EXHIBIT 10.14
IMPERIAL BANK
Member FDIC
GENERAL SECURITY AGREEMENT
(Tangible and Intangible Personal Property)
This Agreement is executed on June 19, 1998, by ROWECOM INC. (hereinafter called
"Obligor") and IMPERIAL BANK (hereinafter called 'Bank'), pursuant to the Loan
Agreement, dated as of the date hereof ("Loan Agreement"), between Obligor and
Bank. Capitalized terms used but not defined herein that are defined in the Loan
Agreement shall have the meanings given to such terms the Loan Agreement. Terms
defined in the Massachusetts Uniform Commercial Code, and not otherwise defined
herein or in the Loan Agreement, shall have the meanings given to such terms in
the Massachusetts Uniform Commercial Code.
GRANT OF SECURITY INTEREST. In consideration of financial accommodations
provided by Bank to Obligor under the Loan Agreement and the other Loan
Documents, Obligor grants to Bank, as security for the payment by Obligor of all
of its obligations under the Loan Agreement and the other Loan Documents,
whether now existing or hereafter arising, and whether absolute or contingent
(collectively "Debt"), a security interest in (a) all property (i) delivered to
Bank by Obligor, (ii) which shall be in Bank's possession or control in any
manner or for any purpose, or (iii) described under the heading "Collateral"
below, whether now owned or hereafter acquired by Obligor; and (b) all proceeds,
income and products of such property, and all accessions thereto (all such
property described in clauses (a) and (b) above being collectively referred to
herein as the "Collateral").
Collateral:
All personal property, whether presently existing or hereafter created or
acquired, and all proceeds and products thereof, including but not limited to:
all furniture, fixtures, equipment, inventory, or other goods, accounts,
contract rights, rights to the payment of money, insurance refund claims and all
other insurance claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property. deposit accounts and all
general intangibles including, without limitation, returns, repossessions, books
and records relating thereto, equipment containing said books and records, all
tax refund claims, license fees, trade names, computer programs, computer
software, engineering drawings, customer lists, goodwill, and all licenses,
permits, agreements of any kind or nature pursuant to which
-2-
Obligor possesses, uses or has authority to possess or use property (whether
tangible or intangible) of other or others possess, use or have authority to
possess or use property (whether tangible or intangible) of Obligor, and all
recorded data of any kind or nature. regardless of the medium of recording
including, without limitation, all software, writings, plans, specifications and
schematics. COLLATERAL SHALL NOT INCLUDE ANY PATENTS, REGISTERED TRADEMARKS,
SERVICE MARKS OR COPYRIGHTS.
Obligor represents, warrants and agrees:
1. Obligor will immediately pay on demand (a) Bank's costs incurred in
connection with the enforcement of any of its rights under this Agreement or
with respect to the Collateral, or in protecting, insuring or realizing on
Collateral, including reasonable attorneys' fees and expenses, and (b) any
deficiency after realization of any Collateral. Any amounts that may be payable
by Obligor or Bank pursuant to clause (a) above that shall not be paid when due
shall, to the extent permitted by applicable law, and in addition to any other
costs or charges that may be payable pursuant to the Loan Documents, accrue
interest, at the annual rate equal to the rate applicable to the Debt in
accordance with the Loan Agreement during the continuance of an Event of
Default, until such amounts are paid in full.
2. As to all Collateral in Obligor's possession (unless specifically
otherwise agreed to by Bank in writing), Obligor will:
(a) Have possession of the Collateral at the location disclosed to
Bank and will not remove the Collateral from such location
except in the ordinary course of business.
(b) Keep the Collateral separate and identifiable.
(c) Maintain the Collateral in good and saleable condition, repair
it if necessary, clean, feed, shelter, water, medicate,
fertilize, cultivate, irrigate, prune and otherwise deal with
the Collateral in all such ways as are considered good
practice by owner of like property, use it lawfully and only
as permitted by insurance policies, and permit Bank to inspect
the Collateral at any reasonable time.
(d) Not sell, contract to sell, lease, encumber or transfer the
Collateral (other than inventory Collateral), even though Bank
has a security interest in proceeds of such Collateral.
3. As to Collateral which is inventory or Accounts, Obligor:
(a) May, until notice from Bank while any Default or Event of
Default is continuing, sell, lease or otherwise dispose
inventory in the ordinary course of business, and collect the
cash proceeds thereof.
-3-
(b) Will, upon and during the continuance of any Default or Event
of Default and upon receipt of notice from Bank, deposit all
cash proceeds as received in a demand deposit account with
Bank, and deliver statements identifying units of inventory
disposed of, Accounts which gave rise to proceeds, and all
acquisitions and returns of inventory, as required by Bank.
(c) Will, upon and during the continuance of any Default or Event
of Default and upon receipt of notice from Bank, receive
trust, schedule on forms satisfactory to Bank and deliver to
Bank all non-cash proceeds other than inventory received
trade.
4. As to Collateral which are Accounts, chattel paper, general intangibles
and proceeds described in 3(c) above, Obligor warrant
(a) All such Collateral is genuine, enforceable in accordance with
its terms, free from default, prepayment, defense and
conditions precedent (except as disclosed to and accepted by
Bank in writing). Obligor will supply Bank with duplicate
invoices or other evidence of Obligor's rights on Bank's
request.
(b) All persons appearing to be obligated on such Collateral have
authority and capacity to contract.
(c) All chattel paper is in compliance with law as to form,
content and manner of preparation and execution and has been
properly registered. recorded, and/or filed to protect
Obligor's interest thereunder.
(d) If an account debtor shall also be indebted to Obligor on
another obligation, any payment made by him not specifically
designated to be applied on any particular obligation shall be
considered to be a payment on the Account in which Bank has a
security interest.
(e) While any Default or Event of Default shall be continuing,
Obligor agrees not to compromise, settle or adjust any Account
or renew or extend the time of payment thereof without Bank's
prior written consent.
5. Obligor owns all Collateral absolutely, and no other person has or
claims any interest in any Collateral, except as disclosed to and accepted by
Bank in writing. Obligor will defend any proceeding which may affect title to or
Bank's security interest in any Collateral, and will indemnify and hold Bank
free and harmless from all costs and expenses of Bank's defense.
6. Obligor will pay when due all existing or future charges, liens or
encumbrances on and all taxes and assessments now or hereafter imposed on or
affecting the Collateral and, if the Collateral is in Obligor's possession, any
realty owned by Obligor on which the Collateral is located, except to the
-4-
extent and so long as (a) the same are being contested in good faith and by
appropriate proceedings in such manner as not to cause any material adverse
effect upon its financial condition or the loss of any right of redemption from
any sale thereunder; and (b) Obligor shall have set aside on its books reserves
segregated (to the extent required by generally accepted accounting practice)
and adequate with respect thereto.
7. Obligor will insure the Collateral with Bank as loss payee or
additional insured, as appropriate, in form and amounts with companies, and
against risks and liability satisfactory to Bank, to cancel the insurance on
Obligor's default, and to receive payment of and endorse any instrument in
payment of any loss or return premium. If Obligor should fail to deliver the
required policy or policies to Bank, Bank may, at Obligor's cost and expense,
without any duty to do so, get and pay for insurance naming as the insured, at
Bank's option, either both Obligor and Bank, or only Bank, and the cost thereof
shall constitute reimbursable expenses under Paragraph 1 above.
8. Obligor will promptly notify Bank of any change of Obligor's chief
executive office, mailing address or location of Collateral.
9. Bank is irrevocably appointed Obligor's attorney-in-fact, while any
Default or Event of Default is continuing, to do any act which Obligor is
obligated hereby to do, to exercise such rights as Obligor may exercise, to use
such equipment as Obligor might use, to enter Obligor's premises to give notice
of Bank's security interest, and to collect Collateral and proceeds and to
execute and file in Obligor's name any financing statements and amendments
thereto required to perfect Bank's security interest hereunder, all to protect
and preserve the Collateral and Bank's rights hereunder. In such capacity, while
any Default or Event of Default is continuing, Bank may:
(a) endorse, collect and receive delivery or payment of
instruments and documents constituting Collateral;
(b) make extension agreements with respect to or affecting
Collateral, exchange it for other Collateral, release persons
liable thereon or take security for the payment thereof, and
compromise disputes in connection therewith; and
(c) use or operate Collateral for the purpose of preserving
Collateral or its value and for preserving or liquidating
Collateral.
10. Upon and during the continuance of any Event of Default, Bank may
exercise all rights and remedies available to Bank under this Agreement, under
any of the other Loan Documents or available to secured parties under the
Massachusetts Uniform Commercial Code, all without presentment, protest, notice
of protest, demand and notice of nonpayment, notice of sale
-5-
and advertisement of sale. except to the extent required by applicable law.
While any Event of Default is continuing, without limiting in any way any of
Bank's other rights under the Loan Documents or applicable law, Bank may sell,
in one or more sales, Collateral in any county where Bank has an office; Bank
may purchase at any such sale, effect sales for cash or on credit to a
wholesaler, retailer or user of the Collateral, or at public or private auction,
all of which shall be considered commercially reasonable; and Bank may require
Obligor to assemble the Collateral and make it available to Bank at the entrance
to the location of the Collateral, or at such other location designated by Bank.
11. Bank's acceptance of partial or delinquent payments or the failure of Bank
to exercise any right or remedy shall not waive any obligation of Obligor or
right of Bank to modify this Agreement, or waive any other similar default.
12. On transfer of all or any part of the Debt, Bank may transfer all or any
part of the Collateral. Bank may deliver all or any part of the Collateral to
any Obligor at any time. Any such transfer or delivery shall discharge Bank from
all liability and responsibility with respect to such Collateral transferred or
delivered. This Agreement benefits Bank's successors and assigns and binds
Obligor's successors and assigns. Obligor agrees not to assert against any
assignee of Bank any claim or defense that may exist against Bank. Time is of
the essence. The Loan Agreement, this Agreement, the other security agreements
supplemental hereto, and the other Loan Documents contain the entire security
agreement between Bank and Obligor. Obligor will execute any additional
agreements, assignments or documents reasonably required by Bank to carry this
Agreement into effect.
13. THIS AGREEMENT, AND EACH OF THE OTHER LOAN DOCUMENTS, ARE INTENDED TO TAKE
EFFECT AS SEALED INSTRUMENTS AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA. OBLIGOR NVAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT, OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF ANY SUCH
RIGHTS OR OBLIGATIONS.
-6-
14. This Agreement is subject to modification only by a writing signed by Bank
and Obligor. No party shall be deemed to have waived any right hereunder unless
such waiver shall be in writing and signed by such party. A waiver on any one
occasion shall not be Construed as a bar to or waiver of any right on any future
occasion.
ROWECOM INC. IMPERIAL BANK
"Obligor" "Bank"
By: XXXXX XXXXXXXXX By:____________________________
--------------------------
Title: EXECUTIVE VICE PRESIDENT Title: SENIOR VICE PRESIDENT
-------------------------- ---------------------
CHIEF FINANCIAL OFFICER
--------------------------
