SECURITY AGREEMENT
------------------
SECURITY AGREEMENT, dated as of July 25, 1997, between MARCAM CORPORATION,
a Massachusetts corporation (the "Company"), and BANKBOSTON, N.A., a national
banking association (hereinafter, the "Bank").
WHEREAS, the Company has entered into a Promissory Note dated as of July
25, 1997 (as amended and in effect from time to time, the "Note"), with the
Bank, pursuant to which the Bank, subject to the terms and conditions contained
therein, is to make loans to the Company; and
WHEREAS, it is a condition precedent to the Bank's making any loans to the
Company under the Note that the Company execute and deliver to the Bank a
security agreement in substantially the form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of the
Bank 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. All capitalized terms used herein without definitions shall
have the respective meanings provided therefor in the Note. All terms defined in
the Massachusetts Uniform Commercial Code and used herein shall have the same
definitions herein as specified therein.
2. Grant of Security Interest.
2.1. Collateral Granted. The Company hereby grants to the Bank, to
secure the payment and performance in full of all of the Obligations, a
security interest in and so pledges and collaterally assigns to the Bank
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, or 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 Marcam Solutions, Inc.), 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 ▇▇▇ and recover for past infringement of
patents, trademarks and copyrights, computer programs, computer
-2-
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; provided, however, that Collateral
shall not include any assets transferred to Marcam Solutions, Inc.
pursuant to the Distribution Agreement dated as of July 17, 1997
between the Company and Marcam Solutions, Inc. (the "Distribution
Agreement").
2.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, the Company has endorsed,
collaterally assigned and delivered to the Bank 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 Bank 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 Bank, accompanied by such instrument's of transfer or
assignment duly executed in blank as the Bank 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 Bank in such securities and shall cause the
issuer, pursuant to an agreement in form and substance
satisfactory to the Bank, to agree to comply with instructions
from the Bank 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 Bank in such securities or other
financial assets and to confirm such notation promptly to the
Bank and (ii), at the request of the Bank, cause such securities
intermediary, pursuant to an agreement in form and substance
satisfactory to the Bank, to agree to comply with entitlement
orders or other instructions from the Bank as to such securities
or other financial assets, without further consent of the Company
or such nominee.
-3-
2.3. 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".
2.4. Consent. The Bank hereby acknowledges and consents to the
distribution of the capital stock of Marcam Solutions, Inc. by the
Borrower, and the transfer of certain assets of the Borrower to Marcam
Solutions, Inc., pursuant to the Distribution Agreement.
2.5. Trademark Assignments. Concurrently herewith the Company is
also executing and delivering to the Bank the Trademark Agreement
pursuant to which the Company is assigning to the Bank certain
Collateral consisting of trademarks, service marks and trademark and
service ▇▇▇▇ 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
Bank 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.
2.6. Copyright Memorandum. Concurrently herewith the Company is,
in addition, executing and delivering to the Bank for recording in the
United States Copyright Office (the "Copyright Office") the Copyright
Memorandum. 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 with the Copyright Office, as identified in such Copyright
Memorandum. The Company covenants, promptly after the Bank's request
therefor following the Company's
-4-
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.
3. 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 None of the Collateral
constitutes, or is the proceeds of, "farm products" as defined in ss.9-109(3) of
the Massachusetts Uniform Commercial Code.
4. 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 Bank herewith (the "Perfection Certificate"). The Company will change its
name to "Mapics, Inc." and will move its chief executive office to Atlanta,
Georgia on or before July 31, 1997 and thereafter 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 Bank. The Collateral, to
the extent not delivered to the Bank 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 except to move same to its new chief
executive office in Atlanta, Georgia, without providing at least 30 days prior
written notice to the Bank.
5. No Liens. Except for the security interest herein granted, 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 Bank. 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 Bank.
6. No Transfers. The Company will not sell or offer to sell or otherwise
transfer the Collateral or any interest therein except for (a) sales of
inventory and licenses of general intangibles in the ordinary course of business
and (b) sales or other dispositions of obsolescent items of equipment in the
ordinary course of business consistent with past practices.
7. Insurance.
7.1. 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 Bank. In addition, all
such
-5-
insurance shall be payable to the Bank as loss payee under a "standard" or
"New York" loss payee clause. 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.
7.2. 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, 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
Bank as cash collateral for the Obligations. The Bank 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 Bank 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 Bank may apply all or any part of such proceeds to the Obligations.
7.3. Notice of Cancellation, etc. All policies of insurance shall
provide for at least thirty (30) days prior written cancellation notice to
the Bank. In the event of failure by the Company to provide and maintain
insurance as herein provided, the Bank may, at its option, provide such
insurance and charge the amount thereof to the Company. The Company shall
furnish the Bank with certificates of insurance and, upon the Bank's
reasonable request therefor, policies evidencing compliance with the
foregoing insurance provision.
8. 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 Bank, 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
-6-
good faith by appropriate proceedings and if the Company shall have set aside on
its books adequate reserves with respect thereto; and provided further that the
Company will pay all such taxes, assessments, charges, 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.
9. Collateral Protection Expenses; Preservation of Collateral.
9.1. Expenses Incurred by Bank. In its discretion, the Bank 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 Bank on demand for any and all
expenditures so made. The Bank shall have no obligation to the Company to
make any such expenditures, nor shall the making thereof relieve the
Company of any default.
9.2. Bank'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. The Bank 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 Bank of any payment relating to any of the
Collateral, nor shall the 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 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
Bank or to which the Bank may be entitled at any time or times. The Bank'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 Bank deals with similar property
for its own account.
10. Securities and Deposits. The Bank 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, the Bank may demand, ▇▇▇ 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
-7-
any time credited by or due from the Bank to the Company may at any time be
applied to or set off against any of the Obligations then due and payable.
11. Notification to Account Debtors and Other Obligors. If an Event of
Default shall have occurred and be continuing, the Company shall, at the request
of the Bank, 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 Bank in any account, chattel paper,
general intangible or instrument and that payment thereof is to be made directly
to the Bank or to any financial institution designated by the Bank as the Bank's
agent therefor, and the Bank may itself, if 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 Bank without commingling the same
with other funds of the Company and shall turn the same over to the Bank in the
identical form received, together with any necessary endorsements or
assignments. The Bank shall apply the proceeds of collection of accounts,
chattel paper, general intangibles and instruments received by the Bank to the
Obligations, such proceeds to be immediately entered after final payment in cash
or solvent credits of the items giving rise to them.
12. 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 Bank may reasonably require more completely to
vest in and assure to the Bank its 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.
13. Power of Attorney.
13.1. Appointment and Powers of Bank. The Company hereby irrevocably
constitutes and appoints the Bank 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 Bank'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
-8-
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 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 Bank were the absolute owner
thereof for all purposes, and to do at the Company's expense, at any
time, or from time to time, all acts and things which the Bank deems
necessary to protect, preserve or realize upon the Collateral and the
Bank'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 Bank 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 Bank 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.
13.2. 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.
13.3. No Duty on Bank. The powers conferred on the Bank hereunder are
solely to protect its interests in the Collateral and shall not impose any
duty upon it to exercise any such powers. The Bank 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 Bank's own gross negligence or willful misconduct.
-9-
14. Remedies. If an Event of Default shall have occurred and be continuing,
the Bank may, without notice to or demand upon the Company, declare this
Agreement to be in default, and the Bank 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 Bank 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 Bank 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 Bank may designate which is
reasonably convenient to the Bank 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 Bank shall give to the Company at least ten
(10) 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 ten (10)
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 Bank'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.
15. 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
Bank may deem advisable. The Bank 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
Bank 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 Bank. No delay or omission on the part of the Bank 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 Bank with respect to the
Obligations or the Collateral, whether evidenced hereby or by any other
instrument
-10-
or papers, shall be cumulative and may be exercised singularly, alternatively,
successively or concurrently at such time or at such times as the Bank deems
expedient.
16. Marshalling. The Bank shall not 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 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 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 Bank'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.
17. Proceeds of Dispositions; Expenses. The Company shall pay to the Bank
on demand any and all expenses, including attorneys' fees and disbursements,
reasonably incurred or paid by the Bank in protecting, preserving or enforcing
the Bank'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 the Bank may determine, 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(l)(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.
18. 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 Note.
19. 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 the preamble to the Note. 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.
-11-
20. 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 Bank nor any representative, agent or attorney of the
Bank has represented, expressly or otherwise, that the Bank would not, in the
event of litigation, seek to enforce the foregoing waivers and (ii) acknowledges
that, in entering into the Note and the Security Documents to which the Bank is
a party, the Bank is relying upon, among other things, the waivers and
certifications contained in this ss.20.
21. 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 Bank 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 Company acknowledges
receipt of a copy of this Agreement.
-12-
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.
MARCAM CORPORATION
By:__________________________________
Title:
Accepted:
BANKBOSTON, N.A.
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 ____ day of July, 1997, personally appeared ______________ to
me known personally, and who, being by me duly sworn, deposes and says that he
is the _________ of Marcam Corporation, 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.
------------------------------
Notary Public
My commission expires: