EXECUTION COPY
DISBURSEMENT AGREEMENT
This DISBURSEMENT Agreement (the "Agreement"), dated as of December 29,
2000 (the "Closing Date"), is by and between XXXXXXXXXXXX.XXX, Inc. (d/b/a
XxxxXxx.xxx), a Pennsylvania corporation (the "Borrower") and SEDONA
CORPORATION, a Pennsylvania corporation (the "Lender").
Recitals
WHEREAS, the Borrower has requested that the Lender make a loan to the
Borrower in an aggregate principal amount not to exceed One Million Dollars
($1,000,000), and the Lender, for the purpose of furthering the marketing and
sale of Lender's products and general working capital, is willing to make such
loan to the Borrower on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the agreements herein set forth and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Agreement
1. The Loan.
1.1 Amount Available. Beginning January 1, 2001 through and
including August 31, 2001 (the "Availability Period"), and subject to the terms
and conditions of this Agreement, the Lender shall extend to the Borrower, and
the Borrower shall from time to time borrow from the Lender, a loan in an amount
not to exceed the aggregate principal amount of One Million Dollars ($1,000,000)
(the "Loan"). The Lender shall make each advance of the Loan to the Borrower, in
immediately available funds in United States dollars (the "Advance") subject to
the conditions set forth in this Agreement.
1.2 Interest Rate. The Loan shall bear interest at a rate per annum
equal to six percent (6.00%). Interest shall be computed on the basis of a 365
day year applied to actual days elapsed. All accrued but unpaid interest,
together with the aggregate outstanding principal balance of the Loan shall be
due and payable in full if not sooner paid on December 29, 2003, the third
anniversary of the Closing Date (the "Maturity Date"). The rate of interest
payable on the Loan and under the Note (as hereinafter defined) from time to
time shall in no event exceed the maximum rate, if any, permissible under
applicable law. If the rate of interest payable on the Loan and under the Note
is ever reduced as a result of the preceding sentence and at any time thereafter
the maximum rate permitted by applicable law shall exceed the rate of interest
provided for hereunder and under the Note, then the rate provided for hereunder
and under the Note shall be increased to the maximum rate permitted by
applicable law for such period as required so that the total amount of interest
received by the Lender is that which would have been received by the Lender but
for the operation of the preceding sentence.
1.3 Promissory Note. The Loan shall be evidenced by a promissory
note substantially in the form set forth as Exhibit A (the "Note") made payable
to the Lender in an amount not to exceed the aggregate principal amount of One
Million Dollars ($1,000,000) (or such lesser amount as is outstanding and
advanced hereunder).
2. Conditions to Advances.
The obligations of Lender to make the Loan (or any advance
thereunder) is subject to the following conditions precedent, each of which
applies to every advance under the Loan unless otherwise expressly set forth
herein:
2.1 Conditions to First Advance. The following shall be conditions
precedent to the first dvance under the Loan (the "First Advance") (except as
waived by Lender):
(a) Loan Documents. Borrower and each other party to the Loan
Documents shall have executed and delivered to Lender all of the Loan Documents
as set forth in Section 3 of the Closing Checklist, attached hereto as Exhibit B
(the "Closing Checklist");
(b) Supporting Documents. Borrower shall have delivered the
Supporting Documents as set forth in Section 4 of the Closing Checklist;
(c) Opinion of Counsel. Borrower shall have delivered the
Opinion of Counsel to Lender in form reasonably satisfactory to Lender;
(d) Bank Contract Services Agreement. Borrower shall have
submitted to the Lender and the Lender shall have approved in its sole and
absolute subjective discretion the form of Bank Services Agreement with each and
all of the Banks to which the Borrower is providing products and services;
(e) Additional Capital. Borrower shall have secured and
provided to Lender evidence satisfactory to Lender in all respects that the
Borrower has obtained Four Hundred Thousand Dollars ($400,000) in working
capital;
(f) Rent Concession. Borrower shall have secured and provided
to Lender evidence satisfactory to Lender in all respects that Borrower has
obtained a rent concession and rent reduction in the minimum amount of One
Hundred Seventy-Five Thousand Dollars ($175,000) from the Borrower's landlord,
which rent concession shall be effective no later than January 1, 2001 and shall
continue in effect for the remainder of the Borrower's lease term;
(g) Dismissal of Bankruptcy Proceeding. A final non-appealable
order of the U.S. Bankruptcy Court for the Eastern District of Pennsylvania
shall have been entered dismissing with prejudice the involuntary petition in
Bankruptcy filed against the Borrower, Case No. 00-31625, and a certified copy
of such order satisfactory in all respects to Lender shall have been delivered
to the Lender.
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2.2 Conditions to Each Loan Advance. The following shall be
conditions precedent to each advance (except to the extent waived by Lender):
(a) Representations and Warranties. As of the date any advance
is made hereunder, the representations and warranties set forth in Section 11
hereof shall be true and correct on and as of such time with the same effect as
though such representations and warranties had been made on and as of such time
to the extent that such representations and warranties expressly relate to an
earlier date;
(b) Covenants. Borrower shall have fulfilled each and every
one of the covenants of this Agreement and the other Transaction Documents, as
defined in Section 11.1 of this Agreement;
(c) Eligible Agreements. The Lender shall have received and
approved each Eligible Agreement. For purposes of this Agreement, an "Eligible
Agreement" shall be either (1) an agreement to license Intarsia software or
purchase Intarsia services in an application service provider model upon
Lender's customary terms and conditions (an "Intarsia Agreement"); or (2) an
Eligible Bank Contract Services Agreement. An "Eligible Bank Contract Services
Agreement" shall be an agreement which, at a minimum, contains the following
provisions:
(i) The contract is in form and substance substantially
as described here on Exhibit C.
(ii) The contract is for a term of not less than 1 year.
(iii) The contract is for at least one of the following
services: web site design/hosting, online
applications, call center support, marketing
support, brokerage or insurance sales.
(iv) The contract is free from default by either party
and is in full force and effect.
(v) There are no claims, offsets or defenses to payment.
(d) No Default. As of the date the Loan or any Advance is
made, no Event of Default, as defined in Section 10 hereof, nor any event that,
with the passage of time or the giving of notice, or both, would become an Event
of Default, shall have occurred and be continuing;
(e) No Adverse Change. There shall not have occurred any
material and adverse change in Borrower's financial position, since the date of
this Agreement, nor any condition, event, or act that, in any case or in the
aggregate, would materially and adversely affect Borrower's ability to carry out
its business and to repay the Loan.
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(f) Requisition. Borrower shall have delivered to Lender with
each request for an advance a form of Borrowing Certificate requisition and
accompanying information meeting the requirements hereof, covering the advance
requested.
(g) Insurance. All insurance required under this Agreement
shall be in full force and effect, and Lender shall have been provided with
satisfactory evidence of such coverage in accordance with this Agreement.
2.3 Limitations on Advances. The Borrower and the Lender agree
that Advances under the Loan shall occur during the Availability Period in the
amounts set forth below if, and only if, the Borrower shall have obtained and is
maintaining Eligible Agreements in the number set forth below:
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Additional Eligible
Eligible Agreements obtained Agreements (from prior
and maintaining at any time advance), or additional Amount of Advance for
after January 1, 2001 and Intarsia Agreements, if so additional Eligible
before August 31, 2001 indicated Agreement Aggregate Advances
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Less than 7 -- $0 $0
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7 7 $300,000 $300,000
(at least one of which is
an Intarsia Agreement)
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8 1 $100,000 $400,000
(must be an Intarsia
Agreement)
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9 1 $100,000 $500,000
(must be an Intarsia
Agreement)
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10 1 $100,000 $600,000
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11 1 $100,000 $700,000
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12 1 $100,000 $800,000
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13 1 $100,000 $900,000
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14 1 $100,000 $1,000,000
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Each Intarsia Agreement may be an agreement with one of the following
institutions: Allegiance Bank, First Penn Bank, Harbor Bank, IGA Federal Saving
Bank, Madison Bank, or Patriot Bank.
3. Obligations of Lender to Make Each Advance. At any time within the
Availability Period and within five (5) days of satisfaction of the conditions
of Section 2 hereof, Lender shall make the applicable Advance, per Section 2.3
hereof, in immediately available funds in United States dollars and delivered to
such accounts as the Borrower may designate from time to time by written notice
to the Lender.
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3.1 No Advances After Availability Period; Maximum Aggregate
Advances. Lender shall not be obligated to make any Advance for Eligible
Agreements obtained and maintaining after the expiration of the Availability
Period. The maximum aggregate Advances available under the Loan shall be the
aggregate Advances for which Borrower is eligible, per Section 2.3 hereof, as of
the last day of the Availability Period.
4. Obligations of Borrower.
4.1 Delivery of President's Certificate on Status of Eligible
Agreements. (a) On the first day of each month after the First Advance, and
until the Maturity Date, the Borrower shall deliver to the Lender a President's
Certificate (the "President's Certificate"), substantially in the form of
Exhibit D attached hereto, certifying a true and complete list of (i) all
Eligible Agreements that are obtained and maintaining, not including any
Eligible Agreements in breach of payment or any Eligible Agreements that have
been terminated; (ii) all Eligible Agreements in breach of payment, including
details regarding the breach; and (iii) all Eligible Agreements terminated since
the previous month's President's Certificate.
4.2 Repayment of Advances in Event of Reduction in Total Eligible
Agreements Obtained and Maintaining. In the event that the aggregate Advances
made to Borrower as of the date of a President's Certificate (the "Aggregate
Advances Made") is greater than the aggregate Advances corresponding, per
Section 2.3 hereof, to the number of Eligible Agreements indicated on the
President's Certificate as obtained and maintaining (the "Eligible Aggregate
Advances"), Borrower shall be obligated to pay Lender an amount equal to the
difference between the Aggregate Advances Made and the Eligible Aggregate
Advances (the "Eligible Agreement Reduction Payment"); provided however, that
Borrower shall not be obligated to make an Eligible Agreement Reduction Payment
in the event that the reduction in the number of Eligible Agreements is the
result of the merger of two or more banks party to Eligible Agreements. Any
payment made to Lender under this Section 4.1 shall be due within five (5) days
of the due date of the President's Certificate under which the obligation
arises.
5. Payments. All payments or prepayments made or due hereunder to
Lender or under the Note shall be made, without offset or counterclaim, in
immediately available funds in United States dollars and delivered to such
accounts as the Lender may designate from time to time by written notice to the
Borrower. The Borrower may voluntarily prepay the Loan in whole or in part
without premium or penalty at any time and from time to time. Whenever any
payment or prepayment to be made under this Agreement is due on a day that is
not a business day in Philadelphia, such payment or prepayment may be made on
the next succeeding business day and such extension of time shall in each case
be included in the computation of the interest payable on the Note.
6. Repayment. The outstanding principal balance of the Loan together
with any accrued and unpaid interest thereon shall be due and payable in full on
the Maturity Date.
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7. The Closing. The closing of the Loan shall take place at the
offices of Sedona Corporation, 000 Xxxxx Xxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000,
at 10:00 am local time on the Closing Date, or at such other place or time as is
mutually agreed upon by the parties.
8. Warrant Coverage. Subject to the terms of the Warrant Purchase
Agreement, dated as of the date hereof, by and between the Borrower and the
Lender (the "Warrant Agreement"), in substantially the form of Exhibit E
attached hereto, on August 31, 2001 the Borrower shall issue to the Lender a
Common Stock Purchase Warrant substantially in the form attached as Exhibit F
(the "Warrant"). The number of shares available upon exercise of the Warrant and
the exercise price shall be determined by the terms of the Warrant Agreement.
The Borrower shall maintain such shares of Common Stock as authorized but
unissued as may be necessary to permit the Holder of the Warrant to acquire all
of the Warrant Shares at any time as provided in the Warrant.
9. Board Representation. Prior to the initial Advance, the Borrower
shall cause to be appointed a representative of the Lender to the Borrower's
Board of Directors for a 3 year term.
10. Events of Default and Remedies. The occurrence of any of the
following (each, an "Event of Default") with respect to the Borrower shall
constitute a default hereunder and shall entitle the holder of the Note to, for
so long as such condition exists, declare the entire principal and unpaid
accrued interest hereon immediately due and payable, by notice in writing to the
Borrower, and exercise such other rights and remedies available at law or in
equity:
10.1. Failure to Make Payments on Note. Borrower fails to make any
payment of principal or any installment of interest due under the Note within 3
days of the due date thereof.
10.2 Failure to Make ECBS Reduction Payment. Borrower fails to make
any ECBS Reduction Payment within five (5) days of the due date for such payment
when such payment is due in accordance with the terms of Section 4 hereof.
10.3 Borrower Becomes Insolvent. Borrower: (a) makes a general
assignment for the benefit of its creditors; (b) generally does not pay its
debts as they become due (other than unsecured trade accounts payable paid in
the ordinary course of business); (c) files a voluntary case or petition in
bankruptcy; (d) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future applicable law pertinent to such
circumstances; (e) files any answer admitting or not contesting the material
allegations of a bankruptcy, insolvency or similar petition filed against the
Borrower; (f) seeks or consents to, or acquiesces in, the appointment of any
trustee, receiver, or liquidator of the Borrower; (g) suffers or permits to
continue unstayed and in effect for 60 consecutive days any judgment, decree or
order, entered by a court or governmental commission of competent jurisdiction,
that assumes custody or control of the Borrower, approves a petition seeking its
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future applicable law without such action
being dismissed or without all orders or proceedings thereunder affecting the
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operations or the business of the Borrower being stayed, or if a stay of any
such order or proceedings is thereafter set aside and the action setting it
aside is not timely appealed; or (h) suffers or permits to continue unstayed and
in effect for 60 consecutive days, the appointment, without the consent or
acquiescence of the Borrower of any trustee, receiver or liquidator thereof or
of all or any substantial part of the assets and properties of the Borrower
without such appointment being vacated.
10.4 Breach of Borrower's Representations and Warranties under this
Agreement. Borrower breaches any representation or warranty made under Section
11 of this Agreement.
10.5 Breach of Borrower's Covenants under this Agreement. Borrower
breaches any of the covenants in Section 12 of this Agreement.
11. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants to the Lender as follows:
11.1 Organization and Standing. The Borrower: (i) is a corporation
that is duly organized, validly existing and in good standing under the laws of
the Commonwealth of Pennsylvania; (ii) has all requisite corporate power and
authority to own its property and assets and to conduct its business as
presently conducted and as proposed to be conducted; (iii) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in an material adverse effect on the
properties, condition (financial or otherwise), operations, performances,
projections, prospects or business of the Borrower, taken as a whole and/or,
where applicable, a material adverse effect on the transactions contemplated by
the Transaction Documents (as defined hereunder) (a "Material Adverse Effect");
and (iv) has the requisite corporate power and authority to execute, and deliver
this Agreement, the Note, the Warrant Agreement and any other Loan Documents and
Supporting Documents, as set forth in the Closing Checklist (collectively, the
"Transaction Documents") and perform its obligations hereunder and thereunder
and to issue and sell the Note and the Conversion Shares issuable upon
conversion thereof. The Borrower has furnished to the Lender true and complete
copies of its Articles of Incorporation and Bylaws, each as amended and in
effect as of the date hereof.
11.2 Authority for Agreement; No Conflict. The execution, delivery
and performance by the Borrower of the Transaction Documents, and the
consummation by the Borrower of the transactions contemplated hereby and
thereby, have been duly authorized by all necessary corporate action. The
Transaction Documents have been duly executed and delivered by the Borrower and
constitute valid and binding obligations of the Borrower enforceable in
accordance with their respective terms. The execution and performance of the
transactions contemplated by the Transaction Documents and compliance with their
respective provisions by the Borrower: (i) will not violate any provision of law
applicable to the Borrower; (ii) will not conflict with or result in any breach
of any of the terms, conditions or provisions of, or constitute a default under,
its Articles of Incorporation or Bylaws (each as amended and in effect as of the
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date hereof); (iii) require on the part of the Borrower any filing with, or any
permit, authorization, consent or approval of, any court, arbitrational
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency; (iv) conflict with, result in a breach of,
constitute (with or without due notice or lapse of time or both) a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice, consent or
waiver under, any contract, lease, sublease, license, sublicense, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest (as defined) or other arrangement to which the
Borrower is a party or by which the Borrower is bound or to which its assets are
subject; (v) result in the imposition of any Security Interest upon any assets
of the Borrower; or (vi) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Borrower or any of its properties or
assets; in each case, such that it would result in a Material Adverse Effect.
For purposes of this Agreement, "Security Interest" means any mortgage, pledge,
security interest, encumbrance, charge, or other lien (whether arising by
contract or by operation of law).
11.3 Financial Statements. The Borrower has furnished to the Lender
a complete and correct copy of the (a) financial statements of the Borrower for
the year ended March 31, 2000 and (b) unaudited balance sheet of the Borrower
(the "Balance Sheet") as of September 30, 2000 (the "Balance Sheet Date") and
the related statements of income and cash flows for the same periods, compiled
by the Borrower (collectively, the "Financial Statements"). The Financial
Statements have been prepared substantially on a cash basis and therefore have
not been prepared in accordance with GAAP. The Financial Statements present
fairly the financial condition and results of operations of the Borrower as of
the dates and for the periods indicated therein. Except as set forth in the
Financial Statements or in Schedule 11.3, the Borrower has no material
liabilities, contingent or otherwise (individually or in the aggregate).
11.4 Absence of Liabilities. Except as set forth in Schedule 11.4,
the Borrower has not: (i) declared or paid any dividends, or authorized or made
any distribution upon or with respect to any class or series of its capital
stock; (ii) directly or indirectly created, incurred, assumed, guaranteed or
otherwise become liable for any indebtedness for money borrowed or any
indebtedness, liabilities or obligations of any nature (whether liquidated or
unliquidated, mature or not yet mature, absolute or contingent, secured or
unsecured) that are material, individually or in the aggregate, (or in the case
of a contingent obligation, could reasonably be expected to result in
indebtedness, liabilities or obligations that are material), arising out of any
transaction entered into or any state of facts existing prior hereto, including,
without limitation, liabilities or obligations on account of taxes or government
charges, penalties, interest or fines thereon or in respect thereof.
11.5 Property and Assets. Except as set forth in Schedule 11.5, the
Borrower owns its property and assets free and clear of any mortgage, pledge,
lien, security interest, lease, charge or encumbrance other than such
encumbrances and liens which arise in the ordinary course of business or liens
for taxes that are not delinquent or being contested in good faith and do not
materially impair the ownership or use of such property and assets by the
Borrower.
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11.6 Patents and Trademarks. Set forth in Schedule 11.6 is a true
and complete list of all material patents, patent applications, trademarks,
service marks, trademark and service xxxx applications, trade names, copyrights,
licenses, information, proprietary rights or processes presently owned or held
by the Borrower or necessary for the conduct of the Borrower's business as
conducted and as currently proposed to be conducted, as well as any agreement
under which the Borrower has access to any confidential information used by the
Borrower in its business (the "Intellectual Property Rights"). Except as set
forth in Schedule 11.6, the Borrower owns, or has the right to use, free and
clear of all liens, charges, claims and restrictions, under the agreements and
upon the terms described in Schedule 11.6, all of the Intellectual Property
Rights. Except as set forth in Schedule 11.6, the Borrower has not received any
communications alleging that the Borrower has violated or, by conducting its
business as currently proposed, would violate any of the patents, trademarks,
service marks, trade names, copyrights, licenses, trade secrets or other
proprietary rights of any other person or entity ("Third Party Intellectual
Property Rights"), and to the Borrower's Knowledge (as defined hereunder), the
business proposed by the Borrower will not cause the Borrower to infringe or
violate any Third Party Intellectual Property Rights. Except as set forth in
Schedule 11.6, the Borrower has no Knowledge of any violation by any third party
of any Intellectual Property Rights of the Borrower or of any defects therein or
in the title thereto. For purposes of this Agreement, "Knowledge" when used with
respect to the Borrower shall mean the actual knowledge of the senior management
of the Borrower after reasonable investigation.
11.7 Insurance. The Borrower has applied for appropriate policies
for workers' compensation insurance and other insurance related to its property,
assets and business of the kinds as described in Schedule 11.7.
11.8 Conflicts of Interest. Except as set forth in Schedule 11.8,
the Borrower does not owe any debt, including any outstanding interest, to any
members of management, principals, founders, key employees of the Borrower or
members of their immediate families, other than non-material debt occurring in
connection with expenses or advances of expenses incurred in the ordinary course
of business.
11.9 Compliance. The Borrower is not in violation or in default of
any provisions of any material mortgage, indenture, contract, agreement or
instrument to which the Borrower is a party or by which it is bound or, to its
Knowledge, of any provision of all laws, regulations and orders applicable to
its present and proposed business which violations or defaults would, either
individually or in the aggregate, reasonably be likely to have a Material
Adverse Effect. The Borrower has obtained all franchises, permits and licenses
and any similar authority necessary for the conduct of it business as now being
conducted, the lack of which would reasonably be likely to have a Material
Adverse Effect. To the Knowledge of the Borrower, no employee of the Borrower is
in violation of any contract or covenant with the Borrower relating to
employment, patent, other proprietary information disclosure, non-competition,
or non-solicitation.
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11.10 Absence of Changes. Since the Balance Sheet Date, there have
been
(a) No negative changes in the assets, liabilities, financial
condition or operating results of the Borrower from that reflected in the
Financial Statements, other than changes occurring in the ordinary course of
business, none of which individually or in the aggregate has had or is expected
to have a material adverse effect on such assets, liabilities, financial
condition, operations or prospects of the Borrower;
(b) Except as listed on Schedule 11.10(b) attached hereto, no
resignations or terminations of any officer or founder of the Borrower; and, to
the best of the Borrower's knowledge, there is no impending resignation or
termination of any officer or founder of the Borrower.
(c) Except as listed on Schedule 11.10(c) attached hereto, no
material changes, except in the ordinary course of business, in the contingent
obligations of the Borrower by way of guaranty, endorsement, indemnity, warranty
or otherwise;
(d) No damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, business or
prospects or financial condition of the Borrower;
(e) No waiver by the Borrower of a valuable right or of a
material debt owed to it;
(f) No direct or indirect loans made by the Borrower to, or
for the benefit of, any stockholder, employee, officer or director of the
Borrower, or any members of their immediate families, other than advances made
in the ordinary course of business;
(g) No material changes in any compensation arrangements or
agreements with any employee, officer, director or stockholder of the Borrower;
(h) No declarations, set asides, or payments of, any dividend
or other distribution of the assets of the Borrower, or any direct or indirect
redemptions, purchases or other acquisitions of any of the Borrower's capital
stock by the Borrower;
(i) Except as listed on Schedule 11.10(i) attached hereto, no
debts, obligations or liabilities incurred, assumed or guaranteed by the
Borrower, except those for immaterial amounts and for current liabilities
incurred in the ordinary course of business;
(j) No sales, assignments or transfers of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
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(k) Except as listed on Schedule 11.10(k) attached hereto, no
mortgages, pledges, transfers of a security interest in, or liens, created by
the Borrower, with respect to any of its material properties or assets, except
liens for taxes not yet due or payable;
(l) No changes in any material agreements to which the
Borrower is a party or by which it is bound, which materially and adversely
affects the business, assets, liabilities, financial condition, operations or
prospects of the Borrower;
(m) To the best of the Borrower's knowledge, no other events
or conditions of any character that, either individually or cumulatively, has
materially and adversely affected the business, assets, liabilities, financial
condition, operations or prospects of the Borrower; and
(n) No arrangements or commitments by the Borrower to do any
of the acts described in subsection (a) through (n) above.
11.11 Disclosures. The Borrower has provided Lender with all
information requested by Lender in connection with their decision to enter into
this Agreement. Neither this Agreement, the Exhibits hereto, nor any other
document delivered by the Borrower to the Lender or Lender's attorney or agents
in connection herewith or therewith or with the transactions contemplated hereby
or thereby, contain any untrue statement of a material fact, nor omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
12. Covenant of the Borrower Regarding Use of Proceeds. The Borrower
shall use the proceeds of the Loan for purchase of Lender's products and other
general corporate purposes.
13. Representations and Warranties of the Lender.
13.1 Investment. The Lender is acquiring the Note for its own
account for investment and not with a view to, or for sale in connection with,
any distribution thereof, nor with any present intention of distributing or
selling the same. The Lender has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or commitment providing for
the disposition thereof. The Lender further represents that it understands and
agrees that, until registered under the Securities Act or transferred pursuant
to the provisions of Rule 144 as promulgated by the Securities and Exchange
Commission, the Note, whether upon initial issuance or upon any transfer
thereof, shall bear a legend, prominently stamped or printed thereon, reading
substantially as follows:
"These securities have not been registered under the Securities Act
of 1933, as amended (the "Act"), or the securities laws of any
state. These securities have been acquired for investment and not
with a view to distribution or resale in violation of any
securities laws. Such securities may not be offered for sale, sold,
delivered after sale, transferred, pledged or hypothecated in
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absence of an effective registration statement covering such
securities under the Act and any applicable state securities laws
or an exemption therefrom."
13.2 Authority. The Lender has full power and authority to enter
into and to perform this Agreement in accordance with its terms and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Lender and constitutes the valid and binding
obligation of the Lender enforceable in accordance with its terms. The Lender is
a corporation and represents that it has not been organized, reorganized or
recapitalized specifically for the purpose of investing in the Borrower.
13.3 Experience. The Lender has carefully reviewed the
representations concerning the Borrower contained in this Agreement and has made
detailed inquiry concerning the Borrower, its business and its personnel. The
officers of the Borrower have made available to the Lender any and all written
information that it has requested and have answered to its satisfaction all
inquiries made by the Lender. The Lender has adequate net worth and means of
providing for its current needs and contingencies to sustain a complete loss of
its investment in the Borrower. The Lender's overall commitment to investments
which are not readily marketable is not disproportionate to its net worth and
its investment in the Borrower will not cause such overall commitment to become
excessive.
14. Additional Conditions to Closing.
14.1 Approval of Board Representation. On, at or as of the Closing
Date, Borrower will have delivered to Lender copies of all executed and
effective documents and resolutions necessary to authorize Lender's right to
appoint one member of the Borrower's Board of Directors, in accordance with the
terms of Section 9 hereof.
14.2 Perfected Security Interests. On the Closing Date, Lender will
have received a perfected first priority security interest in the Intellectual
Property of Borrower, including Borrower's customer lists, for all of property
described in that certain Security Agreement, dated as of the date hereof, by
and between Borrower and Lender, substantially in the form of Exhibit G attached
hereto.
14.3 Delivery of Secretary's Certificate. On, at or as of the
Closing Date, Borrower will have delivered to Lender a certificate executed by
Lender's Secretary (i)certifying the names and offices of the officers of Lender
as of the Closing Date; (ii) attaching a true and correct copy of the
resolutions of Lender's Board of Directors approving the transaction, as in
effect as of the Closing Date; (iii) attaching a true and correct copy of
Lender's Articles of Incorporation, as in effect as of the Closing Date; (iv)
attaching a true and correct copy of Lender's By-Laws as in effect as of the
Closing Date; (v) attaching a certificate certifying the good standing of the
Lender, issued by the Secretary of State of the Commonwealth of Pennsylvania no
earlier than 45 days prior to the Closing Date; and (vi) attaching true and
correct copies of Lender's financial statements as warranted in Section 11.3
hereof.
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15. Miscellaneous
15.1 Termination. Except as otherwise expressly set forth herein,
this Agreement shall terminate when all obligations under this Agreement and the
Note shall have been fully performed.
15.2 Transfer; Successors and Assigns. The provisions of this
Agreement shall be binding upon, and inure to the benefit of, the respective
successors, assigns, heirs, executors and administrators of the parties hereto.
15.3 Expenses. Borrower shall pay all costs and expenses arising in
connection with the negotiation and execution of the Transaction Documents and
the consummation of the transactions contemplated hereby and thereby, including
all reasonable legal fees up to a maximum of $25,000, collateral examination
fees and other expenses incurred by Lender.
15.4 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part by either party to any person or entity without
the prior written consent of the other party, except that the Lender may assign
this Agreement to an Affiliate. For purposes of this Agreement, "Affiliate"
shall mean: (i) a director or executive officer (including any advisory
director) of the Lender or any Affiliate of such Lender; (ii) any other entity
or person that, directly or indirectly, controls or is controlled by or is under
common control with such Lender; and (iii) any general or limited partners of
such Affiliate. For the purposes of this definition and the correlative
meanings, the terms "controlling", controlled by" and "under common control
with", as used with respect to any person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such person, whether through the ownership of voting securities
or by contract or agency or otherwise.
15.5 Notices. All notices, consents and other communications
required or permitted to be given under or by reason of this Agreement shall be
in writing, shall be delivered personally or by facsimile or by reputable
overnight courier or by certified mail, return receipt requested, or first class
mail postage prepaid:
15.5.1 If to the Borrower, at
XxxXxxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxx, President
Facsimile: (000) 000-0000
or at such other address or addresses as may have been
furnished in writing by the Borrower to the Lender, with a copy to
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Xxxxxxx & Xxx
One Glenhardie Corporate Center
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
15.5.2 If to the Lender, at
Sedona Corporation
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
or at such other address or addresses as may have been
furnished in writing by the Lender to the Borrower, with a copy to
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Facsimile: (000) 000-0000
Notices provided in accordance with this Section 15.5 shall be deemed
delivered upon personal delivery or upon receipt of facsimile or two business
days after deposit in the mail except in the case of notices sent by overnight
courier which shall be deemed to be received the day after mailed.
15.6 Brokers. The Borrower and the Lender (i) represent and warrant
to the other parties hereto that he, she or it has not retained a finder or
broker in connection with the transactions contemplated by this Agreement, and
(ii) will indemnify and save the other parties harmless from and against any and
all claims, liabilities or obligations with respect to brokerage or finder's
fees or commissions, or consulting fees in connection with the transactions
contemplated by this Agreement asserted by any person on the basis of any
statement or representation alleged to have been made by such indemnifying
party.
15.7 Entire Agreement. The Transaction Documents embody the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter.
15.8 Amendments and Waivers. Except as otherwise expressly set
forth in this Agreement, any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the all the parties to this Agreement. Any amendment or waiver
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effected in accordance with this Section 15.8 shall be binding upon each holder
of the Note and the Borrower. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
15.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH ANY OF THE TRANSACTION DOCUMENTS. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO ANY OF THE
TRANSACTION DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 12.9.
15.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument.
15.11 Headings. The headings of the sections, subsections, and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
15.12 Severability. The invalidity or unenforceability of any
provision of the Transaction Documents shall not affect the validity or
enforceability of any other provision.
15.13 Governing Law. Except for matters of corporate law and
governance, which shall be governed by the Pennsylvania Business Corporation
Law, the law of the State of Delaware without giving effect to any choice or
conflict of law provision or rule, will govern all issues concerning the
construction, validity and interpretations of this Agreement. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the
Commonwealth of Pennsylvania in any action or proceeding arising out of or
relating to this Agreement.
{Signatures on following page}
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
XXXXXXXXXXXX.XXX, INC.
(d/b/a XxxxXxx.xxx)
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Exec. VP
SEDONA CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President and CEO
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Exhibit A
Form of Promissory Note
Exhibit B
Closing Checklist
Exhibit C
Form of Eligible Bank Contract Services Agreement
Exhibit D
Form of President's Certificate
Exhibit E
Form of Warrant Agreement
Exhibit F
Form of Warrant
Exhibit G
Form of Security Agreement
