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Exhibit 10.17
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NCS HEALTHCARE, INC.
AS AN ASSIGNOR
ITS SUBSIDIARIES WHICH ARE OR
HEREAFTER BECOME A PARTY HERETO
AS ASSIGNORS
WITH
[LOGO KEYBANK]
KEYBANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
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SECURITY AGREEMENT
DATED AS OF
AUGUST 3, 1999
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SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of August 3, 1999 (as amended, modified,
or supplemented from time to time, "THIS AGREEMENT"), among (i) NCS HEALTHCARE,
INC., a Delaware corporation (herein, together with its successors and assigns,
the "BORROWER" or an "ASSIGNOR"); (ii) each of the Subsidiaries of the Borrower
which is now or hereafter becomes a party hereto (each, together with its
successors and assigns, an "ASSIGNOR"; all of the Assignors are collectively
referred to as the "ASSIGNORS"); and (ii) KEYBANK NATIONAL ASSOCIATION, a
national banking association, as collateral agent (herein, together with its
successors and assigns in such capacity, the "COLLATERAL AGENT"), for the
benefit of the Secured Creditors (as defined below):
PRELIMINARY STATEMENTS:
(1) Except as otherwise defined herein, terms used herein and defined
in the Credit Agreement (as defined below) shall be used herein as therein
defined. Certain terms are defined in section 1 hereof.
(2) This Agreement is made pursuant to the Credit Agreement, dated as
of June 1, 1998, as amended by Amendment No. 1 thereto, dated as of July 13,
1998, Amendment No. 2 thereto, dated as of March 3, 1999, and Amendment No. 3
thereto, dated as of August 3, 1999 (herein, as so amended and as hereafter
amended or otherwise modified, restated or replaced from time to time, the
"CREDIT AGREEMENT"), among the Borrower, the financial institutions named as
lenders therein (herein, together with their successors and assigns, the
"LENDERS"), and KeyBank National Association, as the Administrative Agent (the
"ADMINISTRATIVE AGENT") for the Lenders under the Credit Agreement.
(3) The Credit Agreement provides, among other things, for loans or
advances or other extensions of credit to or for the benefit of the Borrower of
up to $235,000,000, with such loans or advances being evidenced by promissory
notes (the "NOTES", such term to include all notes and other securities issued
in exchange therefor or in replacement thereof). The Credit Agreement also
provides that one or more Letter of Credit Issuers may issue Letters of Credit
for the benefit of the Borrower and/or any of its Subsidiaries, and that the
Lenders will risk participate in such Letters of Credit.
(4) The Borrower or any of its Subsidiaries may from time to time be
party to one or more Designated Hedge Agreements (as defined in the Credit
Agreement) and other Designated Hedge Documents (as defined herein). Any
institution or other person that participates, and in each case their successors
and assigns, as a counterpart to the Borrower or any of its Subsidiaries or
Affiliates pursuant to any Designated Hedge Document is referred to herein
individually as a "DESIGNATED HEDGE CREDITOR" and collectively as the
"DESIGNATED HEDGE CREDITORS".
(5) This Agreement is made for the benefit of the Administrative
Agent, the Collateral Agent, each Letter of Credit Issuer, the Lenders and the
Designated Hedge Creditors (any or all of the foregoing, together with their
respective successors and assigns, individually a "SECURED CREDITOR" and
collectively, the "SECURED CREDITORS").
(6) Pursuant to the Subsidiary Guaranty, each Subsidiary Guarantor
has jointly and severally guaranteed to the Secured Creditors the payment when
due of the Guaranteed Obligations (as defined in the Subsidiary Guaranty). The
Subsidiary Guaranty and this Agreement are each a Credit Document.
(7) It is a condition precedent to the making of Loans and the
issuance of, and participation in, Letters of Credit under the Credit Agreement
that each Assignor shall have executed and delivered to the Collateral Agent
this Agreement.
(8) Each Assignor will obtain benefits from the incurrence of the
Credit Document Obligations and the Designated Hedge Document Obligations (as
such terms are hereafter defined) and, accordingly, desires to execute this
Agreement in order to satisfy the condition described in the preceding paragraph
and to induce the Secured Creditors to extend the Credit Document Obligations
and the Designated Hedge Document Obligations.
NOW, THEREFORE, in consideration of the benefit accruing to each
Assignor, the receipt and sufficiency of which are hereby acknowledged, each
Assignor hereby makes the following representations and warranties to the
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Collateral Agent and the other Secured Creditors and hereby covenants and agrees
with the Collateral Agent and the other Secured Creditors as follows:
1. DEFINITIONS AND TERMS.
1.1. DEFINED TERMS. Except as otherwise defined herein, terms used
herein and defined in the Credit Agreement shall be used herein as therein
defined. The following terms shall have the meanings herein specified unless the
context otherwise requires:
"ACCOUNT" shall mean any "account", as such term is now or hereafter
defined in the UCC.
"ACCOUNT DEBTOR" shall mean any "account debtor", as such term is now
or hereafter defined in the UCC.
"ACCOUNTS RECEIVABLE" shall mean (i) all Accounts, now existing or
hereafter arising; and (ii) without limitation of the foregoing, in any event
shall include, but shall not be limited to, (1) all right to a payment, whether
or not earned by performance, for Goods or other property (other than money)
that has been or is to be sold, consigned, leased, licensed, assigned or
otherwise disposed of, for services rendered or to be rendered, for a policy of
insurance issued or to be issued, for a suretyship obligation incurred or to be
incurred, for energy provided or to be provided, or for the use or hire of a
vessel under a charter or other contract whether due or to become due, whether
or not it has been earned by performance, and whether now existing or hereafter
acquired or arising in the future, including Accounts Receivable from employees
and Affiliates of any Assignor, (2) all rights evidenced by an Account, invoice,
purchase order, requisition, bill of exchange, note, contract, security
agreement, lease, chattel paper, or any evidence of indebtedness or security
related to the foregoing, (3) all security pledged, assigned, hypothecated or
granted to or held by an Assignor to secure the foregoing, (4) all guarantees,
letters of credit, banker's acceptances, drafts, endorsements, credit insurance
and indemnifications on, for or of, any of the foregoing, including all rights
to make drawings, claims or demands for payment thereunder, and (5) all powers
of attorney for the execution of any evidence of indebtedness, guaranty, letter
of credit or security or other writing in connection therewith.
"AGREEMENT" shall mean this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"AS-EXTRACTED COLLATERAL" shall mean any "as-extracted collateral", as
such term is now or hereafter defined in the UCC.
"ASSIGNOR" shall have the meaning specified in the first paragraph of
this Agreement.
"BLOCKED ACCOUNT AGREEMENT" shall mean an agreement, satisfactory in
form and substance to the Collateral Agent, among an Assignor, the Collateral
Agent and the financial institution in which an Assignor has a Deposit Account,
pursuant to which, among other things, (i) the Collateral Agent shall have sole
dominion and control over all funds held to the credit of, and all disbursements
from, such Deposit Account, and (y) all of the funds on deposit in such Deposit
Account (other than, in the discretion of the Collateral Agent, balances of
$1,000 or less) shall be transferred to the Collateral Concentration Account on
a daily or other basis specified by the Collateral Agent.
"BLOCKED DEPOSIT ACCOUNT" shall mean a Deposit Account subject to a
Blocked Account Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day
which shall be at the Payment Office of the Administrative Agent a legal holiday
or a day on which banking institutions are authorized by law to close.
"CHATTEL PAPER" shall mean any "chattel paper", as such term is now or
hereafter defined in the UCC.
"COLLATERAL" shall have the meaning provided in section 2.1.
"COLLATERAL AGENT" shall have the meaning specified in the first
paragraph of this Agreement.
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"COLLATERAL CONCENTRATION ACCOUNT" shall mean a cash collateral Deposit
Account established in the name of the Collateral Agent, and under the sole
dominion and control of the Collateral Agent, for the benefit of the Secured
Creditors, at an office of the Administrative Agent.
"CONTRACT RIGHTS" shall mean all rights of an Assignor under or in
respect of a Contract, including, without limitation, all rights to payment,
damages, liquidated damages, and enforcement.
"CONTRACTS" shall mean all contracts between an Assignor and one or
more additional parties.
"COPYRIGHTS" shall mean any U.S. copyright to which an Assignor now or
hereafter has title, as well as any application for a U.S. copyright hereafter
made by such Assignor.
"CREDIT AGREEMENT" shall have the meaning provided in the Preliminary
Statements of this Agreement.
"CREDIT DOCUMENT OBLIGATIONS" shall mean and include:
(i) the principal of and interest on the Notes issued by,
and the Loans made to, the Borrower under the Credit Agreement,
(ii) all reimbursement obligations and Unpaid Drawings with
respect to Letters of Credit issued under the Credit Agreement,
and
(iii) all other obligations and liabilities owing by the
Borrower and the other Credit Parties to the Administrative Agent,
the Collateral Agent, any Letter of Credit Issuer or any of the
Lenders under the Credit Agreement and the other Credit Documents
to which the Borrower or any other Credit Party is now or may
hereafter become a party (including, without limitation,
indemnities, Fees and other amounts payable thereunder), whether
primary, secondary, direct, contingent, fixed or otherwise,
in all cases whether now existing, or hereafter incurred or arising, including
any such interest or other amounts incurred or arising during the pendency of
any bankruptcy, insolvency, reorganization, receivership or similar proceeding,
regardless of whether allowed or allowable in such proceeding or subject to an
automatic stay under section 362(a) of the Bankruptcy Code.
"DEPOSIT ACCOUNT" shall mean any "deposit account", as such term is now
or hereafter defined in the UCC.
"DESIGNATED HEDGE DOCUMENT" shall mean and include (i) each Designated
Hedge Agreement to which the Borrower or any of its Subsidiaries or Affiliates
is now or may hereafter become a party, and (ii) each confirmation, transaction
statement or other document executed and delivered in connection therewith to
which the Borrower or any of its Subsidiaries or Affiliates is now or may
hereafter become a party.
"DESIGNATED HEDGE DOCUMENT OBLIGATIONS" shall mean and include all
obligations and liabilities owing by the Borrower or any of its Subsidiaries or
Affiliates under all existing and future Designated Hedge Documents, in all
cases whether now existing, or hereafter incurred or arising, including any such
amounts incurred or arising during the pendency of any bankruptcy, insolvency,
reorganization, receivership or similar proceeding, regardless of whether
allowed or allowable in such proceeding or subject to an automatic stay under
section 362(a) of the Bankruptcy Code.
"DESIGNATED HEDGE CREDITORS" shall have the meaning provided in the
Preliminary Statements of this Agreement.
"DOCUMENT" shall mean any "document", as such term is now or hereafter
defined in the UCC.
"EQUIPMENT" shall mean any "equipment", as such term is now or
hereafter defined in the UCC.
"EVENT OF DEFAULT" shall mean any Event of Default under, and as
defined in, the Credit Agreement, or any payment default, after any applicable
grace period, under any Designated Hedge Document.
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"FIXTURES" shall mean any "fixtures", as such term is now or hereafter
defined in the UCC.
"GENERAL INTANGIBLES" shall mean any "general intangibles", as such
term is now or hereafter defined in the UCC.
"GOODS" shall mean any "goods", as such term is now or hereafter
defined in the UCC.
"INSTRUMENT" shall mean any "instrument", as such term is now or
hereafter defined in the UCC.
"INVENTORY" shall mean (i) any "inventory", as such term is now or
hereafter defined in the UCC; and (ii) without limitation of the foregoing, in
any event shall include, but shall not be limited to, all merchandise and other
Goods held for sale or lease, or furnished or to be furnished under contracts
for service, including, without limitation, (1) raw materials, (2) work in
process, (3) finished goods, (4) products made or processed, (5) intermediates,
(6) packing materials, (7) shipping materials, (8) labels, (9) semi-finished
inventory, (10) scrap inventory, (11) spare parts inventory, (12) manufacturing
supplies, (13) consumable supplies, (14) other substances commingled therewith
or added thereto, and (15) all such Goods that have been returned, reclaimed,
repossessed or exchanged.
"INVESTMENT PROPERTY" shall mean any "investment property", as such
term is now or hereafter defined in the UCC.
"LENDER" shall have the meaning provided in the Preliminary Statements
of this Agreement.
"MARKS" shall mean any trademarks and service marks now held or
hereafter acquired by an Assignor, which are registered in the United States
Patent and Trademark Office, as well as any unregistered marks used by an
Assignor in the United States and trade dress including logos and/or designs in
connection with which any of these registered or unregistered marks are used.
"MINERALS" shall mean any "minerals", as such term is now or hereafter
defined in the UCC.
"MONEY" shall mean any "money", as such term is now or hereafter
defined in the UCC.
"PATENTS" shall mean any U.S. patent to which an Assignor now or
hereafter has title, as well as any application for a U.S. patent now or
hereafter made by an Assignor.
"PERMITS" shall mean all licenses, permits, rights, orders, variances,
franchises or authorizations of or from any governmental authority or agency.
"PROCEEDS" shall mean (i) any "proceeds", as such term is now or
hereafter defined in the UCC; and (ii) without limitation of the foregoing, in
any event, shall include, but not be limited to, (1) whatever is acquired upon
the sale, lease, license, exchange, or other disposition of any Collateral, (2)
whatever is collected on, or distributed on account of, any Collateral, (3)
rights arising out of any Collateral, (4) claims arising out of the loss or
nonconformity of, defects in, or damage to any Collateral, (5) claims and rights
to any proceeds of any insurance, indemnity, warranty or guaranty payable to an
Assignor (or the Collateral Agent, as assignee, loss payee or an additional
insured) with respect to any of the Collateral, (6) claims and rights to
payments (in any form whatsoever) made or due and payable to an Assignor from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any governmental
authority (or any person acting under color of governmental authority), (7) all
cash, money, checks and negotiable instruments received or held on behalf of the
Collateral Agent pursuant to any lockbox or similar arrangement relating to the
payment of Accounts Receivable or other Collateral, and (8) any and all other
amounts from time to time paid or payable under or in connection with any of the
Collateral.
"PRODUCTS" shall mean any "products", as such term is now or hereafter
defined in the UCC.
"PROPRIETARY INFORMATION" means all information and know-how worldwide,
including, without limitation, technical data; manufacturing data; research and
development data; data relating to compositions, processes and formulations,
manufacturing and production know-how and experience; management know-how;
training programs;
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manufacturing, engineering and other drawings; specifications; performance
criteria; operating instructions; maintenance manuals; technology; technical
information; software; computer programs; engineering and computer data and
databases; design and engineering specifications; catalogs; promotional
literature; financial, business and marketing plans; inventions and invention
disclosures.
"SECURED CREDITORS" shall have the meaning provided in the Preliminary
Statements of this Agreement.
"SECURED OBLIGATIONS" shall mean and include
(i) in the case of the Borrower as one of the Assignors,
(A) its primary obligations in respect of all Credit Document
Obligations as to which it is a primary obligor; (B) its surety
obligations as a guarantor in respect of all Credit Document
Obligations as to which any of its Subsidiaries or Affiliates is a
primary obligor; (C) its primary obligations in respect of all
Designated Hedge Document Obligations as to which it is a primary
obligor; and (D) its surety obligations as a guarantor in respect
of all Designated Hedge Document Obligations as to which any of
its Subsidiaries or Affiliates is a primary obligor;
(ii) in the case of any Subsidiary Guarantor as one of the
Assignors, (A) its primary obligations in respect of all Credit
Document Obligations as to which it is a primary obligor; (B) its
surety obligations as a Subsidiary Guarantor under the Subsidiary
Guaranty; and (C) its primary obligations in respect of all
Designated Hedge Document Obligations as to which it is a primary
obligor;
(iii) in the case of any Assignor, any and all sums
advanced by the Collateral Agent in compliance with the provisions
of this Agreement or any of the other Credit Documents in order to
preserve the Collateral of such Assignor or to preserve or protect
its Security Interest in such Collateral, including, without
limitation, sums advanced to pay or discharge insurance premiums,
taxes, Liens and claims; and
(iv) in the case of any Assignor, in the event of any
proceeding for the collection or enforcement of any indebtedness,
obligations, or liabilities of such Assignor referred to in
clauses (i), (ii) and (iii) above, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Collateral of such
Assignor, or of any exercise by the Collateral Agent of its rights
hereunder in respect of such Assignor or its Collateral, together
with reasonable attorneys' fees and court costs.
"SECURITY INTEREST" shall mean the security interest granted by an
Assignor and/or by all Assignors, as applicable, pursuant to section 2.1 hereof.
"SIGNIFICANT MARK" shall have the meaning provided in section 6.3 of
this Agreement.
"SIGNIFICANT PATENT" shall have the meaning provided in section 7.3 of
this Agreement.
"TRADE SECRETS" means any secretly held existing engineering and other
data, information, production procedures and other know-how relating to the
design, manufacture, assembly, installation, use, operation, marketing, sale and
servicing of any products or business of an Assignor worldwide whether written
or not written.
"UCC" shall mean the Uniform Commercial Code, as at any time adopted
and in effect in any jurisdiction, specifically including and taking into
account all amendments, supplements, revisions and other modifications of the
Uniform Commercial Code which hereafter are adopted or otherwise take effect.
1.2 TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect
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as the word "shall". Unless the context requires otherwise, any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
any reference herein to any person shall be construed to include such person's
successors and assigns, the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, and unless otherwise specified, all
references herein to sections, Annexes and Exhibits shall be construed to refer
to sections of, and Annexes and Exhibits to, this Agreement.
2. SECURITY INTERESTS.
2.1. GRANT OF SECURITY INTERESTS. As security for the prompt and
complete payment and performance when due of the Secured Obligations, each
Assignor does hereby sell, assign and transfer unto the Collateral Agent, and
does hereby grant to the Collateral Agent, for the benefit of the Secured
Creditors, a continuing security interest in, all of the right, title and
interest of such Assignor in, to and under all of the following, whether now
existing or hereafter from time to time arising or acquired and wherever located
(collectively, the "COLLATERAL"):
(1) all Accounts, including, without limitation, each and every
Account Receivable;
(2) all Goods;
(3) all Inventory;
(4) all Equipment;
(5) all Documents;
(6) all Instruments;
(7) all Chattel Paper;
(8) all Money;
(9) the Collateral Concentration Account, all Blocked Deposit
Accounts, and all other Deposit Accounts, together with all monies,
securities and instruments at any time deposited in any such Account or
otherwise held for the credit thereof;
(10) all Investment Property;
(11) all Fixtures;
(12) all As-Extracted Collateral, including, without limitation,
all Minerals;
(13) all General Intangibles;
(14) all of each of the following: (A) all Contracts, together
with all Contract Rights arising thereunder; (B) all rights to any letter
of credit, including, without limitation, all rights to "proceeds of a
letter of credit", as such term is now or hereafter defined in the UCC;
(C) any "support obligation", as such term is now or hereafter defined in
the UCC; (D) all rights, claims and interests in or under any policy of
insurance; (E) any "commercial tort claim", as such term is now or
hereafter defined in the UCC; (F) any claim arising out of any other
tort; and (G) all rights represented by a judgment;
(15) all of each of the following: (A) all Marks, together with
the registrations and right to all renewals thereof, and the goodwill of
the business of such Assignor symbolized by the Marks; (B) all Patents
and Copyrights; (C) all computer programs and software of such Assignor
and all intellectual property rights
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therein and all other Proprietary Information of such Assignor,
including, but not limited to, Trade Secrets; and (D) all Permits;
(16) all other items, kinds and types of personal property,
tangible or intangible, of whatever nature, whether similar or dissimilar
to any or all of the foregoing, and regardless of whether the creation or
perfection or effect of perfection or nonperfection of a security
interest therein is governed by the UCC of any particular jurisdiction or
by any other applicable treaty, convention, statute, law or regulation of
any applicable jurisdiction;
(17) all additions, modifications, alterations, improvements,
upgrades, accessions, components, parts, appurtenances, substitutions
and/or replacements of, to or for any of the foregoing; and
(18) all Proceeds and Products of any and all of the foregoing;
TO HAVE AND HOLD unto and be dealt with by the Collateral Agent, for the
benefit of the Secured Creditors, upon the terms and conditions set forth in
this Agreement;
PROVIDED, HOWEVER, that there is specifically excluded from the Security
Interest, and the term Collateral shall not include:
(A) any Investment Property or other related Collateral of an
Assignor that is subjected to the security interest of the Pledge
Agreement;
(B) any Equipment or Goods that is subject to a "purchase money
security interest", as such term is now or hereafter defined in the UCC,
which (x) constitutes a Permitted Lien under the Credit Agreement; and
(y) prohibits the creation by an Assignor of a junior security interest
therein, unless the holder thereof has consented to the creation of such
a junior security interest; or
(C) any Account, Account Receivable, Contract, Permit,
Proprietary Information or General Intangible, or the Proceeds or
Products of any of the foregoing, IF AND ONLY TO THE EXTENT THAT:
(1) in the case of any such item of Collateral, (x) any
Contract evidencing such item of Collateral contains a valid and
effective contractual restriction or limitation which prohibits
the grant or creation of a security interest therein, or (y) a
valid and effective restriction or limitation imposed by
applicable law, regulation, rule, order or other directive of any
governmental body, agency or authority, or the order of any court
of competent jurisdiction, prohibits the grant or creation of a
security interest in such item of Collateral, or
(2) in the case of any such item of Collateral, such item
of Collateral would be subject to loss or forfeiture upon the
grant or creation of a security interest therein by reason of (x)
a valid and effective contractual restriction or limitation
contained in any Contract evidencing such item of Collateral, or
(y) a valid and effective restriction or limitation imposed by
applicable law, regulation, rule, order or other directive of any
governmental body, agency or authority, or the order of any court
of competent jurisdiction.
The inclusion of any item or type of property in any of the foregoing
clauses or in any of the defined terms used therein does not imply the exclusion
of such item or type of property from any of the other clauses of this section
2.1 or any of the definitions used in such clauses. The Security Interest of the
Collateral Agent under this Agreement extends to all Collateral of any kind
and/or nature which any Assignor may acquire at any time during the continuation
of this Agreement.
2.2. NO ASSUMPTION OF LIABILITY. The Security Interest of any Assignor is
granted as security only and shall not subject the Collateral Agent or any other
Secured Creditor to, or in any way alter or modify, any obligation or liability
of such Assignor with respect to or arising out of any of the Collateral.
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2.3. POWER OF ATTORNEY. Each Assignor hereby irrevocably constitutes and
appoints the Collateral Agent its true and lawful agent and attorney-in-fact,
after the occurrence of and during the continuance of an Event of Default, and
in such capacity the Collateral Agent shall have the right, with full power of
substitution, in the name of such Assignor or otherwise, for the use and benefit
of the Collateral Agent and the other Secured Creditors, but subject to any
mandatory requirements or limitations of applicable law at the time in effect,
to receive, endorse, present, assign, deliver and/or otherwise deal with any and
all notes, acceptances, letters of credit, checks, drafts, money orders, or
other evidences of payment relating to the Collateral of such Assignor or any
part thereof; to demand, collect, receive payment of, and give receipt for and
give credits, allowances, discounts, discharges, releases and acquittances of
and for any or all of the Collateral of such Assignor; to sign the name of such
Assignor on any invoice or bill of lading relating to any of the Collateral of
such Assignor; to send verifications of any or all of the Accounts Receivable of
such Assignor to its Account Debtors; to commence and prosecute any and all
suits, actions or proceedings at law or in equity in or before any court or
other tribunal (including any arbitration proceedings) to collect or otherwise
realize on all or any of the Collateral of such Assignor, or to enforce any
rights of such Assignor in respect of any of its Collateral; to settle,
compromise, compound, adjust or defend any actions, suits or proceedings
relating to any or all of the Collateral of such Assignor; to notify, or require
such Assignor to notify or cause to be notified, its Account Debtors to make
payment directly to the Collateral Agent or to a Blocked Deposit Account; and/or
to use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with any or all of the Collateral of such Assignor, and to do all
other acts and things necessary or appropriate to carry out the intent and
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral of such Assignor for all
purposes; PROVIDED, HOWEVER, that nothing herein contained shall be construed as
requiring or obligating the Collateral Agent or any other Secured Creditor to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent or any other Secured Creditor, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken or omitted to be
taken by the Collateral Agent or any other Secured Creditor with respect to the
Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of any Assignor or to any claim or action against the Collateral
Agent or any other Secured Creditor. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of each of
the Assignors for the purposes set forth above is a presently effective
appointment, is coupled with an interest and is irrevocable. The provisions of
this section shall in no event relieve any Assignor of any of its obligations
under this Agreement or any of the other Credit Documents with respect to the
Collateral or any part thereof or impose any obligation on the Collateral Agent
or any other Secured Creditor to proceed in any particular manner with respect
to the Collateral or any part thereof, or in any way limit the exercise by the
Collateral Agent or any other Secured Creditor of any other or further right it
may have on the date of this Agreement or hereafter, whether hereunder, under
any other Credit Document, by law or otherwise.
3. REPRESENTATIONS AND WARRANTIES.
Each Assignor represents and warrants to the Collateral Agent and the
other Secured Creditors, which representations and warranties shall survive
execution and delivery of this Agreement, as follows:
3.1. AUTHORITY. Such Assignor has full organizational power and authority
to grant to the Collateral Agent the Security Interest in such Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement.
3.2 ABSENCE OF OTHER LIENS, ETC. There is no financing statement (or
similar statement or instrument of registration under the law of any
jurisdiction) covering or purporting to cover any interest of any kind of such
Assignor in the Collateral, EXCEPT as disclosed in Annex A hereto (the
"PERMITTED FILINGS"), and for financing statements and continuation statements
filed to perfect or continue the perfection of the Security Interest.
(b) Such Assignor has, and as to any Collateral acquired by it from time
to time after the date hereof such Assignor will have, (i) good title to all
tangible items of Collateral owned by it (except for any items which in the
aggregate are of immaterial value in regard to the Collateral of all Assignors
considered as an entirety), and (ii) good and sufficient rights in all other
items and types of its Collateral (except for any items which in the aggregate
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are of immaterial value in regard to the Collateral of all Assignors considered
as an entirety), in each case free and clear of any Lien, EXCEPT FOR Permitted
Liens.
3.3. EFFECTIVE AND ENFORCEABLE SECURITY INTEREST. The Security Interest
of such Assignor constitutes, as between such Assignor and the Collateral Agent,
an effective and enforceable security interest in all of the Collateral of such
Assignor, securing the payment and performance of the Secured Obligations.
3.4. PERFECTION OF SECURITY INTEREST UNDER UCC. All notifications and
other actions, including, without limitation,
(1) all deposits of certificates and instruments evidencing any
Collateral (duly endorsed or accompanied by appropriate instruments of
transfer),
(2) all notices to and acknowledgments of any bailee or other
person,
(3) all acknowledgments and agreements respecting the right of the
Collateral Agent to "control" any Collateral, as such term is now or
hereafter defined in the UCC, and
(4) all filings, registrations and recordings,
which are (x) required by the terms of this Agreement to have been given, made,
obtained, done and accomplished, and (y) necessary to create, preserve, protect
and perfect the Security Interest granted by such Assignor to the Collateral
Agent hereby in respect of its portion of the Collateral, have been given, made,
obtained, done and accomplished.
(b) After giving effect to all such actions, the Security Interest
granted by such Assignor to the Collateral Agent pursuant to this Agreement in
and to its portion of the Collateral will be perfected, to the extent a security
interest in such Assignor's portion of the Collateral can be perfected under the
UCC of any applicable jurisdiction.
3.5. PLACES OF BUSINESS, LOCATIONS OF COLLATERAL, ETC. At and as of the
date hereof, the principal place of business of such Assignor, or its chief
executive office (and the registered office of any Assignor which is a
corporation) if it has more than one place of business, is located at the
address indicated on Annex B hereto; the U.S. Federal Tax I.D. Number of such
Assignor is set forth on Annex B hereto; and all Inventory and Equipment of such
Assignor is located at one of the locations shown on Annex C attached hereto.
4. GENERAL COVENANTS.
4.1. NO OTHER LIENS; DEFENSE OF TITLE, ETC. No Assignor will make or
grant, or suffer or permit to exist, any Lien on any of its Collateral, OTHER
than the Permitted Liens.
(b) Each Assignor, at its sole cost and expense, will take any and all
actions reasonably necessary to defend title to its Collateral against any and
all persons and to defend the validity, perfection, effectiveness and priority
of the Security Interest of the Collateral Agent therein against any Lien other
than Permitted Liens.
4.2. FURTHER ASSURANCES; FILINGS AND RECORDINGS, ETC. Each Assignor, at
its sole cost and expense, will duly execute, acknowledge and deliver all such
agreements, instruments and other documents and take all such actions
(including, without limitation, (1) physically pledging Instruments, Documents,
Chattel Paper and certificates evidencing Investment Property, with the
Collateral Agent, (2) obtaining from other persons Blocked Account Agreements in
accordance with section 5.2(a), (3) obtaining from other persons lien waivers
and bailee letters in accordance with section 4.4(c), (4) obtaining from other
persons agreements evidencing the exclusive control and dominion of the
Collateral Agent over any Investment Property, in instances where confirmation
of the "control" of the Collateral Agent over the particular Investment Property
is required in order to perfect a security interest therein and such actions are
required under the circumstances contemplated by section 4.2(e)(iv),and (5)
making filings, recordings and registrations), as the Collateral Agent may from
time to time request in order to better assure, preserve, protect and perfect
the Security Interest of the Collateral Agent in the Collateral of such
Assignor, and the
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rights and remedies of the Collateral Agent hereunder, or otherwise to further
effectuate the intent and purposes of this Agreement and to carry out the terms
hereof.
(b) Each Assignor, at its sole cost and expense, will at all times cause
this Agreement (and/or proper notices, financing or other statements in respect
hereof, and supplemental collateral assignments or collateral security
agreements in respect of any portion of the Collateral) to be duly filed,
recorded, registered and published, and re-filed, re-recorded, re-registered and
re-published in such manner and in such places as may be required under the UCC
or other applicable law in order to establish, perfect, preserve and protect the
rights, remedies and Security Interest of the Collateral Agent in or with
respect to the Collateral of such Assignor, and pay all taxes, fees and charges
and comply with all statutes and regulations, applicable to such filing,
recording, registration and publishing and such re-filing, re-recording,
re-registration and re-publishing. Each Assignor irrevocably authorizes the
Collateral Agent to file any financing statements with respect to the Collateral
of such Assignor without the signature of such Assignor where the Collateral
Agent is permitted by applicable law to do so.
(c) When requested from time to time by the Collateral Agent to do so,
each Assignor will promptly furnish to the Collateral Agent such information
concerning itself and the location of its Collateral, in order that the
Collateral Agent may determine whether all filings, recordings and registrations
have been made in all jurisdictions in which such filing, recording or
registration is necessary under the UCC or other applicable law in order to
establish, perfect, preserve and protect the rights, remedies and Security
Interest of the Collateral Agent in or with respect to the Collateral of such
Assignor.
(d) When requested from time to time by the Collateral Agent to do so,
each Assignor will promptly furnish to the Collateral Agent such information and
copies of documents as may be requested concerning any item or type of
Collateral as to which a security interest may not be perfected by the filing of
a financing statement under the UCC of any applicable jurisdiction, in order
that the Collateral Agent may determine whether to require such Assignor to take
any actions under section 4.2(a) with regard thereto.
(e) Notwithstanding the foregoing or anything to the contrary contained
in this Agreement:
(i) no Assignor shall be required to file any UCC financing
statement as a "fixture filing" which includes the legal description of
any real property, in order to perfect the Security Interest in any
Fixtures included in the Collateral, unless and until required to do so
on not less than 15 days' prior written notice from the Collateral Agent
to such effect (such notice to be given by the Collateral Agent only upon
written instructions from the Required Lenders, issued by the Required
Lenders, in their sole respective discretion, following review of any
monthly, quarterly or annual financial information regarding the Borrower
and its Subsidiaries which is furnished pursuant to section 8.1 of the
Credit Agreement for any period subsequent to June 30, 1999);
(ii) no Assignor shall be required to file this Agreement or any
separate collateral document with the United States Patent and Trademark
Office or with the United States Copyright Office, in order to perfect
the Security Interest in any Patents, Trademarks, Copyrights or similar
Collateral, unless and until required to do so on not less than 10 days'
prior written notice from the Collateral Agent to such effect (such
notice to be given by the Collateral Agent only upon written instructions
from the Required Lenders, issued by the Required Lenders, in their sole
respective discretion, following review of any monthly, quarterly or
annual financial information regarding the Borrower and its Subsidiaries
which is furnished pursuant to section 8.1 of the Credit Agreement for
any period subsequent to June 30, 1999);
(iii) an Assignor shall not be obligated to physically deliver
to, or deposit with, the Collateral Agent, any of its Collateral in order
to perfect the Security Interest therein unless and until the Collateral
Agent shall have given such Assignor written notice requiring the same to
be done (such notice to be given by the Collateral Agent only upon
written instructions from the Required Lenders, issued by the Required
Lenders, in their sole respective discretion, following review of any
monthly, quarterly or annual financial information regarding the Borrower
and its Subsidiaries which is furnished pursuant to section 8.1 of the
Credit Agreement for any period subsequent to June 30, 1999), and if any
such notice is given the applicable Assignor will immediately, and in any
event within two Business Days following its receipt of such notice,
effect such deposit with or delivery to the Collateral Agent; and
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(iv) an Assignor shall not be obligated to obtain an agreement
evidencing the exclusive control of the Collateral Agent over any of its
Investment Property in order to perfect the Security Interest therein
unless and until the Collateral Agent shall have given such Assignor
written notice requiring the same to be done (such notice to be given by
the Collateral Agent only upon written instructions from the Required
Lenders, issued by the Required Lenders, in their sole respective
discretion, following review of any monthly, quarterly or annual
financial information regarding the Borrower and its Subsidiaries which
is furnished pursuant to section 8.1 of the Credit Agreement for any
period subsequent to June 30, 1999), and if any such notice is given the
applicable Assignor will promptly, and in any event within 10 Business
Days following its receipt of such notice, obtain and deliver any such
agreement to the Collateral Agent.
4.3. CONTINUING OBLIGATIONS OF THE ASSIGNORS IN RESPECT OF THE
COLLATERAL. Each Assignor shall remain liable to duly pay, observe, perform and
satisfy all of the obligations, terms, covenants, provisions and conditions to
be paid, observed, performed and satisfied by it under each contract, agreement
and instrument relating to its Collateral, all in accordance with the terms,
covenants, provisions and conditions thereof, and each Assignor will indemnify
and hold harmless the Collateral Agent and the other Secured Creditors from and
against any and all loss, liability, cost, expense or claim in any way relating
to or arising therefrom.
4.4 USE AND DISPOSITION OF THE COLLATERAL. Unless and until an Event of
Default shall have occurred and be continuing and the Collateral Agent shall
have notified the Assignors thereof in writing and that the rights of any or all
of the Assignors under this section 4.4(a) are suspended during the continuance
of such Event of Default, an Assignor may use and dispose of its Collateral in
any lawful manner not inconsistent with the provisions of this Agreement, the
Credit Agreement or any other Credit Documents.
(b) No Assignor will consign any of its Inventory to any person unless
all filings of financing statements under the UCC and other actions and filings,
registrations and recordings required under other applicable laws have been made
in order to perfect the rights and interests of such Assignor in the consigned
Inventory against creditors of and purchasers from the consignee; PROVIDED that
unless and until the Collateral Agent shall have notified the Assignors in
writing to the contrary (which notice may be given by the Collateral Agent only
upon the written instructions of the Required Lenders, issued by the Required
Lenders, in their sole respective discretion, following review of any monthly,
quarterly or annual financial information regarding the Borrower and its
Subsidiaries which is furnished pursuant to section 8.1 of the Credit Agreement
for any period subsequent to June 30, 1999), no Assignor shall be required to
comply with this section 4.4(b) until the aggregate book value of all Inventory
consigned by the Assignors exceeds $500,000.
(c) If so requested by the Collateral Agent in a written notice to an
Assignor (which notice may be given by the Collateral Agent only upon written
instructions from the Required Lenders, issued by the Required Lenders, in their
sole respective discretion, following review of any monthly, quarterly or annual
financial information regarding the Borrower and its Subsidiaries which is
furnished pursuant to section 8.1 of the Credit Agreement for any period
subsequent to June 30, 1999),
(i) commencing 30 days after any such notice is received by such
Assignor, such Assignor will not thereafter permit any of its Inventory
or Equipment having a value in excess of $100,000 (or such larger amount
as shall be acceptable to the Collateral Agent, in its discretion) to be
in the possession or control of any single warehouseman, bailee,
processor, supplier or agent at any time, UNLESS such warehouseman,
bailee, processor, supplier or agent shall have been notified of the
Security Interest and shall have agreed in writing to hold such
Collateral subject to the Security Interest and the instructions of the
Collateral Agent and to waive and release any Lien held by it with
respect to such Collateral, whether arising by operation of law or
otherwise; and
(ii) commencing 30 days after any such notice is received by such
Assignor, such Assignor will not thereafter permit any of its Inventory
or Equipment having a value in excess of $100,000 (or such larger amount
as shall be acceptable to the Collateral Agent, in its discretion) to be
located on any leased property at any time, UNLESS the landlord shall
have been notified of the Security Interest, shall have agreed in writing
to waive and release any Lien held by it with respect to such Collateral,
whether arising by operation of law or otherwise, and shall have granted
the Collateral Agent such reasonable access and cure rights with respect
to such leased property and lease as the Collateral Agent may reasonably
require.
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4.5. DELIVERY OR MARKING OF CHATTEL PAPER; ASSIGNMENT OF SECURITY FROM
ACCOUNT DEBTORS AND CONSIGNMENTS; ETC. Without limitation of any of the
provisions of section 4.2(a) hereof:
(a) If any amount payable to an Assignor under or in connection
with any of the Collateral shall be or become evidenced by any Chattel
Paper, Document or Instrument, such Assignor will, if requested by the
Collateral Agent (which request may be made by the Collateral Agent only
upon the written instructions of the Required Lenders, issued by the
Required Lenders, in their sole respective discretion, following review
of any monthly, quarterly or annual financial information regarding the
Borrower and its Subsidiaries which is furnished pursuant to section 8.1
of the Credit Agreement for any period subsequent to June 30, 1999),
cause such Chattel Paper, Document or Instrument to be delivered to the
Collateral Agent and pledged as part of the Collateral hereunder,
accompanied by any appropriate instruments or endorsements or transfer.
In the case of any Chattel Paper, the Collateral Agent may require, in
lieu of the delivery thereof to the Collateral Agent, that the writings
evidencing the Chattel Paper be legended to reflect the Security Interest
of the Collateral Agent therein, all in a manner acceptable to the
Collateral Agent.
(b) If at any time any Assignor shall take and perfect a security
interest in any property of an Account Debtor, as security for the
Accounts Receivable owed by such Account Debtor and/or any of its
Affiliates, or take and perfect a security interest arising out of the
consignment to any person of any Inventory or other Collateral, such
Assignor shall, if requested by the Collateral Agent (which request may
be made by the Collateral Agent only upon the written instructions of the
Required Lenders, issued by the Required Lenders, in their sole
respective discretion, following review of any monthly, quarterly or
annual financial information regarding the Borrower and its Subsidiaries
which is furnished pursuant to section 8.1 of the Credit Agreement for
any period subsequent to June 30, 1999), promptly execute and deliver to
the Collateral Agent a separate assignment of all financing statements
and other filings made to perfect the same. Such separate assignment need
not be filed of public record unless necessary to continue the perfected
status of the security interest of such Assignor against creditors of any
transferees from the Account Debtor or consignee.
4.6. MODIFICATION OF TERMS OF ACCOUNTS AND CONTRACTS, ETC. No Assignor
will enter into any material modification of the terms or provisions of any of
its Accounts Receivable or Contracts, or grant any extension of time for the
payment of any of its Accounts Receivable or Contracts, or compromise or settle
the same for less than the full amount thereof, or release, wholly or partially,
any person liable for the payment thereof or any guaranty, letter of credit,
collateral or other obligation supporting or securing the payment thereof, or
allow any credit or discount whatsoever thereon, OTHER than modifications,
extensions, compromises, settlements, credits and discounts granted or made in
the ordinary course of the business of the Assignors (considered as an entirety)
or in accordance with reasonable business judgment of an Assignor (considered in
light of the business of the Assignors as an entirety) when the Collateral Agent
is not exercising its rights under section 8 hereof during the continuance of an
Event of Default.
4.7. MAINTENANCE OF RECORDS, ETC. Each Assignor will at its own cost and
expense keep proper books of record and account, in which full and correct
entries shall be made with respect to all assets comprising its Collateral and
of all financial transactions relating thereto, in accordance with GAAP, in the
case of the Borrower as an Assignor, or which are reconcilable to GAAP, in the
case of any other Assignor. All billings and invoices issued by an Assignor with
respect to its Accounts Receivable will, in all material respects, be in
compliance with and conform to the requirements of all applicable federal, state
and local laws and any applicable laws of any relevant foreign jurisdiction. If
an Event of Default shall have occurred and be continuing and the Collateral
Agent so directs, each Assignor shall legend, in form and manner reasonably
satisfactory to the Collateral Agent, its Accounts Receivable and Contracts, as
well as books, records and documents of such Assignor evidencing or pertaining
thereto with an appropriate reference to the fact that such Accounts Receivable
and Contracts have been assigned to the Collateral Agent and that the Collateral
Agent has a security interest therein.
4.8. COLLATERAL REPORTS. Whenever requested to do so by the Collateral
Agent, each Assignor will promptly, at its own sole cost and expense, deliver to
the Collateral Agent, in written hard copy form or on magnetic tape or other
computer or machine readable form, as specified by the Collateral Agent, such
listings, agings, descriptions, schedules and other reports with respect to its
Accounts Receivable, Inventory, Equipment and other Collateral as the Collateral
Agent may reasonably request, all of the same to be in such scope, categories
and detail
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as the Collateral Agent may have reasonably requested and to be accompanied by
copies of invoices and other documentation as and to the extent reasonably
requested by the Collateral Agent.
4.9. INSPECTIONS AND VERIFICATION. The Collateral Agent and such persons
as the Collateral Agent may reasonably designate shall have the right, at any
Assignor's own cost and expense, to inspect the Collateral of such Assignor, all
books and records related thereto (and to make extracts and copies thereof) and
the premises upon which any of such Collateral is located, to discuss such
Assignor's affairs with the officers of such Assignor and its independent
accountants, and to verify under reasonable procedures the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, such Collateral, including, in the case of Accounts or other Collateral in
the possession of any third person, by contacting Account Debtors or the third
person possessing such Collateral (after not less than two days' prior notice to
the applicable Assignor) for the purpose of making such verification. Any
procedures or actions taken, prior to the occurrence and continuance of an Event
of Default, in order to verify Accounts by contacting Account Debtors, shall be
effected by the Borrower's independent accountants, acting at the direction of
the Collateral Agent, in such manner so as not to reveal the identity of the
Collateral Agent or the existence of the Security Interest to the Account
Debtors. The Borrower will instruct its independent accountants to undertake any
such verification when and as requested by the Collateral Agent, but not more
frequently than once in any 12 month period, unless an Event of Default shall
have occurred and be continuing, in which case more frequent verifications may
be required. The results of any such verification by independent accountants
shall be reported by such independent accountants to both the Collateral Agent
and the Borrower. In the event the Collateral Agent conducts at any premises of
an Assignor, through the use of its own audit or collateral monitoring staff
employees, any procedures to verify or analyze the validity, amount, quality,
quantity, value, condition or status of, or any other matter relating to, any
Collateral, the Collateral Agent shall be entitled to per diem compensation for
each staff employee so utilized at a rate specified by the Collateral Agent not
to exceed the rate then currently being charged for such employees for similar
examinations of collateral of other borrowers (which rate is currently $600 per
day per employee), and reimbursement of any out-of pocket travel expenses. The
aggregate compensation payable pursuant to the preceding sentence shall not
exceed $10,000 in any 12 month period, and there shall be not more than one
collateral monitoring examination by the Collateral Agent for which compensation
is payable pursuant to the preceding sentence in any 12 month period, in each
case unless an Event of Default shall have occurred and be continuing. The
Collateral Agent shall have the absolute right to share any information it gains
from any such inspection or verification or from collateral reports furnished to
it by an Assignor with the other Secured Creditors (it being understood that any
such information shall be subject to the confidentiality provisions of the
Credit Agreement).
4.10. PAYMENT OF TAXES AND CLAIMS. Each Assignor will pay and discharge
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any Collateral or other properties belonging
to it, prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a Lien or charge upon any of its
Collateral or any other properties belonging to it; provided that no Assignor
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that an Assignor will not be considered to be in default of any of the
provisions of this sentence if such Assignor fails to pay any such amount which,
individually or in the aggregate, is immaterial. Without limiting the generality
of the foregoing, each Assignor will pay in full all of its wage obligations to
its employees in accordance with the Fair Labor Standards Act (29 U.S.C.
sections 206-207) and any comparable provisions of applicable law.
4.11. CONDITION OF COLLATERAL. Each Assignor will in all material
respects maintain (i) its Equipment in good condition, ordinary wear and tear
excepted, (ii) its finished goods Inventory in compliance with all applicable
legal requirements (including labeling laws and regulations) and industry
standards, and otherwise in good and saleable condition, and (iii) all other
tangible items of its Collateral, taken as an entirety, in such condition as is
consistent with good business practices, ordinary wear and tear excepted.
4.12. INSURANCE. Each Assignor, without any cost or expense to the
Collateral Agent or any other Secured Creditor, will at all times keep its
business and its Collateral insured against fire, theft, other casualties,
liability for damage to other persons or property, and other insurable risks, as
and to the extent contemplated by the Credit Agreement. Such insurance shall be
written by financially responsible companies selected by the applicable Assignor
and having an A.M. Best rating of "A-" or better and being in a financial size
category of "VII" or larger, or by other companies acceptable to the Collateral
Agent, and shall name the Collateral Agent as loss payee ( in the case of
casualty insurance) or as an additional named insured as its interests may
appear (in the case of liability insurance).
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Each policy referred to in this section shall provide that it will not be
canceled or reduced or expire except after not less than 30 days' written notice
to the Collateral Agent and shall also provide that the interests of the
Collateral Agent shall not be invalidated by an act or negligence of an Assignor
or any person having an interest in any facility owned, leased or used by an
Assignor nor by occupancy or use of any facility owned, leased or used by an
Assignor for purposes more hazardous than permitted by such policy nor by any
foreclosure or other proceedings relating to any facility owned, leased or used
by an Assignor. Each Assignor will advise the Collateral Agent promptly of any
policy cancellation, reduction or amendment. All of such insurance shall be
primary and non-contributing with any insurance which may be carried by the
Collateral Agent. At or prior to the time of the initial Borrowing under the
Credit Agreement, each Assignor will provide to the Collateral Agent (x)
certificates or endorsements naming the Collateral Agent as an additional
insured or loss payee with respect to the casualty and liability insurance
maintained as required hereby, and (y) if requested to do so, copies of all
insurance policies maintained by it as required hereby. Each Assignor shall
deliver to the Collateral Agent contemporaneously with the expiration or
replacement of any policy of insurance required to be maintained hereunder a
certificate as to the new or renewal policy.
4.13. PROCEEDS OF CASUALTY INSURANCE, CONDEMNATION OR TAKING. All amounts
recoverable under any policy of casualty insurance or any award for the
condemnation or taking by any governmental authority of any portion of the
Collateral are hereby assigned to the Collateral Agent.
(b) In the event any portion of the Collateral suffers a casualty loss or
is involved in any proceeding for condemnation or taking by any governmental
authority, THEN if an Event of Default has occurred and is continuing or if any
required prepayment of any of the Secured Obligations is required to be made at
such time or as a result thereof, the Collateral Agent is authorized and
empowered, at its option, to participate in, control, direct, adjust, settle
and/or compromise any such loss or proceeding, to collect and receive the
proceeds therefrom and, after deducting from such proceeds any expenses incurred
by it in connection with the collection or handling thereof, to apply the net
proceeds to the Secured Obligations in accordance with the provisions of the
Credit Agreement.
(c) If any proceeds are received by the Collateral Agent as a result of a
casualty, condemnation or taking involving the Collateral and the disposition of
such proceeds is not subject to section 4.13(b), the Collateral Agent will
promptly release the same to the applicable Assignor.
4.14. PROTECTIVE ADVANCES BY THE COLLATERAL AGENT. At its option, but
without being obligated to do so, the Collateral Agent may, upon not less than
two Business Days' prior written notice to any applicable Assignor, pay and
discharge past due taxes, assessments and governmental charges, at any time
levied on or with respect to any of the Collateral of such Assignor which such
Assignor has failed to pay and discharge in accordance with the requirements of
this Agreement or any of the other Credit Documents, pay and discharge any
claims of other creditors of such Assignor which are secured by any Lien on any
Collateral other than a Permitted Lien, pay for the maintenance, repair,
restoration and preservation of the Collateral to the extent such Assignor fails
to comply with its obligations in regard thereto under this Agreement and the
other Credit Documents or the Collateral Agent reasonably believes payment of
the same is necessary or appropriate to avoid a material loss or diminution in
value of the Collateral, and/or obtain and pay the premiums on insurance for the
Collateral which such Assignor fails to maintain in accordance with the
requirements of this Agreement and the other Credit Documents, and each Assignor
agrees to reimburse the Collateral Agent, on demand, for all reasonable payments
and expenses incurred by the Collateral Agent with respect to such Assignor or
any of its Collateral pursuant to the foregoing authorization, PROVIDED,
HOWEVER, that nothing in this section shall be construed as excusing any
Assignor from the performance of, or imposing any obligation on the Collateral
Agent or any other Secured Creditor to cure or perform, any covenants or other
agreements of any Assignor with respect to any of the foregoing matters as set
forth herein or in any of the other Credit Documents.
4.15. ADDITIONAL INFORMATION CONCERNING TRADE NAMES, ETC. Each Assignor
will from time to time promptly furnish the Collateral Agent upon its written
request a list of all trade, fictitious and other names (together with
applicable locations) under which it conducts business in any jurisdiction, or
under which it or any of its predecessors in interest conducted business at any
time within the preceding five years.
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5. SPECIAL PROVISIONS CONCERNING COLLECTION OF ACCOUNTS, ETC.
5.1. COLLECTION. Each Assignor shall, in a manner consistent with the
provisions of this section 5, endeavor to cause to be collected from the Account
Debtor named in each of its Accounts, as and when due (including, without
limitation, amounts which are delinquent, such amounts to be collected in
accordance with generally accepted lawful collection procedures), any and all
amounts owing under or on account of such Accounts, subject to any
modifications, extensions, compromises, settlements, releases, credits and
discounts granted or made in the ordinary course of the business as permitted
under section 4.6.
(b) Each Assignor shall, and the Collateral Agent hereby authorizes each
Assignor to, enforce and collect all amounts owing to it on its Inventory and
Accounts, for the benefit and on behalf of the Collateral Agent and the other
Secured Creditors, PROVIDED, HOWEVER, that such privilege may at the option of
the Collateral Agent, by notice to the Borrower (on behalf of all Assignors), be
terminated upon the occurrence and during the continuance of any Event of
Default.
(c) An Assignor may use and apply as it sees fit any and all amounts
collected by it in respect of its Inventory and Accounts, unless and until an
Event of Default shall have occurred and be continuing and such Assignor shall
have become obligated to take the actions contemplated by section 5.2.
5.2. COLLATERAL CONCENTRATION ACCOUNT, BLOCKED ACCOUNT AGREEMENTS, ETC.
As promptly as practicable and in any event within 10 days following the
occurrence and continuance of an Event of Default, the Collateral Agent will
establish the Collateral Concentration Account; and the Assignors shall enter
into Blocked Account Agreements with the Collateral Agent and each financial
institution in which an Assignor has a Deposit Account.
(b) Once established in accordance with the provisions of section 5.2(a),
the Collateral Concentration Account shall be, and shall remain, under the sole
dominion and control of the Collateral Agent, and the funds on deposit in the
Collateral Concentration Account shall be applied to the outstanding Credit
Document Obligations, in such order as the Collateral Agent may require, except
that if an Event of Default shall have occurred and be continuing, such funds
shall be applied as provided in section 8.4. Once a Deposit Account becomes a
Blocked Deposit Account, it shall be, and shall remain, under the sole dominion
and control of the Collateral Agent. Each Assignor acknowledges and agrees that
(i) such Assignor will have no right of withdrawal from the Collateral
Concentration Account or any of its Blocked Deposit Accounts, and (ii) the funds
on deposit in the Collateral Concentration Account and in its Blocked Deposit
Accounts shall continue to be collateral security for the Secured Obligations.
(c) In connection with the establishment of the Blocked Account
Agreements and at all times thereafter, each Assignor agrees (i) to cause all
payments by its Account Debtors to be immediately deposited in its Blocked
Deposit Accounts, and (ii) promptly to deposit all payments received by it from
any other sale of any of its Collateral, whether in the form of cash, checks,
notes, drafts, bills of exchange, money orders or otherwise, in its Blocked
Deposit Accounts in precisely the form in which received (but with any
endorsements of such Assignor necessary for deposit or collection). Until any
such payments are so deposited, such payments shall be held in trust by such
Assignor for and as the property of the Collateral Agent, for the benefit of the
Collateral Agent and the other Secured Creditors hereunder.
(d) Notwithstanding the foregoing, an Assignor shall not be required to
cause any payments by its Account Debtors under federal or state reimbursement
programs to be deposited in a Blocked Deposit Account if (i) such Assignor shall
have furnished to the Collateral Agent evidence establishing to the reasonable
satisfaction of the Collateral Agent that such deposit would be prohibited by
the terms of an applicable federal or state reimbursement program, and (ii)
contemporaneously with the receipt of any such payments the Obligations are
prepaid in a corresponding amount.
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6. SPECIAL PROVISIONS CONCERNING TRADEMARKS.
6.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor represents
and warrants that it is the true and lawful owner or licensee of the Marks
listed in Annex D attached hereto and that said listed Marks constitute all the
marks registered in the United States Patent and Trademark Office that such
Assignor now owns or uses in connection with its business. Each Assignor
represents and warrants that it owns or is licensed to use all Marks that it
uses, and that it owns all of the registrations listed on Annex D. Each Assignor
further warrants that it is aware of no third party claim that any aspect of
such Assignor's present or contemplated business operations infringes or will
infringe any trademark or service mark in a manner which could have a material
adverse effect on the financial condition, business or property of such
Assignor.
6.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to divest
itself of any right under a Mark other than in the ordinary course of business
absent prior written approval of the Collateral Agent.
6.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning thereof,
to notify the Collateral Agent in writing of the name and address of, and to
furnish such pertinent information that may be available with respect to, any
party who may be infringing or otherwise violating any of such Assignor's rights
in and to any Mark that has a material adverse effect on the financial
condition, business or property of such Assignor taken as a whole (each such
Mark, a "SIGNIFICANT MARK"), or with respect to any party claiming that such
Assignor's use of any Significant Mark violates any property right of that
party, to the extent that such infringement or violation could have a material
adverse effect on the financial condition, business or property of such
Assignor. Each Assignor further agrees, unless otherwise directed by the
Collateral Agent, diligently to prosecute any person infringing any Significant
Mark in a manner consistent with its past practice and in the ordinary course of
business.
6.4. PRESERVATION OF MARKS. Each Assignor agrees to use or license the
use of its Significant Marks in interstate commerce during the time in which
this Agreement is in effect, sufficiently to preserve such Marks as trademarks
or service marks registered under the laws of the United States.
6.5. MAINTENANCE OF REGISTRATION. Each Assignor shall, at its own
expense, diligently process all documents required by the Trademark Act of 1946,
15 U.S.C. ss.ss.1051 ET SEQ. to maintain trademark registration which would
reasonably be expected to have a Material Adverse Effect, including but not
limited to affidavits of use and applications for renewals of registration in
the United States Patent and Trademark Office for all of its Marks pursuant to
15 U.S.C. ss.ss.1058(a), 1059 and 1065, and shall pay all fees and disbursements
in connection therewith, and shall not abandon any such filing of affidavit of
use or any such application of renewal prior to the exhaustion of all
administrative and judicial remedies without prior written consent of the
Collateral Agent, which consent shall not be unreasonably withheld.
6.6. FUTURE REGISTERED MARKS. If any mark registration issues hereafter to
an Assignor as a result of any application now or hereafter pending before the
United States Patent and Trademark Office, within 30 days of receipt of such
certificate such Assignor shall deliver a copy of such certificate, and a grant
of security in such mark to the Collateral Agent, confirming the grant thereof
hereunder, the form of such confirmatory grant to be substantially the same as
the form hereof.
6.7. REMEDIES. If an Event of Default shall occur and be continuing, the
Collateral Agent may, by written notice to the relevant Assignor, take any or
all of the following actions: declare the entire right, title and interest of
such Assignor in and to each of the Marks, together with all trademark rights
and rights of protection to the same, vested, in which event such rights, title
and interest shall immediately vest, in the Collateral Agent for the benefit of
the Secured Creditors, in which case such Assignor agrees to execute an
assignment in form and substance reasonably satisfactory to the Collateral
Agent, of all its rights, title and interest in and to the Marks to the
Collateral Agent for the benefit of the Secured Creditors; take and use or sell
the Marks and the goodwill of such Assignor's business symbolized by the Marks
and the right to carry on the business and use the assets of the Assignor in
connection with which the Marks have been used; and direct such Assignor to
refrain, in which event such Assignor shall refrain, from using the Marks in any
manner whatsoever, directly or indirectly, and, if requested by the Collateral
Agent, change such Assignor's corporate name to eliminate therefrom any use of
any Mark and execute such other and further documents that the Collateral Agent
may request to further confirm this and to transfer
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ownership of the Marks and registrations and any pending trademark application
in the United States Patent and Trademark Office to the Collateral Agent.
7. SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS.
7.1. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Each Assignor represents
and warrants that it is the true and lawful owner or licensee of all rights in
the Patents listed in Annex E attached hereto and in the Copyright registrations
listed in Annex F attached hereto, that said Patents constitute all the United
States patents and applications for United States patents that such Assignor now
owns and that said Copyrights constitute all the registered United States
copyrights that such Assignor now owns. Each Assignor represents and warrants
that it owns or is licensed to practice under all Patents and Copyright
registrations that it now owns, uses or practices under. Each Assignor further
warrants that it is aware of no third party claim that any aspect of such
Assignor's present or contemplated business operations infringes or will
infringe any patent or any copyright in a manner which could have a material
adverse effect on the financial condition, business or property of such
Assignor.
7.2. LICENSES AND ASSIGNMENTS. Each Assignor hereby agrees not to divest
itself of any right under a Patent or Copyright other than in the ordinary
course of business absent prior written approval of the Collateral Agent, which
such approval shall not be unreasonably withheld.
7.3. INFRINGEMENTS. Each Assignor agrees, promptly upon learning thereof,
to furnish the Collateral Agent in writing with all pertinent information
available to such Assignor with respect to any infringement or other violation
of such Assignor's rights in any Patent that has a material adverse effect on
the financial condition, business or property of such Assignor taken as a whole
(each such Patent, a "SIGNIFICANT PATENT") or Copyright, or with respect to any
claim that practice of any Significant Patent or Copyright violates any property
right of that party, to the extent that such infringement or violation could
have a material adverse effect on the financial condition, business or property
of such Assignor. Each Assignor further agrees, absent direction of the
Collateral Agent to the contrary, diligently to prosecute any person infringing
any Significant Patent or Copyright about which it has knowledge in a manner
consistent with its past practice and in the ordinary course of business.
7.4. MAINTENANCE OF PATENTS. At its own expense, each Assignor shall make
timely payment of all post-issuance fees required pursuant to 35 U.S.C. ss. 41
to maintain in force rights under each Patent.
7.5. PROSECUTION OF PATENT APPLICATIONS. At its own expense, each
Assignor shall diligently prosecute all applications for United States patents
listed on Annex E hereto, and shall not abandon any such application, except in
favor of a continuation application based on such application, prior to
exhaustion of all administrative and judicial remedies, absent written consent
of the Collateral Agent, which such consent shall not be unreasonably withheld.
7.6. OTHER PATENTS AND COPYRIGHTS. Within 30 days of acquisition of a
United States Patent or Copyright, or of filing of an application for a United
States Patent or Copyright, the relevant Assignor shall deliver to the
Collateral Agent a copy of said Patent or Copyright, as the case may be, with a
grant of security as to such Patent or Copyright, as the case may be, confirming
the grant thereof hereunder, the form of such confirmatory grant to be
substantially the same as the form hereof.
7.7. REMEDIES. If an Event of Default shall occur and be continuing, the
Collateral Agent may by written notice to the relevant Assignor take any or all
of the following actions: declare the entire right, title and interest of such
Assignor in each of the Patents and Copyrights vested, in which event such
right, title and interest shall immediately vest in the Collateral Agent for the
benefit of the Secured Creditors, in which case such Assignor agrees to execute
an assignment in form and substance reasonably satisfactory to the Collateral
Agent of all its right, title, and interest to such Patents and Copyrights to
the Collateral Agent for the benefit of the Secured Creditors; take and practice
or sell the Patents and Copyrights; (iii) direct such Assignor to refrain, in
which event such Assignor shall refrain, from practicing the Patents and
Copyrights directly or indirectly, and such Assignor shall execute such other
and further documents as the Collateral Agent may request further to confirm
this and to transfer ownership of the Patents and Copyrights to the Collateral
Agent for the benefit of the Secured Creditors.
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8. REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT.
8.1. REMEDIES GENERALLY; OBTAINING OF THE COLLATERAL. Each Assignor
agrees that, if any Event of Default shall have occurred and be continuing, THEN
and in every such case, subject to any mandatory requirements or limitations of
applicable law then in effect, the Collateral Agent, in addition to any rights
now or hereafter existing under applicable law, shall have all rights as a
secured creditor under the UCC in all relevant jurisdictions and may exercise
any or all of the following rights (all of which each Assignor hereby agrees is
commercially reasonable):
(a) personally, or by agents or attorneys, immediately retake
possession of the Collateral or any part thereof, from such Assignor or
any other person who then has possession of any part thereof with or
without notice or process of law, and for that purpose may enter upon
such Assignor's or such other person's premises where any of the
Collateral is located and remove the same and use in connection with such
removal any and all services, supplies, aids and other facilities of such
Assignor;
(b) instruct the obligor or obligors on any Account, agreement,
instrument or other obligation (including, without limitation, Account
Debtors) constituting the Collateral to make any payment required by the
terms of such Account, agreement, instrument or other obligation directly
to the Collateral Agent and/or directly to a Blocked Deposit Account;
(c) sell, assign or otherwise liquidate, or direct such Assignor
to sell, assign or otherwise liquidate, any or all of the Collateral or
any part thereof, and take possession of the proceeds of any such sale or
liquidation;
(d) direct any financial institution which maintains a Blocked
Deposit Account to transfer funds from such Blocked Deposit Account to
the Collateral Concentration Account pursuant to the provisions of the
applicable Blocked Account Agreement;
(e) withdraw any or all monies, securities and/or instruments in
the Collateral Concentration Account for application to the Secured
Obligations in accordance with section 8.4 hereof; and
(f) pay and discharge taxes, Liens or claims on or against any of
the Collateral;
(g) pay, perform or satisfy, or cause to be paid, performed or
satisfied, for the benefit of any Assignor, any of the obligations,
terms, covenants, provisions or conditions to be paid, observed,
performed or satisfied by such Assignor under any contract, agreement or
instrument relating to its Collateral, all in accordance with the terms,
covenants, provisions and conditions thereof, as and to the extent that
such Assignor fails or refuses to perform or satisfy the same;
(h) enter into any extension if, or any other agreement in any way
relating to, any of the Collateral;
(i) make any compromise or settlement the Collateral Agent deems
desirable or proper with respect to any of the Collateral; and/or
(j) take possession of the Collateral or any part thereof, by
directing such Assignor or any other person in possession thereof in
writing to deliver the same to the Collateral Agent at any place or
places designated by the Collateral Agent, in which event such Assignor
shall at its own expense;
(i) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered
to the Collateral Agent,
(ii) store and keep any Collateral so delivered to the
Collateral Agent at such place or places pending further action by
the Collateral Agent as provided in section 8.2, and
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(iii) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be necessary
to protect the same and to preserve and maintain them in good
condition;
it being understood that such Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Collateral Agent shall be entitled to a
decree requiring specific performance by such Assignor of said obligation.
8.2. DISPOSITION OF THE COLLATERAL. Upon the occurrence and continuance
of an Event of Default, any Collateral repossessed by the Collateral Agent under
or pursuant to section 8.1 and any other Collateral whether or not so
repossessed by the Collateral Agent, may be sold, assigned, leased or otherwise
disposed of under one or more contracts or as an entirety, and without the
necessity of gathering at the place of sale of the property to be sold, and in
general in such manner, at such time or times, at such place or places and on
such terms as the Collateral Agent may, in compliance with any mandatory
requirements or limitations of applicable law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the Collateral Agent or
after any overhaul or repair which the Collateral Agent shall determine to be
commercially reasonable. Any such disposition which shall be a private sale or
other private proceedings permitted by such requirements shall be made upon not
less than 10 days' written notice to such Assignor specifying the time at which
such disposition is to be made and the intended sale price or other
consideration therefor, and shall be subject, for the 10 days after the giving
of such notice, to the right of the relevant Assignor or any nominee of the
relevant Assignor to acquire the Collateral involved at a price or for such
other consideration at least equal to the intended sale price or other
consideration so specified. Any such disposition which shall be a public sale
permitted by such requirements shall be made upon not less than 10 days' written
notice to the relevant Assignor specifying the time and place of such sale and,
in the absence of applicable requirements of law, shall be by public auction
(which may, at the Collateral Agent's option, be subject to reserve), after
publication of notice of such auction not less than 10 days prior thereto in two
newspapers in general circulation in the city where such Collateral is located.
To the extent permitted by any such requirement of law, the Collateral Agent on
behalf of the Secured Creditors (or certain of them) may bid for and become the
purchaser (by bidding in Secured Obligations or otherwise) of the Collateral or
any item thereof, offered for sale in accordance with this section without
accountability to the relevant Assignor (except to the extent of surplus money
received as provided in section 8.4). If, under mandatory requirements of
applicable law, the Collateral Agent shall be required to make disposition of
the Collateral within a period of time which does not permit the giving of
notice to the Assignor as hereinabove specified, the Collateral Agent need give
the relevant Assignor only such notice of disposition as shall be reasonably
practicable in view of such mandatory requirements of applicable law.
8.3. WAIVER OF CLAIMS. Except as otherwise provided in this Agreement,
EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION
OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT
REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH THE ASSIGNOR WOULD OTHERWISE HAVE
UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and
each Assignor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or wilful misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Collateral or any portion thereof, and each
Assignor, for itself and all who may claim under it, insofar as it or
they now or hereafter lawfully may, hereby waives the benefit of all such
laws.
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Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the relevant Assignor therein and
thereto, and shall be a perpetual bar both at law and in equity against the
relevant Assignor and against any and all persons claiming or attempting to
claim the Collateral so sold, optioned or realized upon, or any part thereof,
from, through and under the relevant Assignor.
8.4. APPLICATION OF PROCEEDS. All Collateral and proceeds of Collateral
obtained and realized by the Collateral Agent in connection with the enforcement
of this Agreement pursuant to this section 8 shall be applied as follows:
(1) FIRST, to the payment to the Collateral Agent, for application
to the Secured Obligations as provided in section 10.3 of the Credit
Agreement; and
(2) SECOND, to the extent remaining after the application pursuant
to the preceding clause (i) and following the termination of this
Agreement pursuant to section 10.11 hereof, to the relevant Assignor or
to whomever may be lawfully entitled to receive such payment.
8.5. REMEDIES CUMULATIVE, ETC. Each and every right, power and remedy
hereby specifically given to the Collateral Agent shall be in addition to every
other right, power and remedy specifically given under this Agreement, any
Designated Hedge Agreement or the other Credit Documents or now or hereafter
existing at law or in equity, or by statute and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time or simultaneously and as often and in such order as may be
deemed expedient by the Collateral Agent. All such rights, powers and remedies
shall be cumulative and the exercise or the beginning of exercise of one shall
not be deemed a waiver of the right to exercise of any other or others. No delay
or omission of the Collateral Agent in the exercise of any such right, power or
remedy, or partial or single exercise thereof, and no renewal or extension of
any of the Secured Obligations, shall impair or constitute a waiver of any such
right, power or remedy or shall be construed to be a waiver of any Default or
Event of Default or an acquiescence therein. No notice to or demand on any
Assignor in any case shall entitle it to any other or further notice or demand
in similar or other circumstances or constitute a waiver of any of the rights of
the Collateral Agent to any other or further action in any circumstances without
notice or demand. In the event that the Collateral Agent shall bring any suit to
enforce any of its rights hereunder and shall be entitled to judgment, then in
such suit the Collateral Agent may recover reasonable expenses, including
attorneys' fees, and the amounts thereof shall be included in such judgment.
8.6. DISCONTINUANCE OF PROCEEDINGS. In case the Collateral Agent shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the relevant
Assignor, the Collateral Agent and each holder of any of the Secured Obligations
shall be restored to their former positions and rights hereunder with respect to
the Collateral subject to the security interest created under this Agreement,
and all rights, remedies and powers of the Collateral Agent shall continue as if
no such proceeding had been instituted.
8.7. PURCHASERS OF COLLATERAL. Upon any sale of any of the Collateral by
the Collateral Agent hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the
Collateral Agent or the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
9. INDEMNITY.
9.1. INDEMNITY. The Assignors jointly and severally agree to indemnify,
reimburse and hold the Collateral Agent, each Secured Creditor and their
respective Affiliates, successors, assigns, employees, agents and servants (any
or all of the foregoing, individually an "INDEMNITEE" and collectively. the
"INDEMNITEES") harmless from and against any and all liabilities, obligations,
losses, costs, expenses, damages, penalties, fines, claims, demands, actions,
suits, proceedings, judgments, arbitration awards and appeals of whatsoever kind
and nature (all of the
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foregoing, collectively "INDEMNIFIABLE CLAIMS AND AMOUNTS"), at any time imposed
on, asserted (whether or not successfully) against, or suffered or incurred by,
any of the Indemnitees, in any way relating to or arising out of or otherwise
connected to:
(i) the execution, delivery or performance by any Assignor of this
Agreement or any of the contracts, agreements or instruments included in
its Collateral, including, without limitation, any actual or claimed
failure of any Assignor to duly pay, observe, perform or satisfy any of
the obligations, terms, covenants, provisions or conditions to be paid,
observed, performed or satisfied by it under any contract, agreement or
instrument included in, or otherwise related to, its Collateral;
(ii) any actual or claimed violation by any Assignor of, or any
liabilities or obligations of a Assignor arising under, any laws,
regulations, rules, orders or judgments of any country, state or other
governmental body, unit, agency or court, in any way related to any of
its Collateral;
(iii) the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition,
sale, return or other disposition, or use of any of the Collateral
(including, without limitation, latent or other defects, whether or not
discoverable); and/or
(iv) any actual or claimed injury to any person or property, or
the death of any person, whether based on any actual or alleged tort
(including, without limitation, claims arising or imposed under the
doctrine of strict liability), breach of an express or implied warranty,
or other basis or theory of liability;
PROVIDED that no Indemnitee shall be indemnified pursuant to this section 9.1(a)
for Indemnifiable Claims and Amounts to the extent caused by the gross
negligence or wilful misconduct of such Indemnitee.
(b) If any action, suit or proceeding is commenced against any Indemnitee
which such Indemnitee believes is subject to indemnification hereunder, such
Indemnitee shall promptly notify the Borrower (who shall receive such notice on
behalf of all Assignors), and such Indemnitee may, and if requested by the
Borrower (on behalf of all Assignors) shall, in good faith, contest the
validity, applicability and amount of such action, suit or proceeding with
counsel selected by such Indemnitee, and shall permit the Borrower (on behalf of
all Assignors) to participate in such contest, subject to the overall control
and direction of such Indemnitee and its counsel. In addition, in connection
with the defense of any action, suit or proceeding covered by this section 9.1
against more than one Indemnitee, all such Indemnitees shall be represented by
the same legal counsel selected by such Indemnitees; PROVIDED, HOWEVER, that if
such legal counsel determines in good faith that representing all such
Indemnitees would or could result in a conflict of interest under the laws or
ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such defense or counterclaim,
each Indemnitee shall be entitled to separate representation by a legal counsel
selected by that Indemnitee.
(c) The Assignors, jointly and severally, agree that upon written notice
by any Indemnitee of the incurrence or sufferance by such Indemnitee of any
Indemnifiable Claims and Amounts, the Assignors will pay, on demand, all
Indemnifiable Claims and Amounts, from time to time incurred or suffered by such
Indemnitee. Each Indemnitee agrees to use its best efforts to promptly notify
the Borrower (on behalf of all Assignors) of any written assertion of any
Indemnifiable Claims and Amounts of which such Indemnitee has actual knowledge.
(d) Without limitation of the foregoing, the Assignors jointly and
severally agree to pay, or reimburse the Collateral Agent for (if the Collateral
Agent shall have incurred fees, costs or expenses because an Assignor shall have
failed to comply with its obligations under this Agreement or any Credit
Document), any and all out-of-pocket fees, costs and expenses of whatever kind
or nature incurred in connection with the creation, preservation or protection
of the Security Interest of the Collateral Agent in the Collateral, including,
without limitation, all fees and taxes in connection with the recording or
filing of instruments and documents in public offices, payment or discharge of
any taxes or Liens upon or in respect of the Collateral, premiums for insurance
with respect to the Collateral and all other fees, costs and expenses in
connection with protecting, maintaining or preserving the Collateral and the
Collateral Agent's interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or relating to the Collateral.
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(e) In addition, and without limitation of the foregoing, the Assignors
jointly and severally agree to pay, indemnify and hold each Indemnitee harmless
from and against any loss, costs, damages and expenses which such Indemnitee may
suffer, expend or incur in consequence of or growing out of any material
misrepresentation by an Assignor in this Agreement, or in any statement or
writing contemplated by or made or delivered pursuant to or in connection with
this Agreement.
(f) If and to the extent that the obligations of any Assignor under this
section 9.1 are unenforceable for any reason, each Assignor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
9.2. INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured by the Collateral.
The indemnity obligations of the Assignors contained in this section 9 shall
continue in full force and effect notwithstanding the full payment of all the
Notes issued under the Credit Agreement and all of the other Secured Obligations
and notwithstanding the discharge thereof.
10. MISCELLANEOUS.
10.1. NOTICES. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, transmitted, cabled or delivered, if to the Borrower, at
its address specified in or pursuant to the Credit Agreement, if to any Assignor
which is a Subsidiary of the Borrower, to it c/o the Borrower at its address
specified in or pursuant to the Credit Agreement, if to the Collateral Agent, to
it at the Notice Office of the Administrative Agent, if to any Lender, at its
address specified in or pursuant to the Credit Agreement, and if to any
Designated Hedge Creditor, at such address as such Designated Hedge Creditor
shall have specified in writing to each Assignor and the Collateral Agent; or in
any case at such other address as any of the persons listed above may hereafter
notify the others in writing. All such notices and communications shall be
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, and shall be effective when received.
10.2. ENTIRE AGREEMENT. This Agreement, the other Credit Documents and
any Designated Hedge Documents represent the final agreement among the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements among the parties. There are no unwritten oral agreements among
the parties.
10.3. AMENDMENTS AND WAIVERS. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by (i) each Assignor affected thereby (it being
understood that the addition or release of any Assignor hereunder shall not
constitute a change, waiver, modification or variance affecting any Assignor
other than the Assignor so added or released); and (ii) the Collateral Agent
(acting with the consent of the Required Lenders or, to the extent required by
section 12.12 of the Credit Agreement, all of the Lenders, or all of the Lenders
(other than any Defaulting Lender), as applicable), PROVIDED, HOWEVER, that
(a) no such change, waiver, modification or variance shall be made
to section 8.4, section 9, section 10.11 or this section 10.3 which
adversely affects any Secured Creditor without the written consent of
such Secured Creditor;
(b) any change, waiver, modification or variance which adversely
affects the rights and benefits of a single Class of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall require
the written consent of the Requisite Creditors of such Class of Secured
Creditors; and
(c) any change, waiver, modification or variance which adversely
affects the rights and benefits of less than all of the members of a
single Class of Secured Creditors (and not all Secured Creditors, nor all
Secured Creditors of the same Class, in a like or similar manner) shall
require the written consent of each of such members which is adversely
affected thereby.
22
24
For the purpose of this Agreement, the term "CLASS" shall mean each class of
Secured Creditors, I.E., whether (x) the Administrative Agent, the Collateral
Agent, the Letter of Credit Issuers and the Lenders as holders of the Credit
Document Obligations or (y) the Designated Hedge Creditors as holders of the
Designated Hedge Obligations. For the purpose of this Agreement, the term
"REQUISITE CREDITORS" of any Class shall mean (x) with respect to the Credit
Document Obligations, the Required Lenders and (y) with respect to the
Designated Hedge Obligations, the holders of at least 51% of all Designated
Hedge Obligations outstanding from time to time under the Designated Hedge
Documents.
10.4. OBLIGATIONS ABSOLUTE. The obligations of each Assignor under this
Agreement shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
other than indefeasible payment in full of, and complete performance of, all of
the Secured Obligations, including, without limitation:
(a) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from other Credit Documents or any
Designated Hedge Document, or any other instrument or agreement referred
to therein, or any assignment or transfer of any thereof;
(b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument or this
Agreement except as expressly provided in such renewal, extension,
amendment, modification, addition, supplement, assignment or transfer;
(c) any furnishing of any additional security to the Collateral
Agent or its assignee or any acceptance thereof or any release of any
security by the Collateral Agent or its assignee;
(d) any limitation on any person's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability,
in whole or in part, of any such instrument or agreement or any term
thereof;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
an Assignor or any Subsidiary of an Assignor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not an Assignor shall have notice or
knowledge of any of the foregoing; or
(f) any other event or circumstance which, but for this provision,
might release or discharge a guarantor or other surety from its
obligations as such.
10.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon each
Assignor and its successors and assigns and shall inure to the benefit of the
Collateral Agent and its successors and assigns, PROVIDED that no Assignor may
transfer or assign any or all of its rights or obligations hereunder without the
written consent of the Collateral Agent. All agreements, statements,
representations and warranties made by each Assignor herein or in any
certificate or other instrument delivered by such Assignor or on its behalf
under this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement, the
other Credit Documents and any Designated Hedge Document regardless of any
investigation made by the Secured Creditors on their behalf.
10.6. HEADINGS DESCRIPTIVE. The headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
10.7. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
23
25
10.9. ENFORCEMENT EXPENSES, ETC. The Assignors hereby jointly and
severally agree to pay, to the extent not paid pursuant to section 12.1 of the
Credit Agreement, all reasonable out-of-pocket costs and expenses of the
Collateral Agent and each other Secured Creditor in connection with the
enforcement of this Agreement, the preservation of the Collateral, the
perfection of the Security Interest, and any amendment, waiver or consent
relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel employed by the Collateral Agent or any of the other
Secured Creditors).
10.10. RELEASE OF PORTIONS OF COLLATERAL. So long as no payment default
on any of the Secured Obligations or Event of Default is in existence or would
exist after the application of proceeds as provided below, the Collateral Agent
shall, at the request of an Assignor, release any or all of the Collateral of
such Assignor, PROVIDED that (x) such release is permitted by the terms of the
Credit Agreement (it being agreed for such purposes that a release will be
deemed "PERMITTED BY THE TERMS OF THE CREDIT AGREEMENT" if the proposed
transaction constitutes an exception contained in section 9.2 of the Credit
Agreement) or otherwise has been approved in writing by the Required Lenders
(or, to the extent required by section 12.12 of the Credit Agreement, all of the
Lenders, or all of the Lenders (other than any Defaulting Lender), as
applicable) and (y) the proceeds of such Collateral are to be applied as
required pursuant to the Credit Agreement or any consent or waiver entered into
with respect thereto.
(b) At any time that an Assignor desires that the Collateral Agent take
any action to give effect to any release of Collateral pursuant to the foregoing
section 10.10(a), it shall deliver to the Collateral Agent a certificate signed
by a principal executive officer stating that the release of the respective
Collateral is permitted pursuant to section 10.10(a). In the event that any part
of the Collateral is released as provided in section 10.10(a), the Collateral
Agent, at the request and expense of an Assignor, will duly release such
Collateral and assign, transfer and deliver to such Assignor (without recourse
and without any representation or warranty) such of the Collateral as is then
being (or has been) so sold and as may be in the possession of the Collateral
Agent and has not theretofore been released pursuant to this Agreement. The
Collateral Agent shall have no liability whatsoever to any Secured Creditor as
the result of any release of Collateral by it as permitted by this section
10.10. Upon any release of Collateral pursuant to section 10.10(a), none of the
Secured Creditors shall have any continuing right or interest in such
Collateral, or the proceeds thereof.
10.11. TERMINATION. After the termination of the Total Commitment and all
Designated Hedge Documents, when no Note nor Letter of Credit is outstanding and
when all Loans and other Secured Obligations (other than unasserted indemnity
obligations) have been paid in full, this Agreement shall terminate, and the
Collateral Agent, at the request and expense of the Assignors, will execute and
deliver to the relevant Assignor a proper instrument or instruments (including
UCC termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to the
relevant Assignor (without recourse and without any representation or warranty)
such of the Collateral as may be in the possession of the Collateral Agent and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement.
10.12. COLLATERAL AGENT. The Collateral Agent will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. The acceptance by the Collateral Agent of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Collateral Agent to appear in or defend any action
or proceeding relating to the Collateral to which it is not a party, or to take
any action hereunder or thereunder, or to expend any money or incur any expenses
or perform or discharge any obligation, duty or liability under the Collateral.
By accepting the benefits of this Agreement, each Secured Creditor acknowledges
and agrees that the rights and obligations of the Collateral Agent shall be as
set forth in section 11 of the Credit Agreement. Notwithstanding anything to the
contrary contained in section 10.3 of this Agreement or section 12.12 of the
Credit Agreement, this section 10.12, and the duties and obligations of the
Collateral Agent set forth in this section 10.12, may not be amended or modified
without the consent of the Collateral Agent.
10.13. ONLY COLLATERAL AGENT TO ENFORCE ON BEHALF OF SECURED CREDITORS.
The Secured Creditors agree by their acceptance of the benefits hereof that this
Agreement may be enforced on their behalf only by the action of the Collateral
Agent, acting upon the instructions of the Required Lenders (or, after all
Credit Document Obligations have been paid in full, instructions of the holders
of at least 51% of the outstanding Designated Hedge Obligations) and that no
other Secured Creditor shall have any right individually to seek to enforce or
to enforce this Agreement or to realize upon the security to be granted hereby,
it being understood and agreed that such rights and remedies may be exercised by
the Collateral Agent, for the benefit of the Secured Creditors, upon the terms
of this Agreement.
24
26
10.14. OTHER CREDITORS, ETC. NOT THIRD PARTY BENEFICIARIES. No creditor
of any Assignor or any of its Affiliates, or other person claiming by, through
or under any Assignor or any of its Affiliates, other than the Collateral Agent
and the other Secured Creditors, and their respective successors and assigns,
shall be a beneficiary or third party beneficiary of this Agreement or otherwise
shall derive any right or benefit herefrom.
10.15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Collateral Agent.
10.16. EFFECTIVENESS. This Agreement shall be effective as to any
Assignor upon its execution and delivery to the Collateral Agent of a
counterpart of this Agreement manually executed on behalf of such Assignor,
regardless of the date of this Agreement or the date this Agreement is executed
and delivered by any other party hereto.
11. WAIVER OF JURY TRIAL.
EACH ASSIGNOR AND THE COLLATERAL AGENT EACH HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH ASSIGNOR HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY SECURED CREDITOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH SECURED
CREDITOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
[The balance of this page is blank; the next page is the signature page.]
25
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
NCS HEALTHCARE, INC., KEYBANK NATIONAL ASSOCIATION,
AS AN ASSIGNOR AS COLLATERAL AGENT
BY: /S/ GERALD D. STETHEM BY: /S/ THOMAS J. PURCELL
----------------------------- --------------------------
CHIEF FINANCIAL OFFICER VICE PRESIDENT
THE FOLLOWING ADDITIONAL ASSIGNORS
NCS HEALTHCARE OF OKLAHOMA, INC. NCS SERVICES, INC. NCS HEALTHCARE OF MASSACHUSETTS, INC.
NCS HEALTHCARE OF RHODE ISLAND, INC. NCS HEALTHCARE OF IOWA, INC. NCS HEALTHCARE OF ARIZONA, INC.
NCS HEALTHCARE OF KANSAS, INC. NCS HEALTHCARE OF KENTUCKY, INC. NCS HEALTHCARE OF MONTANA, INC.
NCS HEALTHCARE OF SOUTH CAROLINA, INC. NCS HEALTHCARE OF VERMONT, INC. NCS HEALTHCARE OF MISSOURI, INC.
NCS HEALTHCARE OF OREGON, INC. NCS HEALTHCARE OF BEACHWOOD, INC. NCS HEALTHCARE OF NEW YORK, INC.
NCS HEALTHCARE OF MARYLAND, INC. NCS HEALTHCARE OF OHIO, INC. PHARMASOURCE HEALTHCARE, INC.
NCS HEALTHCARE OF ARKANSAS, INC. NCS HEALTHCARE OF MICHIGAN, INC. NCS HEALTHCARE OF TEXAS, INC.
NCS HEALTHCARE OF CALIFORNIA, INC. NCS HEALTHCARE OF INDIANA, INC. NCS HEALTHCARE OF TENNESSEE, INC.
RESCOT SYSTEMS GROUP, INC. NCS HEALTHCARE OF ILLINOIS, INC. NCS HEALTHCARE OF MINNESOTA, INC.
UNI-CARE HEALTH SERVICES, INC. NCS HEALTHCARE OF PENNSYLVANIA, INC. NCS HEALTHCARE OF WISCONSIN, INC.
UNI-CARE HEALTH SERVICES OF MAINE, INC. NCS HEALTHCARE OF CONNECTICUT, INC. NCS HEALTHCARE OF NEBRASKA, INC.
NCS HEALTHCARE OF NEW JERSEY, INC. NCS HEALTHCARE OF NEW MEXICO, INC.
NCS HEALTHCARE OF FLORIDA, INC. BEACHWOOD HEALTHCARE MANAGEMENT, INC.
NCS HEALTHCARE OF WASHINGTON, INC.
MANAGEMENT & NETWORK SERVICES, INC.
BY: /S/ MICHAEL J. MASCALI
----------------------------------------
MICHAEL J. MASCALI, VICE PRESIDENT,
ON BEHALF OF EACH OF
THE ABOVE CORPORATIONS
NCS HEALTHCARE OF NORTH CAROLINA, INC.
BY: /S/ KEVIN B. SHAW
- --------------------------------------
KEVIN B. SHAW, PRESIDENT
26
28
ANNEX A
to
SECURITY AGREEMENT
SCHEDULE OF EXISTING FINANCING STATEMENTS
This information for this Schedule
was separately delivered to the parties.
29
ANNEX B
to
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
====================================================================================================================
ASSIGNOR TAX I.D. NO. ADDRESS
====================================================================================================================
NCS HealthCare, Inc. 34-1816187 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Thrifty Medical Supply, Inc. 73-1291927 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of Oklahoma,
Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Rhode Island, Inc. 05-0429829 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Kansas, Inc. 34-1839712 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of South Carolina, 31-1508225 3201 Enterprise Parkway
Inc. Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Oregon, Inc. 34-1836971 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Maryland, Inc. 31-1496240 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Arkansas, Inc. 31-1490517 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of California, Inc. 31-1499819 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
RESCOT SYSTEMS GROUP, INC. 23-2589308 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Uni-Care Health Services, Inc. 02-0468190 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Uni-Care Health Services of Maine, 02-0468192 3201 Enterprise Parkway
Inc. Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of New Jersey, Inc. 22-3395391 3201 Enterprise Parkway
(formerly Advanced Rx Services, Inc.) Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Florida, Inc. 34-1843258 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Washington, Inc. 34-1844193 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Management & Network Services, Inc. 34-1819691 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
30
====================================================================================================================
ASSIGNOR TAX I.D. NO. ADDRESS
====================================================================================================================
NCS Services, Inc. 34-1837567 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Iowa, Inc. 31-1509013 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Modesto, Inc. 31-1510328 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of
California, Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS Quality Care Pharmacy, Inc. 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of
California, Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Kentucky, Inc. 31-1521217 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
KINETIC SERVICES, INC. 95-4346189 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of
California, Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS Daven Drug, Inc. 31-1508219 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of
California, Inc.)
- --------------------------------------------------------------------------------------------------------------------
JK Medical Services, Inc. 73-1461722 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of
Oklahoma, Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Vermont, Inc. 31-1526078 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Beachwood, Inc. 34-1881410 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
HLF Adult Home Pharmacy Corp. 16-1342819 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of New York,
Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Ohio, Inc. 31-1257307 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Michigan, Inc. 34-1777940 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Indiana, Inc. 35-1954599 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
31
====================================================================================================================
ASSIGNOR TAX I.D. NO. ADDRESS
====================================================================================================================
NCS HealthCare of Illinois, Inc. 37-1354510 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS Unlimited, Inc. 37-1360802 3201 Enterprise Parkway
Beachwood, Ohio 44122
(this entity was
dissolved)
- --------------------------------------------------------------------------------------------------------------------
NCS HEALTHCARE OF PENNSYLVANIA, INC. 23-2679334 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
CHESHIRE LONG TERM CARE PHARMACY, 3201 Enterprise Parkway
INC. Beachwood, Ohio 44122
(merged into NCS
HealthCare of Connecticut,
Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Massachusetts, Inc. 31-1571275 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Arizona, Inc. 31-1573985 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Montana, Inc. 34-1851710 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Missouri, Inc. 34-1855274 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
CS HealthCare of North Carolina, 56-1889643 3201 Enterprise Parkway
Inc. Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Optimal Acquisition Co., Inc. 3201 Enterprise Parkway
Beachwood, Ohio 44122
(merged into NCS
HealthCare of California,
Inc.)
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of New York, Inc. 34-1854267 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
PharmaSource Healthcare, Inc. 58-2066823 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Texas, Inc. 34-1866495 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Tennessee, Inc. 34-1866494 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Minnesota, Inc. 34-1866489 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of Wisconsin, Inc. 34-1866497 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
3
32
====================================================================================================================
ASSIGNOR TAX I.D. NO. ADDRESS
====================================================================================================================
NCS HealthCare of Nebraska, Inc. 34-1866491 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
NCS HealthCare of New Mexico, Inc. 34-1866493 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Beachwood HealthCare Management, Inc. 34-1868886 3201 Enterprise Parkway
Beachwood, Ohio 44122
- --------------------------------------------------------------------------------------------------------------------
Kern Acquisition Corp. 34-1865336 3201 Enterprise Parkway
(merged into NCS Beachwood, Ohio 44122
HealthCare of California,
Inc.)
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
4
33
ANNEX C
to
SECURITY AGREEMENT
SCHEDULE OF EQUIPMENT
AND INVENTORY LOCATIONS
======================================================================================================================
ASSIGNOR EI# SITES
======================================================================================================================
NCS HealthCare,Inc 34-1816187 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
NCS HealthCare of New Jersey, Inc. 22-3395391 3201 Enterprise Parkway
Beachwood, Ohio 44122
(formerly Advanced Rx Services, Inc.)
202 West Parkway Dr. Ste 2 Egg Harbor, NJ 08234
======================================================================================================================
Beachwood HealthCare Management, Inc. 34-1868886 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
NCS HealthCare of Connecticut, Inc. 06-1330453 3201 Enterprise Parkway
Beachwood, Ohio 44122
288 Highland Ave. Cheshire, CT 06410
======================================================================================================================
HLF Adult Home Pharmacy Corp. 16-1342819 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
JK Medical Services, Inc. 73-1461722 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
Kinetic Services, Inc. 95-4346189 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
Management & Network Services, 34-1819691 3201 Enterprise Parkway
Inc. (MNSI) Beachwood, Ohio 44122
4936 Blazer Parkway Dublin, OH 43017
======================================================================================================================
NCS Daven Drug, Inc. 31-1508219 3201 Enterprise Parkway
Beachwood, Ohio 44122
======================================================================================================================
NCS HealthCare of Arizona, Inc. 31-1573985 3201 Enterprise Parkway
Beachwood, Ohio 44122
2450 S. 4th Ave. Ste. 119 Yuma, AZ 85364
2323 East Magnolia St Ste. 103 Phoenix, AZ 85034
======================================================================================================================
34
======================================================================================================================
ASSIGNOR EI# SITES
======================================================================================================================
NCS HealthCare of Arkansas, Inc. 31-1490517 3201 Enterprise Parkway
Beachwood, Ohio 44122
10620 Colonel Glenn Rd. Little Rock, AR 72204
10620 Colonel Glenn Rd. Little Rock, AR 72204
2890 B Walnut Rogers, AR 72756
4102 Jefferson Ave. Texarkana, AR 71854
======================================================================================================================
NCS HealthCare of California, Inc. 31-1499819 3201 Enterprise Parkway
Beachwood, Ohio 44122
7701 Haskell Ave. Van Nuys, CA 91406
8303 Alondra Blvd. Ste 111 Paramount, CA 90723
602 Scenic Dr. Modesto, CA 95350
1315 Boughton Dr. Bakerfield, CA 93380
16250 Gundry Ave. Paramount, CA 90723
3939 Guasti Road Unit B Ontario, CA 91761
======================================================================================================================
NCS HealthCare of Florida, Inc. 34-1843258 3201 Enterprise Parkway
Beachwood, Ohio 44122
2891 Gateway Centre Parkway Bld. C Pin. Park, FL 33782
3771 SW 42nd Ave. Ste. 5 Gainsville, FL 32608
======================================================================================================================
NCS HealthCare of Illinois, Inc. 37-1354510 3201 Enterprise Parkway
Beachwood, Ohio 44122
2363 Federal Dr. Decatur, IL 62526
113 North Park Ave. PO Box 278 Herrin, Il 62948
1510 Midway Ct. Ate. E107 Elk Grove Vil, IL 60007
911 Washington St. Highland, IL 62249
======================================================================================================================
NCS HealthCare of Indiana, Inc. 35-1954599 3201 Enterprise Parkway
Beachwood, Ohio 44122
Northwest Blvd. Indianapolis 822 Ste. 100 IN 46278
215 West State St. Princeton, IN 47670
211 West State St. Princeton, IN 47670
E52 Lake Ave.Fort Wayne, IN 46805
769 Madison Street, STE D Crown Point, IN 46307
======================================================================================================================
2
35
======================================================================================================================
ASSIGNOR EI# SITES
======================================================================================================================
NCS HealthCare of Iowa, Inc. 31-1509013 3201 Enterprise Parkway
Beachwood, Ohio 44122
4131 109th St. Urbandale, IA 50322
2330 Transit Plaza, Ste. B Sioux City, IA 51106
1401 East Anson St. Box 474 Marshalltown, IA 50158
5217 Grand Ave. Davenport, IA 52807
======================================================================================================================
NCS HealthCare of Kansas, Inc. 34-1839712 3201 Enterprise Parkway
Beachwood, Ohio 44122
4999 S. LuLu Wichita, KS 67216
2003 SW Gage Blvd. Topeka, KS 66604
======================================================================================================================
NCS HealthCare of Kentucky, Inc. 31-1521217 3201 Enterprise Parkway
Beachwood, Ohio 44122
835 North L. Rogers Wells Blvd. Glascow, KY 42141
======================================================================================================================
NCS HealthCare of Maryland, Inc. 31-1496240 3201 Enterprise Parkway
Beachwood, Ohio 44122
201 North Burhans Blvd. Hagerstown, MD 21740
14300 Cherry Lane Ct, Ste 112 Laurel, MD 20707
1516 B South Salisbury Blvd. Salisbury, MD 21801
======================================================================================================================
NCS HealthCare of Massachusetts, Inc. 31-1571275 3201 Enterprise Parkway
Beachwood, Ohio 44122
50 D'Angelo Dr. Marlborough, MA 01752
======================================================================================================================
NCS HealthCare of Michigan, Inc. 34-1777940 3201 Enterprise Parkway
Beachwood, Ohio 44122
21811 Kelly Eastpoint, MI 48021
4025 Broadmoor S.E. Kentwood, MI 49512
4072 Market Place Rd. Flint, MI 48507
======================================================================================================================
NCS HealthCare of Minnesota, Inc. 34-1866489 3201 Enterprise Parkway
Beachwood, Ohio 44122
1285 Corporate Center Dr. Ste 120 Eagan, MN 55121
======================================================================================================================
NCS HealthCare of Missouri, Inc. 34-1855274 3201 Enterprise Parkway
Beachwood, Ohio 44122
11720 E. 23rd St. Independence, MO 64050
3413 Hollenberg Dr. Brigeton, MO 63044
======================================================================================================================
3
36
======================================================================================================================
ASSIGNOR EI# SITES
======================================================================================================================
NCS HealthCare of Modesto, Inc. 31-1510328 3201 Enterprise Parkway
Beachwood, Ohio 44122
602 Scenic Dr. Modesto, CA 95350
======================================================================================================================
NCS HealthCare of Montana, Inc. 34-1851710 3201 Enterprise Parkway
Beachwood, Ohio 44122
1611 Alderson Ave. Billings, MT 59102
======================================================================================================================
NCS HealthCare of Nebraska, Inc. 34-1866491 3201 Enterprise Parkway
Beachwood, Ohio 44122
300 Oak Creek Dr. Lincoln, NE 68528
======================================================================================================================
NCS HealthCare of New Mexico, Inc. 34-1866493 3201 Enterprise Parkway
Beachwood, Ohio 44122
2835 FG Pan American Fwy. Albuquerque, NM 87107
======================================================================================================================
NCS HealthCare of New York, Inc. 34-1854267 3201 Enterprise Parkway
Beachwood, Ohio 44122
219 Seneca Turnpike New Hartford, NY 13413
4 British American Blvd. Latham, NY 12110
2470 Walden Ave. Buffalo, NY 14225
50 Carlson Rd. Rochester, NY 14610
1607 Route 300 Newburgh, NY 12550
621 E. Brighton Syracuse, NY 13210
St.Camillus 813 Fay Road Syracuse, NY 13219
======================================================================================================================
NCS HealthCare of North Carolina, Inc. 56-1889643 3201 Enterprise Parkway
Beachwood, Ohio 44122
164 Windchime Ct. Raleigh, NC 27615
609 E. Harnett Street Benson, NC 27504
4020 Capital Blvd. Ste 102 Raleigh, NC 27604
44 Buck Shoals Road Bld C Unit 5,6,7 Arden, NC 28704
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NCS HealthCare of Ohio, Inc. 31-1257307 3201 Enterprise Parkway
Beachwood, Ohio 44122
4700 Northwest Parkway Hilliard, Ohio 43026
3617 Center Park Dr. Westchester, OH 45069
34300 Lakeland Blvd. Eastlake, OH 44095
219 W. 12th St. Dover, OH 44622
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ASSIGNOR EI# SITES
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NCS HealthCare of Oklahoma, Inc. 73-1499934 3201 Enterprise Parkway
Beachwood, Ohio 44122
4400 North Lincoln Ste 220 Oaklahoma City, OK 73105
10838 Marshall Street, Ste 122 Tulsa, OK 74116
1300 W. Evengreen Durant, OK 74701
3200 East Reno Del City, OK 73117
6815 NW 10th St, Ste. 4 Ok. City, OK 73127
3168 North Portland Ok. City, OK 73112
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NCS HealthCare of Oregon, Inc. 34-1836971 3201 Enterprise Parkway
Beachwood, Ohio 44122
3104 Turner Road SE Salem, OR 97302
2725 NE Columbia Blvd. Portland, OR 97211
2620 Barnett Rd. Ste H Medford, OR 97504
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NCS HealthCare of Pennsylvania, Inc. 23-2679334 3201 Enterprise Parkway
Beachwood, Ohio 44122
4113 Birney Ave Moosic, PA 18507
90 Glade Dr. Kittanning, PA 16201
6330 Hedgewood Dr. Ste 280 Allentown, PA 18106
109 S. Sharpsville Ave. Sharon, PA 16146
110 East Broad St. Souderton, PA 18964
127 South Center St. Edensburg, PA 15931
100 Beta Dr. Pittsburgh, Pa 15238
3000 South Queen St. Dallastown, PA 17313
Telford - Distribution Ctr.
810 Tech Dr. Telford, PA 18969
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NCS HealthCare of Rhode Island, Inc. 05-0429829 3201 Enterprise Parkway
Beachwood, Ohio 44122
NCS Long Term Care Pharmacy, 500 South Rd. East Greenwich
RI 02818
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NCS HealthCare of South Carolina, Inc. 31-1508225 3201 Enterprise Parkway
Beachwood, Ohio 44122
937 Bowman Rd. Mt Pleasant, SC 29464
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ASSIGNOR EI# SITES
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NCS HealthCare of Tennessee, Inc. 34-1866494 3201 Enterprise Parkway
Beachwood, Ohio 44122
5055 Covington Way, Ste 6 Memphis, TN 38134
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NCS HealthCare of Texas, Inc. 34-1866495 3201 Enterprise Parkway
Beachwood, Ohio 44122
1313 Valwood Parkway, Ste 150 Carrollton, TX 75006
5291 Langfield Rd. Houston, TX 77040
7619 South University Ave Lubbock, TX 79423
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NCS HealthCare of Vermont, Inc. 31-1526078 3201 Enterprise Parkway
Beachwood, Ohio 44122
16 Gregory Dr. Ste 3 S. Borlington, VT 05403
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NCS HealthCare of Washington, Inc. 34-1844193 3201 Enterprise Parkway
Beachwood, Ohio 44122
Kent Ofice
25502 74th Ave South Kent, WA 98032
3305 Main St. Ste 205 Vancouver, WA 98663
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NCS HealthCare of Wisconsin, Inc. 34-1866497 3201 Enterprise Parkway
Beachwood, Ohio 44122
3101 E. Enterprise Ave Appleton, WI 54913
2840 21st Place LaCrosse, WI 54601
1801 C-1 Airport Rd Waukesha, WI 53188
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NCS of Missouri, Inc. 34-1859330 3201 Enterprise Parkway
Beachwood, Ohio 44122
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NCS Services, Inc. 34-1837567 3201 Enterprise Parkway
Beachwood, Ohio 44122
NCS Progressive Rehab.
696 1st Ave North, Ste 203, St. Petersburg, FL 33701
34300 Lakeland Blvd. Eastlake, OH 44095
4700 Northwest Parkway Hilliard, OH 43026
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NCS Unlimited, Inc. 37-1360802 3201 Enterprise Parkway
Beachwood, Ohio 44122
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NDS Consulting Applied For 3201 Enterprise Parkway
Beachwood, Ohio 44122
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ASSIGNOR EI# SITES
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Rescot System Group, Inc. 23-2589308 3201 Enterprise Parkway
Beachwood, Ohio 44122
1 Neshaminy Interplex Ste 207 Trevose, PA 19053
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Thrifty Medical Supply, Inc. 73-1291927 3201 Enterprise Parkway
Beachwood, Ohio 44122
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Uni-Care Health Services, Inc. 02-0468190 3201 Enterprise Parkway
Beachwood, Ohio 44122
23 Perimeter Rd, South
Londonderry, New Hampshire NH 03053
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Uni-Care Health Services of Maine, Inc. 02-0468192 3201 Enterprise Parkway
Beachwood, Ohio 44122
105 York Street Ste 1 Kennebunk, ME 04043
110 Davis Farm Road Portland, ME 04103
124 High Street, Ste 2 Caribou, ME 04736
20 Freedom Parkway Bangor, ME 04401
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ASSIGNOR EI# SITES
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PharmaSource Healthcare, Inc. 58-2066823 3201 Enterprise Parkway, Beachwood, Ohio 44122
3500 Parkway Ln NW Ste 280 Norcross, GA 30092
100 Hopspital Ave Ozark, AL 36360
462 E. G. Mills Parkway Hinesville, GA 31313
393 Ridgecrest Circle Clayton, GA 30525
1600 Albany St Ste. 200 Beech Grove, IN 46107
600 Mary St. Ste 3213 Evansville, IN 47747
700 Broadway 8th Fl. East Ft. Wayne, IN 46802
5454 Hollman Ave. PO Box 189 Hammond, IN 46320
21 North Ave. Ste. 450 Kansas City, KS 66102
1700 SW 7th St. Ste 814 Topeka, KS 66606
5301 East Hudson River Rd. Ann Arbor, MI 48206
One Hurly Plaza 11th Fl. Flint, MI 46503
215 North Ave. Suite 200 Mount Clemens, MI 46043
1700 Clinton St. Muskegon, MI 49442
440 S. Market Springfield, MO 65305
101 Highwatch Rd. Effingham Falls, NH
1000 16th St. NW Mandan, ND 58554
155 5th St. Barberton, OH 44203
217 Clifton Ave. 15th Fl. Cincinnati, OH 45220
410 W. 100th Ave Columbus, OH 43210
3535 Olentangy River Rd. Columbus, OH 43214
300 Rockefeller Dr. Moskogee, OK 74401
3300 NW Expressway 5 East, Oklahoma City, OK 73112
1350 Locust St. Ste 104 Pittsburgh, PA 15219
800 East 21st St. Ste. 300 Sioux Falls, SD 57117
2000 N. Old Hickory Trail DeSoto, TX 75115
520 E. 6th St Loop 256 Odessa, TX 79761
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ASSIGNOR EI# SITES
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Kern Acquisition Co. Inc 34-1865336 3201 Enterprise Parkway
Beachwood, Ohio 44122
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NCS HealthCare of Beachwood, Inc. 34-1881410 3201 Enterprise Parkway
Beachwood, Ohio 44122
4936 Blazer Parkway Ste B Dublin, OH 43017
4700 Northwest Parkway Hilliard, Ohio 43026
X ALLIANCE?????
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PARTNERSHIPS
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NCS Mobile Diagnostic Gateway Center Parkway Pinellas. Park, FL 33782
2363 Federal Dr. Decatur, IL 62526
1245 Forest Ave. Des Plaines, IL 60018
113 North Park Ave. Herrin, IL 62948
3413 Hollenberg Dr. Bridgeton, MO 60344
618 Broadway St. Pitcalm, PA 15140
6950 Germantown Ave. Ste. 200 Philadelphia, PA 19119
34300 Lakeland Blvd. Eastlake 44095
3320 Bardaville Dr. Lansing, MI 48906
6317 Centre Park Dr. Westchester, OH 45069
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AAS Pharmacy 10203 Kotzebue Street, Ste 110 San Antonio, TX 78217
204 East Main St. Grayson, KY
10620 Colonel Glenn Rd. Ste B Little Rock, AR 72204
4936 Blazer Parkway Dublin, OH 43017
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9
42
ANNEX D
to
SECURITY AGREEMENT
SCHEDULE OF MARKS
----No material Marks----
43
ANNEX E
to
SECURITY AGREEMENT
SCHEDULE OF PATENTS AND APPLICATIONS
-----No Material Patents-----
44
ANNEX F
to
SECURITY AGREEMENT
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
-----No material Copyrights-----