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EXHIBIT 2.5
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement"), dated as of the 29th day of
November, 2000, is made and entered into by and among YELLOWBRIX, INC., a
Delaware corporation, ("Borrower"), and ABN AMRO Capital (USA), Inc., a Delaware
corporation, (hereinafter collectively referred to as the "Lenders").
WITNESSETH:
WHEREAS, Lenders are making a loan (the "Loan") in an amount of up to
$4,000,000 to Borrower, pursuant to that certain Note and Warrant Purchase
Agreement of even date herewith by and among Borrower and Lenders (as amended,
modified, supplemented, restated or refinanced from time to time, the "Purchase
Agreement"); and
WHEREAS, in connection with the making of the Loan, Lenders desire to
obtain from Borrower and Borrower desires to grant to Lenders a security
interest in certain collateral more particularly described below.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. Borrower hereby grants to Lenders a
security interest in all of its property and assets (excluding those assets
listed on Schedule I hereto), and including, without limitation, the following
described property and any and all cash and non-cash proceeds (although proceeds
are covered, Lenders do not authorize the sale of any of the following, except
to the extent expressly permitted herein) and products thereof and accessions
thereto, whether now existing or owned or hereafter acquired or arising and
wheresoever located (collectively the "Collateral"):
(a) all accounts, accounts receivable, receivables,
contracts, contract rights, book debts, checks, notes, drafts, instruments,
chattel paper, documents, acceptances, choses in action, and other forms of
obligations and receivables at any time owing to the Borrower, together with all
proceeds thereof and the merchandise represented thereby, including all of the
proceeds of Borrower's rights with respect to any of its goods represented
thereby, whether or not delivered, or returned by customers and all rights as an
unpaid vendor or lienor, including rights of stoppage in transit and of
recovering possession by proceedings including replevin and reclamation,
together with all customer lists, books and records, ledgers, account cards, and
other records including those stored on computer or electronic media, whether
now in existence or hereafter created, relating to any of the foregoing
(collectively referred to as "Accounts"); Accounts shall include without
limitation funds due to the Borrower from any factor or other purchaser of
accounts ;
(b) all general intangibles of the Borrower, now existing or
hereafter owned or acquired or arising, or in which the Borrower now has or
hereafter acquires any rights, including but not limited to, general intangibles
which represent the proceeds of earned revenue, monies
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due from factors, causes of action, corporate or business records, contracts,
inventions, designs, patents, patent applications, patent licenses, trademark
licenses, copyright licenses, trademarks, trademark registrations and
applications therefor, goodwill, trade names, trade secrets, trade processes,
copyrights, copyright registrations and applications therefor, permits,
franchises, customer lists, computer programs (including source and object code)
and other intellectual property (including all royalty, damages or other
payments in respect of other intellectual property), all claims under
guaranties, tax refund claims, rights and claims against carriers and shippers,
leases, claims under insurance policies, all rights to indemnification and all
other intangible personal property of every kind and nature (collectively
referred to as "General Intangibles");
(c) all goods, machinery, equipment, parts, supplies,
apparatus, appliances, patterns, molds, dies, blueprints, fittings, furniture,
furnishings, computers, motor vehicles, fixtures and articles of tangible
personal property of every description now or hereafter owned by the Borrower or
in which the Borrower may have or may hereafter acquire any interest, including
without limitation those located at, upon or about, or attached to, any of the
real estate at which the Borrower conducts business, together with all books and
records, abstracts of title, leases and all other contracts and agreements
relating thereto or used in connection therewith (collectively referred to as
"Equipment");
(d) all inventory of the Borrower wherever located,
including without limitation, all goods manufactured or acquired for sale or
lease, and any piece goods, raw materials, work in process and finished
merchandise, findings or component materials, and all supplies, goods,
incidentals, office supplies, packaging materials and any and all items used or
consumed in the operation of the business of Borrower or which may contribute to
the finished product or to the sale, promotion and shipment thereof, in which
Borrower now or at any time hereafter may have an interest, whether or not the
same is in transit or in the constructive, actual or exclusive occupancy or
possession of Borrower or is held by Borrower or by others for Borrower's
account (collectively referred to hereinafter as "Inventory");
(e) all bank and depository accounts, funds on deposit,
cash, monies, residues and property of any kind, whether or not now or at any
time or times hereafter, in the possession or under the control of the Lenders
or a bailee of Lenders;
(f) all accessions to, substitutions for and all
replacements, products and proceeds of the foregoing, including, without
limitation, proceeds of insurance policies insuring the Collateral and seizure,
forfeiture and condemnation awards relating thereto and any indemnity, warranty
and guarantee payable with respect to Borrower;
(g) all books and records (including without limitation,
customer data, credit files, computer programs, printouts, and other computer
materials and records of the Borrower pertaining to any of the foregoing); and
(h) all products, and proceeds of the foregoing, in whatever
form, whether cash or non cash proceeds and including insurance proceeds.
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2. Secured Indebtedness. The obligations secured hereby (including
by the lien granted hereby in the Collateral) shall include (a) the Obligations
(as defined in the Purchase Agreement) including loans to be made concurrently
or in connection with this Agreement or the Purchase Agreement as evidenced by
one or more promissory notes payable to the order of Lenders or any of them that
shall be due and payable as set forth in such promissory notes, and any renewals
or extensions thereof (including the Loan), (b) the full and prompt payment and
performance of any and all other indebtedness, liabilities and other obligations
of Borrower to Lenders or any of them, direct or contingent (including but not
limited to obligations incurred as indorser, guarantor or surety), however
evidenced or denominated, and however and whenever incurred, now or later
existing, including but not limited to indebtedness incurred pursuant to any
present or future commitment of Lenders or any of them to Borrower and any and
all future advances regardless of the class of such future advances, and (c) all
future advances made by Lenders or any of them for taxes, levies, insurance and
preservation of the Collateral and all attorney's fees, court costs and expenses
of whatever kind incident to the collection of any of said indebtedness,
liabilities or other obligations and the enforcement and protection of the
security interest created hereby (collectively the "Liabilities").
3. Representations, Warranties and Agreements of Borrower. Borrower
represents, warrants and agrees as follows:
(a) Borrower will provide Lenders with 30 days' prior
written notice of (i) any change in Borrower's place or places of
business, (ii) any change in Borrower's residence, name, identity or
corporate structure or (iii) any change in the location of any
Collateral.
(b) Except as set forth on Schedules attached to the
Purchase Agreement, or permitted by the Purchase Agreement, Borrower is
the owner of the Collateral free and clear of any liens, security
interests, claims and encumbrances, contingent or otherwise. Borrower
will defend the Collateral against the claims and demands of all
persons.
(c) Borrower will pay to Lenders all amounts secured hereby
as and when the same shall be due and payable, whether at maturity, by
acceleration or otherwise, and will promptly perform all terms of said
indebtedness liabilities and obligations and this or any other security
or loan agreement between Borrower and Lenders, and will promptly
discharge all said liabilities.
(d) On or after the occurrence of an Event of Default, any
money received by Lenders under any insurance policies may be applied to
the payment of any indebtedness secured hereby. If no Event of Default
has occurred, the proceeds of any insurance shall be delivered by
Lenders to Borrower for the purpose of repairing or restoring the
Collateral. Borrower assigns to Lenders all right to receive proceeds of
insurance not exceeding the amounts secured hereby, directs any insurer
to pay all proceeds directly to Lenders, and appoints Lenders as
Borrower's attorney in fact to endorse any draft or check made payable
to Borrower in order to collect the benefits of such insurance. If
Borrower fails to keep the Collateral insured as required by Lenders,
Lenders shall have the right to obtain such insurance at Borrower's
expense and add the cost thereof to the other amounts secured hereby,
which cost shall be payable by Borrower on demand.
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(e) Borrower will pay all costs of filing of financing,
continuation and termination statements with respect to the security
interests created hereby, and Lenders are authorized to do all things
and file all documents that they deem necessary to create, preserve,
perfect and continue perfection of the security interests created hereby
and to protect the Collateral at the sole cost of Borrower.
(f) The address set forth after Borrower's signature on this
Agreement is Borrower's principal place of business and the location of
all tangible Collateral and the place where the records concerning all
intangible Collateral are kept and/or maintained. Borrower also has
places of business as described in the Purchase Agreement.
(g) This Agreement is effective to create in favor of the
Lenders, a valid security interest in and lien upon all of the
Borrower's right, title and interest in and to the Collateral, and, upon
the filing of appropriate Uniform Commercial Code financing statements
in the jurisdictions listed on Schedule I attached hereto, and the
completion of the other deliveries, filings and actions contemplated
hereby, such security interest will be duly perfected in all the
Collateral.
(h) Borrower (including any Person acquired by Borrower)
does not do business and has not done business during the past five (5)
years under any trade name or fictitious business name except as
disclosed on Schedule II attached hereto.
(i) The federal employer identification number of Borrower
is set forth on Schedule III hereto.
(j) Promptly after the date hereof, and in any event on or
before the fifteenth (15th) day after the date hereof, the Borrower
shall cause each issuer of an insurance policy to Borrower to provide
the Lenders with an endorsement (i) showing loss payable to the Lenders
with respect to each policy of property or casualty insurance and naming
the Lenders as additional insureds with respect to each policy of
insurance for liability for personal injury or property damage, (ii)
providing that 30 days' notice will be given to the Lenders (or their
designee) prior to any cancellation of, material reduction or change in
coverage provided by or other material modification to such policy and
(iii) reasonably acceptable in all other respect to the Lenders.
4. Severability. If any provision of this Agreement is held
invalid, such invalidity shall not affect the validity or enforceability of the
remaining provisions of this Agreement.
5. Binding Effect. This Agreement shall inure to the benefit of
Lenders' successors and assigns and shall bind Borrower's heirs,
representatives, successors and assigns.
6. Termination Statement. Borrower agrees that, notwithstanding the
payment in full of all indebtedness secured hereby and whether or not there is
any outstanding obligation of Lenders to make future advances, Lenders shall not
be required to send Borrower a termination statement or release with respect to
any financing statement filed to perfect Lenders' security interest(s) in any of
the Collateral, unless and until Borrower shall have made written demand
therefor, in which event Lenders shall send Borrower a termination statement
within fifteen (15) days of receipt of such written request. Upon receipt of
proper written demand, Lenders may at
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their option, in lieu of sending a termination statement to Borrower, cause said
termination statement to be filed with the appropriate filing officer(s) within
fifteen (15) days of receipt of such written request.
7. Protection of Collateral. Borrower will not permit any liens
other than the Permitted Liens (as defined in the Purchase Agreement) to attach
to any of the Collateral, nor permit any of the Collateral to be levied upon
under any legal process, nor permit anything to be done that may impair the
security intended to be afforded by this Agreement, nor permit any tangible
Collateral to become attached to or commingled with other goods without the
prior written consent of Lenders. Borrower will not create, permit or suffer to
exist, and will defend the Collateral against and take such other action as is
necessary to remove, any lien on the Collateral except Permitted Liens, and will
defend the right, title and interest of any of the Lenders in and to the
Collateral and in and to all proceeds and products thereof against the claims
and demands of all other persons and entities whatsoever.
8. Special Agreements With Respect to Certain Tangible Collateral.
Borrower additionally agrees and warrants as follows:
(a) Borrower will not sell, exchange, lease or otherwise
dispose of any of the Collateral (other than Inventory in the ordinary
course of business) or any interest therein without the prior written
consent of Lenders.
(b) Borrower will keep the Collateral in good condition and
repair ordinary wear and tear excepted and will pay and discharge all
taxes, levies and other impositions levied thereon as well as the cost
of repairs to or maintenance of same, and will not permit anything to be
done that may impair the value of any of the Collateral. If Borrower
fails to pay such sums, Lenders may do so for Borrower's account and add
the amount thereof to the other amounts secured hereby.
(c) Until default in any of the terms hereof, or the terms
of any indebtedness, liabilities or obligations secured hereby, Borrower
shall be entitled to possession of the Collateral and to use the same in
any lawful manner, provided that such use does not cause excessive wear
and tear to the Collateral, cause it to decline in value at an excessive
rate, or violate the terms of any policy of insurance thereon.
(d) Borrower will not allow the Collateral to be attached to
real estate in such manner as to become a fixture or a part of any real
estate.
9. Special Agreements With Respect to Intangible and Certain
Tangible Collateral. Borrower and Lenders additionally agree as follows:
(a) So long as Borrower is not in default hereunder,
Borrower shall have the right to process and sell Borrower's inventory
in the regular course of business. Lenders' security interest hereunder
shall attach to all proceeds of all sales or other dispositions of the
Collateral. If at any time any such proceeds shall be represented by any
instruments, chattel paper or documents of title, then, at the request
of Lenders, such instruments, chattel paper or documents of title shall
be promptly delivered to Lenders and shall be subject to the security
interest granted hereby. If at any time any of Borrower's inventory
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is represented by any document of title, at the request of Lenders, such
document of title will be delivered promptly to Lenders and shall be
subject to the security interest granted hereby.
(b) Borrower shall deliver and pledge to the Lenders any and
all instruments, duly endorsed and/or accompanied by such instruments of
assignment and transfer executed by Borrower in such form and substance
as any of the Lenders may request; provided, that so long as no Event of
Default shall have occurred and be continuing, Borrower may retain for
collection in the ordinary course of business any Instruments received
by Borrower in the ordinary course of business, and any of the Lenders
shall, promptly upon request of Borrower, make appropriate arrangements
for making any other Instruments pledged by Borrower available to
Borrower for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent deemed appropriate by the
Lenders (or their designees) against trust receipt or like document).
(c) Upon the written request of any of the Lenders, Borrower
will use its best efforts to (i) cause the Lenders (or their designees)
to obtain exclusive control of any investment property owned by Borrower
in a manner acceptable to the Lenders and (ii) obtain from any issuers
of investment property and such other Persons, for the benefit of the
Lenders, written confirmation of the Lenders' control over such
Investment property. The Lenders shall have exclusive control of
investment property if (i) such investment property consists of
certificated securities and Borrower delivers such certificated
securities to any of the Lenders (with appropriate endorsements if such
certificated securities are in registered form); (ii) such investment
property consists of uncertificated securities and either (x) Borrower
delivers such uncertificated securities to the Lenders or (y) the issuer
thereof agrees, pursuant to documentation in form and substance
satisfactory to the Lenders, that it will comply with instructions
originated by the Lenders without further consent by Borrower, or (iii)
such investment property consists of security entitlements and either
(x) the Lenders become the entitlement holder thereof or (y) the
appropriate securities intermediary agrees, pursuant to the
documentation in form and substance satisfactory to the Lenders, that it
will comply with entitlement orders originated by the Lenders without
further consent by Borrower.
(d) By the execution of this Agreement, Lenders shall not be
obligated to do or perform any of the acts or things provided in any
contracts covered hereby that are to be done or performed by Borrower,
but if there is a default by Borrower in the payment of any amount due
in respect of any indebtedness, liabilities or obligations secured
hereby, then Lenders may, at their election, perform some or all of the
obligations provided in said contracts to be performed by Borrower, and
if Lenders incur any liability or expenses by reason thereof, the same
shall be payable by Borrower upon demand and shall also be secured by
this Agreement.
(e) At any time after Borrower is in default hereunder or
under the Purchase Agreement, Lenders shall have the right to notify the
account debtors obligated on any or all of Borrower's accounts and
instruments and all obligors of any General Intangibles to make payment
thereof directly to Lenders, to require the establishment of a cash
management account with Lenders into which, subject to any rights of
senior creditors all
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proceeds of Accounts and General Intangibles shall be deposited and to
take control of all proceeds of any such Accounts and General
Intangibles. Until such time as Lenders elect to exercise such right by
delivery to Borrower written notice thereof, Borrower is authorized, as
agent of the Lenders, to collect and enforce said Accounts and General
Intangibles.
10. Events of Default. It is understood and agreed that the
occurrence of any one or more of the following shall constitute an "Event of
Default" hereunder and shall entitle Lenders to take such actions as are
elsewhere provided in this Security Agreement: (a) an "Event of Default" as
defined in the Purchase Agreement, or any loan document given in connection with
such Purchase Agreement or any note executed in favor of the Lenders shall have
occurred; or (b) any representation, warranty or covenant made by Borrower
herein, or in any other existing or future agreement with Lenders shall prove to
have been false in any material respect when made or is breached, violated, or
not complied with. For purposes of this Security Agreement, the term "default"
shall mean any event which constitutes an Event of Default or which but for the
lapse of time or giving of notice, or both, would constitute an Event of
Default.
11. Rights and Remedies Upon Default. Upon and after an Event of
Default, the Lenders shall have the following rights and remedies, all of which
may be exercised with or without notice to Borrower:
(a) To exercise all rights and remedies provided to Lenders
under the Purchase Agreement upon the occurrence of an "Event of
Default" under the Purchase Agreement, including the right to declare
the Loan, and all other amounts, liabilities, obligations and
indebtedness and have the same become, immediately due and payable;
(b) All of the rights and remedies of a secured party under
the Uniform Commercial Code of the state where such rights and remedies
are asserted, or under other applicable law, all of which rights and
remedies shall be cumulative, and none of which shall be exclusive in
addition to any other rights and remedies contained in this Agreement,
the Purchase Agreement, or any other documents, certificates or
agreements delivered by Borrower in connection with the Purchase
Agreement (collectively, the "Loan Documents"); and
(c) The right to foreclose the liens and security interests
created under this Security Agreement by any available judicial
procedure or, to the extent permitted by law, without judicial process.
(d) Without limiting the foregoing, during the period during
which an Event of Default or default shall have occurred and be
continuing, a majority of the Lenders (as measured by the aggregate
principal amount of their Notes) may, in their discretion: terminate, on
notice to Borrower, Borrower's authority to sell, lease or otherwise
transfer, process or assemble, or furnish under contracts of service,
the Collateral, as to which such permission has been given; require
Borrower to give possession or control of the Collateral to the Lenders
or their agent or attorney-in-fact; endorse as Borrower's agent any
instruments or chattel paper in the Collateral; notify account debtors
and obligors on instruments to make payment directly to the Lenders;
contact account debtors indirectly
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to verify information furnished by Borrower; take control of proceeds
and use cash proceeds to reduce any part of the Liabilities; take any
action Borrower is required to take or otherwise necessary to obtain,
preserve, and enforce this security interest, and maintain and preserve
the Collateral, without notice to Borrower, and add costs of same to the
Liabilities (but Lenders are under no duty to take any such action);
release Collateral in their possession to Borrower, temporarily or
otherwise; take control of funds generated by the Collateral, such as
dividends, interest, proceeds or refunds from insurance, and use same to
reduce any part of the Liabilities; waive any of its rights hereunder
without such waiver prohibiting the later exercise of the same or
similar rights; revoke any permission to waiver previously granted to
Borrower.
(e) Any of the Lenders may, upon ten (10) days prior written
notice to Borrower of the time and place (which notice Borrower hereby
agrees is commercially reasonable notification for purposes hereof),
with respect to the Collateral or any part thereof which shall then be
or shall thereafter come into the possession, custody or control of any
of the Lenders, sell, lease, assign or otherwise dispose of all or any
part of such Collateral, at such place or places as any of the Lenders
deems best, and for cash or for credit or for future delivery (without
thereby assuming any credit risk), at public or private sale, without
demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required by applicable statute and cannot be waived), and any of the
Lenders or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory
or otherwise), of Borrower, any such demand, notice and right or equity
being hereby expressly waived and released. Any of the Lenders may,
without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned.
12. Rights and Remedies Cumulative; Non-Waiver; Etc. The enumeration
of Lenders' rights and remedies set forth in this Agreement are not intended to
be exhaustive and the exercise by Lenders of any right or remedy shall not
preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given
hereunder, or under any other agreement between Borrower or Lenders or which may
now or hereafter exist in law or in equity or by suit or otherwise. No delay or
failure to take action on the part of Lenders in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default.
13. Supplemental Documentation. At the request of a majority of the
Lenders (as measured under Section 11(d) above), Borrower shall execute and
deliver to Lenders, at any time or times hereafter, all documents, instruments
and other written matter that Lenders may request to create, preserve, perfect
and maintain perfected Lenders' security interest in the Collateral in form and
substance acceptable to Lenders, and pay all charges, expenses and fees Lenders
may reasonably incur in filing any of such documents, and all taxes relating
thereto.
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14. Definitions and Governing Law. All terms used herein shall be
defined in accordance with the appropriate definitions appearing in the Uniform
Commercial Code as in force in the Commonwealth of Virginia from time to time,
or if not otherwise defined herein, as defined in the Purchase Agreement, and
such definitions are hereby incorporated herein by reference and made a part
hereof. Without limiting the foregoing, for purposes of this Agreement, the
following terms shall have the definition ascribed to them in such Uniform
Commercial Code: accounts, documents, instruments, equipment, inventory, goods,
chattel paper, investment property, general intangibles, fixtures, and
depository accounts. This Agreement shall be governed in all respects by, and
construed in accordance with, the laws of the Commonwealth of Virginia,
including without limitation the Uniform Commercial Code of the Commonwealth of
Virginia.
15. Jury Waiver. The Borrower and the Lenders agree that in any
litigation, action, or proceeding arising out of or relating to this Agreement,
trial shall be to a court of competent jurisdiction without a jury. The Borrower
and the Lenders irrevocably waive any right they may have to a trial by jury and
a copy of this Agreement may be introduced as written evidence of the waiver of
the right to trial by jury.
16. Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs and
expenses of such realization and the payment in full of the Liabilities,
Borrower shall remain liable for any deficiency.
17. Private Sale. Borrower recognizes that the Lenders may be unable
to effect a public sale of any or all of the Collateral consisting of securities
by reason of certain prohibitions contained in the Securities Act of 1933, as
amended (the "Act"), and applicable state securities laws, but may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to the
distribution or resale thereof. Borrower acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Lenders shall be under no obligation to
delay a sale of any of the Collateral to permit Borrower to register such
Collateral for public sale under the Act, or under applicable state securities
laws, even if Borrower would agree to do so. The Lenders shall not incur any
liability as a result of the sale of any such Collateral, or any part thereof,
at any private sale provided for in this Agreement conducted in a commercially
reasonable manner, and Borrower hereby waives any claims against any of the
Lenders arising by reason of the fact that the price at which the Collateral may
have been sold at such a private sale was less than the price which might have
been obtained at a public sale or was less than the aggregate amount of the
Liabilities, even if any of the Lenders accepts the first offer received and
does not offer the Collateral to more than one offeree. Borrower further agrees
to do or cause to be done all such other acts and things as may be necessary to
make such sale or sales of any portion or all of any such Collateral valid and
binding and in compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at Borrower's expense. Borrower further agrees that
a breach of any of the covenants contained in this section will cause
irreparable injury to the Lenders, that any of the Lenders has
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no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section 19 shall be
specifically enforceable against Borrower, and Borrower hereby waives and agrees
not to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred and is
continuing.
18. Attorney-in-Fact. Borrower hereby irrevocably constitutes and
appoints each of the Lenders at anytime after the occurrence and during the
continuance of an Event of Default, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of Borrower and in the name of Borrower or in its own name, from
time to time in the discretion of any of the Lenders, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute and deliver any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, hereby gives each of the Lenders the
power and right, on behalf of Borrower, without notice to or assent by Borrower,
to do the following upon the occurrence and during the continuation of any Event
of Default:
(a) to ask, demand, collect, receive and give acquittance
and receipts for any and all moneys due and to become due under any
Collateral and, in the name of Borrower or its own name or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other Instruments for the payment of moneys due under any
Collateral and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate
by any of the Lenders for the purpose of collecting any and all such
moneys due under any Collateral whenever payable and to file any claim
or to take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by any of the Lenders for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable;
(b) to pay or discharge charges or liens levied or placed on
or threatened against the Collateral (other than the Permitted Liens),
to effect any insurance called for by the terms of this Agreement and to
pay all or any part of the premiums therefor;
(c) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due, and to become
due thereunder, directly to any of the Lenders or as the Lenders shall
direct, and to receive payment of and receipt for any and all moneys,
claims and other amounts due, and to become due at any time, in respect
of or arising out of any Collateral;
(d) to sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with
accounts and other Documents constituting or relating to the Collateral;
(e) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part thereof and to enforce any other
right in respect of any Collateral;
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(f) to defend any suit, action or proceeding brought against
Borrower with respect to any Collateral;
(g) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Lenders may deem appropriate; and
(h) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully
and completely as though any of the Lenders were the absolute owners
thereof for all purposes, and to do, at any of the Lender's option and
at Borrower's expense, at any time, or from time to time, all acts and
things which the Lenders deem necessary to protect, preserve or realize
upon the Collateral and any of the Lender's lien therein, in order to
effect the intent of this Agreement, all as fully and effectively as
Borrower might do.
Borrower hereby ratifies, to the extent permitted by law, all that such
attorneys lawfully do or cause to be done by virtue hereof. The power of
attorney granted hereunder is a power coupled with an interest and shall be
irrevocable until the Liabilities are indefeasibly paid in full and the
Agreement is terminated.
SIGNATURE PAGE ATTACHED
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IN WITNESS WHEREOF, Borrower and Lenders have executed this Agreement,
or have caused this Agreement to be executed as of the date first above written,
and the seal of the Borrower to be affixed hereto and adopted as its seal.
BORROWER:
ATTEST: YELLOWBRIX, INC.
By: /s/ Kevin S. Lapidus By: /s/ David C. Hoppmann
---------------------------- -------------------------------------
Kevin S. Lapidus, Secretary David C. Hoppmann, Chief Executive
(corporate seal) Officer
LENDERS:
ABN AMRO Capital (USA), Inc.
By:
-------------------------------------
Title:
----------------------------------
Signature:
------------------------------
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SCHEDULE I
ASSETS EXCLUDED FROM SECURITY AGREEMENT
AND JURISDICTIONS IN WHICH FILINGS
WILL TAKE PLACE
1. ASSETS EXCLUDED FROM SECURITY AGREEMENT:
CAPITAL LEASES
EMC Corporation/YellowBrix
9/14/00
Software Storage
EMC2 Master Lease Agreement
No Junior Leans
GE Capital
10/25/00
Equipment Lease Agreement
Laserjet 8100 Copier
No Junior Leans
Rave Financial Services #1/NewsReal #10024
4/15/98
Lease Agreement
Computer
No Junior Liens
Insight Investments, Corporation
8/27/99
Lease Agreement
Computers and Hardware
No Junior Liens
2. JURISDICTIONS IN WHICH UCC-1'S WILL BE FILED:
a. Delaware
b. Virginia
c. California
d. Rhode Island
<PAGE> 14
SCHEDULE II
TRADE NAMES AND FICTITIOUS BUSINESS
NAMES OF COMPANY SINCE INCEPTION
BIZWATCH, INC.
NEWSREAL, INC.
YELLOWBRIX, INC.
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SCHEDULE III
COMPANY'S FEDERAL EMPLOYER I.D. NUMBER
54-1869419
