EXHIBIT 10.25
OMNIBUS SECURITY AGREEMENT
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SECURITY AGREEMENT, dated effective as of December 31, 2001, between
Integrated Business Systems and Services, Inc. (the "Borrower"), and the
following parties: (i) IBSS Class A Investors, a Michigan co-partnership and
(ii) IBSS Class B Investors, a Michigan co-partnership(hereinafter, individually
and collectively, the "Lender").
WHEREAS, the Borrower has issued the following credit instruments (the
"Credit Instruments") to the various Lenders:
(i) Class A Secured Convertible Debenture; and
(ii) Class B Secured Convertible Debenture.
all contemporaneously with this Security Agreement;
WHEREAS, the Borrower, in order to secure the Borrower's performance under
the Credit Instruments and this Agreement, wishes to grant security interests in
favor of the Lender 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:
1. Definitions. The term "Obligations" as used herein, means all of the
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indebtedness, obligations and liabilities of the Borrower to the Lender,
individually or collectively, whether direct or indirect, joint or several,
absolute or contingent, due or to become due, now existing or hereafter arising
under or in respect of any of the Credit Instruments or this Agreement, and the
term "default", as used herein, means the failure of the Borrower to pay or
perform any of the Obligations as and when due to be paid or performed under the
terms of this Agreement or the Credit Instruments.
2. Grant of Security Interest. The Borrower hereby grants to the Lender, to
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secure the payment and performance in full of all of the Obligations a security
interest in all of Borrower's assets, wherever located, whether now owned or
hereafter acquired or arising, and all proceeds and products thereof, more fully
described as follows (all of the same being hereinafter called the
"Collateral"):
(i) all accounts (as defined in the South Carolina Uniform Commercial Code
(the "UCC")) of the Borrower (the "Accounts");
(ii) all furniture, fixtures, machinery, apparatus and equipment, of the
Borrower (collectively the "FF & E");
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(iii) all inventory (as defined in the UCC) of the Borrower (the
"Inventory");
(iv) all personalty, goods, files, documents, correspondence, contracts,
instruments and intangibles of the Borrower;
(v) all proprietary and intellectual property and rights therein of the
Borrower, including patents, copyrights, licenses, trademarks, trade
names and service marks, as well as all source and object codes,
routines and sub-routines, software and all computer programs, tapes,
discs, flow charts or similar or related media of the Borrower,
including (without limitation) any of such media which contain
information identifying or pertaining to any of the FF&E, Accounts and
Inventory or which are otherwise necessary or helpful in the
realization therein or the collection thereon.
3. Authorization to File Financing Statements. The Borrower hereby
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irrevocably authorizes the Lender at any time (and from time to time) to file in
any Uniform Commercial Code jurisdiction any initial financing statements and
amendments thereto that (a) indicate the Collateral is described in Section 2
above, and (b) contain any other information required by part 5 of Article 9 of
the Uniform Commercial Code of the respective state for the sufficiency or
filing office acceptance of any financing statement or amendment, including
whether the Borrower is an organization, the type of organization and any
organization identification number issued to the Borrower. The Borrower agrees
to furnish any such information to the Lender promptly upon request. The
Borrower also ratifies its authorization for the Lender to have filed in any
Uniform Commercial Code jurisdiction any like initial financing statements or
amendments thereto if filed prior to the date hereof.
4. Other Actions. Further to insure the attachment, perfection and first
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priority of, and the ability of the Lender to enforce, the Lender's security
interest in the Collateral, the Borrower agrees, in each case at the Borrower's
own expense, to take any action reasonably requested by the Lender to insure the
attachments, perfection and first priority of, and the ability of the Lender to
enforce, the Lender's security interest in any and all of the Collateral.
5. Affirmative Covenants. The Borrower covenants and agreesthat until all
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Obligations due the Lender are paid and performed in full, it will:
5.1 Remain Public. Continue to be a reporting company under the Securities
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Exchange Act of 1934, and continue to maintain its stock as listed for trading
purposes on the Nasdaq Stock Market, or the Over-the Counter Bulletin Board.
5.2 Borrower's Legal Status. The Borrower covenants with the Lender as
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follows: (a) without providing at least 30 days prior written notice to the
Lender, the Borrower will not change its name, its place of business or, if more
than one, chief
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executive office, or its mailing address or organizational identification number
if it has one, (b) if the Borrower does not have an organizational
identification number and later obtains one, the Borrower shall forthwith notify
the Lender of such organizational identification number, and (c) the Borrower
will not change its type of organization, jurisdiction of organization or other
legal structure.
5.3 Payments of Principal and Interest on Obligations. Pay and perform the
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Obligations when due in accordance with the terms of the Credit Instruments, and
this Agreement, whether by acceleration or otherwise.
5.4 Performance of Obligation. Perform or cause to be performed, all of the
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Obligations and covenants of the Borrower as required by this Agreement, or any
other agreement, note, or other documents executed between any Lender and the
Borrower and/or another person, whether now existing or hereafter created.
5.5 Maintenance of Existence. Maintain its corporate existence and all
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rights, licenses, leases, agreements and franchises as reasonably necessary to
continue the operation of its business substantially in the same manner as of
the date of execution hereof.
5.6 Information. Furnish promptly and in a form satisfactory to each
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Lender, such information as any Lender may reasonably request, from time to
time, and to permit a representative of any Lender access to any of its
premises. Any Lender's rights under this sub-paragraph shall be conditioned upon
the prior execution by such Lender and delivery to the Company of an appropriate
confidentiality and public trading lock-up agreement with the Company.
5.7 Notification of Dispute. Notify each Lender promptly of any material
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claim, litigation, administrative or tax proceeding, or other material action
threatened or instituted against the Borrower or any property of the Borrower or
any other material matter which is not fully covered by insurance which could
adversely impair the Borrower's financial condition or its ability to conduct
its business including, but not limited to, any material inquiry or proceedings
initiated by any state, federal or regulatory agency.
5.8 Payment of Taxes.
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A. Except as set forth in Exhibit 5.8, pay when due all FICA taxes
and all withheld federal, state and/or city income taxes, and
notify each Lender promptly in the event of its failure to make
any such payment when due.
B. Pay all other taxes, assessments, and other governmental charges
to which the Borrower or the property of same is or shall be
subject before such charges become delinquent, except that no
such charge need be paid so long as its validity or amount is
being contested in
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good faith by appropriate proceedings and the Borrower shall have
established such reserve with respect thereto as shall be
required by sound accounting principles, provided that any such
tax, assessment, charge or levy shall be paid forthwith (under
protest) upon the commencement of proceedings to foreclose any
liens securing the same or upon institution of distraint
proceedings.
5.9 Insurance. The Borrower shall maintain insurance pursuant to all
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applicable Worker's Compensation laws, and liability insurance for damage to
persons. All such insurances shall be in such form, with such companies and in
such amounts as shall be acceptable to the Lender.
5.10 Compliance With Laws. Continue at all times to comply with all laws,
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ordinances, regulations or requirements of any governmental authority relating
to the Borrower's business, property or affairs, the breach of which would
materially, adversely affect the Borrower's financial condition or results of
operation.
5.11 Continuation Of Business. Maintain and conduct its business in
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substantially the same manner as such business is now or has heretofore been
carried on.
5.12 Preservation Of Collateral. Maintain any and all copyrights, patents,
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or trademarks in full force and effect, and do all things that, in management's
reasonable discretion are deemed necessary to enforce any infringements thereof.
5.13 Notice Of Event Of Default. The Borrower shall promptly upon becoming
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aware of any event of default, give written notice thereof to the Lender,
specifying the nature and period of existence thereof, and what action the
Borrower is taking or proposes to take with respect thereto, but such notice
shall not cure the existence thereof or prohibit any Lender's action arising
therefrom.
5.14 Financial Information/Reports. To the extent not available publicly
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through the website of the Securities and Exchange Commission, the Borrower
shall within the time periods specified, and if no time period is specified,
fifteen (15) Business Days shall be deemed the time period, deliver to the
Lender, all financial information, reports, certificates, notices and other
information herein required of the Borrower, pursuant to any provision of this
Agreement.
6. Negative Covenants. The Borrower covenants and agrees, that until all
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Obligations due the Lender under the Credit Instruments are paid in full, the
Borrower will not do any of the following without the prior written consent of
the Lender (which shall not be unreasonably withheld):
6.1 New Financing. The Borrower will not issue any further debt instruments
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or equity securities unless:
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(i) The Lender has been offered the opportunity to purchase such
debt instruments or equity securities on the same terms and
conditions as offered to third parties; and
(ii) All such debt instruments and equity securities are junior
in priority of repayment to the Obligations to the Lender.
6.2 Event Of Default. Permit any event of default to occur.
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6.3 Liens. Except as set forth in Exhibit 6.3, create, assume or otherwise
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suffer to exist any lien, mortgage, pledge or other encumbrance, or claim
therefor, upon any of the Collateral, now owned or hereafter acquired, or
modify, amend, change or alter any indebtedness, or security interest securing
any such indebtedness without the written consent of the Lender.
6.4 Dividends. Declare or pay any dividend or make any other distribution
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of, or with regard to, its capital stock or other equity security, or purchase
or retire any of its capital stock or other equity security.
6.5 Loans/Liabilities. Except as may exist under compensation, deferred
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compensation or other employee benefit plans or vehicles, make a loan to, or
incur or assume any liability as guarantor, surety, indemnitor or otherwise with
respect to any indebtedness or other obligation of, any Affiliate.
6.6 Transactions With Affiliates. Except as may exist under compensation,
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deferred compensation or other employee benefit plans or vehicles, enter into
any transaction with any affiliates of the Borrower, except on terms not less
favorable than would be usual and customary in similar transactions between
persons or entities dealing at arm's length.
6.7 Redemption/Issuance. Redeem, retire, purchase or otherwise acquire,
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directly or indirectly, any of its capital stock or other equity security.
6.8 Default In Payment. Default in any payment of the principal of or
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interest on any obligation to any Lender under the Credit Instruments when and
as the same shall have become due and payable, whether at maturity, by
acceleration or otherwise.
6.9 Default In Payment Of Other Debt. Default in any payment of principal
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or interest on any obligation or obligations in excess in the aggregate of
$250,000 to any other person for borrowed money.
6.10 Judgment. Suffer or permit any judgement(s), decree(s) or order(s) not
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fully covered by insurance to be entered by a court of competent jurisdiction in
an amount in excess of $35,000 (singly or $70,000 in the aggregate) against the
Borrower or permit or suffer any writ(s) or warrant(s) of attachment or any
similar process in an amount in excess of $35,000 (singly or $70,000 in the
aggregate) to be filed against the Borrower or against
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any property or asset of the Borrower, which judgment, decree, order, writ or
warrant of attachment or similar process shall have remained unsatisfied,
unvacated, unbonded or unstayed for a period of fifteen (15) days.
6.11 Bankruptcy. The Borrower shall not become a debtor under the
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bankruptcy laws of the United States, or apply for the appointment of a trustee,
receiver or custodian for or of any portion of its properties, or if any such
trustee or receiver shall be appointed, and if appointed in a proceeding brought
against the Borrower by any action, shall indicate its approval of, consent to
or acquiescence in such appointment, or if any such trustee or receiver shall
not be discharged within forty-five (45) days; or any proceedings shall be
commenced by or against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law or
statute of the United States or any state thereof, and if such proceeding shall
be instituted against the Borrower, the Borrower shall, by any action, indicate
its approval of, consent to, acquiescence therein, or that the same shall remain
undismissed for forty-five (45) days.
6.12 License Agreements. Enter into any license agreement with respect to
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the Collateral, unless such license: (i) is with a non-affiliate (or is with an
affiliate and is on arm's length terms); (ii) notice of entry into such license
has been provided to the Lender; and (iii) the terms of such license are
substantially similar to or no less reasonable to the Borrower than, the terms
of licenses granted by the Borrower to non-affiliated third parties prior to the
date hereof. The Lender shall have the right to inspect all such license
agreements at the Borrower's place of business upon Lender's request.
7. Collateral Protection Expenses; Preservation of Collateral.
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7.1 Expenses Incurred by Lender. In its discretion, the Lender may
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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
Borrower agrees to reimburse the Lender on demand for any and all expenditures
so made. The Lender shall have no obligation to the Borrower to make any such
expenditures, nor shall the making thereof relieve the Borrower of any default.
7.2 Lender's Obligations and Duties. Anything herein to the contrary
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notwithstanding, the Borrower shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by the
Borrower thereunder. The Lender shall not 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 Lender of any payment relating to any of the Collateral, nor
shall any Lender be obligated in any manner to perform any of the Obligations of
the Borrower under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the Lender 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 Lender or to which the Lender may be
entitled at any time or times. The
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Lender's sole duty with respect to the custody, safe keeping and physical
preservation of the Collateral in its possession, under 9.207 of the Uniform
Commercial Code of the state or otherwise, shall be to deal with such Collateral
in the same manner as the Lender deals with similar property for its own
account.
8. Securities and Deposits. The Lender may at any time following and during
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the continuance of a default, at its option, transfer to itself or any nominee
any securities constituting the Collateral, receive any income thereon and hold
such income as additional Collateral or apply it to the Obligations. Whether or
not any Obligations are due, the Lender may following and during the continuance
of a default demand, sue for, collect, or make any settlement or compromise
which it deems desirable with respect to the Collateral. Regardless of the
adequacy of the Collateral or any other security for the Obligations, any
deposits or other sums at any time credited by or due from the Lender to the
Borrower may at any time be applied to or set off against any of the Obligations
then due and owing.
9. Notification to Account Debtors and Other Persons Obligated on
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Collateral. If a default shall have occurred and be continuing, the Borrower
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shall, at the request of the Lender, notify account debtors and other persons
obligated on any of the Collateral of the security interest of the Lender in any
account, chattel paper, general intangible, instrument or other Collateral and
that payment thereof is to be made directly to any third party designated by the
Lender as the Lender's agent therefor, and the Lender may itself, if a default
shall have occurred and be continuing, without notice to or demand upon the
Borrower, so notify account debtors and other persons obligated on the
Collateral. After the making of such a request or the giving of any such
notification, the Borrower shall hold any proceeds of collection of accounts,
chattel paper, general intangibles, instruments and other collateral received by
the Borrower as trustee for the Lender without commingling the same with other
funds of the Borrower and shall turn the same over to the Lender in the
identical form received, together with any necessary endorsements or
assignments. The Lender shall apply the proceeds of collection of accounts,
chattel paper, general intangibles, instruments and other Collateral received by
the Lender to the Obligations, such proceeds to be immediately entered after
final payment in cash or other immediately available funds of the items giving
rise to them.
10. Power of Attorney.
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10.1 Appointment and Powers of Lender. The Borrower hereby irrevocably
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constitutes and appoints Bruce H. Seyburn (or such other person or entity
designated by the Lender), 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 Borrower or in the Lender'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 Borrower, without notice to or assent by the Borrower, to do the
following:
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(i) upon the occurrence and during the continuance of a 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 Uniform Commercial
Code of the state and as fully and completely as though the
Lender were the absolute owner thereof for all purposes, and
to do at the Borrower's expense, at any time, or from time
to time, all acts and things which the Lender deems
necessary to protect, preserve or realize upon the
Collateral and the Lender's security interest therein, in
order to effect the intent of this Agreement, all as fully
and effectively as the Borrower might do; and
(ii) to the extent that the Borrower's authorization given in ?3
is not sufficient, to file such financing statements with
respect hereto, with or without the Borrower's signature, or
a photocopy of this Agreement in substitution for a
financing statement, as the Lender may deem appropriate and
to execute in the Borrower's name such financing statements
and amendments thereto and continuation statements which may
require the Borrower's signature.
10.2. Ratification by Borrower. To the extent permitted by law, the
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Borrower hereby ratifies all that said attorneys shall lawfully do or cause to
be done by virtue hereof. The power of attorney is a power coupled with an
interest and shall be irrevocable.
10.3 No Duty on Lenders. The powers conferred on the Lender hereunder are
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solely to protect the Lender's interests in the Collateral and shall not impose
any duty upon it to exercise any such powers. The Lender shall be accountable
only for the amounts that it actually receives as a result of the exercise of
such powers and none of them nor any of their officers, directors, employees or
agents shall be responsible to the Borrower for any act or failure to act,
except for the Lender's own gross negligence or willful misconduct.
11. Default and Remedies.
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11.1 Default. The following events are hereby defined as "Defaults" for all
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purposes of this Agreement (whatever the reason for the occurrence thereof and
whether such event shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
order or decree of any court or any order, rule or regulation of any
governmental or administrative body):
(a) The Borrower shall fail to pay any amount (whether principal or
interest) when due under any Credit Instrument and such failure continues for
fifteen (15) days after the due date;
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(b) The Borrower shall fail to perform or observe any of the other
covenants or agreements contained in this Agreement and such failure shall not
have been remedied or cured within thirty (30) days after written notice
thereof, requesting the same to be remedied, shall have been received by the
Borrower from the Lender;
(c) The Borrower shall institute proceedings for an order for relief,
or shall consent to the institution of such a proceeding against it, or shall
file a petition or consent seeking reorganization or arrangement under, the
federal bankruptcy laws, or shall consent to the appointment of a receiver or
trustee or assignee in bankruptcy of it or its property, or shall make an
assignment for the benefit of creditors, or shall cease to operate in the
ordinary course of its business; or
(d) An involuntary order for relief under the federal bankruptcy laws
shall have been entered or a decree or order of a court having jurisdiction in
the premises shall have been entered approving as properly filed petition
seeking reorganization of the Borrower under the federal bankruptcy laws or any
other similar applicable Federal or state laws, and such decree or order shall
have continued undischarged or unstayed for a period of ninety (90) days; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver or trustee or assignee in bankruptcy or insolvency of
the Borrower or of substantially all of the property of the Borrower or for the
sequestration of substantially all of the property of the Borrower, or for the
winding up or liquidation in insolvency or bankruptcy of its affairs, shall have
been entered, and such decree or order shall have remained in force undischarged
and unstayed for a period of ninety (90) days.
(e) The Borrower commits a default under the Investment Agreement
between the parties executed contemporaneously herewith.
11.2 Remedies. If a default shall have occurred and be continuing, the
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Lender may, without notice to or demand upon the Borrower, declare this
Agreement to be in default, and the Lender 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 of the respective state or of any jurisdiction in which
the Collateral is located, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Lender may, so far as the
Borrower can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Lender may, in its
discretion, require the Borrower to assemble all or any part of the Collateral
at such location or locations within the jurisdiction(s) of the Borrower's
principal office(s) or at such other locations as the Lender may reasonably
designate. Unless the Collateral is perishable or threatens to decline speedily
in value or is of a type customarily sold on a recognized market, the Lender
shall give to the Borrower at least five (5) business days prior written notice
of the time and place of any public sale of the Collateral or of the time after
which any private sale or any other intended disposition is to be made. The
Borrower hereby acknowledges that five (5) business days prior written notice of
such sale or sales shall be reasonable notice.
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In addition, the Borrower waives any and all rights that it may have to a
judicial hearing in advance of the enforcement of any of the Lender's rights
hereunder, including, without limitation, its right following a default to take
immediate possession of the Collateral and to exercise its rights with respect
thereto. Provided, however, the Lender agrees that it will refrain from
exercising its rights with respect to the Collateral described in Section 2 for
a period of twelve (12) months after default so long as refraining from
exercising such rights does not impair its secured position with respect to such
Collateral.
12. Standards for Exercising Remedies. To the extent that applicable law
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imposes duties on the Lender to exercise remedies in a commercially reasonable
manner, the Borrower acknowledges and agrees that it is not commercially
unreasonable for the Lender (a) to fail to incur expenses reasonably deemed
significant by the Lender to prepare the Collateral for disposition or otherwise
to complete raw material or work in process into finished goods or other
finished products for disposition, (b) to fail to obtain third party consent for
access to the Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the
collection or dispositions of the Collateral to be collected or disposed of, (c)
to fail to exercise collection remedies against account debtors or other persons
obligated on the Collateral or to remove liens or encumbrances on or any adverse
claims against the Collateral, (d) to exercise collection remedies against
account debtors and other persons obligated on the Collateral directly or
through the use of collection agencies and other collection specialists, (e) to
advertise dispositions of the Collateral through publications or media of
general circulation, whether or not the Collateral is of a specialized nature,
(f) to contact other persons, whether or not in the same business as the
Borrower, for expressions of interest in acquiring all or any portion of the
Collateral, (g) to hire one or more professional auctioneers to assist in the
disposition of the Collateral, whether or not the Collateral is of a specialized
nature, (h) to dispose of the Collateral by utilizing Internet sites that
provide the auction of assets of the types included in the Collateral or that
have the reasonable capability of doing so, or that match buyers and sellers of
assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to
disclaim disposition warranties, (k) to purchase insurance or credit
enhancements to insure the Lender against risks of loss, collection or
disposition of the Collateral or to provide to the Lender a guaranteed return
from the collection or disposition of the Collateral, or (l) to the extend
deemed appropriate by the Lender, to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist the Lender in
collection or disposition of any of the Collateral. The Borrower acknowledges
that the purpose of this Section is to provide non-exhaustive indications of
what actions or omissions by the Lender would not be commercially unreasonable
in the Lender's exercise of remedies against the Collateral, and that other
actions or omissions by the Lender shall not be deemed commercially unreasonable
solely on account of not being indicated in this Section. Without limitation
upon the foregoing, nothing contained in this Section shall be construed to
grant any rights to the Borrower or to impose any duties on the Lender that
would have not been granted or imposed by this Agreement or by applicable law in
the absence of this Section.
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13. No Waiver by Lender, etc. The Lender shall not be deemed to have waived
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any of its rights upon or under the Obligations or the Collateral unless such
waiver shall be in writing and signed by the Lender. No delay or omission on the
part of the Lender 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 Lender 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 as the Lender deems expedient.
14. Suretyship Waivers by Borrower. This Borrower waives demand, notice,
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protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, the 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 Borrower 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 of the 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 adjustment of any thereof, all in such
manner and at such time or times as the Lender may deem advisable. The Lender
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 above. The Borrower further waives any and all other
suretyship defenses.
15. Marshaling. The Lender shall not be required to marshal any present or
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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 its rights hereunder and 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 Borrower hereby agrees that it will not invoke any law
relating to the marshaling of collateral which might cause delay in or impede
the enforcement of the Lender'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 Borrower hereby irrevocably waives the benefits of all such laws.
16. Proceeds of Dispositions; Expenses. The Borrower shall pay to the
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Lender on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by such Lender in protecting, preserving or
enforcing such Lender'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
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payment of the Obligations in such order or preference as the Lenders may
determine, proper allowance and provision being made for any Obligations not
due. Upon the final payment and satisfaction in full of all of the Obligations
and after making any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3)
of the Uniform Commercial Code of the state, any excess shall be returned to the
Borrower, and the Borrower shall remain liable for any deficiency in the payment
of the Obligations.
17. 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 STATE OF MICHIGAN. The Borrower agrees that any
suit for the enforcement of this Agreement may be brought in the courts of the
State of Michigan of 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 Borrower by mail at the address set forth above. The
Borrower 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.
18. Waiver of Jury Trial. THE BORROWER 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 Borrower 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 Borrower
certifies that neither the Lender nor any representative, agent or attorney of
the Lender has represented, expressly or otherwise, that the Lender would not,
in the event of litigation, seek to enforce the foregoing waiver.
19. 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
Borrower and its respective successors and assigns, and shall inure to the
benefit of the Lender and its 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 Borrower acknowledges
receipt of a copy of this Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, the Borrower has caused
this Agreement to be duly executed effective as of the date first above written.
"BORROWER"
INTEGRATED BUSINESS SYSTEMS AND
SERVICES, INC.
By: /s/ GEORGE E. MENDENHALL
----------------------------
George E. Mendenhall
Chief Executive Officer
Accepted:
"LENDER"
IBSS Class A Investors, a
Michigan co-partnership
By: /s/ RICHARD C. BRUDER
-----------------------
Its: Agent
Address:
c/o Seyburn, Kahn, Ginn, Bess and Serlin, P.C.
2000 Town Center, Suite 1500
Southfield, Michigan 48075
Attention: Bruce H. Seyburn,
IBSS Class B Investors, a
Michigan co-partnership
By: /s/ RICHARD C. BRUDER
-----------------------
Its: Agent
Address:
c/o Seyburn, Kahn, Ginn, Bess and Serlin, P.C.
2000 Town Center, Suite 1500
Southfield, Michigan 48075
Attention: Bruce H. Seyburn,
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