EXHIBIT B
SECURITY AGREEMENT
This Security Agreement (this "Agreement"), dated as of September 18, 2001,
by and between Internet America, Inc., a Texas corporation ("Internet America"),
and Xxxxxxx X. Xxxx, a resident of the State of Texas (the "Secured Party"), is
made with reference to the following:
WHEREAS, in order to induce the Secured Party to enter into the Letter of
Credit Security Commitment Agreement dated as of the date hereof (the
"Commitment Agreement") and to secure the Letter of Credit (as defined in the
Commitment Agreement) and commit to loan money to Internet America, the Secured
Party requires that Internet America grant to the Secured Party a security
interest in the Collateral (as defined below) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and other agreements hereinafter contained, in order to induce the Secured Party
to undertake its obligations under the Commitment Agreement, Internet America
hereby agrees with the Secured Party for its benefit as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth below. Capitalized
terms used, but not otherwise defined herein shall have the meanings ascribed to
them in the Commitment Agreement.
"Additional Property" shall mean and include the following property, which
Internet America becomes entitled to receive or shall receive in connection with
any other Collateral:
(a) any stock certificate, including, without limitation, any
certificate representing a stock dividend or any certificate in connection with
any recapitalization, reclassification, merger, consolidation, conversion, sale
of assets, combination of shares, stock split or spin-off;
(b) any option, warrant, subscription or right, whether as an addition
to or in substitution of any other Collateral;
(c) any dividends or distributions of any kind whatsoever, whether
distributable in cash, stock or other property;
(d) any interest, premium or principle payments; and
(e) any conversion or redemption proceeds.
"Charges" shall mean all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation and property taxes,
custom duties,
fees, assessments, liens, claims and charges of any kind whatsoever, together
with any interest and any penalties, additions to tax or additional amounts,
imposed by any taxing or other authority, domestic or foreign, upon the
Collateral, Internet America or any of its Affiliates.
"Collateral" shall mean and include:
(a) all Equipment;
(b) all General Intangibles;
(c) all Inventory;
(d) all Investment Property;
(e) all of Internet America's right, title and interest in and to (i)
its respective goods and other property including, but not limited to, all
merchandise returned or rejected by Customers, relating to or securing any of
the Receivables; (ii) all of Internet America's rights as a consignor, a
consignee, an unpaid vendor, mechanic, artisan, or other lienor, including
stoppage in transit, setoff, detinue, replevin, reclamation and repurchase;
(iii) other property, including warranty claims, relating to any goods securing
this Agreement (other than Receivables); (iv) all of Internet America's contract
rights, rights of payment which have been earned under a contract right, letter
of credit rights, instruments, documents, chattel paper, warehouse receipts,
deposit accounts, money and securities (other than Receivables); (v) if and when
obtained by Internet America, all real and personal property of third parties in
which Internet America has been granted a lien or security interest, except
where such security interest secures the payment or enforcement of Receivables;
and (vii) any other goods, personal property or real property now owned or
hereafter acquired in which Internet America has expressly granted a security
interest or may in the future grant a security interest to the Secured Party
hereunder, or in any amendment or supplement hereto or thereto, or under any
other agreement between the Secured Party and Internet America;
(f) all of Internet America's ledger sheets, ledger cards, files,
correspondence, records, books of account, business papers, computers, computer
software, computer programs, tapes, disks and documents relating to (a), (b),
(c), (d), (e), (f) or (g) of this Paragraph;
(g) all proceeds and products of (a), (b), (c), (d), (e), (f) or (g) in
whatever form, including, but not limited to: cash, deposit accounts (whether or
not comprised solely of proceeds), certificates of deposit, insurance proceeds
(including hazard, flood and credit insurance), negotiable instruments and other
instruments for the payment of money, chattel paper, security agreements,
documents, eminent domain proceeds, condemnation proceeds and tort claim
proceeds; and
(h) all Additional Property.
"Customer" shall mean and include the account debtor with respect to any
Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into or
proposes to enter into any contract or other arrangement with Internet America,
pursuant to which Internet America is to deliver any personal property or
perform any services.
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"Equipment" shall mean and include all of Internet America's goods (other
than Inventory) whether now owned or hereafter acquired and wherever located
including, without limitation, all equipment, machinery, apparatus, fittings,
furniture, furnishings, fixtures, parts, accessories, improvements, repairs and
all replacements and substitutions therefor or accessions thereto.
"General Intangibles" shall mean and include all of Internet America's
general intangibles, whether now owned or hereafter acquired including, without
limitation, all payment intangibles, choses in action, commercial tort claims,
causes of action, corporate or other business records, inventions, designs,
patents, patent applications, equipment formulations, manufacturing procedures,
quality control procedures, trademarks, service marks, trade secrets, goodwill,
copyrights, design rights, registrations, licenses, franchises, customer lists,
tax refunds, tax refund claims, computer programs and computer software, all
claims under guaranties, security interests or other security held by or granted
to Internet America except where such security interest or security secures
payment of any of the Receivables by a Customer, all rights of indemnification
and all other intangible property of every kind and nature (other than
Receivables).
"Inventory" shall mean and include all of Internet America's now owned or
hereafter acquired goods, merchandise and other personal property, wherever
located, to be furnished under any contract of service or held for sale or
lease, all raw materials, work in process, finished goods and materials and
supplies of any kind, nature or description which are or might be used or
consumed in Internet America's business or used in selling or furnishing such
goods, merchandise and other personal property, all other inventory of Internet
America, and all documents of title or other documents representing them.
"Investment Property" shall mean and include all of Internet America's now
owned or hereafter acquired securities (whether certificated or uncertificated),
securities entitlements, securities accounts, commodities contracts, commodities
accounts, stocks, mutual fund shares, money market shares and U.S. Government
Securities, including, without limitation, all capital stock of all Internet
America's subsidiaries.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien (whether statutory or otherwise), charge,
claim or encumbrance, or preference, priority or other security agreement or
preferential arrangement held or asserted in respect of any asset of any kind or
nature whatsoever including, without limitation, any conditional sale or other
title retention agreement, any lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
condition, operations, assets, business or prospects of Internet America taken
as a whole, (b) Internet America's ability to pay the Obligations in accordance
with the terms thereof, (c) the value of the Collateral, or the Secured Party's
Liens on the Collateral or the priority of any such Lien or (d) the practical
realization of the benefits of the Secured Party's rights and remedies under
this Agreement and the Other Documents.
"Obligations" shall mean all financial obligations of Internet America
under the Commitment Agreement, including but not limited to, those under the
Letter of Credit and the Notes.
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"Permitted Encumbrances" shall mean (a) Liens for taxes, assessments or
other governmental charges not delinquent or being contested in good faith and
by appropriate proceedings and with respect to which proper reserves have been
taken by Internet America; provided, that, the Lien shall have no effect on the
priority of the Liens in favor of the Secured Party or the value of the assets
in which the Secured Party has such a Lien and a stay of enforcement of any such
Lien shall be in effect; (b) judgment Liens that have been stayed or bonded and
mechanics', workers', materialmen's or other like Liens arising in the ordinary
course of Internet America's business with respect to obligations which are not
due or which are being contested in good faith by Internet America; and (c)
other Liens incidental to the conduct of Internet America's business or the
ownership of its property and assets which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit, and which do not
in the aggregate materially detract from the Secured Party's rights in and to
the Collateral or which do not materially impair the use thereof in the
operation of Internet America's business.
"Receivables" shall mean and include all of Internet America's accounts
(including, without limitation, all health-care insurance receivables), contract
rights, instruments (including those evidencing indebtedness owed to Internet
America by its Affiliates), documents, chattel paper, general intangibles
relating to accounts, drafts and acceptances, and all other forms of obligations
owing to Internet America arising out of or in connection with the sale, lease
or other disposition of Inventory or the rendition of services, all guarantees
and other security therefor, whether secured or unsecured, now existing or
hereafter created, and whether or not specifically sold or assigned to the
Secured Party hereunder.
"Termination Date" shall mean the date on which the Obligations are paid in
full.
"Uniform Commercial Code" shall mean the Uniform Commercial Code in effect
in the State of Texas.
ARTICLE II
SECURITY INTEREST
2.1 Security Interest in the Collateral. To secure prompt payment and
performance to the Secured Party of the Obligations, Internet America hereby
assigns, pledges and grants to the Secured Party for the benefit of the Secured
Party a continuing security interest in and to all of its Collateral, whether
now owned or existing or hereafter acquired or arising and wheresoever located.
Internet America shall xxxx its books and records as may be necessary or
appropriate to evidence, protect and perfect the Secured Party's security
interest and shall cause its financial statements to reflect such security
interest.
2.2 Perfection of Security Interest.
(a) Internet America shall take all action that may be necessary or
desirable, or that the Secured Party may request, so as at all times to maintain
the validity, perfection, enforceability and priority of the Secured Party's
security interest in the Collateral and to enable the Secured Party to protect,
exercise or enforce its rights hereunder and in the Collateral, including, but
not limited to, (i) immediately discharging all Liens other than Permitted
Encumbrances, (ii) delivering to the Secured Party, endorsed or accompanied by
such instruments of assignment as the
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Secured Party may specify, and stamping or marking, in such manner as the
Secured Party may specify, any and all chattel paper, instruments, letters of
credits and advices thereof and documents evidencing or forming a part of the
Collateral, and (iii) executing and delivering financing statements, instruments
of pledge, mortgages, notices and assignments, in each case in form and
substance satisfactory to the Secured Party, relating to the creation, validity,
perfection, maintenance or continuation of the Secured Party's security interest
under the Uniform Commercial Code or other applicable law.
(b) The Secured Party and Internet America hereby agree as follows:
(i) The Secured Party may at any time and from time to time file
financing statements, continuation statements and amendments thereto that
describe the Collateral and which contain any other information required for the
sufficiency or filing office acceptance of any financing statements,
continuation statements or amendments. Such financing statements, continuation
statements and amendments thereto may include generic descriptions of the
Collateral and may be filed by Secured Party without Internet America's
signature thereon. Internet America agrees to furnish any such information to
the Secured Party promptly upon request. Any such financing statements,
continuation statements or amendments may be signed by the Secured Party on
behalf of Internet America.
(ii) Internet America shall, at any time and from time to time
take such steps as the Secured Party may reasonably request to insure the
continued perfection and priority of the Secured Party's security interest in
any of the Collateral for the benefit of the Secured Party and of its rights
therein, in any jurisdiction.
(iii) Nothing contained herein shall be construed to narrow the
scope of the Secured Party's security interest in any of the Collateral or the
perfection or priority thereof or to impair or otherwise limit any of the
rights, powers, privileges or remedies of the Secured Party except (and then
only to the extent) mandated by applicable law.
(c) Contemporaneously herewith, Internet America covenants and agrees
to deliver to the Secured Party any certificates, documents or instruments
representing or evidencing any securities pledged as Collateral, with Internet
America's endorsement thereon and/or accompanied by proper instruments of
transfer and assignment duly executed in blank, all in form and substance
satisfactory to the Secured Party.
(d) All charges, expenses and fees the Secured Party may incur in doing
any of the foregoing, and any local taxes relating thereto, shall be added as
additional principal to the Notes, or, at the Secured Party's option, shall be
paid to the Secured Party for the ratable benefit of the Secured Party
immediately upon demand.
2.3 Disposition of Collateral. Internet America will safeguard and protect
all Collateral for the Secured Party's general account and make no disposition
thereof whether by sale, lease or otherwise except (a) the sale of Inventory in
the ordinary course of business and (b) the disposition or transfer of obsolete
and worn-out Equipment in the ordinary course of business.
2.4 Preservation of Collateral. Following the occurrence of an Event of
Default under the Commitment Agreement or the Notes, in addition to the rights
and remedies set forth in the
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Commitment Agreement, the Secured Party: (a) may at any time take such steps as
the Secured Party deems necessary to protect the Secured Party's interest in and
to preserve the Collateral, including the hiring of such security guards or the
placing of other security protection measures as the Secured Party may deem
appropriate; (b) may employ and maintain at Internet America's and its
subsidiaries' premises a custodian who shall have full authority to do all acts
necessary to protect the Secured Party's interests in the Collateral; (c) may
lease warehouse facilities to which the Secured Party may move all or part of
the Collateral; (d) may use Internet America's and its subsidiaries' owned or
leased lifts, hoists, trucks and other facilities or equipment for handling or
removing the Collateral; and (e) shall have, and is hereby granted, a right of
ingress and egress to the places where the Collateral is located, and may
proceed over and through Internet America's and its subsidiaries' owned or
leased property. Internet America shall, and shall cause its subsidiaries to,
cooperate fully with all of the Secured Party's efforts to preserve the
Collateral and will, and will cause its subsidiaries to, take such actions to
preserve the Collateral as the Secured Party may direct. All of the Secured
Party's expenses of preserving the Collateral, including any expenses relating
to the bonding of a custodian, shall be added as additional principal to the
Notes.
2.5 Ownership of Collateral. With respect to the Collateral, at the time
the Collateral becomes subject to the Secured Party's security interest: (a)
Internet America shall be the sole owner of and fully authorized and able to
sell, transfer, pledge and/or grant a first priority security interest in each
and every item of its respective Collateral to the Secured Party; and, except
for Permitted Encumbrances the Collateral shall be free and clear of all Liens
and encumbrances whatsoever; (b) each document and agreement executed by
Internet America or delivered to the Secured Party in connection with this
Agreement shall be true and correct in all respects; (c) all signatures and
endorsements of Internet America that appear on such documents and agreements
shall be genuine and Internet America shall have full capacity to execute same;
and (d) Internet America's Inventory shall be located at the address set forth
in the Commitment Agreement for notices to Internet America and shall not be
removed from such location(s) without the prior written consent of the Secured
Party except with respect to the sale of Inventory in the ordinary course of
business and Equipment to the extent permitted in Section 2.3 hereof.
2.6 The Additional Property. All Additional Property received by Internet
America shall be received in trust for the benefit of the Secured Party. All
Additional Property and all certificates or other written instruments or
documents evidencing and/or representing the Additional Property that is
received by Internet America, other than any cash that constitutes Additional
Property, together with such instruments of transfer as the Secured Party may
request, shall immediately be delivered to or deposited with the Secured Party
and held by the Secured Party as Collateral under the terms of this Agreement.
If the Additional Property received by Internet America shall be shares of stock
or other securities, such shares of stock or other securities shall be duly
endorsed in blank or accompanied by proper instruments of transfer and
assignment duly executed in blank, all in form and substance satisfactory to the
Secured Party. The Secured Party shall be deemed to have possession of any
Collateral in transit to the Secured Party or its agents.
2.7 Defense of the Secured Party's Interests. Until (a) payment in full of
all of the outstanding Obligations and (b) termination of this Agreement, the
Secured Party's interests in the Collateral shall continue in full force and
effect. During such period Internet America shall not, without the Secured
Party's prior written consent, pledge, sell (except Inventory in the ordinary
course of business and Equipment to the extent permitted in Section 2.3 hereof),
assign, transfer,
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create or suffer to exist a Lien upon or encumber or allow or suffer to be
encumbered in any way except for Permitted Encumbrances, any part of the
Collateral. Internet America shall defend the Secured Party's interests in the
Collateral against any and all Persons whatsoever. At any time following demand
by the Secured Party for payment of all Obligations, the Secured Party shall
have the right to take possession of the indicia of the Collateral and the
Collateral in whatever physical form contained, including without limitation:
labels, stationery, documents, instruments and advertising materials. If the
Secured Party exercise this right to take possession of the Collateral, Internet
America shall, upon demand, assemble it in the best manner possible and make it
available to the Secured Party at a place reasonably convenient to the Secured
Party. In addition, with respect to all Collateral, the Secured Party shall be
entitled to all of the rights and remedies set forth herein and further provided
by the Uniform Commercial Code or other applicable law. Internet America shall,
and each of the Secured Party may, at its option, instruct all suppliers,
carriers, forwarders, warehouses or others receiving or holding cash, checks,
Inventory, documents or instruments in which the Secured Party holds a security
interest to deliver same to the Secured Party and/or subject to the Secured
Party's order and if they shall come into Internet America's possession, they,
and each of them, shall be held by Internet America in trust as the Secured
Party's trustee, and Internet America will immediately deliver them to the
Secured Party in their original form together with any necessary endorsement.
2.8 Compliance with Laws. Internet America shall comply with all acts,
rules, regulations and orders of any legislative, administrative or judicial
body or official applicable to the Collateral or any part thereof or to the
operation of Internet America's business the non-compliance with which could
reasonably be expected to have a Material Adverse Effect. Internet America may,
however, contest or dispute any acts, rules, regulations, orders and directions
of those bodies or officials in any reasonable manner, provided that any related
Lien is inchoate or stayed and sufficient reserves are established to the
reasonable satisfaction of the Secured Party to protect the Secured Party's Lien
on or security interest in the Collateral. The Collateral at all times shall be
maintained in accordance with the requirements of all insurance carriers which
provide insurance with respect to the Collateral so that such insurance shall
remain in full force and effect.
2.9 Inspection of Premises. At all reasonable times the Secured Party shall
have full access to and the right to audit, check, inspect and make abstracts
and copies from Internet America's books, records, audits, correspondence and
all other papers relating to the Collateral and the operation of Internet
America's business. The Secured Party and its agents may upon reasonable advance
notice, enter upon Internet America's and its subsidiaries' premises at any time
during business hours and at any other reasonable time, and from time to time,
for the purpose of inspecting the Collateral and any and all records pertaining
thereto and the operation of Internet America's business, provided, however, the
Secured Party shall conduct such inspections no more than one (1) time per year
unless an Event of Default shall have occurred and be continuing, in which event
there shall be no restrictions on the number of inspections the Secured Party
may charge Internet America.
2.10 Insurance. Internet America shall bear the full risk of any loss of
any nature whatsoever with respect to the Collateral. At Internet America's own
cost and expense in amounts and with carriers reasonably acceptable to the
Secured Party, Internet America shall (a) keep all its insurable properties and
properties in which Internet America has an interest insured against the hazards
of fire, flood, sprinkler leakage, those hazards covered by extended coverage
insurance and such other hazards, and for such amounts, as is customary in the
case of companies engaged in
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businesses similar to Internet America's including, without limitation, business
interruption insurance; (b) maintain a bond in such amounts as is customary in
the case of companies engaged in businesses similar to Internet America insuring
against larceny, embezzlement or other criminal misappropriation of insured's
officers and employees who may either singly or jointly with others at any time
have access to the assets or funds of such Internet America either directly or
through authority to draw upon such funds or to direct generally the disposition
of such assets; (c) maintain all such worker's compensation or similar insurance
as may be required under the laws of any state or jurisdiction in which Internet
America is engaged in business; (d) furnish the Secured Party with (i) copies of
all policies and evidence of the maintenance of such policies by the renewal
thereof at least thirty (30) days before any expiration date, and (ii)
appropriate loss payable endorsements in form and substance satisfactory to the
Secured Party, naming the Secured Party as a co-insured and loss payee as its
interests may appear with respect to all insurance coverage referred to in
clauses (a) and (b) above, and providing (A) that all proceeds thereunder shall
be payable to the Secured Party, (B) no such insurance shall be affected by any
act or neglect of the insured or owner of the property described in such policy,
and (C) that such policy and loss payable clauses may not be cancelled, amended
or terminated unless at least thirty (30) days' prior written notice is given to
the Secured Party. In the event of any loss thereunder, the carriers named
therein hereby are directed by the Secured Party and Internet America to make
payment for such loss that would ordinarily be made payable to Internet America
rather than to a third party to the Secured Party and not to Internet America
and the Secured Party jointly. If any insurance losses are paid by check, draft
or other instrument payable to Internet America and the Secured Party jointly,
the Secured Party may endorse Internet America's name thereon and do such other
things as the Secured Party may deem advisable to reduce the same to cash. The
Secured Party is hereby authorized to adjust and compromise claims under
insurance coverage referred to in clauses (a) and (b) above. All loss recoveries
received by the Secured Party upon any such insurance may be applied to the
Obligations, in such order as the Secured Party in its sole discretion shall
determine. Any surplus shall be paid by the Secured Party to Internet America or
applied as may be otherwise required by law. Any deficiency thereon shall be
paid by Internet America to the Secured Party, on demand.
2.11 Failure to Pay Insurance. If Internet America fails to obtain
insurance as hereinabove provided, or to keep the same in force, the Secured
Party, if the Secured Party so elect, may obtain such insurance and pay the
premium therefor and such expenses so paid shall be part of the Obligations.
2.12 Payment of Taxes. Internet America will pay, when due, all taxes,
assessments and other Charges lawfully levied or assessed upon Internet America
or any of the Collateral including, without limitation, real and personal
property taxes, assessments and charges and all franchise, income, employment,
social security benefits, withholding, and sales taxes. If any tax by any
governmental authority is or may be imposed on or as a result of any transaction
between Internet America and the Secured Party which the Secured Party may be
required to withhold or pay or if any taxes, assessments, or other Charges
remain unpaid after the date fixed for their payment, or if any claim shall be
made which, in the Secured Party's opinion, may possibly create a valid Lien on
the Collateral, the Secured Party may without notice to Internet America pay the
taxes, assessments or other Charges and Internet America hereby indemnifies and
holds the Secured Party harmless in respect thereof. The Secured Party will not
pay any taxes, assessments or Charges to the extent that Internet America has
contested or disputed those taxes, assessments or Charges in good faith, by
expeditious protest, administrative or judicial appeal or similar proceeding
provided that any related
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tax lien is stayed and sufficient reserves are established to the reasonable
satisfaction of the Secured Party to protect the Secured Party's security
interest in or Lien on the Collateral. The amount of any payment by the Secured
Party under this Section 2.11 shall be added to the Obligations and, until
Internet America shall furnish the Secured Party with an indemnity therefor (or
supply the Secured Party with evidence satisfactory to the Secured Party that
due provision for the payment thereof has been made), the Secured Party may hold
without interest any balance standing to Internet America's credit and the
Secured Party shall retain its security interest in any and all Collateral held
by the Secured Party.
2.13 Exculpation of Liability. Nothing herein contained shall be construed
to constitute the Secured Party as Internet America's agent for any purpose
whatsoever, nor shall the Secured Party be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof. The
Secured Party, whether by anything herein or in any assignment or otherwise,
does not assume Internet America's obligations under any contract or agreement
assigned to the Secured Party, and the Secured Party shall not be responsible in
any way for the performance by Internet America of any of the terms and
conditions thereof.
2.14 Financing Statements. No financing statement covering any of the
Collateral or any proceeds thereof is on file in any public office.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Internet America represents and warrants as follows:
3.1 Internet America has full power, authority and legal right to grant to
the Secured Party a security interest in the Collateral pursuant to this
Agreement, and the execution and delivery of this Agreement has been duly
authorized by Internet America;
3.2 No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required either
(i) for the grant by Internet America to the Secured Party of a security
interest in the Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Internet America, or (ii) for the
exercise by the Secured Party of rights provided for in this Agreement or the
remedies in respect of the Collateral pursuant to this Agreement;
3.3 The grant by Internet America of a security interest in the Collateral
pursuant to this Agreement creates a valid security interest in the Collateral
in favor of the Secured Party, securing the payment of the Obligations;
3.4 No part of the Collateral is used or was bought for personal, family or
household purposes;
3.5 The Inventory consists of items of a quality and quantity useable and
saleable in the ordinary course of business by Internet America without markdown
or discount, all of which are merchantable and fit for their particular purpose,
except for obsolete and slow moving items and items below standard quality
(which in any event do not exceed normal commercial standards in
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amount, and all of which have been written down on the books of Internet America
to the lower of cost or net realizable market value or have been provided for by
adequate reserves. No items included in the Inventory are held by Internet
America on consignment from others. The amount of the Inventory shown on
Internet America's financial statements is based on quantities and valued at the
lower of cost (determined on a first-in, first-out basis) or market value and on
a basis consistent with that of prior years;
3.6 Internet America has exclusive possession of all of the Collateral, and
all of the Collateral is maintained at Internet America's principal place of
business or such other place(s) as are set forth in the Commitment Agreement;
and
3.7 No restrictions or conditions exist with respect to the transfer or
voting of any securities pledged as Collateral, except for those restrictions
under state and federal securities laws or as has otherwise been disclosed to
the Secured Party in writing. To the best of Internet America's knowledge, no
issuer of such securities (other than securities of a class which are publicly
traded) has any outstanding stock rights, rights to subscribe, options, warrants
or convertible securities outstanding or any other rights outstanding entitling
any party to have issued to such party capital stock of such issuer, except as
has been disclosed to the Secured Party in writing.
ARTICLE IV
LIABILITY AND INDEMNIFICATION
Internet America agrees to indemnify and to hold the Secured Party harmless
from and against all losses, liabilities, claims, damages, costs and expenses
(including actual attorneys' fees and disbursements) with respect to (i) any
action taken or any omission by the Secured Party with respect to this
Agreement, provided that the Secured Party's conduct does not constitute willful
misconduct or gross (not mere) negligence, and (ii) any claims arising out of
Internet America's ownership of the Collateral or the Secured Party's security
interest therein.
ARTICLE V
SECURITY INTEREST ABSOLUTE
All rights of the Secured Party and security interests hereunder, and all
obligations of Internet America hereunder, shall be absolute and unconditional
irrespective of:
5.1 any lack of validity or enforceability of the Commitment Agreement or
any other agreement or instrument relating thereto;
5.2 any other amendment or waiver of or any consent to any departure from
the Commitment Agreement or any other agreement or instrument relating thereto;
5.3 any exchange or non-perfection of any other Collateral, or any
amendment or waiver of or consent to departure from any guaranty for all or any
of the Obligations; or
5.4 any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Internet America other than a release of the
Secured Party's rights and security interests or the payment in full of the
Obligations; provided however that if at any time any payment, or any portion of
a payment, to the Secured Party is recaptured or required to be disgorged under
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applicable bankruptcy or insolvency laws or otherwise, then the recaptured or
disgorged payment shall thereafter be deemed an Obligation hereunder; Internet
America agrees to take any all acts reasonably requested by the Secured Party to
give effect to this Section 5.
ARTICLE VI
CONTINUING SECURITY INTEREST, ASSIGNMENT OF OBLIGATIONS
6.1 This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until payment in full
of the Obligations, (b) be binding upon Internet America, its successors and
assigns, (c) inure, together with the rights and remedies of the Secured Party
hereunder, to the benefit of the Secured Party and its successors, transferees
and assigns, (d) constitute, along with the Commitment Agreement and the other
agreements and instruments relating thereto, the entire agreement between
Internet America and the Secured Party, and (e) be severable in the event that
one or more of the provisions herein is determined to be illegal or
unenforceable. Upon the payment in full of the Obligations, the Secured Party,
at the request and expense of Internet America, shall release the security
interests in the Collateral granted herein and execute such termination
statements as may be necessary therefor, to the extent that such Collateral
shall not have been sold or otherwise applied pursuant to the terms hereof.
ARTICLE VII.
RETURN OF COLLATERAL
Subject to any duty imposed by law or otherwise to the holder of any
subordinate lien on the Collateral known to the Secured Party, and subject to
the direction of a court of competent jurisdiction, upon the payment in full of
the Obligations, Internet America shall be entitled to the return of all
Collateral in the possession of the Secured Party, provided, however, that (a)
the Secured Party shall not be obligated to return to Internet America or
deliver to the holder of any subordinate lien any such Collateral until they are
satisfied that all amounts with respect to the Obligations are no longer subject
to being recaptured under applicable bankruptcy or insolvency laws or otherwise
and (b) if the Secured Party determines not to return Collateral in its
possession (pursuant to clause (a) of this Article VII), the Secured Party shall
turn over such possessory Collateral, upon the reasonable request of Internet
America and upon Internet America's grant of a second priority security interest
in the possessory Collateral, to a replacement lender which requires a first
priority interest in the possessory Collateral. Any return or turn over of
Collateral, however effected, shall be without recourse to the Secured Party,
and the Secured Party shall be entitled to receive appropriate documentation to
such effect. The return of Collateral shall be affected without representation
or warranty and shall not entitle Internet America to any right to any
endorsement.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment; Waiver. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Internet America herefrom shall in any
event be effective unless the same shall be in writing and signed by the Secured
Party, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
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8.2 Expenses. Internet America will upon demand pay to the Secured Party
the amount of any and all reasonable expenses actually incurred, including the
fees and expenses of its counsel and of any experts and agents, which the
Secured Party may incur in connection with (i) the administration of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Secured Party hereunder, and (iv) the
failure by Internet America to perform or observe any of the provisions hereof.
8.3 Private Sale of Securities. Internet America recognizes that the
Secured Party may be unable to effect a public sale of all or any part of the
securities pledged as Collateral because of restrictions in applicable federal
and state securities laws and that the Secured Party may, therefore, determine
to make one or more private sales of any such securities to a restricted group
of purchasers who will be obligated to agree, among other things, to acquire
such securities for their own account, for investment and not with a view to the
distribution or resale thereof. Internet America acknowledges that any such
private sale may be at prices and other terms less favorable than what might
have been obtained at a public sale and, notwithstanding the foregoing, agrees
that each such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Secured Party shall have no obligation to delay
the sale of any such securities for the period of time necessary to permit the
issuer to register such securities for public sale under any federal or state
securities laws.
8.4 Notices. All notices, demands and requests of any kind which either
party may be required or desires to serve upon the other hereunder shall be in
writing and shall be delivered and be effective in accordance with the notice
provision of the Commitment Agreement.
8.5 Governing Law, Terms. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Texas without regard to
its choice of laws principles. Unless otherwise defined herein or in the
Commitment Agreement, terms defined in the Uniform Commercial Code are used
herein as therein defined.
8.6 Trial By Jury. INTERNET AMERICA HEREBY WAIVES, AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE SUBJECT MATTER
HEREOF, ANY DOCUMENT RELATING HERETO OR ANY SECURED OBLIGATION, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR IN TORT OR
OTHERWISE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
00
XXXXXXXX XXXXXXX, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Title: Chief Executive Officer
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx
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