SECURITY AGREEMENT
Adaytum Software, Inc. a Delaware Company
whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
in the County of Hennepin, State of Minnesota, (herein called "Debtor" whether
one or more) does hereby grant unto Data Sales Co., Inc. (herein called "Secured
Party"), a security interest in the following described property (herein called
"Collateral"). All terms for which definitions are provided in the Uniform
Commercial Code are used herein with such meanings: (Check and complete where
applicable).
9 (a) Furniture and Office Equipment identified in Exhibit "A" as an
attachment to the Promissory Note described herein below.
9 (b) All proceeds and products of the foregoing.
to secure prompt payment and performance of all obligations to Secured Party
arising from that certain promissory note dated March 20, 2000 executed by
Debtor to Secured Party, with interest, if any, as provided therein, and any and
all extensions and renewals thereof, past or future advances together with all
other liabilities of Debtor to Secured Party (primary, secondary, direct,
contingent, sole, joint, or several) due or to become due and the performance by
Debtor of all of the terms and conditions of this agreement (hereinafter
referred to as "Obligations").
DEBTOR WARRANTS, REPRESENTS AND AGREES THAT:
1. TITLE. Debtor is the owner of the Collateral, free of all liens,
encumbrances and security interests except the security interest
created hereby and has authority to execute this agreement.
2. LOCATION OF COLLATERAL. Debtor's equipment, furniture, inventory,
books, records, contract rights and other property above specified
relating to the Collateral are or will be kept at the above address
unless a different address is shown on the following space (same as
above) and Debtor will not without the prior written consent of Secured
Party remove or permit the Collateral or related items to be removed
from the location or locations set forth above.
3. DEFAULTS. Debtor shall be in default under this Agreement upon the
happening of any of the following events: (a) nonpayment, when due, of
any amount payable on any of the Obligations or failure to observe or
perform any term hereof and secured party has given debtor written
notice, and debtor does not cure in ten (10) days; (b) any covenant,
warranty or representation shall prove to be untrue in any material
respect; (c) dissolution, merger or consolidation, or transfer of a
substantial part of the property of Debtor which is a corporation or a
partnership.
4. REMEDIES. In the event of a default: (a) Secured Party shall have the
right, at its option and without demand or notice, to declare all or
any part of the Obligations immediately due and payable; (b) Secured
Party may exercise, in addition to the rights and remedies granted
hereby, all of the rights and remedies of a Secured Party under the
Uniform Commercial Code as adopted in Minnesota or under any other
applicable law; (c) Secured Party may exercise its rights to possess,
transfer and dispose of the Collateral; (d) Secured Party may request
and Debtor agrees to segregate and keep the Collateral in good order
and repair; and (e) Debtor agrees to pay all reasonable costs and
reasonable expenses incurred by Secured Party in the collection of any
of the Obligations or the enforcement of any of Secured Party's rights
including the payment of reasonable attorneys' fees.
5. INSURANCE. Debtor agrees to maintain comprehensive insurance coverage
(collision and liability) on the Collateral for its full insurable
value with a company acceptable to Secured Party naming Secured Party
as a Lender loss-payee or mortgagee and containing standard Lenders
loss payable and termination provisions. Debtor shall provided Secured
Party with a Certificate of Insurance evidencing such coverage.
6. NEGATIVE COVENANTS. Debtor will not at any time (without Secured
party's prior written consent, which consent will not be reasonably
withheld); (a) other than in the ordinary course of its business, sell,
lease, or otherwise dispose of or transfer any of its assets; (b) rent,
lease, demonstrate, consign, or use any Collateral financed by Secured
Party; or (c) merge or consolidate with another entity.
7. INSPECTIONS. Debtor grants a Secured Party an irrevocable license to
enter Debtor's business location during normal business hours upon
giving reasonable notice to Debtor to: (a) account for and inspect all
Collateral; (b) verify Debtor's compliance with this Agreement; and (c)
examine Debtor's books and records relating to the Collateral.
8. SALE OF COLLATERAL. Debtor agrees that seven (7) or more calendar days
prior written notice will be commercially reasonable notice of any
public or private sale. Debtor irrevocably grants Secured Party a
license to enter upon Debtor's premises without notice or judicial
order to take possession of the Collateral. The Secured Party may
require Debtor and Debtor agrees that it will, at its expense and upon
request of the Secured Party assemble all or part of the Collateral as
directed by Secured Party and make it available to the Secured Party at
the above address. The Secured Party is granted a license or other
right to use, without charge, all of the Debtor's property, including,
without limitation, all of the Debtor's labels, trademarks, copyrights,
patents and advertising matter or any property of a similar nature, as
it pertains to the Collateral, in completing production of advertising
for sale and selling any Collateral, and Debtor's rights under all
licenses and all franchise agreements shall inure to the Secured
Party's benefit until the obligations are paid in full.
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9. POWER OF ATTORNEY. Debtor grants Secured Party an irrevocable Power of
Attorney to: execute or endorse on Debtor's behalf any checks,
Financing Statements, Instruments, Certificates of Title, and
Statements of Origin pertaining to the Collateral; supply any omitted
information and correct errors in any documents between Secured Party
and Debtor; initiate and settle any insurance claims pertaining to the
Collateral; and do anything to preserve and protect the Collateral and
Secured Party's rights and interests therein.
10. COSTS AND EXPENSES. The Debtor will pay or reimburse the Secured Party
on demand for all reasonable out-of-pocket expenses (including in each
case all filings, recording fees, taxes and all reasonable fees and
expenses of counsel and of any experts and agents) incurred by Secured
Party in connection with the creation, perfection, protection,
satisfaction, foreclosure of the Collateral and the preparation,
administration, continuance, amendment or enforcement of this
Agreement, and all such costs and expenses shall be part of the
obligations secured by the Collateral.
11. INDEMNITY. The Debtor shall indemnify and hold the Secured Party
harmless from and against any and all claims, losses and liabilities
(including reasonable attorneys' fees) arising out of or resulting from
this Agreement and the security interest created hereby, except claims,
losses or liabilities resulting from the Secured Party's gross
negligence or willful misconduct as determined by a final judgment of a
Court of competent jurisdiction. Any liability of the Debtor to
indemnify and hold the Secured Party harmless pursuant to the
proceeding sentence shall be part of the obligations secured by this
Agreement and survive any termination of this Agreement.
12. MISCELLANEOUS. If Debtor and Secured Party have executed other
Agreements in connection with all or any part of the Collateral, this
Agreement shall supplement each and every other Agreement previously
executed by and between Debtor and Secured Party and in that event this
Agreement shall neither be deemed a novation nor a termination of such
previously executed Agreement, nor shall execution of this Agreement be
deemed a satisfaction of any obligation secured by such previously
executed Agreement. Secured Party shall have the right to refrain from
or postpone enforcement of this Agreement or any other Agreement
between Debtor and Secured Party without prejudice and the failure to
strictly enforce these terms will not be construed as having created a
course of dealing between the parties contrary to the specific terms of
this Agreement. The expressed terms of this Agreement may not be
modified by any course of dealing, usage of trade, custom of trade
which may deviate from the terms herein.
13. WAIVER OF NOTICE AND HEARING. The Debtor hereby waives all rights to a
judicial hearing of any kind prior to the exercise by the Secured Party
of its rights to possession of the Collateral without judicial process
or of its rights to replevin, attach or
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levy upon the Collateral without prior notice or hearing. In the event
that a pre-judgment order for replevin is obtained, Debtor waives any
requirement of Secured Party to post bond.
14. WAIVER OF JURY TRIAL. DEBTOR HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15. NO WAIVER. Cumulative Remedies. No failure delay on the part of the
Secured Party to exercise, right, or remedy under this Agreement shall
operate as a Waiver thereof; Nor shall any single or partial exercise
of any right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy under this
Agreement. The remedies provided for in this Agreement are cumulative
and not exclusive of any remedies provided by law.
16. LAW GOVERNING AND CONSTRUCTION. The validity, construction and
enforceability of this Agreement shall be governed by the laws of the
State of Minnesota, without giving affect to conflict of laws,
principles thereof, except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder,
in respect of any particular Collateral by statute must be governed by
the laws of a jurisdiction other than the State of Minnesota.
Dated: March 30, 2000
Adaytum Software, Inc.
Signed Name: /s/ Xxxxxxx X. Xxxx
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Printed Name: Xxxxxxx X. Xxxx
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Title: VP-Finance & Admin
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