Security Agreement - Vastera Inc. and PNC Bank NA
EXECUTION COPY
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is made as of
March 5, 1999 by and between VASTERA, INC., a Delaware corporation (the
"GRANTOR"), with an address at 45025 Aviation Drive, Suite 200, Dulles,
Virginia 20166, and PNC BANK, NATIONAL ASSOCIATION (the "BANK"), with an
address at USX Tower, 600 Grant Street, 29th Floor, Pittsburgh, PA 15219. All
terms capitalized but not otherwise defined herein shall have the meanings
ascribed to them in the Loan Agreement (as defined below).
Under the terms hereof, the Bank desires to obtain and the
Grantor desires to grant the Bank security for all of the Obligations (as
hereinafter defined).
NOW, THEREFORE, the Grantor and the Bank, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS.
(a) "COLLATERAL" shall include all personal property of the
Grantor, including without limitation the following, all whether now owned or
hereafter acquired or arising: (i) accounts, accounts receivable, contract
rights, chattel paper, notes receivable, instruments and documents (including
warehouse receipts), and Grantor's accounts with the Bank; (ii) goods of every
nature, including without limitation, inventory, stock-in-trade, raw materials,
work in process, items held for sale or lease or furnished or to be furnished
under contracts of sale or lease, goods that are returned, reclaimed or
repossessed, together with materials used or consumed in the Grantor's business;
(iii) equipment, including, without limitation, machinery, vehicles, furniture
and fixtures; (iv) general intangibles, of every kind and description,
including, but not limited to, all existing and future customer lists, choses in
action, claims (including without limitation claims for indemnification or
breach of warranty), books, records, patents and patent applications,
copyrights, trademarks (including without limitation the Trademarks as defined
in the Rider to Security Agreement - Trademarks between Grantor and Bank of even
date herewith), tradestyles, trademark applications, goodwill, blueprints,
drawings, designs and plans, trade secrets, contracts, licenses, license
agreements, formulae, tax and any other types of refunds, returned and unearned
insurance premiums, rights and claims under insurance policies, and computer
information, software, source codes, object codes, records and data; (v) all
property of the Grantor now or hereafter in the Bank's possession or in transit
to or from, under the custody or control of or on deposit with, the Bank or any
affiliate thereof, including deposit and other accounts; (vi) all cash and cash
equivalents; and (vii) all cash and non-cash proceeds (including without
limitation, insurance proceeds) of all of the foregoing property, all products
thereof and , all additions and accessions thereto, substitutions therefor and
replacements thereof.
(b) "LOAN AGREEMENT" means the Loan Agreement dated the date
hereof by and between the Grantor and the Bank.
(c) "LOAN DOCUMENTS" means this Agreement, any and all notes
evidencing the Obligations and all related documents, instruments and
agreements..
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(d) "OBLIGATIONS" shall include, without limitation, all
loans, advances, debts, liabilities, obligations, covenants and duties owing to
the Bank from the Grantor under the Loan Documents and any amendments,
extensions, renewals or increases and, to the extent permitted under the Loan
Agreement, all reasonable and necessary costs and expenses of the Bank incurred
in the documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including but not limited to
reasonable attorneys' fees and expenses.
2. GRANT OF SECURITY INTEREST. To secure the Obligations, the
Grantor, as debtor, hereby assigns and grants to the Bank, as secured party, a
continuing lien on and security interest in the Collateral.
3. CHANGE IN NAME OR LOCATIONS. The Grantor hereby agrees that if
the location of the Collateral changes from the locations listed on EXHIBIT A
hereto and made part hereof, or if the Grantor changes its name or form of
organization, or establishes a name in which it may do business that is not
listed as a tradename on EXHIBIT A hereto, the Grantor will as promptly as
practicable notify the Bank in writing of the additions or changes. The
Grantor's chief executive office is also shown on EXHIBIT A hereto.
4. REPRESENTATIONS AND WARRANTIES. Except as disclosed in or
pursuant to the Loan Agreement, the Grantor represents, warrants and covenants
to the Bank that: (a) the Grantor has not made any prior pledge, encumbrance,
assignment or other disposition of any of the Collateral and the same are free
from all encumbrances and rights of setoff of any kind; (b) the Grantor will
defend the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein; (c) each account and general
intangible, if included in the definition of Collateral and designated in a
Borrowing Base Certificate as a Qualified Account, is genuine and enforceable in
accordance with its terms and the Grantor will defend the same against all
claims, demands, setoffs and counterclaims at any time asserted; and (d) at the
time any account or . general intangible becomes subject to this Agreement and
designated in a Borrowing Base Certificate as a Qualified Account, such account
or general intangible will be a good and valid account representing a bona fide
sale of goods or services by the Grantor and such goods will have been shipped
to the respective account debtors or the services will have been performed for
the respective account debtors, and no such account or general intangible will
be subject to any claim for credit, allowance or adjustment by any account
debtor or any material setoff, defense or counterclaim, except as disclosed to
the Bank.
5. GRANTOR'S COVENANTS. The Grantor covenants that it shall:
(a) from time to time and at all reasonable times allow the
Bank, with reasonable prior notice, by or through any of its officers, agents,
attorneys, or accountants, to examine or inspect the Collateral and obtain not
more than once annually valuations and audits of the Collateral at the Grantor's
expense, which expense shall not exceed $5,000 per audit. The Grantor shall do,
obtain, make, execute and deliver all such additional and further acts, things,
deeds, assurances and instruments as the Bank may reasonably require to vest in
and assure to the Bank its rights hereunder and in or to the Collateral, and the
proceeds thereof, including, but not limited to, waivers from landlords,
warehousemen and mortgagees if the Grantor is able to obtain such waivers
through the Grantor's reasonable efforts;
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(b) keep the Collateral in good order and repair at ail times;
(c) only use or permit the Collateral to be used in accordance
with all applicable federal, state, county and municipal laws and regulations;
and
(d) have and maintain insurance at all times with respect to
all Collateral against risks of fire (including so-called extended coverage),
theft, sprinkler leakage, and other risks (including risk of flood if any
Collateral is maintained at a location in a flood hazard zone) as is customary
with companies in the same or similar businesses. The policies of all such
casualty insurance shall contain standard Lenders Loss Payable Clauses issued in
favor of the Bank under which all losses thereunder shall be paid to the Bank as
the Bank's interest may appear. Such policies shall expressly provide that the
requisite insurance cannot be altered or canceled without at least thirty (30)
days prior written notice to the Bank and shall insure the Bank notwithstanding
the act or neglect of the Grantor. Upon demand of the Bank, the Grantor shall
furnish the Bank with duplicate original policies of insurance or such other
evidence of insurance as the Bank may require. In the event of failure to obtain
insurance as herein provided, the Bank may, at its option, obtain such insurance
and the Grantor shall pay to the Bank, on demand, the cost thereof. Should an
Event of Default have occurred and be continuing which is not cured within ten
days of written notice, proceeds of insurance may be applied by the Bank to
reduce the Obligations or to repair or replace Collateral, all in the Bank's
sole discretion. In all other circumstances, proceeds of insurance shall be
released to the Borrower.
6. NEGATIVE PLEDGE: NO TRANSFER. The Grantor will not sell or
offer to sell or otherwise transfer or grant or suffer the imposition of a lien
or security interest upon the Collateral (except for sales of inventory and
obsolete or unusable equipment and collections of accounts in the Grantor's
ordinary course of business or as expressly permitted in the Loan Agreement) or
use any portion thereof in any manner inconsistent with this Agreement or with
the terms and conditions of any policy of insurance thereon.
7. COVENANTS FOR ACCOUNTS. If accounts are included in the
definition of Collateral:
(a) The Grantor will, on reasonable demand of the Bank, make
notations on its books and records showing the security interest of the Bank and
make available to the Bank shipping and delivery receipts evidencing the
shipment of the goods that gave rise to an account, completion certificates or
other proof of the satisfactory performance of services that gave rise to an
account, a copy of the invoice for each account and copies of any written
contract or order from which an account arose. The Grantor shall promptly notify
the Bank if an account becomes evidenced or secured by an instrument or chattel
paper and upon request of the Bank, will promptly deliver any such instrument or
chattel paper to the Bank, including without limitation, any letter of credit
delivered to the Grantor to support a shipment of inventory by the Grantor.
(b) To the extent inconsistent with any information provided
with respect to the Borrowing Base (as defined in the Loan Agreement), the
Grantor will within 30 days advise the Bank whenever an account debtor refuses
to retain or returns any goods from the sale of which an account arose and will
comply with any instructions that the Bank may give regarding the sale or other
disposition of such returns.
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(c) The Grantor will notify the Bank on a monthly basis of any
accounts which arise out of contracts with the United States or any department,
agency or instrumentality thereof which have been added to the Borrowing Base
(as defined in the Loan Agreement), and will execute any instruments and take
any steps required by the Bank so that all monies due and to become due under
such contract shall be assigned to the Bank and notice thereof given to and
acknowledged by the appropriate government agency or authority under the Federal
Assignment of Claims Act.
8. FURTHER ASSURANCES. At the request of the Bank, the Grantor
will join with the Bank in executing one or more financing, continuation or
amendment statements pursuant to the Uniform Commercial Code in form
satisfactory to the Bank and will pay the cost of preparing and filing the same
in all jurisdictions in which such filing is deemed by the Bank to be necessary
or desirable.
9. EVENTS OF DEFAULT. The Grantor shall, at the option of the
Bank, be in default under this Agreement upon the happening of any of the
following events or conditions (each, an "EVENT OF DEFAULT"): (a) any Event of
Default (as defined in any of the Loan Documents) which has not been cured
within any time period applicable thereto; (b) demand by the Bank under any of
the Obligations that have a demand feature; (c) the failure by the Grantor to
perform any of its obligations under this Agreement which failure has not been
cured within twenty (20) business days after written notice to the Grantor; (d)
material falsity, material inaccuracy or material breach by the Grantor of any
written warranty, representation or statement made or furnished to the Bank by
or on behalf of the Grantor; (e) an uninsured material loss, theft,, damage; or
destruction to any of the Collateral, or the entry of any material judgment
against the Grantor or any material lien against or the making of any levy,
seizure or attachment of or on the Collateral; (f) except as disclosed in the
Addendum to the Loan Agreement, the failure of the Bank to have a perfected
first priority security interest in the Collateral, unless such failure results
from the negligence of the Bank; or (g) any indication or evidence received by
the Bank that the Grantor may have directly or indirectly been engaged in any
type of activity which, in the Bank's reasonable discretion might result in the
forfeiture of any material property of the Grantor to any governmental entity,
federal, state or local.
10. REMEDIES. Upon the occurrence of any such Event of Default and
at any time thereafter, the Bank may declare all Obligations secured hereby
immediately due and payable upon written notice to Grantor and shall have, in
addition to any remedies provided herein or by any applicable law or in equity,
all the remedies of a secured party under the Uniform Commercial Code.
11. POWER OF ATTORNEY. The Grantor does hereby make, constitute
and appoint any officer or agent of the Bank as the Grantor's true and lawful
attorney-in-fact, with power, after an Event of Default has occurred and while
it is continuing, to endorse the name of the Grantor or any of the Grantor's
officers or agents upon any notes, checks, drafts, money orders, or other
instruments of payment or Collateral that may come into the possession of the
Bank in full or part payment of any amounts owing to the Bank; granting to the
Grantor's said attorney full power to do any and all things necessary to be done
in and about the premises as fully and with the same effect as the Grantor might
or could do, including the right to sign, for the Grantor, BCC-1 financing
statements and to sue for, compromise, settle and release all claims and
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disputes with respect to, the Collateral. The Grantor hereby ratifies all that
said attorney shall lawfully do or cause to be done by virtue hereof. This power
of attorney is coupled with an interest, and is irrevocable.
12. PAYMENT OF EXPENSES. In the event that the Grantor fails to do
so on a timely basis, the Bank may, at its option, unless the Borrower is
contesting the same in good faith and has made such reserves therefor as are
appropriate and adequate, discharge taxes, liens, security interests or such
other encumbrances as may attach to the Collateral, may pay for required
insurance on the Collateral and may pay for the maintenance, appraisal or
reappraisal, and preservation of the Collateral, as reasonably determined by the
Bank to be necessary. The Grantor will reimburse the Bank on demand for any
payment so made or any expense incurred by the Bank pursuant to the foregoing
authorization, and the Collateral also will secure any advances or payments so
made or expenses so incurred by the Bank.
13. NOTICES. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder must be in writing and
will be effective upon receipt if delivered personally to such party, or if sent
by facsimile transmission with confirmation of delivery, or by nationally
recognized overnight courier service, to the address set forth above or to such
other address as any party may give to the other in writing for such purpose.
14. PRESERVATION OF RIGHTS. No delay or omission on the part of
the Bank to exercise any right or power arising hereunder will impair any such
right or power or be considered a waiver of any such right or power or any
acquiescence therein, nor will the action or inaction of the Bank impair any
right or power arising hereunder, The Bank's rights and remedies hereunder are
cumulative and not exclusive of any other rights or remedies which the Bank may
have under other agreements, at law or in equity.
15. ILLEGALITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
16. CHANGES IN WRITING. No modification, amendment or waiver of
any provision of this Agreement nor consent to any departure by the Grantor
therefrom, will in any event be effective unless the same is in writing and
signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on the Grantor in any case will entitle the Grantor to any other or
further notice or -demand in the same, similar or other circumstance.
17. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
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18. COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts, but all
such copies shall constitute one and the same instrument.
19. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the Grantor and the Bank and their respective heirs,
executors, administrators, successors and assigns; provided, however, that the
Grantor may not assign this Agreement, in whole or in part, without the prior
written consent of the Bank and, to the extent provided in the Loan Agreement,
the Bank at any time may assign this Agreement in whole or in part upon written
notice to Grantor.
20. INTERPRETATION. In this Agreement, unless the Bank and the
Grantor otherwise agree in writing, the singular includes the plural and the
plural the singular; words importing any gender include the other genders;
references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Agreement unless otherwise indicated. Section headings in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. If this Agreement is
executed by more than one Grantor, the obligations of such persons or entities
will be joint and several.
21. INDEMNITY. The Grantor agrees to indemnify each of the
Bank, its directors, officers and employees and each legal entity, if any,
which controls the Bank (the "INDEMNIFIED PARTIES") and to hold each
Indemnified Party harmless from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, all
reasonable fees of counsel with whom any Indemnified Party may consult and
all expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party as a
result of the execution of or performance under this Agreement; provided,
however, that the foregoing indemnity agreement shall not apply to claims,
damages, losses, liabilities and expenses to the extent attributable to an
Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Section shall survive the termination of this
Agreement. The Grantor may participate at its expense in the defense of any
such claim.
22. GOVERNING LAW AND JURISDICTION. This Agreement has been
delivered to and accepted by the Bank and will be deemed to be made in the
Commonwealth of Pennsylvania. THIS AGREEMENT WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, EXCEPT THAT THE LAWS OF THE
STATE WHERE ANY COLLATERAL IS LOCATED (IF DIFFERENT FROM THE COMMONWEALTH OF
PENNSYLVANIA) SHALL GOVERN THE CREATION, PERFECTION AND FORECLOSURE OF THE
LIENS CREATED HEREUNDER ON SUCH PROPERTY OR ANY INTEREST THEREIN. The Grantor
hereby irrevocably consents to the exclusive jurisdiction of any state or
federal court for Allegheny County or the Western District of Pennsylvania,
as the case may be, and consents that all service of process be sent by
nationally recognized overnight courier service directed to the Grantor at
the Grantor's address set forth herein and service so made will be deemed to
be completed on the business day after deposit
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with such courier; provided that nothing contained in this Agreement will
prevent the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Grantor individually, against any security or
against any property of the Grantor within any other county, state or other
foreign or domestic jurisdiction. The Bank and the Grantor agree that the venue
provided above is the most convenient forum for both the Bank and the Grantor.
The Grantor waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Agreement.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE BANK
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY . JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE GRANTOR AND THE BANK ACKNOWLEDGE THAT
THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY
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WITNESS the due execution of this Security Agreement as a document
under seal, as of the date first written above.
VASTERA, INC.
By: /s/ Philip Balsamo
------------------------------------
(SEAL)
Print Name: PHILLIP BALSAMO
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Title: DIRECTOR FINANCE
---------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:/s/ MARY E. SCHMERSAL
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Print Name: MARY E. SCHMERSAL
----------------------------
Title: VICE PRESIDENT
---------------------------------
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EXHIBIT A
TO SECURITY AGREEMENT
Address of Grantor's chief executive office; including the County:
Address for books and records, if different:
Addresses of other Collateral locations, including Counties and name and address
of landlord or owner if location is not owned by the Grantor:
Name and Address of Landlord:
Other names or tradenames now or formerly used by the Grantor:
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EXECUTION COPY
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RIDER TO SECURITY AGREEMENT -
TRADEMARKS
THIS RIDER TO SECURITY AGREEMENT ("RIDER") is executed as of March 5,
1999, by and between VASTERA, INC., a Delaware corporation (the "GRANTOR"), with
an address at 45025 Aviation Drive, Suite 200, Dulles, Virginia 20166, and PNC
BANK, NATIONAL ASSOCIATION (the "BANK"). This Rider is incorporated into and
made part of that certain Security Agreement ("SECURITY AGREEMENT") between the
Grantor and the Bank dated the date hereof, and also into certain other
financing documents and security agreements executed by and between the Grantor
and the Bank or by and between the Borrower (as defined in the Security
Agreement) and the Bank fall such documents including this Rider being
collectively referred to as "LOAN DOCUMENTS"). All capitalized terms not
otherwise defined in this Rider shall have the same meanings ascribed to such
terms in the other Loan Documents.
The Grantor has adopted, used and is using (or has filed applications
for the registration of) the trademarks, servicemarks and tradenames listed on
SCHEDULE A attached hereto and made part hereof (all such marks or names
hereinafter referred to as the "TRADEMARKS").
The Bank desires to acquire a lien and security interest on the
Trademarks and the registration thereof, together with all the goodwill of the
Grantor associated therewith and represented thereby, as security for all of the
Obligations (as defined in the Security Agreement) to the Bank, and the Bank
desires to have its security interest in such Trademarks confirmed by a document
identifying same and in such form that it may be recorded in the United States
Patent and Trademark Office.
NOW, THEREFORE, with the foregoing background deemed incorporated by
reference and made part hereof, the parties hereto, intending to be legally
bound hereby, covenant and agree as follows:
1. GRANT OF INTEREST. In consideration of and pursuant to the
terms of the Loan Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, the Grantor grants a lien and security interest to the Bank in all
its present and future right, title and interest in and to the Trademarks,
together with all the goodwill of the Grantor associated with and represented by
the Trademarks, and the registration thereof and the right (but not the
obligation) to sue for past, , present and future infringements, and the
proceeds thereof, including, without limitation, license royalties and proceeds
of infringement suits.
2. REPRESENTATIONS AND WARRANTIES. Subject to the disclosures set
forth pursuant to the Loan Agreement of even date by and between the Grantor and
the Bank, the Grantor represents, warrants and covenants that: (a) it has the
right to use the Trademarks; (b) the Grantor is the sole and exclusive owner of
the entire and unencumbered right, title and interest in and to each of the
Trademarks, and each of the Trademarks is free and clear of any liens, charges,
and encumbrances, including, without limitation, pledges, assignments, licenses
and
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covenants by the Grantor not to sue third persons; (c) the Grantor has the
unqualified right to enter into this Rider and perform its terms; and (d) the
Grantor has used, and will continue to use for the duration of this Rider,
proper notice, as required by 15 U.S.C. Less Than167Greater ThanLess
Than167Greater Than 1051-1127 in connection with its use of the Trademarks.
3. COVENANTS. The Grantor further covenants that: (a) Until all
of the Obligations have been satisfied in full, the Grantor will not enter into
any agreement, including without limitation, license agreements, which are
inconsistent with the rights of the Bank under this Rider; and (b) If the
Grantor acquires rights to any new Trademarks, the provisions of this Rider
shall automatically apply thereto and the Grantor shall give the Bank prompt
written notice thereof along with an amended SCHEDULE A, PROVIDED, HOWEVER ,
that notwithstanding anything to the contrary contained in this Agreement, the
Grantor shall have the right to enter into agreements in the ordinary course of
business with respect to the Trademarks
4. EXCLUSIVE USE OF TRADEMARK. So long as this Rider is in effect
and so long as the Grantor has not received notice from the Bank that an Event
of Default has occurred under the Loan Documents and that the Bank has elected
to exercise its rights to assignment hereunder, the Grantor shall continue to
have the exclusive right to use the Trademarks and the Bank shall have no right
to use the Trademarks or issue any exclusive or non-exclusive license with
respect thereto, or assign, pledge or otherwise transfer title in the Trademarks
to anyone else. In addition, as long as this Rider is in effect, Bank agrees
that it shall not assign or otherwise transfer the Trademarks in a manner that
causes abandonment of the Trademarks.
5. NEGATIVE PLEDGE. The Grantor agrees not to sell, assign or
further encumber its rights and interest in the Trademarks, other than licensing
in the ordinary course of business of products subject to the Trademarks,
without prior written consent of the Bank.
6. REMEDIES UPON DEFAULT. (a) Anything herein contained to the
contrary notwithstanding, if and while the Grantor shall be in default hereunder
or an Event of Default exists under the Loan Documents, the Grantor hereby
covenants and agrees that the Bank, as the holder of a security interest under
the Uniform Commercial Code, as now or hereafter in effect in Pennsylvania, may
take such action permitted under the Loan Documents or permitted by law, in its
exclusive discretion, to foreclose upon the Trademarks covered hereby.
(b) For such purposes, and in the event of the Grantor's default
hereunder or an Event of Default under the Loan Documents and while such default
or Event of Default exists, the Grantor hereby authorizes and empowers the Bank
to make, constitute and appoint any officer or agent of the Bank as the Bank may
select, in its exclusive discretion, as the Grantor's true and lawful
attorney-in-fact, with the power to endorse the Grantor's name on all
applications, documents, papers and instruments necessary for the Bank to use
the Trademarks or to grant or issue any exclusive or non-exclusive license under
the Trademarks to anyone else, or necessary for the Bank to assign, pledge,
convey or otherwise transfer title in or dispose of the Trademarks to anyone
else. The Grantor hereby ratifies all that such attorney shall lawfully do or
cause to be done by virtue hereof, except for the gross negligence or willful
misconduct of such attorney. This power of attorney shall be irrevocable for the
life of this Rider and the Loan Documents, and until all the Obligations are
satisfied in full.
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(c) The Grantor expressly acknowledges that this Rider shall be
recorded with the Patent and Trademark Office in Washington, D.C.
Contemporaneously herewith, the Grantor shall also execute and deliver to the
Bank such documents as the Bank shall reasonably request to permanently assign
all rights in the Trademarks to the Bank, which documents shall be held by the
Bank until the occurrence of an Event of Default hereunder or under the Loan
Documents. If, and only ii; an Event of Default has occurred and the Borrower
fails to cure such Event of Default within twenty (20) business days after the
date of such occurrence, the Bank may, at its sole option, record such escrowed
documents with the Patent and Trademark Office.
7. PROSECUTION OF TRADEMARK APPLICATIONS. (a) Subject to the
terms of the Security Agreement, the Grantor shall have the duty to prosecute
diligently any trademark application with respect to the Trademarks pending as
of the date of this Rider or thereafter, until the Obligations shall have been
satisfied in full, to preserve and maintain all rights in the Trademarks, and
upon reasonable request of the Bank, the Grantor shall make federal application
on registrable but unregistered trademarks belonging to the Grantor. Any
reasonable expenses incurred in connection with such applications shall be borne
by the Grantor. Unless the Grantor discontinues the sale of the goods offered in
connection with a Trademark, the Grantor shall not abandon any Trademark without
the written consent of the Bank.
(b) The Grantor shall have the right to bring suit in its own name
to enforce the Trademarks, in which event the Bank may, if the Grantor deems it
necessary or after an Event of Default under the Loan Documents, be joined as a
nominal party to such suit if the Bank shall have been satisfied that it is not
thereby incurring any risk of liability because of such joinder. The Grantor
shall promptly, upon demand, reimburse and indemnify the Bank for all damages,
reasonable costs and reasonable expenses, including attorneys' fees, incurred by
the Bank in the fulfillment of the provisions of this paragraph.
8. SUBJECT TO SECURITY AGREEMENT. This Rider shall be subject to
the terms, provisions, and conditions set forth in the Security Agreement and
may not be modified without the written consent of the party against whom
enforcement is being sought.
9. INCONSISTENT WITH SECURITY AGREEMENT. All rights and remedies
herein granted to the Bank shall be in addition to any rights and remedies
granted to the Bank under the Loan Documents. In the event of an inconsistency
between this Rider and the Security Agreement, the language of the Security
Agreement shall control. The terms and conditions of the Security Agreement are
hereby incorporated herein by reference.
10. TERMINATION OF AGREEMENT. Upon payment and performance of all
Obligations under the Loan Documents, the Bank shall immediately execute and
deliver to the Grantor all documents, and take any and all actions, necessary to
terminate the Bank's security interest in the Trademarks.
11. FEES AND EXPENSES. Any and all reasonable fees, costs and
expenses, of whatever kind or nature, including the reasonable attorneys' fees
and legal expenses incurred by the Bank in connection with the preparation of
this Rider and all other documents relating hereto and the consummation of this
transaction, the filing or recording of any documents (including all taxes in
connection therewith) in public offices, and the payment or discharge of any
taxes, as
3
<PAGE>
well as reasonable counsel fees, maintenance fees, encumbrances or costs
otherwise incurred in protecting, maintaining, preserving the Trademarks, or in
defending or prosecuting any actions or proceedings arising out of or related to
the Trademarks, in each case in accordance with the terms of this Rider, shall
be borne and paid by the Grantor on demand by the Bank and until so paid shall
be added to the principal amount of the Obligations to the Bank and shall bear
interest at the contract rate therefor,
12. ADDITIONAL REMEDIES. Upon the occurrence of an Event of
Default under the Loan Documents, the Bank may, without any obligation to do so,
complete any obligation of the Grantor hereunder, in the Grantor's name or in
the Bank's name, but at the Grantor's expense, and the Grantor hereby agrees to
reimburse the Bank in full for ail reasonable expenses, including reasonable
attorney's fees, incurred by the Bank in protecting, defending and maintaining
the Trademarks.
13. GOVERNING LAW. THIS RIDER WILL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAW RULES, EXCEPT
THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA SHALL GOVERN TO THE EXTENT
APPLICABLE.
14. COUNTERPARTS. This Rider may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts, but all
such copies shall constitute one and the same instrument.
(This space intentionally left blank]
4
<PAGE>
WITNESS the due execution of this Rider to Security Agreement - Trademarks as a
document under seal, as of the date first written above, with the intent to be
legally bound hereby.
ATTEST: VASTERA, INC.
/s/ Stephanie Landa By: /s/ Philip Balsamo
-------------------------------------------------------------------------------
Print Name: Stephanie Landa Print Name: Philip Balsamo
----------------------------- ---------------------
Title: Finance Director
--------------------------
PNC BANK, NATIONAL ASSOCIATION
By:/s/ Mary C. Schmersal
--------------------------------
Print Name: Mary C. Schmersal
-----------------------
Title: Vice President
----------------------------
5
<PAGE>
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - TRADEMARKS
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
APPLICATION OR REGISTRATION OR
TRADEMARK REGISTRATION NO. COUNTRY FILING DATE
--------- --------------- ------- ---------------
EMS-2000 2,098,932 USA
EXPORT SOFTWARE 2,1001,011 USA
INTERNATIONAL
(W/DESIGN)
GLOBAL PASSPORT 75/329,047 USA 10/8/98
EMS-2000 75/239,034 USA 10/8/98
VASTERA 75/206,691 USA 11/16/98
</TABLE>
6
<PAGE>
COMMONWEALTH OF VIRGINIA )
) ss:
COUNTY OF FAIRFAX )
The foregoing instrument was acknowledged before me this___day of
March 1999, by Philip Balsamo, Finance Director of Vastera, Inc., a Delaware
corporation, on behalf of the corporation.
My commission expires: [STAMP]
---------------------------------------
/s/ Stephanie Landa
----------------------
Notary Public
7
<PAGE>
SCHEDULE A TO RIDER TO SECURITY AGREEMENT - TRADEMARKS
(AMENDED AS OF MARCH 31, 2000)
<TABLE>
<CAPTION>
APPLICATION OR
REGISTRATION
TRADEMARK NO. COUNTRY REGISTRATION OR FILING DATE
--------- -------------- ------- ---------------------------
<S> <C> <C> <C>
EMS-2000 (W/DESIGN) 2,098,932 USA 9/23/97
EXPORT SOFTWARE INTERNATIONAL 2,101,011 USA 9/30/97
(W/DESIGN)
EMS-2000 75/329,034 USA 7/23/97
GLOBAL PASSPORT
GLOBAL PASSPORT 75/329,047 USA 7/23/97
VASTERA 2,229,602 USA 3/2/99
SMARTECOMMERCE 75/740,961 USA 6/21/99
SMARTEWARE 75/865,751 USA 12/7/99
SMARTECONTENT 75/865,855 USA 12/7/99
SMARTEMETHODS 75/865,854 USA 12/7/99
GLOBAL TRADE VALUE CHAIN Not Yet Available USA
GLOBAL TRADE MANAGEMENT Not Yet Available USA
TRADESPHERE Not Yet Available USA
TRADE VALUE Not Yet Available USA
TRADE VANTAGE Not Yet Available USA
TRADE PRISM Not Yet Available USA
TRADE AXIOM Not Yet Available USA
GLOBAL ECONTENT Not Yet Available USA
</TABLE>
8
<PAGE>
OTHER TRADEMARKS
----------------
ESI DESIGN
[Signature Page to Follow]
9
<PAGE>
The undersigned hereby acknowledges that the above information
is correct and will be attached as an amended SCHEDULE A to the Rider to
Security Agreement -- Trademarks executed March 5, 1999 by and between Vastera,
Inc. and PNC Bank, National Association (the "Trademark Rider") pursuant to
section 3 of the Trademark Rider.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
/s/ Kevin A. Brown By: /s/ Philip J. Balsamo
--------------------------------- -----------------------------
Print Name: Kevin A. Brown Print Name: Philip J. Balsamo
--------------------- ---------------------
Title: Vice President Title: CFO
-------------------------- --------------------------
</TABLE>
10
<PAGE>
TRADEMARK ASSIGNMENT
WHEREAS, VASTERA, INC. (the "GRANTOR") is the owner of the
entire right, title and interest in and to the United States trademarks,
tradenames and registrations listed on SCHEDULE A attached hereto and made a
part hereof, the inventions described therein and all rights associated
therewith (collectively, the "TRADEMARKS"), which are registered in the United
States Patent and Trademark Office or which are the subject of pending
applications in the United States Patent and Trademark Office; and
WHEREAS, PNC BANK NATIONAL ASSOCIATION, having a place of
business at USX Tower, 600 Grant Street, 29th Floor, MS# P6-PUSX-29-4,
Pittsburgh, PA, 15219, identified as the "BANK" under that certain Rider to
Security Agreement - Trademarks of even date herewith (the "GRANTEE") is
desirous of acquiring said Trademarks;
WHEREAS, the Grantee has a security interest in the assets of
the Grantor adequate to carry on the business of the Grantor; and
WHEREAS, the Rider provides that this Assignment shall become
effective upon the occurrence of an Event of Default as defined in the Security
Agreement of even date herewith, by and between the Grantor and the Grantee.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, and intending to be legally bound hereby, the
Grantor, its successors and assigns does hereby transfer, assign and set over
unto Grantee, its successors, transferees and assigns, all of its present and
future right, title and interest in and to the Trademarks and all proceeds
thereof and all rights and proceeds associated therewith.
IN WITNESS WHEREOF, the undersigned has caused this Trademark
Assignment to be executed by its duly authorized officer on this ___ day of
March 1999.
<TABLE>
<CAPTION>
<S> <C>
ATTEST: VASTERA, INC.
/S/ David C. Sanders By: /s/ Philip J. Balsamo
--------------------------------- ------------------------------
Print Name: David C. Sanders Print Name: Philip J. Balsamo
--------------------- -----------------------
Title: Director Finance
---------------------------
</TABLE>
I hereby certify on behalf of PNC Bank, National Association,
that an "Event of Default" as defined in the aforementioned Security Agreement
has occurred as of ____________.
By:
-----------------
Title:
---------------
11