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SECURITY AGREEMENT
(Intangibles, Accounts, Fees, Inventory and Equipment)
SECURITY AGREEMENT, dated December 10, 1996 between ASA INTERNATIONAL
VENTURES, INC., a Delaware corporation (herein called "Debtor"), with its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx and
CORESTATES BANK, N.A., a national banking association (herein called "Secured
Party").
WHEREAS, Debtor's parent corporation, ASA International, Ltd. ("ASA"), has
executed and delivered a Commercial Promissory Note [Revolver] and a Commercial
Promissory Note [Term] to the Secured Party (the "Notes"); and
WHEREAS, Debtor is a guarantor of the Notes under a written Guaranty and
has also become a party under a Letter Agreement to the Amended Loan Agreement
between ASA and Secured Party and the Loan Documents referred to therein.
NOW THEREFORE, Borrower and Bank agree as follows:
Terms used herein without definition shall have the meanings ascribed to
them in the Loan Documents or the Uniform Commercial Code.
"Obligations" means the aforesaid Letter Agreement, Notes, Guaranty, the
Amended Loan Agreement and the Loan Documents, and any and all obligations,
liabilities, indebtedness, advances and loans owing by the Debtor to the Secured
Party of every kind and description, direct or indirect, absolute or contingent,
primary or secondary, secured or unsecured, due or to become due, now existing
or hereafter arising, regardless of how they arise or by what agreement or
instrument they may be evidenced or whether evidenced by any agreement or
instrument, and includes obligations to perform acts and refrain from taking
action as well as obligations to pay money.
1. Grant of Security Interest. As collateral security for the payment,
performance and observance of all of the Debtor's Obligations to Secured Party,
Debtor hereby grants to Secured Party a continuing security interest in and a
right of setoff against the following property (including the proceeds and
insurance proceeds thereof) of Debtor whether now existing or owned by the
Debtor or hereafter owned, acquired, created or arising (the "Collateral").
(a) All general intangibles, including, without limitation, all
information regarding customer lists, markets, market shares relating to all of
Debtor's product lines; all product lines, secrets, patents, trade names and
marks, customer lists, goodwill, Debtor's name, and all contract rights,
including but not limited to all of Debtor's interest in licenses, software,
programs, agreements with end-user customers for software and programs, source
codes, all fees paid to Debtor, and all other intangible and intellectual
property of every kind and description.
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(b) All accounts receivable of the Debtor, all contract rights of
the Debtor with regard to such accounts receivable; all rights of the Debtor to
the payment of fees money from any person, firm, corporation or governmental
agency; all tax refunds; all interest of the Debtor in goods as to which an
account receivable shall have arisen; all files, records (including without
limitation computer programs, tapes and related electronic data processing
software) and writings of the Debtor or in which it has an interest in any way
relating to the foregoing property; all goods, instruments, documents of title,
policies and certificates of insurance, securities, chattel paper, deposits,
cash or other property owned by the Debtor or in which it has an interest which
are now or may hereafter be in the possession of the Secured Party or as to
which the Secured Party may now or hereafter control possession by documents of
title or otherwise; all notes receivable of the Debtor; all property rights of
the Debtor to retrieval from third parties of electronically processed and
recorded information pertaining to any of the foregoing property; and all
proceeds and products of all of the foregoing.
(c) All inventory of the Debtor including, without limitation, any
and all goods, wares, merchandise and other tangible personal property including
raw materials, work in process, supplies and components, office supplies, paper,
shipping supplies and finished goods whether or not held by the Debtor for sale
or other disposition, and also including any returned or repossessed goods,
wares, merchandise and other tangible personal property, all rights to stoppage
in transit, all products of and accessions to any and all of the foregoing and
including documents of title, whether negotiable or nonnegotiable, representing
any of the foregoing items.
(d) All machinery and equipment and other tangible personal
property with related accessories and parts, molds, office furniture,
furnishings and fixtures and trade fixtures whether now owned or hereafter
acquired by Debtor and any and all additions, substitutions, accessions and
proceeds thereto or thereof, and all leases and rental agreements relating
thereto.
Although proceeds are covered by this Agreement, the Secured Party has not
and does not authorize the sale or transfer of any of the Collateral by the
Debtor.
2. Representations, Warranties and Covenants. Debtor hereby
represents, warrants and covenants that:
(a) It is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its properties and to transact the
business in which it is engaged, and is qualified to do business in every
jurisdiction in which the conduct of its business requires such qualification;
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(b) It has the corporate power and authority to execute and
deliver, and to perform its Obligations under the Letter Agreement, Guaranty,
the Amended Loan Agreement and the Loan Documents and under this Security
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the aforesaid;
(c) The Letter Agreement, Guaranty, the Amended Loan Agreement, the
Loan Documents and this Security Agreement constitute the legal, valid and
binding obligations of the Debtor, enforceable in accordance with their terms;
(d) The execution, delivery and performance of the Letter
Agreement, Guaranty, the Amended Loan Agreement, the Loan Documents and this
Security Agreement will not (1) require any consent or approval of the
shareholders of any such corporation; (2) contravene such corporation's charter
or bylaws; (3) violate any provision of or cause or result in a breach of or
constitute a default under any law, rule, regulation (including, without
limitation, Regulation U of the Board of Governors of the Federal Reserve
System), order writ, judgment, injunction, decree, determination, or award
presently in effect having applicability to such corporation; (4) cause or
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease, or instrument to which such
corporation is a party or by which it or its properties may be bound or
affected; or (5) cause or result in, or require, the creation or imposition of
any Lien, upon or with respect to any of the properties now owned or hereafter
acquired by such corporation except as contemplated by this Security Agreement,
except where such violation or contravention in each instance would not
adversely affect Debtor and would not have any effect on the enforceability of
the Guaranty; and
(e) No consent of any other person (including, without limitation,
stockholders and creditors of the Debtor) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental instrumentality is
required in connection with the execution, delivery, performance, validity or
enforceability of any of the Obligations.
(f) The chief executive office of the Debtor and the office where
Debtor keeps its books and records relating to the Collateral, and the location
of Collateral are as set forth in the first paragraph of this Security Agreement
and have been located at such addresses at all times during the four-month
period prior to the date hereof;
(g) Debtor will not change its chief executive office, office where
its books and records are kept or any locations of Collateral without prior
written notice to Secured party;
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(h) Except for liens in favor of Secured Party, the Collateral is
free and clear of all liens, security interests and encumbrances, and Debtor
will not create or suffer to exist any lien, security interest or encumbrance on
any of the Collateral;
(i) Debtor will not assign, transfer, sell, lease or otherwise
dispose of any Collateral;
(j) The Collateral is being used, and will continue to be used, in
Debtor's business and not for personal, family, household or farming use;
(k) Debtor will use the Collateral for lawful purposes only, with
all reasonable care and caution and in conformity with all applicable laws,
ordinances and regulations;
(l) The Collateral is now and shall remain personal property, and
Debtor will not permit any Collateral to become a fixture without prior written
notice to and consent of Secured Party and without first making all
arrangements, and delivering, or causing to be delivered, to Secured Party all
instruments and documents, including, without limitation, waivers and
subordination agreements by any landlords or mortgagees, requested by and
satisfactory to Secured Party to preserve and protect the security interests
granted herein, and to effectuate and maintain the priority thereof, against all
persons;
(m) Debtor will insure the Collateral with insurance of the nature
and in the amount customary in Debtor's industry, such insurance naming Secured
Party as a secured party; all insurance policies relating thereto shall provide
for at least 20 days' prior notice of any cancellation or termination thereof to
secured Party;
(n) Debtor will, at its sole cost and expense, perform all acts and
execute all documents reasonably required by Secured Party from time to time to
evidence, perfect, maintain or enforce Secured Party's security interest granted
herein, and to effectuate and maintain the priority thereof or otherwise to
carry out the provisions and purposes of this Security Agreement;
(o) In its discretion, Secured Party may, at any time and from time
to time, for the account of Debtor, pay any amount or do any act required of
Debtor hereunder and which Debtor fails to do or pay, and any such payment shall
be deemed an Obligation payable on demand together with interest at the highest
rate then payable on any of the Obligations;
(p) Debtor has not, during the five-year period prior to the date
hereof, been known by or used any tradename, fictitious name or any corporate
name other than Debtor's name as set forth on Page 1 hereof, and all invoices in
connection with or which evidence accounts receivable are billed under such
corporate name;
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(q) If any of the Collateral at any time consists of instruments,
documents, chattel paper or letters of credit, but specifically excluding leases
of inventory, Debtor shall, immediately upon receipt or creation of such
Collateral, deliver such Collateral in its original form to Secured Party, duly
endorsed to Secured Party or in blank or accompanied by appropriate stock or
bond powers;
(r) After any Event of Default, Debtor will pay all reasonable fees
and expenses incurred by Secured Party in enforcing its rights hereunder and
under the Letter Agreement, Guaranty, the Notes, the Amended Loan Agreement and
any of the other Loan Documents;
(s) The Borrower agrees that the Secured Party shall have the
right, not more than twice in any 12 month period, to cause the Borrower for the
Secured Party's benefit to confirm orders and to verify any or all of the
Borrower's Accounts, directly by the Borrower, or through any public accountants
and at such times to require Borrower to deliver to the Secured Party copies of
purchase orders, invoices, contracts, shipping and delivery receipts and any
other document or instrument which evidences or gives rise to an Account.
(t) If any proceeds of Collateral are received by Debtor which,
pursuant to the provisions hereof are to be received by or turned over to
Secured Party, Debtor shall not commingle such proceeds with any of its other
property, shall hold such proceeds in trust for Secured Party and shall
immediately deliver the same to Secured Party in the form received; and
(u) If Debtor shall use any tradename, Debtor shall notify Secured
Party thereof at least 30 days prior to the commencement of such use.
3. Remedies Upon Default. Upon the occurrence of any Event of Default
under this Security Agreement, the Letter Agreement, Guaranty, the Notes, the
Amended Loan Agreement, the Loan Documents or of any other Obligation, and at
any time thereafter, Secured Party may, without notice to or demand upon Debtor,
declare any and all Obligations immediately due and payable and Secured Party
shall have the following rights and remedies (to the extent permitted by
applicable law), in addition to all rights and remedies of Secured Party under
the Letter Agreement, Guaranty, the Notes, the Amended Loan Agreement and the
Loan Documents, and all rights and remedies of a secured party under the Uniform
Commercial Code, all such rights and remedies being cumulative, not exclusive
and enforceable alternatively, successively or concurrently:
(a) Secured Party may at its sole option directly notify Debtor's
account debtors or others who pay fees to Debtor to remit payments to one or
more post office boxes maintained by Secured Party;
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(b) Secured Party may at any time and from time to time, with or
without judicial process or the aide and assistance of others, enter upon any
premises in which any Collateral may be located and, without resistance or
interference by Debtor, take possession of the Collateral, and/or dispose of any
Collateral on any such premises, and/or require Debtor to assemble and make
available to Secured Party at the expense of Debtor any Collateral at any place
and time designated by Secured Party which is reasonably convenient to both
parties, and/or remove any Collateral from any such premises for the purpose of
effecting sale or other disposition thereof (and if any of the Collateral
consists of motor vehicles, Secured Party may use Debtor's license plates),
and/or sell, resell, lease, license, assign and deliver, grant options for or
otherwise dispose of any Collateral in its then condition without or following
any commercially reasonable preparation or processing, at public or private sale
or proceedings or otherwise, by one or more contracts, in one or more parcels or
lots, at the same or different times, with or without having the Collateral at
the place of sale or other disposition, for cash and/or credit, and upon any
terms, at such place(s) and time(s) and to such person(s) as Secured Party deems
best, all without demand, notice or advertisement whatsoever except that where
an applicable statute requires reasonable notice of sale or other disposition.
Debtor hereby agrees that the sending of ten (10) days' notice (as provided in
Section 8 hereof) shall be deemed reasonable notice thereof. If any Collateral
is sold by Secured Party upon credit or for future delivery, Secured Party shall
not be liable for the failure of the purchaser to pay for same and in such event
Secured Party may resell such Collateral. Secured Party may buy any Collateral
at any public sale and, if any Collateral is of a type customarily sold in a
recognized market or is of the type which is subject to widely distributed
standard price quotations, Secured Party may buy such Collateral at private sale
and in each case may make payment therefor by any means, provided that payment
is made in full by Secured Party upon the later of the time of such sale and the
taking of delivery of such Collateral.
(c) Secured Party may apply the cash proceeds actually received
from any sale or other disposition of Collateral to the reasonable expense of
retaking, holding, preparation and processing for sale, selling, leasing,
licensing and the like, to reasonable attorneys' fees and all legal, travel and
other expenses which may be incurred by Secured Party in attempting to collect
the Obligations or to enforce this Security Agreement, or in the prosecution or
defense of any action or proceeding related to the subject matter of this
Security Agreement; and then to the Obligations in such order and as to
principal or interest as Secured Party may determine; and Debtor shall remain
liable and will pay Secured Party, on demand, any deficiency remaining after the
application of such cash proceeds, together with interest thereon at the highest
rate then payable on the Obligations and the balance of any expenses unpaid,
with any surplus to be paid to Debtor, subject to any duty of Secured Party
imposed by law to the holder of any other security interest in the Collateral
known to Secured Party. Within a reasonable
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time following the application of cash proceeds, Secured Party shall provide
Debtor with a reasonable accounting of the Obligations to which such proceeds
have been applied.
(d) Secured Party may appropriate, set off and apply to the payment
of the Obligations, any Collateral in or coming into the possession of Secured
Party or its agents, without prior notice to Debtor and in such manner as
Secured Party may in its discretion determine.
4. Power of Attorney. Upon the occurrence of any Event of Default by
Debtor under this Security Agreement, the Letter Agreement, Guaranty, the
Amended Loan Agreement, the Loan Documents or under any other Obligation, to
effectuate the terms and provisions hereof, Debtor hereby designates and
appoints Secured Party and each of its designees or agents as attorney-in-fact
of Debtor, irrevocably and with power of substitution, with authority to: (1)
endorse the name of Debtor on any notes, acceptances, checks, drafts, money
orders, instruments or other evidences of Collateral that may come into Secured
Party's possession; (ii) sign the name of Debtor on any invoices, documents,
drafts against and notices to account debtors or obligors of Debtor, assignments
and requests for verification of accounts; (iii) sell, assign, compromise,
discharge or extend the time for payment of any account or obligation; (iv) to
institute legal action for the collection of any account or obligation; (v)
execute proofs of claim and loss; (vi) execute endorsements, assignments,
licenses or other instrument of conveyance or transfer; (vii) adjust and
compromise any claims under insurance policies or otherwise; (viii) execute
releases; (ix) receive, open and dispose of all mail addressed to Debtor and
notify the Post Office authorities to change the address for delivery of mail
addressed to Debtor to such address as Secured Party may designate and date and
deliver to the Post Office the executed order of Debtor; and (x) do all other
acts and things necessary or advisable, in the sole discretion of Secured Party,
to carry out and enforce this Security Agreement and the Obligations. All acts
done under the foregoing authorization are hereby ratified and approved by
Debtor to the maximum extent permitted by law and neither Secured Party nor any
designee or agent thereof shall be liable for any acts of commission or
omission, for any error of judgment or for any mistake of fact or law. This
power of attorney, being coupled with an interest, is irrevocable while any
Obligation shall remain unpaid, unobserved or unperformed.
5. Care of Collateral. Secured Party shall have the duty to exercise
reasonable care in the custody and preservation of any Collateral in its
possession, which duty shall be fully satisfied if Secured Party accords such
Collateral treatment substantially the same as that which it accords similar
property owned by it. Except for any claims, causes or action or demands arising
out of Secured Party's failure to perform its agreements set forth in the
preceding sentence, Debtor releases Secured Party from any claims, causes of
action and demands at any time arising out of or with respect to this Security
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Agreement, any of the Obligations, the Collateral and its use and/or any actions
taken or omitted to be taken by Secured Party with respect thereto, and Debtor
hereby agrees to hold Secured Party harmless from and with respect to any and
all such claims, causes of action and demands. Secured Party's prior recourse to
any Collateral shall not constitute a condition of any demand, suit or
proceeding for payment or collection of the Obligations.
6. Waivers. No act, omission or delay by Secured Party in exercising
any right or remedy shall constitute a waiver of such right or remedy. No single
or partial waiver by Secured Party of any default or right or remedy which on
one occasion shall operate as a waiver of the same or any other default, right
or remedy on any other occasion. Debtor hereby waives presentment, notice of
dishonor and protest of all instruments included in or evidencing any Obligation
or Collateral, and all other notices and demands whatsoever (except as expressly
provided herein).
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts (without giving
effect to the conflict of laws principles thereof).
8. Notices. All notices and other communications to any party
hereunder shall be in writing and shall be delivered in hand, mailed by United
States registered or certified first-class mail, return receipt requested,
postage prepaid, addressed as follows:
if to Debtor: ASA International Ventures, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
if to the Secured Party: CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: R. Xxxxxx Xxxxx
or such other address as such party may hereafter specify by notice to the
Secured Party and the Debtor. Each such notice, request or other communication
shall be effective (i) if given by certified mail, 72 hours after such
communication is deposited with the post office, addressed as aforesaid, or (ii)
if given by any other means (including, without limitation, by air courier),
when delivered at the address specified in this Paragraph.
9. Amendments and Waivers; Partial Invalidity; Acknowledgment of
Receipt. No provision hereof shall be modified, altered or limited except by a
written instrument expressly referring to this Security Agreement and to such
provision, and executed by the party to be charged. If any term of this Security
Agreement shall be held to be
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invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby. Debtor acknowledges receipt of a copy of this
Security Agreement.
10. Benefit of Agreement; Continuing Security Interest. This Security
Agreement and all Obligations shall be binding upon the heirs, executors,
administrators, successors and assigns of Debtor and shall, together with the
rights and remedies of Secured Party hereunder, inure to the benefit of Secured
Party, its successors, endorsees and assigns. This Agreement shall create a
continuing security interest in the Collateral which shall remain in full force
and effect until payment in full of the Obligations.
11. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original and all of which
shall together constitute one and the same agreement.
12. Captions. The captions of the Paragraphs of this Security
Agreement have been inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Security Agreement.
IN WITNESS WHEREOF, the undersigned have executed or caused this
Security Agreement to be executed as of the date first above set forth, as a
sealed instrument.
ASA INTERNATIONAL VENTURES, INC.
By: /s/ Xxxxxxxx X. XxXxxxxx
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Title: Vice President and
Controller
CORESTATES BANK, N.A.
By: /s/ R. Xxxxxx Xxxxx
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Title: Vice President
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