Restricted Account Agreement




 Exhibit 10.25 
  
 RESTRICTED ACCOUNT AGREEMENT 
  
 This Restricted Account Agreement (this “Agreement”) is entered into this 30 day of July 2004, by and among NORTH
FORK BANK, a New York banking corporation with offices at 275 Broadhollow Road, Melville, New York 11747 (together with its successors and assigns, the “Bank”), AXTIVE CORPORATION, a Delaware corporation with offices at 5001 LBJ Freeway,
Suite 275 Dallas, TX 75244 (together with its successors and assigns, the “Company”), and LAURUS MASTER FUND, LTD., a Cayman Islands corporation with offices at 825 Third Avenue, 14th Floor, New York, New York 10022 (together with its
successors and assigns, “Laurus”). Unless otherwise defined herein, capitalized terms used herein shall have the meaning provided such terms in the Purchase Agreement referred to below. 
  
 WHEREAS, Laurus has provided financing to the Company, which financing is
evidenced by a Securities Purchase Agreement (as amended, modified or supplemented from time to time, the “Purchase Agreement”) and the Related Agreements referred to therein; 
  
 WHEREAS, the Company and Laurus have retained the Bank to provide certain services with respect to the Restricted Account
(as defined below); and 
  
 WHEREAS, the Company and Laurus have
agreed that an amount of cash equal to $3,833,500 shall be deposited by Laurus on behalf of the Company by wire transfer of immediately available funds into the Restricted Account, which cash shall be held by the Bank for the benefit of Laurus, as
security for the Company’s and its Subsidiaries’ obligations under the Purchase Agreement and the Related Agreements. For the purposes of this Agreement, the “Restricted Account” shall mean that certain deposit account (as
defined in Section 9-102 of the Uniform Commercial Code as in effect in the State of New York on the date hereof) described on Exhibit B hereto, which Restricted Account shall be maintained at the Bank and shall be in the sole dominion and control
of Laurus; 
  
 NOW THEREFORE, in consideration of the mutual
promises contained herein and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 
  
 1. The Bank is hereby authorized to accept for deposit into the Restricted Account the sum of $3,833,500. The Bank hereby agrees to hold any and all
monies and other amounts from time to time on deposit and/or held in the Restricted Account for the benefit of the Laurus and shall not release any monies held in the Restricted Account until such time as the Bank shall have received a notice from
Laurus substantially in the form attached hereto as Exhibit A (a “Release Notice”). Following the receipt of a Release Notice from Laurus, the Bank agrees to promptly disburse the amount of cash referred to in such Release Notice to such
account as Laurus shall determine in its sole discretion. The Bank hereby agrees that it will only comply with written instructions originated by Laurus directing disposition of funds in the Restricted Account. The Company hereby irrevocably
authorizes the Bank to comply with any and all instructions given to the Bank by Laurus with respect to the Restricted Account without further 









 
consent by the Company. The Bank, the Company and Laurus agree that the Restricted Account is in Laurus’ sole dominion and control. 
  
 2. Each of the Company, Laurus and the Bank hereby agrees that the Restricted
Account shall not be closed, and the account name and account number in respect thereof shall not be changed, in any case, without the consent of the Laurus, except as specifically provided for in Section 9 below. 
  
 3. The Bank hereby subordinates any claims and security interests it may have
against, or with respect to, the Restricted Account (including any amounts from time to time on deposit therein) to the security interests of Laurus therein, and agrees that no amounts shall be charged by it to, or withheld or set-off or otherwise
recouped by it from, the Restricted Account or any amounts from time to time on deposit therein; provided that, in connection with all service charges and any other charges which the Bank is entitled to receive in connection with the servicing and
maintaining of the Restricted Account (such charges, collectively, the “Charges”), each of the Company, Laurus and the Bank hereby agrees that the Bank will collect such Charges in the following manner: (i) first, the Bank will charge
other deposit accounts maintained by the Company with the Bank, (ii) second, in the event that there are insufficient collected funds in such other deposit accounts to pay such Charges, the Bank will promptly notify the Company and Laurus with
respect to same and, within seven (7) business days of the Company’s receipt of such notice, the Company shall pay to the Bank the full amount of such Charges then due, and (iii) third, if the Company fails to pay to the Bank such Charges then
due within the time period set forth in the preceding clause (ii), the Bank will promptly provide a written notice to Laurus of such occurrence and, in such case, the Bank is hereby authorized, following a period of five (5) business days after the
receipt of such written notice by Laurus, to deduct such Charges then due from the Restricted Account, unless, during such five (5) business day period, Laurus agrees to promptly pay the amount of any such Charges then due to the Bank from its own
account. Except for the payment of the Charges as set forth in the immediately preceding proviso, the Bank agrees that it shall not offset, deduct or claim against the Restricted Account unless and until Laurus has notified the Bank in writing that
all of the Company’s obligations under the Purchase Agreement and the Related Agreements have been performed. 
  
 4. The Company and the Bank agree that the maintenance by the Bank of the Restricted Account shall be as agent for Laurus. The Bank shall be responsible
for the performance of only such duties as are set forth herein. The Bank’s duties hereunder, however, are merely ministerial, and the Bank shall have no liability or obligation to the Company or Laurus or to any other person for any act or
omission of the Bank in connection with the performance of the Bank’s duties in servicing and/or maintaining the Restricted Account, except for acts of gross negligence or willful misconduct by Bank. IN NO EVENT, HOWEVER, SHALL THE BANK HAVE
ANY RESPONSIBILITY FOR CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER OR NOT IT HAS NOTICE THEREOF, AND REGARDLESS OF THE BASIS, THEORY OR NATURE OF THE ACTION UPON WHICH THE CLAIM IS ASSERTED, NOR SHALL IT HAVE ANY
RESPONSIBILITY OR LIABILITY FOR THE VALIDITY OR ENFORCEABILITY OF ANY SECURITY INTEREST OR OTHER INTEREST OF LAURUS OR THE COMPANY IN THE RESTRICTED ACCOUNT. In furtherance of and without limiting the foregoing, the Company and Laurus agree that the
Bank shall not be liable for any damage or loss to them for any delay or failure of performance arising out of the acts or omissions of any third parties, including, but not limited to, various communication services, courier services, the Federal
Reserve system, any other bank or any third party who may be affected by funds transactions, fire, mechanical, 

  

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computer or electrical failures or other unforeseen contingencies, strikes or any similar or dissimilar cause beyond the reasonable control of the Bank. This
paragraph shall survive the termination of this Agreement. 
  
 5.
Except where the Bank has been grossly negligent or has acted in bad faith, each of Laurus and the Company and their respective successors and assigns will release the Bank from and shall indemnify and hold the Bank harmless from and against any and
all losses, claims, damages, liabilities, costs and expenses (including, without limitation, reasonable counsel fees, whether arising in an action or proceeding among the parties hereto or otherwise, without regard to the merit or lack of merit
thereof) to which the Bank may become subject, or which it may suffer or incur, arising out of or based upon this Agreement or the actions contemplated hereby. This paragraph shall survive termination of this Agreement. 
  
 6. The Bank shall be fully protected in acting on any order or direction by
Laurus respecting the items received by the Bank or the monies or other items in the Restricted Account without making any independent inquiry whatsoever as to Laurus’ rights or authority to give such order or direction or as to the application
of any payments made pursuant thereto. 
  
 7. Nothing in this
Agreement shall be deemed to prohibit the Bank from complying with its customary procedures in the event that it is served with any legal process with respect to the Restricted Account. 
  
 8. The rights and powers granted in this to Laurus have been granted in order to protect and further perfect its security
interests in the Restricted Account (including any amounts from time to time on deposit therein) and are powers coupled with an interest and will be affected neither by any purported revocation by the Company of this Agreement or the rights granted
to Laurus hereunder or by the bankruptcy, insolvency, conservatorship or receivership of the Company or the Bank or by the lapse of time. 
  
 9. This Agreement may not be amended or waived except by an instrument in writing signed by each of the parties hereto. This Agreement may be terminated
by the Bank upon giving the Company and Laurus thirty (30) days prior written notice. Laurus shall designate a successor bank on or prior to the effective date of such termination and the Bank shall deliver the balance in the Restricted Account to
such successor bank. Any notice required to be given hereunder may be given, and shall be deemed given when delivered, via telefax, U.S. mail return receipt requested or nationally recognized overnight courier to each of the parties at the address
set forth above. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed counterpart hereof or thereof, as the case may be. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard
to its conflict of laws principles. This Agreement sets forth the entire agreement between the parties hereto as to the matters set forth herein and supersede all prior communications, written or oral, with respect to the matters herein. EACH OF THE
PARTIES HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS AGREEMENT. THE BANK, THE COMPANY AND LAURUS EACH HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE COUNTY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY OR THEREBY. 
  
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 Agreed and accepted this 30th day of July, 2004. 
  
  

			
	NORTH FORK BANK
		
	By:	 	         /s/ Sheldon Selman


	 	 	         Name: Sheldon Selman
         Title:

	 	 	 
	 LAURUS MASTER FUND, LTD.

		
	 By:
	 	         /s/ David Grin


	 	 	         Name: David Grin
         Title:

	 	 	 
	 AXTIVE CORPORATION

		
	 By:
	 	         /S/ Graham C. Beachum III


	 	 	         Name: Graham C. Beachum III
         Title: President and Chief Operating Officer



  

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 LIST OF OMITTED EXHIBITS 
  
 The exhibits to the foregoing Restricted Account Agreement listed below have been omitted. Axtive Corporation agrees
supplementally to furnish a copy of any omitted exhibit to the Securities and Exchange Commission upon request. 
  
 Exhibit A — Release Notice 
 Exhibit B
— Restricted Account [Information]