JPMORGAN CHASE BANK
JPMORGAN
SECURITY AGREEMENT
(GENERAL PURPOSE)
This Agreement, made this 20th day of November, 2001, between JPMORGAN
CHASE BANK (herein called the "Bank") and SOFTWARE PUBLISHING CORPORATION, a
Delaware corporation (herein called the "Borrower"), (the "Agreement").
1. DEFINITIONS OF TERMS USED HEREIN. (a) "Borrower" includes all
individuals executing this agreement as parties hereto and all members of a
partnership when the Borrower is a partnership, each of whom shall be jointly
and severally liable individually and as partners hereunder. (b) "Liability" or
"Liabilities" includes all liabilities (primary, secondary, direct, contingent,
sole, joint or several) due or to become due, or that may be hereafter
contracted or acquired, of the Borrower (including the Borrower and any other
person) to the Bank, including without limitation all liabilities arising under
or from any note, loan or credit agreement, letter of credit, guaranty, draft,
acceptance, interest rate or foreign exchange agreement or any other instrument
or agreement of (or the responsibility of) the Borrower or any loan, advance or
other extension of credit or financial accommodation to the Borrower by the
Bank. (c) "Proceeds" includes whatever is received when Collateral is sold,
exchanged, leased, licensed, collected or otherwise disposed of and includes all
distributions on account thereof, rights and claims arising therefrom and the
account arising when the right to payment is earned under a contract. (d)
"Security Interest" means a security interest, lien or other interest in
Collateral which secures payment of a liability or performance of an obligation.
(e) "Collateral" means the property described in Section 2 hereof and the
following described property of the Borrower:
All personal property and fixtures whether now or hereafter existing or now
owned or hereafter acquired and wherever located, including without limitation
all present and future accounts receivable and all other accounts of any kind,
chattel paper, commercial tort claims, deposit accounts at any depositary,
documents, inventory, equipment and all other goods of any kind, instruments,
securities, security entitlements, securities accounts and all other investment
property of any kind, letter-of-credit rights, money, cash and cash equivalents,
patents, patent applications, trademarks, trademark applications, trade names,
including, without limitation, the "Harvard" and "Harvard Graphics" tradename,
trademark, copyrights, copyright applications, rights to xxx and recover for
past infringement of patents, trademarks and copyrights, computer programs,
computer software, engineering drawings, service marks, customer lists,
goodwill, payment intangibles, software and all other general intangibles of any
kind, all additions, accessions, replacements, repairs, additions or
substitutions to and all computer programs embedded in any of the foregoing
(including computer programming instructions), all supporting obligations of
every nature for any of the foregoing, all licenses, permits, agreements of any
kind or nature pertaining to the operation or possession or use or the authority
to operate, possess or use (by any person or entity) any of the foregoing, all
books, records, files, documents and recorded data of any kind or nature,
including any writings, plans, specifications and schematics, together with all
processes (including computer programming instructions) recording or otherwise
related to any of the foregoing, all insurance claims or other claims (including
tort claims) against third parties for loss, damage, or destruction of or
wrongful conduct with respect to any of the foregoing and any and all proceeds
of any of the foregoing.
All terms used herein which are also defined in the New York or any other
applicable Uniform Commercial Code as in effect from time to time shall also
have at least the meanings herein as therein defined.
2. SECURITY INTEREST. As security for the payment of all loans and other
extensions of credit or other financial accommodations now or in the future made
by the Bank to the Borrower and all other Liabilities, the Borrower hereby
grants to the Bank a Security Interest in the above-described Collateral and all
and any Proceeds arising therefrom and all and any products of the Collateral.
The Borrower represents and warrants that it is the sole lawful owner of
the Collateral, free and clear of any liens and encumbrances, and has the right
and power to pledge, sell, assign and transfer absolute title thereto to the
Bank and that no financing statement covering the Collateral, other than the
Bank's, is on file in any public office.
To further secure the Liabilities, the Borrower hereby grants, pledges and
assigns to the Bank a continuing lien, Security Interest and right of set-off in
and to all money, securities and all other property of the Borrower, and the
Proceeds thereof, now or hereafter actually or constructively held or received
by or for the Bank, X.X. Xxxxxx
Securities Inc. or any other affiliate of the Bank for any purpose, including
safekeeping, custody, pledge, transmission and collection, and in and to all of
the Borrower's deposits (general and special) and credits with the Bank, X.X.
Xxxxxx Securities Inc. or any other affiliate of the Bank. The Borrower
authorizes the Bank to deliver to others a copy of this Agreement as written
notification of the Borrower's transfer of a Security Interest in the foregoing
property. The Bank is hereby authorized at any time and from time to time,
without notice, to apply all or part of such money, securities, property,
proceeds, deposits or credits to any of the Liabilities in such amounts as the
Bank may elect in its sole and absolute discretion, although the Liabilities may
then be contingent or unmatured and whether or not the Collateral security may
be deemed adequate.
3. USE OF COLLATERAL. Until default, the Borrower may use the Collateral in
any lawful manner. If the Collateral is or is about to become affixed to realty,
the Borrower will, at the Bank's request, furnish the Bank a writing executed by
the mortgagee of the realty whereby the mortgagee subordinates its rights and
priorities to the Bank's Security Interest in the Collateral. If the Collateral
is or may become subject to a landlord's lien, the Borrower will at the Bank
request, furnish the Bank with a landlord's waiver satisfactory in form to the
Bank.
4. DEFAULT. Default shall exist hereunder: (1) if the Borrower shall fail
to pay any amount of the Liabilities when due or if the Borrower shall fail to
keep, observe or perform any provision of this Agreement or of any note, or
other instrument or agreement between the Borrower and the Bank relating to any
Liabilities or if any default or Event of Default specified or defined in any
such note, instrument or agreement shall occur; or (2) if the Borrower shall or
shall attempt to: (a) remove or allow removal of the Collateral from the county
where the Borrower now resides or change the location of its chief executive
office or principal place of business or the jurisdiction under which it is
incorporated or otherwise organized; (b) sell, encumber or otherwise dispose of
the Collateral or any interest therein or permit any lien or Security Interest
(other than the Bank's) to exist thereon or therein, (c) conceal, hire out or
let the Collateral, (d) misuse or abuse the Collateral, or (e) use or allow the
use of the Collateral in connection with any undertaking prohibited by law; or
(3) if bankruptcy or insolvency proceedings shall be instituted by or against
the Borrower; or (4) if the Collateral shall be attached, levied upon, seized in
any legal proceedings, or held by virtue of any lien or distress; or (5) if the
Borrower shall make any assignment for the benefit of creditors; or (6) if the
Borrower shall fail to pay promptly all taxes and assessments upon the
Collateral or the use thereof; or (7) if the Borrower shall die; or (8) if the
Bank with reasonable cause determines that its interest in the Collateral is in
jeopardy. In the Event of Default or the breach of any undertaking of or
conditions to be performed by the Borrower: (1) all Liabilities shall become
immediately due and payable; and (2) the Borrower agrees upon demand to deliver
the Collateral to the Bank, or the Bank may, with or without legal process, and
with or without previous notice or demand for performance, enter any premises
wherein the Collateral may be, and take possession of the same, together with
anything therein, and the Bank shall have the rights and remedies of a secured
party after default under the Uniform Commercial Code and, in addition, may
sell, lease, license, collect, redeem, setoff, offset, debit, charge or
otherwise dispose of or liquidate into cash, publicly or privately, the
Collateral and to apply the Collateral or the Proceeds thereof to repay the
Liabilities in such amounts as it may in its sole discretion may select
(regardless of whether any Liabilities are contingent, unliquidated or unmatured
or whether the Bank has recourse to the Borrower or any other person, entity,
collateral or assets). The Bank may modify or disclaim any warranties or other
representations or recourse in connection with any such disposition or
liquidation. If the Collateral is sold at public sale, the Bank may purchase the
Collateral at such sale. The Bank, provided it has sent the statutory notice of
default, may retain from the proceeds of such sale all reasonable costs incurred
in the said taking and sale and also, all sums then owing by the Borrower, and
any surplus of any such sale shall be paid to the Borrower.
5. GENERAL AGREEMENTS. (a) The Borrower agrees to pay the costs of filing
financing statements and of conducting searches in connection with this
Agreement. (b) The Borrower agrees to allow the Bank through any of its officers
or agents, at all reasonable times, to examine or inspect any of the Collateral
and to examine, inspect and make extracts from the Borrower's books and records
relating to the Collateral. (c) The Borrower will promptly pay when due all
taxes and assessments upon the Collateral or for its use of operation or upon
the proceeds thereof or upon this Agreement or upon any note or other instrument
or agreement evidencing any of the Liabilities. (d) At its option, the Bank may
discharge taxes, liens or Security Interests or other encumbrances at any time
levied or placed on the Collateral, and may pay for the maintenance and
preservation of the Collateral, and the Borrower agrees to reimburse the Bank on
demand for any payment made or any expense incurred by the Bank pursuant to the
foregoing authorization, including outside or in-house counsel fees and
disbursements incurred or expended by the Bank in connection with this
Agreement. (e) The Borrower hereby authorizes the Bank to file financing
statements and any amendments thereto without the signature of the Borrower.
Such authorization is limited to the Security Interest granted by this
Agreement. (f) The Borrower agrees that the Bank has the right to notify (on
invoices or otherwise) account debtors and other obligors or payors on any
Collateral of its assignment to the Bank, and that all payments thereon should
be made directly to the Bank, and
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that the Bank has full power and authority to collect, compromise, endorse, sell
or otherwise deal with the Collateral on its own name or that of the Borrower at
any time. (g) The Borrower agrees to pay or reimburse the Bank on demand for all
costs and expenses incurred by it in connection with the administration and
enforcement of this Agreement and the administration, preservation, protection,
collection or realization of any Collateral (including outside or in-house
attorneys' fees and expenses). (h) The Bank shall not be deemed to have waived
any of its rights hereunder or under any other agreement, instrument or paper
signed by the Borrower unless such waiver is in writing and signed by the Bank.
No delay or omission on the part of the Bank in exercising any right shall
operate as a waiver thereof or of any other right. A waiver upon any one
occasion shall not be construed as a bar or a waiver of any right or remedy on
any future occasion. All of the rights and remedies of the Bank, whether
evidenced hereby or by any other Agreement, instrument or paper, shall be
cumulative and may be exercised singly or concurrently. (i) THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. THE BORROWER AND THE BANK EACH WAIVE TRIAL BY JURY IN CONNECTION WITH THIS
AGREEMENT OR ANY DISPUTE OR OTHER MATTERS. (j) This Agreement, and the Security
Interests, obligations, rights and remedies created hereby, shall inure to the
benefit of the Bank and its successors and assigns and be binding upon the
Borrower and its heirs, executors, administrators, legal representatives,
successors and assigns.
6. EXECUTION BY THE BANK. This Agreement shall take effect immediately upon
execution by the Borrower, and the execution hereof by the Bank shall not be
required as a condition to the effectiveness of this Agreement. The provision
for execution of this Agreement by the Bank is only for purposes of filing this
Agreement as a security agreement under the Uniform Commercial Code as in effect
from time to time, if execution hereof by the Bank is required for purposes of
such filing.
SOFTWARE PUBLISHING CORPORATION
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(Borrower)
By: /s/ Xxxxxxx XxXxxxxx
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Title: President
3512 Veterans Memorial Highway
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(Number and Street)
Xxxxxxx, XX 00000
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(City, County, State)
Places of business in counties other than
above:
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JPMORGAN CHASE BANK
By: /s/ Xxxxxxxxxxx Xxxxxxxxxx, Vice President
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(Name and Title)
Xxxxxxxxxxx Xxxxxxxxxx
Address: 000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, X.X. 00000
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Number, Street, City)
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