EXHIBIT 10.34
SECURITY AGREEMENT
AGREEMENT, made this 21st day of March, 2002, by and between XXXXX
Online, Inc., a Delaware corporation ("EOL"), Financial Insight Systems, Inc.
("FIS"), a Delaware Corporation and Xxxxxx X. Xxxxx, Xx. ("Xxxxx"), as Agent for
the Principal Stockholders (as hereinafter defined) ("Agent").
W I T N E S S E T H :
WHEREAS, EOL, Financial Insight Systems, Inc. ("FIS"),
Financial Insight Systems, Inc., a Maryland corporation ("Old FIS") Xxxxx,
Xxxxxxxx Delta ("Delta"), Xxxx Xxxxx ("Xxxxx"), Xxxxx Xxxxx ("Xxxxx"), Xxxxxxx
Xxxxx ("Xxxxx") and Xxxx Xxxxxxxxxx ("Xxxxxxxxxx") (Girod, Smith, Davey, Szwec,
Xxxxx and Xxxxxxxxxx are collectively referred to herein as the "Principal
Stockholders") are parties to a certain Agreement and Plan of Merger dated
October 18, 2000 ("Merger Agreement") pursuant to which Old FIS was merged into
EOL in accordance with the terms thereof;
WHEREAS, pursuant to the terms of the Merger Agreement, the
Principal Stockholders received a series of Senior Subordinated Secured
Promissory Notes of EOL and FIS in the aggregate principal amount of $6,000,000
(collectively, the "Note") as part of the Merger Consideration thereunder; and
WHEREAS, Xxxxx, as agent, and Old FIS, previously entered into
a security agreement dated October 27, 2000 pursuant to which Old FIS secured
the Note by granting a security interest in Old FIS's assets (the "Old Security
Agreement"); and
WHEREAS, EOL and FIS has amended and restated the Note
pursuant to Amended and Restated Notes as of even date herewith, except with
respect to a $300,000 note to Delta (the "Delta Note") (all notes other than the
Delta Note, collectively the "Amended Note");
WHEREAS, in order to induce the Principal Stockholders other
than Delta (the "Participating Stockholders") to accept the Amended Note, EOL
and FIS has agreed to xxxxx x xxxx on and security interest in all of its assets
as collateral security for the due payment and performance of all indebtedness,
liabilities and obligations under the Amended Note, subject to the rights of the
holders of any Senior Indebtedness (as hereinafter defined); and
WHEREAS, the Principal Stockholders have designated Agent to
act as their agent on their behalf with respect to all actions hereunder with
respect to the Collateral (as hereinafter defined), subject to the provisions of
Section 13 hereof;
WHEREAS, except as to those terms otherwise defined in this
Agreement, all capitalized terms used herein shall have the respective meanings
ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto agree as follows:
1. Security Interest.
To secure the due payment and performance of all
indebtedness and other liabilities and obligations, whether now existing or
hereafter arising, of EOL and FIS (collectively, the "Debtors") to the
Participating Stockholders under, arising out of or in any way connected with
the Amended Note, and all instruments, agreements and documents executed, issued
and delivered pursuant thereto, including, without limitation, this Security
Agreement, and to secure any other obligations of the Debtors to the
Participating Stockholders, whether now existing or hereafter arising, all
hereinafter referred to collectively as the "Obligations," the Debtors hereby
assign, mortgage, pledge, hypothecate, transfer and set over to Agent and grants
to Agent a lien (subject to the provisions of Section 2 below) upon and security
interest in all assets of the Debtors set forth, referred to, or listed on,
Schedule I annexed thereto and made a part hereof (all herein after referred to
as the "Collateral"); provided, however, that such lien will be subordinated to
the liens and security interest in favor of holders of Senior Indebtedness (as
such term is defined in the Amended Note) and Agent shall take all appropriate
action and execute documentation requested by a holder of Senior Indebtedness
with respect to such subordination.
2. The Debtor's Title; Liens and Encumbrances.
The Debtors represent and warrant that they are, or,
to the extent that this Security Agreement states that the Collateral is to be
acquired after the date hereof, will be, the owner of the Collateral, having
good and marketable title thereto, free from any and all liens, security
interests, encumbrances and claims other than those in favor of any holders of
Senior Indebtedness. The Debtors will not create or assume or permit to exist
any such lien, security interest, encumbrance or claim on or against the
Collateral, other than those in favor of holders of Senior Indebtedness, except
as created by this Security Agreement and as permitted by the Amended Note and
the Debtors will promptly notify Agent of any such other claim, lien, security
interest or other encumbrance made or asserted against the Collateral and will
defend the Collateral against any such claim, lien, security interest or other
encumbrance.
3. Location of Collateral and Records.
The Debtors represent and warrant that they have no
place of business or offices where the Debtors' books of account and records are
kept, or places where the Collateral is used, stored or located, except as set
forth on Schedule II annexed hereto, and covenants that
the Debtors will promptly notify Agent of any change in the foregoing
representation. The Debtors further covenant that except for Collateral
delivered to Agent, the Debtors will not store, use or locate any of the
Collateral at any place other than as listed on Schedule II hereto unless prior
written notice is delivered to Agent.
4. Perfection of Security Interest.
The Debtors will join with Agent in executing one or
more financing statements pursuant to the Uniform Commercial Code or other
notices appropriate under applicable law in form satisfactory to Agent and will
pay all filing or recordings costs with respect thereto, and all costs of filing
or recording this Security Agreement or any other instrument, agreement or
document executed and delivered pursuant hereto or to the Amended Notes
(including the costs of all Federal, state or local mortgage, documentary, stamp
or other taxes), in each case, in all public offices where filing or recording
is deemed by Agent to be necessary or desirable. The Debtors hereby authorize
Agent to take all reasonable action which Participating Stockholders may deem
necessary or desirable to perfect or otherwise protect the liens and security
interests created hereunder and to obtain the benefits of this Security
Agreement.
5. General Covenants.
The Debtors shall:
a. furnish Agent from time to time at his request written statements and
schedules further identifying and describing the Collateral in such detail as he
may reasonably require;
b. advise Agent promptly, in sufficient detail, of any substantial change in
the Collateral, and of the occurrence of any event which would have an adverse
effect on the value of the Collateral or on Participating Stockholders' security
interest therein;
c. 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 the Debtors' business, provided that the
Debtors may contest any acts, rules, regulations, orders and directions of such
bodies or officials in any reasonable manner which will not, in Agent's'
opinion, adversely affect their rights or the priority of their security
interest in the Collateral; and
d. promptly execute and deliver to Agent such further deeds, mortgages,
assignments, security agreements, financing statements or other instruments,
documents, certificates and assurances and take such further action as Agent may
from time to time in its sole discretion deem necessary to perfect, protect or
enforce its security interest in the Collateral or otherwise to effectuate the
intent of this Security Agreement or the Amended Note.
6. Collections.
From and after the date of any Event of Default under
the Amended Note, but subject to the rights of the Holder of Senior
Indebtedness, the Debtors will immediately upon receipt of all checks, drafts,
cash or other remittances in payment of any of its accounts, contract rights or
general intangibles constituting part of the Collateral, or in payment for any
Collateral sold, transferred, leased or otherwise disposed of, or in payment or
on account of its accounts, contracts, contract rights, drafts, acceptances,
general intangibles, choses in action and all other forms of obligations
relating to any of the Collateral so sold, transferred or otherwise disposed of,
deliver any such items to Agent accompanied by a remittance report in form
supplied or approved by Agent such items to be delivered to Agent in the same
form received, endorsed or otherwise assigned by the Debtors where necessary to
permit collection of such items and, regardless of the form of such endorsement,
the Debtors hereby waives presentment, demand, notice of dishonor, protest,
notice of protest and all other notices with respect thereto. All such
remittances shall be applied and credited by Agent first to satisfaction of the
Obligations or as otherwise required by applicable law, and to the extent not so
credited or applied, shall be paid over to the Debtors.
7. Rights and Remedies on Default.
In the event of the occurrence of any Event of
Default as defined in the Amended Note, subject to the rights of the Holder of
Senior Indebtedness, Agent shall at any time thereafter have the right, with
notice to the Debtors, as to any or all of the Collateral, by any available
judicial procedure, or without judicial process, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral, and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, subject to the rights of the Holder of
Senior Indebtedness, the Debtors agrees that Agent shall have the right to sell,
borrow against, lease, or otherwise dispose of all or any part of the
Collateral, upon ten (10) days prior written notice, whether in its then
condition or after further preparation or processing, either at public or
private sale or at any broker's board, in lots or in bulk, for cash or for
credit, with or without warranties or representations, and upon such terms and
conditions, all as Agent in his sole discretion may deem advisable, and he shall
have the right to purchase at any such sale. At Agent's request, the Debtors
shall assemble the Collateral and make it available to Agent at places which he
shall select, whether at the Debtors' premises or elsewhere. Subject to the
rights of the Holder of Senior Indebtedness, the proceeds of any such sale,
lease or other disposition of the Collateral shall be applied first, to the
expenses of retaking, holding, storing, processing and preparing for sale,
selling, and the like and to the reasonable attorneys' fees, collection fees and
legal expenses incurred by Agent and then to satisfaction of the Obligations,
and to the payment of any other amounts required by applicable law, after which
Agent shall account to the Debtors for any surplus proceeds. If, upon the sale,
lease or other disposition of the Collateral, the proceeds thereof are
insufficient to pay all amounts to which Participating Stockholders are legally
entitled, the Debtors will be jointly and severally liable for the deficiency,
and the reasonable fees of any attorneys or agents employed by Participating
Stockholders to collect such deficiency.
8. Costs and Expenses.
Any and all fees relating to the filing or recording
of financing statements and other documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes, insurance
premiums, encumbrances or otherwise protecting, maintaining or preserving the
Collateral, or the enforcing, foreclosing, collecting, retaking, holding,
storing, processing, selling or otherwise realizing upon the Collateral and
Participating Stockholders' security interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions or
proceedings arising out of or related to the transactions to which this Security
Agreement relates, shall be borne and paid by the Debtors on demand by
Participating Stockholders.
9. Notices.
Any notices required or permitted to be sent
hereunder shall be delivered personally or by an overnight courier service or
mailed via certified mail, return receipt requested to a party at the address
set forth in the notice section of the Merger Agreement or such other address as
any party hereto designates by written notice to the other, and shall be deemed
to have been given upon delivery, if delivered personally or by overnight
courier service, with receipt acknowledged or three business days after mailing,
if mailed in accordance with the foregoing provisions.
10. Miscellaneous.
a. Beyond the safe custody thereof, Agent shall have no duty as to the
collection of any Collateral in his possession or control or in the possession
or control of any agent or nominee of Participating Stockholders, or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto.
b. No course of dealing between the Debtors and Agent nor any failure to
exercise, nor any delay in exercising, on the part of Agent any right, power or
privilege hereunder or under the Amended Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or thereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
c. All of Xxxxx'x, as Agent for the Participating Stockholders, rights and
remedies with respect to the Collateral, whether established hereby or by the
Amended Note, or by any other agreements, instruments or documents or by law
shall be cumulative and may be exercised singly or concurrently.
d. The provisions of this Security Agreement are severable, and if any clause
or provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof,
in such jurisdiction and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Security
Agreement in any jurisdiction.
e. This Security Agreement is subject to modification only by a writing
signed by the Debtors and Agent.
f. The benefits and burdens of this Security Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto.
11. Term of Agreement.
The term of this Security Agreement shall commence on
the date hereof and this Security Agreement shall continue in full force and
effect, and be binding upon the Debtors, until all of the Obligations have been
fully paid and performed and such payment and performance has been acknowledged
in writing by Agent whereupon this Security Agreement shall terminate.
12. Governing Law.
This Security Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York. The
parties hereby: (i) in any legal proceeding brought in connection with this
Agreement or the transactions contemplated hereby, irrevocably submit to the
exclusive in personem jurisdiction of (A) any state or Federal court of
competent jurisdiction sitting in the State of New York, County of New York or
(B) in the event that any party is a defendant in any legal proceeding in which
it seeks to join the other as a third party defendant, then, any state or
Federal court in which such proceeding has properly been brought, and consent to
suit therein; and (ii) waive any objection they or it may now or hereafter have
to the venue of such proceeding in any such court or that such proceeding was
brought in an inconvenient court.
13. Old Security Agreement is Superceded.
This Security Agreement supercedes and replaces the
Old Security Agreement but any UCC-1 filings done pursuant to the Old Security
Agreement shall be deemed to have been filed pursuant to this Security
Agreement; provided, however, that Delta shall be entitled to her pro rata
portion of the assets secured under the Old Security Agreement and the benefits
of this Security Agreement with respect to FIS assets but shall not be entitled
to the benefit of the security interests on the EOL assets granted hereunder.
IN WITNESS WHEREOF, the parties have caused these presents to be duly
executed and delivered the day and year first above written.
XXXXX ONLINE, INC.
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: President
FINANCIAL INSIGHT SYSTEMS, INC.
By: /s/ Xxx Xxx
Name: Xxx Xxx
Title: Vice President
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, As Agent for the Principal
Stockholders
SCHEDULE I
All of the Debtors' right, title and interest in, under and to the following
(collectively, the "Collateral"):
(A) Accounts Receivable, including (i) all of the Debtors' present and
future accounts, contract rights, general intangibles, chattel paper
and instruments, as such terms are defined in the Uniform Commercial
Code, (ii) all of the Debtors' right, title and interest, and all or
any of the Debtors' rights, remedies, security and liens, in, to and in
respect of any Accounts Receivable, including, without limitation,
rights of stoppage in transit, replevin, repossession and reclamation
and other rights and remedies of an unpaid vendor, lienor or secured
party, guaranties or other contracts of suretyship with respect to
Accounts Receivable, deposits or other security for the obligation of
any account debtor, and credit and other insurance and (iii) all of any
of the Debtors' right, title and interest in, to and in respect of all
goods relating to, or which by sale have resulted in, Accounts
Receivable, including, without limitation, all goods described in
invoices or other documents or instruments with respect to, or
otherwise representing or evidencing, any Account Receivable, and all
returned, reclaimed or repossessed goods; (B) Documents, including all
instruments, files, records, ledger sheets and documents covering or
relating to any of the Collateral; (C) Equipment, including all of the
Debtors' machinery, equipment, vehicles that are owned by the Debtors,
furniture and fixtures and all attachments, accessories and equipment
now or hereafter owned or acquired in the Debtors' business or used in
connection therewith, and all substitutions and replacement thereof,
wherever located, whether now owned or hereafter acquired by the
Debtors; (D) General Intangibles, including all of the Debtors' present
and future general intangibles of every kind and description, including
(without limitation) copyrights, trade names and trademarks and the
goodwill of the business symbolized thereby, and Federal, State and
local tax refund claims of all kinds due to the Debtors; (E) Inventory,
including all raw materials, work in process, finished goods, and all
other inventory (as defined in the Uniform Commercial Code) of
whatsoever kind or nature, and all wrapping, packaging, advertising and
shipping materials, and any documents relating thereto, and all labels
and other devices, names or marks affixed or to be affixed hereto for
purposes of selling or of identifying the same or the seller or
manufacturer thereof and all of the Debtors' right, title and interest
therein and thereto, wherever located, whether now owned or hereafter
acquired by the Debtors; (F) Proceeds, including any consideration
received from the sale, exchange, lease or other disposition of any
asset or property which constitutes Collateral, any value received as a
consequence of the possession of any Collateral and any payment
received from any insurer or other person or entity as a result of the
destruction, loss, theft or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, and shall
include, without limitation, all cash and negotiable instruments
received or held by the Debtors pursuant to any lockbox or similar
arrangement relating to the payment of Accounts Receivable; and (G) all
of the Debtors' intellectual property includes proprietary software.
SCHEDULE II
CHIEF PLACE OF BUSINESS OF EOL & FIS
AND LOCATION OF COLLATERAL:
00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX
