EXHIBIT 10.32
Supplementary Security Agreement
Security Interest in Goods and Chattels
September 6, 1996
To: Fleet National Bank
This is a supplement to our Inventory, Accounts Receivable and Intangibles
Security Agreement (the "Agreement") with you bearing the effective date of even
date herewith. It is hereby incorporated into said Agreement, shall have a term
concurrent therewith and is a part thereof.
1. In addition to your other security, we hereby grant you a continuing
security interest in all machinery, equipment and other goods (as defined in
Article 9 of the Uniform Commerical Code) whether now owned or hereafter
acquired by us and wherever located, all replacements and substitutions therefor
or accessions thereto and all proceeds thereof (all herein referred to
collectively as "Collateral") and including, also without limitation, all
proceeds of fire or other insurance covering the aforesaid property.
2. The Collateral shall be security for all Obligations (as defined in
the Agreement). Until all Obligations have been fully satisfied, your security
interest in the Collateral shall continue in full force and effect and you will
at all times after the occurrence of any Event of Default under the letter
agreement described below have the right to the physical possession of the
Collateral and to maintain such possession on our premises or to remove the
Collateral or any part thereof to such other places you may desire. If you
exercise your right to take possession of the Collateral, we shall, upon your
demand, assemble the Collateral and make it available to you at a place
reasonably convenient to you. In addition, with respect to all Collateral, you
shall have all of the rights and remedies set forth in the Agreement and all of
the rights and remedies provided in the Uniform Commercial Code.
3. We represent, warrant the covenant that (a) the Collateral is in our
possession at 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx of Middlesex, of Commonwealth
of Massachusetts; (b) we are the lawful owners of the Collateral and have the
sole right and lawful authority to deliver this instrument; (c) the Collateral
and every part thereof is and will be free and clear of all security interest,
liens and encumbrances of every kind, nature and description except as follows:
purchase money security interest and other exceptions permitted by letter
agreement of even date herewith between the Borrower and the Bank, and we will
warrant and defend the Collateral
________________________
* Except that Collateral may also be located as described in Item 2.1(j)
of the Disclosure Schedule attached to the aforesaid Letter Agreement.
against the claims and demands of all persons; (d) we will keep the Collateral
free and clear of all attachments, levies, taxes, liens, security interests and
encumbrances of every kind and nature, except as listed above, and we will at
our own cost and expense, keep the Collateral in a good state of repair and will
not waste or destroy the same or any part thereof except for items disposed of
in the ordinary course to the extent expressly permitted by the aforesaid letter
agreement and will not be negligent in the care and use thereof; (e) we will not
without your prior written consent, sell, assign, mortgage, lease or otherwise
dispose of the Collateral;** (f) we will insure the Collateral in your name
against loss or damage by fire, theft, burglary, pilferage, loss in transit and
such other hazards as you shall specify; in amounts and under policies by
insurers acceptable to you, and if we fail to do so, you may procure such
insurance and charge the cost to our loan account; (g) as further assurance for
the payment and performance of the Obligations, we hereby assign to you all
sums, including returned or unearned premiums, which may become payable under
any policy of insurance on the Collateral and we hereby direct each insurance
company issuing any such policy to make payment of such sums directly to you;
(h) except for items disposed of in the ordinary course to the extent expressly
permitted by the aforesaid letter agreement, we will not remove the Collateral
from its present location without your prior written consent and we will at all
times, allow you or your representatives free access to and right of inspection
of the Collateral; (i) we will comply with the terms and conditions of any
leases covering the premises wherein the Collateral is located and any orders,
ordinances, laws or statutes of any city, state or other governmental department
having jurisdiction with respect to such premises or the conduct of business
thereon, and, when requested by you, we will execute any written instruments and
do any other acts necessary to effectuate more fully the purposes and provisions
of the Agreement; (j) we will indemnify and save you harmless from all loss,
cost, damage, liability or expenses including attorneys' fees that you may
sustain or incur by reason of defending or protecting your security interest or
the priority thereof or enforcing the Obligations, or in the prosecution or
defense of any action or proceeding concerning any matter growing out of or
connected with the Agreement, the Obligations or the Collateral.
4. You may, at your option, discharge any taxes, liens, security interest
or other encumbrances at any time levied or placed on the Collateral and not
permitted by the letter agreement and you may pay for the maintenance and
preservation of the
_______________________
** Except for obsolete or worn out items disposed of in the ordinary
course and except for liens permitted by the aforesaid letter agreement.
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Collateral and we will reimburse you on demand for any payment made or any
expense incurred by you pursuant to the foregoing authority, with interest at
the rate provided in the Agreement.
Very truly yours,
PERITUS SOFTWARE SERVICES, INC.
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Borrower
Witnessed by:
By:/s/ Xxxxx X. Xxxxx
-------------------------------- -------------------------------------
Accepted at Boston, Massachusetts ______
FLEET NATIONAL BANK
By:/s/ Xxxxxx Xxxxxx
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Its:
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ITEM 5.1(n)
50% or Greater Ownership Allowed
Xxxx, Xxxxxxx & Xxxxxx
Greylock Limited Equity Partnership
Matrix Partners IV., L.P.
Bull NH Information Systems, Inc.
IBM
CSC
