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EXHIBIT 10.38
SECURITY AGREEMENT
This Security Agreement is entered into and effective August 2, 2000, by
and between Pick Systems ("Company") and General Automation, Inc. (the "Secured
Party").
1. OVERVIEW. As part of the consideration paid by Company to Secured Party for
certain acquired assets, pursuant to Section 1(e)(ii) of the Asset Purchase
Agreement between Company and Secured Party, dated August 2, 2000 ("Purchase
Agreement"), Company has agreed to enter into a Secured Promissory Note,
attached hereto as Exhibit A, in the principal amount of Five Hundred Thousand
Dollars and no cents ($500,000.00) payable by Company to Secured Party (the
"Secured Promissory Note").
2. INDEBTEDNESS SECURED. The indebtedness secured by this Security Agreement is
the payment of all amounts owed under the Secured Promissory Note and/or this
Agreement.
3. SECURITY INTERESTS. Purchaser hereby grants to the Secured Party a security
interest in those accounts receivable of the Secured Party, acquired by the
Company, as described in Section 1(a)(vii) and Schedule 1(a)(vii) of the
Purchase Agreement ("Accounts Receivable"), together with all proceeds thereof.
This security interest and all UCC statements filed with regard to this security
interest shall immediately terminate and be fully extinguished upon full payment
to the Secured Party, of all of the amounts secured hereby.
4. REPRESENTATIONS AND WARRANTIES. Company represents and warrants to Secured
Party that upon closing of the asset acquisition described in the Agreement,
Company expects to receive title to the Accounts Receivable free and clear of
all liens, security interests, restrictions, and adverse claims and that Company
will not encumber or cause the Accounts Receivable to be encumbered with any
liens, security interests or restrictions until such time as the Promissory Note
is paid in full.
5. COVENANTS OF COMPANY. Company covenants as follows:
5.1 Company shall not sell or assign any interest in the Accounts
Receivable.
5.2 Company shall promptly execute and deliver any financing
statement or other document or instrument which Secured Party may now or
hereafter reasonably demand in order to perfect the security interest granted
herein. Company shall also take any other action necessary in order to perfect
the security interest.
5.3 Upon an Event of Default, as hereinafter defined, the Company
shall fully cooperate with the Secured Party and shall execute any documents and
perform any acts reasonably required by Secured Party to transfer and assign
good title to the Accounts Receivable to Secured Party and to collect any
amounts due from third parties in connection with the Accounts Receivable.
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6. EVENTS OF DEFAULT.
6.1 An "Event of Default" shall occur if:
(a) Company defaults in the payment of the principal on the Secured
Promissory Note when and as the same becomes due and payable;
(b) Company fails to comply with any of its agreements contained in
this Security Agreement or the Secured Promissory Note and such failure
continues for a period of thirty (30) days after notice is given to Company;
(c) Company, pursuant to or within the meaning of any Bankruptcy
Law;
(i) commences a voluntary case;
(ii) acquiesces to the commencement against it of an
involuntary case or has an involuntary case commenced
against it which is not dismissed within thirty (30)
days following the filing thereof;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its
creditors.
(d) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against Company in an involuntary case;
(ii) appoints a Custodian of Company or for all or
substantially all of its properties; or
(iii) orders the liquidation of Company; and in each case the
order or decree remains unstayed and in effect for sixty
(60) days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, or similar official under any Bankruptcy Law.
6.2 Acceleration. If an Event of Default occurs and is continuing, the
holder of the Secured Promissory Note, by an instrument in writing delivered to
Company may declare the principal on such Secured Promissory Note to be due and
payable immediately. Upon such declaration, such principal shall be due and
payable immediately. A holder of the Secured
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Promissory Note, by an instrument in writing delivered to Company may, at any
time, direct Company to rescind an acceleration and its consequences.
6.3 Cost of Collection. If default is made in the payment of the Secured
Promissory Note, Company shall pay the holder of the Secured Promissory Note the
costs of collection, including reasonable attorneys' fees and all costs of
exercising any rights or remedies to which Secured Party is entitled under this
Agreement or applicable law.
6.4 Other Remedies. If an Event of Default occurs and is continuing, the
holder of the Secured Promissory Note may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal on the
Secured Promissory Note; to enforce the performance of any provision of the
Secured Promissory Note or this Agreement or to exercise any other right or
remedy to which Secured Party is entitled under this Agreement or applicable
law.
6.5 Waiver of Past Defaults. The holder of the Secured Promissory Note
representing not less than sixty percent (60%) of the aggregate outstanding
principal amount of the Secured Promissory Note may waive an existing default or
Event of Default and its consequences. When a default or Event of Default is
waived, it is cured and stops continuing.
7. NOTICES. Any notice herein required or permitted to be given shall be in
writing and may be personally served or sent by registered U.S. mail, return
receipt requested, by Fedex or by fax, to the following addresses:
If to General Automation, Inc.:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Higham, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇▇▇
If to Pick Systems:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, President
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With a copy to:
▇▇▇▇▇▇▇▇▇ Traurig
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Any notice so sent shall be effective when received. Both the holder of the
Secured Promissory Note and Company may change the address for notices by giving
written notice to the other as herein provided.
8. DEFICIENCY. If, upon the occurrence of an Event of Default, Secured Party
takes possession of the Accounts Receivable and sells the same pursuant to the
provisions of this Agreement and applicable law, any deficiency in the amount
due under the terms of this Agreement and the Secured Promissory Note shall
immediately become due and payable to Secured Party, to the extent allowed by
applicable law.
9. ATTORNEYS' FEES. If any party to this Agreement shall bring any action, suit,
counterclaim, appeal, arbitration, or mediation for any relief against any other
party to this Agreement, declaratory or otherwise, to enforce the terms hereof
or to declare rights hereunder (collectively, an "Action"), the losing party
shall pay to the prevailing party a reasonable sum for attorneys' fees and costs
incurred in bringing and prosecuting such Action and/or enforcing any judgment,
order, ruling, or award (collectively, a "Decision") granted therein, all of
which shall be deemed to have accrued on the commencement of such Action and
shall be paid whether or not such Action is prosecuted to a Decision. Any
Decision entered in such Action shall contain a specific provision providing for
the recovery of attorneys' fees and costs incurred in enforcing such Decision.
The court or arbitrator may fix the amount of reasonable attorneys' fees and
costs on the request of either party. For the purposes of this section,
attorneys' fees shall include, without limitation, fees incurred in the
following: postjudgment motions and collection actions; contempt proceedings;
levy, and debtor and third party examinations; discovery; and bankruptcy
litigation. "Prevailing party" within the meaning of this section includes a
party who agrees to dismiss an Action on the other party's payment of the sums
allegedly due or performance of the covenants allegedly breached, or who obtains
substantially the relief sought by it.
10. REMEDIES. Upon the occurrence of an Event of Default, Secured Party shall
have in any jurisdiction where enforcement hereof is sought, in addition to all
other rights and remedies which Secured Party may have under applicable law, the
following rights and remedies, all of which may be exercised with or without
further notice to the Company, to: (a) settle, compromise or release on terms
acceptable to Secured Party, in whole or in part, any amounts owing on the
Accounts Receivable; (b) enforce payment and prosecute any action or proceeding
with respect to any and all of the Accounts Receivable; (c) extend the time of
payment, make allowances and adjustments and issue credits in Secured Party's
name or in the name of the Company; (d) enforce the liens and security interests
created under this Agreement
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or under any other agreement relating to the Accounts Receivable by any
available judicial procedure or without judicial process; or (e) sell, assign or
otherwise dispose of the Accounts Receivable and any part thereof, either at a
public or private sale, for cash, on credit or otherwise, with or without
representations or warranties, and upon such terms as shall be acceptable to
Secured Party, all in Secured Party's sole discretion. The net cash proceeds
resulting from the collection, liquidation, sale or other disposition of the
Accounts Receivable shall be applied first to the expenses (including all
attorneys' fees) of retaking, processing and preparing for sale, selling and the
like, and then to the satisfaction of all obligations and indebtedness secured
hereby. Application to particular obligations and indebtedness shall be made in
Secured Party's absolute discretion.
11. MISCELLANEOUS.
11.1 No Event of Default shall be waived by the Secured Party
except in writing, and no waiver of any right under this Security Agreement
shall operate as a waiver of any other or similar right, or of the same right,
on another occasion.
11.2 This Security Agreement has been negotiated and executed in,
and shall be governed by and construed and enforced in accordance with the laws
of the State of California, without regard to its conflict of laws rules
11.3 All rights of the Secured Party shall inure to the benefit of
their assigns and successors; all duties of Company shall be binding on its
successors.
Executed the day and year first set forth above.
PICK SYSTEMS GENERAL AUTOMATION, INC.
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇, President ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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