EXHIBIT 10.8
EXHIBIT 10.8
SECURITY AGREEMENT
(COLLATERAL PLEDGE AGREEMENT)
DATE MARCH 17, 2000
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DEBTOR DRUGMAX COM, INC. SECURED FIRST COMMUNITY BANK OF AMERICA
---------------- PARTY -------------------------------
BUSINESS
OR
RESIDENCE
ADDRESS 00000 XXXXXXX XX., XXXXX X ADDRESS 0000 0XX XXXXXX XXXXX
XXXX, XXXX,
XXXXX & STATE &
ZIP CODE XXXXX, XX 00000 ZIP CODE XX. XXXXXXXXXX, XX 00000
1. SECURITY INTEREST AND COLLATERAL. To secure (check one):
[ ] the payment and performance of each and every debt, liability and
obligation of every type and description which Debtor may now or at any time
hereafter owe to Secured Party (whether such debt, liability or obligation
now exists or is hereafter created or incurred, and whether it is or may be
direct or indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or joint, several or joint and
several; all such debts, liabilities and obligations being herein
collectively referred to as the "Obligations"),
[XX] the debt, liability or obligation of the Debtor to secured party
evidenced by the following: NOTE OF EVEN DATE IN THE AMOUNT OF $1,000,000.00,
and any extensions, renewals or replacements thereof (herein referred to as
the "Obligations").
Debtor hereby grants Secured Party a security interest (herein called the
"Security Interest") in (check one):
[ ] all property of any kind now or at any time hereafter owned by Debtor, or
in which Debtor may now or hereafter have an interest, which may now be or
may at any time hereafter come into the possession or control of Secured
Party or into the possession or control of Secured Party's agents or
correspondents, whether such possession or control is given for collateral
purposes or for safekeeping, together with all rights in connection with such
property (herein called the "Collateral"),
[XX] the property owned by Debtor and held by Secured Party that is described
as follows: FIRST COMMUNITY BANK OF AMERICA CERTIFICATE OF DEPOSIT #30028380,
together with all rights in connection with such property (herein called the
Collateral").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Debtor represents, warrants and
covenants that:
(a) Debtor will duly endorse, in blank, each and every instrument
constituting Collateral by signing on said instrument or by signing a separate
document of assignment or transfer, if required by Secured Party.
(b) Debtor is the owner of the Collateral free and clear of all liens.
encumbrances, security interests and restrictions, except the Security Interest
and any restrictive legend appearing on any instrument constituting Collateral.
(c) Debtor will keep the Collateral free and clear of all liens, encumbrances
and security interests, except the Security Interest.
(d) Debtor will pay, when due, all taxes and other governmental charges
levied or assessed upon or against any Collateral.
(e) At any time, upon request by Secured Party, Debtor will deliver to
Secured Party all notices, financial statements, reports or other communications
received by Debtor as an owner or holder of the Collateral.
(f) Debtor will upon receipt deliver to Secured Party in pledge as additional
Collateral all securities distributed on account of the Collateral such as stock
dividends and securities resulting from stock splits, reorganizations and
recapitalizations.
THIS AGREEMENT CONTAINS ADDITIONAL PROVISIONS SET FORTH ON PAGE 2 HEREOF,
ALL OF WHICH ARE MADE A PART HEREOF.
XXXXXXX.XXX, INC.
By /s/ XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX
Title: PRESIDENT/COO
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By
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Title:
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(page 1 of 2)
ADDITIONAL PROVISIONS
3. RIGHTS OF SECURED PARTY. Debtor agrees that Secured Party may at any time,
whether before or after the occurrence of an Event of Default and without notice
or demand of any kind, (i) notify the obligor on or issuer of any Collateral to
make payment to Secured Party of any amounts due or distributable thereon, (ii)
in Debtor's name or Secured Party's name enforce collection of any Collateral by
suit or otherwise. or surrender, release or exchange all or any part of it, or
compromise, extend or renew for any period any obligation evidenced by the
Collateral, (iii) receive all proceeds of the Collateral, and (vi) hold any
increase or profits received from the Collateral as additional security for the
Obligations, except that any money received from the Collateral shall, at
Secured Party's option, be applied in reduction of the Obligations, in such
order of application as Secured Party may determine, or be remitted to Debtor.
4. EVENTS OF DEFAULT. Each of the following occurrences shall constitute an
event of default under this Agreement (herein called "Event of Default"); (i)
Debtor shall fail to pay any or all of the Obligations when due or (if payable
on demand) on demand, or shall fail to observe or perform any covenant or
agreement herein binding on it; (ii) any representation or warranty by Debtor
set forth in this Agreement or made to Secured Party in any financial statements
or reports submitted to Secured Party by or on behalf of Debtor shall prove
materially false or misleading; (iii) a garnishment summons or a writ of
attachment shall be issued against or served upon the Secured Party for the
attachment of any property of the Debtor or any indebtedness owing to Debtor;
(iv) Debtor or any guarantor of any Obligation shall (A) be or become insolvent
(however defined); (B) voluntarily file, or have filed against it involuntarily,
a petition under the United States Bankruptcy Code: or (C) if a corporation,
partnership or organization, be dissolved or liquidated or, if a partnership,
suffer the death of a partner or, if an individual, die; or (D) go out of
business; (v) Secured Party shall in good faith believe that the value then
realizable by collection or disposition of the Collateral, after deduction of
expenses of collection and disposition, is less than the aggregate unpaid
balance of all Obligations then outstanding; (vi) Secured Party shall in good
faith believe that the prospect of due and punctual payment of any or all of the
Obligations is impaired.
5. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of Default
and at any time thereafter, Secured Party may exercise any one or more of the
following rights or remedies: (i) declare all unmatured Obligations to be
immediately due and payable, and the same shall thereupon be immediately due and
payable, without presentment or other notice or demand; (ii) exercise ail voting
and other rights as a holder of the Collateral; (iii) exercise and enforce any
or all rights and remedies available upon default to a secured party under the
Uniform Commercial Code, including the right to offer and sell the Collateral
privately to purchasers who will agree to take the Collateral for investment and
not with a view to distribution and who will agree to the imposition of
restrictive legends on the certificates representing the Collateral, and the
right to arrange for a sale which would otherwise qualify as exempt from
registration under the Securities Act of 1933; and if notice to Debtor of any
intended disposition of the Collateral or any other intended action is required
by law in a particular instance, such notice shall be deemed commercially
reasonable if given at least 10 calendar days prior to the date of intended
disposition or other action; (iv) exercise or enforce any or all other rights or
remedies available to Secured Party by law or agreement against the Collateral,
against Debtor or against any other person or property. Upon the occurrence of
the Event of Default described in Section 4(iv)(B), all Obligations shall be
immediately due and payable without demand or notice thereof.
6. MISCELLANEOUS. Any disposition of the Collateral in the manner provided in
Section 5 shall be deemed commercially reasonable. This Agreement can be waived,
modified, amended, terminated or discharged, and the Security Interest can be
released, only explicitly in a writing signed by Secured Party. A waiver signed
by Secured Party shall be effective only in the specific instance and for the
specific purpose given. Mere delay or failure to act shall not preclude the
exercise or enforcement of any of Secured Party's rights or remedies. All rights
and remedies of Secured Party shall be cumulative and may be exercised
singularly or concurrently, at Secured Party's option, and the exercise or
enforcement of any one such right or remedy shall neither be a condition to nor
bar the exercise or enforcement of any other. All notices to be given to Debtor
shall be deemed sufficiently given if delivered or mailed by registered or
certified mail, postage prepaid, to Debtor at its address set forth above or at
the most recent address shown on Secured Party's records. Secured Party's duty
of care with respect to Collateral in its possession (as imposed by law) shall
be deemed fulfilled if Secured Party exercises reasonable care in physically
safekeeping such Collateral or, in the case of Collateral in the custody or
possession of a bailee or other third person, exercises reasonable care in the
selection of the bailee or other third person, and Secured Party need not
otherwise preserve, protect, insure or care for any Collateral. Secured Party
shall not be obligated to preserve any rights Debtor may have against prior
parties, to exercise at all or in any particular manner any voting rights which
may be available with respect to any Collateral, to realize on the Collateral at
ail or in any particular manner or order, or to apply any cash proceeds of
Collateral in any particular order of application. Debtor will reimburse Secured
Party for all expenses (including reasonable attorney's fees and legal expenses)
incurred by Secured Party in the protection, defense or enforcement of the
Security Interest, including expenses incurred in any litigation or bankruptcy
or insolvency proceedings. This Agreement shall be binding upon and inure to the
benefit of Debtor and Secured Party and their respective heirs, representatives,
successors and assigns and shall take effect when signed by Debtor and delivered
to Secured Party, and Debtor waives notice of Secured Party's acceptance hereof.
This Agreement shall be governed by laws of the state in which it is executed
and, unless the context otherwise requires, all terms used herein which are
defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in said
state, shall have the meanings therein stated. If any provision or application
of this Agreement is held unlawful or unenforceable in any respect, such
illegality or unenforceability shall not affect other provisions or applications
which can be given effect, and this Agreement shall be construed as if the
unlawful or unenforceable provision or application had never been contained
herein or prescribed hereby. All representations and warranties contained in
this Agreement shall survive the execution, delivery and performance of this
Agreement and the creation and payment of the Obligations. If this Agreement is
signed by more than one person as Debtor, the term "Debtor" shall refer to each
of them separately and to both or all of them jointly, all such persons shall be
bound both or severally and jointly with the other(s); and the Obligations shall
include all debts, liabilities and obligations owed to Secured Party by a Debtor
solely or by both or several or all Debtors jointly or jointly and severally,
and all property described in Section I shall be included as part of the
Collateral, whether it is owned jointly by both or all Debtors or is owned in
whole or in part by one (or more) of them.
