EXHIBIT 10.64
AMENDED AND RESTATED SECURITY AGREEMENT
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AMENDED AND RESTATED SECURITY AGREEMENT, dated as of June 11, 1998, among
SalesLink Corporation, a Delaware corporation ("SalesLink"), InSolutions
Incorporated, a Delaware corporation ("InSolutions" and, collectively with
SalesLink, the "Companies" and each individually, a "Company") and BankBoston,
N.A. (f/k/a The First National Bank of Boston), a national banking association,
as agent (hereinafter, in such capacity, the "Agent") for itself and other
banking institutions (hereinafter, collectively, the "Banks") which are or may
become parties to an Amended and Restated Revolving Credit and Term Loan
Agreement dated as of June 11, 1998 (as amended and in effect from time to time,
the "Credit Agreement"), among the Companies, Pacific Direct Marketing Corp.,
the Banks and the Agent.
WHEREAS, SalesLink as well as certain other parties entered into a
Revolving Credit and Term Loan Agreement dated as of October 24, 1996 (such
agreement as heretofore amended and in effect from time to time, the "Original
Loan Agreement"); and
WHEREAS, in connection with the Original Loan Agreement, SalesLink entered
into a Security Agreement dated as of July 17, 1997 (such agreement as
heretofore amended and in effect form time to time, the "Original Security
Agreement") in favor of BankBoston, N.A. as agent for the lending institutions
party to the Original Loan Agreement; and
WHEREAS, each of the Companies is expected to receive substantial direct
and indirect benefits from the extensions of credit by the Banks to the
Companies pursuant to the Credit Agreement; and
WHEREAS, the Original Loan Agreement will be superseded by the Credit
Agreement on the Closing Date (as defined in the Credit Agreement); and
WHEREAS, pursuant to the transactions contemplated by the Credit Agreement,
InSolutions will be a borrower under the terms of the Credit Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement that the Companies execute and deliver to the Agent, for the benefit
of the Banks and the Agent, a security agreement in substantially the form
hereof; and
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WHEREAS, certain of the parties hereto desire to amend and restate all of
their rights and obligations under the Security Agreement and grant security
interests in favor of and as provided herein;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definitions
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shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein.
2. GRANT OF SECURITY INTEREST.
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2.1. COLLATERAL GRANTED. (a)SalesLink ratifies and affirms the grant
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of security interests made pursuant to the Original Security Agreement, and
(b) to the extent not covered under clause (a), SalesLink further grants to
the Agent, and InSolutions hereby grants to the Agent, for the benefit of
the Banks and the Agent, to secure the payment and performance in full of
all of the Obligations, a security interest in and so pledges and assigns
to the Agent, for the benefit of the Banks and the Agent, the following
properties, assets and rights of each of the Companies, wherever located,
whether now owned or hereafter acquired or arising, and all proceeds and
products thereof (all of the same being hereinafter called the
"Collateral"):
All personal and fixture property of every kind and nature
including without limitation all furniture, fixtures, equipment, raw
materials, inventory, other goods, accounts, contract rights, rights
to the payment of money, insurance refund claims and all other
insurance claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts and all general intangibles including, without limitation,
all tax refund claims, license fees, patents, patent applications,
trademarks, trademark applications, trade names, copyrights, copyright
applications, rights to sue and recover for past infringement of
patents, trademarks and copyrights, computer programs, computer
software, engineering drawings, service marks, customer lists,
goodwill, and all licenses, permits, agreements of any kind or nature
pursuant to which each such Company possesses, uses or has authority
to possess or use property (whether tangible or intangible) of others
or others possess, use or have authority to possess or use property
(whether tangible or intangible) of such Company, and all recorded
data of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics.
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2.2. DELIVERY OF INSTRUMENTS, ETC.
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(a) Pursuant to the terms hereof, each Company has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments (including certificated securities) and chattel paper
pledged by it hereunder, together with instruments of transfer or
assignment duly executed in blank as the Agent may have specified. In
the event that such Company shall, after the date of this Agreement,
acquire any other negotiable or non-negotiable instruments (including
certificated securities) or chattel paper to be pledged by it
hereunder, such Company shall forthwith endorse, assign and deliver
the same to the Agent, accompanied by such instruments of transfer or
assignment duly executed in blank as the Agent may from time to time
specify.
(b) To the extent that any securities now or hereafter acquired
by either of the Companies are uncertificated and are issued to such
Company or its nominee directly by the issuer thereof, such Company
shall cause the issuer to note on its books the security interest of
the Agent in such securities and shall cause the issuer, pursuant to
an agreement in form and substance satisfactory to the Agent, to agree
to comply with instructions from the Agent as to such securities,
without further consent of such Company or such nominee. To the
extent that any securities, whether certificated or uncertificated, or
other financial assets now or hereafter acquired by any Company are
held by such Company or its nominee through a securities intermediary,
such Company shall (i) cause such securities intermediary to note on
its books the security interest of the Agent in such securities or
other financial assets and to confirm such notation promptly to the
Agent and (ii), at the request of the Agent, cause such securities
intermediary, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with entitlement orders
or other instructions from the Agent as to such securities or other
financial assets, without further consent of such Company or such
nominee. The Agent agrees with each Company that the Agent shall not
give any such entitlement orders or instructions to any such issuer or
securities intermediary unless an Event of Default has occurred and is
continuing and the Agent has elected to exercise its rights and
remedies as contemplated by (S)13.
2.3. EXCLUDED COLLATERAL. Notwithstanding the foregoing provisions of
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this (S)2, such grant of security interest shall not extend to, and the term
"Collateral" shall not include, any chattel paper and general intangibles which
are now or hereafter held by any Company as licensee, lessee or otherwise, to
the extent that (a) such chattel paper and general intangibles are not
assignable or capable of being encumbered as a matter of law or
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under the terms of the license, lease or other agreement applicable
thereto (but solely to the extent that any such restriction shall be
enforceable under applicable law), without the consent of the licensor
or lessor thereof or other applicable party thereto and (b) such
consent has not been obtained; provided, however, that the foregoing
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grant of security interest shall extend to, and the term "Collateral"
shall include, (i) any and all proceeds of such chattel paper and
general intangibles to the extent that the assignment or encumbering
of such proceeds is not so restricted and (ii) upon any such licensor,
lessor or other applicable party consent with respect to any such
otherwise excluded chattel paper or general intangibles being
obtained, thereafter such chattel paper or general intangibles as well
as any and all proceeds thereof that might have theretofore have been
excluded from such grant of a security interest and the term
"Collateral".
2.4. STOCK PLEDGE AGREEMENT. Concurrently herewith SalesLink is
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executing and delivering to the Agent, for the benefit of the Banks
and the Agent, a stock pledge agreement pursuant to which SalesLink is
pledging to the Agent, for the benefit of the Banks and the Agent, all
the shares of the capital stock of its subsidiary. Such pledge shall
be governed by the terms of such stock pledge agreement and not by the
terms of this Agreement
2.5. TRADEMARK ASSIGNMENTS. SalesLink has also executed and
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delivered to the Agent, for the benefit of the Banks and the Agent,
the Trademark Assignment pursuant to which SalesLink has assigned to
the Agent, for the benefit of the Banks and the Agent, certain
Collateral consisting of trademarks, service marks and trademark and
service mark rights, together with the goodwill appurtenant thereto.
The provisions of the Trademark Assignment from SalesLink are
supplemental to the provisions of this Agreement, and nothing
contained in the Trademark Assignment shall derogate from any of the
rights or remedies of the Agent or any of the Banks hereunder. Nor
shall anything contained in the Trademark Assignment be deemed to
prevent or extend the time of attachment or perfection of any security
interest in such Collateral created. Concurrently herewith InSolutions
is also executing and delivering to the Agent, for the benefit of the
Banks and the Agent, the Trademark Assignment pursuant to which
InSolutions is assigning to the Agent, for the benefit of the Banks
and the Agent, certain Collateral consisting of trademarks, service
marks and trademark and service mark rights, together with the
goodwill appurtenant thereto. The provisions of the Trademark
Assignment are supplemental to the provisions of this Agreement, and
nothing contained in the Trademark Assignment shall derogate from any
of the rights or remedies of the Agent or any of the Banks hereunder.
Nor shall anything contained in the Trademark Assignment be deemed to
prevent or extend the time of attachment or perfection of any security
interest in such Collateral created hereby.
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3. Title to Collateral, etc. Each Company is the owner of its Collateral
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free from any adverse lien, security interest or other encumbrance, except for
the security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in (S)9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. None of the account debtors in respect of any
accounts, chattel paper or general intangibles and none of the obligors in
respect of any instruments included in the Collateral is a governmental
authority subject to the Federal Assignment of Claims Act.
4. CONTINUOUS PERFECTION. Each Company's place of business or, if more
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than one, chief executive office is indicated on the Perfection Certificate
delivered by such Company to the Agent herewith (the "Perfection Certificates").
Neither Company will change the same, or the name, identity or corporate
structure of such Company in any manner, without providing at least 30 days
prior written notice to the Agent. The Collateral, to the extent not delivered
to the Agent pursuant to (S)2.2, will be kept at those locations listed on the
respective Perfection Certificate and neither Company will remove the Collateral
from such locations, without providing at least 30 days prior written notice to
the Agent.
5. NO LIENS. Except for the security interest herein granted and liens
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permitted by the Credit Agreement, each Company shall be the owner of its
Collateral free from any lien, security interest or other encumbrance, and each
Company shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. Neither Company shall pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
6. NO TRANSFERS. Neither Company will sell or offer to sell or otherwise
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transfer the Collateral or any interest therein except for (a) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business and (b) sales or other dispositions of obsolescent items of equipment
in the ordinary course of business consistent with past practices.
7. INSURANCE.
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7.1. MAINTENANCE OF INSURANCE. Each Company will maintain with
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financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that each Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
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such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks and
the Agent. Without limiting the foregoing, each Company will (a) keep all
of its physical property insured with casualty or physical hazard insurance
on an "all risks" basis, with broad form flood and earthquake coverages and
electronic data processing coverage, with a full replacement cost
endorsement and an "agreed amount" clause in an amount equal to 100% of the
full replacement cost of such property, (b) maintain all such workers'
compensation or similar insurance as may be required by law and (c)
maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of such Company; business interruption insurance; and product
liability insurance.
7.2. INSURANCE PROCEEDS. The proceeds of any casualty insurance in
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respect of any casualty loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property
covered thereby, (a) so long as no Default or Event of Default has occurred
and is continuing and to the extent that the amount of such proceeds is
less than $25,000, be disbursed to the applicable Company for direct
application by such Company solely to the repair or replacement of the
applicable Company's property so damaged or destroyed and (b) in all other
circumstances, be held by the Agent as cash collateral for the Obligations.
The Agent may, at its sole option, disburse from time to time all or any
part of such proceeds so held as cash collateral, upon such terms and
conditions as the Agent may reasonably prescribe, for direct application by
the applicable Company solely to the repair or replacement of such
Company's property so damaged or destroyed, or the Agent may apply all or
any part of such proceeds to the Obligations with the Total Commitment (if
not then terminated) being reduced by the amount so applied to the
Obligations.
7.3. NOTICE OF CANCELLATION, ETC. All policies of insurance shall
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provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by either Company to provide and
maintain insurance as herein provided, the Agent may, at its option,
provide such insurance and charge the amount thereof to such Company. Each
Company shall furnish the Agent with certificates of insurance and policies
evidencing compliance with the foregoing insurance provision.
8. MAINTENANCE OF COLLATERAL; COMPLIANCE WITH LAW. Each Company will keep
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the Collateral in good order and repair and will not use the same in violation
of law or any policy of insurance thereon. The Agent, or its designee, may
inspect the Collateral at any reasonable time, wherever located. Each Company
will pay promptly when due all taxes, assessments, governmental charges and
levies upon the Collateral or incurred in connection with the use or operation
of such Collateral
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or incurred in connection with this Agreement. Each Company has at all times
operated, and each Company will continue to operate, its business in compliance
with all applicable provisions of the federal Fair Labor Standards Act, as
amended, and with all applicable provisions of federal, state and local statutes
and ordinances dealing with the control, shipment, storage or disposal of
hazardous materials or substances.
9. COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL.
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9.1. EXPENSES INCURRED BY AGENT. In its discretion, the Agent may
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discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral, make necessary repairs thereto and pay any necessary
filing fees. Each Company agrees to reimburse the Agent on demand for any
and all expenditures so made. The Agent shall have no obligation to either
Company to make any such expenditures, nor shall the making thereof relieve
such Company of any default.
9.2. AGENT'S OBLIGATIONS AND DUTIES. Anything herein to the contrary
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notwithstanding, each Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by such
Company thereunder. Neither the Agent nor any Bank shall have any
obligation or liability under any such contract or agreement by reason of
or arising out of this Agreement or the receipt by the Agent or any Bank of
any payment relating to any of the Collateral, nor shall the Agent or any
Bank be obligated in any manner to perform any of the obligations of any
Company under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Agent or any Bank in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, 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 the
Agent or to which the Agent or any Bank may be entitled at any time or
times. The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under (S)9-207
of the Uniform Commercial Code of the Commonwealth of Massachusetts or
otherwise, shall be to deal with such Collateral in the same manner as the
Agent deals with similar property for its own account.
10. SECURITIES AND DEPOSITS. The Agent may at any time after the
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occurrence of an Event of Default, at its option, transfer to itself or any
nominee any securities constituting Collateral, receive any income thereon and
hold such income as additional Collateral or apply it to the Obligations.
Whether or not any Obligations are due, the Agent may, after the occurrence of
an Event of Default, demand, sue for, collect, or make any settlement or
compromise which it deems desirable with respect to the Collateral. Regardless
of the adequacy of Collateral or any other security for the Obligations, any
deposits or other sums at any time
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credited by or due from the Agent or any Bank to any Company may at any time be
applied to or set off against any of the Obligations.
10.1. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER OBLIGORS. If an Event of
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Default shall have occurred and be continuing, each Company shall, at the
request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of such Company and obligors on instruments for which such
Company is an obligee of the security interest of the Agent in any account,
chattel paper, general intangible or instrument and that payment thereof is to
be made directly to the Agent or to any financial institution designated by the
Agent as the Agent's agent therefor, and the Agent may itself, if an Event of
Default shall have occurred and be continuing, without notice to or demand upon
such Company, so notify account debtors and obligors. After the making of such
a request or the giving of any such notification, each Company shall hold any
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by such Company as trustee for the Agent, for the benefit
of the Banks and the Agent, without commingling the same with other funds of
such Company and shall turn the same over to the Agent in the identical form
received, together with any necessary endorsements or assignments. The Agent
shall apply the proceeds of collection of accounts, chattel paper, general
intangibles and instruments received by the Agent to the Obligations, such
proceeds to be immediately entered after final payment in cash or solvent
credits of the items giving rise to them.
11. FURTHER ASSURANCES.
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Each Company, at its own expense, shall do, make, execute and deliver all
such additional and further acts, things, deeds, assurances and instruments as
the Agent may require more completely to vest in and assure to the Agent and the
Banks their respective rights hereunder or in any of the Collateral, including,
without limitation, (i) executing, delivering and, where appropriate, filing
financing statements and continuation statements under the Uniform Commercial
Code, (ii) obtaining governmental and other third party consents and approvals,
including without limitation any consent of any licensor, lessor or other
applicable party referred to in (S)2.3, (iii) obtaining waivers from mortgagees
and landlords and (iv) taking all actions required by Sections 8-313 and 8-321
of the Uniform Commercial Code (1990) or Sections 8-106 and 9-115 of the Uniform
Commercial Code (1994), as applicable in each relevant jurisdiction, with
respect to certificated and uncertificated securities.
12. POWER OF ATTORNEY.
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12.1. APPOINTMENT AND POWERS OF AGENT. Each Company hereby
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irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful attorneys-
in-fact with full irrevocable power and authority in the place and stead of
such Company or in the Agent's own name, for the purpose of carrying out
the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and, without
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limiting the generality of the foregoing, hereby gives said attorneys the
power and right, on behalf of such Company, without notice to or assent by
such Company, to do the following:
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to do
at such Company' expense, at any time, or from time to time, all acts
and things which the Agent deems necessary to protect, preserve or
realize upon the Collateral and the Agent's security interest therein,
in order to effect the intent of this Agreement, all as fully and
effectively as such Company might do, including, without limitation,
(i) the filing and prosecuting of registration and transfer
applications with the appropriate federal or local agencies or
authorities with respect to trademarks, copyrights and patentable
inventions and processes, (ii) upon written notice to such Company,
the exercise of voting rights with respect to voting securities, which
rights may be exercised, if the Agent so elects, with a view to
causing the liquidation in a commercially reasonable manner of assets
of the issuer of any such securities and (iii) the execution, delivery
and recording, in connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other instruments of
conveyance or transfer with respect to such Collateral; and
(b) to file such financing statements with respect hereto, with
or without such Company's signature, or a photocopy of this Agreement
in substitution for a financing statement, as the Agent may deem
appropriate and to execute in such Company's name such financing
statements and amendments thereto and continuation statements which
may require such Company's signature.
12.2. RATIFICATION BY COMPANY. To the extent permitted by law, each
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Company hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with
an interest and shall be irrevocable.
12.3. NO DUTY ON AGENT. The powers conferred on the Agent hereunder
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are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
actually receives as a result of the exercise of such powers and neither it
nor any of its officers, directors, employees or agents shall be
responsible to each Company for any act or failure to act, except for the
Agent's own gross negligence or willful misconduct.
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13. REMEDIES. If an Event of Default shall have occurred and be
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continuing, the Agent may, without notice to or demand upon either Company,
declare this Agreement to be in default, and the Agent shall thereafter have in
any jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as
either Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require any Company to assemble all or any part of the Collateral at
such location or locations within the state(s) of such Company's principal
office(s) or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to such
Company at least ten Business Days prior written notice of the time and place of
any public sale of Collateral or of the time after which any private sale or any
other intended disposition is to be made. Each Company hereby acknowledges that
ten Business Days prior written notice of such sale or sales shall be reasonable
notice. In addition, each Company waives any and all rights that it may have to
a judicial hearing in advance of the enforcement of any of the Agent's rights
hereunder, including, without limitation, its right following an Event of
Default to take immediate possession of the Collateral and to exercise its
rights with respect thereto. To the extent that any of the Obligations are to be
paid or performed by a person other than such Company, such Company waives and
agrees not to assert any rights or privileges which it may have under (S)9-112
of the Uniform Commercial Code of the Commonwealth of Massachusetts.
14. NO WAIVER, ETC. Each Company waives demand, notice, protest, notice of
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acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, each Company assents to any extension or postponement of the
time of payment or any other indulgence, to any substitution, exchange or
release of or failure to perfect any security interest in any Collateral, to the
addition or release of any party or person primarily or secondarily liable, to
the acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in (S)9.2. The
Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay or omission on the
part of the Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of the Agent with respect to the Obligations or the Collateral, whether
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evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised singularly, alternatively, successively or concurrently at such
time or at such times as the Agent deems expedient.
15. MARSHALLING. Neither the Agent nor any Bank shall be required to
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any present or marshal future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, each Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
each such Company hereby irrevocably waives the benefits of all such laws.
16. PROCEEDS OF DISPOSITIONS; EXPENSES. Each Company shall pay to the
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Agent on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as the Bank may determine or in such order or
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preference as is provided in the Credit Agreement, proper allowance and
provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments
required by Section 9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts, any excess shall be returned to the applicable
Company, and such Company shall remain liable for any deficiency in the payment
of the Obligations.
17. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
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Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
18. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Each Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the non-exclusive jurisdiction of such court and to service of
process in any such
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suit being made upon such Company by mail at the address specified in the
signature page of the Credit Agreement. Each Company hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court.
19. WAIVER OF JURY TRIAL. EACH COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
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WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, each Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. Each Company (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this (S)19.
20. MISCELLANEOUS. The headings of each section of this Agreement are for
-------------
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon each
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. Each
Company acknowledges receipt of a copy of this Agreement.
21. TRANSITIONAL ARRANGEMENTS. This Amended and Restated Security
-------------------------
Agreement shall supersede the Original Security Agreement on the Closing Date.
On the Closing Date, the rights and obligations of the respective parties under
the Original Security Agreement shall be subsumed within and governed by this
Amended and Restated Security Agreement; provided, that the provisions of the
Original Security Agreement shall remain in full force and effect prior to the
Closing Date, and that the liens granted pursuant to the Original Security
Agreement shall continue to be in effect hereunder as set forth in (S)2.1
hereof.
IN WITNESS WHEREOF, intending to be legally bound, each Company has caused
this Agreement to be duly executed as of the date first above written.
SALESLINK CORPORATION
By:_________________________
Title:
INSOLUTIONS CORPORATION
By:_________________________
Title:
Accepted:
BANKBOSTON, N.A.
(f/k/a The First National
Bank of Boston),
as Agent
By:_________________________
Title:
-2-
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS __________)
) ss.
COUNTY OF ______________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this _______ day of June, 1998, personally appeared
________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the ______________________ of SalesLink
Corporation, and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors, and said
____________________________ acknowledged said instrument to be the free act and
deed of said corporation.
______________________________
Notary Public
My commission expires:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS __________)
) ss.
COUNTY OF ______________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this _______ day of June, 1998, personally appeared
________________________ to me known personally, and who, being by me duly
sworn, deposes and says that he is the ______________________ of InSolutions
Incorporated, and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors, and said
____________________________ acknowledged said instrument to be the free act and
deed of said corporation.
______________________________
Notary Public
My commission expires: