EXHIBIT 10.28
COMERICA SECURITY AGREEMENT
(All Assets)
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As of October 9, 1998, for value received, the undersigned, SPECIALIZED
DATA SYSTEMS, INC., a North Carolina corporation ("Debtor"), grants to
COMERICA BANK, a Michigan banking corporation ("Bank"), a continuing
security interest in the Collateral (as defined below), to secure payment,
when due, whether by stated maturity, demand, acceleration or otherwise, of
all existing and future indebtedness (as herein defined) of Debtor and/or
MANATRON, INC., a Michigan corporation ("Borrower"), to the Bank.
"Indebtedness" shall mean any and all obligations, liabilities and
indebtedness of Debtor to the Bank, whether absolute or contingent, direct
or indirect, voluntary or involuntary, liquidated or unliquidated, joint or
several, known or unknown, and whether now existing or hereafter arising;
any and all obligations or liabilities for which Debtor would otherwise be
liable to the Bank were it not for the invalidity or unenforceability of
them by reason of any bankruptcy, insolvency or other law, or for any other
reason; any and all amendments, modifications, renewals and/or extensions
of any of the above; all costs incurred by Bank in establishing,
determining, continuing, or defending the validity or priority of its
security interest, or in pursuing its rights and remedies under this
Agreement or under any other agreement between Bank and Debtor or in
connection with any proceeding involving Bank as a result of any financial
accommodation to Debtor; and all other costs of collecting indebtedness,
including, without limit, attorney fees. Debtor agrees to pay Bank all
such costs incurred by the Bank, immediately upon demand, and until paid
all costs shall bear interest at the highest per annum rate applicable to
any of the Indebtedness, but not in excess of the maximum rate permitted by
law. Any reference in this Agreement to attorney fees shall be deemed a
reference to reasonable fees, costs, and expenses of both in-house and
outside counsel and paralegals, whether or not a suit or action is
instituted, and to court costs if a suit or action is instituted, and
whether attorney fees or court costs are incurred at the trial court level,
on appeal, in a bankruptcy, administrative or probate proceeding or
otherwise.
1. COLLATERAL shall mean all of the following property Debtor now or
later owns or has an interest in, wherever located:
(a) all Accounts Receivable (for purposes of this Agreement,
"Accounts Receivable" consists of all accounts, general
intangibles, chattel paper, contract rights, deposit accounts,
documents and instruments),
(b) all Inventory,
(c) all Equipment and Fixtures,
(d) specific items listed below and/or on attached Schedule A, if
any, is/are also included in Collateral:
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(e) all goods, instruments, documents, policies and certificates of
insurance, deposits, money, investment property or other property
(except real property which is not a fixture) which are now or
later in possession or control of Bank, or as to which Bank now
or later controls possession by documents or otherwise, and
(f) all additions, attachments, accessions, parts, replacements,
substitutions, renewals, interest, dividends, distributions,
rights of any kind (including but not limited to stock splits,
stock rights, voting and preferential rights), products, and
proceeds of or pertaining to the above including, without limit,
cash or other property which were proceeds and are recovered by a
bankruptcy trustee or otherwise as a preferential transfer by
Debtor.
2. WARRANTIES, COVENANTS AND AGREEMENTS. Debtor warrants, covenants and
agrees as follows:
2.1 Debtor shall furnish to Bank, in form and at intervals as Bank
may request, any information Bank may reasonably request and
allow Bank to examine, inspect, and copy any of Debtor's books
and records. Debtor shall, at the request of Bank, xxxx its
records and the Collateral to clearly indicate the security
interests of Bank under this Agreement.
2.2 At the time any Collateral becomes, or is represented to be,
subject to a security interest in favor of Bank, Debtor shall be
deemed to have warranted that (a) Debtor is the lawful owner of
the Collateral and has the right and authority to subject it to a
security interest granted to Bank; (b) none of the Collateral is
subject to any security interest, other than that in favor of
Bank, and there are no financing statements on file, other than
in favor of Bank; and (c) Debtor acquired its rights in the
Collateral in the ordinary course of its business.
2.3 Debtor will keep the Collateral free at all times from all
claims, liens, security interests and encumbrances, other than
those in favor of Bank. Debtor will not, without the prior
written consent of Bank, sell, transfer or lease, or permit to be
sold, transferred or leased, any or all of the Collateral, except
for Inventory in the ordinary course of its business, and will
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not return any Inventory to its supplier. Bank, or its
representatives, may, at all reasonable times, inspect the
Collateral and may enter upon all premises where the Collateral
is kept or might be located.
2.4 Debtor will do all acts and will execute or cause to be executed
all writings requested by Bank to establish, maintain and
continue a perfected and first security interest of Bank in the
Collateral. Debtor agrees that Bank has no obligation to acquire
or perfect any lien on or security interest in any asset(s),
whether realty or personalty, to secure payment of the
Indebtedness, and Debtor is not relying upon assets in which the
Bank may have a lien or security interest for payment of the
Indebtedness.
2.5 Debtor will pay, within the time that they can be paid without
interest or penalty, all taxes, assessments and similar charges
which at any time are or may become a lien, charge, or
encumbrance upon any Collateral, except to the extent contested
in good faith and bonded in a manner satisfactory to Bank. If
Debtor fails to pay any of these taxes, assessments, or other
charges in the time provided above, Bank has the option (but not
the obligation) to do so, and Debtor agrees to repay all amounts
so expended by Bank immediately upon demand, together with
interest at the highest lawful default rate which could be
charged by Bank on any Indebtedness.
2.6 Debtor will keep the Collateral in good condition and will
protect it from loss, damage, or deterioration from any cause.
Debtor has and will maintain at all times (a) with respect to the
Collateral, insurance under an "all risk" policy against fire and
other risks customarily insured against, and (b) public liability
insurance and other insurance as may be required by law or
reasonably required by Bank, all of which insurance shall be in
amount, form and content, and written by companies, as may be
satisfactory to Bank, and shall contain a lender's loss payable
endorsement acceptable to Bank. Debtor will deliver to Bank,
immediately upon demand, evidence satisfactory to Bank that the
required insurance has been procured. If Debtor fails to
maintain satisfactory insurance, Bank has the option (but not the
obligation) to do so, and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest
at the highest lawful default rate which could be charged by Bank
on any Indebtedness.
2.7 On each occasion on which Debtor evidences to Bank the account
balances on and the nature and extent of the Accounts Receivable,
Debtor shall be deemed to have warranted that, except as
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otherwise indicated (a) each of those Accounts Receivable is
valid and enforceable without performance by Debtor of any act,
(b) each of those account balances are in fact owing, (c) there
are no setoffs, recoupments, credits, contra accounts,
counterclaims or defenses against any of those Accounts
Receivable, (d) as to any Accounts Receivable represented by a
note, trade acceptance, draft or other instrument or by any
chattel paper or document, the same have been endorsed and/or
delivered by Debtor to Bank, (e) Debtor has not received with
respect to any Account Receivable, any notice of the death of the
related account debtor, nor of the dissolution, liquidation,
termination of existence, insolvency, business failure,
appointment of a receiver for, assignment for the benefit of
creditors by, or filing of a petition in bankruptcy by or
against, the account debtor, and (f) as to each Account
Receivable, the account debtor is not an affiliate of Debtor, the
United States of America or any department, agency or
instrumentality of it, or a citizen or resident of any
jurisdiction outside of the United States. Debtor will do all
acts and will execute all writings requested by Bank to perform,
enforce performance of, and collect all Accounts Receivables.
Debtor shall neither make nor permit any modification, compromise
or substitution for any Account Receivable without the prior
written consent of Bank. Debtor shall, at Bank's request,
arrange for verification of Accounts Receivable directly with
account debtors or by other methods acceptable to Bank.
2.8 Debtor, at all times, shall be in strict compliance with all
applicable laws, including, without limit any laws, ordinances,
directives, orders, statutes, or regulations an object of which
is to regulate or improve health, safety, or the environment
("Environmental Laws").
2.9 If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of (a) the ultimate
sale or exchange thereof; or (b) presentation, collection,
renewal, or registration of transfer thereof; or (c) loading,
unloading, storing, shipping, transshipping, manufacturing,
processing or otherwise dealing with it preliminary to sale or
exchange; such redelivery shall be in trust for the benefit of
Bank and shall not constitute a release of Bank's security
interest in it or in the proceeds or products of it, unless Bank
specifically so agrees in writing. If Debtor requests any such
redelivery, Debtor will deliver with such request a duly executed
financing statement in form and substance satisfactory to Bank.
Any proceeds of Collateral coming into Debtor's possession as a
result of any such redelivery shall be held in trust for Bank and
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immediately delivered to Bank for application on the
Indebtedness. Bank may (in its sole discretion) deliver any or
all of the Collateral to Debtor, and such delivery by Bank shall
discharge Bank from all liability or responsibility for such
Collateral. Bank, at its option, may require delivery of any
Collateral to Bank at any time with such endorsements or
assignments of the Collateral as Bank may request.
2.10 At any time and without notice, Bank may (a) cause any or all of
the Collateral to be transferred to its name or to the name of
its nominees; (b) receive or collect, by legal proceedings or
otherwise, all dividends, interest, principal payments and other
sums and all other distributions at any time payable or
receivable on account of the Collateral, and hold the same as
Collateral, or apply the same to the Indebtedness, the manner and
distribution of the application to be in the sole discretion of
the Bank; (c) enter into any extension, subordination,
reorganization, deposit, merger or consolidation agreement or any
other agreement relating to or affecting the Collateral, and
deposit or surrender control of the Collateral, and accept other
property in exchange for the Collateral and hold or apply the
property or money so received pursuant to this Agreement.
2.11 Bank may assign any of the Indebtedness and deliver any or all of
the Collateral to its assignee, who then shall have with respect
to Collateral so delivered all the rights and powers of Bank
under this Agreement, and after that, Bank shall be fully
discharged from all liability and responsibility with respect to
Collateral so delivered.
2.12 Debtor shall defend, indemnify and hold harmless Bank, its
employees, agents, shareholders, affiliates, officers, and
directors, from and against any and all claims, damages, fines,
expenses, liabilities or causes of action of whatever kind,
including, without limit, consultant fees, legal expenses, and
attorney fees, suffered by any of them as a direct or indirect
result of any actual or asserted violation of any law, including,
without limit, Environmental Laws, or of any remediation relating
to any property required by any law, including, without limit,
Environmental Laws.
2.13 Debtor delivers this Agreement based solely on Debtor's
independent investigation of (or decision not to investigate) the
financial condition of Borrower and is not relying on any
information furnished by Bank. Debtor assumes full
responsibility for obtaining any further information concerning
the Borrower's financial condition, the status of the
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Indebtedness or any other matter which Debtor may deem necessary
or appropriate now or later. Debtor waives any duty on the part
of Bank, and agrees that Debtor is not relying upon nor expecting
Bank to disclose to Debtor any fact now or later known by Bank,
whether relating to the operations or condition of Borrower, the
existence, liabilities or financial condition of any guarantor of
the Indebtedness, the occurrence of any default with respect to
the Indebtedness, or otherwise, notwithstanding any effect such
fact may have upon Debtor's risk or Debtor's rights against
Borrower. Debtor knowingly accepts the full range of risk
encompassed in this Agreement, which risk includes, without
limit, the possibility that Borrower may incur Indebtedness to
Bank after the financial condition of Borrower, or Borrower's
ability to pay debts as they mature, has deteriorated.
3. COLLECTION OF PROCEEDS.
3.1 Debtor agrees to collect and enforce payment of all Collateral
until Bank shall direct Debtor to the contrary. Immediately upon
notice to Debtor by Bank and at all times after that, Debtor
agrees to fully and promptly cooperate and assist Bank in the
collection and enforcement of all Collateral and to hold in trust
for Bank all payments received in connection with Collateral and
from the sale, lease or other disposition of any Collateral, all
rights by way of suretyship or guaranty and all rights in the
nature of a lien or security interest which Debtor now or later
has regarding Collateral. Immediately upon and after such
notice, Debtor agrees to (a) endorse to Bank and immediately
deliver to Bank all payments received on Collateral or from the
sale, lease or other disposition of any Collateral or arising
from any other rights or interests of Debtor in the Collateral,
in the form received by Debtor without commingling with any other
funds, and (b) immediately deliver to Bank all property in
Debtor's possession or later coming into Debtor's possession
through enforcement of Debtor's rights or interests in the
Collateral. Debtor irrevocably authorizes Bank, or any Bank
employee or agent, to endorse the name of Debtor upon any checks
or other items which are received in payment for any Collateral,
and to do any and all things necessary in order to reduce these
items to money. Bank shall have no duty as to the collection or
protection of Collateral or the proceeds of it, nor as to the
preservation of any related rights, beyond the use of reasonable
care in the custody and preservation of Collateral in the
possession of Bank. Debtor agrees to take all steps necessary to
preserve rights against prior parties with respect to the
Collateral. Nothing in this Section 3.1 shall be deemed a
consent by Bank to any sale, lease or other disposition of any
Collateral.
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3.2 Debtor agrees that immediately upon Bank's request (whether or
not any Event of Default exists), the Indebtedness shall be on a
"remittance basis" as follows: Debtor shall, at its sole
expense, establish and maintain (and Bank, at Bank's option may
establish and maintain at Debtor's expense): (a) an United
States Post Office lock box (the "Lock Box"), to which Bank shall
have exclusive access and control. Debtor expressly authorizes
Bank, from time to time, to remove contents from the Lock Box,
for disposition in accordance with this Agreement. Debtor agrees
to notify all account debtors and other parties obligated to
Debtor that all payments made to Debtor (other than payments by
electronic funds transfer) shall be remitted, for the credit of
Debtor, to the Lock Box, and Debtor shall include a like
statement on all invoices; and (b) a non-interest bearing deposit
account with Bank which shall be titled as designated by Bank
(the "Cash Collateral Account") to which Bank shall have
exclusive access and control. Debtor agrees to notify all
account debtors and other parties obligated to Debtor that all
payments made to Debtor by electronic funds transfer shall be
remitted to the Cash Collateral Account, and Debtor, at Bank's
request, shall include a like statement on all invoices. Debtor
shall execute all documents and authorizations as required by
Bank to establish and maintain the Lock Box and the Cash
Collateral Account.
3.3 All items or amounts which are remitted to the Lock Box, to the
Cash Collateral Account, or otherwise delivered by or for the
benefit of Debtor to Bank on account of partial or full payment
of, or with respect to, any Collateral shall, at Bank's option,
(i) be applied to the payment of the Indebtedness, whether then
due or not, in such order or at such time of application as Bank
may determine in its sole discretion or, (ii) be deposited to the
Cash Collateral Account. Debtor agrees that Bank shall not be
liable for any loss or damage which Debtor may suffer as a result
of Bank's processing of items or its exercise of any other rights
or remedies under this Agreement, including, without limitation,
indirect, special or consequential damages, loss of revenues or
profits, or any claim, demand or action by any third party
arising out of or in connection with the processing of items or
the exercise of any other rights or remedies under this
Agreement. Debtor agrees to indemnify and hold Bank harmless
from and against all such third party claims, demands or actions,
and all related expenses or liabilities, including, without
limitation, attorney fees.
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4. DEFAULTS, ENFORCEMENT AND APPLICATION OF PROCEEDS.
4.1 The occurrence or existence of any of the following conditions or
events shall constitute an "Event of Default" under this
Agreement:
(a) Any failure to pay the Indebtedness or any other
indebtedness when due, or such portion of it as may be due,
by acceleration or otherwise; or
(b) Any failure or neglect to comply with, or breach of or
default under, any term of this Agreement, or any other
agreement or commitment between Debtor or any guarantor of
any of the Indebtedness ("Guarantor") and Bank; or
(c) Any warranty, representation, financial statement, or other
information made, given or furnished to Bank by or on behalf
of Debtor or any Guarantor shall be, or shall prove to have
been, false or materially misleading when made, given, or
furnished; or
(d) Any loss, theft, substantial damage or destruction to or of
any Collateral, or the issuance or filing of any attachment,
levy, garnishment, or the commencement of any proceeding in
connection with any Collateral or of any other judicial
process of, upon or in respect of Debtor, any Guarantor, or
any Collateral; or
(e) Sale or other disposition by Debtor or any Guarantor of any
substantial portion of its assets or property or voluntary
suspension of the transaction of business by Debtor or any
Guarantor, or death, dissolution, termination of existence,
merger, consolidation, insolvency, business failure, or
assignment for the benefit of creditors of or by Debtor or
any Guarantor; or commencement of any proceedings under any
state or federal bankruptcy or insolvency laws or laws for
the relief of debtors by or against Debtor or any Guarantor;
or the appointment of a receiver, trustee, court appointee,
sequestrator or otherwise, for all or any part of the
property of Debtor or any Guarantor; or
(f) Bank deems the margin of Collateral insufficient or itself
insecure, in good faith believing that the prospect of
payment of the Indebtedness or performance of this Agreement
is impaired or shall fear deterioration, removal, or waste
of Collateral.
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4.2 Upon the occurrence and at any time during the continuance or
existence of any Event of Default, Bank may, at its discretion
and without prior notice to Debtor, declare any or all of the
Indebtedness to be immediately due and payable, and shall have
and may exercise any one or more of the following rights and
remedies:
(a) Exercise all the rights and remedies upon default, in
foreclosure and otherwise, available to secured parties
under the provisions of the Uniform Commercial Code and
other applicable law;
(b) Institute legal proceedings to foreclose upon the lien and
security interest granted by this Agreement, to recover
judgment for all amounts then due and owing as Indebtedness,
and to collect the same out of any Collateral or the
proceeds of any sale of it;
(c) Institute legal proceedings for the sale, under the judgment
or decree of any court of competent jurisdiction, of any or
all Collateral; and/or
(d) Personally or by agents, attorneys, or appointment of a
receiver, enter upon any premises where Collateral may then
be located, and take possession of all or any of it and/or
render it unusable; and without being responsible for loss
or damage to such Collateral, hold, operate, sell, lease, or
dispose of all or any Collateral at one or more public or
private sales, leasings or other disposition, at places and
times and on terms and conditions as Bank may deem fit,
without any previous demand or advertisement; and except as
provided in this Agreement, all notice of sale, lease or
other disposition, and advertisement, and other notice or
demand, any right or equity of redemption, and any
obligation of a prospective purchaser or lessee to inquire
as to the power and authority of Bank to sell, lease, or
otherwise dispose of the Collateral or as to the application
by Bank of the proceeds of sale or otherwise, which would
otherwise be required by, or available to Debtor under,
applicable law are expressly waived by Debtor to the fullest
extent permitted.
At any sale pursuant to this Section 4.2, whether under the
power of sale, by virtue of judicial proceedings or
otherwise, it shall not be necessary for Bank or a public
officer under order of a court to have present physical or
constructive possession of Collateral to be sold. The
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recitals contained in any conveyances and receipts made and
given by Bank or the public officer to any purchaser at any
sale made pursuant to this Agreement shall, to the extent
permitted by applicable law, conclusively establish the
truth and accuracy of the matters stated (including, without
limit, as to the amounts of the principal of and interest on
the Indebtedness, the accrual and nonpayment of it and
advertisement and conduct of the sale); and all
prerequisites to the sale shall be presumed to have been
satisfied and performed. Upon any sale of any Collateral,
the receipt of the officer making the sale under judicial
proceedings or of Bank shall be sufficient discharge to the
purchase for the purchase money, and the purchaser shall not
be obligated to see to the application of the money. Any
sale of any Collateral under this Agreement shall be a
perpetual bar against Debtor with respect to that
Collateral.
4.3 Debtor shall, at the request of Bank, notify the account debtors
or obligors of Bank's security interest in the Collateral and
direct payment of it to Bank, Bank may, itself, upon the
occurrence and at any time during the continuance or existence of
any Event of Default, so notify and direct any account debtor or
obligor.
4.4 The proceeds of any sale or other disposition of Collateral
authorized by this Agreement shall be applied by Bank first upon
all expenses authorized by the Uniform Commercial Code and all
reasonable attorney fees and legal expenses incurred by Bank; the
balance of the proceeds of the sale or other disposition shall be
applied in the payment of the Indebtedness, first to interest,
then to principal, then to remaining Indebtedness and the
surplus, if any, shall be paid over to Debtor or to such other
person(s) as may be entitled to it under applicable law. Debtor
shall remain liable for any deficiency, which it shall pay to
Bank immediately upon demand.
4.5 Nothing in this Agreement is intended, nor shall it be construed,
to preclude Bank from pursuing any other remedy provided by law
for the collection of the Indebtedness or for the recovery of any
other sum to which Bank may be entitled for the breach of this
Agreement by Debtor. Nothing in this Agreement shall reduce or
release in any way any rights or security interests of Bank
contained in any existing agreement between Borrower, Debtor, or
any Guarantor and Bank.
4.6 No waiver of default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized officer
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of Bank. No waiver of any default or forbearance on the part of
Bank in enforcing any of its rights under this Agreement shall
operate as a waiver of any other default or of the same default
on a future occasion or of any rights.
4.7 Debtor irrevocably appoints Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful
attorney of Debtor (with full power of substitution) in the name,
place and stead of, and at the expense of, Debtor:
(a) to demand, receive, xxx for, and give receipts or
acquittances for any moneys due or to become due on any
Collateral and to endorse any item representing any payment
on or proceeds of the Collateral;
(b) to execute and file in the name of and on behalf of Debtor
all financing statements or other filings deemed necessary
or desirable by Bank to evidence, perfect, or continue the
security interests granted in this Agreement; and
(c) to do and perform any act on behalf of Debtor permitted or
required under this Agreement.
4.8 Upon the occurrence and at any time during the continuance or
existence of an Event of Default, Debtor also agrees, upon
request of Bank, to assemble the Collateral and make it available
to Bank at any place designated by Bank which is reasonably
convenient to Bank and Debtor.
5. MISCELLANEOUS.
5.1 Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or by
law shall be given to, or made upon, Debtor at the first address
indicated in Section 5.14 below.
5.2 Debtor will give Bank not less than ninety (90) days prior
written notice of all contemplated changes in Debtor's name,
chief executive office location, and/or location of any
Collateral, but the giving of this notice shall not cure any
Event of Default caused by this change.
5.3 Bank assumes no duty of performance or other responsibility under
any contracts contained within the Collateral.
5.4 Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the Indebtedness
and any related obligations, including, without limit, this
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Agreement. In connection with the above, but without limiting
its ability to make other disclosures to the full extent
allowable, Bank may disclose all documents and information which
Bank now or later has relating to Debtor, the Indebtedness or
this Agreement, however obtained. Debtor further agrees that
Bank may provide information relating to this Agreement or
relating to Debtor to the Bank's parent, affiliates,
subsidiaries, and service providers.
5.5 In addition to Bank's other rights, any indebtedness owing from
Bank to Debtor can be set off and applied by Bank on any
Indebtedness at any time (s) either before or after maturity or
demand without notice to anyone.
5.6 Debtor waives any right to require the Bank to: (a) proceed
against any person or property; (b) give notice of the terms,
time and place of any public or private sale of personal property
security held from any other person, or otherwise comply with the
provisions of Section 9-504 of the Uniform Commercial Code or
(c) pursue any other remedy in the Bank's power. Debtor waives
notice of acceptance of this Agreement and presentment, demand,
protest, notice of protest, dishonor, notice of dishonor, notice
of default, notice of intent to accelerate or demand payment of
any Indebtedness, any and all other notices to which the
undersigned might otherwise be entitled, and diligence in
collecting any Indebtedness, and agree(s) that the Bank may, once
or any number of times, modify the terms of any Indebtedness,
compromise, extend, increase, accelerate, renew or forbear to
enforce payment of any or all Indebtedness, or permit any other
person to incur additional Indebtedness, all without notice to
Debtor and without affecting in any manner the unconditional
obligation of Debtor under this Agreement. Debtor
unconditionally and irrevocably waives each and every defense and
setoff of any nature which, under principles of guaranty or
otherwise, would operate to impair or diminish in any way the
obligation of Debtor under this Agreement, and acknowledges that
such waiver is by this reference incorporated into each security
agreement, collateral assignment, pledge and/or other document
from Debtor now or later securing the Indebtedness, and
acknowledges that as of the date of this Agreement no such
defense or setoff exists.
5.7 Debtor waives any and all rights (whether by subrogation,
indemnity, reimbursement, or otherwise) to recover from Borrower
any amounts paid or the value of any Collateral given by Debtor
pursuant to this Agreement.
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5.8 In the event that applicable law shall obligate Bank to give
prior notice to Debtor of any action to be taken under this
Agreement, Debtor agrees that a written notice given to Debtor at
least five (5) days before the date of the act shall be
reasonable notice of the act and, specifically, reasonable
notification of the time and place of any public sale or of the
time after which any private sale, lease, or other disposition is
to be made, unless a shorter notice period is reasonable under
the circumstances. A notice shall be deemed to be given under
this Agreement when delivered to Debtor or when placed in an
envelope addressed to Debtor and deposited, with postage prepaid,
in a post office or official depository under the exclusive care
and custody of the Untied States Postal Service or delivered to
an overnight courier. The mailing shall be by overnight courier,
certified, or first class mail.
5.9 Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the
effectiveness of this Agreement shall automatically continue or
be reinstated, as the case may be, in the event that any payment
received or credit given by Bank in respect of the Indebtedness
is returned, disgorged, or rescinded under any applicable law,
including, without limitation, bankruptcy or insolvency laws, in
which case, this Agreement, shall be enforceable against Debtor
as if the returned, disgorged, or rescinded payment or credit had
not been received or given by Bank, and whether or not Bank
relied upon this payment or credit or changed its position as a
consequence of it. In the event of continuation or reinstatement
of this Agreement, Debtor agrees, upon demand by Bank, to execute
and deliver to Bank those documents which Bank determines are
appropriate to further evidence (in the public records or
otherwise) this continuation or reinstatement, although the
failure of Debtor to do so shall not affect in any way the
reinstatement or continuation.
5.10 This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and
assigns and to any other holder who derives from Bank title to or
an interest in the Indebtedness or any portion of it, and shall
bind Debtor and the heirs, legal representatives, successors, and
assigns of Debtor. Nothing in this Section 5.9 is deemed a
consent by Bank to any assignment by Debtor.
5.11 If there is more than one Debtor, all undertakings, warranties
and covenants made by Debtor and all rights, powers and
authorities given to or conferred upon Bank are made or given
jointly and severally.
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5.12 Except as otherwise provided in this Agreement, all terms in this
Agreement have the meanings assigned to them in Article 9 (or,
absent definition in Article 9, in any other Article) of the
Uniform Commercial Code. "Uniform Commercial Code" means Act
No. 174 of the Michigan Public Acts of 1962, as amended.
5.13 No single or partial exercise, or delay in the exercise, of any
right or power under this Agreement, shall preclude other or
further exercise of the rights and powers under this Agreement.
The unenforceability of any provision of this Agreement shall not
affect the enforceability of the remainder of this Agreement.
This Agreement constitutes the entire agreement of Debtor and
Bank with respect to the subject matter of this Agreement. No
amendment or modification of this Agreement shall be effective
unless the same shall be in writing and signed by Debtor and an
authorized officer of Bank. This Agreement shall be governed by
and construed in accordance with the internal laws of the State
of Michigan, without regard to conflict of laws principles.
5.14 To the extent that any of the Indebtedness is payable upon
demand, nothing contained in this Agreement shall modify the
terms and conditions of that Indebtedness nor shall anything
contained in this Agreement prevent Bank from making demand,
without notice and with or without reason, for immediate payment
of any or all of that Indebtedness at any time(s), whether or not
an Event of Default has occurred.
5.15 Debtor's chief executive office is located and shall be
maintained at 0000 X. 0xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. If
Collateral is located at other than the chief executive office,
such Collateral's location shall be made available upon the
Bank's request.
5.16 A carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement under the Uniform
Commercial Code and may be filed by Bank in any filing office.
5.17 This Agreement shall be terminated only by the filing of a
termination statement in accordance with the applicable
provisions of the Uniform Commercial Code, but the obligations
contained in Section 2.12 of this Agreement shall survive
termination.
6. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT
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WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING
THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT OR THE INDEBTEDNESS.
DEBTOR:
SPECIALIZED DATA SYSTEMS, INC.
By: /S/ XXXX X. XXXXXXXXX
SIGNATURE OF: Xxxx X. Xxxxxxxxx
Its: PRESIDENT
______________________________________
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