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EXHIBIT 10.6
SECURITY AGREEMENT
SECURITY AGREEMENT (the "Security Agreement"), dated as of October 28,
1999 between MAI SYSTEMS CORPORATION, a Delaware corporation ("Grantor"), and
CPI Securities LP, a California limited partnership, in its capacity as Agent
for Lenders.
WITNESSETH:
WHEREAS, pursuant to that certain Note Purchase Agreement dated as of
March 3, 1997, by and among Grantor, as issuer of the Notes, Agent and Lenders
(including all annexes, exhibits and schedules thereto, as from time to time
amended, restated, supplemented or otherwise modified, the "Note Purchase
Agreement"), Lenders have loaned certain sums to Grantor, as evidenced by the
Notes issued by Grantor;
WHEREAS, Grantor has requested that Lenders enter into that certain
Forbearance Agreement by and between Lenders and Grantor dated as of the date
hereof (as from time to time amended, restated, supplemented or otherwise
modified, the "Forbearance Agreement"), pursuant to which Lenders would agree
to forebear in collecting certain interest payments which are currently due and
payable by Grantor to Lenders;
WHEREAS, in order to induce Lenders to enter into the Forbearance
Agreement, Grantor has agreed to grant a continuing Lien on the Collateral (as
hereinafter defined) to secure the Obligations;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein or in Annex A hereto have the meanings given to them in the Note Purchase
Agreement. All other undefined terms contained in this Security Agreement,
unless the context indicates otherwise, have the meanings provided for by
Article 9 of the Code to the extent the same are used or defined therein.
2. GRANT OF LIEN.
a. To secure the prompt and complete payment, performance and
observance of all of the Obligations, Grantor hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to Agent, for itself and the
benefit of Lenders, a Lien upon all of its right, title and interest in, to and
under the following property, whether now owned by or owing to, or hereafter
acquired by or arising in favor of, Grantor (including under any trade names,
styles or derivations thereof), and whether owned or consigned by or to, or
leased from or to, Grantor, and regardless of where located (all of which being
hereinafter collectively referred to as
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the "Collateral"):
(i) all Accounts;
(ii) at Chattel Paper;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment;
(vi) all Fixtures;
(vii) all General Intangibles;
(viii) all goods;
(ix) all Instruments;
(x) all Inventory;
(xi) all Investment Property;
(xii) All Grantor Accounts;
(xiii) all money, cash or cash equivalents of Grantor;
and
(xiv) to the extent not otherwise included, all Proceeds
and products of the foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the foregoing.
b. In addition, to secure the prompt and complete payment, performance
and observance of the Obligations and in order to induce Agent and Lenders as
aforesaid, Grantor hereby grants to Agent, for itself and the benefit of
Lenders, a right of setoff against the property of Grantor held by Agent or any
Lender, consisting of property described above in Section 2(a) now or hereafter
in the possession or custody of or in transit to Agent or any Lender, for any
purpose, including safekeeping, collection or pledge, for the account of
Grantor, or as to which Grantor may have any right or power.
3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
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a. It is expressly agreed by Grantor that, anything herein to the
contrary notwithstanding, Grantor shall remain liable under each of its
Contracts and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Neither Agent nor any
Lender shall have any obligation or liability under any Contract or License by
reason of or arising out of this Security Agreement or the granting herein of a
Lien thereon or the receipt by Agent or any Lender of any payment relating to
any Contract or License pursuant hereto. Neither Agent nor any Lender shall be
required or obligated in any manner to perform or fulfill any of the obligations
of Grantor under or pursuant to any Contract or License, or to make any payment,
or to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any
Contract or License, or to present or file any claims, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
b. Subject to Coast's rights under the Coast Agreements, Agent may at
any time after a Default or Event of Default shall have occurred and be
continuing, without prior notice to Grantor, notify Account Debtors, parties to
the Contracts and obligors in respect of Instruments and Chattel Paper, that the
Accounts and the right, title and interest of Grantor in and under such
Contracts, Instruments and Chattel Paper have been assigned to Agent, and that
payments shall be made directly to Agent, for itself and the benefit of Lenders.
Upon the request of Agent, Grantor shall so notify Account Debtors, parties to
Contracts and obligors in respect of Instruments and Chattel Paper.
c. Agent may at any time in Agent's own name or in the name of Grantor
communicate with Account Debtors, parties to Contracts, obligors in respect of
Instruments and obligors in respect of Chattel Paper to verify with such
Persons, to Agent's satisfaction, the existence, amount and terms of any such
Accounts, Contracts, Instruments or Chattel Paper. If a Default or Event of
Default shall have occurred and be continuing, Grantor, at its own expense,
shall cause the independent certified public accountants then engaged by Grantor
to prepare and deliver to Agent and each Lender at any time and from time to
time promptly upon Agent's request the following reports with respect to
Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts;
(iii) trial balances; and (iv) a test verification of such Accounts as Agent may
request. Grantor, at its own expense, shall deliver to Agent the results of each
physical verification, if any, which Grantor may in its discretion have made, or
caused any other Person to have made on its behalf, of all or any portion of its
Inventory.
4. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
that:
a. Grantor is the sole owner of each item of the Collateral upon which
it purports to xxxxx x Xxxx hereunder, and has good and marketable title thereto
free and clear of
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any and all Liens other than the Coast Security Interest and Permitted
Encumbrances.
b. No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except such as
may have been filed (i) by Grantor in favor of Agent pursuant to this Security
Agreement or the other Loan Documents, (ii) by Coast pursuant to the Coast
Agreements, and (iii) in connection with any other Permitted Encumbrances.
c. This Security Agreement is effective to create a valid and
continuing Lien on and, upon the filing of the appropriate financing statements
listed on Schedule I hereto, a perfected Lien in favor of Agent, for itself and
the benefit of Lenders, on the Collateral with respect to which a Lien may be
perfected by filing pursuant to the Code. Such Lien is prior to all other Liens,
except the Coast Security Interest and Permitted Encumbrances that would be
prior to Liens in favor of Agent for the benefit of Agent and Lenders as a
matter of law, and is enforceable as such as against any and all creditors of
and purchasers from Grantor (other than purchasers of Inventory in the ordinary
course of business). All action by Grantor necessary or desirable to protect and
perfect such Lien on each item of the Collateral has been duly taken.
d. Schedule II hereto lists all Instruments and Chattel Paper of
Grantor. All action by Grantor necessary or desirable to protect and perfect the
Lien of Agent on each item set forth on Schedule II (including the delivery of
all originals thereof to Agent and the legending of all Chattel Paper as
required by Section 5(b) hereof) has been duly taken. The Lien of Agent, for the
benefit of Agent and Lenders, on the Collateral listed on Schedule II hereto is
prior to all other Liens, except the Coast Security Interest and Permitted
Encumbrances that would be prior to the Liens in favor of Agent as a matter of
law, and is enforceable as such against any and all creditors of and purchasers
from Grantor.
e. Grantor's chief executive office, principal place of business,
corporate offices, all warehouses and premises where Collateral is stored or
located, and the locations of all of its books and records concerning the
Collateral are set forth on Schedule III hereto.
f. With respect to the Accounts (i) they represent bona fide sales of
Inventory or rendering of services to Account Debtors in the ordinary course of
Grantor's business and are not evidenced by a judgment, Instrument or Chattel
Paper; (ii) there are no setoffs, claims or disputes existing or asserted with
respect thereto and Grantor has not made any agreement with any Account Debtor
for any extension of time for the payment thereof, any compromise or settlement
for less than the full amount thereof, any release of any Account Debtor from
liability therefor, or any deduction therefrom except a discount or allowance
allowed by Grantor in the ordinary course of its business and disclosed to
Agent; (iii) to Grantor's knowledge, there are no facts, events or occurrences
which in any way impair the validity or enforceability thereof or could
reasonably be expected to reduce the amount payable thereunder as shown on
Grantor's books and records and any invoices, and statements delivered to Agent
and Lenders with respect
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thereto; (iv) Grantor has not received any notice of proceedings or actions
which are threatened or pending against any Account Debtor which might result in
any adverse change in such Account Debtor's financial condition; and (v) Grantor
has no knowledge that any Account Debtor is unable generally to pay its debts as
they become due, except with respect to those accounts for which an allowance
for doubtful accounts has been established. Further with respect to the Accounts
(x) the amounts shown on all invoices, and statements which may be delivered to
the Agent with respect thereto are actually and absolutely owing to Grantor as
indicated thereon and are not in any way contingent; (y) no payments have been
or shall be made thereon except payments immediately delivered to the Grantor
Accounts or the Agent; and (z) to Grantor's knowledge, all Account Debtors have
the capacity to contract.
g. With respect to any Inventory, (i) such Inventory is located at one
of Grantor's locations set forth on Schedule III hereto, (ii) no Inventory is
now, or shall at any time or times hereafter be stored at any other location
without Agent's prior consent, and if Agent gives such consent, Grantor will
concurrently therewith obtain, bailee, landlord and mortgagee agreements, (iii)
Grantor has good, indefeasible and merchantable title to such Inventory and such
Inventory is not subject to any Lien or security interest or document whatsoever
except for the Lien granted to Agent, for the benefit of Agent and Lenders, and
except for Permitted Encumbrances and the Coast Security Interest, (iv) such
Inventory is of good and merchantable quality, free from any defects, (v) such
Inventory is not subject to any licensing, patent, royalty, trademark, trade
name or copyright agreements with any third parties which would require any
consent of any third party upon sale or disposition of that Inventory or the
payment of any monies to any third party as a precondition of such sale or other
disposition, and (vi) the completion of manufacture, sale or other disposition
of such Inventory by Agent following an Event of Default shall not require the
consent of any Person and shall not constitute a breach or default under any
contract or agreement to which Grantor is a party or to which such property is
subject.
h. Grantor does not have any interest in, or title to, any Patent,
Trademark or Copyright except as set forth in Schedule IV hereto. This Security
Agreement is effective to create a valid and continuing Lien on and, upon filing
of the Copyright Security Agreements with the United States Copyright Office and
filing of the Patent Security Agreements and the Trademark Security Agreements
with the United States Patent and Trademark Office, perfected Liens in favor of
Agent on Grantor's Patents, Trademarks and Copyrights and such perfected Liens
are enforceable as such as against any and all creditors of and purchasers from
Grantor, and such Liens shall be senior to all other Liens (other than the Coast
Security Interest). Upon filing of the Copyright Security Agreements with the
United States Copyright Office and filing of the Patent Security Agreements and
the Trademark Security Agreements with the United States Patent and Trademark
Office and the filing of appropriate financing statements listed on Schedule I
hereto, all action necessary or desirable to protect and perfect Agent's Lien on
Grantor's Patents, Trademarks or Copyrights shall have been duly taken.
i. Grantor does not have any interest in, or title to, any Real Estate
except as set forth in Schedule V hereto.
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j. The Collateral constitutes substantially all of Grantor's real
property, personal property, intellectual property, and other property.
5. COVENANTS. Grantor covenants and agrees with Agent, for the benefit
of Agent and Lenders, that from and after the date of this Security Agreement
and until the Termination Date:
a. Further Assurances; Pledge of Instruments. At any time and from time
to time, upon the written request of Agent and at the sole expense of Grantor,
Grantor shall promptly and duly execute and deliver any and all such further
instruments and documents and take such further actions as Agent may deem
desirable to obtain the full benefits of this Security Agreement and of the
rights and powers herein granted, including (i) using its best efforts to secure
all consents and approvals necessary or appropriate for the assignment to or for
the benefit of Agent of any License or Contract held by Grantor or in which
Grantor has any rights not heretofore assigned, (ii) filing any financing or
continuation statements under the Code with respect to the Liens granted
hereunder or under any other Loan Document, (iii) transferring Collateral to
Agent's possession (for the benefit of Agent and Lenders) if such Collateral
consists of Chattel Paper, Instruments or if a Lien on such Collateral can be
perfected only by possession, or if requested by Agent, and (iv) obtaining, or
using its best efforts to obtain, waivers of Liens, if any exist, from landlords
and mortgagees. Grantor also hereby authorizes Agent, for the benefit of Agent
and Lenders, to file any such financing or continuation statements without the
signature of Grantor to the extent permitted by applicable law. If any amount
payable under or in connection with any of the Collateral is or shall become
evidenced by any Instrument, such Instrument, other than checks and notes
received in the ordinary course of business, shall be duly endorsed in a manner
satisfactory to Agent immediately upon Grantor's receipt thereof.
b. Maintenance of Records. Grantor shall keep and maintain, at its own
cost and expense, satisfactory and complete records of the Collateral, including
a record of any and all payments received and any and all credits granted with
respect to the Collateral and all other dealings with the Collateral. Grantor
shall xxxx its books and records pertaining to the Collateral to evidence this
Security Agreement and the Liens granted hereby. All Chattel Paper shall be
marked with the following legend: "This writing and the obligations evidenced
or secured hereby are subject to the security interest of CPI Securities LP, as
Agent, for the benefit of Agent and certain Lenders."
c. Covenants Regarding Patent, Trademark and Copyright Collateral.
(i) Grantor shall notify Agent immediately if it knows or has
reason to know that any application or registration relating to any
Patent, Trademark or Copyright (now or hereafter existing) may become
abandoned or dedicated, or of any adverse determination or development
(including the institution of, or any such determination or
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development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court)
regarding Grantor's ownership of any Patent, Trademark or Copyright,
its right to register the same, or to keep and maintain the same.
(ii) In no event shall Grantor, either directly or through any
agent, employee, licensee or designee, file an application for the
registration of any Patent, Trademark or Copyright with the United
States Patent and Trademark Office, the United States Copyright Office
or any similar office or agency without giving Agent prior written
notice thereof, and, upon request of Agent, Grantor shall execute and
deliver any and all Patent Security Agreements, Copyright Security
Agreements or Trademark Security Agreements as Agent may request to
evidence Agent's Lien on such Patent, Trademark or Copyright, and the
General Intangibles of Grantor relating thereto or represented thereby.
(iii) Grantor shall take all actions necessary or requested by
Agent to maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of the Patents,
Trademarks and Copyrights (now or hereafter existing), including the
filing of applications for renewal affidavits of use, affidavits of
noncontestability and opposition and interference and cancellation
proceedings.
(iv) In the event that any of the Patent, Trademark or
Copyright Collateral is infringed upon, or misappropriated or diluted
by a third party, Grantor shall notify Agent promptly after Grantor
learns thereof. Grantor shall, unless it shall reasonably determine
that such Patent, Trademark or Copyright Collateral is in no way
material to the conduct of its business or operations, promptly xxx for
infringement, misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation or dilution, and shall
take such other actions as Agent shall deem appropriate under the
circumstances to protect such Patent, Trademark or Copyright
Collateral.
d. Indemnification. In any suit, proceeding or action brought by Agent
or any Lender relating to any Account, Chattel Paper, Contract, Document,
General Intangible, Instrument or Investment Property for any sum owing
thereunder or to enforce any provision of any Account, Chattel Paper, Contract,
Document, General Intangible, Instrument or Investment Property, Grantor will
save, indemnify and keep Agent and Lenders harmless from and against all expense
(including actual attorneys' fees and expenses), loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the obligor thereunder, arising out of a breach by
Grantor of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to, or in favor of, such obligor or
its successors from Grantor, except in the case of Agent or any Lender, to the
extent such expense, loss, or damage is attributable solely to the gross
negligence or willful misconduct of Agent or such Lender as finally determined
by a court of competent jurisdiction. All such obligations of
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Grantor shall be and remain enforceable against and only against Grantor and
shall not be enforceable against Agent or any Lender.
e. Compliance with Terms of Accounts, etc. In all material respects,
Grantor will perform and comply with all obligations in respect of its Accounts,
Chattel Paper, Contracts and Licenses and all other agreements to which it is a
party or by which it is bound relating to the Collateral.
f. Limitation on Liens on Collateral. Grantor will not create, permit
or suffer to exist, and will defend the Collateral against, and take such other
action as is necessary to remove, any Lien on the Collateral except Permitted
Encumbrances and the Coast Security Interest, and will defend the right, title
and interest of Agent and Lenders in and to any of Grantor's rights under the
Collateral against the claims and demands of all Persons whomsoever.
g. Limitations on Disposition. Grantor will not sell, lease, transfer
or otherwise dispose of any of the Collateral, or attempt or contract to do so
except in the ordinary course of Grantor's business.
h. Further Identification of Collateral. Grantor will, if so requested
by Agent, furnish to Agent, as often as Agent requests, statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as Agent may reasonably request, all in such
detail as Agent may specify.
i. Notices. Grantor will advise Agent promptly, in reasonable detail,
(i) of any Lien (other than Permitted Encumbrances and the Coast Security
Interest) or claim made or asserted against any of the Collateral, and (ii) of
the occurrence of any other event which would have a material adverse effect on
the aggregate value of the Collateral or on the Liens created hereunder or under
any other Loan Document.
j. Insurance. Grantor shall deliver to Agent, in form and substance
satisfactory to Agent, endorsements to (i) all "All Risk" and business
interruption insurance naming Agent, on behalf of itself and Lenders, as loss
payee, and (ii) all general liability and other liability policies naming Agent,
on behalf of itself and Lenders, as additional insured. Grantor irrevocably
makes, constitutes and appoints Agent (and all officers, employees or agents
designated by Agent), so long as any Default or Event of Default shall have
occurred and be continuing, as Grantor's true and lawful agent and
attorney-in-fact for the purpose of making, settling and adjusting claims under
such "All Risk" policies of insurance, endorsing the name of Grantor on any
check or other item of payment for the proceeds of such "All Risk" policies of
insurance and for making all determinations and decisions with respect to such
"All Risk" policies of insurance. Agent shall have no duty to exercise any
rights or powers granted to it pursuant to the foregoing power-of-attorney.
Grantor shall promptly notify Agent of any loss, damage, or destruction to the
Collateral in the amount of $100,000 or more, whether or not covered by
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insurance.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. On the Closing Date,
Grantor shall execute and deliver to Agent a power of attorney (the "Power of
Attorney") substantially in the form attached hereto as Exhibit A. The power of
attorney granted pursuant to the Power of Attorney is a power coupled with an
interest and shall be irrevocable until the Termination Date. The powers
conferred on Agent, for the benefit of Agent and Lenders, under the Power of
Attorney are solely to protect Agent's interests (for the benefit of Agent and
Lenders) in the Collateral and shall not impose any duty upon Agent or any
Lender to exercise any such powers. Agent agrees that (a) it shall not exercise
any power or authority granted under the Power of Attorney unless an Event of
Default has occurred and is continuing, and (b) Agent shall account for any
moneys received by Agent in respect of any foreclosure on or disposition of
Collateral pursuant to the Power of Attorney provided that none of Agent nor any
Lender shall have any duty as to any Collateral, and Agent and Lenders shall be
accountable only for amounts they actually receive as a result of the exercise
of such powers. NONE OF AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO GRANTOR
FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT
IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION,
NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.
7. REMEDIES; RIGHTS UPON DEFAULT.
a. In addition to all other rights and remedies granted to it under
this Security Agreement, the Note Purchase Agreement, the other Loan Documents
and under any other instrument or agreement securing, evidencing or relating to
any of the Obligations, if any Event of Default shall have occurred and be
continuing, subject to Coast's rights under the Coast Agreements and subject to
the applicable provisions of the Note Purchase Agreement, if any, Agent may
exercise all rights and remedies of a secured party under the Code. Without
limiting the generality of the foregoing, Grantor expressly agrees that in any
such event Agent, without demand of performance or other demand, advertisement
or notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon Grantor or any other Person (all and each of
which demands, advertisements and notices are hereby expressly waived to the
maximum extent permitted by the Code and other applicable law), may forthwith
enter upon the premises of Grantor where any Collateral is located through
self-help, without judicial process, without first obtaining a final judgment or
giving Grantor or any other Person notice and opportunity for a hearing on
Agent's claim or action and may collect, receive, assemble, process, appropriate
and realize upon the Collateral, or any part thereof, and may forthwith sell,
lease, assign, give an option or options to purchase, or sell or otherwise
dispose of and deliver said Collateral (or contract to do so), or any part
thereof, in one or more parcels at a public or private
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sale or sales, at any exchange at such prices as it may deem acceptable, for
cash or on credit or for future delivery without assumption of any credit risk.
Agent or any Lender shall have the right upon any such public sale or sales and,
to the extent permitted by law, upon any such private sale or sales, to purchase
for the benefit of Agent and Lenders, the whole or any part of said Collateral
so sold, free of any right or equity of redemption, which equity of redemption
Grantor hereby releases. Such sales may be adjourned and continued from time to
time with or without notice. Agent shall have the right to conduct such sales on
Grantor's premises or elsewhere and shall have the right to use Grantor's
premises without charge for such time or times as Agent deems necessary or
advisable. Grantor further agrees, at Agent's request, to assemble the
Collateral and make it available to Agent at places which Agent shall select,
whether at Grantor's premises or elsewhere. Until Agent is able to effect a
sale, lease, or other disposition of Collateral, Agent shall have the right to
hold or use Collateral, or any part thereof, to the extent that it deems
appropriate for the purpose of preserving Collateral or its value or for any
other purpose deemed appropriate by Agent. Agent shall have no obligation to
Grantor to maintain or preserve the rights of Grantor as against third parties
with respect to Collateral while Collateral is in the possession of Agent. Agent
may, if it so elects, seek the appointment of a receiver or keeper to take
possession of Collateral and to enforce any of Agent's remedies (for the benefit
of Agent and Lenders), with respect to such appointment without prior notice or
hearing as to such appointment. Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale to the
Obligations, and only after so paying over such net proceeds, and after the
payment by Agent of any other amount required by any provision of law, need
Agent account for the surplus, if any, to Grantor. To the maximum extent
permitted by applicable law, Grantor waives all claims, damages, and demands
against Agent or any Lender arising out of the repossession, retention or sale
of the Collateral except such as arise solely out of the gross negligence or
willful misconduct of Agent or such Lender as finally determined by a court of
competent jurisdiction. Grantor agrees that ten (10) days prior notice by Agent
of the time and place of any public sale or of the time after which a private
sale may take place is reasonable notification of such matters. Grantor shall
remain liable for any deficiency if the proceeds of any sale or disposition of
the Collateral are insufficient to pay all Obligations, including any attorneys'
fees or other expenses incurred by Agent or any Lender to collect such
deficiency.
b. Except as otherwise specifically provided herein, Grantor hereby
waives presentment, demand, protest or any notice (to the maximum extent
permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY. For the purpose of
enabling Agent to exercise rights and remedies under Section 7 hereof
(including, without limiting the terms of Section 7 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for
sale, sell or otherwise dispose of Collateral) at such time as Agent shall be
lawfully entitled to exercise such rights and remedies, Grantor hereby grants to
Agent, for the benefit of Agent and Lenders, an irrevocable, non-exclusive
license
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(exercisable without payment of royalty or other compensation to Grantor) to
use, license or sublicense any Intellectual Property now owned or hereafter
acquired by Grantor, and wherever the same may be located, and including in such
license access to all media in which any of the licensed items may be recorded
or stored and to all computer software and programs used for the compilation or
printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL.
Agent and each Lender shall use reasonable care with respect to the Collateral
in its possession or under its control. Neither Agent nor any Lender shall have
any other duty as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of Agent or such Lender, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against Grantor for liquidation or reorganization, should Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Obligations,
whether as a "voidable preference," "fraudulent conveyance," or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
11. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give and
serve upon any other party any communication with respect to this Security
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be given in the manner, and
deemed received, as provided for in the Note Purchase Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Security
Agreement. This Security Agreement is to be read, construed and applied together
with the Note Purchase Agreement and the other Loan Documents which, taken
together, set forth the complete understanding and agreement of Agent, Lenders
and Grantor with respect to the matters referred
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to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither Agent nor any Lender shall
by any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies hereunder, and no waiver shall be valid unless in writing,
signed by Agent and then only to the extent therein set forth. A waiver by Agent
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Agent would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Agent or any Lender, any right, power or privilege hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Security Agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by Agent and
Grantor.
14. LIMITATION BY LAW. All rights, remedies and powers provided in this
security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they shall not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
15. TERMINATION OF THIS SECURITY AGREEMENT. Subject to Section 10
hereof, this Security Agreement shall terminate upon the Termination Date.
16. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations
of Grantor hereunder shall be binding upon the successors and assigns of Grantor
(including any debtor-in-possession on behalf of Grantor) and shall, together
with the rights and remedies of Agent, for the benefit of Agent and Lenders,
hereunder, inure to the benefit of Agent and Lenders, all future holders of any
instrument evidencing any of the Obligations and their respective successors and
assigns. No sales of participations, other sales, assignments, transfers or
other dispositions of any agreement governing or instrument evidencing the
Obligations or any portion thereof or interest therein shall in any manner
affect the Lien granted to Agent, for the benefit of Agent and Lenders,
hereunder. Grantor may not assign, sell, hypothecate or otherwise transfer any
interest in or obligation under this Security Agreement without the prior
written consent of Agent.
17. COUNTERPARTS. This Security Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one and the same agreement.
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18. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS SECURITY AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. GRANTOR HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN LOS ANGELES
COUNTY, CALIFORNIA SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN GRANTOR, AGENT AND LENDERS PERTAINING TO THIS
SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING
OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, PROVIDED, THAT AGENT, LENDERS AND GRANTOR ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF LOS
ANGELES COUNTY, CALIFORNIA, AND, PROVIDED, FURTHER, NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT. GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND GRANTOR
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO GRANTOR AT THE ADDRESS SET FORTH IN THE NOTE PURCHASE
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
19. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES
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ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, LENDERS, AND
GRANTOR ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED IN CONNECTION WITH, THIS SECURITY AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.
20. SECTION TITLES. The Section titles contained in this Security
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Security Agreement. In the event
an ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other
party hereto that it has discussed this Security Agreement and, specifically,
the provisions of Section 18 and Section 19, with its counsel.
23. BENEFIT OF LENDERS. All Liens granted or contemplated hereby shall
be for the benefit of Agent and Lenders, and all proceeds or payments realized
from Collateral in accordance herewith shall be applied to the Obligations in
accordance with the terms of the Note Purchase Agreement.
24. INTERCREDITOR AGREEMENT. This Security Agreement is subject to the
Intercreditor Agreement. All enforcement, lien and other rights of Agent and
Lenders hereunder are subject to the terms of the Intercreditor Agreement and
may not be exercised unless permitted thereunder. In addition, notwithstanding
any other section of this Agreement to the contrary, if Coast shall have
consented to a sale of Collateral by Grantor which sale would, in the absence of
this provision, constitute a breach hereunder, such sale shall not constitute a
breach of this Agreement provided that the sale of Collateral meets all of the
following conditions: (i) Grantor shall have provided Agent with five (5)
business days' prior written notice declaring its intention to sell Collateral
and describing briefly the terms of the proposed sale and offering Agent the
opportunity to purchase such Collateral, (ii) Grantor effects such Collateral
sale in a commercially reasonable manner and receives consideration in
connection with such sale at least equal to the fair market value of the
Collateral sold (as determined in good faith by Grantor's
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board of directors or a committee thereof) payable in cash, provided, however,
that if the consideration to be received by Grantor includes sufficient cash to
fully repay all of Grantor's obligations under the Coast Agreements, and,
additionally, other property, Agent shall act reasonably in granting its consent
to such sale, (iii) upon consummation of the sale of Collateral, Grantor shall
promptly apply all of the proceeds of such sale (net of applicable taxes and
reasonable expenses and fees incurred in connection with such Collateral sale)
to prepay the indebtedness under the Coast Agreements in such a manner as to
effect a permanent reduction in the borrowing availability under the Coast
Agreements until Coast is paid in full and Coast's commitment is terminated, and
(iv) Grantor, promptly after consummating the sale of Collateral and reducing
its indebtedness under the Coast Agreements (pursuant to the previous subsection
of this Section 24), shall provide Agent with an officer's certificate detailing
the Collateral sold, the consideration received in exchange for such Collateral,
and the prepayment of Grantor's indebtedness under the Coast Agreements and
declaring that the borrowing availability under the Coast Agreements has been
reduced permanently by the amount of such prepayment.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
MAI SYSTEMS CORPORATION
By: /s/ Xxxxxxx Xxxxx Xxxxxxxx
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Title: CEO / CFO
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CPI SECURITIES LP,
as Agent
By:
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Title:
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