EXHIBIT 10.7
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Inventory, Accounts Receivable
and Intangibles Security Agreement
FLEET BANK (SHORT FORM)
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NOVEMBER 27, 1998
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Date
To secure the due payment and performance of all of the liabilities and
obligations hereunder of the undersigned, herein called "Borrower", to: FLEET
NATIONAL BANK hereinafter called "Bank", and all other liabilities and
obligations of Borrower to Bank of every name and nature whatsoever, direct or
indirect, absolute or contingent, now existing or hereafter arising or acquired,
including, without limitation, the due payment and performance of all
liabilities and obligations under any and all notes, all hereinafter called
"Obligations", the Borrower hereby grants to Bank a continuing security interest
in:
(a) All accounts, contracts, contract rights, notes, bills, drafts,
acceptances, general intangibles, choses in action, and all other debts,
obligations and liabilities, in whatever form, owing to Borrower from any
person, firm or corporation, or any other legal entity, whether now existing or
hereafter arising, now or hereafter received by or belonging or owing to
Borrower, for goods sold by it or for services rendered by it or however
otherwise same may have been established or created, all guarantees and
securities therefor, all right, title and interest of Borrower in the
merchandise or services which gave rise thereto, including the rights of
reclamation and stoppage in transit, all rights of an unpaid seller of
merchandise or services, and in the proceeds thereof, including, without
limitation, all proceeds of credit, fire or other insurance, and any tax
refunds.
(b) All goods, merchandise, raw materials, goods and work in process,
finished goods and other tangible personal property, now owned or hereafter
acquired and held for sale or lease, or furnished or to be furnished under
contract of service, or used or consumed in Borrower's business and in the
products and proceeds thereof, including, without limitation, all proceeds of
fire or other insurance. This portion of the collateral being sometimes
referred to as "Inventory".
All of the accounts and other property as set forth in (a) above and
Inventory as set forth in (b) above and the other property described in the
Rider attached hereto are hereinafter referred to collectively as "Collateral".
The Collateral and all proceeds and products thereof shall be security for
all Obligations. Until all Obligations have been fully satisfied, Bank's
security interest in the Collateral and all proceeds and products thereof, shall
continue in full force and effect and Bank will at all times after the
occurrence and during continuance of an Event of Default (as defined in the
Letter Agreement of even date between Bank and Borrower) have the right to take
physical possession of the Inventory and to maintain such possession on
Borrower's premises or to remove the
EXHIBIT 10.7
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Inventory or any part thereof to such other places as Bank may desire. If Bank
exercises Bank's right to take possession of the Inventory, Borrower shall, upon
Bank's demand, assemble the Inventory and make it available to Bank at a place
reasonably convenient to Bank.
If Borrower shall fail to pay, when due,* any of the Obligations or shall
fail to observe or perform any of the provisions of this Agreement or any other
agreement now or hereafter entered into between Bank and Borrower, Borrower
shall be in default hereunder. In the event of such default all Obligations of
Borrower to Bank shall, at the option of the Bank, and without notice to or
demand upon Borrower become and be immediately due and payable and thereupon
Bank may exercise any and all rights and remedies of a secured party available
under the Uniform Commercial Code and all other applicable law.
Borrower represents, warrants and covenants that all Inventory is and will
be owned by Borrower, free of all other liens and encumbrances, and shall be
kept by Borrower at 500 DONALD LYNCH BOULEVARD, MARLBOROUGH, MA 01752 and that
Borrower shall not (without Bank's prior written approval) remove the Inventory
therefrom except for the purposes of sale in the ordinary course of business.
Except for sales made in the ordinary course of business, Borrower shall
not sell, encumber, grant a security interest in or dispose of or permit the
sale, encumbrance or disposal of any Collateral without Bank's prior written
consent. A sale in the ordinary course of business shall not include a transfer
in total or partial satisfaction of a debt.
Borrower shall perform any and all steps requested by Bank to perfect
Bank's security interest in the Collateral, such as executing and filing
financing or continuation statements in form and substance satisfactory to Bank.
If any Inventory is in the possession or control of any of Borrower's agents or
processors, Borrower shall notify such agents or processors of Bank's interest
therein, and upon request instruct them to hold all such Inventory for Bank's
account and subject to Bank's instructions. A physical listing of all
Inventory, wherever located, shall be taken by Borrower whenever requested by
Bank, and a copy of each such physical listing shall be supplied to Bank. Bank
may examine and inspect the Inventory at any time;*
Borrower agrees to keep all the Inventory insured with coverage and amounts
not less than that usually carried by one engaged in a like business and in any
event not less than that required by Bank with loss payable to the Bank and
Borrower, as their interests may appear, hereby appointing Bank as attorney for
Borrower in obtaining, adjusting, settling and cancelling such insurance and
endorsing any drafts. All premiums on such insurance shall be paid by Borrower
and the policies delivered to Bank. If Borrower fails to do so, Bank may
procure such insurance and charge the cost to Borrower's loan account. As
further assurance for the payment and performance of the Obligations, Borrower
hereby assigns to Bank all sums including returned or unearned premiums, which
may become payable under any policy of insurance on the Collateral and Borrower
hereby directs each insurance company issuing any such policy to make payment of
such sums directly to Bank.
EXHIBIT 10.7
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If in the event of the sale of the Collateral the proceeds thereof are
insufficient to pay all amounts to which Bank is legally entitled, Borrower will
be liable for the deficiency, together with interest thereon and the reasonable
fees of any attorney employed by Bank to collect such deficiency.
Bank shall have the right to enforce any remedies hereunder alternatively,
successively or concurrently. A waiver of any default of Borrower shall not be
a waiver of any subsequent, similar or other default. No delay in the exercise
of any of Bank's rights or remedies hereunder shall constitute a waiver of such
right or remedy or of any other right or remedy.
This Agreement shall not be construed to be in limitation of or in
substitution for any other grant of security interest from Borrower to Bank made
prior to or contemporaneously herewith, and no other such grant of a security
interest made subsequent to or contemporaneously herewith shall be construed to
be in limitation of or in substitution for this Agreement unless expressly and
specifically provided therein.
This Agreement shall take effect as a sealed instrument, shall be governed
by and construed according to the laws of the Commonwealth of Massachusetts,
shall be binding upon the heirs, executors, administrators, successors and
assigns of Borrower and shall inure to the benefit of the successors and assigns
of Bank.
*SEE RIDER ATTACHED HERETO
Witnessed by: ASECO CORPORATION
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BORROWER
/s/Sebastian J. Sicari By: /s/ Mary R. Barletta
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Its Chief Financial Officer
FLEET NATIONAL BANK
Address: 500 Donald Lynch Boulevard
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NUMBER AND STREET
By: /s/ Thomas M. Davies Marlborough, MA 01752
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Its CITY, COUNTY AND STATE
EXHIBIT 10.7
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RIDER TO INVENTORY, ACCOUNTS RECEIVABLE
AND INTANGIBLES SECURITY AGREEMENT
FROM ASECO CORPORATION
TO FLEET NATIONAL BANK
The foregoing Inventory, Accounts Receivable and Intangibles Security
Agreement (the "IAR Security Agreement") is modified as follows:
1. For the purposes of the IAR Security Agreement, the "Collateral" will
be deemed to include all of the following (collectively, the "Intangibles"), all
whether now existing and owned by the Borrower or hereafter arising or acquired:
all of the Borrower's know-how, trade secrets, copyrights, patents, trade names,
trademarks, service marks and licenses and the goodwill of the business
associated with the foregoing, including, without limitation, the patents and
patent applications described on Exhibit A hereto and the goodwill of the
business associated therewith. The Borrower hereby grants to the Bank a
security interest in the Intangibles to secure payment and performance of the
Obligations. Except as shown on Exhibit A hereto, none of the Intangibles owned
by the Borrower is the subject of any state or federal registration. The
Borrower agrees that it will not dispose of any of the Intangibles or any
interest therein or grant a security interest in any of the Intangibles (other
than to the Bank) nor suffer or permit to exist any other encumbrance thereon
without, in each instance, the prior written consent of the Bank. The Borrower
warrants that it has unencumbered title to or right to use the Intangibles and
full right and authority to grant to the Bank the within security interest in
the Intangibles. The Borrower agrees to defend its title to the Intangibles and
to take all steps reasonably necessary to preserve its title to the Intangibles
and ability to use same, including defense of any claims of infringement and
action against any infringers. Upon the occurrence of any Event of Default (as
defined in the Letter Agreement of even date herewith between the Bank and the
Borrower), the Borrower will assemble and make available to the Bank all books,
records and data, whether in written form or electronically recorded
representing any of the Intangibles (including, without limitation, all source
codes for the Borrower's software).
2. The IAR Security Agreement is modified by inserting into the first
sentence of fourth grammatical paragraph thereof, immediately after the words
"when due", the following:
"(continuing beyond such notice and/or grace period, if any,
so that same constitutes an Event of Default under the
aforesaid Letter Agreement)"
3. The IAR Security Agreement is modified by deleting the period at the
end of the seventh grammatical paragraph thereof and by substituting in its
stead the following:
", upon reasonable notice and during normal business hours,
except that if an Event of Default under the aforesaid
Letter Agreement has occurred and is continuing, the Bank
may make such inspection at any time and without any
requirement for notice."
EXHIBIT 10.7
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TRADEMARKS, PATENTS AND COPYRIGHTS
PATENTS
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Patents with United States Registration
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Patent Description Reg. No. Issue Date
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Utility contractor for testing integrated circuit chips 5,177,436 January 5, 1993
mounted in molded carrier rings
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Utility contact set for test apparatus for testing integrated 4,686,468 August 11, 1987
circuit package
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Patent Applications
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Description Serial No. Filing Date
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Automatic semiconductor part handler 08/878,426 July 31, 1996
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TRADEMARKS
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Marks with Federal Registration
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Marks Registration No./Reg. Date Use
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None.
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Marks with Pending Applications
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Marks Serial No./Filing Date Use
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None.
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COPYRIGHTS
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Work Author Owner Registration Registered
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Number
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None.
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