EXHIBIT 10.8
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BANK OF AMERICA
SECURITY AGREEMENT
(MULTIPLE USE)
1. THE SECURITY. The undersigned SWK Technologies (the "Pledgor") hereby
assigns and grants to Bank of America, N.A. (the "Bank") a security interest in
the following described property now owned or hereafter acquired by the Pledgor
("Collateral"):
(a) All accounts, contract rights, chattel paper, instruments, deposit
accounts, letter of credit rights, payment intangibles and general
intangibles, including all amounts due to the Pledgor from a factor; rights
to payment of money from the Bank under any Swap Contract (as defined in
Paragraph 2 below); and all returned or repossessed goods which, on sale or
lease, resulted in an account or chattel paper.
(b) All inventory, including all materials, work in process and
finished goods.
(c) All machinery, furniture, fixtures and other equipment of every
type now owned or hereafter acquired by the Pledgor, (including, but not
limited to, the equipment described in the attached Equipment Description,
if any).
(d) All negotiable and nonnegotiable documents of title covering any
Collateral.
(e) All accessions, attachments and other additions to the Collateral,
and all tools, parts and equipment used in connection with the Collateral.
(f) All substitutes or replacements for any Collateral, all cash or
non-cash proceeds, product, rents and profits of any Collateral, all
income, benefits and property receivable on account of the Collateral, all
rights under warranties and insurance contracts, letters of credit,
guaranties or other supporting obligations covering the Collateral, and any
causes of action relating to the Collateral.
(g) All books and records pertaining to any Collateral, including but
not limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all
Indebtedness of the Pledgor to the Bank. Each party obligated under any
Indebtedness is referred to in this Agreement as a "Debtor." "Indebtedness"
means all debts, obligations or liabilities now or hereafter existing, absolute
or contingent of the Debtor or any one or more of them to the Bank, whether
voluntary or involuntary, whether due or not due, or whether incurred directly
or indirectly or acquired by the Bank by assignment or otherwise. Indebtedness
shall include, without limitation, all obligations of the Debtor arising under
ANY Swap Contract. "Swap Contract' means any interest rate, credit, commodity or
equity swap, cap, floor, collar, forward foreign exchange transaction, currency
swap, cross currency rate swap, currency option, securities puts, calls,
collars, options or forwards or any combination of, or option with respect to,
these or similar transactions now or hereafter entered into between the Debtor
and the Bank.
3. PLEDGOR'S COVENANTS. The Pledgor represents, covenants and warrants that
unless compliance is waived by the Bank in writing:
(a) The Pledgor will properly preserve the Collateral; defend the
Collateral against any adverse claims and demands; and keep accurate Books
and Records.
(b) The Pledgor resides (if the Pledgor is an individual), or the
Pledgor's chief executive office (if the Pledgor is not an individual) is
located, in the state specified on the signature page hereof. In addition,
the Pledgor (if not an individual or other unregistered entity), is
incorporated in or organized under the laws of the
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state specified on such signature page. The Pledgor shall give the Bank at
least thirty (30) days notice before changing its residence or its chief
executive office or state of incorporation or organization. The Pledgor
will notify the Bank in writing prior to any change in the location of any
Collateral, including the Books and Records.
(c) The Pledgor will notify the Bank in writing prior to any change in
the Pledgor's name, identity or business structure.
(d) Unless otherwise agreed, the Pledgor has not granted and will not
grant any security interest in any of the Collateral except to the Bank,
and will keep the Collateral free of all liens, claims, security interests
and encumbrances of any kind or nature except the security interest of the
Bank.
(e) The Pledgor will promptly notify the Bank in writing of any event
which affects the value of the Collateral, the ability of the Pledgor or
the Bank to dispose of the Collateral, or the rights and remedies of the
Bank in relation thereto, including, but not limited to, the levy of any
legal process against any Collateral and the adoption of any marketing
order, arrangement or procedure affecting the Collateral, whether
governmental or otherwise.
(f) The Pledgor shall pay all costs necessary to preserve, defend,
enforce and collect the Collateral, including but not limited to taxes,
assessments, insurance premiums, repairs, rent, storage costs and expenses
of sales, and any costs to perfect the Bank's security interest
(collectively, the "Collateral Costs"). Without waiving the Pledgor's
default for failure to make any such payment, the Bank at its option may
pay any such Collateral Costs, and discharge encumbrances on the
Collateral, and such Collateral Costs payments shall be a part of the
Indebtedness and bear interest at the rate set out in the Indebtedness. The
Pledgor agrees to reimburse the Bank on demand for any Collateral Costs so
incurred.
(g) Until the Bank exercises its rights to make collection, the
Pledgor will diligently collect all Collateral.
(h) If any Collateral is or becomes the subject of any registration
certificate, certificate of deposit or negotiable document of title,
including any warehouse receipt or xxxx of fading, the Pledgor shall
immediately deliver such document to the Bank, together with any necessary
endorsements.
(i) The Pledgor will not sell, lease, agree to sell or lease, or
otherwise dispose of any Collateral except with the prior written consent
of the Bank; provided, however, that the Pledgor may sell inventory in the
ordinary course of business.
(j) The Pledgor will maintain and keep in force insurance covering the
Collateral against fire and extended coverages, to the extent that any
Collateral is of a type which can be so insured. Such insurance shall
require losses to be paid on a replacement cost basis, be issued by
insurance companies acceptable to the Bank and include a loss payable
endorsement in favor of the Bank in a form acceptable to the Bank. Upon the
request of the Bank, the Pledgor will deliver to the bank a copy of each
insurance policy, or, if permitted by the Bank, a certificate of insurance
listing all insurance in force.
(k) The Pledgor will not attach any Collateral to any real property or
fixture in a manner which might cause such Collateral to become a part
thereof unless the Pledgor first obtains the written consent of any owner,
holder of any lien on the real property or fixture, or other person having
an interest in such property to the removal by the Bank of the Collateral
from such real property or fixture. Such written consent shall be in form
and substance acceptable to the Bank and shall provide that the Bank has no
liability to such owner, holder of any lien, or any other person.
4. ADDITIONAL OPTIONAL REQUIREMENTS. The Pledgor agrees that the Bank may
at its option at any time, whether or not the Pledgor is in default:
(a) Require the Pledgor to deliver to the Bank (i) copies of or
extracts from the Books and Records, and (ii) information on any contracts
or other matters affecting the Collateral.
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(b) Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or any
Books and Records are located.
(c) Require the Pledgor to deliver to the Bank any instruments,
chattel paper or letters of credit which are part of the Collateral, and to
assign to the Bank the proceeds of any such letters of credit.
(d) Notify any account debtors, any buyers of the Collateral, or any
other persons of the Bank's interest in the Collateral.
5. DEFAULTS. Any one or more of the following shall be a default hereunder:
(a) Any Indebtedness is not paid when due, or any default occurs under
any agreement relating to the Indebtedness, after giving effect to any
applicable grace or cure periods.
(b) The Pledgor breaches any term, provision, warranty or
representation under this Agreement, or under any other obligation of the
Pledgor to the Bank, and such breach remains uncured after any applicable
cure period.
(c) The Bank fails to have an enforceable first lien (except for any
prior liens to which the Bank has consented in writing) on or security
interest in the Collateral.
(d) Any custodian, receiver or trustee is appointed to take
possession, custody or control of all or a substantial portion of the
property of the Pledgor or of any guarantor or other party obligated under
any Indebtedness.
(e) The Pledgor or any guarantor or other party obligated under any
Indebtedness becomes insolvent, or is generally not paying or admits in
writing its inability to pay its debts as they become due, fails in
business, makes a general assignment for the benefit of creditors, dies, or
commences any case, proceeding or other action under any bankruptcy or
other law for the relief of, or relating to, debtors.
(f) Any case, proceeding or other action is commenced against the
Pledgor or any guarantor or other party obligated under any Indebtedness
under any bankruptcy or other law for the relief of, or relating to,
debtors.
(g) Any involuntary lien of any kind or character attaches to any
Collateral, except for liens for taxes not yet due.
(h) The Pledgor has given the Bank any false or misleading information
or representations.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default, the Bank may
do any one or more of the following:
(a) Declare any Indebtedness immediately due and payable, without
notice or demand.
(b) Enforce the security interest given hereunder pursuant to the
Uniform Commercial Code and any other applicable law.
(c) Enforce the security interest of the Bank in any deposit account
of the Pledgor maintained with the Bank by applying such account to the
Indebtedness.
(d) Require the Xxxxxxx to obtain the Bank's prior written consent to
any sale, lease, agreement to sell or lease, or other disposition of any
Collateral consisting of inventory.
(e) Require the Pledgor to segregate all collections and proceeds of
the Collateral so that they are capable of identification and deliver daily
such collections and proceeds to the Bank in kind.
(f) Require the Pledgor to direct all account debtors to forward all
payments and proceeds of the Collateral to a post office box under the
Bank's exclusive control.
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(g) Require the Pledgor to assemble the Collateral, including the
Books and Records, and make them available to the Bank at a place
designated by the Bank.
(h) Enter upon the property where any Collateral, including any Books
and Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of the Pledgor's equipment, if the Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
(i) Demand and collect any payments on and proceeds of the Collateral.
In connection therewith the Pledgor irrevocably authorizes the Bank to
endorse or sign the Pledgor's name on all checks, drafts, collections,
receipts and other documents, and to take possession of and open the mail
addressed to the Pledgor and remove therefrom any payments and proceeds of
the Collateral.
(j) Grant extensions and compromise or settle claims with respect to
the Collateral for less than face value, all without prior notice to the
Pledgor.
(k) Use or transfer any of the Pledgor's rights and interests in any
Intellectual Property now owned or hereafter acquired by the Pledgor, if
the Bank deems such use or transfer necessary or advisable in order to take
possession of, hold, preserve, process, assemble, prepare for sale or
lease, market for sale or lease, sell or lease, or otherwise dispose of,
any Collateral. The Pledgor agrees that any such use or transfer shall be
without any additional consideration to the Pledgor. As used in this
paragraph, "Intellectual Property" includes, but is not limited to, all
trade secrets, computer software, service marks, trademarks, trade names,
trade styles, copyrights, patents, applications for any of the foregoing,
customer lists, working drawings, instructional manuals, and rights in
processes for technical manufacturing, packaging and labeling, in which the
Pledgor has any right or interest, whether by ownership, license, contract
or otherwise.
(l) Have a receiver appointed by any court of competent jurisdiction
to take possession of the Collateral. The Pledgor hereby consents to the
appointment of such a receiver and agrees not to oppose any such
appointment.
(m) Take such measures as the Bank may deem necessary or advisable to
take possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and the Pledgor hereby irrevocably constitutes
and appoints the Bank as the Pledgor's attorney-in-fact to perform all acts
and execute all documents in connection therewith.
(n) Without notice or demand to the Pledgor, set off and apply against
any and all of the Indebtedness any and all deposits (general or special,
time or demand, provisional or final) and any other indebtedness, at any
time held or owing by the Bank or any of the Bank's agents or affiliates to
or for the credit of the account of the Pledgor or any guarantor or
endorser of the Pledgor's Indebtedness.
(o) Exercise any other remedies available to the Bank at law or in
equity.
7. PLEDGOR NOT A DEBTOR. If any Pledgor is not a Debtor under some or all
of the Indebtedness:
(a) The Pledgor authorizes the Bank, from time to time, without
affecting the Pledgor's obligations under this Agreement, to enter into an
agreement with the Debtor to change the interest rate on or renew the
Indebtedness; accelerate, extend, compromise, or otherwise change the
repayment terms or any other terms of the Indebtedness; receive and hold,
exchange, enforce, waive, fail to perfect, substitute, or release
Collateral, including collateral not originally covered by this Agreement;
sell or apply any Collateral in any order; or release or substitute any
borrower, guarantor or endorser of the Indebtedness, or other person.
(b) The Pledgor waives any defense by reason of any Debtor's or any
other person's defense, disability, or release from liability. The Bank can
exercise its rights against the Collateral even if any Debtor or any other
person no longer is liable on the Indebtedness because of a statute of
limitations or for other reasons.
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(c) The Pledgor agrees that it is solely responsible for keeping
itself informed as to the financial condition of the Debtors and of all
circumstances which bear upon the risk of nonpayment The Pledgor waives any
right it may have to require the Bank to disclose to the Pledgor any
information which the Bank may now or hereafter acquire concerning the
financial condition of the Debtors.
(d) The Pledgor waives all rights to notices of default or
nonperformance by the Debtors. The Pledgor further waives all rights to
notices of the existence or the creation of new indebtedness by any Debtor
and all rights to any other notices to any party liable on any of the
Indebtedness.
(e) The Xxxxxxx represents and warrants to the Bank that it will
derive benefit, directly and indirectly, from the collective administration
and availability of credit under the Indebtedness. The Pledgor agrees that
the Bank will not be required to inquire as to the disposition by any
Debtor of funds disbursed by the Bank.
(f) Until all obligations to the Bank under the Indebtedness have been
paid in full and any commitments of the Bank or facilities provided by the
Bank with respect to the Indebtedness have been terminated, the Pledgor
waives any right of subrogation, reimbursement, indemnification and
contribution (contractual, statutory or otherwise), including without
limitation, any claim or right of subrogation under the Bankruptcy Code
(Title 11, United States Code) or any successor statute, which the Pledgor
may now or hereafter have against any Debtor with respect to the
Indebtedness. The Xxxxxxx waives any right to enforce any remedy which the
Bank now has or may hereafter have against any Debtor, and waives any
benefit of, and any right to participate in, any security now or hereafter
held by the Bank.
(g) The Xxxxxxx waives any right to require the Bank to proceed
against any Debtor or any other person; proceed against or exhaust any
security; or pursue any other remedy. Further, the Pledgor consents to the
taking of, or failure to take, any action which might in any manner or to
any extent vary the risks of the Xxxxxxx under this Agreement or which, but
for this provision, might operate as a discharge of the Pledgor.
(h) In the event any amount paid to the Bank on any Indebtedness or
any interest in property transferred to the Bank as payment on any
Indebtedness is subsequently recovered from the Bank in or as a result of
any bankruptcy, insolvency or fraudulent conveyance proceeding, the Xxxxxxx
shall be liable to the Bank for the amounts so recovered up to the fair
market value of the Collateral whether or not the Collateral has been
released or the security interest terminated. In the event the Collateral
has been released or the security interest terminated, the fair market
value of the Collateral shall be determined, at the Bank's option, as of
the date the Collateral was released, the security interest terminated, or
said amounts were recovered.
8. ARBITRATION AND WAIVER OF JURY TRIAL
(a) This paragraph concerns the resolution of any controversies or
claims between the parties, whether arising in contract, tort or by
statute, including but not limited to controversies or claims that arise
out of or relate to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a "Claim"). For the purposes of this arbitration provision
only, the term "parties" shall include any parent corporation, subsidiary
or affiliate of the Bank involved in the servicing, management or
administration of any obligation described or evidenced by this agreement.
(b) At the request of any party to this agreement, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof ("JAMS"), and the terms of this paragraph. In
the event of any inconsistency, the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted,
unless otherwise required by law, in any U. S. state where real or tangible
personal property collateral for this credit is located or if there is no
such collateral, in the state specified in the governing law section of
this agreement. All Claims shall be determined by one arbitrator; however,
if Claims exceed $5,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator(s) shall be issued
within 30 days of the close of the hearing. However, the arbitrator(s),
upon a showing of good cause, may extend the
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commencement of the hearing for up to an additional 60 days. The
arbitrator(s) shall provide a concise written statement of reasons for the
award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed, judgment entered and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this agreement.
(f) This paragraph does not limit the right of any party to: (i)
exercise self-help remedies, such as but not limited to, setoff; (ii)
initiate judicial or non judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights,
or (iv) act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of any party, including the suing party, thereafter to
require submittal of the Claim to arbitration.
(h) BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND
VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS
AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE
PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF SUCH CLAIM. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
9. MISCELLANEOUS.
(a) Any waiver, express or implied, of any provision hereunder and any
delay or failure by the Bank to enforce any provision shall not preclude
the Bank from enforcing any such provision thereafter.
(b) The Pledgor shall, at the request of the Bank, execute such other
agreements, documents, instruments, or financing statements in connection
with this Agreement as the Bank may reasonably deem necessary.
(c) All notes, security agreements, subordination agreements and other
documents executed by the Pledgor or furnished to the Bank in connection
with this Agreement must be in form and substance satisfactory to the Bank.
(d) This Agreement shall be governed by and construed according to the
laws of the State of New Jersey, to the jurisdiction of which the parties
hereto submit.
(e) All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any single
or partial exercise of any right or remedy shall not preclude the further
exercise thereof or the exercise of any other right or remedy.
(f) All terms not defined herein are used as set forth in the Uniform
Commercial Code.
(g) In the event of any action by the Bank to enforce this Agreement
or to protect the security interest of the Bank in the Collateral, or to
take possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, the Pledgor agrees to pay immediately the costs
and expenses thereof, together with reasonable attorney's fees and
allocated costs for in-house legal services to the extent permitted by law.
(h) In the event the Bank seeks to take possession of any or all of
the Collateral by judicial process, the Pledgor hereby irrevocably waives
any bonds and any surety or security relating thereto that may be required
by applicable law as an incident to such possession, and waives any demand
for possession prior to the commencement of any such suit or action.
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(i) This Agreement shall constitute a continuing agreement, applying
to all future as well as existing transactions, whether or not of the
character contemplated at the date of this Agreement, and if all
transactions between the Bank and the Pledgor shall be closed at any time,
shall be equally applicable to any new transactions thereafter.
(j) The Bank's rights hereunder shall inure to the benefit of its
successors and assigns. In the event of any assignment or transfer by the
Bank of any of the Indebtedness or the Collateral, the Bank thereafter
shall be fully discharged from any responsibility with respect to the
Collateral so assigned or transferred, but the Bank shall retain all rights
and powers hereby given with respect to any of the Indebtedness or the
Collateral not so assigned or transferred. All representations, warranties
and agreements of the Pledgor if more than one are joint and several and
all shall be binding upon the personal representatives, heirs, successors
and assigns of the Pledgor.
10. FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND
AGREES THAT: (A) THIS DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES
ANY COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND
CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER,
TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES
TO THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES,
AND (D) THIS DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
Date: August 1, 0000
XXXX XX XXXXXXX, N.A.
By:
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Xxxxxxx X Xxxxx, Officer
Address for Notices:
West Seneca-Credit Services
Atin: Credit Services
NY7-505-01-24
0000 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
SWK Technologies
By: SWK TECHNOLOGIES
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, CEO
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By: /s/ Xxxx X. Bermarn, President
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Xxxx X. Bermarn, Vice President
By: /s/ Xxxx Bermarn, Vice President
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Xxxx Bermarn, Vice President
Pledgor's Location (principal residence,
if the Pledgor is an individual;
chief executive office, if
the Pledgor is not an individual):
0 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Pledgor's state of incorporation
or organization (if Pledgor is a corporation, partnership,
limited liability company or other registered entity): New Jersey
Mailing Address (if different
from above):
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Street Address
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City State Zip
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