Security Agreement
(All Assets)
As of August 3, 1999, for value received, the undersigned ("Debtor") grants to
Comerica Bank ("Bank"), a Michigan banking corporation, 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 ("Indebtedness") to the Bank of Debtor. Indebtedness
includes without limit any and all obligations or liabilities of the Debtor to
the Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown; any
and all obligations or liabilities for which the 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) 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
(e) 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 during
Debtor's business hours, except upon the occurrence of an Event of
Default that is continuing. Debtor shall, at the request of Bank, xxxx
its records and the Collateral to clearly indicate the security
interest 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 Permitted Liens as
defined in the Credit Agreement between Bank and Debtor of even date
herewith (the "Credit Agreement"); 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 and Permitted Liens as defined in the Credit Agreement. 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 or otherwise permitted under the Credit Agreement, and will
not return any Inventory to its supplier except in the ordinary course
of its business. 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 other
than Permitted Liens as defined in the Credit Agreement. 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 (other than Eligible Accounts Receivable and Eligible Inventory
as defined in the Credit Agreement) 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 with
proper reserves thereof maintained in accordance with generally
accepted accounting principles. 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, containing 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.
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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 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 Receivable. In the
event of an Event of Default or if such modification, compromise or
substitution would have a Material Adverse Effect (as defined in the
Credit Agreement), 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 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 Upon the occurrence and continuance of an Event of Default, 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 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.
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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
subsequent to the date of delivery.
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 other than those acts caused by
Bank's own gross negligence or willful and wanton misconduct.
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 upon the occurrence of an Event of Default 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.
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
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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.
4. DEFAULTS, ENFORCEMENT AND APPLICATION OF PROCEEDS.
4.1 Upon the occurrence of any of the following events (each an "Event of
Default"), Debtor shall be in 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 any default in an obligation described in Section
6.1 or 6.2 of the Credit Agreement between Debtor and Bank of
even date herewith (the "Credit Agreement"), and such failure or
default shall continue for a period in excess of three (3)
business days after notice by Bank to Debtor; or
(b) Any failure to perform in the time and manner required any of
Debtor's obligations or covenants under, or failure to comply
with any of the provisions of, this Agreement, the Credit
Agreement or any other agreement or commitment between Debtor and
Bank, and in the case of a failure to perform obligations other
than those described in Section 6.3 or Sections 7.1 through 7.9
of the Credit Agreement, such failure shall continue for a period
in excess of thirty (30) days after the earlier of Bank's notice
to Debtor or the date Debtor actually becomes aware thereof; or
(c) Any warranty or representation in connection with or contained in
this Agreement, the Credit Agreement or any other Loan Document
(as defined in the Credit Agreement), financial statement, or
other information made, given or furnished to Bank by or on
behalf of Debtor shall be, or shall prove to have been, false or
materially misleading when made, given, or furnished; or
(d) Any default in the payment when due of any of Debtor's borrowed
money indebtedness (other than to the Bank) in amounts in excess
of Two Hundred Fifty Thousand Dollars ($250,000) or in the
observance or performance of any term, covenant or condition in
any agreement or instrument evidencing, securing or relating to
such indebtedness, and such default be continued for a period
sufficient to permit acceleration of the indebtedness,
irrespective of whether any such default shall be forgiven or
waived or there has been acceleration by the holder thereof; or
(e) One or more judgments or decrees shall be rendered against Debtor
involving an aggregate liability of Two Hundred Fifty Thousand
Dollars ($250,000) or more, which has or have
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become non-appealable and shall remain undischarged, unsatisfied
by insurance and unstayed for more than thirty (30) days, whether
or not consecutive, or if a writ of attachment or garnishment
against the property of the Debtor shall be issued and levied in
an action claiming Two Hundred Fifty Thousand Dollars ($250,000)
or more and not released or appealed and bonded in an amount and
manner satisfactory to the Bank within thirty (30) days after
such issuance and levy; or
(f) Debtor voluntarily suspends transaction of its business, or if
Debtor shall not pay its debts as they mature or shall make a
general assignment for the benefit of creditors, or proceedings
in bankruptcy, or for reorganization or liquidation of the Debtor
under the Bankruptcy Code or under any other state, federal or
applicable law for the relief of debtors shall be commenced by
Debtor, or shall be commenced against Debtor and shall not be
discharged within sixty (60) days of commencement, or a receiver,
trustee or custodian shall be appointed for the Debtor or for any
substantial portion of its properties or assets; or
(g) A majority of the persons serving on the board of directors of
Debtor as of the date of this Agreement shall cease to serve on
such board of directors and Bank considers (in its reasonable
discretion) such change to affect materially and adversely the
prospects of Debtor; or
(h) Any failure to meet Debtor's minimum funding requirements under
ERISA with respect to any employee benefit plan established or
maintained by it, or if any such plan shall be subject of
termination proceedings (whether voluntary or involuntary) and
there shall result from such termination proceedings a liability
of Debtor to the PBGC which in the opinion of the Bank will have
a materially adverse effect upon the operations, business,
property, assets, financial condition or credit of the Debtor; or
(i) There shall occur, with respect to any pension plan maintained by
the Debtor any reportable event (within the meaning of Section
4043(b) of ERISA) which the Bank shall determine constitutes a
ground for the termination of any such plan, and if such event
continues for thirty (30) days after the Bank gives written
notice to the Debtor, provided that termination of such plan or
appointment of such trustee would, in the opinion of the Bank,
have a materially adverse effect upon the operations, business,
property, assets, financial condition or credit of the Debtor, as
the case may be; or
(j) Debtor repudiates, contests, revokes or purports to revoke any of
its obligations to Bank, or any rights or remedies of Bank, under
Loan Documents (as defined in the Credit Agreement) to which it
is a party.
4.2 Upon the occurrence 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;
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(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, provided, however, that the foregoing be conducted
in accordance with applicable law; 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 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 purchaser 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. Upon the
occurrence of an Event of Default, Debtor shall direct the account
debtors and obligors to tender payment directly to Bank. Bank may,
itself, upon the occurrence 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 Debtor or any Guarantor and Bank.
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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 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, upon the occurrence of an
Event of Default:
(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 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 30 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 Agreement
("Transfer"), to an Eligible Transferee (as defined below); provided,
however, upon an Event of Default, Bank may make such Transfer to any
person or company. 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.
"Eligible Transferee" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof; (b) a commercial
bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development or a
political subdivision of any such country, provided that such bank is
acting through a branch or agency located in the United States; (c)
finance company, insurance company, factoring company or other
financial institution or fund that is engaged in making, purchasing or
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otherwise investing in commercial loans in the ordinary course of its
business; (d) any Affiliate (as defined in the Agreement) of Bank; or
(e) any other person or company approved by Bank and Debtor.
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, the enforceability of which is
subject to applicable law; or (c) pursue any other remedy in the
Bank's power, other than as required by the Uniform Commercial Code.
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 agrees that the Bank may, once or any number of
times, extend, accelerate, renew or forbear to enforce payment of any
or all Indebtedness, all without notice to Debtor and without
affecting in any manner the unconditional obligation of Debtor under
this Agreement.
5.7 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 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 United States Postal Service or delivered to an
overnight courier. The mailing shall be by overnight courier,
certified, or first class mail.
5.8 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 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.
5.9 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.
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5.10 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.
5.11 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.
5.12 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.
5.13 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.
5.14 Debtor's chief executive office is located and shall be maintained at
0000 Xxxxxxx Xxxxxx
----------------------------------------------------------------------
XXXXXX XXXXXXX
Xxxxx Xxx XX 00000
----------------------------------------------------------------------
CITY STATE ZIP CODE COUNTY
If Collateral is located at other than the chief executive office,
such Collateral is located and shall be maintained at
----------------------------------------------------------------------
STREET ADDRESS
----------------------------------------------------------------------
CITY STATE ZIP CODE COUNTY
Collateral shall be maintained only at the locations identified in
this Section 5.14.
5.15 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.
5.16 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.
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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 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:
SIMPLE TECHNOLOGY, INC.
By:
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Its:
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