Exhibit 10.1
EXECUTION COPY
GUARANTOR SECURITY AND PLEDGE AGREEMENT
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THIS GUARANTOR SECURITY AND PLEDGE AGREEMENT ("AGREEMENT") dated as of
September 30, 1997, is entered into by and among WMT Acquisition Corp., a
California corporation ("WMT"), Savoir Technology Group, Inc., a Delaware
corporation ("STG"), Star Management Services, Inc., a Delaware corporation
("SMS"), Inet Systems, Inc., a Texas corporation ("INET"), Star Data
International, a company organized under the laws of the Virgin Islands ("SDI"),
Sirius Investments, Inc., a Nevada corporation ("SII"), and Star Data Systems,
Inc., a Texas corporation ("SDS") (WMT, STG, SMS, INET, SDI, SII, SDS and any
Additional Grantor under and as defined in Section 36 below are referred to
herein individually from time to time as "GRANTOR" and collectively as the
"GRANTORS"), and Canpartners Investments IV, LLC as agent (in such capacity, the
"AGENT") for the Holders under (and as defined in) the Note Purchase Agreement
(as hereinafter defined). Capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to such terms in the Note Purchase
Agreement.
W I T N E S S E T H
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WHEREAS, the Grantors, Western Micro Technology, Inc., a California
corporation (the "Issuer"), the Purchasers referred to therein, and the Agent
have entered into a Note Purchase Agreement of even date herewith (as amended,
restated, supplemented or otherwise modified from time to time, the "NOTE
PURCHASE AGREEMENT"), pursuant to which, the Purchasers have agreed to purchase
$15,700,000 in aggregate principal amount of the Issuer's 13.5% Second Priority
Senior Secured Notes due 2000 (the "NOTES");
WHEREAS, each of the Grantors has entered into the Note Purchase
Agreement, pursuant to which, among other things, each Grantor unconditionally
guaranteed the prompt and complete payment and performance of the Issuer's
Obligations under the Notes and the Note Documents, as more fully set forth in
the Note Purchase Agreement;
WHEREAS, each Grantor has entered into that certain Contribution
Agreement of even date herewith (the "CONTRIBUTION AGREEMENT") in connection
with the transactions contemplated by the Note Purchase Agreement;
WHEREAS, pursuant to the Note Purchase Agreement, the Issuer has
entered into that certain Issuer Security and Pledge Agreement of even date
herewith (the "ISSUER SECURITY AND PLEDGE AGREEMENT");
WHEREAS, it is a condition precedent to the purchase of the Notes by
the Purchasers under the Note Purchase Agreement that the Grantors shall have
executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein and
of the purchase of the Notes by the Purchasers or any other Holder, or any of
them, the Grantors hereby agree with the Agent, for its benefit and the ratable
benefit of the Holders, as follows:
SECTION 1. Grant of Security. Each Grantor hereby pledges to the
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Agent, for its benefit and the ratable benefit of the Holders, and hereby grants
to the Agent, for its benefit and the ratable benefit of the Holders, a security
interest in, all of such Grantor's right, title and interest in and to the
following, in each case whether now owned or existing or hereafter acquired or
arising and however and wherever arising or located (collectively, the
"COLLATERAL"):
(a) EQUIPMENT: All of such Grantor's equipment of every description,
including, without limitation, all machinery, manufacturing, distribution,
selling, data processing and office equipment, computers (including mainframe
processors and remote terminals), assembly systems, tools, tooling, molds, jigs,
dies, fixtures, appliances, furniture, furnishings, fork lifts, vehicles,
trucks, trailers, semi-trailers, rolling stock, vessels, aircraft, aircraft
engines, trade fixtures and related products constituting equipment, together
with any and all accessions, parts and equipment attached thereto or used in
connection therewith, and any substitutions therefor and replacements thereof
(all of the foregoing being the "EQUIPMENT");
(b) INVENTORY: All of such Grantor's inventory in all of its forms,
including, without limitation, (i) all goods, merchandise and other personal
property, finished or unfinished, furnished or to be furnished under any
contract of service, rental contract, lease or purchase order or intended for
sale or lease, including, without limitation, rental equipment, tools, toolings,
vehicles, trucks, trailers and semi-trailers, together with any and all
accessions, parts and inventory attached thereto or used in connection
therewith, and related products which constitute inventory, and all consigned
goods, (ii) all raw materials, mobile goods, work in process, parts, components,
assemblies, finished goods, and materials and supplies of any kind, nature or
description used or consumed in such Grantor's businesses or in connection with
the manufacture, production, packing, shipping, advertising, finishing, leasing
or sale of the foregoing, (iii) all goods in which such Grantor has an interest
in mass or a joint or other interest or right of any kind (including, without
limitation, goods in which such Grantor has an interest or right as consignee)
and (iv) all goods which are returned to or repossessed by such Grantor; in each
case wherever located and whether in the possession of such Grantor, a bailee, a
consignee, a lessee or any other Person for sale, lease, storage, transit,
processing, use or otherwise, and any and all documents for or relating to any
of the foregoing (all of the foregoing being the "INVENTORY");
(c) ACCOUNTS: All of such Grantor's accounts, contract rights, chattel
paper, instruments, documents, deposit and other bank accounts, book debts and
other rights to payment of any kind, whether or not arising out of or in
connection with the sale or lease of goods or the rendering of services, and
whether or not earned by performance, including, without limitation, (i) any of
the foregoing which are not evidenced by instruments or
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investment property, (ii) reserves and credit balances for any account
receivable or account debtor, (iii) all intercompany receivables, and all other
intercompany obligations, and any security documents executed in connection
therewith, (iv) all proceeds of any letters of credit or insurance policies on
which such Grantor is named as beneficiary, (v) all collateral supporting any
account receivable or account debtor, (vi) all claims against third parties for
advances or other financial accommodations or any other obligations whatsoever
owing to such Grantor, and (vii) all rights in and to all security agreements,
leases, rental contracts, acquisition agreements, contracts of service,
contracts of sale, distribution agreements, purchase orders, guaranties,
employment agreements, instruments, covenants not to compete, securities,
documents of title and other contracts securing, evidencing, supporting or
otherwise relating to any of the foregoing, together with all rights in any
goods, merchandise or Inventory which any of the foregoing may represent, and
all rights in returned or repossessed goods, merchandise or Inventory which any
of the same may represent, including, without limitation, any rights to
rescission, replevin, reclamation, and stoppage in transit (all of the foregoing
being the "Accounts", and any and all such security agreements, employment
agreements, acquisition agreements, leases, rental contracts, contracts of
service, contracts of sale, distribution agreements, purchase order, guaranties,
instruments and documents of title and other contracts being the "RELATED
CONTRACTS");
(d) GENERAL INTANGIBLES: All of such Grantor's general intangibles,
rights, interests, choses in action, causes of action, claims and other
intangible property, of every kind and nature (other than Accounts), including,
without limitation, (i) all corporate and other business books and records, (ii)
all loans, royalties, and other obligations receivable (other than Accounts),
(iii) all intellectual property, and all embodiments thereof, and rights
thereto, including, without limitation, all trademarks, registered trademarks,
trademark applications, service marks, registered service marks, service ▇▇▇▇
applications, patents, patent applications, trade names, rights of use of any
name, labels, fictitious names, inventions, designs, trade secrets, technical
knowledge and processes, technical specifications, computer programs, software
(including proprietary software), printouts and other computer materials,
goodwill, registrations, copyrights, copyright applications, permits, licenses
(including formal or informal licensing arrangements which are permitted to be
assigned or pledged), franchises, blueprints, customer lists, credit files,
correspondence, and advertising materials, and all of such Grantor's rights to
use the patents, trademarks, service marks, or other property of the aforesaid
nature of other Persons now or hereafter licensed to such Grantor, (iv) all
customer and supplier contracts, firm sale orders, rights under license and
franchise agreements, rights under tax sharing agreements, and other contracts
and contract rights, (v) all interests in partnerships, limited liability
companies, joint ventures and other unincorporated Persons, (vi) all tax refunds
and tax refund claims, (vii) all right, title and interest under leases,
subleases, licenses and concessions and other agreements relating to real or
personal property, (viii) all deposit accounts (general or special) with any
bank or other financial institution and all certificates of deposit, (ix) all
credits with and other claims against third parties (including carriers and
shippers), (x) all rights to indemnification, (xi) all reversionary interests in
pension and profit sharing plans and reversionary, beneficial and residual
interests in trusts, (xii) all proceeds of, or claims for unearned premiums with
respect
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to, insurance of which such Grantor is beneficiary, (xiii) all letters of
credit, guaranties, Liens, security interests and other security held by or
granted to such Grantor, (xiv) certificates of title and (xv) all other general
intangibles (all of the foregoing being the "GENERAL INTANGIBLES");
(e) CHATTEL PAPER, INSTRUMENTS, DOCUMENTS AND INVESTMENT PROPERTY:
All of such Grantor's chattel paper, instruments, documents and investment
property, including, without limitation:
(i) all service agreements, employment agreements, acquisition
agreements, contracts of sale, distribution agreements, covenants not to
compete, contracts of service and other contracts with respect to computer
systems and related products, equipment and software and all rights
thereunder, including, without limitation, (A) all rights of such Grantor
to receive moneys due or to become due thereunder or pursuant thereto, (B)
all rights of such Grantor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect thereto, (C) all claims of such Grantor
for damages arising out of breach of or any default thereunder and (D) all
rights of such Grantor to terminate, amend, supplement, modify or exercise
rights, remedies or options thereunder;
(ii) the shares of the capital stock of each Subsidiary of such
Grantor, now or at any time or times hereafter owned by such Grantor, and
the certificates representing the shares of such capital stock (as
identified on Exhibit A attached hereto and made a part hereof), all
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options and warrants for the purchase of shares of the stock of each of
such Subsidiaries now or hereafter held in the name of such Grantor (all of
said capital stock, options and warrants and all capital stock held in the
name of such Grantor as a result of the exercise of such options or
warrants being hereinafter collectively referred to as the "PLEDGED
STOCK"), herewith delivered to the Agent accompanied by acknowledgments of
such Subsidiaries in the form of Exhibit B attached hereto and made a part
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hereof (the "ACKNOWLEDGMENTS") and stock powers in the form of Exhibit C
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attached hereto and made a part hereof (the "POWERS") duly executed in
blank, and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of, or in
exchange for, any or all of the Pledged Stock, and all other products and
proceeds of the foregoing;
(iii) all additional shares of stock of any Subsidiary of such Grantor
from time to time acquired by such Grantor in any manner, and the
certificates representing such additional shares (any such additional
shares shall constitute part of the Pledged Stock), and all dividends,
cash, instruments, equity securities, financial assets and other interests
which are, or are of a type, dealt in or traded on financial markets, or
which are recognized in any way as a medium for investment, whether
certificated or uncertificated, any property held by a financial or
securities intermediary for such Grantor, securities accounts to which any
of the foregoing are credited and warrants, options, puts and calls, and
other rights or securities entitlements from time to time
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received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares, and all other products and proceeds of the
foregoing;
(iv) the promissory notes, intercompany notes and other instruments
identified on Exhibit A (the "PLEDGED NOTES"), and all products and
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proceeds of the Pledged Notes, including, without limitation, all interest
and principal payments, instruments, and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for the Pledged Notes;
(v) all additional promissory notes, instruments, bonds or debt
securities, issued by any Person from time to time issued to, or held by,
such Grantor in any manner (any such additional promissory notes or
instruments shall constitute part of the Pledged Notes) and all products
and proceeds of any such additional promissory notes and instruments,
including, without limitation, all interest and principal payments,
instruments, and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any such additional
promissory notes or instruments (the property described in clauses (e)(ii)
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through (e)(v) of this Section 1 is collectively referred to as the
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"PLEDGED COLLATERAL"); and
(vi) all bills of lading, warehouse receipts and other documents of
title;
(f) OTHER PROPERTY: All of such Grantor's property or interests in
property which now may be owned or hereafter may come into the possession,
custody or control of the Agent or any Holder, or any agent or affiliate of
the Agent or any Holder, in any way or for any purpose (whether for
safekeeping, deposit, custody, pledge, transmission, collection or
otherwise), and all rights and interests of such Grantor in respect of any
and all (i) drafts and letters of credit, (ii) interest rate and currency
exchange agreements, including, without limitation, cap, collar, floor,
forward and similar agreements and interest rate protection agreements,
(iii) cash, money and cash equivalents and (iv) proceeds of loans, advances
and other financial accommodations, including, without limitation, loans,
advances and other financial accommodations made or extended under the Note
Purchase Agreement; and all other personal property of such Grantor (all of
the foregoing being the "OTHER PROPERTY"); and
(g) All accessions, additions and repairs to, substitutions,
documents, ledger sheets and files for, and replacements, proceeds
(including, without limitation, proceeds that constitute property of the
types described in clauses (a) through (f) of this Section 1), products,
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rents and profits of any of the foregoing Collateral. Proceeds hereunder
shall include (i) all payments under (or claims for payment under)
insurance (whether or not the Agent is the loss payee thereof) or any
indemnity, warranty, guaranty or condemnation or requisition payments
payable by reason of loss or damage to or otherwise with respect to any of
the foregoing Collateral or any proceeds thereof, (ii) whatever is now or
hereafter received by such Grantor upon the sale, lease, exchange,
assignment, licensing, collection or other disposition of, or realization
upon any item of Collateral, whether such proceeds constitute inventory,
accounts,
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accounts receivable, general intangibles, instruments, securities or investment
property (including, without limitation, United States of America Treasury
Bills), credits, claims, demands, documents, letters of credit and letter of
credit proceeds, chattel paper, documents of title, certificates of title,
certificates of deposit, warehouse receipts, bills of lading, leases, deposit
accounts, money, tax refund claims, contract rights, goods or equipment, (iii)
any such items which are now or hereafter acquired by such Grantor with any
proceeds of its Collateral hereunder and (iv) cash and cash equivalents.
provided, however, that except with respect to the provisions of this Section 1,
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the foregoing grant of a security interest shall be deemed not to grant a
security interest in any of the property described below (such property being
hereinafter referred to as property subject to a "SECURITY INTEREST RESTRICTION"
and all other property being hereinafter referred to as "SECURITY PROPERTY"):
any property described on Exhibit G hereto, if, but only to the
extent that (x) the terms and provisions of a written agreement,
document or instrument in effect on the Closing Date prohibit the
granting of a security interest or condition the granting of a
security interest on the consent of a third party whose consent has
not been obtained or would cause, or allow a third party to cause, the
forfeiture of such property upon the granting of a security interest
therein; (y) the terms and provisions of a written agreement, document
or instrument entered into after the Closing Date (or any amendment to
any agreement described in clause (x) above entered into after the
Closing Date) prohibit the granting of a security interest or
condition the granting of a security interest on the consent of a
third party whose consent has not been obtained or would cause, or
allow a third party to cause, the forfeiture of such property upon the
granting of a security interest, provided that (i) the requirement of
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such prohibition or condition has not been initiated by an Obligor and
has been agreed or consented to by the Obligor in the ordinary course
of its business and such prohibition or condition is believed by the
Obligor in good faith to be reasonably necessary for the Obligor to
obtain the benefits of the agreement, document or instrument entered
into by the Obligor in order to conduct its normal business operations
and (ii) the Obligor has used its best efforts to have such
prohibition or condition eliminated or to obtain such consent; or (z)
applicable law either prohibits the granting of a security interest
therein or provides for the involuntary forfeiture of the property in
the event a security interest is granted therein without the consent
of the appropriate Governmental Authority, or at all; provided,
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however that with respect to clauses (x), (y) and (z) above, if such
prohibition or the condition requiring such consent relates only to
the foreclosure of a security interest or the exercise of other rights
or remedies upon a default but not to the granting of a security
interest therein, then a security interest in such property shall be
deemed to be granted by this Agreement subject to the condition that
the consent of such third party or Governmental Authority .is obtained
by the Agent prior to the foreclosure or
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exercising its other rights or remedies hereunder, so that any
involuntary forfeiture of the property is thereby avoided; provided,
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further, that the property which is the subject of the lien granted to
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IBM pursuant to the IBM Facility shall not be deemed to be subject to
a Security Interest Restriction; provided, further, that (A) the
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foregoing grant of a security interest shall be deemed to include all
other Security Property that becomes free from a Security Interest
Restriction after the date of this Agreement and any other Security
Property that is acquired after the date of this Agreement that is not
subject to a Security Interest Restriction permitted herein, and (B)
in the event of the termination of elimination of any Security
Interest Restriction to the extent sufficient to permit any Security
Property to become Collateral hereunder, such Security Property shall
be deemed to be assigned and pledged to the Agent and shall be
included as Collateral hereunder.
SECTION 2. Security for Obligations. This Agreement secures, with
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respect to each Grantor, and the Collateral of such Grantor is collateral
security for, the prompt and complete payment of all of the Obligations of such
Grantor, whether or not for the payment of money, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising, and however acquired (all such
obligations of any Grantor, including, without limitation, the Obligations of
any Grantor, being the "SECURED OBLIGATIONS"). Without limiting the generality
of the foregoing, this Agreement secures, with respect to such Grantor, and the
Collateral of such Grantor is collateral security for, the payment of all
amounts which constitute part of the Secured Obligations of such Grantor and
would be owed by such Grantor to the Agent or any Holder but for the fact that
they are unenforceable or not allowable due to the occurrence of an Insolvency
Event or any similar proceeding involving such Grantor.
SECTION 3. Grantors Remain Liable. Anything herein to the contrary
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notwithstanding, (a) each Grantor shall remain liable under its respective
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the Agent
of any of the rights hereunder shall not release any Grantor from any of its
duties or obligations under its respective contracts and agreements included in
the Collateral, and (c) neither the Agent nor any Holder shall have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall the Agent or any Holder be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
SECTION 4. Delivery of Pledged Collateral. Within thirty (30) days
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after the end of each calendar quarter, each Grantor shall deliver to the Agent,
for the benefit of the Holders, all certificates or instruments representing or
evidencing the Pledged Collateral acquired by such Grantor during such calendar
quarter, and such Pledged Collateral shall be held by or on behalf of the Agent
pursuant hereto and shall be in suitable form for transfer by
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delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank and, in the case of Pledged Stock of Subsidiaries of the
Grantors formed or acquired after the date hereof, an Acknowledgment executed by
such Subsidiary, all in form and substance satisfactory to the Agent. If, during
any such calendar quarter, (a) any stock dividend, reclassification,
readjustment or other change is declared or made in the capital structure of any
of the Subsidiaries which have issued Pledged Stock, or any option included
within the Pledged Collateral is exercised, or both, or (b) any subscription
warrant(s) or any other right(s) or option(s) shall be issued in connection with
the Pledged Collateral, then all new, substituted and additional shares,
warrants, rights, options and other securities issued by reason of any of the
foregoing shall be delivered to the Agent within thirty (30) days after the end
of such calendar quarter and shall be held by the Agent under the terms of this
Agreement and shall constitute Pledged Collateral hereunder; provided, however,
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that nothing contained in this Section 4 shall be deemed to permit any stock
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dividend, issuance of additional stock, warrants, rights or options,
reclassification, readjustment or other change in the capital structure of any
of the Obligors which is not expressly permitted in the Note Purchase Agreement;
provided, further, however, that any Grantor's failure to so deliver such
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property to the Agent shall in no way affect the Lien granted thereon as herein
provided.
SECTION 5. Subsequent Changes Affecting Pledged Collateral. Each
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Grantor represents and warrants that it has made its own arrangements for
keeping itself informed of changes and potential changes affecting its Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, payments of interest and/or principal,
reorganization and other exchanges, tender offers and voting rights), and each
Grantor agrees that neither the Agent nor any Holder shall have any obligation
to inform any Grantor of any such changes or potential changes or to take any
action or omit to take any action with respect thereto. The Agent may, after the
occurrence and during the continuance of an Event of Default, without notice and
at its option, transfer or register the Pledged Collateral or any part thereof
into its or its nominee's name with or without any indication that such Pledged
Collateral is subject to the Lien hereunder. In addition, the Agent may at any
time after the occurrence and during the continuance of an Event of Default
exchange certificates or instruments representing or evidencing the Pledged
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 6. Representations and Warranties. Each Grantor represents and
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warrants as follows:
(a) The correct corporate name and federal tax identification number
of such Grantor on the date hereof is set forth on Exhibit D attached hereto and
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made a part hereof. Except as set forth on Exhibit D for the jurisdictions
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specified with respect thereto, such Grantor has no other corporate, trade or
fictitious name and has not, during the immediately preceding five (5) years,
been known by or used any other corporate, trade or fictitious name.
(b) The principal place of business and chief executive office of
such Grantor are located at the address specified on Exhibit E attached hereto
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and made a part hereof. All
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records concerning the Accounts are located at the same address specified on
Exhibit E for such Grantor. All records concerning the Related Contracts and all
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originals of all chattel paper are located at the same address specified on
Exhibit E for such Grantor or at the addresses specified as addresses of such
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Grantor on Exhibit F attached hereto and made a part hereof.
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(c) All of such Grantor's Inventory and Equipment is located at the
places specified on Exhibit F. If any location of its Inventory or Equipment is
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subject to a lease, sublease, mortgage or similar instrument, the name and
address of each lessor, sublessor and/or mortgagee (other than such Grantor) is
set forth on Exhibit F. The legal name and address of each bailee, processor,
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warehouseman, consignee, carrier and shipper or other Person (other than a
Lessee) in possession of any of such Grantor's Inventory or Equipment (each such
Person being a "BAILEE") on the date hereof is set forth on Exhibit F, together
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with the address of the location where such Inventory or Equipment is or may be
held. Except as otherwise indicated on Exhibit F, no Person (other than a Lessee
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or a Person identified on Exhibit F as being a consignee) in possession of any
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of such Grantor's Inventory or Equipment conducts a business at the location of
such Inventory or Equipment other than a business in the nature of warehousing
or transporting goods for others. In the event that any of such Grantor's
Inventory or Equipment is in the possession of a Bailee, none of the receipts,
instruments or documents received and to be received by such Grantor from any
Bailee state that the Inventory or Equipment covered thereby is to be delivered
to bearer or to the order of a named person or to a named person and such named
person's assigns.
(d) The amount represented by such Grantor from time to time to the
Agent as the amount owing by each account debtor or by all account debtors in
respect of any Accounts will, at such time, be the correct amount actually and
unconditionally owing by such account debtor(s) thereunder to the best of such
Grantor's knowledge (except to the extent, if any, that such account debtor(s)
may be entitled to normal trade discounts, adjustments, returns and allowances).
None of the Accounts is evidenced by a promissory note or other instrument,
except for promissory notes and instruments delivered to the Agent pursuant to
this Agreement.
(e) Such Grantor is the sole legal and beneficial owner of its Pledged
Collateral (including, without limitation, the percentage of the issued and
outstanding capital stock of each of its Subsidiaries which is set forth
opposite the name of such Subsidiary on Exhibit A), free and clear of any Lien
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except for (i) Liens of the Agent, for the benefit of the Holders, under the
Note Documents, and (ii) Permitted Liens under the Note Purchase Agreement.
(f) All of the Pledged Stock has been duly authorized, validly issued
and is fully paid and non-assessable. The Pledged Notes have been duly
authorized and executed by the respective issuers thereof and constitute the
legal, valid and binding obligations of such respective issuers.
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(g) There are no restrictions upon the voting rights associated with,
or upon the transfer of, any of the Pledged Collateral (except as may be
required in connection with such disposition by laws affecting the offering and
sale of securities generally).
(h) Each Grantor has the right to vote, pledge and grant a security
interest in or otherwise transfer its Pledged Collateral free of any Liens
except for (i) Liens of the Agent, for the benefit of the Holders, under the
Note Documents, and (ii) Permitted Liens.
(i) The Powers are duly executed and give the Agent the authority they
purport to confer.
(j) The Acknowledgments have been duly authorized, executed and
delivered by the applicable Subsidiary of Grantor.
(k) The Pledged Stock constitutes, as of the date hereof, all of the
shares of capital stock and voting securities of each Subsidiary of each Grantor
that are not subject to a Security Interest Restriction. The Pledged Notes
constitute the only promissory notes of any Person in favor of the respective
Grantor as of the date hereof.
(l) The pledge of the Pledged Collateral pursuant to this Agreement
does not violate Regulation G, T, U or X.
(m) No consent, authorization, permit, notice or filing is required
(i) in connection with the execution, delivery or performance of this Agreement
by such Grantor, (ii) for the creation, perfection or maintenance of the
security interest or the Liens created hereby (including the maintenance of the
first priority nature of such Lien, except with respect to the property subject
to liens created, or hereafter created, under that certain Inventory and Working
Capital Financing Agreement dated December 1, 1996 between IBM and Grantor, as
the same has been heretofore and may be hereafter amended, supplemented or
modified, and (B) Permitted Liens)), or (iii) for the exercise by the Agent of
its rights and remedies hereunder, except (w) those that have been obtained or
made, (x) filings necessary to create, perfect or retain the perfection or
priority of Liens against such Grantor's Collateral, (y) that certain
Subordination and Intercreditor Agreement between and among IBM, the Agent, the
Purchasers, Issuer and Grantors of even date herewith and (z) with respect to
the Pledged Collateral, as may be required in connection with such disposition
by laws affecting the offering and sale of securities generally.
(n) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived in writing.
SECTION 7. Further Assurances. (a) Each Grantor agrees that, at its
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own expense, such Grantor will, and will cause each of its Subsidiaries to,
promptly execute and deliver all further instruments and documents, and take all
further action which may be reasonably necessary or desirable in the opinion of
the Agent, in order to (x) perfect and
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protect any Lien created or purported to be created hereby, (y) enable the Agent
to exercise and enforce its rights and remedies hereunder with respect to any of
such Grantor's Collateral, and (z) cause the execution, delivery and performance
of this Agreement to be duly authorized, and each Grantor shall, and shall cause
each of its Subsidiaries to, in any event take such action as may be required to
maintain the truthfulness and accuracy of the representations and warranties
contained in Section 6. Without limiting the generality of the foregoing, each
Grantor will: (i) if any Account or other amount payable to any Grantor under or
in connection with any of its Collateral shall be or becomes evidenced by any
promissory note, chattel paper, letter of credit or other negotiable or non-
negotiable instrument, such note, chattel paper, letter of credit or instrument
shall, within five (5) days after such Grantor's receipt thereof, be delivered
to the Agent duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance reasonably satisfactory to the
Agent; (ii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Agent may reasonably determine in its sole discretion to
be necessary or desirable, in order to perfect and preserve the Lien created or
purported to be created hereby; (iii) execute and deliver to the Agent notices,
agreements (including, without limitation, subordination agreements) and other
documents which the Agent may reasonably determine in its sole discretion to be
necessary or desirable, for the purpose of giving advice of and perfecting the
Liens granted to the Agent for its benefit and the ratable benefit of the
Holders and establishing the senior priority thereof over such other parties'
rights and interests in respect of any of each Grantor's Equipment, Inventory or
other Collateral held in the possession of Bailees, lessors, mortgagees or other
third parties, and shall use its best efforts to cause such third parties to
acknowledge or consent to such notices, agreements and other documents; (iv)
within thirty (30) days after the end of each calendar quarter, deliver to the
Agent with respect to any item for which a certificate of title has been issued
by the California Department of Motor Vehicles during such calendar quarter
(other than such certificates subject to Permitted Liens); (v) except with
respect to the deliveries made pursuant to Section 7(a)(iv), upon the request of
the Agent, after the occurrence and during the continuance of an Event of
Default, with respect to any item of Equipment or Inventory of any Grantor, in
either case which is covered by a certificate of title under a statute of any
jurisdiction under the law of which indication of a security interest on such
certificate is required as a condition of perfection thereof, execute and file
with the registrar of motor vehicles or other appropriate authority in such
jurisdiction an application or other document requesting the notation or other
indication of the Lien created hereunder on such certificate of title; (vi) upon
the request of the Agent, within thirty (30) days after the end of each calendar
quarter, deliver to the Agent copies of all such applications or other documents
filed pursuant to a request by the Agent under Section 7(a)(v) during such
calendar quarter and copies of all such certificates of title issued during such
calendar quarter indicating the Lien created hereunder in the items of Equipment
or Inventory covered thereby; and (vii) at the Agent's reasonable request,
appear in and defend any action or proceeding that may adversely affect that
Grantor's title to or the Agent's Lien on all or any material part of the
Collateral.
-11-
(b) Each Grantor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of such Grantor's Collateral without the signature of the respective
Grantor where permitted by law. Each Grantor hereby agrees that a photocopy or
other reproduction of this Agreement or any financing statement covering its
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
(c) Each Grantor will keep and maintain at its own cost and expense,
and will cause each of its Subsidiaries to keep and maintain at their own cost
and expense, records of the Collateral in detail, form and scope consistent with
good business practice, including, without limitation, a record of all payments
received and all credits granted with respect to the Collateral and all other
dealings with the Collateral. If an Event of Default has occurred and is
continuing, for the Agent's further security, upon the Agent's request therefor,
each Grantor shall, and shall cause each of its Subsidiaries to, deliver copies
of, or if reasonably necessary in the opinion of the Agent, turn over originals
of, any such records to the Agent or to its representatives.
(d) Each Grantor will, and will cause each of its Subsidiaries to,
furnish to the Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Agent may reasonably request, all in reasonable
detail, and each Grantor agrees that the Agent or its agents may enter upon the
premises of such Grantor or any of its Subsidiaries, at the expense, as
applicable, of the Grantor or the applicable Subsidiary, during normal business
hours and upon reasonable notice, all as often as may be requested, and at any
time at all on and after the occurrence of a Default which continues beyond the
expiration of any grace or cure period applicable thereto, and which has not
otherwise been waived pursuant to the Note Purchase Agreement or cured, for the
purposes of (i) inspecting and verifying the Collateral, (ii) inspecting and/or
copying (at such Grantor's expense) any and all records pertaining thereto and
(iii) discussing the affairs, finances and business of such Grantor with any
officers, employees and directors of such Grantor or with such Grantor's
auditors. Upon reasonable notice to such Grantor, the Agent or any of the
Agent's officers, employees, agents or auditors shall have the right at any time
or times hereafter to verify with account debtors or other obligors of such
Grantor the validity and amount or any other matter (including, without
limitation, the assertion by account debtors of claims, offsets or
counterclaims) with respect to any of the Collateral.
(e) Each Grantor will, and will cause each of its Subsidiaries to,
advise the Agent promptly, in reasonable detail, (i) of any material Lien or
claim made or asserted against any of the Collateral, (ii) of any material
change in the composition of the Collateral, and (iii) of the occurrence of any
other event which would have a material adverse effect on the aggregate value of
the Collateral or on the Liens created hereunder.
SECTION 8. Transfers of Collateral. Each Grantor agrees that it will
-----------------------
not, nor will it permit any of its Subsidiaries to (a) directly or indirectly,
sell, lease, assign, transfer or
-12-
otherwise dispose of, or grant any option with respect to, any of the
Collateral, or any part thereof or interest therein, except as expressly
authorized under the Note Purchase Agreement, (b) directly or indirectly create,
incur, assume, or suffer to exist any Lien on any of the Pledged Collateral now
owned or hereafter acquired except for the Lien under this Agreement and
Permitted Liens, or (c) enter into any agreement or understanding that purports
to or may restrict or inhibit the Agent's rights or remedies hereunder,
including, without limitation, the Agent's right to sell or otherwise dispose of
the Pledged Collateral.
SECTION 9. Place of Perfection; Name Changes; Records. None of the
------------------------------------------
Grantors shall (a) change its name, identity or structure or adopt or use any
trade or fictitious name not specified as a current trade or fictitious name on
Exhibit D, or use any existing trade or fictitious name in any jurisdiction not
---------
specified for such name on Exhibit D, (b) change any location of its chief
executive office, place of business or place where records concerning its
Accounts, Related Contracts and chattel paper are maintained from the locations
specified on Exhibit E or Exhibit F or (c) change any location of any Collateral
--------- ---------
or jurisdiction where Lessees are located from the locations specified in
Exhibit F, unless, in each case, the applicable Grantor shall have given the
---------
Agent at least thirty (30) Business Days' prior written notice of any such
change. At least ten (10) Business Days prior to any such change referred to in
the preceding sentence, the applicable Grantor shall prepare and deliver to the
Agent amended exhibit(s) reflecting such change(s) and execute and deliver to
the Agent any financing statements or other documents required by the Agent, all
in form and substance reasonably satisfactory to the Agent, and take all other
actions required by Section 7.
SECTION 10. Covenants Regarding Accounts and Related Contracts. (a)
--------------------------------------------------
Each Grantor shall, at its expense, perform and observe all of the material
terms and provisions of the Related Contracts, service agreements, contracts of
sale, distribution agreements, employment agreements, acquisition agreements,
rental contracts, leases and chattel paper to be performed or observed by it,
maintain the Related Contracts, service agreements, contracts of sale,
distribution agreements, employment agreements, acquisition agreements, rental
contracts, leases and chattel paper in full force and effect and enforce the
Related Contracts in accordance with their terms, except for such Related
Contracts, service agreements, employment agreements, acquisition agreements,
contracts of sale, distribution agreements, rental contracts, leases and chattel
paper with respect to which the aggregate amount payable thereunder is not
Material.
(b) In any suit, proceeding or action brought by the Agent under any
account comprising part of the Collateral, the Grantors jointly and severally
agree to save, indemnify and keep the Agent and each Holder harmless from and
against all expense, loss or damages suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the obligor
thereunder, arising out of a breach by the applicable Grantor of any obligation
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 the applicable
Grantor, and all such obligations of the applicable Grantor shall be and shall
remain enforceable against and only against the applicable Grantor and shall not
be enforceable against the Agent or any Holder.
-13-
SECTION 11. Covenants Regarding Equipment and Inventory. (a) If any
-------------------------------------------
Equipment or Inventory of any Grantor is in the possession or control of any
Bailee or any of such Grantor's agents, such Grantor shall notify such Bailee or
agent of the Agent's Lien on such Equipment or Inventory and, upon the Agent's
request, direct such Bailee or agent to hold all such Equipment or Inventory for
the Agent's account and subject to the Agent's instructions.
(b) Upon the request of the Agent, each Grantor will promptly deliver
to the Agent a schedule, if available, listing all Equipment disposed of by such
Grantor, and the book value thereof, in the then-current (or any prior) fiscal
year.
(c) Each Grantor will, upon request of the Agent, submit to the Agent
a current listing, if available, of all of such Grantor's Equipment, which
listing shall indicate the type, model, serial number and location of such
Equipment.
(d) Each Grantor shall promptly upon the issuance and delivery to the
respective Grantor of any negotiable document of title, upon the request of the
Agent after the occurrence and during the continuance of an Event of Default,
deliver such negotiable document of title to the Agent.
SECTION 12. Voting Rights. During the term of this Agreement, and
-------------
except as provided in the next sentence of this Section 12, each Grantor shall
----------
have the right to vote its Pledged Stock on all corporate questions in a manner
not inconsistent with the terms of this Agreement, the Note Purchase Agreement
and any other agreement, instrument or document executed pursuant thereto or in
connection therewith, and in a manner that would not have a material adverse
effect on the value of the Pledged Stock and the related Pledged Collateral or
any part thereof. After the occurrence and during the continuance of an Event of
Default, the Agent may, at the Agent's option and following written notice from
the Agent to the Grantors, exercise all voting powers pertaining to the
Grantors' Pledged Collateral, including the right to take shareholder action by
written consent, and the Grantors hereby irrevocably constitute and appoint the
Agent as the Grantors' proxy and attorney-in-fact, with full power of
substitution, to do so. This proxy shall be irrevocable and shall continue until
the termination of this Agreement in accordance with Section 23.
----------
SECTION 13. Dividends and Other Distributions. (a) So long as no Event
---------------------------------
of Default shall have occurred or would result therefrom:
(i) subject to Section 4 hereof and the provisions of the Note
Purchase Agreement, each Grantor shall be entitled to receive, retain and
utilize all dividends, interest and principal paid in respect of its Pledged
Collateral unless any such dividend, interest or principal is not permitted to
be paid under the terms of the Note Purchase Agreement; and
(ii) the Agent shall execute and deliver (or cause to be executed and
delivered) to the respective Grantors all such proxies and other instruments as
any such Grantor may
-14-
reasonably request for the purpose of enabling such Grantor to receive the
dividends, interest or principal payments which it is authorized to receive,
retain and utilize pursuant to clause (i) above.
(b) Except as may otherwise be provided in the Note Purchase
Agreement, after the occurrence and during the continuance of an Event of
Default, or if any of the following would result in an Event of Default if paid
to a Grantor:
(i) all rights of any Grantor to receive dividends, interest and
principal payments in respect of the Pledged Collateral shall cease, and all
such rights shall thereupon become vested in the Agent, for the benefit of the
Agent and the ratable benefit of the Holders, which shall thereupon have the
sole right to receive and hold as Pledged Collateral such dividends, interest
and principal payments; and
(ii) all dividends, interest and principal payments which are received
by any Grantor contrary to the provisions of clause (i) of this Section 13(b)
---------- -------------
shall be received in trust for the Agent, for the benefit of the Agent and the
ratable benefit of the Holders, shall be segregated from other funds of the
respective Grantor and shall be paid over immediately to the Agent as Pledged
Collateral in the same form as so received (with any necessary indorsements).
(c) Except as may otherwise be provided in the Note Purchase
Agreement, any and all (i) dividends, interest and principal paid or payable
other than in cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for, any
Pledged Collateral, (ii) dividends and other distributions paid or payable in
cash received, receivable or otherwise distributed in respect of any Pledged
Stock in connection with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-in-surplus, and
(iii) cash paid, payable or otherwise distributed in redemption of, or in
exchange for, any Pledged Stock, shall in each case be delivered forthwith to
the Agent to hold as Pledged Collateral and shall, if received by a Grantor, be
received in trust for the Agent, for the benefit of Holders, be segregated from
other funds of the respective Grantor, and be paid over immediately to the Agent
as Pledged Collateral in the same form as so received (with any necessary
indorsements).
SECTION 14. Intentionally Omitted.
---------------------
SECTION 15. Agent Appointed Attorney-in-Fact. Each Grantor hereby
--------------------------------
irrevocably appoints the Agent such Grantor's attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of such Grantor
or otherwise, from time to time in the Agent's discretion, to take any action
and to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, subject to the Agent's authority as
provided in the Note Purchase Agreement, including, without limitation:
-15-
(a) after the occurrence and during the continuance of an Event of
Default, to ask, demand, collect, ▇▇▇ for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in connection
with any of the Collateral;
(b) after the occurrence and during the continuance of an Event of
Default, to receive, indorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
----------
(c) after the occurrence and during the continuance of an Event of
Default, to file any claims or take any action or institute any proceedings
which the Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Agent with respect to any
of the Collateral;
(d) after the occurrence and during the continuance of an Event of
Default, to discharge any Lien or encumbrance on or against any of the
Collateral or bond the same;
(e) to give any notices and record any Liens;
(f) to make any payments or take any acts which the Agent deems
reasonably necessary or desirable to protect the Lien of the Agent, for the
benefit of the Holders, on the Collateral;
(g) after the occurrence and during the continuance of an Event of
Default, to execute and give receipt for any certificate of ownership or any
document or title; and
(h) after the occurrence and during the continuance of an Event of
Default, to transfer title to any item of Collateral.
All Persons dealing with the Agent, or any employee or agent of the Agent acting
pursuant hereto, or any substitute attorney-in-fact for the Agent, shall be
fully protected in treating the powers and authorities conferred by this Section
-------
15 as existing and continuing in full force and effect. Each Grantor hereby
--
ratifies all that such attorney-in-fact shall lawfully do or cause to be done by
virtue hereof. This power of attorney is coupled with an interest and shall be
irrevocable. This power of attorney shall terminate upon the termination of
this Agreement pursuant to Section 23.
----------
SECTION 16. Agent May Perform. If any Grantor fails to perform any
-----------------
agreement contained herein, the Agent, after giving prior notice to such
Grantor, may itself perform, or cause performance of, such agreement, and the
expenses of the Agent incurred in connection therewith shall be payable by the
applicable Grantor to the Agent upon demand by the Agent.
SECTION 17. The Agent's Rights and Duties. The powers conferred on
-----------------------------
the Agent and the Holders hereunder are solely to protect their interest in the
Collateral and shall
-16-
not impose any duty upon any of them to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall have no duty as to any
Collateral. Without limiting the generality of the foregoing sentence, the Agent
shall be under no obligation to (a) ascertain or take action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Collateral, whether or not the Agent has or is deemed to have
knowledge of such matters, but may do so at its option or (b) take any steps
necessary to preserve rights in the Pledged Collateral against any other parties
but may do so at its option. All expenses incurred in connection therewith shall
be for the sole account of the applicable Grantor, and shall constitute part of
its Obligations secured hereby. Any action taken or omitted to be taken by the
Agent in connection with any of the Collateral shall not result in any liability
of the Agent to any Grantor unless such action or omission shall be determined
by a court of competent jurisdiction to have arisen solely out of the gross
negligence or willful misconduct of the Agent. The Agent may exercise any of its
rights and execute any of its duties hereunder by or through agents or employees
and shall be entitled to advice of counsel concerning all matters pertaining to
its rights and duties hereunder.
SECTION 18. Remedies. If any Event of Default shall have occurred and
--------
be continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein, in the Note Purchase
Agreement, or otherwise available to it, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect in any
relevant jurisdiction at that time (the "UNIFORM COMMERCIAL CODE") (whether or
not the Uniform Commercial Code applies to the affected Collateral), and also
may (i) without notice, demand or legal process of any kind, all of which each
Grantor hereby waives to the extent permitted by applicable law, at any time or
times notify the account debtors or obligors under any Accounts, chattel paper,
instruments or General Intangibles of the assignment of such Collateral to the
Agent and to direct such account debtors or obligors to make payment of all
amounts due or to become due to the respective Grantors thereunder directly to
the Agent, to notify each Person maintaining a lockbox or similar arrangement to
which account debtors or obligors under any Accounts, chattel paper, instruments
or General Intangibles have been directed to make payment to remit all amounts
representing collections on checks and other payment items from time to time
sent to or deposited in such lockbox or other arrangement directly to the Agent
and, upon such notification and at the expense of the respective Grantors, to
accelerate or extend the time of payment, compromise, issue credits, or bring
suit on such Collateral (in the name of the respective Grantors or the Holders)
and otherwise administer and collect such Collateral, in the same manner and to
the same extent as the respective Grantors might have done; (ii) without notice,
demand or legal process of any kind, all of which each Grantor hereby waives to
the extent permitted by applicable law, at any time or times enter any premises
where any Collateral may be located and take physical possession of the
Collateral and maintain such possession on the premises, at no cost to the
Agent, or remove the Collateral or any part thereof, to such other places as the
Agent may desire; (iii) without notice, demand or legal
-17-
process of any kind, all of which each Grantor hereby waives to the extent
permitted by applicable law, at any time or times enter any premises where any
Collateral may be located and use, manage, operate and control the Collateral
thereon and the relevant business and property to preserve the Collateral;
exclude any third parties, whether or not claiming under such Grantor, from any
such premises and property; complete any unfinished Inventory, make repairs,
replacements, alterations, additions and improvements to the Collateral; and,
dispose of all or any portion of the Collateral in the ordinary course of
business; (iv) require any Grantor to, and each Grantor hereby agrees that it
will at its own expense and upon request of the Agent forthwith, assemble all or
part of its Collateral as directed by the Agent and make it available to the
Agent at a place or places to be designated by the Agent that is reasonably
convenient for both parties, and deliver possession of said Collateral or any
part thereof to the Agent; and (v) without notice, except as specified below,
sell, lease, assign, grant an option or options to purchase or otherwise dispose
of the Collateral or any part thereof in one or more parcels with or without
advertisement, at any exchange, broker's board, public or private sale, at any
of the Agent's offices or elsewhere, for cash, on credit, for future delivery,
or otherwise, and upon such other terms as the Agent may deem commercially
reasonable. Any repossession, retaking, sale, or other disposition of the
Collateral by the Agent shall not operate to release the respective Grantor from
its obligations hereunder. The Agent and each Holder may, in its own name or in
the name of a designee or nominee, bid for or purchase the Collateral at any
public sale and, if permitted by applicable law, buy the Collateral at any
private sale. Each purchaser of any or all of the Collateral so sold shall
thereafter own the same, absolutely free from any claim, encumbrance or right of
any kind whatsoever on the part of any Grantor, and each Grantor hereby waives,
to the extent permitted by applicable law, all rights of redemption, appraisal,
valuation, stay, extension or moratorium now or hereafter in force in order to
prevent or delay the enforcement of this Agreement, or the absolute sale of the
whole or any part of the Collateral or the possession thereof by any purchaser
at any sale hereunder. Each Agent agrees that, to the extent notice of sale
shall be required by law, the Agent shall provide such notice as is commercially
reasonable, which shall not be less than five (5) Business Days' notice to the
applicable Grantor(s) of the time and place of any public sale or the time after
which any private sale is to be made. The Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned, provided, however, that
-------- -------
Agent provides commercially reasonable notice to Grantor of the time and place
to which the sale was adjourned. Each Grantor hereby waives any claims against
the Agent arising by reason of the fact that the price at which any Collateral
may have been sold at such a private sale was less than the price which might
have been obtained at a public sale, even if the Agent accepts the first offer
received and does not offer such Collateral to more than one offeree; provided
--------
that such sale was conducted in a commercially reasonable manner.
(b) Any cash held by the Agent as Collateral and all cash proceeds
received by the Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion of the
Agent, be held by the Agent as collateral for,
-18-
and/or then or at any time thereafter be applied in whole or in part by the
Agent for its benefit and for the ratable benefit of the Holders against, all or
any part of the respective Grantor's Secured Obligations in such order as the
Agent shall elect, subject to any provision of the Note Purchase Agreement
governing the application of such cash, proceeds, or other realization upon the
Collateral. If the proceeds of any sale or other disposition of the Collateral
of a Grantor are insufficient to pay all of the Secured Obligations of such
Grantor, such Grantor shall be liable for the deficiency, in addition to any
fees, expenses or other amounts required to be paid pursuant to the Note
Purchase Agreement to collect such deficiency. Any surplus of such cash or cash
proceeds held by the Agent and remaining after payment in full of all Secured
Obligations shall be promptly paid to the applicable Grantor or to whomsoever
may be lawfully entitled to receive such surplus.
(c) Each Grantor hereby consents to the voluntary dismissal by the
Agent of any judicial action, prejudgment or otherwise, brought by the Agent,
and each Grantor further consents to the exoneration of any bond that the Agent
files in such action.
SECTION 19. Registration Rights. (a) In the event that the Agent
-------------------
determines, after the occurrence and during the continuance of an Event of
Default, to exercise its right to sell the Pledged Stock pursuant to Section 18,
----------
each Grantor shall, upon the request of the Agent, at each Grantor's expense:
(i) execute and deliver, and cause each issuer of Pledged Stock and
its respective officers and directors to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts
and things, as may be necessary or, in the opinion of the Agent, the
applicable Grantor or its or their counsel, advisable to register the
applicable Pledged Collateral under the provisions of the Securities Act of
1933, as amended (the "SECURITIES ACT") and to exercise its reasonable
efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the Agent,
the applicable Grantor or its or their counsel, are necessary or advisable,
all in conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto;
(ii) use its reasonable efforts to qualify its Pledged Collateral
under state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of its Pledged Collateral, as requested
by the Agent;
(iii) cause any Subsidiary which has issued Pledged Collateral (or
any of them) to make available to the holders of its securities, as soon as
practicable, earnings statements which will satisfy the provisions of
Section 11(a) of the Securities Act; and
-19-
(iv) do or cause to be done all such other acts and things as may be
reasonably necessary to make such sale of its Pledged Collateral or any
part thereof valid and binding and in compliance with applicable law.
The Grantors will reimburse the Agent for all expenses incurred by the Agent,
including, without limitation, reasonable attorneys' and accountants' fees and
expenses in connection with the foregoing. Upon or at any time after the
occurrence and during the continuance of an Event of Default, if the Agent
determines that, prior to any public offering of any securities constituting
part of the Pledged Collateral, such securities should be registered under the
Securities Act and/or registered or qualified under any other federal or state
law and such registration and/or qualification is not practicable, then the
Grantors agree that it will be commercially reasonable if a private sale is
arranged so as to avoid a public offering, even though the sales price
established and/or obtained at such private sale may be substantially less than
prices which could have been obtained for such security on any market or
exchange or in any other public sale. In so doing, the Agent may restrict the
bidders and prospective purchasers to those who are qualified and will represent
and agree that they are purchasing for investment only and not for distribution,
and the Agent may solicit offers to buy the Pledged Collateral, or any part of
it, from a limited number of investors deemed by the Agent, in its reasonable
judgment, to be financially responsible parties who might be interested in so
purchasing the Pledged Collateral. If the Agent solicits such offers from not
less than four (4) such investors, then the acceptance by the Agent of the
highest offer obtained therefrom shall be deemed to be a commercially reasonable
method of disposing of such Pledged Collateral. The Agent shall be under no
obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the registrant to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if the applicable Grantor or the issuer of the Pledged Collateral would agree to
do so.
(b) In addition to a private sale as provided above in Section
-------
19(a), if any of the Pledged Collateral shall not be freely distributable to the
-----
public without registration under the Securities Act (or similar statute) at the
time of any proposed sale pursuant to this Section 19, then the Agent shall not
----------
be required to effect such registration or cause the same to be effected but, in
its discretion (subject only to applicable requirements of law), may require
that any sale hereunder (including a sale at auction) be conducted subject to
restrictions (i) as to the financial sophistication and ability of any Person
permitted to bid or purchase at any such sale, (ii) as to the content of legends
to be placed upon any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof, (iii) as to the
representations required to be made by each Person bidding or purchasing at such
sale relating to that Person's access to financial information about the
pertinent issuer of Pledged Collateral and such Person's intentions as to the
holding of the Pledged Collateral so sold for investment, for its own account,
and not with a view of the distribution thereof, and (iv) as to such other
matters as the Agent may, in its discretion, deem necessary or appropriate in
order that such sale (notwithstanding any failure so to register) may be
effected in compliance with the Uniform Commercial Code as in effect in the
State of California or any other relevant
-20-
jurisdiction and other laws affecting the enforcement of creditors' rights and
the Securities Act and all applicable state securities laws.
SECTION 20. Waivers. Each Grantor waives presentment and demand for
-------
payment of any of the Obligations, protest and notice of dishonor or Event of
Default with respect to any of the Obligations and all other notices to which
any Grantor might otherwise be entitled, except as otherwise expressly provided
herein or in the Note Purchase Agreement.
SECTION 21. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement, and no consent to any departure by any Grantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Grantor and the Holders (or by the Agent on their behalf), except as
otherwise provided in the Note Purchase Agreement, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 22. Notices, Etc. All notices and other communications
------------
provided for hereunder shall be given in the manner and to the addresses set
forth in the Note Purchase Agreement, except that any notice provided by any
Grantor to the Agent hereunder shall be effective only upon receipt thereof by
the Agent.
SECTION 23. Continuing Lien; Assignments under Note Purchase
------------------------------------------------
Agreement; Termination; Payments Set Aside. This Agreement shall create a
------------------------------------------
continuing Lien on the Collateral and shall (i) remain in full force and effect
until the payment in full of the Secured Obligations, (ii) be binding upon each
Grantor, its successors and permitted assigns (which shall include, without
limitation, such Grantor's receivers, trustees or debtors-in-possession), and
(iii) inure to the benefit of, and be enforceable by, the Agent, the Holders and
their respective successors, transferees and permitted assigns. Without limiting
the generality of the foregoing clause (iii), any Holder may assign or otherwise
------------
transfer all or any portion of its rights and obligations under the Note
Purchase Agreement in accordance with the terms thereof and any Note held by it
(subject to the terms of the Note Purchase Agreement), to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Holder herein or otherwise. None of the Grantors shall
assign this Agreement, or any rights or obligations hereunder, without the prior
written consent of the Agent and the Holders. Upon the payment in full of the
Secured Obligations, the Lien granted hereby shall terminate and all rights to
the Collateral shall revert to the respective Grantor. At such time, the Agent
shall, at the request and expense of the Grantors, reassign and redeliver to the
respective Grantor all of the Collateral hereunder which has not been sold,
disposed of, retained or applied by the Agent in accordance with the terms of
this Agreement. Such reassignment and redelivery shall be without warranty by or
recourse to the Agent, except as to the absence of any prior assignments by the
Agent of its interest in the Collateral, and shall be at the expense of the
respective Grantor. To the extent that any Grantor makes a payment or payments
to the Agent or any Holder, or the Agent or the Holders enforce their Liens or
exercise their rights of set-off, and such payment or payments or the proceeds
of such enforcement or set-off or any part thereof are subsequently invalidated,
declared to be fraudulent
-21-
or preferential, set aside and/or required to be repaid to a trustee, receiver
or any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or set-off had not occurred.
SECTION 24. Survival of Representations and Warranties. Each Grantor
------------------------------------------
covenants, warrants, and represents to the Agent and the Holders that all
representations and warranties of such Grantor contained in this Agreement shall
be true at the time of such Grantor's execution of this Agreement, shall survive
the execution, delivery and acceptance hereof by the parties hereto and the
closing of the transactions described in the Note Purchase Agreement and the
other Note Documents and shall continue in effect until all of the Secured
Obligations shall have been paid in full and the Note Purchase Agreement has
been terminated.
SECTION 25. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND
-------------
ENFORCEMENT OF THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE,
SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS
PROVISIONS) AND DECISIONS OF THE STATE OF CALIFORNIA, EXCEPT AS REQUIRED BY
MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE LIEN HEREUNDER, OR ANY OF THE REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL, MAY BE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF CALIFORNIA.
SECTION 26. SUBMISSION TO JURISDICTION. ALL DISPUTES AMONG THE
--------------------------
GRANTORS AND THE HOLDERS (OR THE AGENT ACTING ON THEIR BEHALF), WHETHER SOUNDING
IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE AND
FEDERAL COURTS LOCATED IN LOS ANGELES, CALIFORNIA, AND THE COURTS TO WHICH AN
APPEAL THEREFROM MAY BE TAKEN; PROVIDED, HOWEVER, THAT THE AGENT, ON BEHALF OF
-------- -------
THE HOLDERS, SHALL HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO
PROCEED AGAINST THE GRANTORS OR THEIR RESPECTIVE PROPERTY IN ANY LOCATION
REASONABLY SELECTED BY THE AGENT IN GOOD FAITH TO ENABLE THE AGENT TO REALIZE ON
SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
AGENT. EACH OF THE GRANTORS AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY COLLECTION PROCEEDING BROUGHT BY
THE AGENT. EACH OF THE GRANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH THE AGENT HAS COMMENCED A PROCEEDING, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
-22-
SECTION 27. INTENTIONALLY OMITTED.
SECTION 28. JURY TRIAL. THE GRANTORS, THE AGENT AND THE PURCHASERS
----------
EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY. INSTEAD, ANY DISPUTES WILL BE
RESOLVED IN A BENCH TRIAL.
SECTION 29. LIMITATION OF LIABILITY. NONE OF THE AGENT OR THE HOLDERS
-----------------------
SHALL HAVE ANY LIABILITY TO THE GRANTORS (WHETHER SOUNDING IN TORT, CONTRACT, OR
OTHERWISE) FOR LOSSES SUFFERED BY THE GRANTORS OR THEIR RESPECTIVE SUBSIDIARIES,
AND EACH OF THE GRANTORS HEREBY WAIVES AND RELEASES ANY CLAIMS, IN CONNECTION
WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE TRANSACTIONS OR RELATIONSHIPS
CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN
CONNECTION HEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE
JUDGMENT OR COURT ORDER BINDING ON THE AGENT OR ANY SUCH HOLDER, THAT THE LOSSES
WERE THE RESULT OF ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, BREACH OF CONTRACT OR KNOWING OR GROSSLY NEGLIGENT VIOLATIONS OF
APPLICABLE REQUIREMENTS OF LAW. EACH OF THE GRANTORS AGREES NOT TO ASSERT ANY
CLAIM AGAINST ANY OF THE AGENT OR ANY HOLDER ON ANY THEORY OF LIABILITY FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF, OR IN ANY
WAY IN CONNECTION WITH, THE OBLIGATIONS OR ANY OTHER MATTERS GOVERNED BY THIS
AGREEMENT OR THE OTHER NOTE DOCUMENTS.
SECTION 30. Severability. In case any provision in or obligation
------------
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations shall not in any way be affected or impaired thereby.
SECTION 31. Protection of Collateral. The Agent shall have the right
------------------------
(but shall not be obligated) to make payments and take actions it deems
reasonably necessary to protect its Lien on the Collateral. The Grantors shall
reimburse the Agent for all such payments made, and expenses incurred with
respect to such actions taken, by the Agent, which amounts and expenses shall be
secured under this Agreement, and the Grantors shall be bound by any such
payment made or action taken by the Agent.
SECTION 32. No Waiver; Remedies. No failure on the part of any Holder
-------------------
or the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided in the Note Purchase Agreement, any other
Note Document, in equity, or by law.
-23-
SECTION 33. Marshalling; Recourse to Security. None of the Holders or
---------------------------------
the Agent shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of any
Grantor or any other party or against or in payment of any or all of the Secured
Obligations. Recourse to security shall not be required at any time.
SECTION 34. Construction. (a) The parties acknowledge that each party
------------
and its counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
(b) The words "hereof", "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement and section and exhibit
references are to this Agreement and to its attachments unless otherwise
specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
---- -----
specified.
(d) Unless otherwise defined herein or in the Note Purchase
Agreement, terms used in Article 9 of the Uniform Commercial Code in effect in
the State of California are used herein as therein defined.
SECTION 35. Headings. Section headings in this Agreement are included
--------
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
SECTION 36. Additional Grantors. The initial Grantors hereunder shall
-------------------
be WMT, STG, SMS, INET, SDI, SII, and SDS. From time to time after the date
hereof, additional Subsidiaries of the Obligors may become Guarantors under the
Note Purchase Agreement in accordance with Section 6.17 of the Note Purchase
Agreement. Such additional Subsidiaries (each, an "ADDITIONAL GRANTOR") shall
become a party to this Guarantor Security and Pledge Agreement by executing a
counterpart of this Agreement. Upon delivery of any such counterpart to the
Agent, notice of which is hereby waived by the other 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 hereof. Each Additional Grantor
shall deliver at the time of delivery of such counterpart additional schedules
hereto, and deliver or cause to be delivered such Pledged Collateral,
Acknowledgments and Powers, which are necessary to make its representations and
warranties made herein true and correct, together with any other documents which
the Agent may reasonably request. 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 the
Agent or the Holders not to cause any Subsidiary of any Obligor to become an
Additional Grantor hereunder. This 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.
-24-
SECTION 37. Execution in Counterparts; Effectiveness. This Agreement
----------------------------------------
and any waiver or amendment hereto may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. This Agreement shall become effective on
the date on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent pursuant to the provisions of the Note Purchase Agreement and of this
Agreement concerning notices.
* * *
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
GRANTORS:
---------
WMT Acquisition Corp., SAVOIR TECHNOLOGY GROUP, INC.,
a California corporation, a Delaware corporation,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer Chief Financial Of
STAR MANAGEMENT SERVICES, INC., INET SYSTEMS, INC.,
a Delaware corporation, a Texas corporation,
By: /s/ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ By: /s/ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
----------------------------- -----------------------------
Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
President President
STAR DATA INTERNATIONAL, STAR DATA SYSTEMS, INC.,
a company organized under the laws a Texas corporation
of the virgin Islands
By: /s/ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ By: /s/ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
----------------------------- -----------------------------
Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
President President
SIRIUS INVESTMENTS, INC., AGENT:
a Nevada corporation -----
CANPARTNERS INVESTMENTS IV, LLC,
By: /s/ Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ a California limited liability company,
-----------------------------
Carlton ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ as Agent
President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorney-In-Fact
SIGNATURE PAGE 1 OF 1
EXHIBIT A
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Pledged Collateral
------------------
GRANTOR
-------
WMT Acquisition Corp.
Pledged Stock Certificates: None.
--------------------------
Pledged Notes: None.
-------------
GRANTOR
-------
Savoir Technology Group, Inc.
Pledged Stock Certificates: None.
--------------------------
Pledged Notes: None.
-------------
GRANTOR
-------
Star Management Services, Inc.
Pledged Stock Certificates: Sirius Investments, Inc.
--------------------------
Percentage of Issued and Outstanding Capital Stock Owned by the Pledgor:
100%
Shares of Capital Stock Owned by Pledgor Subject to Pledge: 3,000
Pledged Notes: None.
-------------
GRANTOR
-------
Sirius Investments, Inc.
Pledged Stock Certificates: Star Data Systems, Inc.
--------------------------
Percentage of Issued and Outstanding Capital Stock Owned by the Pledgor:
100%
Shares of Capital Stock Owned by Pledgor Subject to Pledge: 3,000
Pledged Notes: None.
-------------
GRANTOR
-------
Star Data Systems, Inc.
Pledged Stock Certificates: INET Systems, Inc.
--------------------------
Percentage of Issued and Outstanding Capital Stock Owned by the Pledgor:
100%
Shares of Capital Stock Owned by Pledgor Subject to Pledge: 1,000
Pledged Stock Certificates: Star Data International, Inc.
--------------------------
Percentage of Issued and Outstanding Capital Stock Owned by the Pledgor:
100%
Shares of Capital Stock Owned by Pledgor Subject to Pledge: 1,000
Pledged Notes: None.
-------------
GRANTOR
-------
INET Systems, Inc.
Pledged Stock Certificates: None.
--------------------------
Pledged Notes: None.
-------------
2
GRANTOR
-------
Star Data International, Inc.
Pledged Stock Certificates: None.
--------------------------
Pledged Notes: None
-------------
3
EXHIBIT B
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Form of Acknowledgment
----------------------
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Guarantor Security and Pledge Agreement, agrees promptly to note on its books
and records the Liens granted under such Guarantor Security and Pledge
Agreement, and waives any rights or requirement at any time hereafter to receive
a copy of such Guarantor Security and Pledge Agreement in connection with the
registration of any Pledged Collateral in the name of the Agent or its nominee
or the exercise of voting rights by the Agent.
[NAME OF ISSUER OF PLEDGED STOCK]
By: _______________________
Name:
Title:
4
EXHIBIT C
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Form of Stock Power
-------------------
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer to ______________________________ all of its right, title and interest
in and to ______________ shares of the capital stock of _______________, a
______________ corporation, represented by Certificate No. ______ (the "Stock"),
standing in the name of the undersigned on the books of said corporation and
does hereby irrevocably constitute and appoint _____________________ as the
undersigned's true and lawful attorney, for it and in its name and stead, to
sell, assign and transfer all or any of the Stock and for that purpose to make
and execute all necessary acts of assignment and transfer thereof.
Dated: _____________
[NAME OF GRANTOR]
By: ________________________
Name:
Title:
5
EXHIBIT D
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Corporate or Fictitious Names; Tax Identification Number
--------------------------------------------------------
WMT ACQUISITION CORP.
---------------------
Exact Corporate Name: WMT Acquisition Corp.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
SAVOIR TECHNOLOGY GROUP, INC.
-----------------------------
Exact Corporate Name: Savoir Technology Group, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
STAR MANAGEMENT SERVICES, INC.
------------------------------
Exact Corporate Name: Star Management Services, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
6
INET SYSTEMS, INC.
------------------
Exact Corporate Name: INET Systems, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
STAR DATA INTERNATIONAL, INC.
----------------------------
Exact Corporate Name: Star Data International, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
SIRIUS INVESTMENTS, INC.
-----------------------
Exact Corporate Name: Sirius Investments, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
STAR DATA SYSTEMS, INC.
----------------------
Exact Corporate Name: Star Data Systems, Inc.
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Other Corporate,
Trade or Fictitious Names Jurisdictions Used
------------------------- ------------------
None.
7
EXHIBIT E
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Address Where Records Concerning Accounts Are Located
-----------------------------------------------------
and Principal Place of Business
-------------------------------
WMT ACQUISITION CORP.
--------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
SAVOIR TECHNOLOGY GROUP, INC.
----------------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
STAR MANAGEMENT SERVICES, INC.
-----------------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
8
INET SYSTEMS, INC.
-----------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
STAR DATA INTERNATIONAL, INC.
----------------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
5144 Droinningens ▇▇▇▇
Suite 300
Charlotte Amalie
St. ▇▇▇▇▇▇, Virgin Islands 00802
Other Addresses
---------------
None.
SIRIUS INVESTMENTS, INC.
-----------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
9
STAR DATA SYSTEMS, INC.
----------------------
Chief Executive Office and Principal Place of Business
------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Other Addresses
---------------
None.
10
EXHIBIT F
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as of September 30, 1997
Locations of Inventory and Equipment
------------------------------------
WMT ACQUISITION CORP.
--------------------
Locations Owned or Leased by the Grantor
----------------------------------------
None.
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
11
SAVOIR TECHNOLOGY GROUP, INC.
----------------------------
Locations Owned or Leased by the Grantor
----------------------------------------
None.
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
STAR MANAGEMENT SERVICES, INC.
-----------------------------
Locations Owned or Leased by the Grantor
----------------------------------------
None.
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
12
INET SYSTEMS, INC.
-----------------
Locations Owned or Leased by the Grantor
----------------------------------------
None.
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
13
STAR DATA INTERNATIONAL, INC.
----------------------------
Locations Owned or Leased by the Grantor
----------------------------------------
Name and Address of Lessor,
Sublessor, Lessee, Sublessee
Address and/or Mortgagee, if any
------- ------------------------
5144 Droinningens ▇▇▇▇ None; address for Foreign Sales
Suite 300 Corporation purposes only
Charlotte Amalie
St. ▇▇▇▇▇▇, Virgin Islands 00802
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
14
SIRIUS INVESTMENTS, INC.
-----------------------
Locations Owned or Leased by the Grantor
----------------------------------------
None.
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None.
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
STAR DATA SYSTEMS, INC.
----------------------
Locations Owned or Leased by the Grantor
----------------------------------------
Name and Address of Lessor,
Sublessor, Lessee, Sublessee
Address and/or Mortgagee, if any
------- ------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇ Maribal Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Byco, Inc.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jurisdictions where Lessees are Located
---------------------------------------
None.
Bailees
-------
None
15
Names and Mailing Address of Bailees/
-------------------------------------
Address where Bailee Holds Collateral
-------------------------------------
None.
16
EXHIBIT G
to
GUARANTOR SECURITY AND PLEDGE AGREEMENT
dated as september 30, 1997
Property Subject to a Security Interest Restriction
---------------------------------------------------
All Grantors: None.
17