the Secretary of State of
State of California, as its agent to accept and acknowledge on its behalf
service of any and all process in any such suit, action or proceeding brought in
any such court and agrees and consents that any such service of process upon
such agent and written notice of such service to Debtor by registered or
certified mail shall be taken and held to be valid personal service upon Debtor
regardless of where Debtor shall then be doing business and that any such
service of process shall be of the same force and validity as if service were
made upon it according to the laws governing the validity and requirements of
such service in each such state and waives any claim of lack of personal service
or other error by reason of any such service. Any notice, process, pleadings or
other papers served upon the aforesaid designated agent shall, within three (3)
Business Days after such service, be sent by the method provided therefor under
Section 9.6 of the Loan Agreement to the Debtor at its address set forth in the
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Loan Agreement. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF ANY DISPUTE BETWEEN THE DEBTOR AND SECURED PARTY WITH
RESPECT TO THE FINANCING DOCUMENTS AND/OR ANY OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
Section 21. Severability. If any provision hereof is invalid or
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unenforceable in any jurisdiction, the other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
favor of Secured Party.
IN WITNESS WHEREOF, this Security Agreement has been executed by the parties
hereto all as of the day and year first above written.
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▇▇▇▇▇▇ COMMUNICATIONS, L.L.C.,
a California limited liability company
By:_________________________________________
Name:
Title:
FLEET NATIONAL BANK, as Agent for
itself and the other Lenders
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President
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EXHIBIT A
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Securities Owned by Debtor
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10
EXHIBIT B
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Additional Representations and Warranties
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1. The exact title of Debtor is: _______________________________. Debtor
has not conducted business under any other corporate name except for those
listed below:
a. ________________
b. ________________
2. Debtor uses in its business, or has used at any time during the last
five years, and owns the following trade names:
a. ________________
b. ________________
3. Debtor was formed as a limited liability company on ______________ under
the laws of State of ___________________ and is in good standing under those
laws.
4. The senior officers of Debtor are:
a.
b.
c.
d.
5. Debtor is qualified to transact business in the following states:
6. Debtor has places of business at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[LIST OTHERS]
7. Debtor owns or has an interest in personal property located elsewhere
at:
a. ________________
b. ________________
8. Debtor maintains its records concerning the Collateral, including the
Customer Receivables and all chattel paper included in Customer Receivables, at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Santa ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
9. Debtor owns property consisting of fixtures at the following locations:
Address Record Owner of Real Estate
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10. The following financing statements naming Debtor as "Debtor" are on
file:
Location Date File Number Collateral
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Exhibit A
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Continuation of UCC-1 Financing Statement
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DEBTOR: SECURED PARTY:
▇▇▇▇▇▇ Communications, L.L.C. Feet National Bank, as Agent
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ for itself and any other Lenders
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (as defined in that certain Loan
Agreement dated August ____, 1999
by and among such parties and Debtor)
One Federal Street
Mail Stop: MA OF DO7A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________________________________________________________________
DESCRIPTION OF COLLATERAL
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All fixtures and all tangible and intangible personal property of Debtor,
whether now owned or hereafter acquired by Debtor, or in which Debtor may now
have or hereafter acquire an interest (collectively, the "Collateral"),
including, without limitation, (a) all equipment (including all machinery, tools
and furniture), inventory and goods (each as defined in the Uniform Commercial
Code, if so defined therein); (b) all accounts, accounts receivable, other
receivables, contract rights, chattel paper, and general intangibles (including,
without limitation, trademarks, trademark registrations, trademark registration
applications, servicemarks, servicemark registrations, servicemark registration
applications, goodwill, tradenames, trade secrets, patents, patent applications,
leases licenses, permits, copyrights, copyright registrations, copyright
registration applications, moral rights, any other proprietary rights,
exclusionary rights or intellectual property and any renewals and extensions
associated with any of the foregoing, as each of the foregoing may be secured
under the laws now or hereafter in force and effect in the United States of
America or any other jurisdiction) of Debtor (each as defined in the Uniform
Commercial Code, if so defined therein); (c) all instruments, documents of
title, policies and certificates of insurance, securities (whether certificated
or uncertificated) and other investment property (as defined in the Uniform
Commercial code), bank deposits, deposit accounts, checking accounts and cash of
Debtor; (d) all accessions, additions or improvements to, all replacements,
substitutions and parts for, and all proceeds and products of, all of the
foregoing and (e) all books, records and documents relating to any of the
foregoing.
Notwithstanding the foregoing, the term "Collateral" shall not include any
property, rights, or licenses to the extent the granting of a security interest
therein would be contrary to applicable law or is prohibited by or would
constitute a default under any agreement or document governing such property,
rights or licenses (but only to the extent such prohibition is enforcible under
applicable law).