EXHIBIT 10.2
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SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of August 4, 1997, between MAPICS, INC., a
Massachusetts corporation (the "Company"), and BANKBOSTON, N.A., a national
banking association, as agent (hereinafter, in such capacity, the "Agent") for
itself and other banking institutions (hereinafter, collectively, the "Banks")
which are or may become parties to a Revolving Credit and Term Loan Agreement
dated as of August 4, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), among the Company, the Banks and the Agent.
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Company under the Credit Agreement that the
Company execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a security agreement in substantially the form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of the
Agent, for the benefit of the Banks and the Agent, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
29. Definitions. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Massachusetts Uniform Commercial Code and used herein
shall have the same definitions herein as specified therein.
30. Grant of Security Interest.
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30.1. Collateral Granted. The Company hereby grants to the Agent, for the
benefit of the Banks and the Agent, to secure the payment and performance in
full of all of the Obligations, a security interest in and so pledges and
assigns to the Agent, for the benefit of the Banks and the Agent, the following
properties, assets and rights of the Company, wherever located, whether now
owned or hereafter acquired or arising, and all proceeds and products thereof
(all of the same being hereinafter called the "Collateral"):
All personal and fixture property of every kind and nature including
without limitation all furniture, fixtures, equipment, raw materials,
inventory, other goods, accounts, contract rights, rights to the payment of
money, insurance refund claims and all other insurance claims and proceeds,
tort claims, chattel paper, documents, instruments, securities and other
investment property (other than the capital stock of any Subsidiary of the
Company which is organized under the laws of a jurisdiction other than the
United States of America), deposit accounts and all general intangibles
including, without limitation, all tax refund claims, license fees,
patents, patent
applications, trademarks, trademark applications, trade names, copyrights,
copyright applications, rights to xxx and recover for past infringement of
patents, trademarks and copyrights, computer programs, computer software,
engineering drawings, service marks, customer lists, goodwill, and all
licenses, permits, agreements of any kind or nature pursuant to which the
Company possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess, use or have
authority to possess or use property (whether tangible or intangible) of
the Company, and all recorded data of any kind or nature, regardless of the
medium of recording including, without limitation, all software, writings,
plans, specifications and schematics.
30.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, the Company has endorsed,
collaterally assigned and delivered to the Agent all negotiable or
non-negotiable instruments (including certificated securities) and chattel
paper pledged by it hereunder, together with instruments of transfer or
assignment duly executed in blank as the Agent may have specified. In the
event that the Company shall, after the date of this Agreement, acquire any
other negotiable or non-negotiable instruments (including certificated
securities) or chattel paper to be pledged by it hereunder, the Company
shall forthwith endorse, collaterally assign and deliver the same to the
Agent, accompanied by such instruments of transfer or assignment duly
executed in blank as the Agent may from time to time specify.
(b) To the extent that any securities now or hereafter acquired by the
Company are uncertificated and are issued to the Company or its nominee
directly by the issuer thereof, the Company shall cause the issuer to note
on its books the security interest of the Agent in such securities and
shall cause the issuer, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with instructions from the
Agent as to such securities, without further consent of the Company or such
nominee. To the extent that any securities, whether certificated or
uncertificated, or other financial assets now or hereafter acquired by the
Company are held by the Company or its nominee through a securities
intermediary, the Company shall (i) cause such securities intermediary to
note on its books the security interest of the Agent in such securities or
other financial assets and to confirm such notation promptly to the Agent
and (ii), at the request of the Agent, cause such securities intermediary,
pursuant to an agreement in form and substance satisfactory to the Agent,
to agree to comply with entitlement orders or other instructions from the
Agent as to such securities or other financial assets, without further
consent of the Company or such nominee.
30.3. Excluded Collateral. Notwithstanding the foregoing provisions of this
ss.2, such grant of security interest shall not extend to, and the term
"Collateral" shall not include, any chattel paper and general intangibles which
are now or hereafter held by the Company as licensee, lessee or otherwise, to
the extent that (i) such chattel paper and general
intangibles are not assignable or capable of being encumbered as a matter of law
or under the terms of the license, lease or other agreement applicable thereto
(but solely to the extent that any such restriction shall be enforceable under
applicable law), without the consent of the licensor or lessor thereof or other
applicable party thereto and (ii) such consent has not been obtained; provided,
however, that the foregoing grant of security interest shall extend to, and the
term "Collateral" shall include, (A) any and all proceeds of such chattel paper
and general intangibles to the extent that the assignment or encumbering of such
proceeds is not so restricted and (B) upon any such licensor, lessor or other
applicable party's consent with respect to any such otherwise excluded chattel
paper or general intangibles being obtained, thereafter such chattel paper or
general intangibles as well as any and all proceeds thereof that might have
theretofore have been excluded from such grant of a security interest and the
term "Collateral".
30.4. Trademark Agreements. Concurrently herewith the Company is also
executing and delivering to the Agent, for the benefit of the Banks and the
Agent, the Trademark Agreement pursuant to which the Company is assigning to the
Agent, for the benefit of the Banks and the Agent, certain Collateral consisting
of trademarks, service marks and trademark and service xxxx rights, together
with the goodwill appurtenant thereto. The provisions of the Trademark Agreement
are supplemental to the provisions of this Agreement, and nothing contained in
the Trademark Agreement shall derogate from any of the rights or remedies of the
Agent or any of the Banks hereunder. Nor shall anything contained in the
Trademark Agreement be deemed to prevent or extend the time of attachment or
perfection of any security interest in such Collateral created hereby.
30.5. Copyright Memorandum. Concurrently herewith the Company is, in
addition, executing and delivering to the Agent, for the benefit of the Banks
and the Agent, for recording in the United States Copyright Office (the
"Copyright Office") the Copyright Memorandum of Grant of Security Interest in
Copyrights. The Company represents and warrants to the Bank that such Copyright
Memorandum identifies all now existing material copyrights and other rights in
and to all material copyrightable works of the Company, identified, where
applicable, by title, author and/or Copyright Office registration number and
date. The Company represents and warrants to the Bank that it has registered all
material copyrights of the Company with the Copyright Office, as identified in
such Copyright Memorandum. The Company covenants, promptly after the Bank's
request therefor following the Company's acquisition thereof, to provide to the
Bank like identifications of all material copyrights and other rights in and to
all material copyrightable works hereafter acquired by the Company and to
execute and deliver to the Bank a supplemental Memorandum of Grant of Security
Interest in Copyrights modified to reflect such subsequent acquisitions.
31. Title to Collateral, etc. The Company is the owner of the Collateral
free from any adverse lien, security interest or other encumbrance, except for
the security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in ss.9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. None of the account debtors in respect of any
accounts, chattel paper or general intangibles and none of the obligors in
respect of any instruments included in the Collateral is a governmental
authority subject to the Federal Assignment of Claims Act.
32. Continuous Perfection. The Company's place of business or, if more than
one, chief executive office is indicated on the Perfection Certificate delivered
to the Agent herewith (the "Perfection Certificate"). The Company will not
change the same, or the name, identity or corporate structure of the Company in
any manner, without providing at least 30 days prior written notice to the
Agent. The Collateral, to the extent not delivered to the Agent pursuant to
ss.2.2, will be kept at those locations listed on the Perfection Certificate and
the Company will not remove the Collateral from such locations, without
providing at least 30 days prior written notice to the Agent.
33. No Liens. Except for the security interest herein granted and liens
permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from any lien, security interest or other encumbrance, and the
Company shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. The Company shall not pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
34. No Transfers. The Company will not sell or offer to sell or otherwise
transfer the Collateral or any interest therein except for (a) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business; (b) sales or other dispositions of obsolescent items of equipment in
the ordinary course of business consistent with past practices; and (c) the
disposition of any Collateral which is permitted to be sold or otherwise
disposed of pursuant to the terms of the Distribution Agreement.
35. Insurance.
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35.1. Maintenance of Insurance. The Company will maintain with financially
sound and reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in accordance
with general practices of businesses engaged in similar activities in similar
geographic areas. Such insurance shall be in such minimum amounts that the
Company will not be deemed a co-insurer under applicable insurance laws,
regulations and policies and otherwise shall be in such amounts, contain such
terms, be in such forms and be for such periods as may be reasonably
satisfactory to the Agent. In addition, all such insurance shall be payable to
the Agent as loss payee under a "standard" or "New York" loss payee clause for
the benefit of the Banks and the Agent. Without limiting the foregoing, the
Company will (i) keep all of its physical property insured with casualty or
physical hazard insurance on an "all risks" basis, with broad form flood and
earthquake coverages and electronic data processing coverage, with a full
replacement cost endorsement and an "agreed amount" clause in an amount equal to
100% of the full replacement cost of such property, (ii) maintain all such
workers' compensation or similar insurance as may be required by law and (iii)
maintain, in amounts and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar geographic areas, general
public liability insurance against claims of bodily injury, death or property
damage occurring, on, in or about the properties of the Company; business
interruption insurance; and product liability insurance.
35.2. Insurance Proceeds. The proceeds of any casualty insurance in respect
of any casualty loss of any of the Collateral shall, subject to the rights, if
any, of other parties with a prior interest in the property covered thereby, (i)
so long as no Default or Event of Default has occurred and is continuing and to
the extent that the amount of such proceeds is less than $250,000.00, be
disbursed to the Company for direct application by the Company solely to the
repair or replacement of the Company's property so damaged or destroyed and (ii)
in all other circumstances, be held by the Agent as cash collateral for the
Obligations. The Agent may, at its sole option, disburse from time to time all
or any part of such proceeds so held as cash collateral, upon such terms and
conditions as the Agent may reasonably prescribe, for direct application by the
Company solely to the repair or replacement of the Company's property so damaged
or destroyed, or the Agent may apply all or any part of such proceeds to the
Obligations with the Total Commitment (if not then terminated) being reduced by
the amount so applied to the Obligations.
35.3. Notice of Cancellation, etc. All policies of insurance shall provide
for at least thirty (30) days prior written cancellation notice to the Agent. In
the event of failure by the Company to provide and maintain insurance as herein
provided, the Agent may, at its option, provide such insurance and charge the
amount thereof to the Company. The Company shall furnish the Agent with
certificates of insurance, and upon the Bank's reasonable request therefor, and
policies evidencing compliance with the foregoing insurance provision.
36. Maintenance of Collateral; Compliance with Law. The Company will keep the
Collateral in good order and repair and will not use the same in violation of
law or any policy of insurance thereon. The Agent, or its designee, may inspect
the Collateral at any reasonable time, wherever located, and so long as no Event
of Default has occurred and is continuing, during regular business hours, upon
reasonable prior notice. The Company will pay promptly when due all taxes,
assessments, governmental charges and levies upon the Collateral or incurred in
connection with the use or operation of such Collateral or incurred in
connection with this Agreement; provided that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if the Company shall
have set aside on its books adequate reserve with respect thereto; and provided
further that the Company shall pay all such taxes, assessments, chargers, levies
or claims forthwith upon the commencement of proceedings to foreclose any lien
that may have attached as security therefor. Except as previously disclosed to
the Bank, the Company has at all times operated, and the Company will continue
to operate, its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances.
37. Collateral Protection Expenses; Preservation of Collateral.
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37.1. Expenses Incurred by Agent. In its discretion, the Agent may
discharge taxes and other encumbrances at any time levied or placed on any of
the Collateral, make repairs thereto and pay any necessary filing fees. The
Company agrees to reimburse the Agent on demand for any and all expenditures so
made. The Agent shall have no obligation to the Company to make any such
expenditures, nor shall the making thereof relieve the Company of any default.
37.2. Agent's Obligations and Duties. Anything herein to the contrary
notwithstanding, the Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by the Company
thereunder. Neither the Agent nor any Bank shall have any obligation or
liability under any such contract or agreement by reason of or arising out of
this Agreement or the receipt by the Agent or any Bank of any payment relating
to any of the Collateral, nor shall the Agent or any Bank be obligated in any
manner to perform any of the obligations of the Company under or pursuant to any
such contract or agreement, to make inquiry as to the nature or sufficiency of
any payment received by the Agent or any Bank in respect of the Collateral or as
to the sufficiency of any performance by any party under any such contract or
agreement, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to the Agent or to which the Agent or any Bank may be entitled at any
time or times. The Agent's sole duty with respect to the custody, safe keeping
and physical preservation of the Collateral in its possession, under ss.9-207 of
the Massachusetts Uniform Commercial Code or otherwise, shall be to deal with
such Collateral in the same manner as the Agent deals with similar property for
its own account.
38. Securities and Deposits. The Agent may at any time, at its option, transfer
to itself or any nominee any securities constituting Collateral, receive any
income thereon and hold such income as additional Collateral or apply it to the
Obligations. If an Event of Default shall have occurred and be continuing,
whether or not any Obligations are due, the Agent may demand, xxx for, collect,
or make any settlement or compromise which it deems desirable with respect to
the Collateral. Regardless of the adequacy of Collateral or any other security
for the Obligations, any deposits or other sums at any time credited by or due
from the Agent or any Bank to the Company may at any time be applied to or set
off against any of the Obligations then due and payable.
39. Notification to Account Debtors and Other Obligors. If a Default or an Event
of Default shall have occurred and be continuing, the Company shall, at the
request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of the Company and obligors on instruments for which the
Company is an obligee of the security interest of the Agent in any account,
chattel paper, general intangible or instrument and that payment thereof is to
be made directly to the Agent or to any financial institution designated by the
Agent as the Agent's agent therefor, and the Agent may itself, if a Default or
an Event of Default shall have occurred and be continuing, without notice to or
demand upon the Company, so notify account debtors and obligors. After the
making of such a request or the giving of any such notification, the Company
shall hold any proceeds of collection of accounts, chattel paper, general
intangibles and instruments received by the Company as trustee for the Agent,
for the benefit of the Banks and the Agent, without commingling the same with
other funds of the Company and shall turn the same over to the Agent in the
identical form received, together with any necessary endorsements or
assignments. The Agent shall apply the proceeds of collection of accounts,
chattel paper, general intangibles and instruments received by the Agent to the
Obligations, such proceeds to be immediately entered after final payment in cash
or solvent credits of the items giving rise to them.
40. Further Assurances. The Company, at its own expense, shall do, make, execute
and deliver all such additional and further acts, things, deeds, assurances and
instruments as the Agent may reasonably require more completely to vest in and
assure to the Agent and the Banks their respective rights hereunder or in any of
the Collateral, including, without limitation, (i) executing, delivering and,
where appropriate, filing financing statements and continuation statements under
the Uniform Commercial Code, (ii) obtaining governmental and other third party
consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in ss.2.3, (iii)
obtaining waivers from mortgagees and landlords and (iv) taking all actions
required by Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or
Sections 8-106 and 9-115 of the Uniform Commercial Code (1994), as applicable in
each relevant jurisdiction, with respect to certificated and uncertificated
securities.
41. Power of Attorney.
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41.1. Appointment and Powers of Agent. The Company hereby irrevocably
constitutes and appoints the Agent and any officer or agent thereof, with full
power of
substitution, as its true and lawful attorneys-in-fact with full
irrevocable power and authority in the place and stead of the Company or in the
Agent's own name, for the purpose of carrying out the terms of this Agreement,
to take any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement and, without limiting the generality of the foregoing, hereby
gives said attorneys the power and right, on behalf of the Company, without
notice to or assent by the Company, to do the following:
(a) upon the occurrence and during the continuance of a Default or an
Event of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such manner
as is consistent with the Massachusetts Uniform Commercial Code and as
fully and completely as though the Agent were the absolute owner thereof
for all purposes, and to do at the Company' expense, at any time, or from
time to time, all acts and things which the Agent deems necessary to
protect, preserve or realize upon the Collateral and the Agent's security
interest therein, in order to effect the intent of this Agreement, all as
fully and effectively as the Company might do, including, without
limitation, (i) the filing and prosecuting of registration and transfer
applications with the appropriate federal or local agencies or authorities
with respect to trademarks, copyrights and patentable inventions and
processes, (ii) upon written notice to the Company, the exercise of voting
rights with respect to voting securities, which rights may be exercised, if
the Agent so elects, with a view to causing the liquidation in a
commercially reasonable manner of assets of the issuer of any such
securities and (iii) the execution, delivery and recording, in connection
with any sale or other disposition of any Collateral, of the endorsements,
assignments or other instruments of conveyance or transfer with respect to
such Collateral; and
(b) to the extent permitted by applicable law, to file such financing
statements with respect hereto, with or without the Company's signature, or
a photocopy of this Agreement in substitution for a financing statement, as
the Agent may deem appropriate and to execute in the Company's name such
financing statements and amendments thereto and continuation statements
which may require the Company's signature.
41.2. Ratification by Company. To the extent permitted by law, the Company
hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable.
41.3. No Duty on Agent. The powers conferred on the Agent hereunder are
solely to protect the interests of the Agent and the Banks in the Collateral and
shall not impose any duty upon the Agent to exercise any such powers. The Agent
shall be accountable only for the amounts that it actually receives as a result
of the exercise of such powers and neither it nor any of its officers,
directors, employees or agents shall be responsible to the Company for any act
or failure to act, except for the Agent's own gross negligence or willful
misconduct.
42. Remedies. If an Event of Default shall have occurred and be continuing, the
Agent may, without notice to or demand upon the Company, declare this Agreement
to be in default, and the Agent shall thereafter have in any jurisdiction in
which enforcement hereof is sought, in addition to all other rights and
remedies, the rights and remedies of a secured party under the Uniform
Commercial Code, including, without limitation, the right to take possession of
the Collateral, and for that purpose the Agent may, so far as the Company can
give authority therefor, enter upon any premises on which the Collateral may be
situated and remove the same therefrom. The Agent may in its discretion require
the Company to assemble all or any part of the Collateral at such location or
locations within the state(s) of the Company's principal office(s) or at such
other locations as the Agent may designate which is reasonably convenient to the
Agent and the Company Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, the Agent shall give to the Company at least five Business Days prior
written notice of the time and place of any public sale of Collateral or of the
time after which any private sale or any other intended disposition is to be
made. The Company hereby acknowledges that five Business Days prior written
notice of such sale or sales shall be reasonable notice. In addition, the
Company waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Agent's rights hereunder, including,
without limitation, its right following an Event of Default to take immediate
possession of the Collateral and to exercise its rights with respect thereto. To
the extent that any of the Obligations are to be paid or performed by a person
other than the Company, the Company waives and agrees not to assert any rights
or privileges which it may have under ss.9-112 of the Massachusetts Uniform
Commercial Code.
43. No Waiver, etc. The Company waives demand, notice, protest, notice of
acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, the Company assents to any extension or postponement of the time
of payment or any other indulgence, to any substitution, exchange or release of
or failure to perfect any security interest in any Collateral, to the addition
or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in ss.9.2. The
Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay or omission on the
part of the Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of the Agent with respect to the Obligations or the Collateral, whether
evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised singularly, alternatively, successively or concurrently at such
time or at such times as the Agent deems expedient.
44. Marshalling. Neither the Agent nor any Bank shall be required to marshal any
present or future collateral security (including but not limited to this
Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
45. Proceeds of Dispositions; Expenses. The Company shall pay to the Agent on
demand any and all expenses, including attorneys' fees and disbursements,
reasonably incurred or paid by the Agent in protecting, preserving or enforcing
the Agent's rights under or in respect of any of the Obligations or any of the
Collateral. After deducting all of said expenses, the residue of any proceeds of
collection or sale of the Obligations or Collateral shall, to the extent
actually received in cash, be applied to the payment of the Obligations in such
order or preference as is provided in the Credit Agreement, proper allowance and
provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments
required by Section 9-504(1)(c) of the Massachusetts Uniform Commercial Code,
any excess shall be returned to the Company, and the Company shall remain liable
for any deficiency in the payment of the Obligations.
46. Overdue Amounts. Until paid, all amounts due and payable by the Company
hereunder shall be a debt secured by the Collateral and shall bear, whether
before or after judgment, interest at the rate of interest for overdue principal
set forth in the Credit Agreement.
47. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon the Company by mail at the address
specified in ss.21 of the Credit Agreement. The Company hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
48. Waiver of Jury Trial. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the
Company waives any right which it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. The Company (i) certifies that neither the Agent or any Bank nor any
representative, agent or attorney of the Agent or any Bank has represented,
expressly or otherwise, that the Agent or any Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and (ii) acknowledges that, in
entering into the Credit Agreement and the other Loan Documents to which the
Agent or any Bank is a party, the Agent and the Banks are relying upon, among
other things, the waivers and certifications contained in this ss.20.
49. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. The
Company acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
MAPICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx, 3rd
---------------------------------
Title: Chief Financial Officer
Accepted:
BANKBOSTON, N.A.,
as Agent
By:
-----------------------------------
Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS__________________________________________)
) ss.
COUNTY OF SUFFOLK _____________________________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 4th day of August, 1997, personally appeared ____________ to
me known personally, and who, being by me duly sworn, deposes and says that he
is the ___________ of MAPICS, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said * acknowledged said instrument to be the free act and deed of said
corporation.
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Notary Public
My commission expires:
