Exhibit 10.17
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GENERAL SECURITY AGREEMENT
by
EASTPRO SERVICES, INC., the Debtor
in favor of
GENERAL ELECTRIC CAPITAL CORPORATION,
as American Collateral Agent for the benefit of the Collateral Agents and
Lenders
DATED June 12, 2003
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THIS GENERAL SECURITY AGREEMENT (as amended, supplemented, restated or
otherwise modified from time to time, this "Security Agreement" or this
"Agreement") is made as of June 12, 2003 by EASTPRO SERVICES, INC., a New York
corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Debtor") in favor of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, with a place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in its capacity as
American Collateral Agent for the Collateral Agents and Lenders (as defined in
the Credit Agreement hereinafter defined) (together with its successors in such
capacity, the "American Collateral Agent").
WITNESSETH
WHEREAS, Debtor, Westcon Group, Inc. ("Westcon"), Westcon Group North
America, Inc. ("Westcon America"), Westcon Canada Systems (WCSI) Inc. ("Westcon
Canada"), the American Collateral Agent, Canadian Collateral Agent and Lenders,
among others, are parties to a Credit Agreement dated the date hereof (as
amended, supplemented, restated or otherwise modified from time to time, the
"Credit Agreement").
WHEREAS, Debtor is entering into this Security Agreement in order to
secure all of the Indebtedness (as hereinafter defined).
AGREEMENT
NOW, THEREFORE, in consideration of the premises above and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. All capitalized terms used hereinabove or in this Security
Agreement which are not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
2. Security Interest. (a) Debtor hereby grants to the American Collateral
Agent, for the benefit of the Lenders and the Collateral Agents, a continuing
security interest ("Security Interest") in all right, title and interest of
Debtor in all of its personal property, including, without limitation, all of
the following types of personal property, in each instance wherever located and
whether now owned or hereafter acquired or existing, and in all Proceeds and
products thereof in any form.
(i) all of its Goods (including, without limitation, Inventory, Equipment,
Fixtures (whether or not affixed to realty) and all parts, additions,
replacements, substitutions and accessions thereto or therefor, in all
supporting obligations thereof and in all documents and other records
therefor;
(ii) all of its Accounts, Chattel Paper (whether tangible or electronic),
Deposit Accounts, Documents, Instruments (including, without limitation,
promissory notes), Investment Property, Letter-of-Credit Rights, Letters
Of Credit, cash, money, supporting obligations, other obligations of any
kind owing to Debtor, whether or not arising out of or in connection with
the sale or lease of goods or the rendering of services, all books,
invoices, documents and other records in any form evidencing or relating
to any of the foregoing;
(iii) all of its General Intangibles (including, without limitation,
payment intangibles and software);
(iv) all of its Intercompany Collateral (as hereinafter defined);
(v) all of its other property described in any schedule from time to time
delivered by Debtor to American Collateral Agent;
and, to the extent not otherwise included, all payments under insurance or any
indemnity, warranty or guaranty with respect to any of the foregoing, in each
case as such terms are defined under the UCC. In addition, the Debtor hereby
grants a security interest to the American Collateral Agent, for the benefit of
the Lenders and the Canadian Collateral Agent and for its benefit as American
Collateral Agent, in all of its claims arising out of or relating to any
commercial tort claims, including, without limitation, those described on the
Schedule hereto or described in any schedule from time to time delivered by
Debtor to American Collateral Agent. All of the foregoing property of the
Debtor shall be collectively referred to herein as the "Collateral".
(b) Debtor hereby assigns to American Collateral Agent, for the benefit of
the Lenders and the Canadian Collateral Agent and for its benefit as American
Collateral Agent, any and all of its security interest in any Goods (including,
but not limited to, Equipment, Fixtures And Inventory); Accounts; Chattel
Paper; Documents; Instruments; Investment Property; General Intangibles;
Deposit Accounts and Letter-of-Credit Rights, and in all Proceeds and products
thereof in any form, and any other collateral (collectively, "Intercompany
Collateral") securing the payment and performance by any Borrower, Westcon or
any Subsidiary of Westcon or any Borrower (direct or indirect) of their
respective obligations, liabilities and indebtedness of every kind, nature and
description owing by any Borrower or any Subsidiary of Westcon or any Borrower
(direct or indirect) to Debtor, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, whether now existing or hereafter
arising, whether direct or indirect, absolute or contingent, joint or several,
due or not due, primary or secondary, liquidated or unliquidated.
3. Indebtedness Secured. The Security Interest secures payment of any and
all Indebtedness (as hereinafter defined) of Debtor or any Borrower or any
Guarantor to the Agents, Lenders or L/C Issuers, or any of them. As used in
this Security Agreement, "Indebtedness" shall mean any and all obligations,
liabilities and indebtedness, and performance of all obligations and
agreements, of Debtor, Borrowers and Guarantors to the Agents, Lenders and L/C
Issuers arising under the Credit Agreement or under the other Loan Documents,
whether now existing or hereafter incurred or arising, of every kind and
character, primary or secondary, direct or indirect,
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absolute or contingent, sole, joint or several, and whether such indebtedness
is from time to time reduced and thereafter increased, or entirely extinguished
and thereafter reincurred, including, without limitation: (a) all Advances; (b)
all obligations arising out of any Lender's reimbursement of an L/C Issuer for
draws made under Letters of Credit issued by an L/C Issuer, (c) all interest
which accrues on any such indebtedness, until payment of such indebtedness in
full, including, without limitation, all interest provided for under the Credit
Agreement; (d) all other monies payable by any Borrower or Guarantor, and all
obligations and agreements of any Borrower or Guarantor to any of the Lenders,
Agents, or L/C Issuers pursuant to any of the Loan Documents; (e) all monies
payable by any Obligor, and all obligations and agreements of any Obligor to
any of the Lenders, Agents or L/C Issuers, pursuant to any of the Loan
Documents; (f) all monies due, and to become due, pursuant to Sections 7.3,
7.4. and 7.5 of the Credit Agreement; (g) all monies payable as herein
provided; and (h) all liabilities (including amounts charged to Debtor pursuant
hereto), obligations, fees, charges, or costs (including, without limitation,
any fees or expenses that, but for the provisions of the Bankruptcy Code, would
have accrued), guaranties, covenants and duties owing by Debtor to any of the
Lenders, Agents, or L/C Issuers of any kind and description pursuant to or
evidenced by the Guaranty or any other Loan Document.
4. Representations and Warranties of Debtor. Debtor represents and
warrants, and, so long as this Security Agreement is in effect, shall be deemed
continuously to represent and warrant that: (a) Debtor is the owner of the
Collateral free of all security interests or other encumbrances, except the
Security Interest and the Permitted Liens; (b) Debtor is authorized to enter
into this Security Agreement; (c) any and all trade names, division names,
assumed names or other names under which Debtor transacts any part of its
business are specified in an appropriate schedule hereto; Debtor's business
address and chief executive office or principal office are specified above or
on an appropriate schedule hereto; Debtor's form and State or jurisdiction of
organization are specified in an appropriate schedule hereto, Debtor's Tax ID
Number and Organizational Number, if any, are specified on the Schedule hereto,
and Debtor's records concerning the Collateral are kept at one of the addresses
specified above; (d) each Account, General Intangible and Chattel Paper
constituting Collateral is genuine and enforceable in accordance with its terms
against the party obligated to pay it ("Account Debtor"); and no Account Debtor
has any defense, setoff, claim or counterclaim against Debtor which can be
asserted against any Agent or any Lender, whether in any proceeding to enforce
the Collateral or otherwise; (e) the amounts represented from time to time by
Debtor to American Collateral Agent as owing by each Account Debtor or by all
Account Debtors will be and are the correct amounts actually and
unconditionally owing by such Account Debtor or Debtors individually and in the
aggregate, except for normal cash discounts where applicable; (f) each
Instrument and each Document constituting Collateral is genuine and in all
respects what it purports to be; (g) any Collateral which is a Fixture is owned
by Debtor or by the person or persons named in the Credit Agreement; (h) any
Collateral which is a Deposit Account, Commodity Account, Securities Account or
letter of credit is specifically described on an appropriate schedule hereto or
in the Credit Agreement; and (i) any Collateral which is Inventory is located
at one of the addresses specified on the Schedule hereto.
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5. Covenants of Debtor. So long as this Security Agreement is in effect,
Debtor:
(a) will defend the Collateral against the claims and demands of all other
parties, including, without limitation, defenses, setoffs, claims and
counterclaims asserted by any Account Debtor against Debtor, any Agent or any
Lender, except, as to Inventory, purchasers and lessees in the ordinary course
of Debtor's business; will keep the Collateral free from all security interests
or other encumbrances, except for Permitted Liens; and will not sell, transfer,
lease, assign, deliver or otherwise dispose of any Collateral or any interest
therein without the prior written consent of American Collateral Agent, except
that, until the occurrence of an Event of Default, Debtor may sell or lease
Inventory in the ordinary course of Debtor's business; (b) will send to
American Collateral Agent financial statements and reporting regarding the
Collateral in accordance with the terms of the Credit Agreement; will keep, in
accordance with generally accepted accounting principles consistently applied,
accurate and complete books and records, including, without limitation, records
concerning the Collateral; at American Collateral Agent's request, will ▇▇▇▇
any and all such books and records to indicate the Security Interest; will
permit American Collateral Agent or its representatives or agents to inspect
the Collateral and to audit and make extracts from or copies of such books and
records and any of Debtor's ledgers, reports, correspondence or other books and
records; and will duly account to American Collateral Agent's satisfaction, at
such time or times as American Collateral Agent may require, for any of the
Collateral; (c) will send to American Collateral Agent upon demand, all
Documents and all Chattel Paper (duly indorsed to American Collateral Agent)
constituting, representing or relating to the Collateral or any part thereof,
and any schedules, invoices, shipping documents, delivery receipts, purchase
orders, contracts or other documents representing or relating to the Collateral
or any part thereof; (d) will notify American Collateral Agent promptly in
writing of any change in Debtor's business address or chief executive office or
principal office, any change in the address at which records concerning the
Collateral are kept and any change in Debtor's name, identity or corporate or
other structure or form or State of organization; (e) will not, without
American Collateral Agent's written consent, make or agree to make any
alteration, modification or cancellation of, or substitution for, or credits,
adjustments or allowances on, Accounts, General Intangibles or Chattel Paper
constituting Collateral; will send to American Collateral Agent, on request,
all credit and other information respecting the financial condition of any
Account Debtor; and will notify American Collateral Agent promptly of any
default by any Account Debtor in payment or other performance of obligations
with respect to any Collateral; (f) will keep the Collateral in good condition
and repair; and will not use the Collateral in violation of any provisions of
this Security Agreement, of any applicable statute, regulation or ordinance or
of any policy insuring the Collateral; (g) will pay all taxes, assessments and
other charges of every nature which may be imposed, levied or assessed against
Debtor or any of Debtor's assets, prior to the date of attachment of any
penalties or liens with respect thereto (other than liens attaching prior to
payment becoming due, if payment is made when due); (h) will insure the
Collateral against risks, in coverage, form and amount, and by insurer, in
accordance with the provisions of the Credit Agreement and otherwise
satisfactory to American Collateral Agent, and will cause each policy to be
payable to American Collateral Agent as a named
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insured or loss payee, as its interest may appear, and deliver each policy or
certificate of insurance, as the case may be, to American Collateral Agent; (i)
will prevent the Collateral or any part thereof from being or becoming an
accession to other goods not covered by this Security Agreement; (j) in
connection herewith, will authorize or otherwise execute and deliver to
American Collateral Agent such financing statements, assignments and other
documents and do such other things relating to the Collateral and the Security
Interest as American Collateral Agent may request, including, without
limitation, taking such steps as the American Collateral Agent may reasonably
request for the American Collateral Agent (i) to obtain an acknowledgment, in
form and substance reasonably satisfactory to the American Collateral Agent, of
any bailee having possession of any of the Collateral, stating that the bailee
holds possession of such Collateral on behalf of the American Collateral Agent,
(ii) to obtain "control" of any Investment Property, Deposit Accounts,
Letter-of-Credit Rights, or electronic chattel paper (as such terms are defined
under the UCC), with any agreements establishing control to be in form and
substance satisfactory to the American Collateral Agent, and (iii) otherwise to
insure the continued perfection and priority of the American Collateral Agent's
security interest in any of the Collateral and of the preservation of its
rights therein and pay all costs of title searches and filing financing
statements, assignments and other documents in all public offices requested by
American Collateral Agent; and pay all costs of title searches and filing
financing statements, assignments and other documents in all public offices
requested by American Collateral Agent; and will not, without the prior written
consent of American Collateral Agent, file or authorize or permit to be filed
in any public office any financing statement naming Debtor as debtor and not
naming American Collateral Agent as secured party, other than Permitted Liens;
(k) will promptly notify American Collateral Agent in writing of the
particulars of the Debtor's rights under any commercial tort claims after such
rights arise and will execute a supplement to this Security Agreement granting
a security interest in such commercial tort claim to the American Collateral
Agent for the benefit of the Collateral Agents and Lenders; (l) will not place
the collateral in any warehouse which may issue a negotiable document with
respect thereto; (m) will not place the Collateral with any third party who has
not previously (i) acknowledged the American Collateral Agent and (ii) provided
an authenticated record, in form and substance satisfactory to American
Collateral Agent, acknowledging that such third party holds possession of the
collateral for the benefit of the American Collateral Agent; and (n) will
cooperate with American Collateral Agent in obtaining control of collateral
consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights or
electronic Chattel Paper including, but not limited to, entering into one or
more control agreements or assignments, as American Collateral Agent may
request.
6. Verification of Collateral. To the extent not inconsistent with the
Credit Agreement, American Collateral Agent shall have the right to verify all
or any Collateral in any manner and through any medium American Collateral
Agent may consider appropriate, and Debtor agrees to furnish all assistance and
information and perform any acts which American Collateral Agent may require in
connection therewith and to pay all of American Collateral Agent's costs
therefor.
7. Notification and Payments. After the occurrence of an Event of Default,
American Collateral Agent may (i) notify all or any Account Debtors of the
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Security Interest and may also direct such Account Debtors to make all payments
on Collateral to American Collateral Agent; and (ii) enforce obligations of an
Account Debtor or other person obligated on Collateral and exercise the rights
of the Debtor with respect to the obligation of the Account Debtor, and with
respect to property that secures the obligation of an Account Debtor or other
persons obligated on the Collateral. All payments on and from Collateral
received by American Collateral Agent directly or from Debtor shall be applied
to the Indebtedness in such order and manner as specified in the Credit
Agreement or as American Collateral Agent may otherwise determine. Any payments
on and from the Collateral received by Debtor: (i) shall be held by Debtor in
trust for American Collateral Agent in the same medium in which received; (ii)
shall not be commingled with any assets of Debtor; and (iii) shall be delivered
to American Collateral Agent in the form received, properly indorsed to permit
collection, not later than the next business day following the day of their
receipt; and Debtor shall comply with such demand. Debtor shall also promptly
notify American Collateral Agent of the return to or repossession by Debtor of
Goods underlying any Collateral, and Debtor shall hold the same in trust for
American Collateral Agent and shall dispose of the same as American Collateral
Agent directs.
8. Registered Holder of Collateral. If any Collateral consists of
investment securities, Debtor authorizes American Collateral Agent to transfer
the same or any part thereof into its own name or that of its nominee so that
American Collateral Agent or its nominee may appear of record as the sole owner
thereof; provided, that so long as no Event of Default has occurred, American
Collateral Agent shall send promptly to Debtor all notices, statements or other
communications received by it or its nominee as such registered owner, and upon
demand and receipt of payment of necessary expenses thereof, shall give to
Debtor or its designee a proxy or proxies to vote and take all action with
respect to such securities. After the occurrence of any Event of Default,
Debtor waives all rights to be advised of or to receive any notices, statements
or communications received by American Collateral Agent or its nominee as such
record owner, and agrees that no proxy or proxies given by American Collateral
Agent to Debtor or its designee as aforesaid shall thereafter be effective.
9. Income from and Interest on Collateral Consisting of Instruments. (a)
Until the occurrence of an Incipient Default or Event of Default, Debtor shall
be entitled to receive all income and principal from or interest on the
Collateral consisting of Instruments, and if American Collateral Agent receives
any such income, principal or interest prior to such Event of Default, American
Collateral Agent shall pay the same promptly to Debtor.
(b) Upon the occurrence of an Incipient Default or Event of Default,
Debtor will not demand or receive any income or principal from or interest on
such Collateral, and if Debtor receives any such income, principal or interest
without any demand by it, same shall be held by Debtor in trust for American
Collateral Agent in the same medium in which received, shall not be commingled
with any assets of Debtor and shall be delivered to American Collateral Agent
in the form received, properly indorsed to permit collection, not later than
the next business day following the day of its receipt. American Collateral
Agent may apply the net cash receipts from such income, principal
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or interest to payment of any of the Indebtedness in accordance with the Credit
Agreement or as American Collateral Agent may otherwise determine, provided
that American Collateral Agent shall account for and pay over to Debtor any
such income, principal or interest remaining after payment in full of the
Indebtedness.
10. Increases, Profits, Payments or Distributions. (a) Whether or not an
Event of Default has occurred, Debtor authorizes American Collateral Agent: (i)
to receive any increase in or value from the Collateral (including, without
limitation, any stock issued as a result of any stock split or dividend, any
capital distributions and the like), and to hold the same as part of the
Collateral; and (ii) to receive any payment or distribution on the Collateral
upon redemption by, or dissolution and liquidation of, the issuer; to surrender
such Collateral or any part thereof in exchange therefor; and to hold the net
cash receipts from any such payment or distribution as part of the Collateral.
(b) If Debtor receives any such increase, profits, payments or
distributions, Debtor will receive and deliver same promptly to American
Collateral Agent on the same terms and conditions set forth in paragraph 9(b)
hereof respecting income or interest, to be held by American Collateral Agent
as part of the Collateral.
11. Events of Default. (a) Any of the following events or conditions shall
constitute an event of default hereunder ("Event of Default"): (i) default by
Debtor in the performance of any obligation, term or condition of this Security
Agreement, or (ii) an Incipient Default or Event of Default under the Credit
Agreement.
(b) American Collateral Agent's rights and remedies with respect to the
Collateral shall be those of a Secured Party under the UCC and under any other
applicable law, as each of the same may from time to time be in effect, in
addition to those rights granted herein and in any other agreement now or
hereafter in effect between Debtor and any Agent or any Lender. In accordance
with the Credit Agreement, American Collateral Agent has been appointed by the
Agents and Lenders to exercise such rights. Upon the existence or occurrence of
an Event of Default, American Collateral Agent may require Debtor to assemble
the Collateral and make it available to American Collateral Agent at a place or
places designated by American Collateral Agent, and American Collateral Agent
may use and operate the Collateral, render the Collateral unusable or dispose
of the Collateral in a commercially reasonable manner.
(c) Without in any way requiring notice to be given in the following time
and manner, Debtor agrees that any notice by American Collateral Agent of sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the UCC or otherwise, shall constitute reasonable notice to
Debtor if such notice is mailed by regular or certified mail, postage prepaid,
at least ten (10) days prior to such action, to Debtor's address or addresses
specified above or to any other address which Debtor has specified in writing
to American Collateral Agent as the address to which notices hereunder shall be
given to Debtor.
(d) American Collateral Agent shall have no obligation to clean up or
otherwise prepare the Collateral for sale, and such inaction will not be
considered adversely to affect the commercial reasonableness of any such sale
of the Collateral.
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(e) American Collateral Agent may comply with any applicable law
requirements in connection with a disposition of the Collateral, and such
compliance will not be considered adversely to affect the commercial
reasonableness of any sale of the Collateral.
(f) American Collateral Agent may sell the Collateral without giving
any warranties. American Collateral Agent may specifically disclaim any
warranties of title or the like. This procedure will not be considered
adversely to affect the commercial reasonableness of any sale of the
Collateral.
(g) If American Collateral Agent sells any of the Collateral on
credit, Debtor will be credited only with payments actually made by the
purchaser in cash, received by American Collateral Agent in cash and applied to
the Indebtedness. If the purchaser fails to pay for the Collateral, American
Collateral Agent may resell the Collateral.
(h) Debtor agrees to pay on demand all costs and expenses (including
attorneys' fees and legal expenses) incurred by any Agent and any Lender in
enforcing this Security Agreement, in realizing upon or protecting any
Collateral and in enforcing and collecting any Indebtedness or any guaranty
thereof, including, without limitation, if any Agent or any Lender retain
counsel for advice, suit, appeal, insolvency or other proceedings under the
Bankruptcy Code or otherwise, or for any of the above purposes, the attorneys'
fees and expenses incurred by such Agent and such Lender. Payment of all costs
and expenses hereunder is secured by the Collateral.
12. Miscellaneous. (a) Debtor hereby authorizes American Collateral Agent,
at Debtor's expense, to file such financing statement or statements or other
applicable notice filings relating to the Collateral without Debtor's signature
thereon as American Collateral Agent at its option may deem appropriate, and
appoints American Collateral Agent as Debtor's attorney-in-fact (without
requiring American Collateral Agent) to execute any such financing statement or
statements in Debtor's name and to perform all other acts which American
Collateral Agent deems appropriate to perfect and continue the Security
Interest and to protect, preserve and realize upon the Collateral.
(b) American Collateral Agent may demand, collect and ▇▇▇ on any of
the Accounts, Chattel Paper, Instruments and General Intangibles (in either
Debtor's or American Collateral Agent's name at the latter's option); may
enforce, compromise, settle or discharge such Collateral without discharging
the Indebtedness or any part thereof; and may indorse Debtor's name on any and
all checks, commercial paper, and any other Instruments pertaining to or
constituting Collateral.
(c) (i) As further security for payment of the Indebtedness, Debtor
hereby grants to American Collateral Agent for the ratable benefit of the
Collateral Agents and Lenders, a Security Interest in and lien on any and all
property of Debtor which is or may hereafter be in the possession or control of
American Collateral Agent, any other Agent or any Lender in any capacity or of
any third party acting on its behalf, including, without limitation, all
deposit and other accounts and all moneys owed or to be owed by American
Collateral Agent, any other Agent or any Lender to Debtor; and with respect to
all of such property, American Collateral Agent, the other Agents and
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the Lenders shall have the same rights hereunder as they have with respect to
the Collateral; (ii) without limiting any other right of American Collateral
Agent, any other Agent or any Lender, whenever American Collateral Agent, any
other Agent or any Lender has the right to declare any Indebtedness of Westcon
or Debtor to be immediately due and payable (whether or not it has so
declared), American Collateral Agent, any other Agent or any Lender may set off
against such Indebtedness any and all moneys then or thereafter owed to Debtor
by American Collateral Agent, such other Agent or such Lender in any capacity,
whether or not the Indebtedness or the obligation to pay such moneys owed by
American Collateral Agent, such other Agent or such Lender is then due, and
American Collateral Agent, such other Agent or such Lender shall be deemed to
have exercised such right of set off immediately at the time of such election
even though any charge therefor is made or entered on American Collateral
Agent's, such other Agent's or such Lender's records subsequent thereto.
(d) Upon Debtor's failure to perform any of its duties hereunder,
American Collateral Agent may, but shall not be obligated to, perform any or
all such duties, including, without limitation, payment of taxes, assessments,
insurance and other charges and expenses as herein provided, and Debtor shall
pay upon demand by American Collateral Agent an amount equal to the cost
thereof to American Collateral Agent. Payment of all moneys hereunder shall be
secured by the Collateral.
(e) No course of dealing between Debtor and any Agent or any Lender
and no delay or omission by any Agent or any Lender in exercising any right or
remedy hereunder or with respect to any Indebtedness shall operate as a waiver
thereof or of any other right or remedy, and no single or partial exercise
thereof shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. American Collateral Agent may remedy any default by
Debtor hereunder or with respect to any Indebtedness in any reasonable manner
without waiving the default remedied and without waiving any other prior or
subsequent default by Debtor. All rights and remedies of the Agents and the
Lenders hereunder are cumulative and may be exercised simultaneously.
(f) Debtor authorizes American Collateral Agent, without notice or
demand and without affecting Debtor's obligations hereunder, from time to time:
(i) to exchange, enforce or release any collateral or any part thereof (other
than the Collateral) taken from any party for payment of the Indebtedness or
any part thereof; (ii) to release, substitute or modify any obligation of any
indorser, guarantor or other party in any way obligated to pay the Indebtedness
or any part thereof, or any party who has given any security, mortgage or other
interest in any other collateral as security for the payment of the
Indebtedness or any part thereof; (iii) upon the occurrence of any Event of
Default as hereinabove provided, to direct the order or manner of disposition
of the Collateral and any and all other collateral and the enforcement of any
and all indorsements, guaranties and other obligations relating to the
Indebtedness or any part thereof, as American Collateral Agent, in its
discretion, or upon direction of the Lenders in accordance with the terms of
the Credit Agreement, may determine; and (iv) to determine in accordance with
the terms of the Credit Agreement how, when and what application of payments
and credits, if any, shall be made on the Indebtedness or any part thereof.
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(g) Neither any Agent nor any Lender shall have any duties with
respect to the Collateral other than the duty to use reasonable care if the
Collateral is in its possession. In accordance with the UCC, American
Collateral Agent shall be deemed to have used reasonable care if it observes
substantially the same standard of care with respect to the custody or
preservation of the Collateral as it observes with respect to similar assets
owned by American Collateral Agent. Without limiting the generality of the
foregoing, neither any Agent nor any Lender shall be under any obligation to
take any steps to preserve rights in the Collateral against any other parties,
to sell the same if it threatens to decline in value, or to exercise any rights
represented thereby (including rights with respect to calls, conversions,
exchanges, maturities or tenders); provided, however, that American Collateral
Agent may, at its option, after the occurrence of an Event of Default, do so,
and any and all expenses incurred in connection therewith shall be for the
account of Debtor. The Agents and Lenders shall not be responsible to Debtor
for loss or damage resulting from any Agent's or any Lender's failure to
enforce or collect any such Collateral or to collect any moneys due or to
become due thereunder. Debtor waives protest of any Instrument constituting
Collateral at any time held by any Agent or any Lender on which Debtor is in
any way liable and waives notice of any other action taken by any Agent or any
Lender.
(h) All notices or demands by any party hereto or to the other party
and relating to this Security Agreement shall be sent in accordance with the
terms of Section 13.14 of the Credit Agreement.
(i) The rights and benefits of the Agents and Lenders hereunder
shall, if such Agent or Lender so directs, inure to any party acquiring any
interest in the Indebtedness or any part thereof in accordance with the Credit
Agreement. Debtor may not assign this Security Agreement nor delegate any of
its duties hereunder without American Collateral Agent's prior written consent
and any prohibited assignment shall be absolutely void.
(j) American Collateral Agent, Canadian Collateral Agent, Collateral
Agents, Agents, Lenders and Debtor as used herein shall include the respective
successors or assigns of those parties. The term "Borrowers" as used herein
shall include the Borrowers that are a party to the Credit Agreement on the
date hereof and any other person that becomes a Borrower under the Credit
Agreement after the date hereof.
(k) If more than one Debtor executes this Security Agreement, the term
"Debtor" shall include each as well as all of them and their obligations,
warranties and representations hereunder shall be joint and several.
(l) No modification, rescission, waiver, release or amendment of any
provision of this Security Agreement shall be made, except by a written
agreement subscribed or otherwise authenticated by Debtor and by a duly
authorized officer of American Collateral Agent.
(m) This Security Agreement and the transactions evidenced hereby
shall be construed under and governed by the internal laws of the State of New
York without regard to principles of conflicts of laws.
10
(n) The American Collateral Agent may, at its option, (a) cure any
default by Debtor under any agreement with a third party that affects the
Collateral, its value or the ability of the American Collateral Agent to
collect, sell or otherwise dispose of the Collateral or the rights and remedies
of any Agent or any Lender therein or the ability of Debtor to perform its
obligations hereunder, or under the Credit Agreement or under any of the other
Loan Documents, (b) pay or bond on appeal any judgment entered against any
Borrower or any Guarantor, (c) discharge taxes, liens, security interests or
other encumbrances at any time levied on or existing with respect to the
Collateral and pay any amount, incur any expense or perform any act which, in
the American Collateral Agent's judgment, is necessary or appropriate to
preserve, protect, insure or maintain the Collateral and the rights of the
Agents and Lenders with respect thereto. The American Collateral Agent may add
any amounts so expended to the Indebtedness. The American Collateral Agent, the
other Agents and Lenders shall be under no obligation to effect such cure,
payment or bonding and shall not, by doing so, be deemed to have assumed any
obligation or liability of Debtor. Any payment made or other action taken by
American Collateral Agent, any other Agent or any Lender under this paragraph
shall be without prejudice to any right to assert an Event of Default hereunder
and to proceed accordingly.
(o) Debtor hereby irrevocably designates and appoints the American
Collateral Agent (and all persons designated by American Collateral Agent) as
Debtor's true and lawful attorney-in-fact, and authorizes the American
Collateral Agent, in Debtor's, or the American Collateral Agent's name, to: (a)
at any time an Event of Default or Incipient Default exists or has occurred and
is continuing (i) demand payment on Receivables or other Collateral, (ii)
enforce payment of Receivables by legal proceedings or otherwise, (iii)
exercise all of Debtor's rights and remedies to collect any Receivable or other
Collateral, (iv) sell or assign any Receivable upon such terms, for such amount
and at such time or times as the American Collateral Agent deems advisable, (v)
settle, adjust, compromise, extend or renew any Receivable, (vi) discharge and
release any Receivable, (vii) prepare, file and sign Debtor's name on any proof
of claim in bankruptcy or other similar document against an Account Debtor or
other obligor in respect of any Receivables or other Collateral, (viii) notify
the post office authorities to change the address for delivery of remittances
from Receivable debtors or other obligors in respect of Receivables or other
proceeds of Collateral to an address designated by the American Collateral
Agent, and open and dispose of all mail addressed to Debtor or its agents and
handle and store all mail relating to the Collateral; and (ix) do all acts and
things which are necessary, in the American Collateral Agent's determination,
to fulfill Debtor's obligations under this Security Agreement and the other
Loan Documents and (b) to (i) take control in any manner of any item of payment
in respect of Receivables or constituting Collateral or otherwise received in
or for deposit for Receivables, (ii) have access to any lockbox or postal box
into which remittances from Receivable debtors or other obligors in respect of
Receivables or other proceeds of Collateral are sent or received, (iii) endorse
Debtor's name upon any items of payment in respect of Receivables or
constituting Collateral or otherwise received by American Collateral Agent, any
other Agent or and any Lender and deposit the same in the American Collateral
Agent's account for application to the Indebtedness, and (c) at any time to (i)
endorse Debtor's name upon any of the following that may then be in the
11
possession or control of the American Collateral Agent (or its affiliates) or
any Lender: chattel paper, document, instrument, invoice, or similar document
or agreement relating to any Receivable or any goods pertaining thereto or any
other Collateral, including any warehouse or other receipts, or bills of lading
and other negotiable or non-negotiable documents, (ii) clear Inventory the
purchase of which was financed with a letter of credit through U.S. customs or
foreign export control authorities in Debtor's name, American Collateral
Agent's name or the name of the American Collateral Agent's designee, and to
sign and deliver to customs officials powers of attorney in Debtor's name for
such purpose, and to complete in Debtor's or the American Collateral Agent's
name, any order, sale or transaction, obtain the necessary documents in
connection therewith and collect the proceeds thereof, and (iii) sign Debtor's
name on any verification of Receivables and notices thereof to Receivable
debtors or any secondary obligors or other obligors in respect thereof. Debtor
hereby releases the American Collateral Agent, the other Agents and Lenders and
their respective officers, employees and designees from any liabilities arising
from any act or acts under this power of attorney and in furtherance thereof,
whether of omission or commission, except as a result of American Collateral
Agent's, any other Agent's or any Lender's own gross negligence or willful
misconduct as determined pursuant to a final non-appealable order of a court of
competent jurisdiction. The agency hereby created is unconditional and shall
not terminate until all of the Indebtedness is paid in full and until all
commitments by Lenders to Debtor and the Borrowers have expired or been
terminated.
(p) EACH PARTY AGREES THAT ANY ACTION OR PROCEEDING TO ENFORCE OR
ARISING OUT OF THIS SECURITY AGREEMENT MAY BE COMMENCED IN THE SUPREME COURT OF
NEW YORK IN NEW YORK COUNTY, NEW YORK, NEW YORK, OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK
COUNTY, NEW YORK, NEW YORK. EACH PARTY WAIVES PERSONAL SERVICE OF PROCESS AND
AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF
SERVED BY REGISTERED OR CERTIFIED MAIL TO THE RESPECTIVE PARTY AT ITS ADDRESS
SET FORTH AT THE BEGINNING OF THIS SECURITY AGREEMENT, OR AS OTHERWISE PROVIDED
BY THE LAWS OF THE STATE OR THE UNITED STATES.
(q) EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVES ANY RIGHT TO TRIAL BY JURY THAT IT MAY HAVE IN ANY ACTION OR PROCEEDING,
IN LAW OR IN EQUITY, IN CONNECTION WITH THIS SECURITY AGREEMENT, THE CREDIT
AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO. EACH PARTY REPRESENTS
AND WARRANTS THAT NEITHER ANY REPRESENTATIVE OF AMERICAN COLLATERAL AGENT NOR
AMERICAN COLLATERAL AGENT NOR DEBTOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT AMERICAN COLLATERAL AGENT WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER
12
INTO THIS SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
(r) This Security Agreement is and is intended to be a continuing
Security Agreement and shall remain in full force and effect until all of the
Indebtedness outstanding, or contracted or committed for (whether or not
outstanding), and any extensions or renewals thereof, together with interest
accruing thereon, shall be finally and irrevocably paid in full in cash and all
commitments to extend credit have been terminated. If, after receipt of any
payment of all or any part of the Indebtedness, any Agent or any Lender is for
any reason compelled to surrender such payment to any person or entity, because
such payment is determined to be void or voidable as a preference,
impermissible set off, or a diversion of trust funds, or for any other reason,
this Agreement shall continue in full force notwithstanding any contrary action
which may have been taken by any Agent or any Lender in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to
any Agent's and any Lender's rights under this Agreement and shall be deemed to
have been conditioned upon such payment having become final and irrevocable.
EASTPRO SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, III
Title: VP
GENERAL ELECTRIC CAPITAL CORPORATION,
as American Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P.
13
SCHEDULE
1. Other encumbrances, if any (P. P. 4a, 5a):
None.
2. Other names under which Debtor transacts business (P. 4c):
None
3. Debtor's form of organization (P. 4c): Corporation
4. Debtor's State or jurisdiction of organization (P. 4c). New York
5. Debtor's Tax ID Number and Organizational Number, if any (P. 4c).
Tax ID Number: __________
Organizational Number: ________
6. (a) Fixtures affixed to real property (P. 4g):
(b) Owner(s) of such real property (P. 4g):
(c) Mortgage(s) on real property (P. 4g):
7. Collateral consisting of Deposit Accounts, Commodity Accounts, Securities
Accounts, or letters of credit (P. 4h):
(a) Name and address of depositary bank, securities intermediary,
commodities intermediary or letter of credit issuer, as applicable.
8. Inventory locations (P. 4(i)):
9. Additional schedules describing Collateral, if any, follow hereafter
(P. 2).
(a) Commercial Tort Claims: