Exhibit 5
COLLATERAL AGENCY AGREEMENT
THIS COLLATERAL AGENCY AGREEMENT (this "Agreement"), dated as of January 29,
2003, is made among each of the Lenders named on the signature pages hereof
(each a "Lender" and, collectively, the "Lenders") and XDL Capital Corp., as
collateral agent for the Lenders (in such capacity, the "Collateral Agent").
The Lenders have entered into a Convertible Loan Agreement dated as
of January 29, 2003 (as amended, modified, renewed, extended or replaced from
time to time, the "Convertible Loan Agreement") with Commtouch Software Ltd., an
Israeli corporation (the "Company") under which the Lenders will extend credit
to Company and in connection therewith will receive certain collateral to secure
the credit extensions under the Convertible Loan Agreement and the Notes issued
to the Lenders thereunder (as amended, modified, renewed, extended or replaced
from time to time, the "Notes"). The Lenders desire to enter into this Agreement
to provide, among other things, for (i) the appointment, duties and
responsibilities of a Collateral Agent, (ii) the respective rights and interests
of the parties in and to the Collateral, and (iii) the orderly administration of
the Collateral, upon the terms and subject to the conditions set forth in this
Agreement.
Accordingly, the parties hereby agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Convertible Loan Agreement. All capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings assigned to them in the Convertible Loan Agreement.
(b) Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" means any Person which, directly or indirectly,
controls, is controlled by or is under common control with another Person. For
purposes of the foregoing, "control," "controlled by" and "under common control
with" with respect to any Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Business Day" means a day (i) other than Saturday or Sunday, and
(ii) on which commercial banks are open for business in San Francisco,
California.
"Collateral" the property now existing or hereafter acquired which
may at any time be or become subject to a security interest in favor of the
Collateral Agent or the Lenders pursuant to the Documents or otherwise, securing
the payment and performance of the Obligations.
"Collateral Documents" means any agreement, document or instrument
pursuant to which any Obligor or any other Person provides a security interest
in its assets in favor of the Lenders or the Collateral Agent for the benefit of
the Lenders.
"Documents" means the Convertible Loan Agreement, the Notes, the
Guaranty, the Collateral Documents and all other documents, instruments and
agreements delivered to the Lenders, or the Collateral Agent, in connection
therewith.
"Guaranty" means the Guaranty dated as of January 29, 2003 made by
Commtouch Inc., a California corporation, in favor of the Collateral Agent on
behalf of the Lenders.
"Majority Lenders" means the holders of a majority of the aggregate
principal amount of the Notes then outstanding.
"Obligations" means the indebtedness, liabilities and other
obligations of the Obligors to the Lenders under or in connection with the
Documents, including all unpaid principal of the Notes, all interest accrued
thereon and all other amounts payable by the Obligors to the Lenders thereunder
or in connection therewith, whether now existing or hereafter arising, and
whether due or to become due, absolute or contingent, liquidated or
unliquidated, determined or undetermined.
"Obligor" means the Company or any guarantor of the Obligations.
"Person" means an individual, corporation, partnership, joint
venture, trust, unincorporated organization or other entity of whatever nature.
"Pro Rata Share" of any Lender means (a) in connection with any
payments or distributions to any Lender, (i) in the case of accrued and unpaid
interest on any of the Obligations to any payment date, the proportion which the
amount of interest accrued and unpaid to such Lender bears to the aggregate
amount of interest accrued and unpaid to all Lenders; (ii) in the case of unpaid
principal of any of the Obligations, the proportion which the amount of unpaid
principal owing to such Lender bears to the aggregate amount of unpaid principal
owing to all Lenders; and (iii) in the case of any indebtedness in respect of
any fees, commissions, indemnities and other amounts then owing in respect of
the Obligations, the proportion which the amount of such indebtedness owing to
such Lender bears to the aggregate amount of such indebtedness owing to all
Lenders; and (b) for purposes of Section 7, the proportion which the amount of
unpaid principal owing to such Lender bears to the aggregate amount of unpaid
principal owing to all Lenders.
(c) Interpretation. In this Agreement, except to the extent the
context otherwise requires: (i) Any reference in this Agreement to an Article, a
Section, a Schedule or an Exhibit is a reference to an article hereof, a section
hereof, a schedule hereto or an exhibit hereto, respectively, and to a
subsection hereof or a clause hereof is, unless otherwise stated, a reference to
a subsection or a clause of the Section or subsection in which the reference
appears. (ii) The words "hereof," "herein," "hereto," "hereunder" and the like
mean and refer to this Agreement as a whole and not merely to the specific
Article, Section, subsection, paragraph or clause in which the respective word
appears. (iii) The meaning of defined terms shall be equally applicable to both
the singular and plural forms of the terms defined. (iv) The words "including,"
"includes" and "include" shall be deemed to be followed by the words "without
limitation". (v) The captions and headings are for convenience of reference only
and shall not affect the construction of this Agreement.
2.
SECTION 2 Application of Proceeds of Collateral; Sharing.
(a) Application by Collateral Agent. All amounts received or
collected by the Collateral Agent on account of the Obligations as proceeds of
any collection, sale or other realization upon any Collateral shall be promptly
applied by the Collateral Agent in the following order: (i) first, to the
Collateral Agent or the relevant Lenders, for application to the payment of any
fees, costs, expenses and other amounts due the Collateral Agent or such Lenders
(in the case of the Lenders, if relating to or resulting from collection, sale
or other realization upon any Collateral); and (ii) second, to the Lenders,
ratably in accordance with their Pro Rata Shares, for application to the payment
of the other Obligations. The Collateral Agent shall have no obligation to make
any payments to the Lenders except out of amounts received or applied by the
Collateral Agent in respect of the Collateral. If any amount so received or
collected by the Collateral Agent and applied as provided in this Section 2 is
rescinded or must otherwise be returned by the Collateral Agent for any reason,
each Lender shall, upon notice by the Collateral Agent, forthwith pay over to
the Collateral Agent such Lender's received portion of the amount so returned.
All payments hereunder shall be made to such accounts as the Lenders may
designate by notice to the Collateral Agent.
(b) Sharing. If, despite any applicable provisions of the
Convertible Loan Agreement and this Section 2, any Lender shall receive any
payment or distribution in respect of the Obligations or the Collateral in
excess of its portion of payments on account of the Obligations to which it is
then entitled in accordance with this Agreement, such Lender shall hold such
payment or distribution in trust for the benefit of the parties entitled thereto
and promptly pay over or deliver such payment or distribution to the Collateral
Agent for application in accordance with this Agreement. Additionally, such
Lender shall, if so required by the Collateral Agent or the Majority Lenders,
purchase from the other Lenders (through the Collateral Agent) such
participation in their respective Obligations as shall be required by it or them
to permit the sharing of such excess payment or distribution in accordance with
the requirements of this Agreement. If all or any portion of such excess payment
or distribution is thereafter recovered by or on behalf of any Obligor from such
Lender, each other party which shares in the benefit thereof shall return to
such Lender its portion of the payment so recovered.
SECTION 3 Certain Agreements of the Lenders.
(a) Limitations on Exercise of Remedies. No Lender shall, without
the prior written consent of the Majority Lenders:
(i) accelerate or otherwise make due and payable prior to the
original stated maturity thereof any Obligations or bring suit or institute any
other actions or proceedings to enforce its rights or interests under or in
respect of any Collateral Document;
(ii) exercise any rights under or with respect to the
Guaranty;
(iii) exercise any right of set-off, counterclaim or other
claim it may have against any Obligor or any other Person with respect to the
Obligations;
(iv) exercise any rights under or with respect to any
Collateral, including causing or compelling the pledge or delivery of any
Collateral, any attachment of, levy upon, execution against, foreclosure upon or
the taking of other action against or institution of other proceedings with
respect to any Collateral, notifying any account debtors of any Obligor or
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asserting any claim or interest in any insurance with respect to any Collateral,
or release any Collateral; or
(v) commence, or cause to be commenced, or join with any
creditor in commencing, any bankruptcy, insolvency or receivership proceeding
against any Obligor.
(b) Notices. Each Lender agrees promptly to furnish the other
Lenders (through the Collateral Agent) copies of any material notices, demands
or other communications to any Obligor under any Document to which it is a party
which it believes have not otherwise been furnished to the other Lenders.
(c) Further Assurances and Additional Acts. Each of the parties
shall execute, acknowledge, deliver, file, notarize and register at its own
expense all such further agreements, instruments, certificates, documents and
assurances, and perform such acts as the Collateral Agent or the Majority
Lenders shall deem necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 4 Appointment of an Collateral Agent.
(a) Appointment. The Lenders hereby appoint the Collateral Agent and
authorize the Collateral Agent to execute the Collateral Documents and to take
such action as agent on their behalf and to exercise such powers and perform
such duties under this Agreement and the other Collateral Documents as are
delegated to the Collateral Agent by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto. The duties and obligations of
the Collateral Agent are strictly limited to those expressly provided for
herein, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Collateral Agent. As to any matters not expressly provided for by
this Agreement, the Collateral Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders; provided, however, that except for action expressly
required of the Collateral Agent hereunder, the Collateral Agent shall in all
cases be fully justified in failing or refusing to act hereunder unless it shall
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by reason of taking or continuing to take any
such action, and that the Collateral Agent shall not in any event be required to
take any action which exposes the Collateral Agent to liability or which is
contrary to this Agreement or any other Document or applicable law. Nothing in
this Agreement shall, or shall be construed to, constitute the Collateral Agent
a trustee or fiduciary for any Lender. In performing its functions and duties
hereunder, the Collateral Agent shall act solely as the agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for any Obligor. All Lenders
acknowledge that the initial Collateral Agent is a Lender, and is entitled to
vote as such, without disentitling itself to any protections (qua Collateral
Agent) that it may have hereunder.
(b) Delegation of Duties. The Collateral Agent may, in its
discretion, employ from time to time one or more agents or attorneys-in-fact
(including any of the Collateral Agent's Affiliates) to perform any of the
Collateral Agent's duties under this Agreement. The Collateral Agent shall not
be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
4.
SECTION 5 Duties and Obligations of the Collateral Agent.
(a) General Duties and Obligations of Collateral Agent. The duties
and obligations of the Collateral Agent hereunder shall consist of (i)
exercising or refraining from exercising any rights, remedies or powers of the
Collateral Agent or the Lenders under the Collateral Documents or under
applicable law in respect of all or any portion of any Collateral, (ii) selling,
releasing, surrendering, realizing upon or otherwise dealing with, in any manner
and in any order, all or any portion of any Collateral, (iii) making any demands
or giving any notices under the Collateral Documents, (iv) effecting amendments
to and granting waivers under the Collateral Documents, and (v) distributing
payments to the Lenders of amounts received by it in connection with the
Collateral, in each case in accordance with the instructions of the Majority
Lenders (subject to the provisions of Sections 9(a) and 9(b) below).
(b) Holding of Collateral. The Collateral Agent agrees to hold all
Collateral hereafter delivered to it pursuant to the Collateral Documents, for
itself and for the benefit of the Lenders, on and subject to the terms and
conditions set forth in the Collateral Documents and in this Agreement.
(c) Limitation on Collateral Agent's Duties in Respect of
Collateral. Beyond the exercise of reasonable care to assure the safe custody of
Collateral in the Collateral Agent's possession and the accounting for monies
actually received by the Collateral Agent hereunder, the Collateral Agent shall
have no duty or liability to exercise or preserve any rights, privileges or
powers pertaining to any Collateral.
SECTION 6 Liability; Collateral Agent and Affiliates; Non-Reliance;
Etc.
(a) Limitation on Liability. Neither the Collateral Agent nor any
Affiliate thereof nor any of their respective directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by it or them
under or in connection with this Agreement or any other Document, except for its
or their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Collateral Agent (i) may treat a Lender as the
holder of its Obligations for all purposes hereof unless and until the
Collateral Agent receives written notice of the assignment thereof signed by
such Lender and the Collateral Agent receives the written agreement of the
assignee that such assignee is bound hereby as it would have been if it had been
an original Lender party hereto, in each case in form satisfactory to the
Collateral Agent, (ii) may consult with legal counsel (including counsel to any
Obligor), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, and
(iii) shall incur no liability to any Lender under or in respect of this
Agreement or any other Document by acting upon any notice, consent, certificate,
telegram, facsimile, email, telex or teletype message, statement or other
instrument or writing believed by it to be genuine and signed or sent by the
proper party or parties or by acting upon any representation or warranty made or
deemed to be made hereunder or under any other Document. Further, the Collateral
Agent (A) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for the accuracy or completeness of any information,
exhibit or report furnished hereunder or under any other Document, for any
statements, warranties or representation (whether written or oral) made or
deemed made in or in connection with this Agreement or the other Documents, (B)
shall have no duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other
5.
Document on the part of any Obligor or any other Person or to inspect the
property, books or records of any Obligor or any other Person, and (C) shall not
be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency, value or collectibility of this
Agreement, any Document or any Collateral.
(b) Collateral Agent and Affiliates. With respect to any Obligations
owing to the Collateral Agent (or its Affiliates), the Collateral Agent (or such
Affiliate) shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Collateral
Agent (or affiliated with the Collateral Agent); and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include the Collateral
Agent in its individual capacity. The Collateral Agent and its Affiliates may
lend money to and generally engage in any kind of business with the Obligors,
all as if the Collateral Agent were not the Collateral Agent hereunder and
without any duty to account therefor to the Lenders.
(c) Non-Reliance. Each Lender's decisions to participate and
proceed, have been, and will continue to be, based on such documents and
information as it has deemed appropriate, and each Lender accepts sole
responsibility for making its own independent appraisal of and investigations
into the financial condition, creditworthiness, condition, affairs, status and
nature of the Obligors or any of their subsidiaries and the nature and value of
any Collateral. Accordingly, each Lender confirms to the Collateral Agent and
the other Lenders that it has not relied, and will not hereafter rely, on the
Collateral Agent or the other Lenders (i) to check or inquire on such Lender's
behalf into the adequacy, accuracy or completeness of any information provided
by any Obligor or any other Person under or in connection with this Agreement or
the transactions contemplated by the Documents (whether or not such information
has been or is hereafter distributed to such Lender by the Collateral Agent), or
(ii) to assess or keep under review on such Lender's behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any
Obligor, any subsidiary thereof or the nature or value of any Collateral.
(d) Independent Obligations. Except as expressly provided herein,
each party shall remain responsible for holding its Obligations, and the
collection, servicing and administration thereof.
SECTION 7 Indemnification; Costs, Expenses and Fee.
(a) Indemnification. The Lenders agree to indemnify the Collateral
Agent, its Affiliates, and their respective directors, officers, employees,
agents, counsel and other advisors (to the extent not reimbursed by the
Obligors) (each an "Indemnified Person"), ratably in accordance with their Pro
Rata Shares, against, and hold each of them harmless from, any and all
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including the reasonable fees and disbursements of counsel to the
Collateral Agent, which may be imposed on, incurred by, or asserted against any
Indemnified Person, in any way relating to or arising out of this Agreement or
any other Document or the transactions contemplated hereby or thereby or any
action taken or omitted by any Indemnified Person in connection with any of the
foregoing; provided that no Lender shall be liable to any Indemnified Person for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent they
are found by a final decision of a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or willful misconduct.
6.
(b) Costs and Expenses; Servicing Fee. Without limitation of the
foregoing provisions of this Section 7, each Lender agrees to reimburse the
Collateral Agent and its Affiliates promptly upon demand for such Lender's Pro
Rata Share of any fees, costs and expenses or other charges incurred by the
Collateral Agent or its Affiliates and payable by any Obligor pursuant to the
Collateral Documents in each case to the extent that the Collateral Agent or any
Affiliate is not reimbursed for such fees, expenses or charges, or payment of
such fee is not made, by the Obligors, and the Obligors agree to pay any
servicing fee relating to services rendered by the Collateral Agent after the
date of the signing the Convertible Loan Agreement by Company, which the
Obligors agree shall be based on the standard hourly or daily rates of the
particular individual at the Collateral Agent performing the work.
SECTION 8 Removal and Resignation of Collateral Agent.
(a) Resignation and Removal. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, the Collateral
Agent may be removed at any time, with or without cause, by the Majority
Lenders, upon prior written notice to the parties. The Collateral Agent may
resign at any time, upon prior written notice to the parties. Upon any such
removal or resignation the Majority Lenders shall be entitled to appoint a
successor Collateral Agent, who shall agree in writing to be bound by the terms
of this Agreement in accordance with Section 4(a). Upon the acceptance of any
successor Collateral Agent of its appointment, such successor shall thereupon
succeed to and become vested with all the rights, powers, privileges, duties and
obligations of the Collateral Agent. If no successor Collateral Agent is
appointed prior to the effective date of the resignation of the resigning
Collateral Agent, the resigning Collateral Agent may appoint, after consulting
with the Lenders, a successor Collateral Agent from among the Lenders. In the
case of any resignation of the Collateral Agent, if no successor shall have
accepted within 60 days, the resignation shall nonetheless become effective upon
the expiration of such 60 day period, and the Lenders shall perform all of the
duties of the Collateral Agent hereunder until such time, if any, as the
Majority Lenders appoint a successor agent as provided for above. The former
Collateral Agent shall be discharged from its duties and obligations as such
upon the effectiveness of such removal or resignation.
(b) Survival. The provisions of Sections 6 and 7, including all
obligations of the Lenders with respect to the indemnification of the Collateral
Agent[, the payment to the Collateral Agent of any unpaid fee] and the
reimbursement of costs and expenses of the Collateral Agent, shall survive the
termination of the duties and obligations of the Collateral Agent hereunder.
SECTION 9 Miscellaneous.
(a) Action by Collateral Agent. In taking any action on behalf of
the Lenders and exercising such powers and performing such duties under this
Agreement and the Collateral Documents as are granted to the Collateral Agent
hereunder and thereunder, except to the extent otherwise provided under herein
or in the Documents, the Collateral Agent shall act in each case in accordance
with the instructions of the Majority Lenders; provided, however, that,
notwithstanding any provision to the contrary herein or in any other Document,
without the consent of all Lenders, the Collateral Agent shall not, and may not
be directed to, release any of the Collateral or terminate any Collateral
Document, except in connection with a sale or other disposition of Collateral as
contemplated by or permitted under the Convertible Loan Agreement or any
Collateral Document (including as a result of a exercise of any rights or
remedies in
7.
respect of any Collateral), as otherwise contemplated or permitted hereunder or
under the Collateral Documents or as contemplated by subsection (b). The Lenders
irrevocably authorize the Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the Collateral
Agent under any Collateral Document (A) upon termination or the payment in full
of all Obligations, and / or conversion by all Lenders and/or (if a Lender
declines to convert or be repaid upon an event as described in section 4.4 of
the Notes), the expiry of 12 months from the date of the request to convert or
be repaid, by Company to the declining Lender , (other than contingent
indemnification obligations), (B) that is sold or to be sold as part of or in
connection with any such sale or disposition of Collateral contemplated by or
permitted under this Agreement or under any other Collateral Document, or (C) if
approved, authorized or ratified in writing by the Lenders; and (ii) to
subordinate any Lien on any Collateral to the holder of any senior Lien on such
property that is permitted by the Convertible Loan Agreement or the Notes. Upon
request by the Collateral Agent at any time, the Lenders will confirm in writing
the Collateral Agent's authority to release or subordinate its interest in
particular types or items of Collateral.
(b) Amendments to this Agreement. No amendment or waiver of any
provision of this Agreement or any other Collateral Document nor consent to any
departure therefrom by any Lender or the Collateral Agent shall in any event be
effective unless the same shall be in writing and signed (or consented to) by
the Majority Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that without the consent of all the Lenders, no amendment, waiver or
consent shall do any of the following: (i) subject the Lenders to any additional
obligations; (ii) reduce any amount payable to the Lenders; (iii) postpone any
date fixed for any payment in respect of any amount payable to the Lenders; (iv)
change the definition of "Majority Lenders" or any definition or provision of
this Agreement or other Collateral Document requiring the approval of Majority
Lenders or some other specified amount of Lenders; (v) amend the provisions of
Section 2; or (vi) amend the provisions of Section 9(a) or this Section 9(b);
and provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Collateral Agent, affect the rights, duties or
obligations of the Collateral Agent under or in respect of this Agreement.
(c) Assignment. The Lenders' rights in and to the Collateral and the
Collateral Documents and in respect of their Obligations may be assigned by them
at their sole discretion, subject to the terms and conditions of the Documents.
Any transferee or assignee, as a condition to acquiring the such rights in the
Collateral or interest in the Obligations, shall agree to be bound hereby.
(d) Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including by
facsimile transmission or email) and shall be mailed, sent or delivered at or to
the address or facsimile number or email address of the respective party or
parties set forth in the Convertible Loan Agreement, or at or to such other
address or facsimile number or email address as such party or parties shall have
designated by ten days' advance written notice to the other party or parties.
All such notices and communications shall be effective (i) if delivered by hand,
when delivered; (ii) if sent by mail, upon the earlier of the date of receipt or
five Business Days after deposit in the mail, first class (or air mail, with
respect to communications to be sent to or from the United States), postage
prepaid; and (iii) if sent by facsimile or email, when sent; provided, however,
that notices and communications to the Collateral Agent shall not be effective
until received.
8.
(e) No Waiver; Cumulative Remedies. No failure on the part of the
Collateral Agent or any Lender to exercise, and no delay in exercising, any
right, remedy, power or privilege hereunder or under any other Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, remedy, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights and remedies under this Agreement and the other Documents are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to the Collateral Agent or any Lender.
(f) Costs and Expenses. Except as expressly provided herein, each of
the parties shall absorb its own costs and expenses (including fees and
disbursements of counsel) in connection with the negotiation, preparation,
execution and performance of this Agreement.
(g) Obligations Several. The obligations of the Lenders hereunder
are several. The failure of any Lender or the Collateral Agent to carry out its
obligations hereunder shall not relieve any other Lender or the Collateral Agent
of any obligation hereunder, nor shall any Lender or the Collateral Agent be
responsible for the obligations of, or any action taken or omitted by, any other
Person hereunder. Nothing contained in this Agreement shall be deemed to cause
any Lender or the Collateral Agent to be considered a partner of or joint
venturer with any other Lender or Lenders, the Collateral Agent or any Obligor.
(h) Benefits of Agreement. This Agreement is entered into for the
sole protection and benefit of the parties hereto and their successors and
assigns, and no other Person shall be a direct or indirect beneficiary of, or
shall have any direct or indirect cause of action or claim in connection with,
this Agreement.
(i) Effectiveness. This Agreement shall become effective on the date
on which each of the parties hereto shall have signed a copy hereof, and
thereafter shall be binding upon, inure to the benefit of and be enforceable by
each Lender, the Collateral Agent (upon its acceptance of its appointment
hereunder), and their respective successors and assigns.
(j) Governing Law. This agreement shall be governed by, and
construed in accordance with, the law of the Province of Ontario, Canada
(excepting its choice of law provisions), and the venue shall be Toronto,
Ontario.
(k) Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the matters set forth herein and
supersedes any prior agreements, commitments, discussions and understandings,
oral or written, with respect thereto.
(l) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
(m) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so
9.
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
(n) Interpretation. This Agreement is the result of negotiations
among and has been reviewed by counsel to the parties, and is the product of all
parties hereto. Accordingly, this Agreement shall not be construed against an
Lender or the Collateral Agent merely because of such Lender's or the Collateral
Agent's involvement in the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE LENDERS
AxcessNet Resources LLC
By: ______________________________
Title:
Xxxx Xxxxx
By: ______________________________
Title:
Compugen Systems Ltd.
By: ______________________________
Title:
Delta Capital Ltd.
By: ______________________________
Title:
KKB Ventures LLC
By: ______________________________
Title:
10.
XDL Capital Corp.
By: ______________________________
Title:
Xxxxxx X. Xxxxxxx
By: ______________________________
Title:
LENE L.P.
By: ______________________________
Title:
Xxxx Xxxxxxxxx
By: ______________________________
Title:
THE COLLATERAL AGENT
XDL Capital Corp.
By: ______________________________
Title:
Acknowledged and Agreed:
THE COMPANY
Commtouch Software Ltd.
By: ______________________________
Title:
THE GUARANTOR
Commtouch Inc.
By: ______________________________
Title:
11.
