EXHIBITS FOR S-1 REGISTRATION STATEMENT
OF METRO INFORMATION SERVICES, INC.
EXHIBIT 10.5 SECURITY AGREEMENT DATED AS OF APRIL 30, 1996 BY AND BETWEEN
NATIONSBANK OF VIRGINIA, N.A. AND REGISTRANT.
NATIONSBANK
NationsBank of Virginia, N.A. SECURITY AGREEMENT
_______________________________________________________________________________
Date APRIL 30, 1996
-----------------------------
Between and
BANK: (SECURED PARTY) DEBTOR/PLEDGOR:
Nationsbank of Virginia, N.A.
Banking Center:
Mid-Atlantic Commercial Metro Information Services, Inc.
▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(Address) (Name and Address)
Debtor/Pledgor is: / / Individual /X/ Corporation
/ / Partnership / / Other ________
Address is Debtor's: / / Residence / / Place of Business
/X/ Chief Executive Office
if more than one place
of business.
(THIS AGREEMENT CONTAINS SOME PROVISIONS PRECEDED BY BOXES. MARK ONLY THOSE
BOXES BESIDE PROVISIONS WHICH WILL BE APPLICABLE TO THIS TRANSACTION. A BOX
WHICH IS NOT MARKED MEANS THAT THE PROVISION BESIDE IT IS NOT APPLICABLE TO THIS
TRANSACTION.)
▇.▇▇▇▇▇▇▇▇ INTEREST. For good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and subject to the applicable terms
of this agreement, Debtor/Pledgor (hereinafter referred to as Debtor) assigns
and grants to Bank (also known as Secured Party), a security interest and
lien in the Collateral to secure that payment and the performance of the
Obligation.
B.COLLATERAL. The security interest is granted in the following
("Collateral") (Check as applicable)
1.
/X/ ACCOUNTS. Any and all accounts, accounts receivable, receivables,
contract rights, book debts, checks, notes, drafts, instruments, chattel
paper, acceptances, choses in action, any and all amounts due to Debtor from
a factor or other forms of obligations and receivables now existing or
hereafter arising out of the business of the Debtor, as well as any and all
returned, refused and repossessed goods, and the cash or non-cash proceeds
resulting therefrom.
/X/ INVENTORY. Any and all Debtor's inventory, including without limitation
any and all goods held for sale or lease or being processed for sale or lease
in Debtor's business as now or hereafter conducted, whether now owned or
hereinafter acquired, including all materials, goods and work in process,
finished goods, and other tangible property held for sale or lease or
furnished or to be furnished under
contracts of service or used or consumed in Debtor's business, along with all
documents (including documents of title) covering inventory, all cash and
non-cash proceeds from the sale of inventory including proceeds from
insurance and specifically including but not limited to (attach Schedule if
necessary):
_______________________________________________________________________________
_______________________________________________________________________________.
/X/ EQUIPMENT. Any and all of Debtor's furnishings, fixtures and equipment,
wherever located, whether now owned or hereafter acquired, together with all
increases, parts, fittings, accessories, equipment, and special tools now or
hereafter affixed to any part thereof or used in connection therewith, and
all products, additions, substitutions, accessions, and all cash and non-cash
proceeds, including proceeds from insurance thereof and thereto, including
without limitation the following (attach Schedule if necessary):
_______________________________________________________________________________
_______________________________________________________________________________.
/ / FIXTURES. All of Debtor's fixtures now existing or hereafter acquired,
together with all substitutes and replacements therefor, all accessions and
attachments thereto, and all tools, parts and equipment now or hereafter
added to or used in connection therewith. These goods are or will become
fixtures on the following described real estate in
____________________________________________
________________________________[City or County],
_________________________(State), owned by:_____________________
[name of owner] more particularly described as
follows:___________________________________________________________
__________________________________________________________________________
__________________________________________________________________[insert
legal description (or attach Exhibit) of property, not street address]
, including without limitation the following (attached schedule if
necessary):____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
/ / INSTRUMENTS AND/OR INVESTMENT DOCUMENTS. The following described
instruments and documents including, without limitation, negotiable
instruments, promissory notes, and documents of title owned or to be owned by
Debtor, certificates of deposit, and all liens, security agreements, leases
and other contracts securing or otherwise relating to any of said instruments
or documents, and all cash and non-cash proceeds and products thereof and
such additional property receivable or distributed in respect of or in
exchange for all or any of such instruments or documents (attach Schedule if
necessary):___________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________.
/X/ GENERAL INTANGIBLES. All patents, trademarks, service marks, trade
secrets, copyrights and exclusive licenses (whether issued or pending) and
all documents, applications, materials and other matters related thereto, all
inventions, and all manufacturing, engineering and production plans,
drawings, specifications, processes and systems, all trade names, computer
programs, data bases, systems and software (including source and object
codes), goodwill, choses in action and all other general intangibles of
Debtor whether now owned or hereafter acquired and all cash and non-cash
proceeds thereof, including without limitation the following described
intangible personal property, and all chattel paper, documents and instrument
relating to such intangibles, including without limitation (attach schedule
if necessary):
_______________________________________________________________________________
_______________________________________________________________________________
______________________________________________________________________________.
/ / TIMBER. All of Debtor's uncut timber growing or to be grown on the
following described property, and all cash and non-cash proceeds including
proceeds from insurance, and all products thereof (complete legal description
of real property required) (attach Exhibit if necessary):
_____________________________________________________________________________
_____________________________________________________________________________
____________________________________________________________________________.
/ / OTHER:
________________________________________________________________________________
________________________________________________________________________________
_____________________________________________________ (hereinafter referred to
as "Goods" and all proceeds thereof).
2.All substitutes and replacements for, accessions, attachments and other
additions to, tools, parts and equipment used in connection with, and
proceeds and products of, the above Collateral (including all income and
benefits resulting from any of the above, such as dividends payable or
distributable in cash, property or stock; interest, premium and principal
payments; redemption proceeds and subscription rights; all certificates of
title, manufacturer's statements of origin, other documents, accounts and
chattel paper arising from or related to the above Collateral, and returned
or repossessed Collateral, any of which, if received by Debtor, upon request
shall be delivered immediately to Bank.
3.The balance of every deposit account of Debtor under control of Bank and
any other claim of Debtor against Bank, now or hereafter existing, liquidated
or unliquidated, and all money, instruments, securities, documents, chattel
paper, credits, claims, demands, income, and any other property, rights and
interests of Debtor which at any time shall come into the possession or
custody or under the control of Bank or any of its agents, affiliates or
correspondents, for any purpose, and the proceeds of any thereof. Bank shall
be deemed to have possession of any of the Collateral in transit to or set
apart for it or any of its agents, affiliates or correspondents.
C.OBLIGATION.
1.DESCRIPTION OF OBLIGATION. The following obligations
("Obligation") are secured by this agreement: (a) All debts, obligations,
liabilities and agreements of Debtor to Bank, now or hereafter existing,
arising directly or indirectly between Debtor and Bank whether absolute or
contingent, joint or several, secured or unsecured, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of
law or otherwise, and all renewals, extensions or rearrangement of any of the
above; (b) Bank's participation in any loan or other debt of Debtor to
another person; (c) All costs incurred by Bank to obtain, preserve, perfect
and enforce this agreement and maintain, preserve, collect and enforce the
Collateral; (d) Interest on the above amounts as agreed between Bank and
Debtor; (e) All debt, obligations and liabilities of
___________________________________________________________________________
(if the preceding space is completed, such party, together with the Debtor
named above, is hereinafter referred to collectively as "Debtor") to Bank of
the kinds described in this Item C, now existing or hereafter arising; (f)
All expenses of the Bank, including fees and expenses of the Bank's counsel,
incident to the enforcement of payment of all obligations of the Debtor by
any action or participation in, or in connection with a case or proceeding
under the Bankruptcy Code, or any successor statute thereto; (g) If the
Debtor is not the obligor of any of the Obligations, and in the event any
amount paid to the Bank on any Obligation is subsequently recovered from the
Bank in or as a result of any bankruptcy, insolvency or fraudulent conveyance
proceeding, the Debtor shall be liable to the Bank for the amounts so
recovered up to the fair market value of the Collateral whether or not the
Collateral has been released or the security interest terminated. In the
event the Collateral has been released or the security interest terminated,
the fair market value of the Collateral shall be determined, at the Bank's
option, as of the date the Collateral was released, the security interest
terminated, or said amounts were recovered; and (h) All amounts which may be
owed to Bank pursuant to all other loan documents executed between Bank and
any other Debtor.
Notwithstanding the foregoing, if the Collateral is personal property used as
a principal residence (such as a mobile home or a houseboat) or "household
goods" (as that term is defined at 12 C.F.R.Section 227.12, as it may be
amended from time to time) which are not in the Bank's possession and which
are not fixtures, such Collateral shall not secure any liability contracted
for personal family or household purposes between the Debtor or an obligor
and the Bank already in existence on the date hereof or that arises
hereafter, unless the Debtor otherwise expressly agrees.
D.DEBTOR'S WARRANTIES. Debtor hereby represents and warrants to Bank as
follows:
1.FINANCING STATEMENTS. Except as may be noted by schedule attached
hereto and incorporated herein by reference, no financing statement covering
the Collateral is or will be on file in any public office, except the
financing statements relating to this security interest, and no security
interest, other than the one herein created, has attached or been perfected
in the Collateral or any part thereof.
2.OWNERSHIP. Debtor owns, or will use the proceeds of any loans by Bank to
become the owner of, the Collateral free from any setoff, claim, restriction,
lien, security interest or encumbrance except liens for taxes not yet due and
the security interest hereunder.
3.FIXTURES AND ACCESSIONS. None of the Collateral is affixed to real estate
or is an accession to any goods, or will become a fixture or accession,
except as expressly set out herein.
▇.▇▇▇▇▇▇ OF DEBTORS ON COLLATERAL. All account debtors and other obligors
whose debts or obligations are part of the Collateral have no right to
setoffs, counterclaims or adjustments, and no defenses in connection
therewith.
5.POWER AND AUTHORITY. Debtor has full power and authority to make this
agreement.
E.DEBTOR'S COVENANTS. Until full payment and performance of all Obligations
and termination or expiration of any obligation or commitment of Bank to make
advances or loans to Debtor, unless Bank otherwise consents in writing:
1.OBLIGATION AND THIS AGREEMENT. Debtor shall perform all of its agreements
herein and in any other agreements between it and Bank.
2.OWNERSHIP OF COLLATERAL. Debtor shall defend the Collateral against all
claims and demands of all persons at any time claiming any interest therein
adverse to Bank. Debtor shall keep the Collateral free from all liens and
security interests except those for taxes not yet due and the security
interest hereby created.
▇.▇▇▇▇▇▇▇▇▇. Debtor shall insure the Collateral with companies acceptable to
Bank. Such insurance shall be in an amount not less than the fair market
value of the Collateral and shall be against such casualties, with such
deductible amounts as Bank shall approve. All insurance policies shall be
written for the benefit of Debtor and Bank as their interests may appear,
payable to Bank as loss payee, or in other form satisfactory to Bank, and
such policies or certificates evidencing the same shall be furnished to Bank.
All policies of insurance shall provide for written notice to Bank at least
30 days prior to cancellation. Risk of loss or damage is ▇▇▇▇▇▇'s to the
extent of any deficiency in any effective insurance coverage.
4.MAINTENANCE. Debtor shall keep all tangible Collateral in good condition.
▇.▇▇▇▇'S COSTS. Debtor shall pay all costs necessary to obtain, preserve,
perfect, defend and enforce this security interest, collect the Obligation,
and preserve, defend, enforce and collect the Collateral including but not
limited to taxes, assessments, insurance premiums, repairs, reasonable
attorney's fees and legal expenses, feed, rent, storage costs and expenses of
sales. Whether Collateral is or is not in Bank's possession, and without any
obligation to do so and without waiving Debtor's default for failure to make
any such payment, Bank as its option may pay any such costs and expenses,
discharge encumbrances on Collateral, and pay for insurance of Collateral,
and such payment shall be a part of the Obligation and bear interest at the
rate set out in the Obligation. ▇▇▇▇▇▇ agrees to reimburse Bank on demand for
any costs so incurred.
6.INFORMATION AND INSPECTION. Debtor shall (i) promptly furnish Bank any
information with respect to Collateral requested by Bank; (ii) allow Bank or
its representatives to inspect the Collateral, at any time and wherever
located, and to inspect and copy, or furnish Bank or its representatives with
copies of, all records relating to the Collateral and the Obligation; (iii)
furnish Bank or its representatives such information as Bank may request to
identify Collateral, at the time and in the form requested by Bank; and (iv)
deliver upon request to Bank shipping and delivery receipts evidencing the
shipment of goods and invoices evidencing the receipt of, and the payment
for, Collateral.
7.ADDITIONAL DOCUMENTS. Debtor shall sign and deliver any papers furnished by
Bank which are necessary or desirable in the judgment of Bank to obtain,
maintain and perfect the security interest hereunder and enable Bank to
comply with the Federal Assignment of Claims Act or any other federal or
state law in order to obtain or perfect Bank's interest in Collateral or to
obtain proceeds of Collateral.
8.PARTIES LIABLE ON COLLATERAL. Debtor will preserve the liability of all
obligors on any Collateral, will preserve the priority of all security
therefor, and will deliver to Bank the original certificates of title on all
motor vehicles or other titled vehicles constituting the Collateral. Bank
shall have no duty to preserve such liability or security, but may do so at
the expense of Debtor, without waiving Debtor's default.
9.RIGHT OF BANK TO NOTIFY DEBTORS. At any time, whether Debtor is or not in
default hereunder, Bank may notify persons obligated on any Collateral to
make payments directly to Bank and Bank may take control of all proceeds of
any Collateral. Until Bank elects to exercise such rights, Debtor, as agent
of Bank, shall collect and enforce all payments owed on Collateral.
10.RECORDS OF COLLATERAL. Debtor at all times will maintain accurate books
and records covering the Collateral. Debtor immediately will mark all books
and records with an entry showing the absolute assignment of all Collateral
to Bank and Bank is hereby given the right to audit the books and records of
Debtor relating to Collateral at any time and from time to time. The amounts
shown as owed to Debtor on ▇▇▇▇▇▇'s books and on any assignment schedule will
be the undisputed amounts owing and unpaid.
11.DISPOSITION OF COLLATERAL. If disposition of any Collateral gives rise to
an account, chattel paper or instrument, Debtor immediately shall notify
Bank, and upon request of Bank shall assign or indorse the same to Bank. No
Collateral may be sold, leased, manufactured, processed or otherwise disposed
of by Debtor in any manner without the prior written consent of Bank, except
Collateral sold, leased, manufactured, processed or consumed in the ordinary
course of business.
12.ACCOUNTS. Each account held as Collateral will represent the valid and
legally enforceable obligation of third parties, and shall not be evidenced
by any instrument or chattel paper.
13.LOCATION OF COLLATERAL. Debtor shall give Bank written notice of each
office of Debtor in which records of Debtor pertaining to accounts held as
Collateral are kept, and each location at which Collateral is or will be
kept, and of any change of any such location. If no such notice is given,
all records of Debtor pertaining to Collateral are and shall be kept at
Debtor's address shown above. All Collateral of Debtor will be kept at
Debtor's address shown above unless otherwise noted as follows:
________________________________________________________________________________
________________________________________________________________________________
14.NOTICE OF CHANGES. Debtor will notify Bank immediately of any material
change in the Collateral, of a change in Debtor's residence or location, of a
change in any matter warranted or represented by Debtor in this agreement or
furnished to Bank, and of any event of default.
15.USE AND REMOVAL OF COLLATERAL. Debtor will not use the Collateral
illegally nor, unless previously indicated as a fixture, permit the
Collateral to be affixed to real or personal property without the prior
written consent of Bank. Debtor will not permit any of the Collateral to be
removed from the locations specified herein without the prior written consent
of Bank, except for the sale of inventory in the ordinary course of business.
16.POSSESSION OF COLLATERAL. Debtor will deliver all other instruments,
documents, and chattel paper which are part of the Collateral and in Debtor's
possession to the Bank immediately, or if hereafter acquired, immediately
following acquisition, appropriately indorsed to Bank's order, or with
appropriate, executed powers. Debtor waives presentment, notice of
acceleration, demand, notice of dishonor, protect, and all other notices with
respect thereto.
17.CONSUMER CREDIT. If any Collateral or proceeds includes obligations of
third parties to Debtor, the transactions giving rise to the Collateral shall
conform in all respects to the applicable state or federal law including but
not limited to consumer credit law. Debtor shall hold harmless and indemnify
Bank against any cost, loss or expense arising from Debtor's breach of this
covenant.
18.CHANGE OF NAME/STATUS. Without the written consent of Bank, Debtor shall
not change its name, change its corporate status, use any trade name or
engage in any business in which it was not engaged on the date of this
agreement.
19.POWER OF ATTORNEY. Debtor appoints Bank as ▇▇▇▇▇▇'s attorney-in-fact with
full power in Debtor's name and behalf to do every act which Debtor is
obligated to do or may be required to do hereunder; however, nothing in this
paragraph shall be construed to obligate Bank to take any action hereunder
nor shall Bank be liable to Debtor for failure to take any action hereunder.
This appointment shall be deemed a power coupled with an interest and shall
not be terminable as long as the Obligations are outstanding and shall not
terminate on the disability or incompetence of the Debtor.
20.WAIVERS BY DEBTOR. Debtor waives notice of the creation, advance,
increase, existence, extension or renewal of, and of any indulgence with
respect to, the Obligation; waives presentment, demand, notice of dishonor,
and protest; waives notice of the amount of the Obligation outstanding at any
time, notice of any change in financial condition of any person liable for
the Obligation or any part thereof, notice of any event of default, and all
other notices respecting the Obligation; and agrees that maturity of the
Obligation and any part thereof may be accelerated, extended or renewed one
or more times by Bank in its discretion, without notice to Debtor. Debtor
waives any right to require that any action brought against any other person
or to require that resort be had to any other security or to any balance of
any deposit account. The Debtor further waives any right of subrogation or
to enforce any right of action against any other Debtor until the Obligation
is paid in full.
21.OTHER PARTIES AND OTHER COLLATERAL. No renewal or extension of or any
other indulgence with respect to the Obligation or any part thereof, no
release of any security, no release of any person (including any maker,
indorser, guarantor or surety) liable on the Obligation, no delay in
enforcement of payment, and no delay or omission or lack of diligence or care
in exercising any right or power with respect to the Obligation or any
security therefor or guaranty thereof or under this agreement shall in any
manner impair or affect the rights of Bank under the law, hereunder, or under
any other agreement pertaining to the Collateral. Bank need not file suit or
assert a claim for personal judgment against any person for any part of the
Obligation or seek to realize upon any other security for the Obligation,
before foreclosing or otherwise realizing upon the Collateral for the purpose
of paying the Obligation. Debtor waives any right to the benefit of or to
require or control application of any other security or proceeds thereof, and
agrees that Bank shall have no duty or obligation to Debtor to apply to the
Obligation any such other security or proceeds thereof.
22.COLLECTION AND SEGREGATION OF ACCOUNTS. The Bank hereby authorizes the
Debtor to collect the Collateral, subject to the direction and control of the
Bank, but the Bank may, without cause or notice, curtail or terminate said
authority at any time. Upon notice by the Bank, whether oral or in writing,
to the Debtor, the Debtor shall forthwith upon receipt of all checks, drafts,
cash, and other remittances in payment of or on account of the Collateral,
deposit the same in one or more special accounts maintained with the Bank
over which the Bank alone shall have the power of withdrawal. The remittance
of the proceeds of such Collateral shall not, however, constitute payment or
liquidation of such Collateral until the Bank shall receive good funds for
such proceeds. Funds placed in such special accounts shall be held by the
Bank as security for all Obligations secured hereunder. These proceeds
shall be deposited in precisely the form received, except for the indorsement
of the Debtor where necessary to permit collection of items, which
indorsement the Debtor agrees to make, and which indorsement the Bank is also
hereby authorized, as attorney-in-fact, to make on behalf of the Debtor. In
the event the Bank has notified the Debtor to make deposits to a special
account, pending such deposit,the Debtor agrees that
it will not commingle any such checks, drafts, cash or other remittances with
any funds or other property of the Debtor, but will hold them separate and
apart therefrom, and upon an express trust for the Bank until deposit thereof
is made in the special account. The Bank will, from time to time, apply the
whole or any part of the Collateral funds on deposit in this special account
against such Obligations as are secured hereby as the Bank may in its sole
discretion elect. At the sole election of the Bank, any portion of said funds
on deposit in the special account which the Bank shall elect not to apply to
the Obligations, may be paid over by the Bank to the Debtor.
23.COMPLIANCE WITH STATE AND FEDERAL LAWS. Debtor will comply with all State
and Federal laws and regulations applicable to its business, whether now in
effect or hereafter enacted including but not limited to the wage and hours
laws and relating to the use or disposal of hazardous materials and waste.
F.RIGHTS AND POWERS OF BANK
1.GENERAL. Bank, before or after default, without
liability to Debtor may: obtain from any person information regarding Debtor
or Debtor's business, which information any such person also may furnish
without liability to Debtor; require Debtor to give possession or control of
any Collateral to Bank; indorse as Debtor's agent any instruments, documents
or chattel paper in Collateral or representing proceeds of Collateral;
contact account debtors directly to verify information furnished by Debtor;
take control of proceeds, including stock received as dividends or by reason
of stock splits; release Collateral in its possession to any Debtor,
temporarily or otherwise; require additional Collateral; reject as
unsatisfactory any property hereafter offered by Debtor as Collateral; set
standards from time to time to govern what may be used as after acquired
Collateral; designate, from time to time, a certain percent of the Collateral
as the loan value and require Debtor to maintain the Obligation at or below
such figure; take control of funds generated by the Collateral, such as cash
dividends, interest and proceeds or refunds from insurance, and use same to
reduce any part of the Obligation and exercise all rights which an owner of
such Collateral may exercise, except the right to vote or dispose of
Collateral before an event of default; at any time transfer any of the
Collateral or evidence thereof into it own name or that of its nominee; and
demand, collect, covert, redeem, receipt for, settle compromise, adjust, sue
for, foreclose or realize upon Collateral, in its own name or in the name of
the Debtor, as Bank may determine. Bank shall not be liable for failure to
collect any account or instruments, or for any act or omission on the part of
the Bank, its officers, agents or employees, except willful misconduct and
gross negligence. The foregoing rights and powers of Bank will be in
addition to, and not a limitation upon, any rights and powers of Bank given
by law, elsewhere in this agreement, or otherwise. If Debtor fails to
maintain any required insurance, to the extend permitted by applicable law
Bank may (but is not obligated to) purchase single interest insurance
coverage for the Collateral which insurance may at Bank's option (i) protect
only Bank and not provide any remuneration or protection for Debtor directly
and (ii) provide coverage only after the Obligation has been declared due as
herein provided. The premiums for any such insurance purchased by Bank shall
be a part of the Obligation and shall bear interest as provided in B.1.d.
hereof.
2.CONVERTIBLE COLLATERAL. Bank, may present for conversion any Collateral
which is convertible into any other instrument or investment security or a
combination thereof with cash, but Bank shall not have any duty to present
for conversion any Collateral unless it shall have received from Debtor
detailed written instructions to that effect at a time reasonably far in
advance of the final conversion date to make such conversion possible.
G.DEFAULT
1.EVENT OF DEFAULT. An event of default shall occur if: (i) there is a loss,
theft, damage or destruction of any material portion of the Collateral for which
there is no insurance coverage or for which, in the opinion of the Bank there is
insufficient insurance coverage; or (ii) if Debtor or any other obligor on the
Obligation shall fail to timely and properly pay or observe, keep or perform any
term, covenant, agreement or condition in this agreement or in any other
agreement between Debtor and any other obligor on the Obligation, including in
any other note or instrument, loan agreement, security agreement, deed of trust,
mortgage, promissory note, assignment or other agreement or instrument
concerning the Obligation.
2.RIGHTS AND REMEDIES. If any Event of Default shall occur, then, in each and
every such case, the Bank may, without presentment, demand,or protest; notice
of default, dishonor, demand, non-payment, or protest; notice of intent to
accelerate all or any part of the Obligation; notice of acceleration of all
or any part of the Obligation; or notice of any other kind, all of which
Debtor hereby expressly waives, (except for any notice required under this
agreement, any other loan document or applicable law); at any time thereafter
exercise and/or enforce any of the following rights and remedies:
a)POSSESSION AND COLLECTION OF COLLATERAL. At its option: (i) take possession
or control of, store, lease, operate, manage, sell or otherwise dispose of,
all or any part of the Collateral; (ii) notify all parties under any account
or contract right forming all or any part of the Collateral to make any
payments otherwise due to the Debtor directly to the Bank; (iii) in the
Bank's own name, or in the name of the Debtor, demand, collect, receive, sue
for, and give receipts and releases for, any and all amounts due under such
accounts and contract rights; (iv) indorse as the agent of the Debtor any
check, note, chattel paper, documents, or instruments forming all or any part
of the Collateral; (v) make formal application for transfer to the Bank (or
to any assignee of the Bank to any purchaser of any of the Collateral) of all
of the Debtor's permits, licenses, approvals, agreements, and the like
relating to the Collateral or to the Debtor's business; (vi) take any other
action which the Bank deems necessary or desirable to protect and realize
upon its security interest in the collateral; and (vii) in addition to the
foregoing, and not in substitution therefor, exercise any one or more of the
rights and remedies exercisable by the Bank under any other provision of this
agreement, under any of the other loan documents, or as provided by
applicable law (including, without limitation, the Uniform Commercial Code as
in effect in Virginia (hereinafter referred to as the "UCC")). In taking
possession of the Collateral the Bank may enter the Debtor's premises and
otherwise proceed without legal process, if this can be done without breach
of the peace. The Debtor shall, upon the Bank's demand, promptly make the
Collateral or other security available to the Bank at a place designated by
the Bank, which place shall be reasonably convenient to both parties.
The Bank shall not be liable for, nor be prejudiced by, any loss,
depreciation or other damages to the Collateral, unless caused by the Bank's
willful and malicious act. The Bank shall have no duty to take any action to
preserve or collect the Collateral.
b)RECEIVER. Obtain the appointment of a receiver for all or any of the
Collateral, the Debtor hereby consenting to the appointment of such a
receiver and agreeing not to oppose any such appointment.
c)RIGHT OF SET OFF. Without notice of demand to the Debtor, set off and apply
against any and all of the Obligations any and all deposits (general or
special, time or demand, provisional or final) and any other indebtedness, at
any time held or owning by the Bank to or for the credit of the account of
the Debtor.
Bank shall be entitled to immediate possession of all books and records
evidencing any Collateral or pertaining to chattel paper covered by this
agreement and it or its representatives shall have the authority to enter
upon any premises upon which any of the same, or any Collateral, may be
situated and remove the same therefrom without liability. Bank may surrender
any insurance policies in Collateral and receive the unearned premium
thereon. Debtor shall be entitled to any surplus and shall be liable to Bank
for any deficiency. The proceeds of any disposition after default available
to satisfy the Obligation shall be applied to the Obligation in such order
and in such manner as Bank in its discretion shall decide.
H.GENERAL
1.PARTIES BOUND. Bank's rights hereunder shall inure to the benefit
of its successors and assign, and in the event of any assignment or transfer
of any of the Obligation or the Collateral, Bank thereafter shall be fully
discharged from any responsibility with respect to the Collateral so assigned
or transferred, but Bank shall retain all rights and powers hereby given with
respect to any of the Obligation or Collateral not so assigned or
transferred. All representations, warranties and agreements of Debtor if
more than one are joint and several and all shall be binding upon the
personal representatives, heirs, successors and assigns of Debtor.
2.WAIVER. No delay of Bank in exercising any power or right shall operate as
a waiver thereof; nor shall any single or partial exercise of any power or
right preclude other or further exercise thereof or the exercise of any other
power or right. No waiver by Bank of any right hereunder or of any default
by Debtor shall be binding upon Bank unless in writing, and no failure by
Bank to exercise any power or right hereunder or waiver of any default by
Debtor shall operate as a waiver of any other or further exercise of such
right or power or of any further default. Each right, power and remedy of the
Bank as provided for in any other loan documents, or which shall now or
hereafter exist at law or in equity or by statute or otherwise, shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Bank of
any one or more of such rights, powers or remedies shall not preclude the
simultaneous or later exercise by the Bank of any or all other such rights,
powers or remedies.
3.AGREEMENT CONTINUING. This agreement shall constitute a continuing
agreement, applying to all future as well as existing transactions, whether
or not of the character contemplated at the date of this agreement, and if
all transactions between Bank and Debtor shall be closed at any time, shall
be equally applicable to any new transactions thereafter. Provisions of this
agreement, unless by their terms exclusive, shall be in addition to other
agreements between the parties. Time is of the essence of this agreement.
4.DEFINITIONS. Unless the context indicates otherwise, definitions in the UCC
apply to words and phrases in this agreement; if UCC definitions conflict,
Article 9 definitions apply.
5.NOTICE. Notice shall be deemed reasonable if mailed postage prepaid at
least 5 days before the related action (or if the UCC elsewhere specifies a
longer period, such longer period) to the address of Debtor given above.
6.MODIFICATIONS. No provision hereof shall be modified or limited except by a
written agreement expressly referring hereto and to the provisions so
modified or limited and signed by the Debtor and Bank, nor by course of
conduct, usage or trade.
7.PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this security agreement shall not affect the enforceability or validity of
any other provision herein and the invalidity or unenforceability of any
provision of any loan document to any person or circumstances shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances.
8.GENDER AND NUMBER. Where appropriate, the use of one gender shall be
construed to include the others or any of them; and the singular number shall
be construed to include the plural, and vice versa.
9.APPLICABLE LAW AND VENUE. The agreement has been delivered in the State of
Virginia and shall be construed in accordance with the laws of that State.
It is performable by Debtor in the county or city of Bank's address set out
above and Debtor expressly waives any objection as to venue in any such
location. Wherever possible each provision of this agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of
such prohibit or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this agreement.
10.FINANCING STATEMENT. To the extent permitted by applicable law, a carbon,
photographic or other reproduction of this security agreement or any
financing statement covering the Collateral shall be sufficient as a
financing statement.
11.COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be considered to be an original, but all of
which shall constitute one in the same instrument. As used herein "this
agreement" shall include all attachments and addenda.
12.ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED
ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE
FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND
MEDIATION SERVICES, INC. (J.A.M.S.) AND THE "SPECIAL RULES" SET FORTH BELOW.
IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT
UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR
EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO
WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A.SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
BORROWER'S DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B.RESERVATIONS OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO (I)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER BY
THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL,
OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT
NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. AT BANK'S OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE
MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE
UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF
TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS EXERCISE OR SELF
HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE
OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT
OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
DEBTOR AGREES THAT BANK AT ITS SOLE OPTION MAY CHOOSE MEDIATION, AND/OR
BINDING ARBITRATION PROCEDURES PERTAINING TO ANY CONTROVERSY(IES) OR
DISPUTE(S) ARISING BETWEEN DEBTOR AND BANK. DEBTOR AGREES TO ABIDE BY THE
SELECTION THAT BANK MAKES TO RESOLVE ANY CONFLICTS OR DISPUTES BETWEEN DEBTOR
AND BANK AND TO PARTICIPATE IN THE MEDIATION AND/OR BINDING ARBITRATION
PROCESS IF SELECTED. DEBTOR AND BANK AGREE THAT EACH WILL BEAR THEIR PORTION
OF EXPENSES RELATED TO MEDIATION AND/OR BINDING ARBITRATION.
13.NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly
executed under seal by their duly authorized representatives as of the date
first above written.
BANK/SECURED PARTY: DEBTOR/PLEDGOR:
NATIONSBANK OF VIRGINIA, N.A.
By:__________________________(Seal) ______________________________________
Print Individual's Name:
Name: ______________________________ _________________________________(Seal)
Title: _____________________________ _______________________________________
Print Individual's Name:
_________________________________(Seal)
Corporate Borrower or Partnership: METRO INFORMATION SERVICES, INC.
----------------------------------
(Name of Corporate, Partnership, etc.)
Attest (If Applicable) By:____________________________(Seal)
___________________________________ ______________________________________
Print Name and Title:
By:____________________________________
[Corporate Seal]
_______________________________________
Print Name and Title: