SECURITY AGREEMENT
SECURITY AGREEMENT, (together with all amendments, if any, from time to
time hereto, this "SECURITY AGREEMENT") dated as of September 6, 2002 by and
among THE GRANTOR SIGNATORY HERETO AND EACH ADDITIONAL PARTY THAT BECOMES A
GRANTOR HERETO PURSUANT TO SECTION 26 HEREOF (together with their respective
successors and assigns, collectively, "GRANTORS" and each individually, a
"GRANTOR"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in
its capacity as Agent ("AGENT") for the benefit of itself and the Lenders from
time to time party to the Credit Agreement described below.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of the date
hereof, by and among AlbaHealth, LLC, a Delaware limited liability company
("BORROWER"), the other Credit Parties signatory thereto, General Electric
Capital Corporation, for itself, as Lender, and as Agent for Lenders, and the
other Lenders signatory thereto from time to time (including all annexes,
exhibits and schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "CREDIT AGREEMENT"), the Lenders have
agreed to make the Loans and to incur the Letter of Credit Obligations on behalf
of the Borrower; and
WHEREAS, Grantors directly or indirectly benefit from the credit facilities
made available to Borrower, under the Credit Agreement, in order to induce Agent
and Lenders to enter into the Credit Agreement and other Loan Documents and to
induce Lenders to make the Loans and to incur Letter of Credit Obligations as
provided for in the Credit Agreement, Grantors have agreed to grant a continuing
Lien on the Collateral to secure all of the Obligations.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS.
(a) All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in ANNEX A thereto. All other
terms contained in this Security Agreement, unless the context indicates
otherwise, have the meanings provided for by the Code to the extent the same are
used or defined therein.
(b) "Uniform Commercial Code jurisdiction" means any jurisdiction that has
adopted all or substantially all of Article 9 as contained in the 2000 Official
Text of the Uniform Commercial Code, as recommended by the National Conference
of
Commissioners on Uniform State Laws and the American Law Institute, together
with any subsequent amendments or modifications to the Official Text.
2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance and observance
of all of the Obligations, each Grantor hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to Agent, for itself and the
benefit of the Lenders, a Lien upon all of its right, title and interest in, to
and under all personal property and other assets whether presently existing or
hereafter acquired by or arising in favor of such Grantor (including under any
trade names, styles or derivations thereof), and whether owned or consigned by
or to, or leased from or to, such Grantor, and regardless of where located (all
of which being hereinafter collectively referred to as the "COLLATERAL"),
including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and
Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts, of any Grantor, including all Blocked
Accounts, Concentration Accounts, Disbursement Accounts, and all other bank
accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any Grantor;
(x) all Supporting Obligations and Letter of Credit Rights of any
Grantor;
(xi) the following commercial tort claims set forth on SCHEDULE A
attached hereto; and
(xii) to the extent not otherwise included, all Proceeds, tort
claims, insurance claims and other rights to payments not otherwise included in
the foregoing and products of the foregoing and all accessions to, substitutions
and replacements for, and rents and profits of, each of the foregoing.
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(b) In addition, to secure the prompt and complete payment, performance
and observance of the Obligations and in order to induce Agent and Lenders as
aforesaid, each Grantor hereby grants to Agent, for itself and the benefit of
Lenders, a right of setoff, against the property of such Grantor held by Agent
or any Lender, consisting of property described above in SECTION 2(A) now or
hereafter in the possession or custody of or in transit to Agent or any Lender,
for any purpose, including safekeeping, collection or pledge, for the account of
such Grantor, or as to which such Grantor may have any right or power.
3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) It is expressly agreed by Grantors that, anything herein to the
contrary notwithstanding, each Grantor shall remain liable under each of its
Contracts and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Neither Agent nor any
Lender shall have any obligation or liability under any Contract or License by
reason of or arising out of this Security Agreement or the granting herein of a
Lien thereon or the receipt by Agent or any Lender of any payment relating to
any Contract or License pursuant hereto. Neither Agent nor any Lender shall be
required or obligated in any manner to perform or fulfill any of the obligations
of any Grantor under or pursuant to any Contract or License, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract or License, or to present or file any claims, or to take any action
to collect or enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times.
(b) Agent may at any time after an Event of Default has occurred and be
continuing (or if any rights of set-off (other than set-offs against an Account
arising under the Contract giving rise to the same Account) or contra accounts
may be asserted with respect to the following), without prior notice to any
Grantor, notify Account Debtors and other Persons obligated on the Collateral
that Agent has a security interest therein, and that payments shall be made
directly to Agent. Upon the request of Agent, each Grantor shall so notify
Account Debtors and other Persons obligated on Collateral. Once any such notice
has been given to any Account Debtor or other Person obligated on the
Collateral, the affected Grantor shall not give any contrary instructions to
such Account Debtor or other Person without Agent's prior written consent.
(c) Agent may at any time in Agent's own name, in the name of a nominee of
Agent or in the name of any Grantor communicate (by mail, telephone, facsimile
or otherwise) with Account Debtors, parties to Contracts and obligors in respect
of Instruments to verify with such Persons, to Agent's satisfaction, the
existence, amount and terms of, and any other matter relating to, Accounts,
payment intangibles, Instruments or Chattel Paper. If a Default or Event of
Default shall have occurred and be
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continuing, each Grantor, at its own expense, shall cause the independent
certified public accountants then engaged by such Grantor to prepare and deliver
to Agent and each Lender at any time and from time to time promptly upon Agent's
request the following reports with respect to each Grantor: (i) a reconciliation
of all Accounts; (ii) an aging of all Accounts; (iii) trial balances; and (iv) a
test verification of such Accounts as Agent may request. Each Grantor, at its
own expense, shall deliver to Agent the results of each physical verification,
if any, which such Grantor may in its discretion have made, or caused any other
Person to have made on its behalf, of all or any portion of its Inventory.
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
that:
(a) Each Grantor has rights in and the power to transfer each item of the
Collateral upon which it purports to ▇▇▇▇▇ ▇ ▇▇▇▇ hereunder free and clear of
any and all Liens other than Permitted Encumbrances.
(b) No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except such as
may have been filed (i) by any Grantor in favor of Agent pursuant to this
Security Agreement or the other Loan Documents, and (ii) in connection with any
other Permitted Encumbrances.
(c) This Security Agreement is effective to create a valid and continuing
Lien on and, upon the filing of the appropriate financing statements at the
locations listed on SCHEDULE I hereto, a perfected Lien in favor of Agent, for
itself and the benefit of Lenders, on the Collateral with respect to which a
Lien may be perfected by filing pursuant to the Code. Such Lien is prior to all
other Liens, except Permitted Encumbrances that would be prior to Liens in favor
of Agent for the benefit of Agent and Lenders as a matter of law, and is
enforceable as such as against any and all creditors of and purchasers from any
Grantor (other than purchasers and lessees of Inventory in the ordinary course
of business) and non-exclusive licensees of General Intangibles in the ordinary
course of business. All action by any Grantor necessary or desirable to protect
and perfect such Lien on each item of the Collateral has been duly taken.
(d) SCHEDULE II hereto lists all Instruments, Letter of Credit Rights and
Chattel Paper of each Grantor. All action by any Grantor necessary or desirable
to protect and perfect the Lien of Agent on each item set forth on SCHEDULE II
(including the delivery of all originals thereof to Agent and the legending of
all Chattel Paper as required by SECTION 5(B) hereof) has been duly taken. The
Lien of Agent, for the benefit of Agent and Lenders, on the Collateral listed on
SCHEDULE II hereto is prior to all other Liens, except Permitted Encumbrances
that would be prior to the Liens in favor of Agent as a matter of law, and is
enforceable as such against any and all creditors of and purchasers from any
Grantor.
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(e) Each Grantor's name as it appears in official filings in the state of
its incorporation or other organization, the type of entity of each Grantor
(including corporation, partnership, limited partnership or limited liability
company), organizational identification number issued by each Grantor's state of
incorporation or organization or a statement that no such number has been
issued, each Grantor's state of organization or incorporation, the location of
each Grantor's chief executive office, principal place of business, offices, all
warehouses and premises where Collateral is stored or located, and the locations
of all of its books and records concerning the Collateral are set forth on
SCHEDULE III, hereto (provided that Inventory in an aggregate amount not to
exceed $100,000 at any one time may be located in one or more premises not set
forth in SCHEDULE III). Each Grantor has only one state of incorporation or
organization.
(f) With respect to the Accounts, except as specifically disclosed in the
most recent Collateral Report delivered to Agent (i) they represent bona fide
sales of Inventory or rendering of services to Account Debtors in the ordinary
course of each Grantor's business and are not evidenced by a judgment,
Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes
existing or asserted with respect thereto and no Grantor has made any agreement
with any Account Debtor for any extension of time for the payment thereof, any
compromise or settlement for less than the full amount thereof, any release of
any Account Debtor from liability therefor, or any deduction therefrom except a
discount or allowance allowed by such Grantor in the ordinary course of its
business for prompt payment, PROVIDED that Grantor has provided Agent with
notice of such discounts or allowances allowed as part of the ordinary course of
such Grantor's business; (iii) to each Grantor's knowledge, there are no facts,
events or occurrences which in any way impair the validity or enforceability
thereof or could reasonably be expected to reduce the amount payable thereunder
as shown on any Grantor's books and records and any invoices, statements and
Collateral Reports delivered to Agent and Lenders with respect thereto; (iv) no
Grantor has received any notice of proceedings or actions which are threatened
or pending against any Account Debtor which might result in any adverse change
in such Account Debtor's financial condition; and (v) no Grantor has knowledge
that any Account Debtor is unable generally to pay its debts as they become due.
Further with respect to the Accounts (x) the amounts shown on all invoices,
statements and Collateral Reports which may be delivered to the Agent with
respect thereto are actually and absolutely owing to such Grantor as indicated
thereon and are not in any way contingent; (y) no payments have been or shall be
made thereon except payments immediately delivered to the applicable Blocked
Accounts or the Agent as required pursuant to the terms of ANNEX C to the Credit
Agreement; and (z) to each Grantor's knowledge, all Account Debtors have the
capacity to contract.
(g) With respect to any Inventory scheduled or listed on the most recent
Collateral Report delivered to Agent pursuant to the terms of this Security
Agreement or the Credit Agreement, (i) such Inventory is located at one of the
applicable Grantor's locations set forth on SCHEDULE III hereto, (ii) no
Inventory is now, or shall at any time or times hereafter be stored at any other
location (x) without giving Agent prior
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written notice thereof, and (y) unless each applicable Grantor concurrently
therewith obtains, to the extent required by the Credit Agreement, bailee,
landlord and mortgagee agreements, (iii) the applicable Grantor has good,
indefeasible and merchantable title to such Inventory and such Inventory is not
subject to any Lien or security interest or document whatsoever except for the
Lien granted to Agent, for the benefit of Agent and Lenders, and except for
Permitted Encumbrances, (iv) except as specifically disclosed in the most recent
Collateral Report delivered to Agent, such Inventory is Eligible Inventory of
good and merchantable quality, free from any defects, (v) such Inventory is not
subject to any licensing, patent, royalty, trademark, trade name or copyright
agreements with any third parties which would require any consent of any third
party upon sale or disposition of that Inventory or the payment of any monies to
any third party upon such sale or other disposition, and (vi) the completion of
manufacture, sale or other disposition of such Inventory by Agent following an
Event of Default shall not require the consent of any Person and shall not
constitute a breach or default under any contract or agreement to which any
Grantor is a party or to which such property is subject.
(h) No Grantor has any interest in, or title to, any Patent, Trademark or
registered Copyright except as set forth in SCHEDULE IV hereto. This Security
Agreement is effective to create a valid and continuing Lien on and, upon filing
of the Intellectual Property Security Agreement with the United States Copyright
Office and the United States Patent and Trademark Office and the filing of
appropriate financing statements at the locations listed on Schedule I hereto,
perfected Liens in favor of Agent on each Grantor's Patents, Trademarks and
Copyrights and such perfected Liens are enforceable as such as against any and
all creditors of and purchasers from any Grantor. Upon filing of the
Intellectual Property Security Agreement with the United States Copyright Office
and the United State Patent and Trademark Office and the filing of appropriate
financing statements in the locations listed on SCHEDULE I hereto, all action
necessary or desirable to protect and perfect Agent's Lien on each Grantor's
Patents, Trademarks or Copyrights shall have been duly taken.
(i) All motor vehicles owned by each Grantor are listed on SCHEDULE V
hereto, by model, model year and vehicle identification number ("VIN"). At the
request of Agent, each Grantor shall deliver to Agent motor vehicle title
certificates for all motor vehicles from time to time owned by it and shall
cause those title certificates to be filed (with Agent's Lien noted thereon) in
the appropriate state motor vehicle filing office.
5. COVENANTS. Each Grantor jointly and severally covenants and agrees
with Agent, for the benefit of Agent and Lenders, that from and after the date
of this Security Agreement and until the Termination Date:
(a) FURTHER ASSURANCES: PLEDGE OF INSTRUMENTS; CHATTEL PAPER.
(i) At any time and from time to time, upon the written request of
Agent and at the sole expense of Grantors, each Grantor shall promptly and duly
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execute and deliver any and all such further instruments and documents and take
such further actions as Agent may reasonably request to obtain the full benefits
of this Security Agreement and of the rights and powers herein granted,
including (A) using its best efforts to secure all consents and approvals
necessary or appropriate for the assignment to or for the benefit of Agent of
any License or Contract held by such Grantor and to enforce the security
interests granted hereunder; and (B) filing any financing or continuation
statements under the Code with respect to the Liens granted hereunder or under
any other Loan Document as to those jurisdictions that are not Uniform
Commercial Code jurisdictions.
(ii) Unless Agent shall otherwise consent in writing (which consent
may be revoked), each Grantor shall deliver to Agent all Collateral consisting
of negotiable Documents, certificated securities, Chattel Paper and Instruments
(in each case, accompanied by stock powers, allonges or other instruments of
transfer executed in blank) promptly after such Grantor receives the same. For
purposes hereof, the Agent herby consents to Grantor retaining collateral
consisting of the foregoing if the underlying obligation thereof is less than
$10,000 individually and $25,000 in the aggregate at any time outstanding.
(iii) Each Grantor shall, in accordance with the terms of and to the
extent required by the Credit Agreement, obtain waivers or subordination of
Liens from landlords and mortgagees, and each Grantor shall in all instances
obtain signed acknowledgments of Agent's Liens from bailees having possession of
any Grantor's Goods that they hold for the benefit of Agent.
(iv) If required by the terms of the Credit Agreement and not waived
by Agent in writing (which waiver may be revoked), each Grantor shall obtain
authenticated Control Letters from each issuer of uncertificated securities,
securities intermediary, or commodities intermediary issuing or holding any
financial assets or commodities to or for any Grantor.
(v) In accordance with ANNEX C to the Credit Agreement, each
Grantor shall obtain a blocked account or similar agreement with each bank or
financial institution holding a Deposit Account for such Grantor.
(vi) Each Grantor that is or becomes the beneficiary of a letter of
credit shall promptly, and in any event within two (2) Business Days after
becoming a beneficiary, notify Agent thereof and, if Agent so requests, enter
into a tri-party agreement with Agent and the issuer and/or confirmation bank
with respect to Letter of Credit Rights assigning such Letter of Credit Rights
to Agent and directing all payments thereunder to the Collection Account, all in
form and substance reasonably satisfactory to Agent.
(vii) Each Grantor shall take all steps necessary to grant the Agent
control of all electronic chattel paper in accordance with the Code and all
"transferable records" as defined in each of the Uniform Electronic Transactions
Act and the Electronic Signatures in Global and National Commerce Act.
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(viii) Each Grantor hereby irrevocably authorizes the Agent at any
time and from time to time to file in any filing office in any Uniform
Commercial Code jurisdiction any initial financing statements and amendments
thereto that (a) indicate the Collateral (i) as all assets of such Grantor or
words of similar effect, regardless of whether any particular asset comprised in
the Collateral falls within the scope of Article 9 of the Code or such
jurisdiction, or (ii) as being of an equal or lesser scope or with greater
detail, and (b) contain any other information required by part 5 of Article 9 of
the Code for the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether such Grantor is an organization,
the type of organization and any organization identification number issued to
such Grantor, and (ii) in the case of a financing statement filed as a fixture
filing or indicating Collateral as as-extracted collateral or timber to be cut,
a sufficient description of real property to which the Collateral relates. Each
Grantor agrees to furnish any such information to the Agent promptly upon
request. Each Grantor also ratifies its authorization for the Agent to have
filed in any Uniform Commercial Code jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
(ix) Each Grantor shall promptly, and in any event within five (5)
Business Days after it has actual knowledge that the same has been acquired by
it, notify Agent of any commercial tort claim (as defined in the Code) acquired
by it and unless otherwise consented by Agent, such Grantor shall enter into a
supplement to this Security Agreement, granting to Agent a Lien in such
commercial tort claim.
(b) MAINTENANCE OF RECORDS. Grantors shall keep and maintain, at their own
cost and expense, satisfactory and complete records of the Collateral, including
a record of any and all payments received and any and all credits granted with
respect to the Collateral and all other dealings with the Collateral. Grantors
shall ▇▇▇▇ their books and records pertaining to the Collateral to evidence this
Security Agreement and the Liens granted hereby. If any Grantor retains
possession of any Chattel Paper or Instruments with Agent's consent, such
Chattel Paper and Instruments shall be marked with the following legend: "This
writing and the obligations evidenced or secured hereby are subject to the
security interest of General Electric Capital Corporation, as Agent, for the
benefit of Agent and certain Lenders."
(c) COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT COLLATERAL.
(i) Each Grantor shall notify Agent immediately if they know or
have reason to know that any application or registration relating to any Patent,
Trademark or Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court) regarding any
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Grantor's ownership of any Patent, Trademark, or Copyright, its right to
register the same, or to keep and maintain the same.
(ii) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for the registration
of any Patent, Trademark or Copyright with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency without giving Agent prior written notice thereof, and, upon request of
Agent, Grantor shall execute and deliver any and all Patent Security Agreements,
Copyright Security Agreements, Trademark Security Agreements or Intellectual
Property Security Agreements as Agent may reasonably request to evidence Agent's
Lien on such Patent, Trademark or Copyright, and the General Intangibles of such
Grantor relating thereto or represented thereby.
(iii) Each Grantor shall take all actions necessary or reasonably
requested by Agent to maintain and pursue each application, to obtain the
relevant registration and to maintain the registration of each of its Patents,
Trademarks and Copyrights (now or hereafter existing), including the filing of
applications for renewal, affidavits of use, affidavits of non-contestability
and opposition and interference and cancellation proceedings provided that each
such Grantor may, with the consent of Agent (such consent not to be unreasonably
withheld), elect not to file or abandon, any application or registration or
cease to use any Trademark which such Grantor deems to be no longer material to
the conduct of their business or operations.
(iv) In the event that any Grantor knows or has reason to know that
any of the Patent, Trademark or Copyright Collateral is infringed upon, or
misappropriated or diluted by a third party, such Grantor shall comply with
Section 5(a)(ix) of this Security Agreement. Such Grantor shall, unless such
Grantor shall reasonably determine that such Patent, Trademark or Copyright
Collateral is in no way material to the conduct of its business or operations,
promptly ▇▇▇ for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and shall
take such other actions as Agent shall reasonably deem necessary or appropriate
under the circumstances to protect such Patent, Trademark or Copyright
Collateral.
(d) INDEMNIFICATION. In any suit, proceeding or action brought by Agent or
any Lender relating to any Collateral for any sum owing with respect thereto or
to enforce any rights or claims with respect thereto, each Grantor will save,
indemnify and keep Agent and Lenders harmless from and against all expense
(including reasonable attorneys' fees and expenses), loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the Account Debtor or other Person obligated on the
Collateral, arising out of a breach by any Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to, or in favor of, such obligor or its successors from such Grantor,
except in the case of Agent or any Lender, to the extent such expense, loss, or
damage is
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attributable solely to the gross negligence or willful misconduct of Agent or
such Lender as finally determined by a court of competent jurisdiction. All such
Obligations of Grantors shall be and remain enforceable against and only against
Grantors and shall not be enforceable against Agent or any Lender.
(e) COMPLIANCE WITH TERMS OF ACCOUNTS, ETC. In all material respects, each
Grantor will perform and comply with all obligations in respect of the
Collateral and all other agreements to which it is a party or by which it is
bound relating to the Collateral unless, with respect to obligations other than
those contained in the Loan Documents, the failure to perform or comply is being
contested in good faith and such failure does not affect the value of any of the
Collateral and could not reasonably be expected to cause a Material Adverse
Effect.
(f) LIMITATION ON LIENS ON COLLATERAL. No Grantor will create, permit or
suffer to exist, and each Grantor will defend the Collateral against, and take
such other action as is necessary to remove, any Lien on the Collateral except
Permitted Encumbrances, and will defend the right, title and interest of Agent
and Lenders in and to any of such Grantor's rights under the Collateral against
the claims and demands of all Persons whomsoever.
(g) LIMITATIONS ON DISPOSITION. No Grantor will sell, license, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or contract
to do so except as permitted by the Credit Agreement.
(h) FURTHER IDENTIFICATION OF COLLATERAL. Grantors will, if so requested
by Agent, furnish to Agent, as often as Agent reasonably requests, statements
and schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Agent may reasonably request, all
in such detail as Agent may specify.
(i) NO REINCORPORATION. Without limiting the prohibitions on mergers
involving the Grantors contained in the Credit Agreement, no Grantor shall
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is incorporated or organized as of the date hereof
without the prior written consent of Agent.
(j) TERMINATIONS; AMENDMENTS NOT AUTHORIZED. Each Grantor acknowledges
that it is not authorized to file any financing statement or amendment or
termination statement with respect to any financing statement without the prior
written consent of Agent and agrees that it will not do so without the prior
written consent of Agent, subject to such Grantor's rights under Section
9-509(d)(2) of the Code.
(k) AUTHORIZED TERMINATIONS. Agent will promptly deliver to each Grantor
for filing or authorize each Grantor to prepare and file termination statements
and releases in accordance with SECTION 11.2(E) of the Credit Agreement.
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6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each Grantor shall execute and deliver to Agent a power
of attorney (the "POWER OF ATTORNEY") substantially in the form attached hereto
as EXHIBIT A. The power of attorney granted pursuant to the Power of Attorney is
a power coupled with an interest and shall be irrevocable until the Termination
Date. The powers conferred on Agent, for the benefit of Agent and Lenders, under
the Power of Attorney are solely to protect Agent's interests (for the benefit
of Agent and Lenders) in the Collateral and shall not impose any duty upon Agent
or any Lender to exercise any such powers. Agent agrees that (a) except for the
powers granted in clause (h) of the Power of Attorney, it shall not exercise any
power or authority granted under the Power of Attorney unless an Event of
Default has occurred and is continuing, and (b) Agent shall account for any
moneys received by it in respect of any foreclosure on or disposition of
Collateral pursuant to the Power of Attorney provided that neither Agent nor any
Lender shall have any duty as to any Collateral, and Agent and Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers. NONE OF AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE
TO ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR
OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
DAMAGES.
7. REMEDIES: RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it under this
Security Agreement, the Credit Agreement, the other Loan Documents and under any
other instrument or agreement securing, evidencing or relating to any of the
Obligations, if any Event of Default shall have occurred and be continuing,
Agent may exercise all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, each Grantor expressly agrees
that in any such event Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon such Grantor or any other Person
(all and each of which demands, advertisements and notices are hereby expressly
waived to the maximum extent permitted by the Code and other applicable law),
may forthwith enter upon the premises of such Grantor where any Collateral is
located through self-help, without judicial process, without first obtaining a
final judgment or giving such Grantor or any other Person notice and opportunity
for a hearing on Agent's claim or action and may collect, receive, assemble,
process, appropriate and realize upon the Collateral, or any part thereof, and
may forthwith sell, lease, license, assign, give an option or options to
purchase, or sell or otherwise dispose of and deliver said Collateral (or
contract to do so), or any part thereof, in one or more
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parcels at a public or private sale or sales, at any exchange at such prices as
it may deem acceptable, for cash or on credit or for future delivery without
assumption of any credit risk. Agent or any 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 for the benefit of Agent and Lenders, the
whole or any part of said Collateral so sold, free of any right or equity of
redemption, which equity of redemption each Grantor hereby releases. Such sales
may be adjourned and continued from time to time with or without notice. Agent
shall have the right to conduct such sales on any Grantor's premises or
elsewhere and shall have the right to use any Grantor's premises without charge
for such time or times as Agent deems necessary or advisable.
If any Event of Default shall have occurred and be continued, each Grantor
further agrees, at Agent's request, to assemble the Collateral and make it
available to Agent at a place or places designated by Agent which are reasonably
convenient to Agent and such Grantor, whether at such Grantor's premises or
elsewhere. Until Agent is able to effect a sale, lease, or other disposition of
Collateral, Agent shall have the right to hold or use Collateral, or any part
thereof, to the extent that it deems appropriate for the purpose of preserving
Collateral or its value or for any other purpose deemed appropriate by Agent.
Agent shall have no obligation to any Grantor to maintain or preserve the rights
of such Grantor as against third parties with respect to Collateral while
Collateral is in the possession of Agent. Agent may, if it so elects, seek the
appointment of a receiver or keeper to take possession of Collateral and to
enforce any of Agent's remedies (for the benefit of Agent and Lenders), with
respect to such appointment without prior notice or hearing as to such
appointment. Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the Obligations as
provided in the Credit Agreement, and only after so paying over such net
proceeds, and after the payment by Agent of any other amount required by any
provision of law, need Agent account for the surplus, if any, to any Grantor. To
the maximum extent permitted by applicable law, each Grantor waives all claims,
damages, and demands against Agent or any Lender arising out of the
repossession, retention or sale of the Collateral except such as arise solely
out of the gross negligence or willful misconduct of Agent or such Lender as
finally determined by a court of competent jurisdiction. Each Grantor agrees
that ten (10) days prior notice by Agent of the time and place of any public
sale or of the time after which a private sale may take place is reasonable
notification of such matters. Grantors shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral are insufficient to
pay all Obligations, including any reasonable attorneys' fees and other expenses
incurred by Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby
waives presentment, demand, protest or any notice (to the maximum extent
permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
12
(c) To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, each Grantor acknowledges
and agrees that it is not commercially unreasonable for the Agent (i) to fail to
incur expenses reasonably deemed significant by the Agent to prepare Collateral
for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to
obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not required by other law, to fail to obtain governmental or third
party consents for the collection or disposition of Collateral to be collected
or disposed of, (iii) to fail to exercise collection remedies against Account
Debtors or other Persons obligated on Collateral or to remove Liens on or any
adverse claims against Collateral, (iv) to exercise collection remedies against
Account Debtors and other Persons obligated on Collateral directly or through
the use of collection agencies and other collection specialists, (v) to
advertise dispositions of Collateral through publications or media of general
circulation, whether or not the Collateral is of a specialized nature, (vi) to
contact other Persons, whether or not in the same business as the Grantor, for
expressions of interest in acquiring all or any portion of such Collateral,
(vii) to hire one or more professional auctioneers to assist in the disposition
of Collateral, whether or not the Collateral is of a specialized nature, (viii)
to dispose of Collateral by utilizing internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets,
(ix) to dispose of assets in wholesale rather than retail markets, (x) to
disclaim disposition warranties, such as title, possession or quiet enjoyment,
(xi) to purchase insurance or credit enhancements to insure the Agent against
risks of loss, collection or disposition of Collateral or to provide to the
Agent a guaranteed return from the collection or disposition of Collateral, or
(xii) to the extent deemed appropriate by the Agent, to obtain the services of
other brokers, investment bankers, consultants and other professionals to assist
the Agent in the collection or disposition of any of the Collateral. Each
Grantor acknowledges that the purpose of this SECTION 7(C) is to provide
non-exhaustive indications of what actions or omissions by the Agent would not
be commercially unreasonable in the Agent's exercise of remedies against the
Collateral and that other actions or omissions by the Agent shall not be deemed
commercially unreasonable solely on account of not being indicated in this
SECTION 7(C). Without limitation upon the foregoing, nothing contained in this
SECTION 7(C) shall be construed to grant any rights to any Grantor or to impose
any duties on Agent that would not have been granted or imposed by this Security
Agreement or by applicable law in the absence of this SECTION 7(C).
(d) Neither the Agent nor the Lenders shall be required to make any demand
upon, or pursue or exhaust any of their rights or remedies against, any Grantor,
any other obligor, guarantor, pledgor or any other Person with respect to the
payment of the Obligations or to pursue or exhaust any of their rights or
remedies with respect to any Collateral therefor or any direct or indirect
guarantee thereof. Neither the Agent nor the Lenders shall be required to
marshal the Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, and all of its and
13
their rights hereunder or under any other Loan Document shall be cumulative. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives
and relinquishes the benefit and advantage of, and covenants not to assert
against the Agent or any Lender, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a
surety now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. For the
purpose of enabling Agent to exercise rights and remedies under SECTION 7 hereof
(including, without limiting the terms of SECTION 7 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for
sale, sell or otherwise dispose of Collateral) at such time as Agent shall be
lawfully entitled to exercise such rights and remedies, each Grantor hereby
grants to Agent, for the benefit of Agent and Lenders, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to such Grantor) to use, for any purpose, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL.
Agent and each Lender shall use reasonable care with respect to the Collateral
in its possession or under its control. Neither Agent nor any Lender shall have
any other duty as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of Agent or such Lender, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor or any Credit Party for liquidation or reorganization, should any
Grantor or any Credit Party become insolvent or make an assignment for the
benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of such Grantor's or such Credit
Party's assets, and shall continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Obligations, whether as
a "voidable preference," "fraudulent conveyance," or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
14
11. NOTICES. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any
of the parties desires to give or serve upon another any such communication with
respect to this Security Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall be
addressed to the party to be notified at the address set forth in ANNEX I to the
Credit Agreement (or such other address as may be substituted by notice given in
the manner required by SECTION 11.10 of the Credit Agreement), and given in the
manner required by SECTION 11.10 of the Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement. This Security Agreement is to be read, construed and applied
together with the Credit Agreement and the other Loan Documents which, taken
together, set forth the complete understanding and agreement of Agent, Lenders
and Grantors with respect to the matters referred to herein and therein.
13. NO WAIVER. Agent's failure, at any time or times, to require strict
performance by the Grantors of any provision of this Security Agreement shall
not waive, affect or diminish any right of Agent thereafter to demand strict
compliance and performance herewith or therewith. Subject to the provisions of
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of the undertakings, agreements, warranties, covenants
and representations of any Grantor contained in this Security Agreement or any
of the other Loan Documents and no Default or Event of Default by any Grantor
shall be deemed to have been suspended or waived by Agent, unless such waiver or
suspension is by an instrument in writing signed by an officer of or other
authorized employee of Agent, and directed to Borrower specifying such
suspension or waiver.
14. CUMULATIVE REMEDIES. Agent's and Lenders' rights and remedies under
this Security Agreement shall be cumulative and nonexclusive of any other rights
and remedies that Agent or any Lender may have under any other agreement,
including the other Loan Documents, by operation of law or otherwise. Recourse
to the Collateral shall not be required.
15. AMENDMENTS. None of the terms or provisions of this Security Agreement
may be waived, altered, modified or amended except by an instrument in writing,
duly executed by Agent and Grantors, provided, however that SCHEDULE A, SCHEDULE
II, SCHEDULE IV, and SCHEDULE V may be modified to include additional items of
collateral; provided that Grantors have complied with all the requirements in
the Loan Documents with respect to such additional Collateral and SCHEDULE III
may be modified
15
to include additional places where Inventory may be located, if the requirements
with respect thereto contained in the Loan Documents have been satisfied.
16. LIMITATION BY LAW. All rights, remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they shall not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
17. TERMINATION OF THIS SECURITY AGREEMENT. Subject to SECTION 10 hereof,
this Security Agreement shall terminate upon the Termination Date.
18. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations of
Grantors hereunder shall be binding upon the successors and assigns of each
Grantor and Agent and their respective successors and assigns (including in the
case of any Grantor any debtor-in-possession on behalf of such Grantor). No
Grantor may assign, sell, hypothecate or otherwise transfer any interest in or
obligation under this Security Agreement without the rights and remedies of
Agent, for the benefit of Agent and Lenders, hereunder, inure to the benefit of
Agent and lenders, all future holders of any instrument evidencing any of the
Obligations and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any portion
thereof or interest therein shall in any manner impair the Lien granted to
Agent, for the benefit of Agent and Lenders, hereunder. No Grantor may assign,
sell, hypothecate or otherwise transfer any interest in or obligation under this
Security Agreement.
19. COUNTERPARTS. This Security Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
20. GOVERNING LAW. THIS SECURITY AGREEMENT, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GRANTORS,
AGENT AND LENDERS PERTAINING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT
OR ANY OF THE OTHER LOAN
16
DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE GRANTORS ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇; PROVIDED FURTHER, THAT NOTHING IN THIS SECURITY AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY HERETO MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY HERETO AT THE ADDRESS SET
FORTH IN ANNEX I OF THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY HERETO ACTUAL RECEIPT THEREOF OR
3 DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
21. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY GRANTOR ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
17
22. SECTION TITLES. The Section titles contained in this Security
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
23. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
24. ADVICE OF COUNSEL. Each of the parties represents to each other party
hereto that it has discussed this Security Agreement and, specifically, the
provisions of SECTION 20 and SECTION 21, with its counsel.
25. BENEFIT OF LENDERS. All Liens granted or contemplated hereby shall be
for the benefit of Agent, individually, and Lenders, and all proceeds or
payments realized from Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Credit Agreement.
26. ADDITIONAL GRANTORS. The initial Grantor hereunder shall be the Credit
Party signatory hereto on the date hereof. From time to time subsequent to the
date hereof, additional direct and indirect Subsidiaries of the Grantors may
become parties hereto, as additional Grantors (each, an "ADDITIONAL Grantor"),
by executing a counterpart of this Security Agreement substantially in the form
of EXHIBIT B attached hereto. Upon delivery of any such counterpart to Agent,
notice of which is hereby waived by the Grantors, each Additional Grantor shall
be a Grantor and shall be as fully a party hereto as if such Additional Grantor
were an original signatory hereto. Each Grantor expressly agrees that its
Obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Grantor hereunder nor by any election of Agent
not to cause any Subsidiary of any Grantor to become an Additional Grantor
hereunder. This Security Agreement shall be fully effective as to any Grantor
that is or becomes a party hereto regardless of whether any other Person becomes
or fails to become or ceases to be a Grantor hereunder.
[Signature page follows]
18
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
ALBAHEALTH, LLC
By:/s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:____________________________
Title:___________________________
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT
By: /s/
------------------------------
Name:____________________________
Its: Duly Authorized Signatory
SCHEDULE A
TO SECURITY AGREEMENT
---------------------
COMMERCIAL TORT CLAIMS
None
SCHEDULE B
TO SECURITY AGREEMENT
---------------------
EXCLUDED CONTRACTS
None
SCHEDULE I
to
SECURITY AGREEMENT
------------------
FILING JURISDICTIONS
o Delaware
o Tennessee
SCHEDULE II
to
SECURITY AGREEMENT
------------------
INSTRUMENTS,
CHATTEL PAPER
AND
LETTER OF CREDIT RIGHTS
None
SCHEDULE III
to
SECURITY AGREEMENT
------------------
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING GRANTORS' COLLATERAL
State legal name, entity type, state of incorporation and Charter ID# for each
Grantor:
---------------------------------- --------------- -------------- --------------
DOMESTIC
NAME OF ENTITY ENTITY TYPE JURISDICTION CHARTER ID #
---------------------------------- --------------- -------------- --------------
AlbaHealth, LLC Limited Delaware 3501658
liability
company
---------------------------------- --------------- -------------- --------------
---------------------------------- --------------- -------------- --------------
Chief Executive Office and principal place of business of AlbaHealth:
The Chief Executive Office for AlbaHealth is ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The principal place of business of
AlbaHealth is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Corporate Offices of AlbaHealth:
The corporate offices for AlbaHealth is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Warehouses:
1. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
Other Premises at which Collateral is Stored or Located:
1. SteriGenics International, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
2. Riverside Knitting, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3. ▇▇▇▇▇ Hosiery, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4. United Knitting, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5. Burlington Packaging, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6. Burlington Sports Printing, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
7. A server, five desktop computers and certain software located at ▇▇▇ ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, which hardware and
software are used to track sales to end users of the products produced by
Waldensian's "Health Products Division."
Locations of Records Concerning Collateral:
1. ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
SCHEDULE IV
to
SECURITY AGREEMENT
------------------
PATENTS, TRADEMARKS AND COPYRIGHTS
I. PATENT REGISTRATIONS
Grantor Patent Reg. No. Issue Date
------- ------ -------- ----------
AlbaHealth, LLC Wrap for Impregnated Dressing U.S. Patent No. 4,557,381 12/10/85
AlbaHealth, LLC Pulsatile Anti-Embolism Stocking U.S. Patent No. 5,814,003 09/29/98
II. PATENT APPLICATIONS
Grantor Patent Application No. Filing Date
------- ------ --------------- -----------
NONE
III. PATENT LICENSES
Grantor Name of Agreement Date of Agreement Parties
------- ----------------- ----------------- -------
NONE
IV. TRADEMARK REGISTRATIONS
Grantor ▇▇▇▇ Reg. No. Issue Date
------- ---- -------- ----------
AlbaHealth, LLC BABY ▇▇▇▇▇▇ U.S. Trademark Registration No. 1,386,098 03/11/86
AlbaHealth, LLC CARE SOX U.S. Trademark Registration No. 2,083,980 07/29/97
AlbaHealth, LLC CARE-STEPS U.S. Trademark Registration No. 1,384,457 02/25/86
AlbaHealth, LLC CASTMATE U.S. Trademark Registration No. 1,675,773 02/18/92
AlbaHealth, LLC COPLEX U.S. Trademark Registration No. 1,198,591 06/22/82
AlbaHealth, LLC FASHION-TREAD U.S. Trademark Registration No. 1,524,667 02/14/89
AlbaHealth, LLC LIFE SPAN U.S. Trademark Registration No. 1,244,329 07/05/83
AlbaHealth, LLC PAS U.S. Trademark Registration No. 1,510,839 11/01/88
AlbaHealth, LLC PULSTAR and design U.S. Trademark Registration No. 2,180,695 08/11/98
AlbaHealth, LLC SPEED-ROLL U.S. Trademark Registration No. 1,134,527 05/06/80
AlbaHealth, LLC XSPAN and design U.S. Trademark Registration No. 1,177,052 11/10/81
V. TRADEMARK APPLICATIONS
Grantor ▇▇▇▇ U.s. Trademark Application No. Filing Date
------- ---- ------------------------------ -----------
AlbaHealth, LLC ALBAHEALTH 76/292,432 07/31/01
AlbaHealth, LLC "C.A.L.M." 76/426,654 ______
VI. TRADEMARK LICENSES
Grantor Name of Agreement Date of Agreement Parties
------- ----------------- ----------------- -------
NONE
VII. TRADE NAMES AND PRODUCT LABELS
Grantor Trade Name or Product Label
------- ---------------------------
AlbaHealth, LLC Trade Name "AlbaHealth, LLC"
AlbaHealth, LLC Trade Name "AlbaHealth"
AlbaHealth, LLC Product Label "AlbaHealth, a company jointly owned by the TechStyles Division of
Encompass Group, L.L.C. and Alba-Waldensian, Inc."
VIII. COPYRIGHT REGISTRATIONS
GRANTOR COPYRIGHT REG. NO. DATE
------- --------- -------- ----
NONE
IX. COPYRIGHT APPLICATIONS
Grantor Copyright Application No. Date
------- --------- --------------- ----
NONE
X. COPYRIGHT LICENSES
Grantor Name of Agreement Date of Agreement Parties
------- ----------------- ----------------- -------
NONE
SCHEDULE V
----------
to
SECURITY AGREEMENT
------------------
Motor Vehicle
Name of Grantor Make/Model Model Year VIN
--------------- ---------- ---------- ---
AlbaHealth, LLC Chevrolet Silverado 1999 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
AlbaHealth, LLC Chevrolet Blazer 1999 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
---------
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by ______________________,
a _____________________ [limited liability company/corporation] ("GRANTOR") to
General Electric Capital Corporation, a Delaware corporation (hereinafter
referred to as "ATTORNEY"), as Agent for the benefit of Agent and the Lenders,
under a Credit Agreement and a Security Agreement, both dated as of September
__, 2002 and other related documents (the "LOAN DOCUMENTS"). No person to whom
this Power of Attorney is presented, as authority for Attorney to take any
action or actions contemplated hereby, shall be required to inquire into or seek
confirmation from Grantor as to the authority of Attorney to take any action
described below, or as to the existence of or fulfillment of any condition to
this Power of Attorney, which is intended to grant to Attorney unconditionally
the authority to take and perform the actions contemplated herein, and Grantor
irrevocably waives any right to commence any suit or action, in law or equity,
against any person or entity which acts in reliance upon or acknowledges the
authority granted under this Power of Attorney. The power of attorney granted
hereby is coupled with an interest, and may not be revoked or canceled by
Grantor without Attorney' s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and all
officers, employees or agents designated by Attorney), with full power of
substitution, as Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor or in its own name, from time to time in Attorney's discretion,
to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of the Loan Documents and, without limiting the generality of the
foregoing, Grantor hereby grants to Attorney the power and right, on behalf of
Grantor, without notice to or assent by Grantor, and at any time, to do the
following: (a) change the mailing address of Grantor, open a post office box on
behalf of Grantor, open mail for Grantor, and ask, demand, collect, give
acquittances and receipts for, take possession of, endorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against Grantor or its property;
(d) defend any suit, action or proceeding brought against Grantor if Grantor
does not defend such suit, action or proceeding or if Attorney believes that
Grantor is not pursuing such defense in a manner that will maximize the recovery
to Attorney, and settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or releases
as Attorney may deem appropriate; (e) file or prosecute any claim, litigation,
suit or proceeding in any court of competent jurisdiction or before any
arbitrator, or
take any other action otherwise deemed appropriate by Attorney for the purpose
of collecting any and all such moneys due to Grantor whenever payable and to
enforce any other right in respect of Grantor's property; (f) cause the
certified public accountants then engaged by Grantor to prepare and deliver to
Attorney at any time and from time to time, promptly upon Attorney's request,
the following reports: (1) a reconciliation of all accounts, (2) an aging of all
accounts, (3) trial balances, (4) test verifications of such accounts as
Attorney may request, and (5) the results of each physical verification of
inventory; (g) communicate in its own name with any party to any Contract with
regard to the assignment of the right, title and interest of such Grantor in and
under the Contracts and other matters relating thereto; (h) to file such
financing statements with respect to the Security Agreement, with or without
Grantor's signature, or to file a photocopy of the Security Agreement in
substitution for a financing statement, as the Agent may deem appropriate and to
execute in Grantor's name such financing statements and amendments thereto and
continuation statements which may require the Grantor's signature; and (i)
execute, in connection with any sale provided for in any Loan Document, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral and to otherwise direct such sale or resale, all as
though Attorney were the absolute owner of the property of Grantor for all
purposes, and to do, at Attorney's option and Grantor's expense, at any time or
from time to time, all acts and other things that Attorney reasonably deems
necessary to perfect, preserve, or realize upon Grantor's property or assets and
Attorney's Liens thereon, all as fully and effectively as Grantor might do.
Grantor hereby ratifies, to the extent permitted by law, all that said Attorney
shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor, and
Grantor has caused its seal to be affixed pursuant to the authority of its
[board of managers] this _____________ day of _______________.
[ GRANTOR ]
--------------------------------
By:_____________________________
Name:___________________________
Title:__________________________
NOTARY PUBLIC CERTIFICATE
On this _____ day of ______________, 2002, [officer's name] who is
personally known to me appeared before me in his/her capacity as the [title] of
[Grantor] ("GRANTOR") and executed on behalf of Grantor the Power of Attorney in
favor of General Electric Capital Corporation to which this Certificate is
attached.
________________________________
Notary Public
{seal}
EXHIBIT B
---------
COUNTERPART TO SECURITY AGREEMENT
This counterpart, dated _________,200__, is delivered pursuant to SECTION
26 of that certain Security Agreement dated as of ___________ __, 2002 (as from
time to time amended, modified or supplemented, the "SECURITY AGREEMENT"; the
terms defined therein and not otherwise defined herein being used as therein
defined), among Borrower, as Grantor and General Electric Capital Corporation,
as Agent. The undersigned hereby agrees (i) that this counterpart may be
attached to the Security Agreement, and (ii) that the undersigned will comply
with and be subject to, including representations and warranties, all the terms
and conditions of the Security Agreement as if it were an original signatory
thereto.
[NAME OF ADDITIONAL GRANTOR]
By:_____________________________
Name:
Title: