Exhibit 10.42
SELECTIVE BUSINESS SECURITY AGREEMENT
Dated: January 25, 2002
1. SECURITY INTEREST
The undersigned ("Debtor") grants AnchorBank, fsb ("Lender") a security
interest in property, wherever located, checked in Section 2 ("Collateral") to
secure all debts, obligations and liabilities of Debtor to Lender arising out of
that certain Subordinated Note, of even date herewith, given Debtor as maker to
Lender ("Obligations").
2. DESCRIPTION OF COLLATERAL
One or more boxes must be checked.
(a) [ ] All Collateral. If checked here, all equipment, fixtures,
inventory, documents, general intangibles, accounts, deposit accounts (unless a
security interest would render a nontaxable account taxable), contract rights,
chattel paper, instruments, letter of credit rights and investment property, now
owned or hereafter acquired by Debtor (or by Debtor with spouse);
(b) [ ] Scheduled Collateral. If checked here, all inventory, accounts,
contract rights, equipment, fixtures, general intangibles, instruments,
documents deposit accounts (unless a security interest would render a nontaxable
account taxable), letter of credit rights, commercial tort claims, investment
property, documents and chattel paper described in the attached schedule and any
additional schedules delivered by Debtor to Lender from time to time, now owned
or hereafter acquired by Debtor (or by Debtor with spouse);
(c) [X] Specific Collateral. If checked here, the following described
property now owned or hereafter acquired by Debtor (or by Debtor with spouse):
See SCHEDULE A.
(d) [ ] All Inventory. If checked here, all inventory and documents
relating to inventory now owned or hereafter acquired by Debtor (or by Debtor
with spouse);
(e) [ ] All Receivables. If checked here, all accounts, contract
rights, chattel paper, letter of credit rights and instruments now owned or
hereafter acquired by Debtor (or by Debtor with spouse);
(f) [ ] All Equipment. If checked here, all equipment and fixtures now
owned or hereafter acquired by Debtor (or by Debtor with spouse);
(g) [ ] All General Intangibles. If checked here, all general
intangibles now owned or hereafter acquired by Debtor (or by Debtor with
spouse);
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and all additions and accessions to, all spare and repair parts, special tools,
equipment and replacements for and (subject to Section 5(b), below) all proceeds
and products of, the foregoing.
3. DEBTOR'S WARRANTIES
Debtor warrants that while any of the Obligations are unpaid:
(A) OWNERSHIP AND USE. Debtor owns the Collateral free of all
encumbrances and security interests (except Lender's security interest). Lender
acknowledges that Debtor has previously pledged the Collateral as security for
other obligations and that active financing statements remain on file. Debtor
believes that it is entitled to have such financing statements terminated and
agrees to use commercially reasonable efforts to effect termination. Debtor,
acting alone, may grant a security interest in the Collateral. The Collateral is
used or bought for use primarily for business purposes.
(B) VALID ORGANIZATION. Debtor is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has made
application for authorization to do business in Wisconsin.
(C) OTHER AGREEMENTS. Other than as set forth in Schedule 3.c, Debtor
is not in default under any agreement for the payment of money, except where
subject to a bona fide dispute.
(D) AUTHORITY TO CONTRACT. The execution and delivery of this Agreement
and any instruments evidencing Obligations will not violate or constitute a
breach of Debtor's Certificate of Incorporation, by-laws or any other agreement
or restriction to which Debtor is a party or is subject.
(E) ACCURACY OF INFORMATION. All information or certificates given to
Lender in writing pursuant to this Agreement shall be true and complete when
given.
(F) NAME AND ADDRESS. Debtor's exact legal name is as set forth below
Section 10. The address of Debtor's chief executive office is as set forth below
Section 10.
(G) LOCATION. The addresses where the Collateral will be kept, in
addition to that appearing below Section 10, are: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Riverfront Plaza Building, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The locations at which
Collateral may be located shall not be added to without prior written consent of
Lender, but the parties intend that the Collateral, wherever located, is covered
by this Agreement.
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(H) ORGANIZATION. If Debtor is an organization, the type of
organization and the state under whose law it is organized are as set forth
below Section 10.
(I) ENVIRONMENTAL LAWS. With respect to the Collateral, Debtor in the
past has been, at the present is, and in the future will remain in material
compliance with all Environmental Laws. Debtor shall indemnify and hold harmless
Lender, its directors, officers, employees and agents from all loss, cost
(including reasonable attorneys' fees and legal expenses), liability and damage
whatsoever directly or indirectly resulting from, arising out of the violation
or alleged violation of any Environmental Law, permit, judgment or license, and
Debtor shall immediately notify Lender in writing of any governmental or
regulatory action or third-party claim instituted or threatened in connection
with any such violation.
4. INTENTIONALLY LEFT BLANK
5. SALE AND COLLECTIONS
(A) VERIFICATION. Lender may verify Collateral in any reasonable
manner, and Debtor shall assist Lender in so doing.
(B) SALES; APPLICATION OF PROCEEDS. Debtor may sell the Collateral, at
commercially reasonable prices, and may retain the first $400,000 of proceeds.
Debtor will provide Lender with prompt notice of sales of Collateral and the
proceeds received from sales. To the extent proceeds from sales of Collateral
exceed a total of $400,000, Debtor shall remit proceeds in excess of $400,000 to
Lender for application against the Obligations not later than the third business
day following the day of their receipt.
6. DEBTOR'S COVENANTS
(A) MAINTENANCE OF COLLATERAL. Debtor shall: maintain the Collateral in
good condition and repair and not permit its value to be impaired (other than as
a result of normal wear and tear); keep it free from all liens, encumbrances and
security interests (other than Lender's security interest and as Lender may
permit); defend it against all claims and legal proceedings by persons other
than Lender; pay and discharge when due all taxes, license fees, levies, and
other charges upon it; not lease or license it or permit it to become a fixture
or an accession to other goods; and not permit it to be used in violation of any
applicable law, regulation or policy of insurance. Loss of or damage to the
Collateral shall not release Debtor from any of the Obligations.
(B) INSURANCE. Debtor shall keep the Collateral and Lender's interest
in it insured under policies with provisions substantially similar to the
insurance as in effect on the date of this Agreement and shall furnish evidence
of such insurance satisfactory to Lender.
(C) MAINTENANCE OF SECURITY INTEREST. Debtor shall pay all expenses
and, upon request, take any action reasonably deemed advisable by Lender to
preserve the Collateral or to establish, evidence, determine and maintain
priority of, perfect, continue perfected, terminate
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and/or enforce Lender's interest in it or rights under this Agreement. Debtor
authorizes Lender to file Uniform Commercial Code financing statements
describing the Collateral and amendments to such financing statements, and, when
all Obligations have been satisfied, Lender agrees to release such financing
statements. Debtor will cooperate with Lender in obtaining control of Collateral
and other security for the Obligations for which control may be required to
perfect lender's security interest under applicable law. If the Collateral is in
possession of a third party, Debtor will join with Lender at its request in
notifying the third party of Lender's security interest and obtaining an
acknowledgment from the third party that it is holding the Collateral for the
benefit of Lender.
(D) TAXES AND OTHER CHARGES. Debtor shall pay and discharge all lawful
taxes, assessments and government charges upon Debtor or against its properties
prior to the date on which penalties attach, unless and to the extent only that
such taxes, assessments and charges are contested in good faith and by
appropriate proceedings by Debtor.
(E) RECORDS AND STATEMENTS. Debtor shall furnish to Lender: (i)
unaudited quarterly financial statements (for the first three quarters of the
fiscal year) within 45 days following the end of the quarter; (ii) audited
annual financial statements within 90 days following the end of the year; and
(iii) from time to time, as reasonably requested by Lender (but not more
frequently than monthly), a statement of compliance with the collateral coverage
requirements of the Subordinated Note.
(F) INSPECTION OF COLLATERAL. At reasonable times Lender may examine
the Collateral and Debtor's records pertaining to it, wherever located, and make
copies of records, and Debtor shall assist Lender in so doing.
(G) RETURNS AND REPOSSESSIONS. Debtor shall promptly notify Lender of
the return to or repossession by Debtor of goods underlying any Collateral and
Debtor shall hold and dispose of them only as Lender directs.
(H) CHANGE OF NAME, ADDRESS OR ORGANIZATION. Debtor shall not change
Debtor's legal name or address without providing at least 30 days prior written
notice of the change to Lender. Debtor agrees to give Lender reasonable prior
notice of any transaction or a series of related transactions, a merger into or
consolidation with any other organization, a change of Debtor's legal structure
or a sale or transfer of all or substantially all of Debtor's assets.
7. RIGHTS OF LENDER
(A) AUTHORITY TO PERFORM FOR DEBTOR. Upon the occurrence of an event of
default or if Debtor fails to perform any of Debtor's duties set forth in this
Agreement or in any evidence of or document relating to the Obligations, after
giving effect to any notice requirements or opportunities to cure (or both),
Lender is authorized, in Debtor's name or otherwise, to take any such action
including without limitation signing Debtor's name or paying any amount so
required, and the cost shall be one of the Obligations secured by this Agreement
and shall be payable by Debtor upon demand with interest from the date of
payment by Lender at the highest
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rate stated in any evidence of any Obligation but not in excess of the maximum
rate permitted by law.
(B) CHARGING DEBTOR'S CREDIT BALANCE. Lender may, at any time after the
occurrence of an event of default, after giving effect to any notice
requirements or opportunities to cure (or both), set-off all or any part of the
unpaid balance of the Obligations against any deposit balances Debtor may have
with Lender.
(C) NON-LIABILITY OF LENDER. Lender has no duty to protect, insure,
collect or realize upon the Collateral or preserve rights in it against prior
parties. Debtor releases Lender from any liability for any act or omission
relating to the Collateral, except Lender's willful misconduct.
8. DEFAULT
Upon the occurrence of one or more of the following events of default:
(A) NONPERFORMANCE. Debtor fails to pay when due any of the Obligations
or to perform, or rectify breach of, any warranty or covenant or other
undertaking by Debtor in this Agreement or in any written evidence of or
document relating to the Obligations, or an event of default occurs under the
Subordinated Note; or
(B) MISREPRESENTATION. Any representation made by Debtor to Lender in
writing to induce Lender to extend credit to Debtor, under this Agreement or the
Subordinated Note, is false in any material respect when made;
all of the Obligations shall, at the option of Lender and without any notice or
demand, become immediately payable; and Lender shall have all rights and
remedies for default provided by the Wisconsin Uniform Commercial Code, as well
as any other applicable law and any evidence of or document relating to any
Obligation. With respect to such rights and remedies:
(C) REPOSSESSION. Lender may take possession of Collateral without
notice or hearing, which Debtor waives;
(D) ASSEMBLING COLLATERAL. Lender may require Debtor to assemble the
Collateral and to make it available to Lender at the locations set forth in
section 3(g);
(E) NOTICE OF DISPOSITION. Written notice, when required by law, sent
to any address of Debtor in this Agreement at least 10 calendar days (counting
the day of sending) before the date of a proposed disposition of the Collateral
is reasonable notice;
(F) EXPENSES AND APPLICATION OF PROCEEDS. Debtor shall reimburse Lender
for any reasonable expense incurred by Lender in protecting or enforcing its
rights under this Agreement before and after judgment, including, without
limitation, reasonable attorneys' fees and legal expenses of taking possession,
holding, preparing for disposition and disposing of the Collateral (provided,
however, Lender has no obligation to clean-up or otherwise prepare the
Collateral for sale). After deduction of such expenses, Lender shall apply the
proceeds of disposition to the
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extent actually received in cash to the Obligations, in such order and amounts
as it elects or as otherwise required by this Agreement; and
(G) WAIVER. Lender may permit Debtor to remedy any default without
waiving the default so remedied, and Lender may waive any default without
waiving any other subsequent or prior default by Debtor.
9. INTERPRETATION
The validity, construction and enforcement of this Agreement are
governed by the internal laws of Wisconsin. All terms not otherwise defined have
the meanings assigned to them by the Wisconsin Uniform Commercial Code, as
amended from time to time, provided, however, that the term "instrument" shall
be such term as defined in the Wisconsin Uniform Commercial Code-Secured
Transactions Chapter 409. All references in this Agreement to sections of the
Wisconsin Statues are to those sections as they may be renumbered from time to
time. Invalidity of any provision of this Agreement shall not affect the
validity of any other provision. This Agreement is intended by Debtor and Lender
as a final expression of this Agreement and as a complete and exclusive
statement of its terms, there being no conditions to the enforceability of this
Agreement. This Agreement may not be supplemented or modified except in writing.
10. PERSONS BOUND AND OTHER PROVISIONS
This Agreement benefits Lender, its successors and assigns, and binds
Debtor(s) and their respective heirs, personal representatives, successors and
assigns and shall bind all persons and entities who become bound as a debtor to
this agreement.
[ ] If checked here, this Agreement amends and replaces in their entirety the
provisions of all existing Selective Business Security Agreements between Debtor
and Lender, provided, however, that all security interests granted to Lender
under those existing agreements shall remain in full force and effect, subject
to the provisions of this Agreement.
Debtor: Lender:
Integrated Information Systems, Inc., AnchorBank, fsb
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: EVP & CFO Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SEE SECTION 3(f)
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