INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL
PROPERTY SECURITY AGREEMENT, effective as of November 29, 2006, is by and among
Bio Solutions Manufacturing, Inc., a New York corporation (the “Company” or
“BSLM”), Bio Solutions Production, Inc., a Nevada corporation (“BSP”), Bio
Extraction Services, Inc., a New York corporation (“BESI”, and together with
BSP, the “Guarantors,” and together with BSLM, the “Obligors”) and the parties
set forth on the signature page hereto and their endorsees, transferees, and
assigns (the “Secured Parties”).
W I T N E S S E T H
WHEREAS,
pursuant to the Loan Agreement dated the date hereof between BSLM and the
Secured Parties, (i) the Secured Parties have agreed to amend and restate
certain obligations relating to advances previously made by Secured Parties
on
behalf of BSLM (the “Amended Notes”) and (ii) the Secured Parties have agreed
from time to time to loan to BSLM certain principal amounts (collectively,
the
“Loans”), which shall be evidenced by a secured convertible promissory note (the
“Note”, together with the Amended Notes, the “Notes”). The principal amount
outstanding and interest payable under the Notes is convertible into shares
of
BSLM’s common stock, $0.001 par value (the “Common Stock”). In connection with
the transactions contemplated by the Loan Agreement, BSLM and the Secured
Parties have entered into the Loan Agreement, dated the date hereof (the “Loan
Agreement”); and
WHEREAS,
the Guarantors have jointly and severally and absolutely and unconditionally
guaranteeing the full and punctual payment and performance of all of the
obligations of BSLM to the Secured Parties pursuant to that certain Guaranty
Agreement dated as of even date herewith (the “Guaranty”); and
WHEREAS,
in order to induce the Secured Parties to enter into the Loan Agreement make
the
Loan to BSLM, the Obligors have agreed to execute and deliver to the Secured
Parties this Agreement for the benefit of the Secured Parties and to grant
to
them a first priority security interest in certain intangible property of the
Obligors to secure the prompt payment, performance, and discharge in full of
the
Obligors obligations under the Transaction Documents (as defined
below).
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the meanings set forth in
this
Section 1. Terms used but not otherwise defined in this Agreement that are
defined in Article 9 of the UCC (such as “general intangibles” and “proceeds”)
shall have the respective meanings given such terms in Article 9 of the
UCC.
(a) “Collateral”
means
all of each Obligor’s right, title, and interest in and to all of the
Trademarks, Patents, Copyrights, and other general intangible property of each
Obligor, all trade secrets, intellectual property rights in computer software
and computer software products, design rights which may be available to any
Obligor, rights to proceeds arising from any and all claims for damages by
way
of past, present and future infringement of any Collateral with the right but
not the obligation to xxx on behalf of and collect such damages for said use
or
infringement, licenses to use any of the Copyrights, Patents, or Trademarks,
and
all license fees and royalties arising from such use to the extent permitted
by
such license or rights. The term “Collateral” shall include all of the foregoing
items, whether presently owned or existing or hereafter acquired or coming
into
existence, all additions and accessions thereto, all substitutions and
replacements thereof, and all proceeds, products and accounts thereof, including
without limitation all proceeds from the licensing or sale or other transfer
of
Collateral and of insurance covering the same and of any tort claims in
connection therewith.
(b) “Company”
shall
mean, collectively, BSLM and all of its subsidiaries.
(c) “Copyrights”
means
any and all copyrights, copyright applications, copyright registrations and
like
protections in each work or authorship and derivative work thereof that is
created by any Obligor, whether published or unpublished and whether or not
the
same also constitutes a trade secret, now or hereafter existing, created,
acquired or held, including, without limitation, those set forth on Exhibit
A
attached hereto.
(d) “Obligations”
means all of the Obligors’ obligations under this Agreement, the Notes, and the
Transaction Documents in each case, whether now or hereafter existing, voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are paid, to
the
extent all or any part of such payment is avoided or recovered directly or
indirectly from the Secured Parties as a preference, fraudulent transfer or
otherwise as such obligations may be amended, supplemented, converted, extended
or modified from time to time.
(e) “Patents”
means
all of each Obligor’s patents, patent applications, letters patent, and like
protections of the United States or any other country, including, without
limitation, improvements, divisions, continuations, renewals, reissues,
extensions, and continuations-in-part of the same, and including, without
limitation, those set forth on Exhibit B attached hereto.
(f) “Trademarks”
means
any trademark, service xxxx right, whether or not registered, applications
to
register and registrations of the same and like protections, and the entire
goodwill of the business of any Obligor connected with or symbolized by such
trademarks, including, without limitation, those set forth on Exhibit C attached
hereto.
(g) “Transaction
Documents”
shall
have the meaning set forth in the Loan Agreement.
(h) “UCC”
means
the Uniform Commercial Code, as currently in effect in New
York.
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2. Grant
of Security Interest.
As an
inducement for the Secured Parties to enter into the Loan Agreement and for
Lender, as a Secured Party, to make the Loan to BSLM and to secure the complete
and timely payment, performance and discharge in full, as the case may be,
of
all of the Obligations, each Obligor hereby, unconditionally and irrevocably,
pledges, grants and hypothecates to the Secured Parties a continuing security
interest in, a first lien upon, and a right of set-off against all of each
Obligor’s right, title, and interest of whatsoever kind and nature in and to the
Collateral (the “Security Interest”).
3. Representations,
Warranties, Covenants and Agreements of the Obligors.
Each
Obligor represents and warrants to, and covenants and agrees with, the Secured
Parties as follows:
(a) Each
Obligor has the requisite corporate power and authority to enter into this
Agreement and otherwise to carry out its obligations thereunder. The execution,
delivery and performance by the Obligor of this Agreement and the filings
contemplated therein have been duly authorized by all necessary action on the
part of the Obligor and no further action is required by the
Obligor.
(b) The
Obligor is the sole owner of the Collateral (except for non-exclusive licenses
granted by the Obligor in the ordinary course of business), free and clear
of
any liens, security interests, encumbrances, rights or claims, and is fully
authorized to grant the Security Interest in and to pledge the Collateral.
There
is not on file in any governmental or regulatory authority, agency or recording
office an effective financing statement, security agreement, license or transfer
or any notice of any of the foregoing (other than those that have been filed
in
favor of the Secured Parties pursuant to this Agreement) covering or affecting
any of the Collateral. So long as this Agreement shall be in effect, the
Obligors shall not execute and shall not knowingly permit to be on file in
any
such office or agency any such financing statement or other document or
instrument (except to the extent filed or recorded in favor of the Secured
Party
pursuant to the terms of this Agreement).
(c) Exhibit
A
sets forth a true and complete list of all Copyrights in existence as of the
date of this Agreement. Exhibit B sets forth a true and complete list of all
Patents that have been filed as of the date of this Agreement. Exhibit C sets
forth a true and complete list of all Trademarks filed as of the date of this
Agreement. Each Obligor shall, within ten (10) days of obtaining knowledge
thereof, advise the Secured Parties in writing of any change in the composition
of the Collateral, including, without limitation, any subsequent ownership
rights of the Company in or to any Copyright, Patent, or
Trademark.
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(d) Each
of
the Patents, Trademarks, and Copyrights is valid and enforceable, and no part
of
the Collateral has been judged invalid or unenforceable. No written claim has
been received that any of the Patents, Trademarks, or Copyrights or any
Obligor’s use of any Collateral violates the rights of any third party. There
has been no adverse decision to any Obligor’s claim of ownership rights in or
exclusive rights to use the Collateral in any jurisdiction or to any Obligor’s
right to keep and maintain such Collateral in full force and effect, and there
is no proceeding involving said rights pending or, to the best knowledge of
any
Obligor, threatened before any court judicial body, administrative or regulatory
agency, arbitrator or other governmental authority.
(e) Each
Obligor shall at all times maintain its books of account and records relating
to
the Collateral at its principal place of business and may not relocate such
books of account and records or tangible Collateral unless it delivers to the
Secured Parties at least 30 days prior to such relocation (i) written notice
of
such relocation and the new location thereof (which must be within the United
States) and (ii) evidence that appropriate financing statements and other
necessary documents have been filed and recorded and other steps have been
taken
to perfect the Security Interest to create in favor of the Secured Party valid,
perfected and continuing first priority liens in the Collateral.
(f) This
Agreement creates in favor of the Secured Parties a valid security interest
in
the Collateral, including the Collateral listed on the Exhibits hereto, securing
the payment and performance of the Obligations, and, upon making the filings
described in the immediately following sentence, a perfected first priority
security interest in such Collateral. Except for (x) the filing of this
Agreement with the United States Patent and Trademark Office with respect to
the
Patents and Trademarks and the filing of this Agreement with the Register of
Copyrights with respect to the Copyrights, and (y) the filing of financing
statements on Form UCC-1 under the UCC with the jurisdictions indicated in
Schedule A, attached hereto, no authorization or approval of or filing with
or
notice to any governmental authority or regulatory body is required either
(i)
for the grant by any Obligor of, or the effectiveness of, the Security Interest
granted hereby or for the execution, delivery and performance of this Agreement
by any Obligor or (ii) for the perfection of or exercise by the Secured Parties
of its rights and remedies hereunder. Each Obligor acknowledges and agrees
that
a copy of this Agreement (or instruments executed and delivered pursuant hereto)
will be filed and recorded with each of the United States Patent and Trademark
Office and the Register of Copyrights with respect to the Patents, Trademarks,
and Copyrights that are now or hereafter in existence.
(g) On
the
date of execution of this Agreement, each Obligor will deliver to the Secured
Parties (i) one or more executed UCC financing statements on Form UCC-1 with
respect to the Security Interest for filing with the jurisdictions indicated
on
Schedule A, attached hereto and in such other jurisdictions as may be requested
by the Secured Parties and (ii) one or more executed recordation sheets relating
to the filing and recording of this Agreement with each of the United States
Patent and Trademark Office and the Register of Copyrights with respect to
the
Patents, Trademarks, and Copyrights that are now in existence.
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(h) The
execution, delivery, and performance of this Agreement does not conflict with
or
cause a breach or default, or an event that with or without the passage of
time
or notice, shall constitute a breach or default, under any agreement to which
any Obligor is a party or by which any Obligor is bound. No consent (including,
without limitation, from stockholders or creditors of any Obligor) is required
for the Company to enter into and perform its obligations
hereunder.
(i) Each
Obligor shall at all times maintain the liens and Security Interest provided
for
hereunder as valid and perfected first priority liens and security interests
in
the Collateral in favor of the Secured Parties until this Agreement and the
Security Interest hereunder shall be terminated pursuant to Section 10 hereof.
Each Obligor hereby agrees to defend the same against any and all persons.
The
Obligors shall safeguard and protect all Collateral for the account of the
Secured Parties. At the request of the Secured Parties, the Obligors will sign
and deliver to the Secured Parties at any time or from time to time one or
more
financing statements pursuant to the UCC (or any other applicable statute)
in
form reasonably satisfactory to the Secured Parties and will pay the cost of
filing the same in all public offices wherever filing is, or is deemed by the
Secured Party to be, necessary or desirable to effect the rights and obligations
provided for herein. Without limiting the generality of the foregoing, the
Obligors shall pay all fees, taxes and other amounts necessary to maintain
the
Collateral and the Security Interest hereunder, and the Obligors shall obtain
and furnish to the Secured Party from time to time, upon demand, such releases
and/or subordinations of claims and liens which may be required to maintain
the
priority of the Security Interest hereunder.
(j) The
Company will not allow any Collateral to be abandoned, forfeited, or dedicated
to the public without the prior written consent of the Secured Parties. No
Obligor will transfer, pledge, hypothecate, encumber, license (except for
non-exclusive licenses granted by any Obligor in the ordinary course of
business), sell or otherwise dispose of any of the Collateral without the prior
written consent of the Secured Parties.
(k) Each
Obligor shall, within ten (10) days of obtaining knowledge thereof, advise
the
Secured Parties, in sufficient detail, of any substantial change in the
Collateral, and of the occurrence of any event which would have a material
adverse effect on the value of the Collateral or on the Secured Parties’
security interest therein.
(l) Each
Obligor shall permit the Secured Parties and its representatives and agents
to
inspect the Collateral at any time, and to make copies of records pertaining
to
the Collateral as may be requested by the Secured Parties from time to
time.
(m) Each
Obligor will take all steps reasonably necessary to diligently pursue and seek
to preserve, enforce and collect any rights, claims, causes of action and
accounts receivable in respect of the Collateral.
(n) Each
Obligor shall promptly notify the Secured Parties in sufficient detail upon
becoming aware of any attachment, garnishment, execution or other legal process
levied against any Collateral and of any other information received by the
Company that may materially affect the value of the Collateral, the Security
Interest or the rights and remedies of the Secured Parties
hereunder.
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(o) All
information heretofore, herein or hereafter supplied to the Secured Parties
by
or on behalf of the Obligors with respect to the Collateral is accurate and
complete in all material respects as of the date furnished.
4. Defaults.
The
following events shall be “Events of Default”:
(a) The
occurrence of a Triggering Event (as defined in the Notes) under the
Note;
(b) Any
representation or warranty of any Obligor in this Agreement or in any other
Transaction Document, shall prove to have been incorrect in any material respect
when made; and
(c) The
failure by any Obligor to observe or perform any of its obligations hereunder
or
in any other Transaction Document, for five (5) days after receipt by such
Obligor of notice of such failure from the Secured Parties.
5. Duty
To Hold In Trust.
Upon
the occurrence of any Event of Default and at any time thereafter, each Obligor
shall, upon receipt by it of any revenue, income or other sums subject to the
Security Interest, whether payable pursuant to the Note or otherwise, or of
any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for the Secured Parties
and shall forthwith endorse and transfer any such sums or instruments, or both,
to the Secured Parties for application to the satisfaction of the
Obligations.
6. Rights
and Remedies Upon Default.
Upon
the occurrence of any Event of Default and at any time thereafter, the Secured
Parties shall have the right to exercise all of the remedies conferred hereunder
and under the Note and the Warrant, and the Secured Parties shall have all
the
rights and remedies of a Secured Parties under the UCC and/or any other
applicable law (including the Uniform Commercial Code of any jurisdiction in
which any Collateral is then located). Without limitation, the Secured Parties
shall have the following rights and powers:
(a) The
Secured Parties shall have the right to take possession of all tangible
manifestations or embodiments of the Collateral and, for that purpose, enter,
with the aid and assistance of any person, any premises where the Collateral,
or
any part thereof, is or may be placed and remove the same, and the Company
shall
assemble the Collateral and make it available to the Secured Parties at places
which the Secured Parties shall reasonably select, whether at the Obligor’s
premises or elsewhere.
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(b) The
Secured Parties shall have the right to operate the business of any Obligor
using the Collateral and shall have the right to assign, sell, or otherwise
dispose of and deliver all or any part of the Collateral, at public or private
sale or otherwise, either with or without special conditions or stipulations,
for cash or on credit or for future delivery, in such parcel or parcels and
at
such time or times and at such place or places, and upon such terms and
conditions as the Secured Parties may deem commercially reasonable, all, without
(except as shall be required by applicable statute and cannot be waived)
advertisement or demand upon or notice to such Obligor or right of redemption
of
such Obligor, which are hereby expressly waived. Upon each such sale, assignment
or other transfer of Collateral, the Secured Parties may, unless prohibited
by
applicable law which cannot be waived, purchase all or any part of the
Collateral being sold, free from and discharged of all trusts, claims, right
of
redemption and equities of the Obligors, which are hereby waived and
released.
(c) The
Secured Parties may license or, to the same extent any Obligor is permitted
by
law and contract to do so, sublicense, whether on an exclusive or non-exclusive
basis, any of the Collateral throughout the world for such term, on such
conditions and in such manner as the Secured Parties shall, in its sole
discretion, determine.
(d) The
Secured Parties may (without assuming any obligations or liabilities
thereunder), at any time, enforce (and shall have the exclusive right to
enforce) against licensee or sublicensee all rights and remedies of any Obligor
in, to and under any license agreement with respect to such Collateral, and
take
or refrain from taking any action thereunder.
(e) The
Secured Parties may, in order to implement the assignment, license, sale or
other disposition of any of the Collateral pursuant to this Section, pursuant
to
the authority provided for in Section 11, execute and deliver on behalf of
any
Obligor one or more instruments of assignment of the Collateral in form suitable
for filing, recording or registration in any jurisdictions as the Secured
Parties may determine advisable.
7. Applications
of Proceeds; Expenses.
(a) The
proceeds of any such sale, lease, license or other disposition of the Collateral
hereunder shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection therewith)
of
the Collateral, to the reasonable attorneys’ fees and expenses incurred by the
Secured Parties in enforcing its rights hereunder and in connection with
collecting, storing and disposing of the Collateral, and then to satisfaction
of
the Obligations, and to the payment of any other amounts required by applicable
law, after which the Secured Parties shall pay to the Obligors any surplus
proceeds. If, upon the sale, license or other disposition of the Collateral,
the
proceeds thereof are insufficient to pay all amounts to which the Secured
Parties is legally entitled, the Obligors will be liable for the deficiency,
together with interest thereon, at the rate of 17% per annum or such lesser
amount permitted by applicable law (the “Default Rate”), and the reasonable fees
of any attorneys employed by the Secured Parties to collect such deficiency.
To
the extent permitted by applicable law, the Obligors waive all claims, damages
and demands against the Secured Parties arising out of the repossession,
removal, retention or sale of the Collateral, unless due to the gross negligence
or willful misconduct of the Secured Parties.
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(b) The
Obligors agree to pay all out-of-pocket fees, costs, and expenses incurred
in
connection with any filing required hereunder, including, without limitation,
any financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Parties. The Obligors shall also pay all
other claims and charges which in the reasonable opinion of the Secured Parties
might prejudice, imperil or otherwise affect the Collateral or the Security
Interest therein. The Obligors will also, upon demand, pay to the Secured
Parties the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel and of any experts and agents, which the
Secured Parties may incur in connection with (i) the enforcement of this
Agreement, (ii) the custody or preservation of, or the sale of, collection
from,
or other realization upon, any of the Collateral, or (iii) the exercise or
enforcement of any of the rights of the Secured Parties under the Note. Until
so
paid, any fees payable hereunder shall be added to the principal amount of
the
Note and shall bear interest at the Default Rate.
8. Responsibility
for Collateral.
Each
Obligor assumes all liabilities and responsibility in connection with all
Collateral, and the obligations of the Obligors hereunder or under the Notes
shall in no way be affected or diminished by reason of the loss, destruction,
damage or theft of any of the Collateral or its unavailability for any
reason.
9. Security
Interest Absolute.
All
rights of the Secured Parties and all Obligations of the Obligors hereunder,
shall be absolute and unconditional, irrespective of: (a) any lack of validity
or enforceability of this Agreement, the Notes, or any agreement entered into
in
connection with the foregoing, or any portion hereof or thereof; (b) any change
in the time, manner or place of payment or performance of, or in any other
term
of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from the Notes, or any other agreement entered into
in
connection with the foregoing; (c) any exchange, release or nonperfection of
any
of the Collateral, or any release or amendment or waiver of or consent to
departure from any other collateral for, or any guaranty, or any other security,
for all or any of the Obligations; (d) any action by the Secured Parties to
obtain, adjust, settle and cancel in its sole discretion any insurance claims
or
matters made or arising in connection with the Collateral; or (e) any other
circumstance which might otherwise constitute any legal or equitable defense
available to the Obligors, or a discharge of all or any part of the Security
Interest granted hereby. Until the Obligations shall have been paid and
performed in full, the rights of the Secured Parties shall continue even if
the
Obligations are barred for any reason, including, without limitation, the
running of the statute of limitations or bankruptcy. Each Obligor expressly
waives presentment, protest, notice of protest, demand, notice of nonpayment
and
demand for performance. In the event that at any time any transfer of any
Collateral or any payment received by the Secured Parties hereunder shall be
deemed by final order of a court of competent jurisdiction to have been a
voidable preference or fraudulent conveyance under the bankruptcy or insolvency
laws of the United States, or shall be deemed to be otherwise due to any party
other than the Secured Parties, then, in any such event, the Obligors’
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. Each Obligor waives all
right to require the Secured Parties to proceed against any other person or
to
apply any Collateral which the Secured Parties may hold at any time, or to
marshal assets, or to pursue any other remedy. Each Obligor waives any defense
arising by reason of the application of the statute of limitations to any
obligation secured hereby.
10. Term
of Agreement.
This
Agreement and the Security Interest shall terminate on the date on which all
payments under the Notes have been made in full and all other Obligations have
been paid or discharged. Upon such termination, the Secured Parties, at the
request and at the expense of the Obligors, will join in executing any
termination statement with respect to any financing statement executed and
filed
pursuant to this Agreement.
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11. Power
of Attorney; Further Assurances.
(a) Each
Obligor authorizes the Secured Parties, and does hereby make, constitute and
appoint it, and its respective officers, agents, successors or assigns with
full
power of substitution, as such Obligor’s true and lawful attorney-in-fact, with
power, in its own name or in the name of such Obligor, to, after the occurrence
and during the continuance of an Event of Default, (i) endorse any notes,
checks, drafts, money orders, or other instruments of payment (including
payments payable under or in respect of any policy of insurance) in respect
of
the Collateral that may come into possession of the Secured Parties; (ii) to
sign and endorse any UCC financing statement or any invoice, freight or express
xxxx, xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and
(v)
generally, to do, at the option of the Secured Parties, and at such Obligor’s
expense, at any time, or from time to time, all acts and things which the
Secured Parties deems necessary to protect, preserve and realize upon the
Collateral and the Security Interest granted therein in order to effect the
intent of this Agreement and the Notes, all as fully and effectually as such
Obligor might or could do; and each Obligor 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 shall be irrevocable for the term
of
this Agreement and thereafter as long as any of the Obligations shall be
outstanding.
(b) On
a
continuing basis, each Obligor will make, execute, acknowledge, deliver, file
and record, as the case may be, in the proper filing and recording places in
any
jurisdiction, including, without limitation, the jurisdictions indicated on
Schedule A, attached hereto, all such instruments, including appropriate
financing and continuation statements and collateral agreements and filings
with
the United States Patent and Trademark Office and the Register of Copyrights,
and take all such action as may reasonably be deemed necessary or advisable,
or
as reasonably requested by the Secured Parties, to perfect the Security Interest
granted hereunder and otherwise to carry out the intent and purposes of this
Agreement, or for assuring and confirming to the Secured Party, the grant or
perfection of a security interest in all the Collateral.
(c) Each
Obligor hereby irrevocably appoints the Secured Parties as such Obligor’s
attorney-in-fact, with full authority in the place and stead of such Obligor
and
in the name of such Obligor, from time to time in the Secured Parties’
discretion, to take any action and to execute any instrument which the Secured
Parties may deem necessary or advisable to accomplish the purposes of this
Agreement, including:
(i) To
modify, in its sole discretion, this Agreement without first obtaining such
Obligor’s approval of or signature to such modification by amending Exhibit A,
Exhibit B, and/or Exhibit C hereof, as appropriate, to include reference to
any
right, title or interest in any Copyrights, Patents, or Trademarks acquired
by
such Obligor after the execution hereof or to delete any reference to any right,
title, or interest in any Copyrights, Patents, or Trademarks in which such
Obligor no longer has or claims any right, title or interest; and
(ii) To
file,
in its sole discretion, one or more financing or continuation statements and
amendments thereto, relative to any of the Collateral without the signature
of
such Obligor where permitted by law.
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12. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing, with copies to all the other parties hereto, and shall be deemed to
have been duly given when (i) if delivered by hand, upon receipt, (ii) if sent
by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
recognized overnight delivery service (receipt requested), the next business
day
or (iv) if mailed by first-class registered or certified mail, return receipt
requested, postage prepaid, four days after posting in the U.S. mails, in each
case if delivered to the following addresses:
|
If
to any Obligor:
|
0000 Xxxxxxx Xxxxxx # 0 |
| Xxx Xxxxx, XX 00000 | |
| Facsimile No.: (000) 000-0000 | |
| Attention: Secretary |
If
to
Secured Parties: At
the
address set forth opposite their name on the signature page.
13. Other
Security.
To the
extent that the Obligations are now or hereafter secured by property other
than
the Collateral or by the guarantee, endorsement or property of any other person,
firm, corporation or other entity, then the Secured Parties shall have the
right, in its sole discretion, to pursue, relinquish, subordinate, modify,
or
take any other action with respect thereto, without in any way modifying or
affecting any of the Secured Parties’ rights and remedies
hereunder.
14. Miscellaneous.
(a) No
course
of dealing between the Obligors and the Secured Parties, nor any failure to
exercise, nor any delay in exercising, on the part of the Secured Parties,
any
right, power or privilege hereunder or under the Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power, or privilege.
(b) All
of
the rights and remedies of the Secured Parties with respect to the Collateral,
whether established hereby or by the Note or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
(c) This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and is intended to supersede all prior negotiations,
understandings and agreements with respect thereto. Except as specifically
set
forth in this Agreement, no provision of this Agreement may be modified or
amended except by a written agreement specifically referring to this Agreement
and signed by the parties hereto.
10
(d) In
the
event that any provision of this Agreement is held to be invalid, prohibited
or
unenforceable in any jurisdiction for any reason, unless such provision is
narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective
to
the extent of such invalidity, prohibition, or unenforceability without
invalidating the remaining portion of such provision or the other provisions
of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other
jurisdiction.
(e) No
waiver
of any breach or default or any right under this Agreement shall be considered
valid unless in writing and signed by the party giving such waiver, and no
such
waiver shall be deemed a waiver of any subsequent breach or default or right,
whether of the same or similar nature or otherwise.
(f) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
(g) Each
party shall take such further action and execute and deliver such further
documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) This
Agreement shall be construed in accordance with the laws of the State of New
York, except to the extent the validity, perfection or enforcement of a security
interest hereunder in respect of any particular Collateral which are governed
by
a jurisdiction other than the State of New York, in which case such law shall
govern. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of any New York State or United States Federal court sitting in
the
county of New York over any action or proceeding arising out of or relating
to
this Agreement, and the parties hereto hereby irrevocably agree that all claims
in respect of such action or proceeding may be heard and determined in such
New
York State or Federal court. The parties hereto agree that a final judgment
in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The parties hereto further waive any objection to venue in the State of New
York
and any objection to an action or proceeding in the State of New York on the
basis of forum non convenient.
11
(i) EACH
PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY
BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS
WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEW#ED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
SUCH PARTY KNOWTNGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING
SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS
AND
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF A LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(j) This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
***********
12
IN
WITNESS WHEREOF, the parties hereto have caused this Intellectual Property
Security Agreement to be duly executed on the day and year first above written.
| BIO SOLUTIONS MANUFACTURING, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
| BIO SOLUTIONS PRODUCTION, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
| BIO EXTRACTION SERVICES, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
INVESTOR
SIGNATURE PAGES FOLLOWS]
13
SECURED
PARTIES:
[INTENTIONALLY
OMITTED]
14
EXHIBIT
A
Copyrights
|
Description
|
Registration
Number
|
Registration
Date
|
15
EXHIBIT
B
Patents
|
Description
|
Registration
Number
|
Registration
Date
|
Pending
Patent Applications
|
Patent
|
Application
Number
|
Application
Date
|
|
Fats,
Oil and Grease Interceptor
|
U.S.
11/468,205
|
August
29, 2006
|
16
EXHIBIT
C
Trademarks
|
Description
|
Registration
Number
|
Registration
Date
|
17
SCHEDULE
A
New
York
Nevada
