10.2(6)
[FIRST UNION LOGO
APPEARS HERE]
SECURITY AGREEMENT
September 23, 1996
TECHFORCE CORPORATION
00000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000 Tax I.D. Number 58-2082077______________
TECHFORCE UK LIMITED
00000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(Individually and collectively "Debtor")
First Union National Bank of Xxxxxxx
Xxxx Xxxxxx Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
(Hereinafter referred to as the "Bank")
For value received and to secure payment and performance of the
Promissory Note executed by the Debtor dated Sept 23, 1996, in the original
principal amount of $15,000,000.00, payable to Bank, and any extensions,
renewals, modifications or novations thereof (the "Note"), this Security
Agreement and the other Loan Documents, and any other obligations of Debtor to
Bank however created, arising or evidenced, whether direct or indirect, absolute
or contingent, now existing or hereafter arising or acquired, including swap
agreements (as defined in 11 U.S.C. (S) 101), future advances, and all costs and
expenses incurred by Bank to obtain, preserve, perfect and enforce the security
interest granted herein and to maintain, preserve and collect the property
subject to the security interest (collectively, "Obligations"), Debtor hereby
grants to Bank a continuing security interest in and lien upon the following
described property, now owned or hereafter acquired, any additions, accessions,
or substitutions thereof and thereto, and all proceeds and products thereof,
including cash or non-cash dividends (collectively, "Collateral"):
All Accounts, Chattel Paper, Contracts, Contract Rights, Documents,
General Intangibles, Goods, Leasehold Improvements, Instruments, Deposit
Accounts, Equipment, Fixtures, Inventory, all as generally defined in the
Uniform Commercial Code, of the State of Florida, and all other assets of the
Debtor, of whatever nature or kind and wherever located, including, but not
limited to, furniture, furnishings, patents, trademarks, licenses (including
licenses on patents and trademarks), rights as seller of Goods and rights to
return or repossess Goods, partnership interests or joint ventures and all
records pertaining to the Collateral. Notwithstanding the foregoing, Collateral
does not and shall not include any Discounted Leases or the equipment which is
the subject of such Discounted Leases.
Debtor hereby represents and agrees that from the date of this
Agreement until final payment in full of the obligations:
1. OWNERSHIP.
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Debtor owns the Collateral or, if the advance is used to acquire
Collateral, Debtor will purchase and acquire rights in the Collateral within ten
(10) days of the date advances are made under the Note. If Collateral is being
acquired with the proceeds of an advance under the Note, Debtor authorizes Bank
to disburse proceeds directly to the seller of the Collateral. The Collateral
is free and clear of all liens, security interests, and claims except the
Permitted Lens , and Debtor will keep the Collateral free and clear from all
liens, security interests and claims, other than those granted to Bank and
except for the Permitted Liens.
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2. NAME AND OFFICES.
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There has been no change in the name of Debtor, or the name under
which Debtor conducts business, within the five (5) years preceding the date of
execution of this Security Agreement and Debtor has not moved its executive
offices or residence within the five (5) years preceding the date of execution
of this Security Agreement except as previously reported in writing to Bank.
The taxpayer identification number of Debtor as provided herein is correct.
3. TITLE/TAXES.
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Debtor has good and marketable title to Collateral, except for minor
imperfections in title of non-material amounts and except as otherwise disclosed
to Bank by Debtor in writing, and will warrant and defend same against all
materially adverse claims. Debtor will not transfer, sell, or lease Collateral
(except in the ordinary course of business which shall include the sale or lease
of obsolete equipment and the exchange of equipment and inventory). Debtor
agrees to pay promptly all taxes and assessments upon or for the use of
Collateral and on this Security Agreement. At its option, and upon prior written
notice to Borrower, Bank may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on Collateral, except to the extent
Borrower notifies Bank that it is in good faith contesting any such encumbrance
and the encumbrance does not pose a threat to the Collateral. Debtor agrees to
reimburse Bank, on demand, for any such payment made by Bank. Any amounts so
paid and not reimbursed shall be added to the Obligations.
4. WAIVERS.
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Debtor waives presentment, demand, protest, notice of dishonor,
notice of default, demand for payment, notice of intention to accelerate
maturity, and notice of acceleration of maturity, notice of sale and all other
notices of any kind (except as specifically required herein). Debtor further
agrees not to assert against Bank as a defense (legal or equitable), as a set-
off, as a counterclaim, or otherwise, any claims Debtor may have against any
seller or lessor that provided personal property or services relating to any
part of the Collateral. In the event of a default which is not timely cured,
Debtor waives any and all rights to notice or to hearing prior to Bank's taking
immediate possession or control of any Collateral, and to any bond or security
which might be required by applicable law prior to the exercise of any of Bank's
remedies against any Collateral.
5. EXTENSIONS, RELEASES.
---------------------
Debtor agrees that Bank may extend, renew or modify any of the
Obligations and grant any releases, compromises or indulgences with respect to
any security for the Obligations, or with respect to any party liable for the
Obligations, all without notice to or consent of Debtor and without affecting
the liability of Debtor or the enforceability of this Security Agreement.
6. NOTIFICATIONS OF CHANGE.
------------------------
Debtor will notify Bank in writing at least thirty (30) days prior to
any change in: (a) Debtor's chief place of business; (b) Debtor's name or
identity; or (c) Debtor's corporate structure. Debtor will keep Collateral at
the location(s) previously provided to Bank until such time as Bank provides
written advance consent to a change of location, provided, however, that this
provision shall not apply to Collateral which is inventory, which is transported
in the normal course of business, vehicles or other assets or items of
Collateral which are not customarily fixed at or in a single location. Debtor
will bear the cost of preparing and filing any documents necessary to protect
Bank's liens.
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7. COLLATERAL CONDITION AND LAWFUL USE.
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Debtor represents that Collateral is in good repair and condition and
that Debtor shall use reasonable care to prevent Collateral from being
materially damaged or depreciating, except as allowed by ordinary wear and tear.
Debtor shall immediately notify Bank of any material loss or damage to
Collateral. Debtor shall not permit any item of Collateral to become a fixture
to real estate or an accession to other personal property, except as required in
the ordinary course of Debtor's business. Debtor represents it is in compliance
in all material respects with all federal, state local laws, and, where
applicable, laws and regulations of any foreign jurisdiction, and rules and
regulations applicable to its properties, Collateral, operations, business, and
finances, including, without limitation, any federal or state laws relating to
liquor (including 18 U.S.C. (S) 3617, et seq.) or narcotics (including 21 U.S.C.
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(S) 801, et seq.) and all applicable federal, state, local laws, and, where
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applicable, laws and regulations of any foreign jurisdiction and regulations
intended to protect the environment.
8. RISK OF LOSS AND INSURANCE.
---------------------------
Debtor shall bear all risk of loss with respect to the Collateral.
The injury to or loss of Collateral, either partial or total, shall not release
Debtor from payment or other performance hereof. Debtor agrees to obtain and
keep in force casualty and hazard insurance on Collateral naming Bank as loss
payee. Such insurance is to be in form and amounts satisfactory to Bank. All
such policies shall provide to Bank a minimum of thirty (30) days written notice
of cancellation. Debtor shall furnish to Bank such policies, or other evidence
of such policies satisfactory to Bank. Bank is authorized, but not obligated,
to purchase any or all insurance or "Single Interest Insurance" protecting such
interest as Bank deems appropriate against such risks and for such coverage and
for such amounts, including either the loan amount or value of the Collateral at
its discretion, all at Debtor's expense. In such event, Debtor agrees to
reimburse Bank for the cost of such insurance and Bank may add such cost to the
Obligations. Debtor shall bear the risk of loss to the extent of any deficiency
in the effective insurance coverage with respect to loss or damage to any of the
Collateral. Debtor hereby assigns to Bank the proceeds of all such insurance
and directs any insurer to make payments directly to Bank. Debtor hereby
appoints Bank its attorney-in-fact, which appointment shall be irrevocable and
coupled with an interest for so long as the Obligations are unpaid, to file
proof of loss and/or any other forms required to collect from any insurer any
amount due from any damage or destruction of Collateral, to agree to and bind
Debtor as to the amount of said recovery, to designate payee(s) of such
recovery, to grant releases to insurer, to grant subrogation rights to any
insurer, and to endorse any settlement check or draft. Debtor agrees not to
exercise any of the foregoing powers granted to Bank without the Bank's prior
written consent, which consent shall not be unreasonably withheld.
9. FINANCING STATEMENTS.
---------------------
No Financing Statement (other than any filed by Bank or disclosed as a
Permitted Lien ) covering any of Collateral or proceeds thereof is on file in
any public filing office. This Security Agreement, or a copy thereof, or any
Financing Statement executed hereunder may be recorded. On request of Bank,
Debtor will execute one or more Financing Statements in form satisfactory to
Bank and will pay all costs and expenses of filing the same or of filing this
Security Agreement in all public filing offices, where filing is deemed by Bank
to be desirable. Bank is authorized to file Financing Statements relating to
Collateral without Debtor's signature where authorized by law. Debtor appoints
Bank as its attorney-in-fact to execute such documents necessary to accomplish
perfection of Bank's security interest. The appointment is coupled with an
interest and shall be irrevocable as long as any Obligations remain outstanding.
Debtor further agrees to take such other actions as might be requested for the
perfection, continuation and assignment, in whole or in part,
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of the security interests granted herein. If certificates are issued or
outstanding as to any of the Collateral, Debtor will cause the security
interests of Bank to be properly protected, including perfection of notation
thereon.
10. DEBENTURE.
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Debtor, TECHFORCE UK LIMITED, has executed a Debenture in favor of
the Bank for the purpose of giving a first lien right in favor of the Bank
over all assets of the Debtor, TECHFORCE UK LIMITED, located in the United
Kingdom. Such Debenture, where appropriate, and all of the terms of said
Debenture are herein incorporated by reference and made a part hereof.
11. LANDLORD/MORTGAGEE WAIVERS.
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Debtor shall cause each mortgagee of real property owned by Debtor
and each landlord of real property leased by Debtor to execute and deliver
instruments satisfactory in form and substance to Bank by which such mortgagee
or landlord waives its rights, if any, in the Collateral.
12. STOCK, DIVIDENDS.
-----------------
If, with respect to any security pledged hereunder, a stock dividend
is declared, any stock split made or right to subscribe is issued, all the
certificates for the shares representing such stock dividend, stock split or
right to subscribe will be immediately delivered, duly endorsed, to the Bank as
additional collateral, and any cash or non-cash dividend will be immediately
delivered to Bank.
13. CONTRACTS, CHATTEL PAPER, ACCOUNTS, GENERAL INTANGIBLES.
--------------------------------------------------------
Debtor warrants that, to the best of its knowledge, the Collateral
consisting of contract rights, chattel paper, accounts, or general intangibles
is (a) genuine and enforceable in accordance with its terms except as limited by
law; (b) not subject to any defense, set-off, claim or counterclaim of a
material nature against Debtor except as to which Debtor has notified Bank in
writing; and (c) not subject to any other circumstances that would materially
impair the validity, enforceability or amount of such Collateral except as to
which Debtor has notified Bank in writing. Except in the ordinary course of
business, Debtor shall not amend, modify or supplement any lease, contract or
agreement contained in the Collateral or waive any provision therein, without
prior written consent of Bank.
14. ACCOUNT INFORMATION.
--------------------
From time to time, at the Bank's reasonable request, Debtor shall
provide Bank with schedules describing all accounts and contracts, including
customers' addresses, credited or acquired by Debtor and at the Bank's request
shall execute and deliver written assignments of contracts and other documents
evidencing such accounts and contracts to Bank. Together with each schedule,
Debtor shall, if requested by Bank, furnish Bank with copies of Debtor's sales
journals, invoices, customer purchase orders or the equivalent, and original
shipping or delivery receipts for all goods sold, and Debtor warrants the
genuineness thereof. Bank shall hold all such information in confidence and
shall not disclose same to any third party, except as may be required by state
or federal law or regulation and upon order of court.
15. ACCOUNT AND CONTRACT DEBTORS.
-----------------------------
In the event of a default which is not timely cured, Bank shall have
the right to notify the account and contract debtors obligated on any or all of
the Collateral to make payment thereof directly to Bank and Bank may take
control of all proceeds of any such Collateral, which rights Bank may exercise
at any time. The cost of such collection and enforcement, including attorneys'
fees
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and expenses, shall be borne solely by Debtor whether the same is incurred
by Bank or Debtor. Upon demand of Bank, Debtor will, upon receipt of all
checks, drafts, cash and other remittances in payment on Collateral, deposit the
same in a special bank account maintained with Bank, over which Bank also has
the power of withdrawal.
If a Default occurs, no discount, credit, or allowance shall be
granted by Debtor to any account or contract debtor and no return of merchandise
shall be accepted by Debtor without Bank's consent, except as provided by
contract with Debtor's customers or in the Debtor's ordinary course of business.
Bank may, after Default, settle or adjust disputes and claims directly with
account and contract debtors for amounts and upon terms that Bank considers
advisable, and in such cases, Bank will credit the Obligations with the net
amounts received by Bank, after deducting all of the expenses incurred by Bank.
Debtor agrees to indemnify and defend Bank and hold it harmless with respect to
any claim or proceeding arising out of any matter related to collection of the
Collateral.
16. GOVERNMENT CONTRACTS.
---------------------
If any accounts receivable or proceeds of inventory covered hereby
arises from obligations due to Debtor from any governmental unit or
organization, Debtor shall immediately notify Bank in writing and execute all
documents and take all actions reasonably demanded by Bank to ensure recognition
by such governmental unit or organization of the rights of Bank in the
Collateral.
17. INVENTORY.
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So long as no Default has occurred, Debtor shall have the right in
the regular course of business, to process and sell Debtor's inventory. In the
event of a default which is not timely cured and upon demand of Bank, Debtor
will, upon receipt of all checks, drafts, cash and other remittances, in payment
of Collateral sold, deposit the same in a special bank account maintained with
Bank, over which Bank also has the power of withdrawal. Debtor shall be in
material compliance with all federal, state, and local laws, regulations,
rulings, and orders applicable to Debtor or its assets or business, in all
respects. Without limiting the generality of the previous sentence, Debtor shall
materially comply with all requirements of the federal Fair Labor Standards Act
in the conduct of its business and the production of inventory. Debtor shall
notify Bank immediately of any known violation by Debtor of the Fair Labor
Standards Act, and a failure of Debtor to so notify Bank shall constitute a
continuing representation that all inventory then existing has been produced in
compliance with the Fair Labor Standards Act.
18. INSTRUMENTS, CHATTEL PAPER.
---------------------------
Any Collateral that is instruments, chattel paper and negotiable
documents and requires perfection of a security interest by possession will be
properly assigned to, deposited with and held by Bank, unless Bank shall
hereafter otherwise direct or consent in writing. Bank may, without notice,
before or after maturity of the Obligations, exercise any or all rights of
collection, conversion, or exchange and other similar rights, privileges and
options pertaining to the Collateral, but shall have no duty to do so.
19. COLLATERAL DUTIES.
--------------------
Bank shall have no custodial or ministerial duties to perform with
respect to Collateral pledged except as set forth herein; and by way or
explanation and not by way of limitation, Bank shall incur no liability for any
of the following: (a) loss or depreciation of the Collateral (unless caused by
its willful misconduct), (b) its failure to present any paper for payment or
protest, to protest or give notice of nonpayment, or any other notice with
respect to any paper or Collateral, or (c) its failure to present or surrender
for redemption, conversion or exchange any bond, stock,
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paper or other security whether in connection with any merger, consolidation,
recapitalization, or reorganization, arising out of the refunding of the
original security, or for any other reason, or its failure to notify any party
hereto that the Collateral should be so presented or surrendered.
20. TRANSFER OF COLLATERAL.
-----------------------
The Bank may assign its rights in the Collateral or any part thereof,
to the assignee, as well as any subsequent holder hereof, who shall thereupon
become vested with all the powers and rights herein given to the Bank with
respect to the property so transferred and delivered, and the Bank shall
thereafter be forever relieved and fully discharged from any liability with
respect to such property so transferred, but with respect to any property not so
transferred the Bank shall retain all rights and powers hereby given.
21. SUBSTITUTE COLLATERAL.
----------------------
With prior written consent of Bank, other Collateral may be
substituted for the original Collateral herein in which event all rights,
duties, obligations, remedies and security interests provided for, created or
granted shall apply fully to such substitute Collateral.
22. INSPECTION, BOOKS AND RECORDS.
------------------------------
Debtor will at all times keep materially accurate and complete
records covering each item of Collateral, including the proceeds therefrom.
Bank, or any of its agents, shall have the right, at intervals to be determined
by Bank, upon reasonable prior notice and without hindrance or delay, to
inspect, audit, and examine the Collateral and to make extracts from the books,
records, journals, orders, receipts, correspondence and other data relating to
the Collateral, Debtor's business or any other transaction between the parties
hereto. Debtor will at its expense furnish Bank copies thereof upon request.
Bank shall hold all such information in confidence and shall not disclose the
same to any third party except as may be required by state or federal law or
regulation.
23. ATTORNEYS' FEES AND OTHER COSTS OF COLLECTION.
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Debtor shall pay all of Bank's reasonable expenses incurred in
enforcing this Security Agreement and in preserving and liquidating the
Collateral, including but not limited to, reasonable arbitration, paralegals',
attorneys' and experts' fees and expenses, whether incurred without the
commencement of a suit, in any trial, arbitration, or administrative proceeding,
or in any appellate or bankruptcy proceeding.
24. DEFAULT.
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If any of the following occurs, a default ("Default") under this
Security Agreement shall exist:
(a) Nonpayment. The failure of timely payment of the Obligations
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under the Note or any other Loan Document.
(b) False Warranty. A warranty or representation made in the Loan
---------------
Documents or furnished Bank in connection with the loan evidenced by the Loan
Documents proves materially false, or if of a continuing nature, becomes
materially false and such materially false warranty or representation is not
cured within thirty (30) days following written notice by the Bank to the
Borrower.
(c) Cross Default. At Bank's option, any default in payment or
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performance of any obligation under any other loans, contracts or agreements of
Debtor or any Subsidiary of Debtor,
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any general partner of or the holder(s) of the majority ownership interests of
Debtor with Bank ( "Subsidiary" shall mean any corporation of which more than
50% of the issued and outstanding voting stock is owned directly or indirectly
by Debtor), which default is not timely cured and as a result of such default an
acceleration occurs, shall constitute a default of the terms and conditions of
the Obligations of the Debtor to the Bank under the Note, Security Agreement and
other Loan Documents. Likewise, any default in the terms and conditions of the
Note which is the subject of this loan, this Security Agreement or any of the
Loan Documents, which default is not timely cured and as a result of such
default an acceleration occurs, shall be and constitute a default under the
terms and conditions of any other obligation owed by the Debtor to the Bank.
(d) Bankruptcy. If the Debtor shall file a petition in voluntary
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bankruptcy or under any bankruptcy act or similar law, state or federal, whether
now or hereafter existing, or an answer admitting insolvency or inability to pay
its debts, or if Debtor fails to obtain a vacation or stay of involuntary
proceedings within sixty (60) days of the filing of such involuntary
proceeding.the same shall constitute an immediate default,
(e) Cessation. The dissolution of, termination of existence of,
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loss of good standing by or against the Debtor, or its Subsidiaries, if any, or
any general partner of the holders of the majority ownership interests of
Debtor, or any party to the Loan Documents.
(f) Material Capital Structure or Business Alteration. Without
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prior written consent of Bank, (i) a material alteration in the kind or type of
Debtor's business or that of its Subsidiaries , if any; (ii) the acquisition of
substantially all of Debtor's or any Subsidiary's business or assets, or a
material portion (10% or more) of such business or assets if such a sale is
outside Debtor's or any Subsidiary's ordinary course of business, or more than
50% of its outstanding stock or voting power in a single transaction or a series
of transactions; (iii) except for Acquisitions of $3,000,000.00 or less, the
acquisition of substantially all of the business or assets or more than fifty
percent (50%) of the outstanding stock or voting power of any other entity; or
(iv) except where the Acquisition is for $3,000,000.00 or less, should any
Debtor or Subsidiary enter into any merger or consolidation.
(g) Non-monetary Defaults. If default in the due observerance or
----------------------
performance of non-monetary covenants, agreements or conditions heretofore or
hereafter contained, required to be kept or performed or observed by the Debtor
in the Note, the Security Agreement, the Loan Agreement or any other Loan
Document or any other instrument executed concurrently with or in connection
with the Note, the Security Agreement, the Loan Agreement or other Loan
Documents, and the same shall not be cured within thirty (30) days after written
notice thereof by the Bank to the Debtor. If such non-monetary cure cannot be
reasonably expected to occur within said thirty (30) day period, the same shall
not be considered a Default so long as the Debtor immediately and within the
thirty (30) day period, commences cure and diligently pursues said cure to
completion and, during such time, the Collateral of the Bank is not impaired and
the Borrower's ability to repay the Obligations has not been impaired.
(h) Loss, Theft, etc. Any loss, theft, substantial damage or
-----------------
destruction of the Collateral not fully covered by insurance, or as to which
insurance proceeds are not remitted to Bank within thirty (30) days of loss, and
which creates a material impairment of Debtor's operations or the ability of
Debtor to repay the Obligations under the Loan Documents; any sale (except the
sale of inventory in the ordinary course of business), lease or encumbrance of
the Collateral without the prior written consent of the Bank, except for
Permitted Liens; or the making of any levy, seizure or attachment on or of the
Collateral which is not removed within ten (10) days following such levy,
seizure or attachment;
(i) Receiver. The appointment of a receiver for, assignment for
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the benefit of creditors of the Debtor or any of its Subsidiaries, if any, or
any party to the Loan Documents.
Page 7
25. REMEDIES ON DEFAULT (INCLUDING POWER OF SALE).
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If a Default occurs in the Note, Security Agreement, Loan Agreement
or any Loan Document which is not timely cured, all of the Obligations shall be
deemed accelerated and immediately due and payable without notice and Bank may,
at any time thereafter, take the following actions and shall have all of the
following rights and remedies:
(a) Possession. To take immediate possession of the Collateral,
-----------
without notice or resort to legal process, and for such purpose, to enter upon
any premises on which the Collateral or any part thereof may be situated and to
remove the same therefrom, or, at its option, to render the Collateral unusable
or dispose of said Collateral on Debtor's premises.
(b) Assemble. To require Debtor to assemble the Collateral and
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make it available to Bank at a place to be designated by Bank.
(c) Setoff. To exercise its right of set-off or bank lien as to
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any monies of Debtor deposited in demand, checking, time, savings, certificate
of deposit or other accounts of any nature maintained by Debtor with Bank or
Affiliates of Bank, without advance notice, regardless of whether such accounts
are general or special.
(d) Dispose of Collateral. To dispose of Collateral, as a unit
----------------------
or in parcels, separately or with any real property interests also securing the
Obligations, in any county or place to be selected by Bank, at either private or
public sale (at which public sale bank may be the purchaser) with or without
having the Collateral physically present at said sale.
(e) Notice. Any notice of sale, disposition or other action by
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Bank required by law and sent to Debtor at Debtor's address shown above, or at
such other address of Debtor as may from time to time be shown on the records of
Bank, at least five (5) days prior to such action, shall constitute reasonable
notice to Debtor. Notice shall be deemed given or sent when mailed postage
prepaid to Debtor's address as provided herein. The Bank, without any obligation
to do so, shall endeavor to give Notice to the Debtor of Bank's exercise of its
remedies under this Agreement. A failure to give such Notice shall not
constitute a default hereunder by the Bank, nor shall it impair, prohibit, or
preclude the Bank from enforcing any or all of its right under the Loan
Documents.
(f) Application of Proceeds. Bank shall be entitled to apply the
------------------------
proceeds of any sale or other disposition of the Collateral, and the payments
received by Bank with respect to any of the Collateral, to the Obligations in
such order and manner as Bank may determine.
(g) Decline of Collateral. Collateral that is subject to rapid
----------------------
declines in value and is customarily sold in recognized markets may be disposed
of by Bank in a recognized market for such collateral without providing notice
of sale.
(h) UCC. Bank shall have all rights and remedies of a Secured
----
Party under the Uniform Commercial Code.
(i) Cumulative. Bank shall be entitled to exercise any rights
----------- -----------
ans remedies as provided in the Loan Documents or so provided by law or equity.
26. REMEDIES ARE CUMULATIVE.
------------------------
No failure on the part of Bank to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Bank of any right, power or
remedy hereunder preclude any other or further exercise thereof or the
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exercise of any right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law, in equity, or
in other Loan Documents.
27. MISCELLANEOUS.
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(a) Amendments and Waivers. No waivers, amendments or modifica-
-----------------------
tions of any provision of the Note, Security Agreement, Loan Agreement or any
Loan Documents shall be valid unless in writing and signed by an officer of Bank
and the Borrower. No waiver by Bank of any Default shall operate as a waiver of
any other Default or of the same Default on a future occasion. Neither the
failure of, nor any delay by, Bank in exercising any right, power or privilege
granted pursuant to any Loan Document shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege.
(b) Assignment. All rights of Bank hereunder are freely assign-
-----------
able, in whole or in part, and shall inure to the benefit of and be enforceable
by Bank, its successors, assigns and affiliates. The Bank, without any
obligation to do so, shall endeavor to give notice to the Debtor of any intended
assignment of the Note, Security Agreement, Loan Agreement or any of the Loan
Documents. A failure to give such notice shall not constitute a default
hereunder by the Bank nor shall it impair, prohibit or preclude the Bank from
enforcing any or all of its rights and remedies under the Loan Documents. Debtor
shall not assign its rights and interest hereunder without the prior written
consent of Bank, and any attempt by Debtor to assign without Bank's prior
written consent is null and void. Any assignment shall not release Debtor from
the Obligations. This Security Agreement shall be binding upon Debtor, and the
heirs, personal representatives, successors, and assigns of Debtor.
(c) Applicable Law; Conflict Between Documents. The Note,
-------------------------------------------
Security Agreement, Loan Agreement and all Loan Documents shall be governed by
and construed under the laws of the State of Florida without regard to that
state's conflict of laws principles. If any terms of the Loan Documents conflict
with the terms of any commitment letter or loan proposal, the terms of the Loan
Documents shall control.
(d) Jurisdiction. Debtor irrevocably agrees to non-exclusive
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personal jurisdiction in the State of Florida.
(e) Severability. If any provision of any Loan Document shall be
-------------
prohibited by or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of the
Loan Documents.
(f) Notices. Any notices to Debtor shall be sufficiently given,
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if in writing and mailed or delivered to the address of Debtor shown above or
such other address as provided hereunder; and to Bank, if in writing and mailed
or delivered to Bank's office address at 000 Xxxxxxx Xxxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000, or such other address as Bank may specify in writing from time to
time. In the event that the Debtor changes Debtor's address at any time prior to
the date this Note is paid in full, Debtor agrees to promptly give written
notice of said change of address by registered or certified mail, return receipt
requested, all charges prepaid.
(g) Plural; Captions. All references in the Loan Documents to
-----------------
Borrower, guarantor, person, document or other nouns of reference mean both the
singular and plural form, as the case may be, and the term "person" shall mean
any individual, person or entity. The captions contained in the Loan Documents
are inserted for convenience only and shall not affect the meaning or
interpretation of the Loan Documents.
Page 9
(h) Loan Documents. The term "Loan Documents" refers to all
---------------
documents executed in connection with the Loan and may include, without
limitation, a commitment letter or loan proposal that survive the closing, a
loan agreement, the Note, this Security Agreement, the security instruments,
financing statements, debentures, letters of credit, and any renewals,
modificaitons, amendments or supplements (excluding swap agreements as defined
in 11 U.S.C. (S) 101).
(i) Joint and Several Obligations. Each Borrower is jointly and
------------------------------
severally obligated under this Security Agreement and the other Loan Documents.
(j) Binding Contract. Debtor by execution and Bank by acceptance
-----------------
of this Security Agreement, agree that each party is bound by all terms and
provisions of this Security Agreement.
(k) Time is of the Essence. Time shall be of the essence.
-----------------------
(l) Capitalized Terms. Capitalized terms used herein and not
------------------
otherwise defined shall have the meaning assigned to said terms in the Loan
Agreement.
28. ARBITRATION.
------------
Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to this Security Agreement and the
other Loan Documents ("Disputes") between or among parties to this Security
Agreement shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, disputes as to whether a matter is subject to
arbitration, claims brought as class actions, claims arising from Loan Documents
executed in the future, or claims arising out of or connected with the
transaction reflected by this Security Agreement.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the city in which the office of Bank
first stated above is located. The expedited procedures set forth in Rule 51 et
--
seq. of the Arbitration Rules shall be applicable to claims of less than
----
$1,000,000.00. All applicable statutes of limitation shall apply to any Dispute.
A judgment upon the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or federal,
of the state where the hearing will be conducted or if such person is not
available to serve, the single arbitrator may be a licensed attorney.
Notwithstanding the foregoing, this arbitration provision does not apply to
disputes under or related to swap agreements.
29. PRESERVATION AND LIMITATION OF REMEDIES.
----------------------------------------
Notwithstanding the preceding binding arbitration provisions, Bank
and Debtor agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, independently or in connection with
an arbitration proceeding or after an arbitration action is brought. Bank and
Debtor shall have the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable:
(a) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted under Loan Documents or
under applicable law or by judicial foreclosure and sale, including a proceeding
to confirm the sale;
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(b) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property;
(c) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and
(d) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
Debtor and Bank agree that they shall not have a remedy of punitive
or exemplary damages against the other in any Dispute and hereby waive any right
or claim to punitive or exemplary damages they have now or which may arise in
the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
30. DELIVERY AND ACCEPTANCE.
------------------------
This Security Agreement was executed, delivered and accepted between
the Debtor and the Bank at Hunton & Xxxxxxxx, The NationsBank Plaza, Suite
4100, 000 Xxxxxxxxx Xxxxxx X.X., Xxxxxxx, Xxxxxxx.
IN WITNESS WHEREOF, Debtor, on the day and year first written above,
has caused this Agreement to be executed under seal.
TECHFORCE CORPORATION
Taxpayer Identification Number: 00-0000000
CORPORATE By: ________________________________________
SEAL XXXXXX X. XXX, Senior Vice President
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EXECUTED as a Deed and Delivered by
the Company pursuant to a resolution of
its board of directors dated [ } by:-
"The Common Seal of )
TECHFORCE UK LIMITED )
was hereto affixed )
in the presence of: )
Director ________________________________
(Signature)
________________________________
(Print name of person signing)
Secretary _________________________________
(Signature)
________________________________
(Print name of person signing)
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