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EXHIBIT 10.16
[LOGO]
SECURITY AGREEMENT
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As of March 16, 2001, for value received, the undersigned ("Debtor") grants to
Comerica Bank-California ("Bank"), a California banking corporation, a
continuing security interest in the Collateral (as defined below) to secure
payment when due, whether by stated maturity, demand acceleration or otherwise,
of all existing and future indebtedness ("Indebtedness") to the Bank of Calico
Commerce, Inc. ("Borrower") and/or Debtor. Indebtedness includes without limit
any and all obligations or liabilities of the Borrower and/or Debtor to the
Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown;
any and all obligations or liabilities for which the Borrower and/or Debtor
would otherwise be liable to the Bank were it not for the invalidity or
unenforceability of them by reason of any bankruptcy, insolvency or other law,
or for any other reason; any and all amendments, modifications, renewals and/or
extensions of any of the above; all costs incurred by Bank in establishing,
determining, continuing, or defending the validity or priority of its security
interest, or in pursuing its rights and remedies under this Agreement or under
any other agreement between Bank and Borrower and/or Debtor or in connection
with any proceeding involving Bank as a result of any financial accommodation
to Borrower and/or Debtor; and all other costs of collecting Indebtedness,
including without limit attorney fees. Debtor agrees to pay Bank all such costs
incurred by the Bank, immediately upon demand, and until paid all costs shall
bear interest at the highest per annum rate applicable to any of the
Indebtedness, but not in excess of the maximum rate permitted by law. Any
reference in this Agreement to attorney fees shall be deemed a reference to
reasonable fees, costs, and expenses of both in-house and outside counsel and
paralegals, whether or not a suit or action is instituted and to court costs if
a suit or action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy, administrative
or probate proceeding or otherwise.
1. Collateral shall mean all of the following property Debtor now or later
owns or has an interest in, wherever located:
* specific items listed below and/or on attached Schedule A, if any,
is/are also included in Collateral: Money Market, account
#1890682436 maintained at Bank dated March 25, 1997 in the name of
Calico Commerce, Inc. in an amount equal to $750,000.00 and all
subsequent renewals or replacements thereof.
* all goods, instruments, documents, policies and certificates of
insurance, deposits, money or other property (except real property
which is not a fixture) which are now or later in possession of
Bank, or as to which Bank now or later controls possession by
documents or otherwise, and
* all additions, attachments, accessions, parts, replacements,
substitutions, renewals, interest, dividends, distributions, rights
of any kind (including but not limited to stock splits, stock
rights, voting and preferential rights), products, and proceeds of
or pertaining to the above including, without limit, cash or other
property which were proceeds and are recovered by a bankruptcy
trustee or otherwise as a preferential transfer by Debtor.
2. Warranties, Covenants and Agreements. Debtor warrants, covenants and
agrees as follows:
2.1 Debtor shall furnish to Bank, in form and at intervals as Bank may
request, any information Bank may reasonably request and allow Bank
to examine, inspect, and copy any of Debtor's books and records.
Debtor shall, at the request of Bank, xxxx its records and the
Collateral to clearly indicate the security interest of Bank under
this Agreement.
2.2 At the time any Collateral becomes, or is represented to be,
subject to a security interest in favor of Bank, Debtor shall be
deemed to have warranted that (a) Debtor is the lawful owner of the
Collateral and has the right and authority to subject it to a
security interest granted to Bank; (b) none of the Collateral is
subject to any security interest other than that in favor of Bank
and there are no financing statements on file, other than in favor
of Bank; and (c) Debtor acquired its rights in the Collateral in
the ordinary course of its business.
2.3 Debtor will keep the Collateral free at all times from all claim,
liens, security interests and encumbrances other than those in
favor of Bank. Debtor will not, without the prior written consent
of Bank, sell, transfer or lease, or permit to be sold, transferred
or leased, any or all of the Collateral, except (where Inventory is
pledged as Collateral) for Inventory in the ordinary course of its
business and will not return any Inventory to its supplier. Bank or
its representatives may at all reasonable times inspect the
Collateral and may enter upon all premises where the Collateral is
kept or might be located.
2.4 Debtor will do all acts and will execute or cause to be executed
all writings requested by Bank to establish, maintain and continue
a perfected and first security interest of Bank in the Collateral.
Debtor agrees that Bank has no obligation to acquire or perfect any
lien on or security interest in any asset(s), whether realty or
personality, to secure payment of the Indebtedness, and Debtor is
not relying upon assets in which the Bank may have a lien or
security interest for payment of the Indebtedness.
2.5 Debtor will pay within the time that they can be paid without
interest or penalty all taxes, assessments and similar charges
which at any time are or may become a lien, charge, or encumbrance
upon any Collateral, except to the extent contested in good faith
and bonded in a manner satisfactory to Bank. If Debtor fails to pay
any of these taxes, assessments, or other charges in the time
provided above, Bank has the option (but not the obligation) to do
so and Debtor agrees to repay all amounts so expended by Bank
immediately upon demand, together with interest at the highest
lawful default rate which could be charged by Bank on any
Indebtedness.
2.6 Debtor will keep the Collateral in good condition and will protect
it from loss, damage, or deterioration from any cause. Debtor has
and will maintain at all times (a) with respect to the Collateral,
insurance under an "all risk" policy against fire and other risks
customarily insured against, and (b) public liability insurance and
other insurance as may be required by law or reasonably required by
Bank, all of which insurance shall be in amount, form and content,
and written by companies as may be satisfactory to Bank, containing
a lender's loss payable endorsement acceptable to Bank. Debtor will
deliver to Bank immediately upon demand evidence satisfactory to
Bank that the required insurance has been procured. If Debtor fails
to maintain satisfactory insurance, Bank has the option (but not
the obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest at
the highest lawful default rate which could be charged by Bank on
any Indebtedness.
2.7 If Accounts Receivable are pledged as Collateral under this
Agreement, then on each occasion on which Debtor evidences to Bank
the account balances on and the nature and extent of the Accounts
Receivable, Debtor shall be deemed to have warranted that except as
otherwise indicated (a) each of those Accounts Receivable is valid
and enforceable without performance by Debtor of any act; (b) each
of those account balances are in fact owing, (c) there are no
setoffs, recoupments, credits, contra accounts, counterclaims or
defenses against any of those Accounts Receivable, (d) as to any
Account Receivable represented by a note, trade acceptance, draft
or other instrument or by any chattel paper or document, the same
have been endorsed and/or delivered by Debtor to Bank, (e) Debtor
has not received with respect to any Account Receivable, any notice
of the death of the related account debtor, nor of the dissolution,
liquidation, termination of existence, insolvency, business
failure, appointment of a receiver for, assignment for the benefit
of creditors by, or filing of a petition in bankruptcy by or
against, the account debtor, and (f) as to each Account Receivable,
the account debtor is not an affiliate of Debtor, the United States
of America or any department, agency or instrumentality of it, or a
citizen or resident of any jurisdiction outside of the United
States. Debtor will do all acts and will execute all writings
requested by Bank to perform, enforce performance of, and collect
all Accounts Receivable. Debtor shall neither make nor permit any
modification, compromise or substitution for any Account Receivable
without the prior written consent of Bank. Debtor shall, at Bank's
request, arrange for verification of Accounts Receivable directly
with account debtors or by other methods acceptable to Bank.
2.8 Debtor at all times shall be in strict compliance with all
applicable laws, including without limit any laws,
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ordinances, directives, orders, statutes, or regulations an object of
which is to regulate or improve health, safety, or the environment
("Environmental Laws").
2.9 If marketable securities are pledged as Collateral under this
Agreement and if at any time the outstanding principal balance of the
Indebtedness exceeds (N/A) of the value of the Collateral, as such
value is determined from time to time by Bank (herein called the
"Margin Requirement"), Debtor shall immediately pay or cause to be
paid to Bank an amount sufficient to reduce the Indebtedness such that
the remaining principal outstanding thereunder is equal to or less
than the Margin Requirement. Bank shall apply payments made under this
paragraph in payment of the Indebtedness in such order and manner of
application as Bank collateral in the form of cash or other property
acceptable to Bank and with a value, as determined by Bank, that when
added to the Collateral will constitute compliance with the Margin
Requirement.
2.10 If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of (a) the ultimate sale
or exchange thereof; or (b) presentation, collection, renewal, or
registration of transfer thereof; or (c) loading, unloading, storing,
shipping, transshipping, manufacturing, processing or otherwise
dealing with its preliminary to sale or exchange; such redelivery
shall be in trust for the benefit of Bank and shall not constitute a
release of Bank's security interest in it or in the proceeds or
products of its unless Bank specifically so agrees in writing. If
Debtor requests any such redelivery, Debtor will deliver with such
request a duly executed financing statement in form and substance
satisfactory to Bank. Any proceeds of Collateral coming into Debtor's
possession as a result of any such redelivery shall be held in trust
for Bank and immediately delivered to Bank for application on the
Indebtedness. Bank may (in its sole discretion) deliver any or all of
the Collateral to Debtor, and such delivery by Bank shall discharge
Bank from all liability or responsibility for such Collateral. Bank,
at its option, may require delivery of any Collateral to Bank at any
time with such endorsements or assignments of the Collateral as Bank
may request.
2.11 At any time and without notice, Bank may, as to Collateral other than
Equipment, Fixtures or Inventory, (a) cause any or all of such
Collateral to be transferred to its name or to the name of its
nominee; (b) receive or collect by legal proceedings or otherwise all
dividends, interest, principal payments and other sums and all other
distributions at any time payable or receivable on account of such
Collateral, and hold the same as Collateral, or apply the same to the
Indebtedness, the manner and distribution of the application to be in
the sole discretion of Bank; (c) enter into any extension,
subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting such
Collateral, and deposit or surrender control of such Collateral, and
accept other property in exchange for such Collateral and hold or
apply the property or money so received pursuant to this Agreement.
2.12 Bank may assign any of the Indebtedness and deliver any or all of the
Collateral to its assignee, who then shall have with respect to
Collateral so delivered all the rights and powers of Bank under this
Agreement, and after that Bank shall be fully discharged from all
liability with respect to Collateral so delivered.
2.13 Debtor delivers this Agreement based solely on Debtor's independent
investigation of (or decision not to investigate) the financial
condition of Borrower and is not relying on any information furnished
by Bank. Debtor assumes full responsibility for obtaining any further
information concerning the Borrower's financial condition, the status
of the Indebtedness or any other matter which the undersigned may deem
necessary or appropriate now or later. Debtor waives any duty on the
part of Bank, and agrees that Debtor is not relying upon nor expecting
Bank to disclose to Debtor any fact now or later known by Bank,
whether relating to the operations or condition of Borrower, the
existence, liabilities or financial condition of any guarantor of the
Indebtedness, the occurrence of any default with respect to the
Indebtedness, or otherwise, notwithstanding any effect such fact may
have upon Debtor's risk or Debtor's rights against Borrower. Debtor
knowingly accepts the full range of risk encompassed in this
Agreement, which risk includes without limit the possibility that
Borrower may incur Indebtedness to Bank after the financial condition
of Borrower, or Borrower's ability to pay debts as they mature, has
deteriorated.
2.14 Debtor shall defend, indemnify and hold harmless Bank, its employees,
agents, shareholders, affiliates, officers, and directors from and
against any and all claims, damages, fines, expenses, liabilities or
causes of action of whatever kind, including without limit consultant
fees, legal expenses, and attorney fees, suffered by any of them as a
direct or indirect result of any actual or asserted violation of any
law, including, without limit, Environmental Laws, or of any
remediation relating to any property required by any law, including
without limit Environmental Law.
3. Collection of Proceeds
3.1 Debtor agrees to collect and enforce payment of all Collateral until
Bank shall direct Debtor to the contrary. Immediately upon notice to
Debtor by Bank and at all times after that, Debtor agrees to fully and
promptly cooperate and assist Bank in the collection and enforcement
of all Collateral and to hold in trust for Bank all payments received
in connection with Collateral and from the sale, lease or other
disposition of any Collateral, all rights by way of suretyship or
guaranty and all rights in the nature of a lien or security interest
which Debtor nor or later has regarding Collateral. Immediately upon
and after such notice, Debtor agrees to (a) endorse to Bank and
immediately deliver to Bank all payments received on Collateral or
from the sale, lease or other disposition of any Collateral or arising
from any other rights or interests of Debtor in the Collateral, in the
form received by Debtor without commingling with any other funds, and
(b) immediately deliver to Bank all property in Debtor's possession or
later coming into Debtor's possession through enforcement of Debtor's
rights or interests in the Collateral. Debtor immediately authorizes
Bank or any Bank employee or agent to endorse the name of Debtor upon
any checks or other items which are received in payment for any
Collateral, and to do any and all things necessary in order to reduce
these items to money. Bank shall have no duty as to the collection or
protection of Collateral or the proceeds of it, nor as to the
preservation of any related rights, beyond the use of reasonable care
in the custody and preservation of Collateral in the possession of
Bank. Debtor agrees to take all steps necessary to preserve rights
against prior parties with respect to the Collateral. Nothing in this
Section 3.1 shall be deemed a consent by Bank to any sale, lease or
other disposition of any Collateral.
3.2 If Accounts Receivable are pledged as Collateral, this Section 3.2
shall be applicable and Debtor agrees that immediately upon Bank's
request (whether or not any Event of Default exists) the Indebtedness
shall be on a "remittance basis" as follows: Debtor shall at its sole
expense establish and maintain (and Bank, at Bank's option, may
establish and maintain at Debtor's expense): (a) an United States Post
Office Lock box (the "Lock Box"), to which Bank shall have exclusive
access and control. Debtor expressly authorizes Bank, from time to
time, to remove contents from the Lock Box, for disposition in
accordance with this Agreement. Debtor agrees to notify all account
debtors and other parties obligated to Debtor that all payments made
to Debtor (other than payments by electronic funds transfer) shall be
remitted, for the credit of Debtor, to the Lock Box and Debtor shall
include a like statement on all invoices; and (b) a non-interest
bearing deposit account with Bank which shall be titled as designated
by Bank (the "Cash Collateral Account") to which Bank shall have
exclusive access and control. Debtor agrees to notify all account
debtors and other parties obligated to Debtor that all payments made
to Debtor by electronic funds transfer shall be remitted to the Cash
Collateral Account, and Debtor, at Bank's request, shall include a
like statement on all invoices. Debtor shall execute all documents and
authorizations as required by Bank to establish and maintain the Lock
Box and the Cash Collateral Account.
3.3 If Accounts Receivable are pledged as Collateral, this Section 3.3
shall be applicable, and all items or amounts which are remitted to
the Lock Box, to the Cash Collateral Account, or otherwise delivered
by or for the benefit of Debtor to Bank on account of partial or full
payment of, or with respect to, any Collateral shall, at Bank's
option, (i) the applied to the payment of the Indebtedness, whether
then due or not, in such order or at such time of application as Bank
may determine in its sole discretion, or, (ii) be deposited to the
Cash Collateral Account. Debtor agrees that Bank shall not be liable
for any loss or damage which Debtor may suffer as a result of Bank's
processing of items or its exercise of any other rights or remedies
under this Agreement, including without limitation indirect, special
consequential damages, loss of revenues or profits, or any claim,
demand or action by any third party arising out of or in connection
with the processing of items or the exercise of any other rights or
remedies under this Agreement. Debtor agrees to indemnify and hold
Bank harmless from and against all
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such third party claims, demands or actions, and all related expenses
or liabilities, including, without limitation, attorney fees.
4. Defaults, Enforcement and Application of Proceeds
4.1 Upon the occurrence of any of the following events (each an "Event of
Default"), Debtor shall be in default under this Agreement:
(a) Any failure to pay the Indebtedness or any other indebtedness or
any other indebtedness when due, or such portion of its as may be
due, by acceleration or otherwise; or
(b) Any failure or neglect to comply with, or breach of or default
under, any term of this Agreement, or any other agreement or
commitment between Borrower, Debtor, or any guarantor of any of
the Indebtedness ("Guarantor") and Bank; or
(c) Any warranty, representation, financial statement, or other
information made, given or furnished to Bank by or on behalf of
Borrower, Debtor, or any Guarantor shall be, or shall prove to
have been, false or materially misleading when made, given, or
furnished; or
(d) Any loss, theft, substantial damage or destruction to or of any
Collateral, or the issuance or filing of any attachment, levy,
garnishment or the commencement of any proceeding in connection
with any Collateral or of any other judicial process of, upon or
in respect of Borrower, Debtor, any Guarantor, or any Collateral;
or
(e) Sale or other disposition by Borrower, Debtor, or any Guarantor
of any substantial portion of its assets or property or voluntary
suspension of the transaction of business by Borrower, Debtor, or
any Guarantor, or death, dissolution, termination of existence,
merger, consolidation, insolvency, business failure, or
assignment for the benefit of creditors of or by Borrower,
Debtor, or any Guarantor; or commencement of any proceedings
under any state or federal bankruptcy or insolvency laws or laws
for the relief of debtors by or against Borrower, Debtor, or any
Guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part of the
property of Borrower, Debtor, or any Guarantor; or
(f) Bank deems the margin of Collateral insufficient or itself
insecure, in good faith believing that the prospect of payment of
the Indebtedness or performance of this Agreement is impaired or
shall fear deterioration, removal, or waste of Collateral.
4.2 Upon the occurrence of any Event of Default, Bank may at its
discretion and without prior notice to Debtor declare any or all of
the Indebtedness to be immediately due and payable, and shall have and
may exercise any one or more of the following rights and remedies:
(a) Exercise all the rights and remedies upon default, in foreclosure
and otherwise, available to secured parties under the provisions
of the Uniform Commercial Code and other applicable law;
(b) Institute legal proceedings to foreclose upon the lien and
security interest granted by this Agreement, to recover judgment
for all amounts then due and owing as Indebtedness, and to
collect the same out of any Collateral or the proceeds of any
sale of it;
(c) Institute legal proceedings for the sale, under the judgment or
decree of any court of competent jurisdiction, of any or all
Collateral; and/or
(d) Personally or by agents, attorneys, or appointment of a receiver,
enter upon any premises where Collateral may then be located, and
take possession of all or any of it and/or render it unusable;
and without being responsible for loss or damage to such
Collateral, hold, operate, sell, lease, or dispose of all or any
Collateral at one or more public or private sales, leasings or
other dispositions, at places and times and on terms and
conditions as Bank may deem fit, without any previous demand or
advertisement; and except as provided in this Agreement, all
notice of sale, lease or other disposition, and advertisement,
and other notice or demand, any right or equity of redemption,
and any obligation of a prospective purchaser or lessee to
inquire to the power and authority of Bank to sell, lease, or
otherwise dispose of the lessee to inquire as to the power and
authority of Bank to sell, lease, or otherwise dispose of the
Collateral or as to the application by Bank of the proceeds of
sale or otherwise, which would otherwise be required by, or
available to Debtor under, applicable law or expressly waived by
Debtor to the fullest extent permitted.
At any sale pursuant to this Section 4.2, whether under the power
of sale, by virtue of judicial proceedings or otherwise, it shall
not be necessary for Bank or a public officer under order of a
court to have present physical or constructive possession of
Collateral to be sold. The recitals contained in any conveyances
and receipts made and given by Bank or the public officer to any
purchaser at any sale made pursuant to this Agreement shall, to
the extent permitted by applicable law, conclusively establish
the truth and accuracy of the matters stated (including, without
limit, as to the amounts of the principal of and interest on the
Indebtedness, the accrual and nonpayment of it and advertisement
and conduct of the sale); and all prerequisites to the sale shall
be presumed to have been satisfied and performed. Upon any sale
of any Collateral, the receipt of the officer making the sale
under judicial proceedings or of Bank shall be sufficient
discharge to the purchaser for the purchase money, and the
purchaser shall not be obligated to see to the application of the
money. Any sale of any Collateral under this Agreement shall be a
perpetual bar against Debtor with respect to that Collateral.
4.3 Debtor shall at the request of Bank, notify the account debtors or
obligors of Bank's security interest in the Collateral and direct
payment of it to Bank. Bank may, itself, upon the occurrence of any
Event of Default so notify and direct any account debtor or obligor.
4.4 The proceeds of any sale or other disposition of Collateral authorized
by this Agreement shall be applied by Bank first upon all expenses
authorized by the Uniform Commercial Code and all reasonable attorney
fees and legal expenses incurred by Bank; the balance of the proceeds
of the sale or other disposition shall be applied in the payment of
the Indebtedness, first to interest, then to principal, then to
remaining Indebtedness and the surplus, if any, shall be paid over to
Debtor or to such other person(s) as may be entitled to it under
applicable law. Debtor shall remain liable for any deficiency, which
it shall pay to Bank immediately upon demand.
4.5 Nothing in this Agreement is intended, nor shall it be construed, to
preclude Bank from pursuing any other remedy provided by law for the
collection of the Indebtedness or for the recovery of any other sum to
which Bank may be entitled for the breach of this Agreement by Debtor.
Nothing in this Agreement shall reduce or release in any way any
rights or security interests of Bank contained in any existing
agreement between Borrower, Debtor, or any Guarantor and Bank.
4.6 No waiver of default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized officer of
Bank. No waiver of any default or forbearance on the part of Bank in
enforcing any of its rights under this Agreement shall operate as a
waiver of any other default or of the same default on a future
occasion or of any rights.
4.7 Debtor irrevocably appoints Bank or any agent of Bank (which
appointment is coupled with an interest) the true and lawful attorney
of Debtor (with full power of substitution) in the name, place and
stead of, and at the expense of, Debtor:
(a) to demand, receive, xxx for, and give receipts or acquittances
for any moneys due or to become due on any Collateral and to
endorse any item representing any payment on or proceeds of the
Collateral;
(b) to execute and file in the name of and on behalf of Debtor all
financing statements or other filings deemed necessary or
desirable by Bank to evidence, perfect, or continue the security
interests granted in this
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Agreement; and
(c) to do and perform any act on behalf of Debtor permitted
or required under this Agreement.
4.8 Upon the occurrence of an Event of Default, Debtor also agrees,
upon request of Bank, to assemble the Collateral and make it
available to Bank at any place designated by Bank which is
reasonably convenient to Bank and Debtor.
5. Miscellaneous.
5.1 Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or
by Law shall be given to, or made upon, Debtor at the first
address indicated in Section 5.15 below.
5.2 Debtor will give Bank not less than 90 days prior written notice
of all contemplated changes in Debtor's name, chief executive
office location, and/or location of any Collateral, but the
giving of this notice shall not cure any Event of Default caused
by this change.
5.3 Bank assumes no duty of performance or other responsibility
under any contracts contained within the Collateral.
5.4 Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the
Indebtedness and any related obligations, including without
limit this Agreement. In connection with the above, but without
limiting its ability to make other disclosures to the full
extent allowable, Bank may disclose all documents and
information which Bank now or later has relating to Debtor, the
Indebtedness or this Agreement, however obtained. Debtor further
agrees that Bank may provide information relating to this
Agreement or relating to Debtor to the Bank's parent,
affiliates, subsidiaries, and service providers.
5.5 In addition to Bank's other rights, any indebtedness owing from
Bank to Debtor can be set off and applied by Bank on any
Indebtedness at any time(s) either before or after maturity or
demand without notice to anyone.
5.6 Debtor waives any right to require the Bank to: (a) proceed
against any person or property; (b) give notice of the terms,
time and place of any public or private sale of personal
property security held from Borrower or any other person, or
otherwise comply with the provisions of Section 9-504 of the
Uniform Commercial Code; or (c) pursue any other remedy in the
Bank's power. Debtor waives notice of acceptance of this
Agreement and presentment, demand, protest, notice of protest,
dishonor, notice of dishonor, notice of default, notice of
intent to accelerate or demand payment of any Indebtedness, any
and all other notices to which the undersigned might otherwise
be entitled, and diligence in collecting any Indebtedness, and
agree(s) that the Bank may, once or any number of times, modify
the terms of any Indebtedness, compromise, extend, increase,
accelerate, renew or forbear to enforce payment of any or all
Indebtedness, or permit Borrower to incur additional
Indebtedness, all without notice to Debtor and without affecting
in any manner the unconditional obligation of Debtor under this
Agreement. Debtor unconditionally and irrevocably waives each
and every defense and setoff of any nature which, under
principles of guaranty and otherwise, would operate to impair or
diminish in any way the obligation of Debtor under this
Agreement, and acknowledges that such waiver is by this
reference incorporated into each security agreement, collateral
assignment, pledge and/or other document from Debtor now or
later securing the Indebtedness, and acknowledges that as of the
date of this Agreement no such defense or setoff exists.
5.7 Debtor waives any and all rights (whether by subrogation,
indemnity, reimbursement, or otherwise) to recover from Borrower
any amounts paid or the value of any Collateral given by Debtor
pursuant to this Agreement.
5.8 In the event that applicable law shall obligate Bank to give
prior notice to Debtor of any action to be taken under this
Agreement, Debtor agrees that a written notice given to Debtor
at least five days before the date of the act shall be
reasonable notice of the act and, specifically, reasonable
notification of the time and place of any public sale or of the
time after which any private sale, lease, or other disposition
is to be made, unless a shorter notice period is reasonable
under the circumstances. A notice shall be deemed to be given
under this Agreement when delivered to Debtor or when placed in
an envelope addressed to Debtor and deposited, with postage
prepaid, in a post office or official depository under the
exclusive care and custody of the United States Postal Service
or delivered to an overnight courier. The mailing shall be by
overnight courier, certified, or first class mail.
5.9 Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the
effectiveness of this Agreement shall automatically continue or
be reinstated in the event that any payment received or credit
given by Bank in respect of the Indebtedness is returned,
disgorged, or rescinded under any applicable law, including,
without limitation, bankruptcy or insolvency laws, in which case
this Agreement, shall be enforceable against Debtor as if the
returned, disgorged, or rescinded payment or credit had not been
received or given by Bank, and whether or not Bank relied upon
this payment or credit or changed its position as a consequence
of it. In the event of continuation or reinstatement of this
Agreement, Debtor agrees upon demand by Bank to execute and
deliver to Bank those documents which Bank determines are
appropriate to further evidence (in the public records or
otherwise) this continuation or reinstatement, although the
failure of Debtor to do so shall no affect in any way the
reinstatement or continuation.
5.10 This Agreement and all the rights and remedies of Bank under
this Agreement shall inure to the benefit of Bank's successors
and assigns and to any other holder who derives from Bank title
to or an interest in the Indebtedness or any portion of it, and
shall bind Debtor and the heirs, legal representatives,
successors, and assigns of Debtor. Nothing in this Section 5.10
is deemed a consent by Bank to any assignment by Debtor.
5.11 If there is more than one Debtor, all undertakings, warranties
and covenants made by Debtor and all rights, powers and
authorities given to or conferred upon Bank are made or given
jointly and severally.
5.12 Except as otherwise provided in this Agreement, all terms in
this Agreement have the meanings assigned to them in Division 9
(or, absent definition in Division 9, in any other Division) of
the Uniform Commercial Code, as of the date of this Agreement.
"Uniform Commercial Code" means the California Uniform
Commercial Code, as amended.
5.13 No single or partial exercise, or delay in the exercise, of any
right or power under this Agreement, shall preclude other or
further exercise of the rights and powers under this Agreement.
The unenforceability of any provision of this Agreement shall
not affect the enforceability of the remainder of this
Agreement. This Agreement constitutes the entire agreement of
Debtor and Bank with respect to the subject matter of this
Agreement. No amendment or modification of this Agreement shall
be effective unless the same shall be in writing and signed by
Debtor and an authorized officer of Bank. This Agreement shall
be governed by and construed in accordance with the internal
laws of the State of California, without regard to conflict of
laws principles.
5.14 To the extent that any of the Indebtedness if payable upon
demand, nothing contained in this Agreement shall modify the
terms and conditions of that Indebtedness nor shall anything
contained in this Agreement prevent Bank from making demand,
without notice and with or without reason, for immediate payment
of any or all of that Indebtedness at any time(s), whether or
not an Event of Default has occurred.
5.15 Debtor's chief executive office is located and shall be
maintained at
000 Xxxx Xxx Xxxxxx Xxxxxx, #000
---------------------------------
STREET ADDRESS
Xxx Xxxx XX 00000
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CITY STATE ZIP CODE COUNTY
If Collateral is located at other than the chief executive
office, such Collateral is located and shall be maintained at
----------------------------------------------------------------
XXXXXX XXXXXXX
----------------------------------------------------------------
XXXX XXXXX ZIP CODE COUNTY
5
Collateral shall be maintained only at the locations identified in
this Section 5.15.
5.16 A carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement under the Uniform
Commercial Code and may be filed by Bank in any filing office.
5.17 This Agreement shall be terminated only by the filing of a
termination statement in accordance with the applicable provisions
of the Uniform Commercial Code, but the obligations contained in
Section 2.14 of this Agreement shall survive termination.
6. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT
WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING
THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
AGREEMENT OR THE INDEBTEDNESS.
7. Special Provisions Applicable to this Agreement. (*None, if left blank)
DEBTOR: Calico Commerce, Inc.
---------------------------------
DEBTOR NAME TYPED/PRINTED
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
SIGNATURE OF
Its: CFO
------------------------------------
TITLE (If applicable)
By:
-------------------------------------
SIGNATURE OF
Its:
------------------------------------
TITLE (If applicable)
By:
-------------------------------------
SIGNATURE OF
Its:
------------------------------------
TITLE (If applicable)
By:
-------------------------------------
SIGNATURE OF
Its:
------------------------------------
TITLE (If applicable)
Borrower(s):
Calico Commerce, Inc.
PEDESTAL - Dynamic Security Agreement
Revision Date (5/97) GMZ
6
[COMERICA LOGO]
CORPORATION RESOLUTIONS AND INCUMBENCY CERTIFICATION
AUTHORITY TO PROCURE LOANS
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I certify that I am the duly elected and qualified Secretary of Calico Commerce,
Inc., a Delaware corporation (the "Corporation") and the keeper of the records
of the Corporation; that the following is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Corporation in
accordance with its bylaws and applicable statutes.
COPY OF RESOLUTIONS:
Be it Resolved, That:
1. Any (insert number required to sign) (1) one of the following (insert
titles only) CFO of the Corporation are/is authorized, for, on behalf of,
and in the name of the Corporation to:
(a) Negotiate and procure loans, letters of credit and other credit or
financial accommodations from Comerica Bank California (the "Bank"),
a California banking corporation, up to an amount not exceeding
$ Unlimited;
(b) Discount with the Bank, commercial or other business paper belonging
to the Corporation made or drawn by or upon third parties, without
limit as to amount;
(c) Purchase, sell, exchange, assign, endorse for transfer and/or deliver
certificates and/or instruments representing stocks, bonds,
evidences of indebtedness or other securities owned by the
Corporation, whether or not registered in the name of the Corporation;
(d) Give security for any liabilities of the Corporation to the Bank by
grant, security interest, assignment, lien, deed of trust or mortgage
upon any real or personal property, tangible or intangible of the
Corporation; and
(e) Execute and deliver in form and content as may be required by the Bank
any and all notes, evidences of indebtedness, applications for letter
of credit, guaranties, subordination agreements, loan and security
agreements, financing statements, assignments, liens, deeds of trust,
mortgages, trust receipts and other agreements, instruments to
documents to carry out the purposes of those Resolutions, any or all
of which may relate to all or to substantially all of the
Corporation's property and assets.
2. Said Bank be and it is authorized and directed to pay the proceeds of any
such loans or discounts as directed by the persons so authorized to sign,
whether so payable to the order of any of said persons in their individual
capacities or not, and whether such proceeds are deposited to the
individual credit of any of said persons or not;
3. Any and all agreements, instruments and documents previously executed and
acts and things previously done to carry out the purposes of these
Resolutions and ratified, confirmed and approved as the act or acts of the
Corporation.
4. These Resolutions shall continue in force, and the Bank may consider the
holders of said offices and their signatures to be and continue to be as
set forth in a certified copy of these Resolutions delivered to the Bank,
until notice to the contrary in writing is duly served on the Bank (such
notice to have no effect on any action previously taken by the Bank in
reliance on these resolutions.
5. Any person, corporation or other legal entity dealing with the Bank may
rely upon a certificate signed by an officer of the Bank to effect that
these Resolutions and any agreement, instrument or document executed
pursuant to them are still in full force and effect and binding upon the
Corporation.
6. The Bank may consider the holders of the offices of the Corporation and
their signatures, respectively, to be and continue to be as set forth in
the Certificate of the Secretary of the Corporation until notice to the
contrary in writing is duly served on the Bank.
I further certify that the above Resolutions are in full force and effect
as of the date of this Certificate; that these Resolutions and any
borrowings or financial accommodations under these Resolutions have been
properly noted in the corporate books and records, and have not been
rescinded, annulled, revoked, or modified; that neither the foregoing
Resolutions nor any actions to be taken pursuant to them are or will be in
contravention of any provision of the articles of incorporation or bylaws
of the Corporation or of any agreement, indenture or other instrument to
which the Corporation is a party or by which it is bound; and that neither
the articles of incorporation nor bylaws of the Corporation nor any
agreement, indenture or other instrument to which the Corporation is a
party or by which it is bound require the vote or consent of shareholders
of the Corporation to authorize any act, matter or thing described in the
foregoing Resolutions.
I further certify that the following named persons have been duly elected to
the offices set opposite their respective names, that they continue to hold
these offices at the present time, and that the signatures which appear below
are the genuine, original signatures of each respectively.
(PLEASE SUPPLY GENUINE SIGNATURES OF AUTHORIZED SIGNERS BELOW)
NAME (Type or Print) TITLE SIGNATURE
XXXXXX X. XXXXXX CFO /s/ XXXXXX X. XXXXXX
------------------------- ------------------------- -------------------------
------------------------- ------------------------- -------------------------
------------------------- ------------------------- -------------------------
------------------------- ------------------------- -------------------------
------------------------- ------------------------- -------------------------
------------------------- ------------------------- -------------------------
In Witness Whereof, I have affixed my name as Secretary and have caused the
corporate seal of said Corporation to be affixed on April 17, 2001.
/s/ X X XXXXX
------------------------------
Xxxxxxx Xxxxx, Asst. Secretary
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The Above Statements are Correct.
-----------------------------------------------
SIGNATURE OF OFFICER OR DIRECTOR OR, IF NONE,
A SHAREHOLDER OTHER THAN SECRETARY IS
AUTHORIZED TO SIGN ALONE
Failure to complete the above when the Secretary is authorized to sign alone
shall constitute a certification by the Secretary that the Secretary is the sole
Shareholder, Director and Officer of the Corporation.
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CP 00 190 (3-2000)
