EXECUTION COPY
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of December 29, 2000 (this
"Agreement"), by and between XXXXXXXXXXXX.XXX, INC. (d/b/a XxxxXxx.xxx), a
Pennsylvania corporation (the "Grantor"), and SEDONA CORPORATION, a Pennsylvania
corporation, as Lender (the "Lender").
WHEREAS, pursuant to the terms of a Disbursement Agreement,
dated as of December 29, 2000 (as the same may be amended, modified or restated
from time to time, the "Disbursement Agreement") by and among the Grantor and
the Lender, the Lender has agreed to make Loans to the Grantor in the amounts
set forth on Exhibit A to the Disbursement Agreement.
WHEREAS, the Grantor, as an inducement to the Lender to make
the Loans, has agreed to grant to the Lender a security interest in the
Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Security Interest. As security for the payment and performance when
and as due of all Obligations, Grantor hereby grants to the Lender, a continuing
security interest in and a lien upon, and a right of set off against, and hereby
assigns to the Lender as security all of the following types of its property in
which it has a right or interest now existing or hereafter acquired or arising,
wherever such property is located or situated, including all parts, accessions,
substitutions, replacements, proceeds (including all cash received in respect of
any Collateral) and products thereof, thereto and therefor:
(a) all (i) copyrights, copyright registrations and
applications for copyright registration, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto (collectively, "Copyrights"), (ii)
patents and patent applications, including, without limitation, the inventions
and improvements described and claimed therein together with the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof, all income, royalties, damages and payments now or hereafter due and/or
payable under and with respect thereto, including, without limitation, damages
and payments for past or future infringements thereof, the right to xxx for
past, present and future infringements thereof, and all rights corresponding
thereto throughout the world ("Patents"), and (iii) trademarks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, service marks, logos, prints and labels on which said trademarks,
corporate names, company names, business names, fictitious business names, trade
names, trade styles and service marks have appeared or appear, designs and
general intangibles of like nature, and the goodwill associated therewith, now
existing or hereafter adopted or acquired, all right, title and interest therein
and thereto, and all registrations and recordings thereof, including, without
limitation, applications, registrations and recordings in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof, or any other country or any political
subdivision thereof, all whether now owned or hereafter acquired (collectively,
"Trademarks") together with (A) all inventions, processes, production methods,
proprietary information, know-how and trade secrets used or useful in its
business, including, but not limited to, all HTML code and all other software
code provided or developed by Grantor for any and all of its customers; (B) all
licenses or user or other agreements granted to it with respect to any of the
foregoing, in each case whether now or hereafter owned or used; (C) all
information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery
software and programs, and the like; (D) all field repair data, sales data and
other information relating to sales or service of products now or hereafter
manufactured; (E) all accounting information and all media in which or on which
any of the information or knowledge or data or records may be recorded or stored
and all computer programs used for the compilation or printout of such
information, knowledge, records or data; (F) all licenses, consents, permits,
variances, certifications and approvals of governmental agencies now or
hereafter held; and (G) all causes of action, claims and warranties now or
hereafter owned or acquired in respect of any of the items listed above;
(b) all books and records (including computer databases and
software for accessing it) related to any of the foregoing; and
(c) all proceeds, products and accessions of and to any of the
property described in clauses (a) and (b) above in this Section 1 (including,
without limitation, any proceeds of insurance thereon), and, to the extent
related to any property described in said clauses or such proceeds, products and
accessions, all books, correspondence, credit files, records, invoices and other
papers, including without limitation all tapes, cards, computer runs and other
papers and documents in the possession or under its control or any computer
bureau or service company from time to time acting for it.
All of the foregoing property and interests described in this Section 1 and any
part thereof is hereinafter called "Collateral". The security interest granted
hereby shall be continuing and shall secure all present and future Obligations
whether or not at some prior point in time all Obligations then outstanding
shall have been satisfied.
2. Representations and Warranties. (a) The chief executive office of
the Grantor is as set forth on Schedule A. Grantor hereby warrants and
represents that, except for the Lender's security interest hereunder and as
otherwise described on Schedule B hereto, Grantor is the sole owner of the
Collateral, free from any Lien, claim, set-off, defense or counterclaim; that
all items of Collateral are in all respects what they purport to be; that there
is no financing statement now on file in any public office covering any
Collateral; and there is no fact that would impair its title to the Collateral,
the Collateral's validity or enforceability, Grantor's ability to perform its
obligations hereunder, the Lender' rights hereunder, or the validity or
enforceability or first priority of the security interest and lien upon the
Collateral created by this Agreement.
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(b) As of the date hereof, Grantor does not own or use any
Copyrights, Patents or Trademarks or any Copyrights, Patents or Trademarks
registered in, or the subject of pending applications in, the United States
Copyright Office or United States Patent and Trademark Office or any similar
office or agency of any other country or any political subdivision thereof,
other than those described in Schedule C, Schedule D and Schedule E hereto,
respectively.
(c) Grantor further warrants that it has no actual knowledge
of any third party claim that any aspect of Grantor's present or contemplated
business operations infringes or will infringe any Trademarks. Grantor
represents and warrants that all United States Trademark registrations and
applications listed in Schedule E hereto are valid, subsisting, have not been
canceled and that Grantor is not aware of any third-party claim that any of said
registrations is invalid or unenforceable. To the best knowledge of Grantor,
Grantor has used the Trademarks to identify itself and the goods and services
covered by the Trademarks and all registrations thereof are subsisting and in
full force and effect.
(d) Grantor represents and warrants that it owns or is
licensed to practice under all Patents and Copyrights that it now owns or
practices under. Grantor further warrants that it is aware of no significant
third party claim that any aspect of Grantor's present or contemplated business
operations infringes or will infringe any Patent or any Copyright of any third
party. The Copyrights shown on Schedule C hereto, unless otherwise stated
therein, are duly recorded or filed for recording in the United States Copyright
Office. The issued Patents and Patent Applications shown on Schedule D hereto,
unless otherwise stated therein, are valid and subsisting and in full force and
effect. None of the Patents or Patent Applications shown on Schedule D has been
abandoned or previously assigned to a third party, and, except to the extent
that the Required Lender, upon prior written notice by Grantor, shall consent,
and Grantor will not do any act, or omit to do any act, whereby the Patents may
become abandoned or otherwise suffer any diminution of Patent rights and shall
notify the Lender immediately if it knows of any reason or has reason to know
that any application or registration may become abandoned or otherwise suffer
any diminution of Patent rights.
(e) In no event shall Grantor, either itself or through any
Lender, employee, licensee or designee, (i) file an application for the
registration of any Copyright, Patent or Trademark with the United States
Copyright Office or United States Patent and Trademark Office or any similar
office or agency of any other country or any political subdivision thereof or
(ii) file or record any assignment of any Copyright, Patent or Trademark that
Grantor may acquire from a third party, with the United States Copyright Office
or United States Patent and Trademark Office or any similar office or agency of
any other country or any political subdivision thereof, unless Grantor shall, on
or prior to the date of such filing, notify the Lender thereof, and upon request
of the Lender, execute and deliver any and all assignments, agreements,
instruments, recordations, documents and papers as the Lender may request to
evidence the Lender's interest in such Copyright, Patent or Trademark and the
goodwill and general intangibles of Grantor relating thereto or represented
thereby, and Grantor hereby constitutes the Lender its attorney-in-fact to
execute and file all such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power being coupled with an
interest is irrevocable until the Obligations are paid in full.
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(f) Grantor will perform all acts and execute all documents,
including, without limitation, assignments for security in form suitable for
filing with the United States Copyright Office and United States Patent and
Trademark Office, substantially in the forms of Exhibit 1, Exhibit 2 and Exhibit
3 hereto, respectively, reasonably requested by the Lender at any time to
evidence, perfect, maintain, record and enforce the Lender's interest in the
Collateral or otherwise in furtherance of the provisions of this Agreement.
(g) Grantor will take all steps reasonably necessary in any
proceeding before the United States Copyright Office or United States Patent and
Trademark Office or any similar office or agency of any other country or any
political subdivision thereof, to maintain each application for, or for
registration of the Copyrights, Trademarks and Patents, active and entitled to
the full spectrum of rights available at the then-pending stage of the
application for, or for registration of, the Copyrights, Trademarks and Patents.
(h) Grantor assumes all responsibility and liability arising
from the use of the Copyrights, Patents and Trademarks, and Grantor hereby
indemnifies and holds the Lender harmless from and against any claim, suit,
loss, damage or expense (including reasonable attorneys' fees) arising out of
any alleged defect in any product manufactured, promoted or sold by Grantor in
connection with any Copyright, Patent or Trademark or out of the manufacture,
promotion, labeling, sale or advertisement of any such product by Grantor.
Grantor agrees that the Lender does not assume, and shall not have any
responsibility for, the payment of any sums due or to become due under any
agreement or contract included in the Collateral or the performance of any
obligations to be performed under or with respect to any such agreement or
contract by Grantor, and Grantor hereby indemnifies and holds the Lender
harmless with respect to any and all claims by any person relating thereto.
(i) All licenses of its Copyrights, Trademarks and Patents
which Grantor has granted to third parties are set forth on Schedule F hereto.
3. Location and Use of Collateral. Grantor (a) shall keep all records
pertaining to Collateral, at or affixed to the location of its chief executive
office set forth on Schedule A or such other place or places as described on
Schedule G attached hereto or as it may designate in a writing delivered to the
Lender thirty (30) days before moving such Collateral or records to another
place, and may use such Collateral only for purposes for which it is commonly
employed in Grantor's type of business; (b) on or prior to the date hereof or as
soon as practicable thereafter but in any event within twenty one (21) days
after such an item of property becomes Collateral, shall deliver to the Lender
all Instruments, Documents and Chattel Paper related to the Collateral, with all
endorsements or assignments necessary, or in the Lender's judgment reasonably
appropriate, for each item of such Collateral to be transferable; and (c) shall
keep the proceeds of all Collateral segregated from property that is not
Collateral or proceeds thereof so that it may readily be identified as proceeds
of Collateral.
4. Financing Statements and Notice. Grantor hereby authorizes the
Lender, without notice or the signature of Grantor, to file any financing
statements and any amendments thereto
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or continuations thereof, naming Grantor as debtor and the Lender as secured
party. At the Lender's request, Grantor will join with the Lender in executing
any such financing statements, amendments or continuations. In order to perfect,
maintain or protect its security interest, the Lender may give notice of its
security interest in Collateral and may deliver a copy of this Agreement to any
Person.
5. Preservation of Collateral and Security Interest. (a) Grantor shall
not permit anything to be done that will materially impair the value of any
Collateral. Grantor shall at all times keep accurate and complete records with
respect to Collateral and shall furnish to the Lender upon request copies of its
records relating to Collateral and all additional information reasonably
requested by the Lender. The Lender shall, during reasonable business hours and
upon notice given two (2) Business Days in advance, have the right to enter upon
Grantor's premises, inspect Collateral, and examine and make copies of Grantor's
records relating to Collateral at Grantor's expense.
(b) Grantor shall not make an assignment, pledge, mortgage, or
other transfer of Collateral or any interest in it other than in the ordinary
course of its business, and, except as set forth on Schedule B hereto, shall
keep all Collateral free from all Liens; provided, however, that the foregoing
limitations shall not apply to such dispositions of Collateral as the Lender may
approve in writing in advance. Grantor shall give immediate written notice to
the Lender of any Lien, against or upon Collateral having such value which shall
not be discharged, released or satisfied within ten days. The Lender, at its
option, may pay or cause the discharge of taxes, Liens at any time levied or
placed on Collateral, take any action to maintain and preserve Collateral and
remedy any breach of Grantor hereunder. Grantor shall do, execute and deliver
all additional acts, deeds, and instruments as any the Lender may require, to
more completely vest in and assure to the Lender its rights hereunder.
6. Insurance. Grantor will maintain insurance on the Collateral in such
amounts and with such coverage as is reasonably satisfactory to the Lender and
as is consistent with coverage usually carried by corporations of a similar size
engaged in the same or similar business similarly situated. Any proceeds
received by Grantor in payment for loss of or damage to Collateral under such
insurance shall be held in trust by Grantor and be Collateral hereunder; it
shall be applied by Grantor to repair or replace the Collateral in respect of
which it was received, and if not so applied, to payment of Obligations. Grantor
will give the Lender immediate written notice of the receipt and amount of any
such insurance proceeds and prior written notice of the manner in which such
proceeds shall be applied. Upon the Lender's request, Grantor shall deliver
certificates of such insurance to the Lender.
7. Events of Default.
(a) "Events of Default" shall exist hereunder if:
(i) Grantor shall fail to perform any Obligation, or to pay any
sum to the Lender, when and as due, whether by acceleration or otherwise; or
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(ii) any representation or warranty of Grantor set forth herein
shall prove to have been false or misleading in any material respect (if not
qualified by materiality) and in any respect (if qualified by materiality) when
made or deemed to have been made and, if such breach of representation or
warranty is capable of being cured within such time, such breach shall have
continued for ten (10) Business Days (A) after notice of such breach if Grantor
has complied with Section 7(b) hereof or (B) after the date of such breach if
Grantor has not complied with Section 7(b) hereof; or
(iii) any obligation of Grantor under this Agreement shall not
be complied with and, if such noncompliance is capable of being cured within
such time, such noncompliance shall have continued for ten (10) Business Days
(A) after notice of such noncompliance if Grantor has complied with Section 7(b)
hereof or (B) after the date of such noncompliance if Grantor has not complied
with Section 7(b) hereof; or
(iv) an Event of Default as defined in the Disbursement
Agreement shall occur and be continuing.
(b) Grantor shall promptly upon becoming aware thereof notify the
Lender in writing of any Event of Default and any condition or event which,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace or
cure period.
8. Rights Following an Event of Default. Following and during the
continuance of an Event of Default, each of the following provisions shall
apply:
(a) the Lender shall have all rights and remedies afforded by the
Uniform Commercial Code, to a secured creditor having a security interest in
property to which Article 9 thereof applies; provided, however, that the Lender
shall provide the Grantor ten (10) days prior written notice before a sale of
any Collateral subject to this Section 8(a) setting forth the date, time and
place of such sale.
(b) Grantor will, upon receipt of any proceeds, dividend, stock
certificate or other sums arising from the sale or other disposition of
Collateral or any instrument evidencing an obligation to pay such sums, hold
same in trust for the Lender, in the form received, and will forthwith, without
notice or demand, endorse, transfer and deliver same to the Lender.
(c) Grantor hereby irrevocably appoints the Lender its true and
lawful attorney-in-fact to act in Grantor's name or in the Lender's name as
fully and completely as though the Lender was the absolute owners of Collateral
for all purposes. The Lender may exercise all of Grantor's rights of collection,
enforcement, conversion or exchange and all other similar rights, privileges and
options pertaining to Collateral, all of Grantor's rights to commence, prosecute
or settle any legal actions, give releases, or settle or compromise any rights,
with respect to Collateral, and generally all of Grantor's rights to sell,
assign, transfer, pledge, convey, make any agreement with respect to, or
otherwise deal with, Collateral. The Lender may execute and deliver any and all
documents and take any and all actions on behalf of Grantor in
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order to carry out the provisions of this Agreement. Nothing herein shall be
construed as requiring the Lender to make any demand or inquiry as to the nature
or sufficiency of any payment, or to take any action with respect to Collateral
or moneys, proceeds or income due, or to become due thereunder, and no such
action taken or omitted to be taken, or delay, by the Lender shall give rise to
any defense, counterclaim or set-off in favor of Grantor or to any claim or
action against the Lender. The Lender shall have the right, without prior notice
to Grantor, to notify, or to require Grantor to notify, the parties obligated on
any Collateral, to make payment thereon directly to the Lender, but Grantor
shall give such notice itself if requested to do so by the Lender.
(d) Grantor shall not make any further use of the Copyrights,
Patents or Trademarks for any purpose without the consent of the Lender.
(e) Except for any license granted in the ordinary course by Grantor
to depository institutions for which no notice shall be required, the Lender
may, at any time and from time to time, upon fifteen (15) days' prior notice to
Grantor, license, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any of the Copyrights, Patents or Trademarks,
throughout the world for such term or terms, on such conditions, and in such
manner, as the Lender shall in its sole discretion determine.
(f) The Lender may (without assuming any obligations or liability
thereunder), at any time, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of Grantor
in, to and under any one or more license agreements with respect to the
Collateral, and take or refrain from taking any action under any thereof, and
Grantor hereby releases the Lender from, and agrees to hold the Lender free and
harmless from and against any claims arising out of, any action taken or omitted
to be taken with respect to any such license agreement.
The Lender may apply the proceeds actually received from any such
license, assignment, sale or other disposition to the reasonable costs and
expenses thereof, including, without limitation, reasonable attorneys' fees and
all legal and other expenses which may be incurred by the Lender, and then to
the Obligations, in such order as is set forth in this Agreement; and Grantor
shall remain liable and will pay the Lender on demand any deficiency remaining,
together with interest thereon at a rate equal to the highest rate then payable
on the Obligations and the balance of any expenses unpaid. Nothing herein
contained shall be construed as requiring the Lender to take any such action at
any time. In the event of any such license, assignment, sale or other
disposition of the Collateral, or any of it, after the occurrence or
continuation as hereinabove provided of an Event of Default, Grantor shall
supply its know-how and expertise relating to the manufacture and sale of the
products bearing or in connection with the Copyrights, Trademarks or Patents,
and its customer lists and other records relating to the Copyrights, Trademarks
or Patents and to the distribution of said products, to the Lender or their
designees.
Concurrently with the execution and delivery hereof, Grantor is
executing and delivering to the Lender, in the form of Exhibit 4 hereto,
originals of a Power of Attorney for the implementation of the assignment, sale
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or other disposal of the Copyrights, Trademarks and Patents pursuant hereto, and
Grantor hereby releases the Lender from any claims, causes of action and demands
at any time arising out of or with respect to any actions taken or omitted to be
taken by the Lender under the power of attorney granted herein, other than
actions taken or omitted to be taken through the gross negligence or willful
misconduct of the Lender.
9. Possession of Collateral. After and during the continuance of an
Event of Default, the Lender shall be entitled, without notice to Grantor, to
appointment of a receiver to take possession of Collateral. The Lender's duty of
care with respect to Collateral shall be limited to the exercise of reasonable
care. The Lender shall be deemed to have exercised reasonable care if Collateral
is accorded treatment requested by Grantor in writing or substantially the same
as that the Lender accords its own property. The Lender shall not be deemed to
have failed to exercise reasonable care because it may have failed to accord
Collateral treatment requested by Grantor or to take steps to preserve rights
against prior parties or property.
10. Application of Proceeds. In the event of any transfer, collection
or sale of Collateral in accordance with Section 5 hereof, the proceeds of such
transfer, collection or sale shall be applied by the Lender as follows:
FIRST, to the payment of all reasonable costs and expenses incurred
by the Lender in connection with this Agreement or any of the Obligations,
including, but not limited to, all court costs and the reasonable fees and
expenses of the Lender and legal counsel of the Lender, the repayment of all
advances made by the Lender hereunder on behalf of Grantor and any other
reasonable costs or expenses incurred in connection with the exercise of any
right or remedy hereunder;
SECOND, to the payment in full of the principal and interest of any
Notes outstanding;
THIRD, to the payment in full of all Obligations (other than those
referred to above) owed to the Lender; and
FOURTH, to Grantor, its successors and assigns, or as a court of
competent jurisdiction may otherwise direct.
11. Remedies Cumulative and not Waivable. The rights and remedies of
the Lender herein expressly specified are cumulative and not exclusive of other
contractual, common law or statutory rights and remedies that the Lender may
have, including without limitation, the right of set-off and all rights and
remedies of a secured creditor under Article 9 of the Uniform Commercial Code as
adopted in Pennsylvania. The Lender shall not be under any duty to exercise or
withhold the exercise of any of its rights and remedies provided hereunder or
otherwise. No omission or delay by the Lender in exercising any such right or
remedy shall operate as a waiver or partial waiver of any such right or remedy
thereof; nor shall any single or partial exercise of any such right or remedy
preclude other or further exercise thereof or the exercise of and, other right
or remedy.
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12. Remedies Fully Exercisable. All rights and remedies that the Lender
may have available to it under arrangements to secure or support the Obligations
(including but not limited to any right of setoff, guaranty, bond, letter of
credit, insurance, security agreement, pledge, mortgage or deed of trust) may be
exercised from time to time, in part or in whole, and in any order by the Lender
without marshaling Grantor's assets, and without regard to the effect of
exercise of one right or remedy upon another right or remedy, the existence of
other Liens upon any of Grantor's assets, or the relative degree or amount of
equity that Grantor shall have in one asset as against another.
13. Notices; Waiver of Presentment, Etc. All notices, requests and
other communications hereunder must be in writing and will be deemed to have
been duly given only if delivered personally against written receipt or by
facsimile transmission or mailed by prepaid first class certified mail, return
receipt requested, or mailed by overnight courier prepaid, to the parties at the
following addresses or facsimile numbers:
If to the Lender, to:
Sedona Corporation
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esquire
If to the Grantor, to:
XxxXxxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxxxxx
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with a copy to:
Xxxxxxx & Xxx
One Glenhardie Corporate Center
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, (iii) if delivered by
mail in the manner described above to the address as provided in this Section,
be deemed given on the earlier of the third Business Day following mailing or
upon receipt and (iv) if delivered by overnight courier to the address as
provided in this Section, be deemed given on the earlier of the first Business
Day following the date sent by such overnight courier or upon receipt (in each
case regardless of whether such notice, request or other communication is
received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other party hereto.
Grantor hereby waives presentment, notice of dishonor and
protest of any instruments included in or evidencing Obligations and all other
notices and demands not expressly required by this Agreement.
14. Pennsylvania Law; Resolution of Disputes. This Agreement shall be
governed by and construed in accordance with the domestic laws of the
Commonwealth of Pennsylvania, without giving effect to any choice of law or
conflict of law provision or rule (whether of the Commonwealth of Pennsylvania
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the Commonwealth of Pennsylvania. Except as may be
otherwise provided herein or as the context may require, all terms used herein
shall have the meaning ascribed to them by the Uniform Commercial Code as
adopted in Pennsylvania. In connection with any dispute which may arise under
this Agreement, Grantor, for itself and in respect of its property, hereby
irrevocably submits to, consents to, and waives any objection to, the
jurisdiction of the courts of the Commonwealth of Pennsylvania or of the
district courts of the United States located in Pennsylvania. Grantor admits
that any such dispute may be resolved at least as conveniently in such a court
as in any other court and, will not seek dismissal or a change of venue on the
ground that resolution of such a dispute in any such court is not convenient or
in the interests of justice. Grantor shall not seek a jury trial in any action
based upon or arising out of this Agreement or any related document or
agreement. Grantor will not seek to consolidate any such action with any other
action in which trial by jury has not been waived.
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15. Waiver; Amendment. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
without the written approval of each party hereto.
16. Termination; Release of Collateral. After the Termination Date,
this Agreement shall terminate and the Lender, at the request and expense of
Grantor, will execute and deliver to Grantor a proper instrument or instruments
(including Uniform Commercial Code termination statements on form UCC-3)
acknowledging the satisfaction and termination of this Agreement as to Grantor,
and will duly assign, transfer and deliver to Grantor (without recourse and
without any representation or warranty) such of the Collateral as may be in the
possession of the Lender and as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement. As used in this Agreement,
"Termination Date" shall mean the date upon which all payment Obligations have
been irrevocably satisfied in full.
17. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with Grantor and
the Lender.
18. Other Provisions. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof. It sets forth all
representations relied upon by Grantor in connection with it. The Lender, and
its respective directors, officers, attorneys, agents and employees shall not be
liable to Grantor for any loss or damage caused by any act or omission on the
part of any of them unless such loss or damage shall have been caused by the
gross negligence or willful misconduct of such Person. This Agreement shall be
binding upon the successors and assigns of Grantor and shall inure to the
benefit of the successors of the Lender. In the event any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained shall not be affected or impaired in any way.
Section headings used herein are for convenience only and shall not affect the
construction of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Security Agreement to be executed and delivered by their respective
representatives thereunto duly authorized as of the date first above written.
GRANTOR: XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
/s/ Xxxxx X. Xxxxxx
------------------------------
By: Xxxxx D, Xxxxxx
------------------------------
Title: Exec VP and COO
------------------------------
LENDER: SEDONA CORPORATION
/s/ Xxxxx X. Xxxxxx
----------------------------
By: Xxxxx X. Xxxxxx
----------------------------
Title: President and CEO
----------------------------
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Exhibit 1 to the Security Agreement
Copyright Filings
ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
--------------------------------------------
(COPYRIGHTS)
----------
WHEREAS, XxxXxxxxxxxx.xxx, Inc. (d/b/a XxxxXxx.xxx), a
Pennsylvania corporation (herein referred to as "Assignor"), owns the copyrights
listed on the annexed Schedule 1-A, which copyrights are registered in the
United States Copyright Office, and other unregistered copyrights (the
"Copyrights");
WHEREAS, Assignor is obligated to Sedona Corporation (the
"Assignee"), under that certain Disbursement Agreement dated as of December 29,
2000, by and among Assignor and the Lender, as such agreement may be amended,
modified or restated from time to time, and Assignor has entered into a Security
Agreement (the "Agreement") in favor of the Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to
Assignee and granted to Assignee a security interest in, and mortgage on, all
right, title and interest of Assignor in and to the Copyrights, together with
the goodwill of the business symbolized by the Copyrights and the applications
and registrations thereof, and all proceeds thereof, including, without
limitation, any and all causes of action which may exist by reason of
infringement thereof (the "Collateral"), to secure the prompt payment,
performance and observance of the Obligations, as defined in the Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, Assignor does hereby further assign unto
Assignee and grant to Assignee a security interest in, and mortgage on, the
Collateral to secure the prompt payment, performance and observance of the
Obligations.
Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the assignment of, security
interest in and mortgage on the Collateral made and granted hereby are more
fully set forth in the Agreement, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein.
Assignee's address is 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx,
XX 00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment for
Security (Copyrights) to be duly executed by its officer thereunto duly
authorized as of the ___ day of ________, ____.
XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
By:______________________________
Name:
Title:
SCHEDULE 1-A TO ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
------------------------------------------------------------
COPYRIGHTS
----------
I. Registrations
Copyright Reg. No. Filing Date
--------- -------- -----------
None.
Exhibit 2 to Security Agreement
Patent Filings
ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
--------------------------------------------
(PATENTS)
-------
WHEREAS, XxxXxxxxxxxx.xxx, Inc. (d/b/a XxxxXxx.xxx), a
Pennsylvania corporation (herein referred to as "Assignor"), owns the letters
patent, and/or applications for letters patent, of the United States, more
particularly described on Schedule 2-A annexed hereto as part hereof (the
"Patents");
WHEREAS, Assignor is obligated to Sedona Corporation (the
"Assignee"), under that certain Disbursement Agreement dated as of December 29,
2000, by and among Assignor and the Lender, as such agreement may be amended,
modified or restated from time to time, and Assignor has entered into a Security
Agreement (the "Agreement") in favor of the Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to
Assignee, and granted to Assignee a security interest in, and mortgage on, all
right, title and interest of Assignor in and to the Patents, together with any
reissue, re-examination, division, continuation, continuation-in-part or
extension thereof, and all proceeds thereof, including, without limitation, any
and all causes of action which may exist by reason of infringement thereof for
the full term of the Patents (the "Collateral"), to secure the prompt payment,
performance and observance of the Obligations, as defined in the Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, Assignor does hereby further assign unto
Assignee and grant to Assignee a security interest in, and mortgage on, the
Collateral to secure the prompt payment, performance and observance of the
Obligations.
Assignor does hereby further acknowledge and affirm that the
rights and remedies of Assignee with respect to the assignment of, security
interest in and mortgage on the Collateral made and granted hereby are more
fully set forth in the Agreement, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein.
Assignee's address is 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx,
XX 00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment for
Security (Patents) to be duly executed by its officer thereunto duly authorized
as of the ___ day of ________, ____.
XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
By:___________________________
Name:
Title:
SCHEDULE 2-A TO ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
------------------------------------------------------------
PATENTS
-------
Patent # Description Date of Patent
-------- ----------- --------------
PATENT APPLICATIONS
-------------------
A utility patent application for invention titled: "Internet-Based System for
Aggregate Marketing of Financial Services", inventors Xxxxxx X. Major and
Xxxxxxx X. Xxxx, application Serial Number 09/670,422, was filed September 26,
2000 claiming benefit of the provisional patent application for the same
invention, filed Oct. 1, 1999 and listed below. As of the date of execution of
the agreement to which this paragraph is attached, no amendments have been filed
and we have received no Office Actions. The provisional patent application
titled "Internet Methods and Apparatus for Internet Banking", inventors Xxxxxx
X. Major and Xxxxxxx X. Xxxx, application Serial Number 60/157,480, was filed
10/01/99.
Exhibit 3 to the Security Agreement
Trademark Filings
ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
--------------------------------------------
(TRADEMARKS)
----------
WHEREAS, XxxXxxxxxxxx.xxx, Inc. (d/b/a XxxxXxx.xxx), a
Pennsylvania corporation (hereinafter referred to as "Assignor"), has adopted,
used and is using the trademarks listed on the annexed Schedule 3-A, which
trademarks are registered in the United States Patent and Trademark Office, and
certain other common law trademarks (the "Trademarks");
WHEREAS, Assignor is obligated to Sedona Corporation (the
"Assignee"), under that certain Disbursement Agreement dated as of December 29,
2000, by and among Assignor and the Lender, as such agreement may be amended,
modified or restated from time to time, and Assignor has entered into a Security
Agreement (the "Agreement") in favor of the Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to
Assignee and granted to Assignee a security interest in, and mortgage on, all
right, title and interest of Assignor in and to the Trademarks, together with
the goodwill of the business symbolized by the Trademarks and the applications
and registrations thereof, and all proceeds thereof, including, without
limitation, any and all causes of action which may exist by reason of
infringement thereof (the "Collateral"), to secure the prompt payment,
performance and observance of the Obligations, as defined in the Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, Assignor does hereby further assign unto
Assignee and grant to Assignee a security interest in, and mortgage on, the
Collateral to secure the prompt payment, performance and observance of the
Obligations.
Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the assignment of, security
interest in and mortgage on the Collateral made and granted hereby are more
fully set forth in the Agreement, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein.
Assignee's address is 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx,
XX 00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment for
Security (Trademarks) to be duly executed by its officer thereunto duly
authorized as of the ___ day of ________, ____.
XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
By:_______________________________
Name:
Title:
SCHEDULE 3-A TO ASSIGNMENT OF SECURITY INTEREST AND MORTGAGE
------------------------------------------------------------
TRADEMARKS
----------
I. Pending Applications*
--------------------
Trademark Application No. Filing Date
--------- --------------- -----------
BANKZIP 75/795191 10/01/99
LOANZIP 75/795197 10/01/99
INVESTZIP 75/795200 10/01/99
INSUREZIP 75/795208 10/01/99
ZIP 75/795183 10/01/99
* All applications were originally made in the name of Patriot Bank. Patriot
Bank assigned the trademarks to XxxXxxxxxxxx.xxx, Inc. effective December 14,
1999.
II. Registrations
None.
Exhibit 4 to Security Agreement
Power of Attorney
SPECIAL POWER OF ATTORNEY
-------------------------
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ___________________ )
KNOW ALL MEN BY THESE PRESENTS, THAT XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx), a Pennsylvania corporation, with its principal office at:
________________________________________ (hereinafter called "Assignor"), hereby
appoints and constitutes Sedona Corporation ("Assignee") its true and lawful
attorney, with full power of substitution, and with full power and authority to
perform the following acts on behalf of Assignor upon and at all times during
the continuance of an Event of Default under that certain Security Agreement
dated the date hereof (the "Security Agreement") by and among Assignor and the
Assignee:
1. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any letters
patent of the United States or any other country or political subdivision
thereof, and all registrations, recordings, re-examinations, extensions,
reissues, divisions, continuations, continuations-in-part and extensions
thereof, and all pending applications therefor, and for the purpose of the
recording, registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable to
effect such purpose;
2. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any trademarks,
trade names, trade styles and service marks, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications
therefor, and for the purpose of the recording, registering and filing of, or
accomplishing any other formality with respect to, the foregoing, to execute and
deliver any and all agreements, documents, instruments of assignment or other
papers necessary or advisable to effect such purpose;
3. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any copyrights,
copyright registrations and applications for copyright registration, including
without limitation all renewals and extensions thereof, and for the purpose of
the recording, registering and filing of, or accomplishing any other formality
with respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable to
effect such purpose;
4. To execute any and all documents, statements, certificates or other
papers necessary or advisable in order to obtain the purposes described above as
Assignee may in its sole discretion determine.
This power of attorney is made pursuant to the Security
Agreement and is subject to the conditions thereof and may not be revoked until
the payment in full of all "Obligations" as defined in such Security Agreement.
Dated: December ___, 2000 XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
[Corporate Seal] By:__________________________
Name:
Title:
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF _________________ )
On this ___ day of December __, 2000, before me personally
appeared _____________________, to me known, who, being _____________________ by
me duly sworn, did depose and say that he resides at ________________________
and that he is ________________________ of XxxXxxxxxxxx.xxx, Inc. (d/b/a
XxxxXxx.xxx), the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was affixed pursuant to
authority of the Board of Directors of said corporation, and that he signed his
name thereto pursuant to such authority.
___________________________
Notary Public
Schedule A to Security Agreement
Grantor's Executive Offices
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Schedule B to Security Agreement
Liens
1. Any Lien for Taxes (as defined below) not yet due or delinquent or being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP. For purposes of this Schedule,
Taxes shall mean all federal, state, local or foreign net or gross income,
gross receipts, net proceeds, sales, use, ad valorem, value added, franchise,
bank shares, withholding, payroll, employment, excise, property, alternative
or add-on minimum, environmental or other taxes, assessments, duties, fees,
levies or other governmental charges of any nature whatever, whether disputed
or not, together with any interest, penalties, additions to tax or additional
amounts with respect thereto.
2. Any minor imperfection of title or similar Lien which individually or in the
aggregate with such other Liens does not impair the value or marketability of
the property subject to such Lien or interfere with the use of such property
in the conduct of the business of Grantor and which do not secure obligations
for money borrowed.
Schedule C to Security Agreement
LIST OF COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
Title Date Filed Registration No. Effective Date
----- ---------- ---------------- --------------
None
Schedule D to Security Agreement
LIST OF PATENTS
File Patent Country Registration No. Date
---- ------ ------- ---------------- ----
PATENT APPLICATIONS
A utility patent application for invention titled: "Internet-Based System for
Aggregate Marketing of Financial Services", inventors Xxxxxx X. Major and
Xxxxxxx X. Xxxx, application Serial Number 09/670,422, was filed September 26,
2000 claiming benefit of the provisional patent application for the same
invention, filed Oct. 1, 1999 and listed below. As of the date of execution of
the agreement to which this paragraph is attached, no amendments have been filed
and we have received no Office Actions. The provisional patent application
titled "Internet Methods and Apparatus for Internet Banking", inventors Xxxxxx
X. Major and Xxxxxxx X. Xxxx, application Serial Number 60/157,480, was filed
10/01/99.
Schedule E to Security Agreement
LIST OF TRADEMARK AND SERVICE XXXX REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE XXXX REGISTRATIONS
U.S. Trademarks and Service Marks*
---------------------------------
Application (A)
Registration (R) Registration
Xxxx Or Series No. (S) or Filing Date
---- ----------------- --------------
BANKZIP 75/795191(A) 10/01/99
LOANZIP 75/795197(A) 10/01/99
INVESTZIP 75/795200(A) 10/01/99
INSUREZIP 75/795208(A) 10/01/99
ZIP 75/795183(A) 10/01/99
* All applications were originally made in the name of Patriot Bank. Patriot
Bank assigned the trademarks to XxxXxxxxxxxx.xxx, Inc. effective December 14,
1999.
Foreign Trademarks and Service Marks
------------------------------------
Application (A) Registration
Xxxx Registration (R) Country or Filing Date (F)
---- ------------------------------- ------------------
None
Schedule F to Security Agreement
Licenses
Licenses granted in the ordinary course of business to customers to use
trademarks of XxxXxxxxxxxx.xxx, Inc., pursuant to the Grantor's standard
Alliance Partner Agreement.
Schedule G to Security Agreement
Location of Collateral
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
