SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement"), dated
as of August 29, 2000, is by and among the parties identified as
"Grantors" on the signature pages hereto and such other parties as
may become Grantors hereunder after the date hereof (individually
a "Grantor", and collectively the "Grantors") and BANK OF
AMERICA, N.A., as collateral agent (in such capacity, the
"Collateral Agent") for the holders of the Secured Obligations
referenced below.
W I T N E S S E T H
WHEREAS, a $125 million credit facility has been established
in favor of RehabCare Group, Inc., a Delaware corporation (the
"Borrower"), pursuant to the terms of that Credit Agreement dated
as of the date hereof (as amended, modified, increased, extended,
renewed or replaced, the "Credit Agreement") among the Borrower,
the subsidiaries and affiliates identified therein, as
guarantors, the lenders identified therein and Bank of America,
N.A., as Administrative Agent;
WHEREAS, this Security Agreement is required under the terms
of the Credit Agreement;
NOW, THEREFORE, in consideration of these premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Terms used herein but not otherwise
defined herein shall have the meanings assigned to such terms in
the Credit Agreement. In addition, the following terms which are
defined in the Uniform Commercial Code in effect on the date
hereof in the State of North Carolina are used herein as so
defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Farm Products, Fixtures, General Intangibles,
Instruments, Inventory, Investment Property and Proceeds. As
used herein:
"Copyright License" means any written agreement, naming
any Grantor as licensor, granting any right under any
Copyright including, without limitation, any thereof
referred to in Schedule 1(b) hereto.
"Copyrights" means (a) all registered United States
copyrights in all Works, now existing or hereafter created
or acquired, all registrations and recordings thereof, and
all applications in connection therewith, including, without
limitation, registrations, recordings and applications in
the United States Copyright office including, without
limitation, any thereof referred to in Schedule 1(b) hereto,
and (b) all renewals thereof including, without limitation,
any thereof referred to in Schedule 1(b) hereto.
"Patent License" means any agreement, whether written
or oral, providing for the grant by or to a Grantor of any
right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, any thereof referred
to in Schedule 1(b) hereto.
"Patents" means (a) all letters patent of the United
States or any other country and all reissues and extensions
thereof, including, without limitation, any letters patent
referred to in Schedule 1(b) hereto, and (b) all
applications for letters patent of the United States or any
other country and all divisions, continuations and
continuations-in-part thereof, including, without
limitation, any thereof referred to in Schedule 1(b) hereto.
"Secured Obligations" means, without duplication, (i)
all of the obligations of the Credit Parties to the Lenders
and the Administrative Agent, whenever arising, under the
Credit Agreement or any of the other Credit Documents
(including, but not limited to, any interest accruing after
the occurrence of a Bankruptcy Event with respect to any
Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code), whether now
existing or hereafter arising, due or to become due, direct
or indirect, absolute or contingent, howsoever evidenced,
held or acquired, as such obligations may be amended,
modified, increased, extended, renewed or replaced from time
to time, (ii) all of the obligations owing by the Credit
Parties to the Lenders or any affiliate of a Lender,
whenever arising, under any interest rate protection
agreements, foreign currency exchange agreements or
commodity purchase or option agreements to the extent
permitted under the Credit Agreement, and (iii) all costs
and expenses incurred in connection with enforcement and
collection of the Secured Obligations, including reasonable
attorneys' fees.
"Trademark License" means any agreement, written or
oral, providing for the grant by or to a Grantor of any
right to use any Trademark, including, without limitation,
any thereof referred to in Schedule 1(b) hereto.
"Trademarks" means (a) all trademarks, trade names,
corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other
source or business identifiers, and the goodwill associated
therewith, now existing or hereafter adopted or acquired,
all registrations and recordings thereof, and all
applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office
or agency of the United States, any State thereof or any
other country or any political subdivision thereof, or
otherwise, including, without limitation, any thereof
referred to in Schedule 1(b) hereto, and (b) all renewals
thereof.
"UCC" shall have the meaning assigned to such term in
Section 8(a) hereof.
"Work" means any work that is subject to copyright
protection pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To
secure the prompt payment and performance in full when due,
whether by lapse of time, acceleration or otherwise, of the
Secured Obligations, each Grantor hereby grants to the Collateral
Agent, for the benefit of the holders of the Secured Obligations,
a continuing security interest in, and a right to set off
against, any and all right, title and interest of such Grantor in
and to the following, whether now owned or existing or owned,
acquired, or arising hereafter (collectively, the "Collateral"):
(a) all Accounts;
(b) all cash and Cash Equivalents maintained on
deposit with the Collateral Agent;
(c) all Chattel Paper;
(d) all Copyrights;
(e) all Copyright Licenses;
(f) all Deposit Accounts;
(g) all Documents;
(h) all Equipment;
(i) all Fixtures;
(j) all General Intangibles;
(k) all Instruments;
(l) all Inventory;
(m) all Investment Property;
(n) all Patents;
(o) all Patent Licenses;
(p) all Trademarks;
(q) all Trademark Licenses;
(r) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks,
and related data processing software (owned by
such Grantor or in which it has an interest) that
at any time evidence or contain information
relating to any Collateral or are otherwise
necessary or helpful in the collection thereof or
realization thereupon; and
(s) to the extent not otherwise included, all
Proceeds and products of any and all of the
foregoing.
The Grantors and the Collateral Agent, on behalf of the
holders of the Secured Obligations, hereby acknowledge and agree
that the security interest created hereby in the Collateral (i)
constitutes continuing collateral security for all of the Secured
Obligations, whether now existing or hereafter arising and (ii)
is not to be construed as an assignment of any Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks or
Trademark Licenses.
3. Provisions Relating to Accounts.
(a) Anything herein to the contrary notwithstanding,
each of the Grantors shall remain liable under each of the
Accounts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder,
all in accordance with the terms of any agreement giving
rise to each such Account. Neither the Collateral Agent nor
any holder of the Secured Obligations shall have any
obligation or liability under any Account (or any agreement
giving rise thereto) by reason of or arising out of this
Security Agreement or the receipt by the Collateral Agent or
any holder of the Secured Obligations of any payment
relating to such Account pursuant hereto, nor shall the
Collateral Agent or any holder of the Secured Obligations be
obligated in any manner to perform any of the obligations of
a Grantor under or pursuant to any Account (or any agreement
giving rise thereto), to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance
by any party under any Account (or any agreement giving rise
thereto), to present or file any claim, to take any action
to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it
may be entitled at any time or times.
(b) Once during each calendar year or at any time
after the occurrence and during the continuation of an Event
of Default, the Collateral Agent shall have the right, but
not the obligation, to make test verifications of the
Accounts in any manner and through any medium that it
reasonably considers advisable, and the Grantors shall
furnish all such assistance and information as the
Collateral Agent may require in connection with such test
verifications. From time to time, upon the Collateral
Agent's request, the Grantors shall furnish to the
Collateral Agent reports showing reconciliations, aging and
test verifications of, and trial balances for, the
Accounts. At any time after the occurrence and during the
continuation of an Event of Default, the Collateral Agent in
its own name or in the name of others may communicate with
account debtors on the Accounts to verify with them to the
Collateral Agent's satisfaction the existence, amount and
terms of any Accounts.
4. Representations and Warranties. Each Grantor hereby
represents and warrants to the Collateral Agent, for the benefit
of the holders of the Secured Obligations, that so long as the
Secured Obligations shall remain outstanding and until the
commitments relating thereto shall have been terminated:
(a) Chief Executive Office; Books & Records. Each
Grantor's chief executive office and chief place of business
is (and for the prior four months have been) located at the
locations set forth on Schedule 4(a) hereto, and each
Grantor keeps its books and records at such locations.
(b) Location of Collateral. The location of all
Collateral owned by each Grantor is as shown on Schedule
4(b) hereto.
(c) Ownership. Each Grantor is the legal and
beneficial owner of its Collateral and has the right to
pledge, sell, assign or transfer the same. Each Grantor's
legal name is as shown in this Security Agreement and no
Grantor has in the past four months changed its name, been
party to a merger, consolidation or other change in
structure or used any tradename except as set forth in
Schedule 4(c) attached hereto.
(d) Security Interest/Priority. This Security
Agreement creates a valid security interest in favor of the
Collateral Agent, for the benefit of the holders of the
Secured Obligations, in the Collateral of such Grantor and,
when properly perfected by filing, shall constitute a valid
perfected security interest in such Collateral, to the
extent such security interest can be perfected by filing
under the UCC, free and clear of all Liens except for
Permitted Liens.
(e) Farm Products. None of the Collateral
constitutes, or is the Proceeds of, Farm Products.
(f) Accounts. (i) Each Account of the Grantors and
the papers and documents relating thereto are genuine and in
all material respects what they purport to be, (ii) each
Account arises out of (A) a bona fide sale of goods sold and
delivered by such Grantor (or is in the process of being
delivered) or (B) services theretofore actually rendered by
such Grantor to, the account debtor named therein, (iii) no
Account of a Grantor is evidenced by any Instrument or
Chattel Paper unless such Instrument or Chattel Paper has
been theretofore endorsed over and delivered to the
Collateral Agent and (iv) no surety bond was required or
given in connection with any Account of a Grantor or the
contracts or purchase orders out of which they arose.
(g) Inventory. No Inventory is held by a Grantor
pursuant to consignment, sale or return, sale on approval or
similar arrangement.
(h) Copyrights, Patents and Trademarks.
(i) Schedule 1(b) hereto includes all Copyrights,
Copyright Licenses, Patents, Patent Licenses,
Trademarks and Trademark Licenses owned by the Grantors
in their own names as of the date hereof.
(ii) To the best of each Grantor's knowledge, each
Copyright, Patent and Trademark of such Grantor is
valid, subsisting, unexpired, enforceable and has not
been abandoned.
(iii)Except as set forth in Schedule 1(b) hereto,
none of such Copyrights, Patents and Trademarks is the
subject of any licensing or franchise agreement.
(iv) To the best of each Grantor's knowledge, no
holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or
question the validity of any Copyright, Patent or
Trademark.
(v) No action or proceeding is pending seeking to
limit, cancel or question the validity of any
Copyright, Patent or Trademark, or which, if adversely
determined, would have a material adverse effect on the
value of any Copyright, Patent or Trademark.
(vi) All applications pertaining to the
Copyrights, Patents and Trademarks of each Grantor have
been duly and properly filed, and all registrations or
letters pertaining to such Copyrights, Patents and
Trademarks have been duly and properly filed and
issued, and all of such Copyrights, Patents and
Trademarks are valid and enforceable.
(vii)No Grantor has made any assignment or
agreement in conflict with the security interest in the
Copyrights, Patents or Trademarks of each Grantor
hereunder.
5. Covenants. Each Grantor covenants that, so long as the
Secured Obligations shall remain outstanding and until the
commitments relating thereto shall have been terminated, such
Grantor shall:
(a) Other Liens. Defend the Collateral against the
claims and demands of all other parties claiming an interest
therein, keep the Collateral free from all Liens, except for
Permitted Liens, and not sell, exchange, transfer, assign,
lease or otherwise dispose of the Collateral or any interest
therein, except as permitted under the Credit Agreement.
(b) Preservation of Collateral. Keep the Collateral
in good order, condition and repair and not use the
Collateral in violation of the provisions of this Security
Agreement or any other agreement relating to the Collateral
or any policy insuring the Collateral or any applicable
statute, law, bylaw, rule, regulation or ordinance.
(c) Instruments/Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be
or become evidenced by any Instrument or Chattel Paper,
immediately deliver such Instrument or Chattel Paper to the
Collateral Agent, duly endorsed in a manner satisfactory to
the Collateral Agent, to be held as Collateral pursuant to
this Security Agreement.
(d) Change in Location. Not, without providing 10
days prior written notice to the Collateral Agent, (a)
change the location of its chief executive office and chief
place of business (as well as its books and records) from
the locations set forth on Schedule 4(a) hereto, (b) change
the location of its Collateral from the locations set forth
for such Grantor on Schedule 4(b) hereto, or (c) change its
name, be party to a merger, consolidation or other change in
structure or use any tradename other than as set forth on
Schedule 4(c) attached hereto. Promptly upon the Collateral
Agent's request, each Grantor shall execute such amendments
to any previously filed financing statements as the
Collateral Agent may require.
(e) Inspection. Upon reasonable notice, and during
reasonable hours, at all times allow the Collateral Agent or
its representatives to visit and inspect the Collateral as
set forth in Section 7.10 of the Credit Agreement.
(f) Perfection of Security Interest. Execute and
deliver to the Collateral Agent such agreements, assignments
or instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing
documents, as the Collateral Agent may reasonably request)
and do all such other things as the Collateral Agent may
reasonably deem necessary or appropriate (i) to assure to
the Collateral Agent its security interests hereunder,
including (A) such financing statements (including renewal
statements) or amendments thereof or supplements thereto or
other instruments as the Collateral Agent may from time to
time reasonably request in order to perfect and maintain the
security interests granted hereunder in accordance with the
UCC, (B) with regard to Copyrights, a Notice of Grant of
Security Interest in Copyrights in the form of Schedule
5(f)(i), (C) with regard to Patents, a Notice of Grant of
Security Interest in Patents for filing with the United
States Patent and Trademark Office in the form of Schedule
5(f)(ii) attached hereto and (D) with regard to Trademarks,
a Notice of Grant of Security Interest in Trademarks for
filing with the United States Patent and Trademark Office in
the form of Schedule 5(f)(iii) attached hereto, (ii) to
consummate the transactions contemplated hereby and (iii) to
otherwise protect and assure the Collateral Agent of its
rights and interests hereunder. To that end, each Grantor
agrees that the Collateral Agent may file one or more
financing statements disclosing the Collateral Agent's
security interest in any or all of the Collateral of such
Grantor without, to the extent permitted by law, such
Grantor's signature thereon, and further each Grantor also
hereby irrevocably makes, constitutes and appoints the
Collateral Agent, its nominee or any other person whom the
Collateral Agent may designate, as such Grantor's attorney
in fact with full power and for the limited purpose to sign
in the name of such Grantor any such financing statements,
or amendments and supplements to financing statements,
renewal financing statements, notices or any similar
documents which in the Collateral Agent's reasonable
discretion would be necessary, appropriate or convenient in
order to perfect and maintain perfection of the security
interests granted hereunder, such power, being coupled with
an interest, being and remaining irrevocable so long as the
Secured Obligations remain unpaid and until the commitments
relating thereto shall have been terminated. Each Grantor
hereby agrees that a carbon, photographic or other
reproduction of this Security Agreement or any such
financing statement is sufficient for filing as a financing
statement by the Collateral Agent without notice thereof to
such Grantor wherever the Collateral Agent may in its sole
discretion desire to file the same. In the event for any
reason the law of any jurisdiction other than North Carolina
becomes or is applicable to the Collateral of any Grantor or
any part thereof, or to any of the Secured Obligations, such
Grantor agrees to execute and deliver all such instruments
and to do all such other things as the Collateral Agent in
its sole discretion reasonably deems necessary or
appropriate to preserve, protect and enforce the security
interests of the Collateral Agent under the law of such
other jurisdiction (and, if a Grantor shall fail to do so
promptly upon the request of the Collateral Agent, then the
Collateral Agent may execute any and all such requested
documents on behalf of such Grantor pursuant to the power of
attorney granted hereinabove). If any Collateral is in the
possession or control of a Grantor's agents and the
Collateral Agent so requests, such Grantor agrees to notify
such agents in writing of the Collateral Agent's security
interest therein and, upon the Collateral Agent's request,
instruct them to hold all such Collateral for the account of
the holders of the Secured Obligations and subject to the
Collateral Agent's instructions. Each Grantor agrees to
mark its books and records to reflect the security interest
of the Collateral Agent in the Collateral.
(g) Treatment of Accounts. Not grant or extend the
time for payment of any Account, or compromise or settle any
Account for less than the full amount thereof, or release
any person or property, in whole or in part, from payment
thereof, or allow any credit or discount thereon, other than
as normal and customary in the ordinary course of a
Grantor's business or as required by law.
(h) Covenants Relating to Copyrights.
(i) Employ the Copyright for each Work with such
notice of copyright as may be required by law to secure
copyright protection.
(ii) Not do any act or knowingly omit to do any
act whereby any material Copyright may become
invalidated and (A) not do any act, or knowingly omit
to do any act, whereby any material Copyright may
become injected into the public domain; (B) notify the
Collateral Agent immediately if it knows that any
material Copyright may become injected into the public
domain or of any adverse determination or development
(including, without limitation, the institution of, or
any such determination or development in, any court or
tribunal in the United States or any other country)
regarding a Grantor's ownership of any such Copyright
or its validity; (C) take all necessary steps as it
shall deem appropriate under the circumstances, to
maintain and pursue each application (and to obtain the
relevant registration) and to maintain each
registration of each material Copyright owned by a
Grantor including, without limitation, filing of
applications for renewal where necessary; and (D)
promptly notify the Collateral Agent of any material
infringement of any material Copyright of a Grantor of
which it becomes aware and take such actions as it
shall reasonably deem appropriate under the
circumstances to protect such Copyright, including,
where appropriate, the bringing of suit for
infringement, seeking injunctive relief and seeking to
recover any and all damages for such infringement.
(iii)Not make any assignment or agreement in
conflict with the security interest in the Copyrights
of each Grantor hereunder.
(i) Covenants Relating to Patents and Trademarks.
(i) (A) Continue to use each Trademark on each
and every trademark class of goods applicable to its
current line as reflected in its current catalogs,
brochures and price lists in order to maintain such
Trademark in full force free from any claim of
abandonment for non-use, (B) maintain as in the past
the quality of products and services offered under such
Trademark, (C) employ such Trademark with the
appropriate notice of registration, (D) not adopt or
use any mark which is confusingly similar or a
colorable imitation of such Trademark unless the
Collateral Agent, for the ratable benefit of the
holders of the Secured Obligations, shall obtain a
perfected security interest in such mark pursuant to
this Security Agreement, and (E) not (and not permit
any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark may
become invalidated.
(ii) Not do any act, or omit to do any act,
whereby any Patent may become abandoned or dedicated.
(iii)Notify the Collateral Agent and the holders
of the Secured Obligations immediately if it knows that
any application or registration relating to any Patent
or Trademark may become abandoned or dedicated, or of
any adverse determination or development (including,
without limitation, the institution of, or any such
determination or development in, any proceeding in the
United States Patent and Trademark Office or any court
or tribunal in any country) regarding a Grantor's
ownership of any Patent or Trademark or its right to
register the same or to keep and maintain the same.
(iv) Whenever a Grantor, either by itself or
through an agent, employee, licensee or designee, shall
file an application for the registration of any Patent
or Trademark with the United States Patent and
Trademark Office or any similar office or agency in any
other country or any political subdivision thereof, a
Grantor shall report such filing to the Collateral
Agent and the holders of the Secured Obligations within
five Business Days after the last day of the fiscal
quarter in which such filing occurs. Upon request of
the Collateral Agent, a Grantor shall execute and
deliver any and all agreements, instruments, documents
and papers as the Collateral Agent may reasonably
request to evidence the security interest of the
Collateral Agent and the holders of the Secured
Obligations in any Patent or Trademark and the goodwill
and general intangibles of a Grantor relating thereto
or represented thereby.
(v) Take all reasonable and necessary steps,
including, without limitation, in any proceeding before
the United States Patent and Trademark Office, or any
similar office or agency in any other country or any
political subdivision thereof, to maintain and pursue
each application (and to obtain the relevant
registration) and to maintain each registration of the
Patents and Trademarks, including, without limitation,
filing of applications for renewal, affidavits of use
and affidavits of incontestability.
(vi) Promptly notify the Collateral Agent and the
holders of the Secured Obligations after it learns that
any Patent or Trademark included in the Collateral is
infringed, misappropriated or diluted by a third party
and promptly sue for infringement, misappropriation or
dilution, to seek injunctive relief where appropriate
and to recover any and all damages for such
infringement, misappropriation or dilution, or take
such other actions as it shall reasonably deem
appropriate under the circumstances to protect such
Patent or Trademark.
(vii)Not make any assignment or agreement in
conflict with the security interest in the Patents or
Trademarks of each Grantor hereunder.
(j) New Patents, Copyrights and Trademarks. Promptly
provide the Collateral Agent with (i) a listing of all
applications, if any, for new Copyrights, Patents or
Trademarks (together with a listing of the issuance of
registrations or letters on present applications), which new
applications and issued registrations or letters shall be
subject to the terms and conditions hereunder, and (ii) (A)
with respect to Copyrights, a duly executed Notice of
Security Interest in Copyrights, (B) with respect to
Patents, a duly executed Notice of Security Interest in
Patents, (C) with respect to Trademarks, a duly executed
Notice of Security Interest in Trademarks or (D) such other
duly executed documents as the Collateral Agent may
reasonably request in a form acceptable to counsel for the
Collateral Agent and suitable for recording to evidence the
security interest in the Copyright, Patent or Trademark
which is the subject of such new application.
(k) Insurance. Insure, repair and replace the
Collateral of such Grantor as set forth in the Credit
Agreement. All insurance proceeds shall be subject to the
security interest of the Collateral Agent hereunder.
6. Advances by holders of the Secured Obligations. On
failure of any Grantor to perform any of the covenants and
agreements contained herein, the Collateral Agent may, at its
sole option and in its sole discretion, perform the same and in
so doing may expend such sums as the Collateral Agent may
reasonably deem advisable in the performance thereof, including,
without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or
potential Lien, expenditures made in defending against any
adverse claim and all other expenditures which the Collateral
Agent or the holders of the Secured Obligations may make for the
protection of the security hereof or which may be compelled to
make by operation of law. All such sums and amounts so expended
shall be repayable by the Grantors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall
constitute additional Secured Obligations and shall bear interest
from the date said amounts are expended at the default rate
specified in Section 3.1 of the Credit Agreement for Revolving
Loans that are Base Rate Loans. No such performance of any
covenant or agreement by the Collateral Agent or the holders of
the Secured Obligations on behalf of any Grantor, and no such
advance or expenditure therefor, shall relieve the Grantors of
any default under the terms of this Security Agreement, the other
Credit Documents or any other documents relating to the Secured
Obligations. The holders of the Secured Obligations may make any
payment hereby authorized in accordance with any bill, statement
or estimate procured from the appropriate public office or holder
of the claim to be discharged without inquiry into the accuracy
of such bill, statement or estimate or into the validity of any
tax assessment, sale, forfeiture, tax lien, title or claim except
to the extent such payment is being contested in good faith by a
Grantor in appropriate proceedings and against which adequate
reserves are being maintained in accordance with GAAP.
7. Events of Default.
The occurrence of an Event of Default (as defined in the
Credit Agreement) under the Credit Agreement shall be an Event of
Default hereunder (an "Event of Default").
8. Remedies.
(a) General Remedies. Upon the occurrence of an Event
of Default and during continuation thereof, the holders of
the Secured Obligations shall have, in addition to the
rights and remedies provided herein, in the Credit Documents
or any other documents relating to the Secured Obligations,
or by law (including, but not limited to, the rights and
remedies set forth in the Uniform Commercial Code of the
jurisdiction applicable to the affected Collateral (the
"UCC")) and, further, the Collateral Agent may, with or
without judicial process or the aid and assistance of
others, (i) enter on any premises on which any of the
Collateral may be located and, without resistance or
interference by the Grantors, take possession of the
Collateral, (ii) dispose of any Collateral on any such
premises, (iii) require the Grantors to assemble and make
available to the Collateral Agent at the expense of the
Grantors any Collateral at any place and time designated by
the Collateral Agent which is reasonably convenient to both
parties, (iv) remove any Collateral from any such premises
for the purpose of effecting sale or other disposition
thereof, and/or (v) without demand and without
advertisement, notice, hearing or process of law, all of
which each of the Grantors hereby waives to the fullest
extent permitted by law, at any place and time or times,
sell and deliver any or all Collateral held by or for it at
public or private sale, by one or more contracts, in one or
more parcels, for cash, upon credit or otherwise, at such
prices and upon such terms as the Collateral Agent deems
advisable, in its sole discretion (subject to any and all
mandatory legal requirements). In addition to all other
sums due the Collateral Agent and the holders of the Secured
Obligations with respect to the Secured Obligations, the
Grantors shall pay the Collateral Agent and each of the
holders of the Secured Obligations all reasonable documented
costs and expenses incurred by the Collateral Agent or any
such holder of the Secured Obligations, including, but not
limited to, reasonable attorneys' fees and court costs, in
obtaining or liquidating the Collateral, in enforcing
payment of the Secured Obligations, or in the prosecution or
defense of any action or proceeding by or against the
Collateral Agent or the holders of the Secured Obligations
or the Grantors concerning any matter arising out of or
connected with this Security Agreement, any Collateral or
the Secured Obligations, including, without limitation, any
of the foregoing arising in, arising under or related to a
case under the Bankruptcy Code. To the extent the rights of
notice cannot be legally waived hereunder, each Grantor
agrees that any requirement of reasonable notice shall be
met if such notice is personally served on or mailed,
postage prepaid, to the Borrower in accordance with the
notice provisions of Section 11.1 of the Credit Agreement at
least 10 Business Days before the time of sale or other
event giving rise to the requirement of such notice. The
Collateral Agent and the holders of the Secured Obligations
shall not be obligated to make any sale or other disposition
of the Collateral regardless of notice having been given.
To the extent permitted by law, any holder of the Secured
Obligations may be a purchaser at any such sale. To the
extent permitted by applicable law, each of the Grantors
hereby waives all of its rights of redemption with respect
to any such sale. Subject to the provisions of applicable
law, the Collateral Agent and the holders of the Secured
Obligations may postpone or cause the postponement of the
sale of all or any portion of the Collateral by announcement
at the time and place of such sale, and such sale may,
without further notice, to the extent permitted by law, be
made at the time and place to which the sale was postponed,
or the Collateral Agent and the holders of the Secured
Obligations may further postpone such sale by announcement
made at such time and place.
(b) Remedies relating to Accounts. Upon the
occurrence of an Event of Default and during the
continuation thereof, whether or not the Collateral Agent
has exercised any or all of its rights and remedies
hereunder, each Grantor will promptly upon request of the
Collateral Agent instruct all account debtors to remit all
payments in respect of Accounts to a mailing location
selected by the Collateral Agent. In addition, the
Collateral Agent or its designee may notify any Grantor's
customers and account debtors that the Accounts of such
Grantor have been assigned to the Collateral Agent or of the
Collateral Agent's security interest therein, and may
(either in its own name or in the name of a Grantor or both)
demand, collect (including without limitation by way of a
lockbox arrangement), receive, take receipt for, sell, sue
for, compound, settle, compromise and give acquittance for
any and all amounts due or to become due on any Account,
and, in the Collateral Agent's discretion, file any claim or
take any other action or proceeding to protect and realize
upon the security interest of the holders of the Secured
Obligations in the Accounts. Each Grantor acknowledges and
agrees that the Proceeds of its Accounts remitted to or on
behalf of the Collateral Agent in accordance with the
provisions hereof shall be solely for the Collateral Agent's
own convenience and that such Grantor shall not have any
right, title or interest in such Accounts or in any such
other amounts except as expressly provided herein. The
Collateral Agent and the holders of the Secured Obligations
shall have no liability or responsibility to any Grantor for
acceptance of a check, draft or other order for payment of
money bearing the legend "payment in full" or words of
similar import or any other restrictive legend or
endorsement or be responsible for determining the
correctness of any remittance. Each Grantor hereby agrees
to indemnify the Collateral Agent and the holders of the
Secured Obligations from and against all liabilities,
damages, losses, actions, claims, judgments, costs,
expenses, charges and reasonable attorneys' fees suffered or
incurred by the Collateral Agent or the holders of the
Secured Obligations (each, an "Indemnified Party") because
of the maintenance of the foregoing arrangements except as
relating to or arising out of the gross negligence or
willful misconduct of an Indemnified Party or its officers,
employees or agents. In the case of any investigation,
litigation or other proceeding, the foregoing indemnity
shall be effective whether or not such investigation,
litigation or proceeding is brought by a Grantor, its
directors, shareholders or creditors or an Indemnified Party
or any other Person or any other Indemnified Party is
otherwise a party thereto.
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and
during the continuance thereof, the Collateral Agent shall
have the right to enter and remain upon the various premises
of the Grantors without cost or charge to the Collateral
Agent, and use the same, together with materials, supplies,
books and records of the Grantors for the purpose of
collecting and liquidating the Collateral, or for preparing
for sale and conducting the sale of the Collateral, whether
by foreclosure, auction or otherwise. In addition, the
Collateral Agent may remove Collateral, or any part thereof,
from such premises and/or any records with respect thereto,
in order to effectively collect or liquidate such Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the
Collateral Agent or the holders of the Secured Obligations
to exercise any right, remedy or option under this Security
Agreement, any other Credit Document, any Other documents
relating to the Secured Obligations, or as provided by law,
or any delay by the Collateral Agent or the holders of the
Secured Obligations in exercising the same, shall not
operate as a waiver of any such right, remedy or option. No
waiver hereunder shall be effective unless it is in writing,
signed by the party against whom such waiver is sought to be
enforced and then only to the extent specifically stated,
which in the case of the Collateral Agent or the holders of
the Secured Obligations shall only be granted as provided
herein. To the extent permitted by law, neither the
Collateral Agent, the holders of the Secured Obligations,
nor any party acting as attorney for the Collateral Agent or
the holders of the Secured Obligations, shall be liable
hereunder for any acts or omissions or for any error of
judgment or mistake of fact or law other than their gross
negligence or willful misconduct hereunder. The rights and
remedies of the Collateral Agents and the holders of the
Secured Obligations under this Security Agreement shall be
cumulative and not exclusive of any other right or remedy
which the Collateral Agent or the holders of the Secured
Obligations may have.
(e) Retention of Collateral. The Collateral Agent
may, after providing the notices required by Section
9-505(2) of the UCC or otherwise complying with the
requirements of applicable law of the relevant jurisdiction,
to the extent the Collateral Agent is in possession of any
of the Collateral, retain the Collateral in satisfaction of
the Secured Obligations. Unless and until the Collateral
Agent shall have provided such notices, however, the
Collateral Agent shall not be deemed to have retained any
Collateral in satisfaction of any Secured Obligations for
any reason.
(f) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all
amounts to which the Collateral Agent or the holders of the
Secured Obligations are legally entitled, the Grantors shall
be jointly and severally liable for the deficiency, together
with interest thereon at the default rate specified in
Section 3.1 of the Credit Agreement for Revolving Loans that
are Base Rate Loans, together with the costs of collection
and the reasonable fees of any attorneys employed by the
Collateral Agent to collect such deficiency. Any surplus
remaining after the full payment and satisfaction of the
Secured Obligations shall be returned to the Grantors or to
whomsoever a court of competent jurisdiction shall determine
to be entitled thereto.
9. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Grantor hereby designates
and appoints the Collateral Agent, on behalf of the holders
of the Secured Obligations, and each of its designees or
agents, as attorney-in-fact of such Grantor, irrevocably and
with power of substitution, with authority to take any or
all of the following actions upon the occurrence and during
the continuance of an Event of Default:
(i) to demand, collect, settle, compromise,
adjust, give discharges and releases, all as the
Collateral Agent may reasonably determine;
(ii) to commence and prosecute any actions at
any court for the purposes of collecting any
Collateral and enforcing any other right in
respect thereof;
(iii)to defend, settle or compromise any
action brought and, in connection therewith, give
such discharge or release as the Collateral Agent
may deem reasonably appropriate;
(iv) to receive, open and dispose of mail
addressed to a Grantor and endorse checks, notes,
drafts, acceptances, money orders, bills of
lading, warehouse receipts or other instruments or
documents evidencing payment, shipment or storage
of the goods giving rise to the Collateral of such
Grantor on behalf of and in the name of such
Grantor, or securing, or relating to such
Collateral;
(v) to sell, assign, transfer, make any
agreement in respect of, or otherwise deal with or
exercise rights in respect of, any Collateral or
the goods or services which have given rise
thereto, as fully and completely as though the
Collateral Agent were the absolute owner thereof
for all purposes;
(vi) to adjust and settle claims under any
insurance policy relating thereto;
(vii)to execute and deliver all assignments,
conveyances, statements, financing statements,
renewal financing statements, security agreements,
affidavits, notices and other agreements,
instruments and documents that the Collateral
Agent may determine necessary in order to perfect
and maintain the security interests and liens
granted in this Security Agreement and in order to
fully consummate all of the transactions
contemplated therein;
(viii) to institute any foreclosure
proceedings that the Collateral Agent may deem
appropriate; and
(ix) to do and perform all such other acts
and things as the Collateral Agent may reasonably
deem to be necessary, proper or convenient in
connection with the Collateral.
This power of attorney is a power coupled with an interest
and shall be irrevocable (i) for so long as any of the
Secured Obligations remain outstanding, any Credit Document
or any Other documents relating to the Secured Obligations,
is in effect or any Letter of Credit shall remain
outstanding and (ii) until all of the Commitments shall have
been terminated. The Collateral Agent shall be under no
duty to exercise or withhold the exercise of any of the
rights, powers, privileges and options expressly or
implicitly granted to the Collateral Agent in this Security
Agreement, and shall not be liable for any failure to do so
or any delay in doing so. The Collateral Agent shall not be
liable for any act or omission or for any error of judgment
or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions
resulting from its gross negligence or willful misconduct.
This power of attorney is conferred on the Collateral Agent
solely to protect, preserve and realize upon its security
interest in the Collateral.
(b) Performance by the Collateral Agent of
Obligations. If any Grantor fails to perform any agreement
or obligation contained herein, the Collateral Agent itself
may perform, or cause performance of, such agreement or
obligation, and the expenses of the Collateral Agent
incurred in connection therewith shall be payable by the
Grantors on a joint and several basis pursuant to Section 11
hereof.
(c) Assignment by the Collateral Agent. The
Collateral Agent may from time to time assign the Secured
Obligations and any portion thereof and/or the Collateral
and any portion thereof, and the assignee shall be entitled
to all of the rights and remedies of the Collateral Agent
under this Security Agreement in relation thereto.
(d) The Collateral Agent's Duty of Care. Other than
the exercise of reasonable care to assure the safe custody
of the Collateral while being held by the Collateral Agent
hereunder, the Collateral Agent shall have no duty or
liability to preserve rights pertaining thereto, it being
understood and agreed that the Grantors shall be responsible
for preservation of all rights in the Collateral, and the
Collateral Agent shall be relieved of all responsibility for
the Collateral upon surrendering it or tendering the
surrender of it to the Grantors. The Collateral Agent shall
be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property, which
shall be no less than the treatment employed by a reasonable
and prudent agent in the industry, it being understood that
the Collateral Agent shall not have responsibility for
taking any necessary steps to preserve rights against any
parties with respect to any of the Collateral.
10. Application of Proceeds. Upon the occurrence and
during the continuance of an Event of Default, any payments in
respect of the Secured Obligations and any proceeds of the
Collateral, when received by the Collateral Agent or any of the
holders of the Secured Obligations in cash or its equivalent,
will be applied in reduction of the Secured Obligations in the
order set forth in the Credit Agreement or other document
relating to the Secured Obligations, and each Grantor irrevocably
waives the right to direct the application of such payments and
proceeds and acknowledges and agrees that the Collateral Agent
shall have the continuing and exclusive right to apply and
reapply any and all such payments and proceeds in the Collateral
Agent's sole discretion, notwithstanding any entry to the
contrary upon any of its books and records.
11. Costs of Counsel. If at any time hereafter, whether
upon the occurrence of an Event of Default or not, the Collateral
Agent employs counsel to prepare or consider amendments, waivers
or consents with respect to this Security Agreement, or to take
action or make a response in or with respect to any legal or
arbitral proceeding relating to this Security Agreement or
relating to the Collateral, or to protect the Collateral or
exercise any rights or remedies under this Security Agreement or
with respect to the Collateral, then the Grantors agree to
promptly pay upon demand any and all such reasonable documented
costs and expenses of the Collateral Agent or the holders of the
Secured Obligations, all of which costs and expenses shall
constitute Secured Obligations hereunder.
12. Continuing Agreement.
(a) This Security Agreement shall be a continuing
agreement in every respect and shall remain in full force
and effect so long as the Secured Obligations remain
outstanding and until the commitments relating thereto shall
have terminated (other than any obligations with respect to
the indemnities and the representations and warranties set
forth in the Credit Documents). Upon such payment and
termination, this Security Agreement shall be automatically
terminated and the Collateral Agent and the holders of the
Secured Obligations shall, upon the request and at the
expense of the Grantors, forthwith release all of its liens
and security interests hereunder and shall execute and
deliver all UCC termination statements and/or other
documents reasonably requested by the Grantors evidencing
such termination. Notwithstanding the foregoing all
releases and indemnities provided hereunder shall survive
termination of this Security Agreement.
(b) This Security Agreement shall continue to be
effective or be automatically reinstated, as the case may
be, if at any time payment, in whole or in part, of any of
the Secured Obligations is rescinded or must otherwise be
restored or returned by the Collateral Agent or any holder
of the Secured Obligations as a preference, fraudulent
conveyance or otherwise under any bankruptcy, insolvency or
similar law, all as though such payment had not been made;
provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or
returned, all reasonable costs and expenses (including
without limitation any reasonable legal fees and
disbursements) incurred by the Collateral Agent or any
holder of the Secured Obligations in defending and enforcing
such reinstatement shall be deemed to be included as a part
of the Secured Obligations.
13. Amendments; Waivers; Modifications. This Security
Agreement and the provisions hereof may not be amended, waived,
modified, changed, discharged or terminated except as set forth
in Section 11.6 of the Credit Agreement.
14. Successors in Interest. This Security Agreement shall
create a continuing security interest in the Collateral and shall
be binding upon each Grantor, its successors and assigns and
shall inure, together with the rights and remedies of the
Collateral Agent and the holders of the Secured Obligations
hereunder, to the benefit of the Collateral Agent and the holders
of the Secured Obligations and their successors and permitted
assigns; provided, however, that none of the Grantors may assign
its rights or delegate its duties hereunder without the prior
written consent of the requisite Lenders under the Credit
Agreement. To the fullest extent permitted by law, each Grantor
hereby releases the Collateral Agent and each holder of the
Secured Obligations, and its successors and assigns, from any
liability for any act or omission relating to this Security
Agreement or the Collateral, except for any liability arising
from the gross negligence or willful misconduct of the Collateral
Agent, or such holder of the Secured Obligations, or its
officers, employees or agents.
15. Notices. All notices required or permitted to be given
under this Security Agreement shall be given as provided in the
Credit Agreement.
16. Counterparts. This Security Agreement may be executed
in any number of counterparts, each of which where so executed
and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be
necessary in making proof of this Security Agreement to produce
or account for more than one such counterpart.
17. Headings. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way
affect the meaning or construction of any provision of this
Security Agreement.
18. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NORTH CAROLINA. Any legal action
or proceeding with respect to this Security Agreement
may be brought in the state or federal courts located
in Charlotte, North Carolina, and, by execution and
delivery of this Security Agreement, each Grantor
hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the
jurisdiction of such courts. Each Grantor further
irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at
the address for notices pursuant to Section 11.1 of the
Credit Agreement, such service to become effective
three days after such mailing. Nothing herein shall
affect the right of the Collateral Agent to serve
process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed
against any Grantor in any other jurisdiction.
(b) Each Grantor hereby irrevocably waives any
objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this
Security Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
19. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES TO THIS SECURITY AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
20. Severability. If any provision of any of the Security
Agreement is determined to be illegal, invalid or unenforceable,
such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or
unenforceable provisions.
21. Entirety. This Security Agreement, the other Credit
Documents and the other documents relating to the Secured
Obligations represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and
understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents, any
other documents relating to the Secured Obligations, or the
transactions contemplated herein and therein.
22. Survival. All representations and warranties of the
Grantors hereunder shall survive the execution and delivery of
this Security Agreement, the other Credit Documents and the other
documents relating to the Secured Obligations, the delivery of
the Notes and the extension of credit thereunder or in connection
therewith.
23. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than
the Collateral (including, without limitation, real property and
securities owned by a Grantor), or by a guarantee, endorsement or
property of any other Person, then the Collateral Agent and the
holders of the Secured Obligations shall have the right to
proceed against such other property, guarantee or endorsement
upon the occurrence of any Event of Default, and the Collateral
Agent and the holders of the Secured Obligations have the right,
in their sole discretion, to determine which rights, security,
liens, security interests or remedies the Collateral Agent and
the holders of the Secured Obligations shall at any time pursue,
relinquish, subordinate, modify or take with respect thereto,
without in any way modifying or affecting any of them or the
Secured Obligations or any of the rights of the Collateral Agent
or the holders of the Secured Obligations under this Security
Agreement, under any other of the Credit Documents or under any
other document relating to the Secured Obligations.
24. Joint and Several Obligations of Grantors.
(a) Each of the Grantors is accepting joint and
several liability hereunder in consideration of the
financial accommodation to be provided by the holders of the
Secured Obligations, for the mutual benefit, directly and
indirectly, of each of the Grantors and in consideration of
the undertakings of each of the Grantors to accept joint and
several liability for the obligations of each of them.
(b) Each of the Grantors jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a
surety but also as a co-debtor, joint and several liability
with the other Grantors with respect to the payment and
performance of all of the Secured Obligations arising under
this Security Agreement, the other Credit Documents and any
other documents relating to the Secured Obligations, it
being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of
each of the Grantors without preferences or distinction
among them.
(c) Notwithstanding any provision to the contrary
contained herein, in any other of the Credit Documents or in
any other documents relating to the Secured Obligations, the
obligations of each Guarantor under the Credit Agreement and
the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render
such obligations subject to avoidance under Section 548 of
the Bankruptcy Code or any comparable provisions of any
applicable state law.
25. Rights of Required Lenders. All rights of the
Collateral Agent hereunder, if not exercised by the Collateral
Agent, may be exercised by the Required Lenders.
[remainder of page intentionally left blank]
REHABCARE GROUP, INC.
SECURITY AGREEMENT
Each of the parties hereto has caused a counterpart of this
Security Agreement to be duly executed and delivered as of the
date first above written.
GRANTORS: REHABCARE GROUP, INC.,
a Delaware Corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Senior Vice President, Finance
REHABCARE GROUP THERAPY SERVICES, INC.,
a Missouri corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
SALT LAKE PHYSICAL THERAPY ASSOCIATES, INC.,
a Utah corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
ALLSTAFF, INC.,
an Iowa corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
WESLEY MEDICAL RESOURCES, INC.,
a California corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
[Signature Pages Continue]
HEALTHCARE STAFFING SOLUTIONS, INC.,
a Massachusetts corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
EAI HEALTHCARE STAFFING SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP EAST, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP MANAGEMENT SERVICES, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE TEXAS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
HEALTH TOUR MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
[Signature Pages Continue]
REHABCARE GROUP OF CALIFORNIA, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
STARMED HEALTH PERSONNEL, INC.,
a Delaware corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
THERAPEUTIC SYSTEMS, LTD.,
an Illinois corporation
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
STARMED MANAGEMENT, L.L.C.,
a Delaware limited liability company
By: Healthcare Staffing Solutions, Inc.,
a Massachusetts corporation, as its
Member
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Vice President
REHABCARE GROUP OF TEXAS, L.P.,
a Texas limited liability company
By: Rehabcare Group, Inc.,
a Delaware corporation, as its
General Partner
By: /s/ Gregory J. Eisenhauer
Name: Gregory J. Eisenhauer
Title: Senior Vice President, Finance
[Signature Pages Continue]
Accepted and agreed to as of the date first above written.
BANK OF AMERICA, N.A.,
as Collateral Agent
By: /s/ Kristine D. Hyde
Name: Kristine D. Hyde
Title: Vice President
SCHEDULE 1(b)
INTELLECTUAL PROPERTY
SCHEDULE 4(a)
CHIEF EXECUTIVE OFFICES
SCHEDULE 4(b)
LOCATIONS OF COLLATERAL
SCHEDULE 4(c)
MERGERS, CONSOLIDATIONS, CHANGES IN STRUCTURE OR USE OF TRADENAMES
SCHEDULE 5(f)(i)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Security Agreement
dated as of August 29, 2000 (as the same may be amended,
modified, extended or restated from time to time, the "Security
Agreement") by and among the Grantors party thereto (each an
"Grantor" and collectively, the "Grantors") and Bank of America,
N.A., as Collateral Agent (the "Collateral Agent") for the
holders of the Secured Obligations referenced therein, the
undersigned Grantor has granted a continuing security interest in
and continuing lien upon, the copyrights and copyright
applications shown below to the Collateral Agent for the ratable
benefit of the holders of the Secured Obligations:
COPYRIGHTS
Date of
Copyright No. Description of Copyright Copyright
COPYRIGHT APPLICATIONS
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
The Grantors and the Collateral Agent, on behalf of the
holders of the Secured Obligations, hereby acknowledge and agree
that the security interest in the foregoing copyrights and
copyright applications (i) may only be terminated in accordance
with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any copyright or copyright
application.
Very truly yours,
__________________________________
[Grantor]
By:
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Collateral Agent
By:
Name:
Title:
SCHEDULE 5(f)(ii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement
dated as of August 29, 2000 (the "Security Agreement") by and
among the Grantors party thereto (each an "Grantor" and
collectively, the "Grantors") and Bank of America, N.A., as
Collateral Agent (the "Collateral Agent") for the holders of the
Secured Obligations referenced therein, the undersigned Grantor
has granted a continuing security interest in and continuing lien
upon, the patents and patent applications shown below to the
Collateral Agent for the ratable benefit of the holders of the
Secured Obligations:
PATENTS
Description of Patent Date of
Patent No. Item Patent
PATENT APPLICATIONS
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
The Grantors and the Collateral Agent, on behalf of the
holders of the Secured Obligations, hereby acknowledge and agree
that the security interest in the foregoing patents and patent
applications (i) may only be terminated in accordance with the
terms of the Security Agreement and (ii) is not to be construed
as an assignment of any patent or patent application.
Very truly yours,
__________________________________
[Grantor]
By:
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Collateral Agent
By:
Name:
Title:
SCHEDULE 5(f)(iii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement
dated as of August 29, 2000 (the "Security Agreement") by and
among the Grantors party thereto (each an "Grantor" and
collectively, the "Grantors") and Bank of America, N.A., as
Collateral Agent (the "Collateral Agent") for the holders of the
Secured Obligations referenced therein, the undersigned Grantor
has granted a continuing security interest in and continuing lien
upon, the trademarks and trademark applications shown below to
the Collateral Agent for the ratable benefit of the holders of
the Secured Obligations:
TRADEMARKS
Description of Trademark Date of
Trademark No. Item Trademark
TRADEMARK APPLICATIONS
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
The Grantors and the Collateral Agent, on behalf of the
holders of the Secured Obligations, hereby acknowledge and agree
that the security interest in the foregoing trademarks and
trademark applications (i) may only be terminated in accordance
with the terms of the Security Agreement and (ii) is not to be
construed as an assignment of any trademark or trademark
application.
Very truly yours,
__________________________________
[Grantor]
By:
Name:
Title:
Acknowledged and Accepted:
BANK OF AMERICA, N.A., as Collateral Agent
By:
Name:
Title: