EXHIBIT 10.24
SECURITY AGREEMENT
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This SECURITY AGREEMENT, dated as of November 8, 2000 is made by the
undersigned ("Obligor") to Safeguard Scientifics, Inc., a Pennsylvania
corporation (the "Lender").
Recitals
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1. Lender has entered into a Guaranty dated as of October 4, 2000,
relating to certain obligations of Obligor to Xxxx Xxxxx Xxxx Xxxxxx ("Xxxx
Xxxxx") arising under the Xxxxxx X. Xxxxxx Foundation, Inc. Xxxx Xxxxx Account
(No. [INTENTIONALLY OMITTED]) (the "Foundation Account") and the Xxxxxx X.
Xxxxxx Xxxx Xxxxx Account (No. [INTENTIONALLY OMITTED]) (the "Xxxxxx Account"),
together with the Foundation Account, the "Accounts") (such guaranty or any
replacement thereof from Lender or any affiliate of Lender referred to herein as
the "Guaranty"). Pursuant to the Guaranty the Lender agrees to guaranty certain
obligations of the Obligor to Xxxx Xxxxx in connection with the Accounts. The
Obligor has agreed to reimburse Lender for any amounts paid pursuant to the
Guaranty pursuant to a Letter Agreement dated October 4, 2000 and amended as of
November 8, 2000 (the "Letter Agreement").
2. The Lender has loaned to the Borrower the principal amount of
$10,000,000 by a Note dated October 18, 2000 (the "Note").
3. It was a condition to Lender making the Loan and to continue to
guaranty the obligations of Obligor relating to the Accounts that the Obligor
enter into this Security Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
SECTION 1. Grant of Security Interest. Obligor hereby grants to Lender a
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security in interest in the following property, whether now owned or hereafter
arising or acquired (collectively, the "Collateral"):
(a) all of Obligor's accounts, general intangibles, chattel paper, and
instruments (collectively, the "Receivables");
(b) all investment property;
(c) all books and records of Obligor relating to any of the foregoing;
(d) all proceeds and products of any of the foregoing, including
insurance payable by reason of loss or damage;
provided, however, that the grant of such a security interest shall not apply
to, and the term "Collateral" shall not include, any particular item of property
of Obligor if the grant of a security
interest in such property is prohibited by, or would otherwise constitute an
event of default under, any agreement with a third party lender to which Obligor
is a party or by which Obligor's property is bound ("Excluded Collateral");
provided further, however, that Obligor shall use his reasonable best efforts to
get the consent of such third party lenders to the security interests granted
hereunder and that upon receipt of such consent or payment in full of such
indebtedness, such Excluded Collateral shall be deemed to be Collateral
hereunder.
Obligor represents and warrants that he is the sole owner of the Collateral and
has the legal right to grant to Lender a security interest therein, and that the
Collateral is free and clear of all other liens, security interests and
encumbrances, in each case, except as described in the financial disclosures
provided to Lender by Obligor either prior to or within two business days
following the execution of this Agreement.
SECTION 2. Security for Liabilities. This Agreement secures the payment
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and performance of all indebtedness, obligations, and liabilities of every kind
and nature (whether primary or secondary, direct or indirect, absolute or
contingent, sole, joint, or several, secured or unsecured, similar or
dissimilar, or related or unrelated), heretofore, now, or hereafter contracted
or acquired, of Obligor to Lender under the Letter Agreement and the Note
(collectively, the "Liabilities").
SECTION 3. Obligor Remains Liable. Anything herein to the contrary
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notwithstanding, (a) Obligor shall remain liable under his contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of Obligor's duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by Lender of any of the rights
hereunder shall not release Obligor from any of his duties or obligations under
its contracts and agreements included in the Collateral, and (c) Lender shall
not have any obligation or liability under the contracts and agreements included
in the Collateral by reason of this Agreement, nor shall Lender be obligated to
perform any of the obligations or duties of Obligor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
SECTION 4. Further Assurances. (a) Obligor agrees that from time to time,
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at his expense, he will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that Lender may request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Lender to exercise and
enforce his rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, Obligor will: (i) upon request
by Lender, xxxx conspicuously each document and each item of chattel paper
included in his Receivables and each of his records pertaining to any of the
Collateral, with a legend, in form and substance satisfactory to Lender,
indicating that such document, chattel paper, or Collateral is subject to the
security interest granted hereby; (ii) if any of his Receivables shall be
evidenced by a promissory note or other instrument, deliver and pledge to Lender
hereunder such note or instrument duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance satisfactory to
Lender, and (iii) execute and file such financing or continuation statements or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as Lender may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby.
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(b) Obligor hereby authorizes Lender to file one of more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Collateral without the signature of Obligor where permitted by law. A
carbon, photographic, or other reproduction of this Agreement or any part
thereof shall be sufficient as a financing statement where permitted by law.
(c) Obligor will furnish to Lender from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as Lender may request, all in
reasonable detail, and will upon request provide Lender with current financial
statements in form reasonably satisfactory to Lender or other information
regarding Obligor's financial position and the Collateral as Lender may
reasonably request, including without limitation, detailed descriptions of all
investment property held in the Accounts on a daily basis if requested.
SECTION 5. Certain Covenants as to Receivables. Obligor shall:
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(a) Keep his residence and the office where he keeps his records,
including all computer hardware and software, concerning his Receivables, and
all originals of all chattel paper which evidence any such Receivables at the
place specified in Schedule 1 hereto or, upon 30 days' prior written notice to
Lender, at such other location as shall be identified in such notice and which
are in a jurisdiction where all action required by Section 4 shall have been
taken with respect to his Receivables. Obligor will hold and preserve such
records and chattel paper and will permit representatives of Lender at any time
during normal business hours to inspect and make abstracts from such records and
chattel paper. Obligor shall immediately endorse and deliver to Lender each
instrument included in the Receivables.
(b) Except as otherwise provided in this subsection (b), Obligor shall
continue to collect, at his own expense, all amounts due or to become due to
Obligor under the Receivables. In connection with such collections, Obligor may
take (and, at Lender's direction, shall take) such action as Obligor or Lender
may deem necessary or advisable to enforce collection of his Receivables;
provided, however, that Lender shall have the right, at any time and from time
to time, to notify the account debtors or obligors under any Receivables of the
assignment of such Receivables to Lender and to direct such account debtors or
obligors to make payment of all amounts due or to become due thereunder directly
to Lender and, upon such notification and at the expense of Obligor, to enforce
collection of any such Receivables, and to adjust, settle, or compromise the
amount, payment, or other terms thereof, upon terms which it considers
advisable. Any amounts received or collected by Lender pursuant to this
subsection shall be held as cash collateral and applied as provided in Section
12(b). After such notification, and in any event following the occurrence and
during the continuance of an Event of Default, Obligor shall not adjust, settle,
or compromise the amount or payment of any Receivable, or release wholly or
partly any account debtor or obligor thereunder, or allow any credit or discount
thereon.
(c) Whether or not it shall have elected to notify account debtors or
obligors under Receivables to make payment directly to Lender, and whether or
not an Event of Default shall have occurred, Lender shall have the right, by
notice to Obligor, to require that all amounts and proceeds received or
collected by Obligor in respect of his Receivables shall be
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received in trust for the benefit of Lender hereunder, shall be segregated from
other funds of Obligor, and shall be forthwith paid over to Lender in the same
form as so received (with any necessary endorsement) to be held as cash
collateral and applied as provided by Section 12(b).
(d) Lender shall have the right from time to time following the
occurrence and during the continuance of an Event of Default to communicate
directly with account debtors and obligors on the Receivables.
SECTION 6. Certain Covenants as to Investment Property.
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(a) With respect to any Collateral that constitutes a security
entitlement, a commodity contract, a security account or commodity account
("Security"), the Obligor shall, at the request of Lender, use his reasonable
best efforts to cause the applicable securities intermediary or commodity
intermediary with respect thereto either to identify in its records Lender's
having a security interest in such Security or to agree in writing with Obligor
and Lender that such securities intermediary or commodity intermediary will
comply with entitlement orders originated by Lender without further consent of
Obligor; such agreement to be in form and substance satisfactory to Lender.
Without limiting the foregoing, Obligor agrees, at the request of Lender, to use
his reasonable best efforts to obtain such agreements from Xxxx Xxxxx with
respect to the Accounts and from The Chase Manhattan Bank ("Chase") with respect
to Obligor's account (the "Chase Account") with Chase. Lender understands that
any such agreement with Xxxx Xxxxx or Chase will contain provisions satisfactory
to Xxxx Xxxxx or Chase concerning the subordination of Lender's security
interest.
(b) Obligor agrees that it will not sell or dispose of any investment
property including any assets in the Accounts other than, in the case of the
Accounts to the extent that such assets are applied to repayment of loans by
Xxxx Xxxxx secured by the Accounts or the Note so long as such dispositions do
not involve the disposition of Lender's common stock or Internet Capital Group,
Inc.'s common stock unless such sales are made with the consent of Lender's
president or chief financial officer, provider, however, that Obligor shall be
entitled to retain a portion of such proceeds equal to his reasonable and good
faith estimate of all taxes he will owe in connection with the disposition of
such investment property based upon his overall tax position and taking into
account losses which are available to offset such taxes. Securities in the Chase
Account may be sold to pay Obligor's obligations, to repay loans made by Chase
secured by assets in the Chase Account or, following such payments, if proceeds
are deposited in the Accounts, for application to amounts owed to Xxxx Xxxxx.
Obligor shall not incur any additional indebtedness relating to the Accounts or
in any other Accounts as to which the Accounts are contingently liable.
(c) All agreements entered into with the securities intermediaries and
commodities intermediaries shall provide that no disposition shall be made of
any asset within such Account without the prior written consent of Lender and
that no trading of any securities in such Account shall be permitted without
Lender's prior written consent; provided that such agreement may provide that
securities may be sold in accordance with the terms of the Letter Agreement to
repay the liabilities.
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(d) Obligor shall provide from time to time upon request of Lender
schedules showing all securities entitlements held in any securities account or
commodities account in reasonable detail setting forth the initial purchase
price of such securities entitlements and commodities entitlements and the
current market value of such securities entitlements and commodities
entitlements (which shall be on a daily basis until Obligor is otherwise
notified) .
SECTION 7. Transfers and Other Liens; Incurrence of Debt. Obligor shall
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not:
(a) Sell, assign (by operation of law or otherwise), or otherwise
dispose of any of the Collateral or any real property or other material assets
owned Obligor except upon written consent of the president or chief financial
officer of Lender;
(b) Create or suffer to exist any lien, security interest, or other
charge or encumbrance upon or with respect to any of the Collateral or any other
assets owned by Obligor except those in existence on the date of this Agreement;
or
(c) Incur any additional indebtedness for borrowed money or guaranty
any such indebtedness without the consent of the president or chief financial
officer of Lender.
SECTION 8. Lender Appointed Attorney-in-Fact. Obligor hereby irrevocably
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appoints Lender as his attorney-in-fact, with full authority in the place and
stead of Obligor and in the name of Obligor, Lender, or otherwise, from time to
time in Lender's discretion to take any action and to execute any instrument
which Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation:
(a) to sign in the name and on behalf of Obligor any financing
statements or other papers required under Section 4;
(b) to ask, demand, collect, xxx for, recover, compound, receive, and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(c) to receive, endorse, and collect any drafts or other instruments,
documents, and chattel paper in connection with subsection (b) above; and
(d) to file any claims or take any action or institute any proceedings
which Lender may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of Lender with respect to any of
the Collateral.
Obligor hereby ratifies and approves all acts of Lender as such attorney-
in-fact. Lender shall not, in its capacity as such attorney-in-fact, be liable
for any acts or omissions, nor for any error of judgment or mistake of fact or
law, but only for gross negligence or willful misconduct. This power, being
coupled with an interest, is irrevocable until all Liabilities have been fully
satisfied and until Lender is no longer committed to allow additional
Liabilities to be incurred. Any amounts received or collected by Lender in its
capacity as such attorney-in-fact shall be held as cash collateral and applied
as provided in Section 12(b).
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SECTION 9. Lender May Perform. If Obligor fails to perform any agreement
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contained herein, Lender may itself perform, or cause performance of, such
agreement, and the expenses of Lender incurred in connection therewith shall be
payable by Obligor under Section 13(b).
SECTION 10. Lender's Duties. The powers conferred on Lender hereunder are
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solely to protect its interest in the Collateral and shall not impose any duty
to exercise any such powers. Except for the safe custody of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
Lender shall not have any duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral.
SECTION 11. Inspection Rights. Lender shall, at reasonable times during
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normal business hours, have access to inspect, audit, and make extracts from all
of Obligor's records, files, and books of account relating to the Collateral,
and Obligor shall deliver any document or instrument necessary for Lender to
obtain records from any securities intermediary holding Collateral. Obligor
shall, at Lender's request, take all steps necessary to facilitate such
inspection.
SECTION 12. Remedies. If any Event of Default shall have occurred and be
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continuing, subject to the rights of any holder of a senior lien or security
interest:
(a) Lender may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in the Commonwealth of Pennsylvania (the "Code")
and other applicable laws and agreements and also may (i) require Obligor to,
and Obligor hereby agrees that he will at his expense and upon request of Lender
forthwith, assemble the tangible Collateral as directed by Lender and make it
available to Lender at a place or places to be designated by Lender which are
reasonably convenient to Lender and Obligor and (ii) without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Lender's offices or elsewhere, for cash, on
credit, or for future delivery, and upon such other terms as Lender may deem
commercially reasonable. Obligor agrees that, to the extent notice of sale shall
be required by law, at least ten days' notice to Obligor of the time and place
of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Lender shall not be obligated to make any
sale of the Collateral regardless of notice of sale having been given. Lender
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) All cash proceeds received by Lender in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of Lender, be held by Lender (without interest) as
collateral for, and/or then or at any time thereafter applied (after payment of
any amounts payable to Lender pursuant to Section 13) in whole or in part by
Lender against, all or any part of the Liabilities in such order as Lender shall
elect. This right shall include the right to hold such proceeds as cash
collateral, for application to any Reimbursement Obligation under the Letter
Agreement until all obligations due thereunder
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have been paid in full and the Guaranty released. Any surplus of such cash or
cash proceeds held by Lender and remaining after payment in full of all the
Liabilities (including any Reimbursement Obligation) and release of the Guaranty
shall be paid over to Obligor or to whosoever may be lawfully entitled to
receive such surplus.
SECTION 13. Indemnity and Expenses. (a) Obligor agrees to indemnify Lender
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from and against any and all claims, losses, and liabilities growing out of or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except claims, losses, or liabilities resulting from Lender's
gross negligence or willful misconduct.
(b) Obligor will upon demand pay to Lender the amount of any and all
reasonable expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, which Lender may incur in connection with
(i) the preparation, administration and amendment of this Agreement, (ii) the
custody, preservation, use, or operation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (iii) the exercise or enforcement
of any of the rights of Lender, or (iv) the failure by Obligor to perform or
observe any of the provisions hereof
SECTION 14. Amendments, Indulgences, etc. No amendment or waiver of any
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provision of this Agreement nor consent to any departure by Obligor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the president or chief financial officer of the Lender, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. No failure or delay on the part of Lender in the
exercise of any right, power, or remedy under this Agreement shall constitute a
waiver thereof, or prevent the exercise thereof in that or any other instance.
SECTION 15. Addresses for Notices. All notices and other communications
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provided for hereunder shall be given in writing (including facsimile
communication) and, if to Obligor, mailed or telecopied or delivered to him at
the address therefor shown at the time in Lender's records with a copy to Xxxxxx
X. Xxxxx, Esquire, Drinker Xxxxxx & Xxxxx, LLP, One Xxxxx Square, 18th and
Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, XX 00000, and, if to Lender, mailed or delivered
to it at 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX 00000, or as to any party at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section. All such
notices and other communications shall, when mailed or telecopied, be effective
when deposited in the mail or when facsimile transmission is confirmed during
normal business hours, respectively, addressed as aforesaid.
SECTION 16. Continuing Security Interest, etc. This Agreement shall create
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a continuing security interest in the Collateral and shall (a) be binding upon
Obligor, his heirs, administrators, successors, and assigns and (b) inure to the
benefit of Lender and its successors, transferees, and assigns. The execution
and delivery of this Agreement shall in no manner impair or affect any other
security (by endorsement or otherwise) for the payment or performance of the
Liabilities and no security taken hereafter as security for payment or
performance of the Liabilities shall impair in any manner or affect this
Agreement or the security interest granted hereby, all such present and future
additional security to be considered as one general, continuing security. Any of
the Collateral may be released from this Agreement without altering, varying, or
diminishing in any way this Agreement or the security interest granted
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hereby as to the Collateral not expressly released, and this Agreement and such
security interest shall continue in full force and effect as to all of the
Collateral not expressly released.
SECTION 17. Governing Law; Consent to Jurisdiction; Waiver of Right to Jury
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Trial; Definitions; Counterparts.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(b) Obligor consents to the jurisdiction of the courts of Pennsylvania
and of the courts of the United States sitting in Pennsylvania in any litigation
concerning this Agreement, and Obligor waives any objection based on venue or
inconvenient forum.
(c) OBLIGOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION
INVOLVING THIS AGREEMENT.
(d) As used herein, the term "Event of Default" means (a) Obligor's
failure to pay when due any of the Liabilities (after giving effect to any grace
or cure period provided for in any writing governing or evidencing any of the
Liabilities) and (b) any "event of default" as such term is defined in any
agreement, instrument, or document governing or evidencing any of the
Liabilities and shall include the Events of Default set forth in the Note
whether or not the Note is then in effect. Unless otherwise defined herein,
terms defined in the Uniform Commercial Code as in effect in Pennsylvania on the
date hereof (including the terms "accounts," "general intangibles," "chattel
paper," "instruments," "investment property", "proceeds," and "products"
"security account," "security entitlement," "security intermediary") are used
herein as therein defined as of such date.
(e) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
SECTION 18. Severability. The provisions of this Agreement are independent
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of and separable from each other, and no such provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason any
other such provision may be invalid or unenforceable in whole or in part.
IN WITNESS WHEREOF, Obligor, intending to be legally bound, has
executed or caused the execution of this Agreement, under seal, as of the date
first above written.
/S/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
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