EXHIBIT 10.84
SECURITY AGREEMENT
DEBTOR: SEDONA CORPORATION
0000 XXXX XXXXX XXXXXX
0XX XXXXX
XXXX XX XXXXXXX, XXXXXXXXXXXX 00000
SECURED PARTY: XXXXX X. XXX
00000 XXXXXXX XXXXXX, XXXXX X-0
BATON ROUGE, LOUISIANA 70816
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of October 23, 2006, between SEDONA
CORPORATION, a Pennsylvania corporation, with an office at 1003 West Ninth
Avenue, 2nd Floor, King of Prussia, Pennsylvania, 19406 (THE "DEBTOR"), and
Xxxxx X. Xxx, an individual with an office at 00000 Xxxxxxx Xxxxxx, Xxxxx X-0,
Xxxxx Xxxxx, Xxxxxxxxx 00000, (HEREINAFTER REFERRED TO AS THE "SECURED PARTY").
WHEREAS, the Debtor has made certain loans and extensions of credit to
the Debtor and the Debtor has agreed and is obligated to make certain payments
to the Secured Party under the terms of the following: (i) a promissory note of
even date herewith in the principal sum of $1,213,952.81; (ii) a revolving
promissory note dated September 27, 2006 herewith in the principal sum of
$500,000.00; (iii) a secured convertible note of even date herewith in the
principal sum of $2,691,263.36 (collectively refereed to herein as the "Notes");
and
WHEREAS, in order to induce the Secured Party to lend to the Debtor
the sums set forth in the Notes, the Debtor has agreed to grant to the Secured
Party an interest in certain property of Debtor as security for the Obligations
(as defined herein) pursuant to the terms of this Security Agreement; and
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto intending to be legally bound agree
as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used herein without definitions shall have the
respective meanings provided therefor in the Notes. The term "State", as used
herein, means the State of Louisiana. All references herein to the Uniform
Commercial Code shall mean the Uniform Commercial Code in the State. All terms
defined in the Uniform Commercial Code and used herein shall have the same
definitions herein as specified therein. However, if a term is defined in
Article 9 of the Uniform Commercial Code differently than in another Article of
the Uniform Commercial Code, the term has the meaning specified in Article 9.
The term "Obligations", as used herein, means all of the indebtedness,
obligations and liabilities of the Debtor or Oak Harbor (as defined herein) to
the Secured Party, individually or collectively, whether direct or indirect,
joint or several, absolute or contingent, due or to become due, now existing or
hereafter arising, including but not limited to those arising under or in
respect of the Notes, any promissory notes or other instruments or agreements
executed and delivered pursuant thereto or in connection therewith or this
Agreement, and the term "Event of Default", as used herein, means the failure of
the Debtor to pay or perform any of the Obligations as and when due to be paid
or performed and any default or event of default under the terms of the Notes.
Page 2 of 17
ARTICLE II
GRANT OF SECURITY INTEREST AND SUBORDINATION
The Debtor hereby grants to the Secured Party, to secure the payment
and performance in full of all of the Obligations, a lien and security interest
in and so pledges and assigns to the Secured Party the following properties,
assets and rights of the Debtor, wherever located, whether now owned or
hereafter acquired or arising, and all proceeds and products thereof (all of the
same being hereinafter called the "Collateral"): all contracts, assets, software
and intellectual property, personal and fixture property of every kind and
nature, (including inventory and equipment), instruments (including promissory
notes), documents, accounts, accounts receivable, chattel paper (whether
tangible or electronic), deposit accounts, commercial tort claims, securities
and all other investment property, supporting obligations, any other contract
rights or rights to the payment of money, insurance claims and proceeds, tort
claims, and all general intangibles (including all payment intangibles). The
security interest of the Secured Party shall be subordinate only to the security
interest of Oak Harbor Investment Properties, L.L.C. ("Oak Harbor"), pursuant to
that certain Amended and Restated Security Agreement of even date herewith from
the Debtor to Oak Harbor. The security interest of the Secured Party shall be
junior only to the secured interest and lien of Oak Harbor and shall be senior
to all other liens and interests in the Collateral. The Secured Party
acknowledges that the attachment of its security interest in any commercial tort
claim as original collateral is subject to the Debtor's compliance with Article
IV.7.
ARTICLE III
AUTHORIZATION TO FILE FINANCING STATEMENTS
The Debtor hereby irrevocably authorizes the Secured Party at any time
and from time to time to file in any Uniform Commercial Code jurisdiction (in
addition to the State if appropriate any initial financing statements and
amendments thereto that (a) indicate the Collateral: (i) as all assets of the
Debtor securing the Obligations or words of similar effect, regardless of
whether any particular asset comprised in the Collateral falls within the scope
of Article 9 of the Uniform Commercial Code or such jurisdiction, or (ii) as
being of an equal or lesser scope or with greater detail, and (b) contain any
other information required by part 5 of Article 9 of the Uniform Commercial Code
for the sufficiency or filing office acceptance of any financing statement or
amendment, including whether the Debtor is an organization, the type of
organization and any organization identification number issued to the Debtor.
The Debtor agrees to furnish any such information to the Secured Party promptly
upon request. The Debtor also ratifies its authorization for the Secured Party
to have filed in any Uniform Commercial Code jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
ARTICLE IV
OTHER ACTIONS
Further to insure (i) the attachment, perfection and priority of the
Secured Party's security interest in the Collateral, subject to the security
interests, liens or encumbrances set forth on Appendix A, and (ii) the ability
of the Secured Party to enforce its security interest in the Collateral, the
Debtor agrees, in each case at the Debtor's own expense, to take the following
actions with respect to the following Collateral:
Page 3 of 17
IV.1 PROMISSORY NOTES AND TANGIBLE CHATTEL PAPER If the Debtor shall at any
time hold or acquire any promissory notes or tangible chattel paper, the Debtor
shall forthwith endorse, assign and deliver the same to the Secured Party,
accompanied by such instruments of transfer or assignment duly executed in blank
as the Secured Party may from time to time specify.
IV.2 DEPOSIT ACCOUNTS. For each deposit account that the Debtor at any time
opens or maintains, the Debtor shall, at the Secured Party's request and option,
pursuant to an agreement in form and substance satisfactory to the Secured Party
and the Debtor, either (a) cause the depositary bank to agree to comply at any
time with instructions from the Secured Party to such depositary bank directing
the disposition of funds from time to time credited to such deposit account,
without further consent of the Debtor, or (b) arrange for the Secured Party to
become the customer of the depositary bank with respect to the deposit account,
with the Debtor being permitted, only with the consent of the Secured Party, to
exercise rights to withdraw funds from such deposit account. The Secured Party
agrees with the Debtor that the Secured Party shall not give any such
instructions or withhold any withdrawal rights from the Debtor, unless an Event
of Default has occurred and is continuing for a period of sixty (60) calendar
days, or, after giving effect to any withdrawal not otherwise permitted by the
Notes, would occur. The provisions of this paragraph shall not apply to (i) any
deposit account for which the Debtor, the depositary bank and the Secured Party
have entered into a cash collateral agreement specially negotiated among the
Debtor, the depositary bank and the Secured Party for the specific purpose set
forth therein, (ii) deposit accounts for which the Secured Party is the
depositary and (iii) deposit accounts specially and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for
the benefit of the Debtor's salaried employees.
IV.3 INVESTMENT PROPERTY. If the Debtor shall at any time hold or acquire
any certificated securities, the Debtor shall forthwith endorse, assign and
deliver the same to the Secured Party, accompanied by such instruments of
transfer or assignment duly executed in blank as the Secured Party may from time
to time specify. If any securities now or hereafter acquired by the Debtor are
uncertificated and are issued to the Debtor or its nominee directly by the
issuer thereof, the Debtor shall promptly notify the Secured Party thereof and,
at the Secured Party's request and option, pursuant to an agreement in form and
substance satisfactory to the Secured Party, either (a) cause the issuer to
agree to comply with instructions from the Secured Party as to such securities,
without further consent of the Debtor or such nominee, or (b) arrange for the
Secured Party to become the registered owner of the securities. If any
securities, whether certificated or uncertificated, or other investment property
now or hereafter acquired by the Debtor are held by the Debtor or its nominee
through a securities intermediary or commodity intermediary, the Debtor shall
promptly notify the Secured Party thereof and, at the Secured Party's request
and option, pursuant to an agreement in form and substance satisfactory to the
Secured Party, either (i) cause such securities intermediary or (as the case may
be) commodity intermediary to agree to comply with entitlement orders or other
instructions from the Secured Party to such securities intermediary as to such
securities or other investment property, or (as the case may be) to apply any
value distributed on account of any commodity contract as directed by the
Secured Party to such commodity intermediary, in each case without further
consent of the Debtor or such nominee, or (ii) in the case of financial assets
or other investment property held through a securities intermediary, arrange for
the Secured Party to become the entitlement holder with respect to such
investment property, with the Debtor being permitted, only with the consent of
the Secured Party, to exercise rights to withdraw or otherwise deal with such
investment property. The provisions of this paragraph shall not apply to any
financial
Page 4 of 17
assets credited to a securities account for which the Secured Party is the
securities intermediary.
IV.4 COLLATERAL IN THE POSSESSION OF A BAILEE. If any Collateral is at any
time in the possession of a bailee, the Debtor shall promptly notify the Secured
Party thereof and, if requested by the Secured Party, shall promptly seek an
acknowledgment from the bailee, in form and substance satisfactory to the
Secured Party, that the bailee holds such Collateral for the benefit of the
Secured Party if an Event of Default has occurred and is continuing for a period
of sixty (60) calendar days shall act upon the instructions of the Secured
Party, without the further consent of the Debtor.
IV.5 ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If the Debtor at
any time holds or acquires an interest in any electronic chattel paper or any
"transferable record," as that term is defined in Section 201 of the federal
Electronic Signatures in Global and National Commerce Act, (ESIGN") or in
Section 16 of the Uniform Electronic Transactions Act ("UETA") as in effect in
any relevant jurisdiction, the Debtor shall promptly notify the Secured Party
thereof and, at the request of the Secured Party, shall take such action as the
Secured Party may reasonably request to vest in the Secured Party control, under
Section 9-105 of the Uniform Commercial Code, of such electronic chattel paper
or control under Section 201 of ESIGN or, as the case may be, Section 16 of
UETA, as so in effect in such jurisdiction, of such transferable record.
IV.6 LETTER-OF-CREDIT RIGHTS. If the Debtor is at any time a beneficiary
under a letter of credit now or hereafter issued in favor of the Debtor, the
Debtor shall promptly notify the Secured Party thereof and, at the request and
option of the Secured Party, the Debtor shall, pursuant to an agreement in form
and substance satisfactory to the Secured Party, either (i) arrange for the
issuer and any confirmer of such letter of credit to consent to an assignment to
the Secured Party of the proceeds of any drawing under the letter of credit or
(ii) arrange for the Secured Party to become the transferee beneficiary of the
letter of credit, with the Secured Party agreeing, in each case, that the
proceeds of any drawing under the letter to credit are to be applied as set
forth in the Notes.
IV.7 COMMERCIAL TORT CLAIMS. If the Debtor shall at any time hold or
acquire a commercial or other tort claim, the Debtor shall immediately notify
the Secured Party in a writing signed by the Debtor of the brief details thereof
and grant to the Secured Party in such writing a security interest therein and
in the proceeds thereof, all upon the terms of this Agreement, with such writing
to be in form and substance satisfactory to the Secured Party.
IV.8 OTHER ACTIONS AS TO ANY AND ALL COLLATERAL. The Debtor further agrees
to take any other action reasonably requested by the Secured Party to insure the
attachment, perfection and priority of, and the ability of the Secured Party to
enforce, the Secured Party's security interest in any and all of the Collateral
including, without limitation, (a) executing, delivering and, where appropriate,
filing financing statements and amendments relating thereto under the Uniform
Commercial Code, to the extent, if any, that the Debtor's signature thereon is
required therefor, (b) causing the Secured Party's name to be noted as secured
party on any certificate of title for a titled good if such notation is a
condition to attachment, perfection or priority of, or ability of the Secured
Party to enforce, the Secured Party's security interest in such Collateral, (c)
complying with any provision of any statute, regulation or treaty of the United
States as to any Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of the Secured Party to
enforce, the Secured Party's security interest in such Collateral, (d) obtaining
governmental
Page 5 of 17
and other third party consents and approvals, including, without limitation, any
consent of any licensor, lessor or other person obligated on the Collateral, (e)
obtaining waivers from mortgagees and landlords in form and substance
satisfactory to the Secured Party and (f) taking all actions required by any
earlier versions of the Uniform Commercial Code or by other law, as applicable
in any relevant Uniform Commercial Code jurisdiction, or by other law as
applicable in any foreign jurisdiction.
ARTICLE V
REPRESENTATIONS AND WARRANTIES CONCERNING DEBTOR'S LEGAL STATUS
The Debtor represents and warrants to the Secured Party as follows:
(a) the Debtor's exact legal name is that indicated on the signature page
hereof, (b) the Debtor is a Corporation organized under the laws of the
Commonwealth of Pennsylvania, (c) the Debtor's organizational identification
number is 00-0000000 and, (d) the address listed on the cover page hereof is
Debtor's chief executive office.
ARTICLE VI
COVENANTS CONCERNING DEBTOR'S LEGAL STATUS
The Debtor covenants with the Secured Party as follows: (a) without
providing at least thirty (30) days prior written notice to the Secured Party,
the Debtor will not change its name, its place of business or, if more than one,
its chief executive office, or its mailing address or organizational
identification number if it has one, (b) if the Debtor does not have an
organizational identification number and later obtains one, the Debtor shall
forthwith notify the Secured Party of such organizational identification number,
and (c) the Debtor will not change its type of organization, jurisdiction of
organization or other legal structure without prior consent of the Secured
Party.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL, ETC.
The Debtor further represents and warrants to the Secured Party as
follows: (a) the Debtor is the owner of or has other rights in or power to
transfer the Collateral, free from any adverse lien, security interest or other
encumbrance, except for the security interests, liens or encumbrances set forth
on Appendix A, the security interest created by this Agreement, other liens
permitted by the Notes, and other liens or encumbrances incurred by the Debtor
in the ordinary course of business in an aggregate amount less than $175,000
(all the foregoing collectively as "Permitted Liens"), except as the Secured
Party may otherwise permit, (b) none of the Collateral constitutes, or is the
proceeds of, "farm products" as defined in Section 9-102(a)(34) of the Uniform
Commercial Code, (c) none of the account debtors or other persons obligated on
any of the Collateral is a governmental authority subject to the Federal
Assignment of Claims Act or like federal, state or local statute or rule in
respect of such Collateral, and (d) the Debtor has at all times materially
operated its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances.
Page 6 of 17
ARTICLE VIII
COVENANTS CONCERNING COLLATERAL, ETC.
The Debtor further covenants with the Secured Party as follows: (a)
the Collateral, to the extent not delivered to the Secured Party pursuant to
ARTICLE IV, will be kept at those locations listed on the address listed on the
cover page hereof and the Debtor will not remove the Collateral from such
locations, without providing at least thirty (30) days prior written notice to
the Secured Party; (b) except for Permitted Liens, the Debtor shall be the owner
of or have other rights in the Collateral free from any lien, security interest
or other encumbrance, and the Debtor shall defend the same against all claims
and demands of all persons at any time claiming the same or any interests
therein adverse to the Secured Party; (c) except for Permitted Liens, the Debtor
shall not pledge, mortgage or create, or suffer to exist a security interest in
the Collateral in favor of any person other than the Secured Party and Oak
Harbor; (d) the Debtor will keep the Collateral in good order and repair
reasonable wear and tear excepted and will not use the same in violation of law
or any policy of insurance thereon; (e) the Debtor will permit the Secured
Party, or its designee, to inspect the Collateral at any reasonable time,
wherever located, during regular business hours of the Debtor, and upon
reasonable prior written notice to the Debtor; (f) the Debtor will pay promptly
when due all taxes, assessments, governmental charges and levies upon the
Collateral or incurred in connection with the use or operation of such
Collateral or incurred in connection with this Agreement; (g) the Debtor will
continue to operate its business in material compliance with all applicable
provisions of the federal Fair Labor Standards Act, as amended, and with all
applicable provisions of federal, state and local statutes and ordinances
dealing with the control, shipment, storage or disposal of hazardous materials
or substances; and (h) the Debtor will not sell or otherwise dispose, or offer
to sell or otherwise dispose, of the Collateral or any interest therein except
for (i) sales and leases of inventory and licenses of general intangibles in the
ordinary course of business and (ii) so long as no Event of Default has occurred
and is continuing for a period of sixty (60) calendar days, sales or other
dispositions of obsolescent Collateral in the ordinary course of business
consistent with past practices dispositions permitted by the Notes.
ARTICLE IX
INSURANCE
The following provisions regarding insurance are made part of this
Agreement.
IX.1 MAINTENANCE OF INSURANCE. The Debtor will maintain with financially
sound and reputable insurers insurance with respect to its properties and
business against such casualties and contingencies as shall be in accordance
with general practices of businesses engaged in similar activities in similar
geographic areas. Such insurance shall be in such minimum amounts that the
Debtor will not be deemed a co-insurer under applicable insurance laws,
regulations and policies and otherwise shall be in such amounts, contain such
terms, be in such forms and be for such periods as may be reasonably
satisfactory to the Secured Party. In addition, all such insurance shall be
payable to the Secured Party as loss payee under a "standard" or "New York" loss
payee clause. Without limiting the foregoing, the Debtor will (i) keep all of
the Collateral constituting physical property insured with casualty or physical
hazard insurance on an "all risks" basis, with broad form flood and earthquake
coverages and electronic data processing coverage, with a full replacement cost
endorsement and an "agreed amount" clause in an amount equal to 100% of the
Page 7 of 17
full replacement cost of such property, (ii) maintain all such workers'
compensation or similar insurance as may be required by law and (iii) maintain,
in amounts and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar geographic areas, general
public liability insurance against claims of bodily injury, death or property
damage occurring, on, in or about the properties of the Debtor; business
interruption insurance; and product liability insurance.
IX.2 INSURANCE PROCEEDS The proceeds of any casualty insurance in respect
of any casualty loss of any of the Collateral shall, subject to the rights, if
any, of other parties with a prior interest in the property covered thereby, (i)
so long as no Default or Event of Default has occurred and is continuing for a
period of sixty (60) days, be disbursed to the Debtor for direct application by
the Debtor solely to the repair or replacement of the Debtor's property so
damaged or destroyed and (ii) in all other circumstances, be held by the Secured
Party as cash collateral for the Obligations. The Secured Party may, at its sole
option, disburse from time to time all or any part of such proceeds so held as
cash collateral, upon such terms and conditions as the Secured Party may
reasonably prescribe, for direct application by the Debtor solely to the repair
or replacement of the Debtor's property so damaged or destroyed, or the Secured
Party may apply all or any part of such proceeds to the Obligations.
IX.3 NOTICE OF CANCELLATION, ETC. All policies of insurance shall provide
for at least thirty (30) days prior written cancellation notice to the Secured
Party. In the event of failure by the Debtor to provide and maintain insurance
as herein provided, the Secured Party may, at its option, provide such insurance
and charge the amount thereof to the Debtor. The Debtor shall furnish the
Secured Party with certificates of insurance and policies evidencing compliance
with the foregoing insurance provision.
ARTICLE X
COLLATERAL PROTECTION EXPENSES; PRESERVATION OF COLLATERAL
The following provisions regarding the Collateral are made part of
this Agreement.
X.1 EXPENSES INCURRED BY SECURED PARTY. In its discretion, the Secured
Party may discharge taxes and other encumbrances at any time levied or placed on
any of the Collateral, make repairs thereto and pay any necessary filing fees
or, if the Debtor fails to do so, insurance premiums. The Debtor agrees to
reimburse the Secured Party on demand for any and all expenditures so made. The
Secured Party shall have no obligation to the Debtor to make any such
expenditures, nor shall the making thereof relieve the Debtor of any default or
Event of Default.
X.2 SECURED PARTY'S OBLIGATIONS AND DUTIES. Anything herein to the contrary
notwithstanding, the Debtor shall remain liable under each contract or agreement
included in the Collateral to be observed or performed by the Debtor thereunder.
The Secured Party shall not have any obligation or liability under any such
contract or agreement by reason of or arising out of this Agreement or the
receipt by the Secured Party of any payment relating to any of the Collateral,
nor shall the Secured Party be obligated in any manner to perform any of the
obligations of the Debtor under or pursuant to any such contract or agreement,
to make inquiry as to the nature or sufficiency of any payment received by the
Secured Party in respect of the Collateral or as to the sufficiency of any
performance by any party under any such contract or agreement, to present or
file any claim, to
Page 8 of 17
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to the Secured Party or to which the
Secured Party may be entitled at any time or times. The Secured Party's sole
duty with respect to the custody, safe-keeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Uniform Commercial Code
or otherwise, shall be to deal with such Collateral in the same manner as the
Secured Party deals with similar property for its own account.
ARTICLE XI
SECURITIES AND DEPOSITS
The Secured Party may if an Event of Default exists and is continuing
for a period of sixty (60) calendar days, at its option, transfer to itself or
any nominee any securities constituting Collateral, receive any income thereon
and hold such income as additional Collateral or apply it to the Obligations.
Whether or not any Obligations are due, the Secured Party may demand, xxx for,
collect, or make any settlement or compromise which it deems desirable with
respect to the Collateral. Regardless of the adequacy of Collateral or any other
security for the Obligations, any deposits or other sums at any time credited by
or due from the Secured Party to the Debtor may at any time be applied to or set
off against any of the Obligations.
ARTICLE XII
NOTIFICATION TO ACCOUNT DEBTORS AND
OTHER PERSONS OBLIGATED ON COLLATERAL
The Debtor shall, at the request of the Secured Party, and only if an
Event of Default has occurred, notify account debtors and other persons
obligated on any of the Collateral of the security interest of the Secured Party
in any account, chattel paper, general intangible, instrument or other
Collateral and that payment thereof is to be made directly to the Secured Party
or to any financial institution designated by the Secured Party as the Secured
Party's agent therefor, and the Secured Party may itself, without notice to or
demand upon the Debtor, so notify account debtors and other persons obligated on
Collateral. After the making of such a request or the giving of any such
notification, the Debtor shall hold any proceeds of collection of accounts,
chattel paper, general intangibles, instruments and other Collateral received by
the Debtor as trustee for the Secured Party without commingling the same with
other funds of the Debtor and shall turn the same over to the Secured Party in
the identical form received, together with any necessary endorsements or
assignments. The Secured Party shall apply the proceeds of collection of
accounts, chattel paper, general intangibles, instruments and other Collateral
received by the Secured Party to the Obligations, such proceeds to be
immediately entered after final payment in cash or other immediately available
funds of the items giving rise to them.
ARTICLE XIII
POWER OF ATTORNEY
The following provisions regarding power of attorney are made part of
this Agreement.
XIII.1 APPOINTMENT AND POWERS OF SECURED PARTY. The Debtor hereby
irrevocably constitutes and appoints the Secured Party and any officer or agent
thereof, with full power of
Page 9 of 17
substitution, as its true and lawful attorneys-in-fact with full irrevocable
power and authority in the place and stead of the Debtor or in the Secured
Party's own name, for the purpose of carrying out the terms of this Agreement,
to take any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement and, without limiting the generality of the foregoing, hereby
gives said attorneys the power and right, on behalf of the Debtor, without
notice to or assent by the Debtor, to do the following:
XIII.1.1.1 Upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral in such manner as
is consistent with the Uniform Commercial Code and as fully and completely
as though the Secured Party were the absolute owner thereof for all
purposes, and to do at the Debtor's expense, at any time, or from time to
time, all acts and things which the Secured Party deems necessary to
protect, preserve or realize upon the Collateral and the Secured Party's
security interest therein, in order to effect the intent of this Agreement,
all as fully and effectively as the Debtor might do, including, without
limitation, (i) the filing and prosecuting of registration and transfer
applications with the appropriate federal or local agencies or authorities
with respect to trademarks, copyrights and patentable inventions and
processes, (ii) upon written notice to the Debtor, the exercise of voting
rights with respect to voting securities, which rights may be exercised, if
the Secured Party so elects, with a view to causing the liquidation in a
commercially reasonable manner of assets of the issuer of any such
securities and (iii) the execution, delivery and recording, in connection
with any sale or other disposition of any Collateral, of the endorsements,
assignments or other instruments of conveyance or transfer with respect to
such Collateral; and
XIII.1.1.2 To the extent that the Debtor's authorization given in
ARTICLE III is not sufficient, to file such financing statements with
respect hereto, with or without the Debtor's signature, or a photocopy of
this Agreement in substitution for a financing statement, as the Secured
Party may deem appropriate and to execute in the Debtor's name such
financing statements and amendments thereto and continuation statements
which may require the Debtor's signature.
XIII.2 RATIFICATION BY DEBTOR. To the extent permitted by law, the Debtor
hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue hereof. This power of attorney is a power coupled with an interest and
shall be irrevocable.
XIII.3 NO DUTY ON SECURED PARTY. The powers conferred on the Secured Party
hereunder are solely to protect its interests in the Collateral and shall not
impose any duty upon it to exercise any such powers. The Secured Party shall be
accountable only for the amounts that it actually receives as a result of the
exercise of such powers and neither it nor any of its officers, directors,
employees or agents shall be responsible to the Debtor for any act or failure to
act, except for the gross negligence or willful misconduct of the Secured Party
or any of its officers, directors, or employees.
ARTICLE XIV
REMEDIES
Page 10 of 17
If an Event of Default occurs under this Agreement and remains uncured
for a period of sixty (60) calendar days, at any time thereafter, the Secured
Party shall have all of the rights of a secured party under applicable law, and
more specifically under the Uniform Commercial Code and shall have all of the
rights and remedies set forth in the Notes. In addition and without limitation,
the Secured Party may exercise any one or more of the following rights and
remedies:
XIV.1 GENERAL REMEDIES. The Secured Party may, without notice to or demand
upon the Debtor, declare this Agreement to be in default, and the Secured Party
shall thereafter have in any jurisdiction in which enforcement hereof is sought,
in addition to all other rights and remedies, the rights and remedies of a
secured party under the Uniform Commercial Code or of any jurisdiction in which
Collateral is located, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Secured Party may, so far
as the Debtor can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Secured Party may
in its discretion require the Debtor to assemble all or any part of the
Collateral at such location or locations within the jurisdiction(s) of the
Debtor's principal office(s) or at such other locations as the Secured Party may
reasonably designate. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, the Secured Party shall give to the Debtor at least five (5) business
days prior written notice of the time and place of any public sale of Collateral
or of the time after which any private sale or any other intended disposition is
to be made. The Debtor hereby acknowledges that five (5) business days prior
written notice of such sale or sales shall be reasonable notice. In addition,
the Debtor waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Secured Party's rights hereunder,
including, without limitation, its right following an Event of Default to take
immediate possession of the Collateral and to exercise its rights with respect
thereto.
XIV.2 KEEPER. Should any or all of the Collateral be seized as an incident
to an action for the recognition or enforcement of this Agreement, by executory
process, sequestration, attachment, writ of fieri facias or otherwise, the
Debtor hereby agrees that the court issuing any such order shall, if requested
by the Secured Party, appoint the Secured Party, or any agent designated by the
Secured Party, or any person or entity named by the Secured Party at the time
such seizure is requested, or any time thereafter, as Keeper of the Collateral.
Such a Keeper shall be entitled to reasonable compensation. The Debtor agrees to
pay the reasonable fees of such Keeper,
XIV.3 OTHER RIGHTS AND REMEDIES. In addition, the Secured Party shall have
and may exercise any or all other rights and remedies it may have available at
law, in equity, or otherwise.
XIV.4 CUMULATIVE REMEDIES. All of the Secured Party's rights and remedies,
whether evidenced by this Agreement or the Notes or by any amendments, shall be
cumulative and may be exercised singularly or concurrently. Election by the
Secured Party to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of the Debtor under this Agreement, after the Debtor's failure to
perform, shall not affect the Secured Party's right to declare a default and to
exercise its remedies.
ARTICLE XV
Page 11 of 17
STANDARDS FOR EXERCISING REMEDIES
To the extent that applicable law imposes duties on the Secured Party
to exercise remedies in a commercially reasonable manner, the Debtor
acknowledges and agrees that it is not commercially unreasonable for the Secured
Party (a) to fail to incur expenses reasonably deemed significant by the Secured
Party to prepare Collateral for disposition or otherwise to complete raw
material or work in process into finished goods or other finished products for
disposition, (b) to fail to obtain third party consents for access to Collateral
to be disposed of, or to obtain or, if not required by other law, to fail to
obtain governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (c) to fail to exercise collection
remedies against account debtors or other persons obligated on Collateral or to
remove liens or encumbrances on or any adverse claims against Collateral, (d) to
exercise collection remedies against account debtors and other persons obligated
on Collateral directly or through the use of collection agencies and other
collection specialists, (e) to advertise dispositions of Collateral through
publications or media of general circulation, whether or not the Collateral is
of a specialized nature, (f) to contact other persons, whether or not in the
same business as the Debtor, for expressions of interest in acquiring all or any
portion of the Collateral, (g) to hire one or more professional auctioneers to
assist in the disposition of Collateral, at commercially reasonable rates
whether or not the Collateral is of a specialized nature, (h) to dispose of
Collateral by utilizing Internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capability of
doing so, or that match buyers and sellers of assets at commercially reasonable
rates, (i) to dispose of assets in wholesale rather than retail markets, (j) to
disclaim disposition warranties, (k) to purchase reasonable insurance or credit
enhancements to insure the Secured Party against risks of loss, collection or
disposition of Collateral or to provide to the Secured Party a guaranteed return
from the collection or disposition of Collateral, or (l) to the extent deemed
appropriate by the Secured Party, to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist the Secured
Party in the collection or disposition of any of the Collateral. The Debtor
acknowledges that the purpose of this ARTICLE XV is to provide non-exhaustive
indications of what actions or omissions by the Secured Party would not be
commercially unreasonable in the Secured Party's exercise of remedies against
the Collateral and that other actions or omissions by the Secured Party shall
not be deemed commercially unreasonable solely on account of not being indicated
in this ARTICLE XV. Without limitation upon the foregoing, nothing contained in
this ARTICLE XV shall be construed to grant any rights to the Debtor or to
impose any duties on the Secured Party that would not have been granted or
imposed by this Agreement or by applicable law in the absence of this ARTICLE
XV.
ARTICLE XVI
NO WAIVER BY SECURED PARTY, ETC
The Secured Party shall not be deemed to have waived any of its rights
upon or under the Obligations or the Collateral unless such waiver shall be in
writing and signed by the Secured Party. No delay or omission on the part of the
Secured Party in exercising any right shall operate as a waiver of such right or
any other right. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right on any future occasion. All rights and remedies of the
Secured Party with respect to the Obligations or the Collateral, whether
evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised singularly, alternatively, successively or concurrently at such
time or at such times as the Secured Party deems expedient.
Page 12 of 17
ARTICLE XVII
SURETYSHIP WAIVERS BY DEBTOR
The Debtor waives demand, notice, protest, notice of acceptance of
this Agreement, notice of loans made, credit extended, Collateral received or
delivered or other action taken in reliance hereon and all other demands and
notices of any description. With respect to both the Obligations and the
Collateral, the Debtor assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of or
failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Secured Party may deem advisable. The Secured Party shall have no duty as to the
collection or protection of the Collateral or any income thereon, nor as to the
preservation of rights against prior parties, nor as to the preservation of any
rights pertaining thereto beyond the safe custody thereof as set forth in
ARTICLE X.2. The Debtor further waives any and all other suretyship defenses.
ARTICLE XVIII
MARSHALLING
The Secured Party shall not be required to marshal any present or
future collateral security (including, but not limited to, this Agreement and
the Collateral) for, or other assurances of payment of, the Obligations or any
of them or to resort to such collateral security or other assurances of payment
in any particular order, and all of its rights hereunder and in respect of such
collateral security and other assurances of payment shall be cumulative and, in
addition to all other rights, however existing or arising. To the extent that it
lawfully may, the Debtor hereby agrees that it will not invoke any law relating
to the marshalling of collateral which might cause delay in or impede the
enforcement of the Secured Party's rights under this Agreement or under any
other instrument creating or evidencing any of the Obligations or under which
any of the Obligations is outstanding or by which any of the Obligations is
secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, the Debtor hereby irrevocably waives the benefits of all such
laws.
ARTICLE XIX
PROCEEDS OF DISPOSITIONS; EXPENSES
The Debtor shall pay to the Secured Party, on demand, any and all
expenses, including reasonable attorneys' fees and disbursements, incurred by
the Secured Party in protecting, preserving or enforcing the Secured Party's
rights under or in respect of any of the Obligations or any of the Collateral.
After deducting all of said expenses, the residue of any proceeds of collection
or sale of the Obligations or Collateral shall, to the extent actually received
in cash, be applied to the payment of the Obligations in such order or
preference as the Secured Party may determine or in such order or preference as
is provided in the Notes, proper allowance and provision being made for any
Obligations not then due. Upon the final payment and satisfaction in full of all
of the Obligations and, after making any payments required by Sections
9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial Code, any excess shall
be returned to the Debtor, and the Debtor shall remain liable for any deficiency
in the payment of the Obligations.
Page 13 of 17
ARTICLE XX
OVERDUE AMOUNTS
Until paid, all amounts due and payable by the Debtor hereunder shall
be a debt secured by the Collateral and shall bear, whether before or after
judgment, interest at the applicable rate as set forth in the Notes.
Page 14 of 17
ARTICLE XXI
GOVERNING LAW; CONSENT TO JURISDICTION
THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
LOUISIANA. The Debtor agrees that any suit for the enforcement of this Agreement
may be brought in either the courts of the State or any jurisdiction in which
the Collateral is located, or any federal court sitting in any of the foregoing
and consents to the non-exclusive jurisdiction of such courts and to service of
process in any such suit being made upon the Debtor by mail at the address set
forth on the cover page hereof. The Debtor hereby waives any objection that it
may now or hereafter have to the venue of any such suit or any such court or
that such suit is brought in an inconvenient court.
ARTICLE XXII
WAIVER OF JURY TRIAL
THE DEBTOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Debtor waives any right which it
may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Debtor (i) certifies
that neither the Secured Party nor any representative, agent or attorney of the
Secured Party has represented, expressly or otherwise, that the Secured Party
would not, in the event of litigation, seek to enforce the foregoing waivers and
(ii) acknowledges that, in entering into the Notes, the Secured Party is relying
upon, among other things, the waivers and certifications contained in this
ARTICLE XXII.
ARTICLE XXIII
MISCELLANEOUS
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. No change, modification or addition to
this Agreement shall be enforceable unless in writing and signed by the party
against whom enforcement is sought. The headings of each section of this
Agreement are for convenience only and shall not define or limit the provisions
thereof. This Agreement and all rights and obligations hereunder shall be
binding upon the Debtor and its respective successors and assigns, and shall
inure to the benefit of the Secured Party and its successors and assigns. If any
term of this Agreement shall be held to be invalid, illegal or unenforceable,
the validity of all other terms hereof shall in no way be affected thereby, and
this Agreement shall be construed and be enforceable as if such invalid, illegal
or unenforceable term had not been included herein. The Debtor acknowledges
receipt of a copy of this Agreement.
Page 15 of 17
IN WITNESS WHEREOF, intending to be legally bound, the Debtor has
caused this Agreement to be duly executed as of the date first above written.
DEBTOR:
SEDONA CORPORATION
BY:
------------------------------------
NAME: XXXXX X. XXXXXX
TITLE: PRESIDENT AND CEO
STATE OF ____________________________________________ )
) SS
COUNTY OF ___________________________________________ )
I, the undersigned authority, a Notary Public in and for said county
in said state, hereby certify that ______________________________________, the
_________________ of SEDONA CORPORATION, whose name is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said Agreement, he or she executed the same
voluntarily on the day the same bears date.
GIVEN UNDER MY HAND AND OFFICIAL SEAL THIS _________________________
DAY OF ___________________________________, 2006.
_____________________________________________________
NOTARY PUBLIC
MY COMMISSION EXPIRES________________________________
Page 16 of 17
APPENDIX A
TO
SECURITY AGREEMENT BETWEEN SEDONA CORPORATION AND
XXXXX X. XXX
Jurisdiction: Xxxxxxxxxx County, Pennsylvania (Commonwealth of Pennsylvania)
File Date: 03/22/02
File No.: 02-5780
JURISDICTION: COMMONWEALTH OF PENNSYLVANIA (OAK HARBOR INVESTMENT
PROPERTIES, LLC)
FILE DATE: 3/18/2003
FILE NO: 20030256799
Page 17 of 17
