EXHIBIT 10.28
MASTER SECURITY AGREEMENT
(dated as of March 21, 2001 ("Agreement")
THIS AGREEMENT is between GENERAL ELECTRIC CAPITAL CORPORATION (together
with its successors and assigns, if any, "SECURED PARTY") and MICRO GENERAL
CORPORATION ("DEBTOR"). Secured Party has an ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Debtor is a trust organized and existing under the laws
of the state of Delaware. Debtor's mailing address and chief place of business
is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇.
1. CREATION OF SECURITY INTEREST.
Debtor grants to Secured Party, its successors and assigns, a security
interest in and against all property listed on any collateral schedule now or in
the future annexed to or made a part of this Agreement ("COLLATERAL SCHEDULE"),
and in and against all additions, attachments, accessories to such property, all
substitutions, replacements or exchanges, therefore,, and all insurance and or
other proceeds thereof (all such property is individually and collectively
called the "COLLATERAL"). This security interest is given to secure the payment
and performance of all debts, obligations and liabilities of any kind whatsoever
of Debtor to Secured Party, now existing or arising in the future, including but
not limited to the payment and performance of certain Promissory Notes from time
to time identified on any Collateral Schedule (collectively "NOTES" and each a
"NOTE"), and any renewals, extensions and modifications of such debts,
obligations and liabilities (such Notes, debts, obligations and liabilities are
called the "INDEBTEDNESS"). Notwithstanding anything to the contrary contained
in this Agreement, to the extent that Secured Party asserts a purchase money
security interest in any items of Collateral ("PMSI COLLATERAL"): (i) the PMSI
Collateral shall secure only that portion of the Indebtedness which has been
advanced by Secured Party to enable Debtor to purchase, or acquire rights in or
the use of such PMSI Collateral (the "PMSI INDEBTEDNESS"), and (ii) no other
Collateral shall secure the PMSI Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OR DEBTOR.
Debtor represents, warrants, and covenants as of this date of this
Agreement and as of the date of each Collateral Schedule that:
(a) Debtor is, and will remain, duly organized and in good standing under
the laws of the State set forth in the preamble of this Agreement, has its chief
executive offices at the location specified in the preamble, and is, and will
remain, duly qualified and licensed in every jurisdiction wherever necessary to
carry on its business operations,
(b) Debtor has adequate power and capacity to enter into, and to perform
its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with, any of the Indebtedness (all of the
foregoing are called the "DEBT DOCUMENTS");
(c) This Agreement and the other Debt Documents have been duly
authorized, executed and delivered by Debtor and constitute legal, valid and
binding agreements enforceable in accordance with their terms, except to the
extent that the enforcement of remedies may be limited under applicable
bankruptcy and insolvency laws;
(d) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into,
or performance by Debtor of any of the Debt Documents, except any already
obtained.
(e) The entry into, and performance by, Debtor of the Debt Document
will not (i) violate any of the organizational documents of Debtor or any
judgement, order, law or regulation, applicable to Debtor, or (ii) result in
any breach of or constitute a default under any contract to which Debtor is a
party, or result in the creation of any lien, claim or encumbrance on any of
Debtor's property (except for liens in favor of Secured Party) pursuant to any
indenture, mortgage, deed of trust, bank loan, credit agreement or other
agreement or instrument to which Debtor is a party;
(f) There are no suits or proceedings pending in court or before any
commission, board or other administrative agency against or affecting Debtor
which could, in the aggregate, have a material adverse effect on Debtor,its
business or operations, or its ability to perform its obligations under the
Debt Documents, nor does Debtor have reason to believe that any suits or
proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection
with the Indebtedness have been prepared in accordance with generally accepted
accounting principles, and since the date of the most recent financial
statement, there has been no material adverse change in Debtors financial
condition;
(h) The Collateral is not, and will not be, used By Debtor for
personal, family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and
Debtor will not be negligent in its care and use;
(j) Debtor is, and will remain, the sole and lawful owner, and in
possession of, the Collateral, and has the sole right and lawful authority to
grant the security interest described in this Agreement; and
(k) The Collateral is, and will remain, free and clear of all liens,
claims and encumbrances of any kind whatsoever, except for (i) liens in favor of
Secured Party, (ii) liens for taxes not yet due or for taxes being contested in
good faith and which do not involve, in the judgement of Secured Party, any risk
of the sale, forfeiture or loss of any of the Collateral, and (iii) inchoate,
materialmen's, mechanic's, repairmen's and similar liens arising by operation of
law in the normal course of business for amounts which are not delinquent (all
of such liens are called "PERMITTED LIENS").
3. COLLATERAL.
(a) Until the declaration of any default, Debtor shall remain in
possession of the Collateral; except that Secured Party shall have the right to
possess (1) any chattel paper or instrument that constitutes a part of the
Collateral, and (ii) any other Collateral in which Secured Party's security
interest may be perfected only by possession. Secured Party may inspect any of
the Collateral during normal business hours after giving Debtor reasonable
prior notice. If Secured Party asks, Debtor will promptly notify Secured Party
in writing of the location of any Collateral.
(b) Debtor shall (i) use the Collateral only in its trade or business,
(ii) maintain all of the Collateral in good operating order and repair, normal
wear and tear excepted, (iii) use and maintain the Collateral only in compliance
with manufacturers recommendations and all applicable laws, and (iv) keep all
of the Collateral free and clear of all liens, claims and encumbrances (except
for Permitted Liens).
(c) Debtor shall not, without the prior written consent of Secured Party,
(i) part with possession of any of the Collateral (except to Secured Party or
for maintenance and repair), (ii) remove any of the Collateral from the
continental United States, or (iii) sell, rent, lease, mortgage, grant a
security interest in or otherwise transfer or encumber (except for Permitted
Liens) any of the Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees,
assessments and public and private charges levied or assessed on any of the
Collateral, on its use, or on this Agreement or any of the other Debt Documents.
At its option, Secured Party may discharge taxes, liens, security interests or
other encumbrances at any time levied or placed on the Collateral and may pay
for the maintenance, insurance and preservation of the Collateral and effect
compliance with the terms of this Agreement or any of the other Debt Documents.
Debtor agrees to reimburse Secured Party, on demand, all costs and expenses
incurred by Secured Party in connection with such payment or performance and
agrees that such reimbursement obligation shall constitute indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of the
Collateral, and Secured Party shall have the right to inspect and make copies of
all of Debtor's books and records relating to the Collateral during normal
business hours, after giving Debtor reasonable prior notice.
(f) Debtor agrees and acknowledges that any third person who may at any
time possess all or any portion of the Collateral shall be deemed to hold, and
shall hold, the Collateral as the agent of, and as pledge holder for, Secured
Party. Secured Party may at any time give notice to any third person described
in the preceding sentence that such third person is holding the Collateral as
the agent of, and as pledge holder for, the Secured Party.
4. INSURANCE.
(a) Debtor shall at all times bear the entire risk of any loss, theft,
damage to, or destruction of, any of the Collateral from any cause whatsoever.
(b) Debtor agrees to keep the Collateral insured against loss or damage by
fire and extended coverage perils, theft, burglary, and for any or all
Collateral which are vehicles, for risk of loss by collision, and if requested
by Secured Party, against such other risks as Secured Party may reasonably
require. The insurance coverage shall be in an amount no less than the full
replacement value of the Collateral, and deductible amounts, insurers and
policies shall be acceptable to Secured Party. Debtor shall deliver to Secured
Party policies or certificates of insurance evidencing such coverage. Each
policy shall name Secured Party as a loss payee, shall provide for coverage to
Secured Party regardless of the breach by Debtor of any warranty or
representation made therein, shall not be subject to co-insurance, and shall
provide that coverage may not be canceled or altered by the insurer except upon
thirty (30) days prior written notice to Secured Party. Debtor appoints Secured
Party as its attorney-in-fact to make proof of loss, claim for insurance and
adjustments with insurers, and to receive payment of and execute or endorse all
documents, checks or drafts in connection with insurance payments. Secured Party
shall not act as Debtors attorney-in-fact unless Debtor is in default. Proceeds
of insurance shall be applied, at the option of Secured Party, to repair or
replace the Collateral or to reduce any of the indebtedness.
5. REPORTS.
(a) Debtor shall promptly notify Secured Party of (i) any change in the
name of Debtor, (ii) any relocation of its chief executive offices, (iii) any
relocation of any of the Collateral, (iv) any of the Collateral being lost,
stolen, missing, destroyed, materially damaged or worn out, or (v) any lien,
claim or encumbrance other than Permitted Liens attaching to or being made
against any of the Collateral.
(b) Debtor will deliver to Secured party Debtors complete financial
statements, certified by a recognized firm of certified public accountants,
within ninety (90) days of the close of each fiscal year of Debtor. If Secured
Party requests, Debtor will deliver to Secured Party copies of Debtors quarterly
financial reports certified by Debtors chief financial officer, within ninety
(90) days after the close of each of Debtors fiscal quarter. Debtor will deliver
to Secured Party copies of all Forms 10-K and 10-Q, if any, within 30 days after
the dates on which they are filed with the Securities and Exchange Commission.
6. FURTHER ASSURANCES.
(a) Debtor shall, upon request of Secured Party, furnish to Secured Party
such further information, execute and deliver to Secured Party such documents
and instruments (including, without limitation, Uniform Commercial Code
financing statements) and shall do such other acts and things as Secured Party
may at any time reasonably request relating to the perfection or protection of
the security interest created by this Agreement or for the purpose of carrying
out the intent of this Agreement. Without limiting the foregoing, Debtor shall
cooperate and do all acts deemed necessary or advisable by Secured Party to
continue in Secured Party a perfected first security interest in the Collateral,
and shall obtain and furnish to Secured Party any subordinations, releases,
landlord, lessor, or mortgagee waivers, and similar documents as may be from
time to time requested by, and in form and substance satisfactory to, Secured
Party.
(b) Debtor irrevocably grants to Secured Party the power to sign Debtor's
name and generally to act on behalf of Debtor to execute and file applications
for title, transfers of title, financing statements, notices of lien and other
documents pertaining to any or all of the Collateral; this power is coupled with
Secured Party's interest in the Collateral. Debtor shall, if any certificate of
title be requested or permitted by law for any of the Collateral, obtain and
promptly deliver to Secured Party such certificate showing the lien of this
Agreement with respect to the Collateral.
(c) Debtor shall indemnify and defend the Secured Party, its successors
and assigns, and their respective directors, officers and employees, from and
against all claims, actions and suits (including, without limitation, related
attorneys' fees) of any kind whatsoever arising, directly or indirectly, in
connection with any of the Collateral.
7. DEFAULT AND REMEDIES.
(a) Debtor shall be in default under this Agreement and each of the
other ▇▇▇ Documents if:
(i) Debtor breaches its obligation to pay when due any
installment or other amount due or coming due under any of the Debt Documents;
(ii) Debtor, without the prior written consent of Secured Party,
attempts to or does sell, rent, lease, mortgage, grant a security interest in,
or otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral;
(iii) Debtor breaches any of its insurance obligations under
Section 4;
(iv) Debtor breaches any of its other obligations under any of
the Debt Documents and fails to cure that breach within thirty (30) days after
written notice from Secured Party;
(v) Any warranty, representation or statement made by Debtor in any of
the Debt Documents or otherwise in connection with any of the Indebtedness shall
be false or misleading in any material respect;
(vi) Any of the Collateral is subjected to attachment, execution, levy,
seizure or confiscation in any legal proceeding or otherwise, or if any legal or
administrative proceeding is commenced against Debtor or any of the Collateral,
which in the good faith judgment of Secured Party subjects any of the Collateral
to a material risk of attachment, execution, levy, seizure or confiscation and
no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between
Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the
Indebtedness (collectively "GUARANTOR") dissolves, terminates its existence,
becomes insolvent or ceases to do business as a going concern;
(ix) If Debtor or any Guarantor is a natural person, Debtor or any such
Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the property of
Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for
the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed against Debtor or any
Guarantor and is not dismissed within forty-five (45) days; or
(xii) At any time during the term of this Agreement the ownership of
Debtor changes such that Fidelity National Financial, Inc. does not own more
than 50% of the outstanding shares or other ownership interest of Debtor or
Guarantor, as the case may be, without the prior written consent of Secured
Party.
(b) If Debtor is in default, the Secured Party, at its option, may declare any
or all of the Indebtedness to be immediately due and payable, without demand or
notice to Debtor or any Guarantor. The accelerated obligations and liabilities
shall bear interest (both before and after any judgment) until paid in full at
the lower of eighteen percent (18%) per annum or the maximum rate not prohibited
by applicable law.
(c) After default, Secured Party shall have all of the rights and remedies
of a Secured Party under the Uniform Commercial Code, and under any other
applicable law. Without limiting the foregoing, Secured Party shall have the
right to (i) notify any account debtor of Debtor or any obligor on any
instrument which constitutes part of the Collateral to make payment to the
Secured Party, (ii) with or without legal process, enter any premises where the
Collateral may be and take possession of and remove the Collateral from the
premises or store it on the premises, (iii) sell the Collateral at public or
private sale, in whole or in part, and have the right to bid and purchase at
said sale, or (iv) lease or otherwise dispose of all or part of the Collateral,
applying proceeds from such disposition to the obligations then in default. If
requested by Secured Party, Debtor shall promptly assemble the Collateral and
make it available to Secured Party at a place to be designated by Secured Party
which is reasonably convenient to both parties. Secured Party may also render
any or all of the Collateral unusable at the Debtor's premises and may dispose
of such Collateral on such premises without liability for rent or costs. Any
notice that Secured Party is required to give to Debtor under the Uniform
Commercial Code of the time and place of any public sale or the time after which
any private sale or other intended disposition of the Collateral is to be made
shall be deemed to constitute reasonable notice if such notice is given to the
last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition shall be applied:
first, to all costs of repossession, storage, and disposition including without
limitation attorneys', appraisers', and auctioneers' fees; second, to discharge
the obligations then in default; third, to discharge any other Indebtedness of
Debtor to Secured Party, whether as obligor, endorser, guarantor, surety or
indemnitor; fourth, to expenses incurred in paying or settling liens and claims
against the Collateral; and lastly, to Debtor, if there exists any surplus.
Debtor shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all reasonable attorneys' fees and other costs
incurred by Secured Party in connection with the enforcement, assertion,
defense or preservation of Secured Party's rights and remedies under this
Agreement, or if prohibited by law, such lesser sum as may be permitted. Debtor
further agrees that such fees and costs shall constitute Indebtedness.
(f) Secured Party's rights and remedies under this Agreement or otherwise
arising are cumulative and may be exercised singularly or concurrently. Neither
the failure nor any delay on the part of the Secured Party to exercise any
right, power or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege preclude
any other or further exercise of that or any other right, power or privilege.
SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS
AGREEMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR
UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right
or remedy on any future occasion.
(g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED
HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP
THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THE WAIVER MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER
DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
8. MISCELLANEOUS.
(a) This Agreement, any Note and/or any of the other Debt Documents may be
assigned, in whole or in part, by Secured Party without notice to Debtor, and
Debtor agrees not to assert against any such assignee, or assignees, any
defense, set-off, recoupment claim or counterclaim which Debtor has or may at
any time have against Secured Party for any reason whatsoever. Debtor agrees
that if Debtor receives written notice of an assignment from Secured Party,
Debtor will pay all amounts payable under any assigned Debt Documents to such
assignee or as instructed by Secured Party. Debtor also agrees to confirm in
writing receipt of the notice of assignment as may be reasonably requested by
assignee.
(b) All notices to be given in connection with this Agreement shall be in
writing, shall be addressed to the parties at their respective addresses set
forth in this Agreement (unless and until a different address may be specified
in a written notice to the other party), and shall be deemed given (i) on the
date of receipt if delivered in hand or by facsimile transmission, (ii) on the
next business day after being sent by express mail, and (iii) on the fourth
business day after being sent by regular, registered or certified mail. As used
herein, the term "business day" shall mean and include any day other than
Saturdays, Sundays, or other days on which commercial banks in New York, New
York are required or authorized to be closed.
INITIALS_____
(c) Secured Party may correct patent errors and fill in the blanks in
this Agreement or in any Collateral Schedule consistent with the agreement of
the parties.
(d) Time is of the essence of this Agreement. This agreement shall be
binding, jointly and severally, upon all parties described as the "Debtor" and
their respective heirs, executors, representatives, successors and assigns, and
shall inure to the benefit of Secured party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior understandings (whether written, verbal or
implied) with respect to such subject matter. THIS AGREEMENT AND ITS COLLATERAL
SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT
ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this
Agreement have been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.
(f) This Agreement shall continue in full force and effect until all of
the Indebtedness has been indefeasibly paid in full to Secured Party. the
surrender, upon payment or otherwise, of any Note or any of the other documents
evidencing any of the Indebtedness shall not affect the right of Secured Party
to retain the Collateral for such other indebtedness as may then exist or as it
may be reasonably contemplated will exist in the future. This Agreement shall
automatically be reinstated if Secured Party is ever required to return or
restore the payment of all or any portion of the Indebtedness (all as though
such payment had never been made).
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUCTED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT
(WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE).
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally
bound hereby, have duly executed this Agreement in one or more
counterparts, each of which shall be deemed to be an original, as of the day
and year first aforesaid.
SECURED PARTY: DEBTOR:
General Electric Capital Corporation Micro General Corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: -------------------------------- By:---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name:------------------------------- Name:--------------------------
Operations Manager Chief Financial Officer
Title:------------------------------ Title:-------------------------
================================================================================
(2 party)
MASTER SECURITY AGREEMENT - ACCOUNTS RIDER
This ACCOUNTS RIDER (this "Rider") is entered into as of the 21st day of March,
2001, between General Electric Capital Corporation, a New York corporation
("SECURED PARTY") and Micro General Corp. a Delaware corporation ("DEBTOR") with
its chief executive offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and is hereby made a part of and incorporated into that
certain Master Security Agreement, dated March 21, 2001, (the "AGREEMENT").
Capitalized terms not otherwise defined herein shall have the meaning described
to them in the Agreement.
WITNESSETH:
Secured Party and Debtor agree as follows:
1. SECURITY
As additional security for the Indebtedness, Debtor hereby grants Secured Party
a security interest in, and assigns to Secured Party all of Debtor's right,
title and interest in, to and under, that certain Software Services Agreement,
dated February 28, 2001 between Debtor and Fidelity National Financial, Inc.
(OBLIGOR"), including all amounts payable thereunder by Obligor and all
substitutions, replacements and proceeds of the foregoing and any lien or other
security interest that secures or may secure any of the foregoing (collectively,
the "ACCOUNT" and such Account shall constitute "COLLATERAL" as that term is
defined in the Agreement).
2. COVENANTS, WARRANTIES AND REPRESENTATIONS
With respect to the Account, Debtor covenants, warrants, and represents to
Secured Party that: (a) such Account is genuine and in all respects what it
purports to be and is enforceable against Obligor in accordance with its terms;
(b) all names, addresses, amounts, signatures, dates and other facts set forth
in the Software Services Agreement are true, accurate and complete; (c)
pursuant to the Account, Obligor is obligated to pay to Debtor or its assigns,
24 payments, each in the amount of $59,656.11, commencing March 15, 2001 and
continuing on the same day of each of the next 23 months thereafter, and the
obligation of Obligor to make such payments is unconditional and not subject to
any right of set-off, defense, claim or counterclaim of any kind whatsoever; (d)
Debtor is not in breach of or default under any of its obligations with respect
to the Account, and Debtor agrees to comply with and perform all of its
obligations with respect to the Account; (e) Debtor shall not in any manner
amend, modify or waive, or agree to amend, modify or waive, any term or
provision (including but not limited to the payment terms) of the Account
without the prior written consent of Secured Party; (f) the Account is free of
all liens, claims, encumbrances or security interests (except for the security
interest of Secured Party), and shall remain so as long as any indebtedness
remains outstanding under the Agreement; (g) the Software Services Agreement
complies with all applicable laws and evidences the entire agreement of Debtor
and Obligor with respect to the subject matter thereof; (h) there is only one
original of the Software Services Agreement and that original has been delivered
to Secured Party; (i) no amounts payable with respect to the Account have been
or will be prepaid, and Obligor is not holding any security deposits with
respect to the Account.
3. COLLECTIONS
Notwithstanding anything to the contrary contained herein, Debtor is
authorized and permitted to collect the Account unless and until a default has
occurred under the Agreement. Upon a default under the Agreement, Secured Party
may enforce payment and collect, by legal proceedings or otherwise, the Account
in the name of Debtor or Secured Party and take control in any manner any cash
or non-cash items of payment or proceeds of the Account. Without limiting the
generality of the foregoing, at any time following a default under the
Agreement, Secured Party may, without notice to Debtor, notify Obligor of
Debtor's default under the Agreement and instruct Obligor to make all future
payments directly to Secured Party. Debtor shall, upon the signing of this
Rider, deliver to GE Capital a "Notice of Assignment of Account" in the form of
Exhibit A hereto, bearing Debtor's original signature, and with the date and
address of the obligor left blank. Upon a default under the Agreement, Secured
Party is authorized to date the Notice, insert the then current address of
Obligor, and send such Notice to Obligor. Any amounts received by Debtor after a
default under the Agreement shall be (i) held by Debtor in trust for Secured
Party, (ii) kept separate and apart from Debtor's own funds so that they are
capable of identification as the property of Secured Party, and (iii)
immediately delivered to Secured Party.
4. POWER OF ATTORNEY
Debtor hereby irrevocably makes and appoints Secured Party (and any person
designated by it) as Debtor's true and lawful attorney with full power to (a)
demand payment, enforce payment and otherwise exercise all of Debtor's rights
and remedies with respect to the collection of the Account; (b) settle, adjust,
compromise, extend or renew the Account; (c)
settle adjust or compromise any legal proceeding brought to collect the Account;
(d) sell or assign the Account upon such terms, for such amounts and at such
time or times as Secured Party may deem advisable; (e) discharge and release the
Account; (f) prepare, file and sign Debtor's name on any Proof of Claim in
Bankruptcy or similar document against Obligor; (g) prepare and file any notice
of lien, claim of lien, assignment or satisfaction of lien or similar document
in connection with the Account and sign Debtor's name thereon; (h) endorse the
name of Debtor upon any of the items of payment with respect to the Account and
credit the same to the account of Secured Party; (i) endorse the name of Debtor
upon any chattel paper, document, negotiable instrument, invoice, freight ▇▇▇▇,
▇▇▇▇ of lading or similar document or agreement relating to the Account; and (j)
sign the name of Debtor to verifications of Account and notices thereof to
Obligor. The power of attorney granted by this Section is coupled with an
interest and is irrevocable so long as any Indebtedness remain outstanding.
NOTWITHSTANDING THE FOREGOING, UNLESS AND UNTIL A DEFAULT HAS OCCURRED UNDER THE
AGREEMENT, SECURED PARTY AGREES NOT EXERCISE ANY OF ITS POWERS PURSUANT TO THE
FOREGOING POWER OF ATTORNEY.
5. CONTINUING REQUIREMENTS
Debtor shall, so long as any Indebtedness remains outstanding: (a) not permit
or agree to any extension, compromise, waiver or settlement with respect to the
Account or make any change or modification of any kind or nature with respect
to the Account, including any of the terms relating thereto; (b) immediately
upon Debtor's receipt or learning thereof, furnish to and inform Secured Party
of all adverse information relating to the financial condition of Obligor; (c)
upon a default under the Agreement and at all times thereafter, affix
appropriate endorsements or assignments upon all such items of payment and
proceeds so that the same may be properly deposited by Secured Party to Secured
Party's account; (d) deliver a monthly report to Secured specifying whether or
not payment has been made on the Account by Obligor, and the date and amount of
such payment; and (e) execute and deliver to Secured Party, and perform such
other acts, as Secured Party requires to protect, perfect and maintain the
security interests granted herein (including but not limited to executing a UCC
Financing Statement) and to enable Secured Party to collect the payments due
under the Accounts following a default under the Agreement, and to carry out
the terms and conditions of this Agreement.
6. RELEASE
Debtor releases Secured Party from any and all claims and causes of action
which Debtor may now or hereafter have for any loss or damage to it claimed to
be caused by or arising out of any exercise by Secured Party of any of its
rights set forth in this Rider or the Agreement.
7. BOOKS AND RECORDS
Debtor represents and warrants that it keeps and maintains all books and records
pertaining to the Accounts at its principal place of business specified in the
Agreement and agrees to give Secured Party at least ten (10) days prior written
notice before moving any thereof to any other location. Secured Party shall have
the right, from time to time. to inspect the books and records of Debtor with
respect to the Account, and to verify directly with Obligor the validity, amount
or any other matter relating to the Account by mail, telephone or otherwise, in
the name of Debtor or Secured Party.
Except as otherwise expressly provided herein, all terms and conditions of the
Agreement shall remain in full force and effect.
GENERAL ELECTRIC CAPITAL CORPORATION MICRO GENERAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Operations Manager Title: Chief Financial Officer
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