Execution Copy
PATENT AND TRADEMARK SECURITY AGREEMENT
THIS PATENT AND TRADEMARK SECURITY AGREEMENT (this "Agreement"), dated as
of March 7, 2006, is made between POWERLINX, INC., a Nevada corporation
("Grantor"), and SOFAER CAPITAL INC., a British Virgin Islands corporation, as
collateral agent for the Purchasers referred to in the Security Agreement
defined below ("Secured Party").
Grantor and Secured Party hereby agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Security Agreement. All capitalized terms used in
this Agreement and not otherwise defined herein shall have the meanings assigned
to them in the Security Agreement.
(b) Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Collateral" has the meaning set forth in Section 2.
"PTO" means the United States Patent and Trademark Office.
"Security Agreement" means the Security Agreement dated as of March 7, 2006
between Grantor and Secured Party.
(c) Terms Defined in UCC. Where applicable and except as otherwise
defined herein, terms used in this Agreement shall have the meanings assigned to
them in the UCC.
(d) Interpretation. The rules of interpretation applicable to the
Security Agreement shall also be applicable to this Agreement and are
incorporated herein by this reference.
SECTION 2 Security Interest.
(a) Grant of Security Interest. As security for the payment and
performance of the Obligations, Grantor hereby grants, assigns, and conveys to
Secured Party as collateral agent, for itself and on behalf of and for the
ratable benefit of the Purchasers, a security interest in all of Grantor's
right, title and interest in, to and under the following property, in each case
whether now or hereafter existing or arising or in which Grantor now has or
hereafter owns, acquires or develops an interest and wherever located
(collectively, the "Collateral"):
(i) all patents and patent applications, domestic or foreign, all
licenses relating to any of the foregoing and all income and royalties with
respect to any licenses (including such patents and patent applications as
described in Schedule A), all rights to xxx for past, present or future
infringement thereof, all rights arising therefrom and pertaining thereto and
all reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof;
(ii) all state (including common law), federal and foreign trademarks,
service marks and trade names, and applications for registration of such
trademarks, service marks and trade names, all licenses relating to any of the
foregoing and all income and royalties with respect to any licenses (including
such marks, names and applications as described in Schedule B), whethe
registered or unregistered and wherever registered, all rights to xxx for past,
present or future infringement or unconsented use thereof, all rights arising
therefrom and pertaining thereto and all reissues, extensions and renewals
thereof;
(iii) the entire goodwill of or associated with the businesses now or
hereafter conducted by Grantor connected with and symbolized by any of the
aforementioned properties and assets;
(iv) all commercial tort claims associated with or arising out of any of
the aforementioned properties and assets;
(v) all accounts, all intangible intellectual or other similar property
and other general intangibles associated with or arising out of any of the
aforementioned properties and assets and not otherwise described above,
including all license payments and payments under insurance (whether or not
Secured Party is the loss payee thereof) or any indemnity, warranty or guaranty
payable by reason of loss or damage to or otherwise with respect to the
foregoing Collateral; and
(vi) all products, proceeds and supporting obligations of or with
respect to any and all of the foregoing Collateral.
(b) Continuing Security Interest. Grantor agrees that this Agreement
shall create a continuing security interest in the Collateral which shall remain
in effect until terminated in accordance with Section 12.
SECTION 3 Supplement to Security Agreement. This Agreement has been granted
in conjunction with the security interests granted to Secured Party, for itself
and for the ratable benefit of Purchasers, under the Security Agreement. The
rights and remedies of Secured Party with respect to the security interests
granted herein are without prejudice to, and are in addition to those set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference.
SECTION 4 Representations and Warranties. Grantor represents and warrants
to Secured Party that:
(a) Patents. A true and correct list of all of the existing Collateral
consisting of U.S. patents and patent applications and/or registrations owned by
Grantor, in whole or in part, is set forth in Schedule A.
(b) Trademarks. A true and correct list of all of the existing Collateral
consisting of U.S. trademarks, trademark registrations and/or applications owned
by Grantor, in whole or in part, is set forth in Schedule B.
SECTION 5 Further Acts. On a continuing basis, Grantor shall make, execute,
acknowledge and deliver, and file and record in the proper filing and recording
places, all such instruments and documents, and take all such action as may be
necessary or advisable or may be requested by Secured Party to carry out the
intent and purposes of this Agreement, or for assuring, confirming or protecting
the grant or perfection of the security interest granted or purported to be
granted hereby, to ensure Grantor's compliance with this Agreement or to enable
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to the Collateral, including any documents for filing with the PTO
and/or any applicable state office. Secured Party may record this Agreement, an
abstract thereof, or any other document describing Secured Party's interest in
the Collateral with the PTO, at the expense of Grantor.
SECTION 6 Authorization to Supplement. If Grantor shall obtain rights to
any new trademarks, any new patentable inventions or become entitled to the
benefit of any patent application or patent for any reissue, division, or
continuation, of any patent, the provisions of this Agreement shall
automatically apply thereto. Grantor shall give prompt notice in writing to
Secured Party with respect to any such new trademarks or patents, or renewal or
extension of any trademark registration. Without limiting Grantor's obligations
under this Section 6, Grantor authorizes Secured Party to modify this Agreement
by amending Schedules A or B to include any such new patent or trademark rights.
Notwithstanding the foregoing, no failure to so modify this Agreement or
amend Schedules A or B shall in any way affect, invalidate or detract from
Secured Party's continuing security interest in all Collateral, whether or not
listed on -- Schedule A or B.
SECTION 7 Binding Effect. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by Grantor, Secured Party and their respective
successors and assigns and shall bind any Person who becomes bound as a debtor
to this Agreement. Grantor may not assign, transfer, hypothecate or otherwise
convey its rights, benefits, obligations or duties hereunder except as
specifically permitted by the Security Agreement.
SECTION 8 Notices. All notices or other communications hereunder shall be
in writing (including by facsimile transmission or by email) and mailed, sent or
delivered to the respective parties hereto at or to their respective addresses,
facsimile numbers or email addresses set forth below their names on the
signature pages hereof, or at or to such other address, facsimile number or
email address as shall be designated by any party in a written notice to the
other parties hereto. All such notices and other communications shall be deemed
to be delivered when a record (within the meaning of the UCC) has been (i)
delivered by hand; (ii) sent by mail upon the earlier of the date of receipt or
five business days after deposit in the mail, first class (or air mail as to
communications sent to or from the United States); (iii) sent by facsimile
transmission; or (iv) sent by email. Electronic mail may be used only for
routine communications, such as distribution of informational documents or
documents for execution by the parties thereto, and may not be used for any
other purpose.
SECTION 9 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of New York, except as required by
mandatory provisions of law and to the extent the validity or perfection of the
security interests hereunder, or the remedies hereunder, in respect of any
Collateral are governed by the law of a jurisdiction other than New York.
SECTION 10 Amendment; Conflict. This Agreement is subject to modification
only by a writing signed by the parties, except as provided herein. To the
extent that any provision of this Agreement conflicts with any provision of the
Security Agreement, the provision giving Secured Party greater rights or
remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to Secured Party under the
Security Agreement.
SECTION 11 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
SECTION 12 Termination. Upon payment and performance in full of all
Obligations, the security interests created by this Agreement shall terminate
and Secured Party shall promptly execute and deliver to Grantor such documents
and instruments reasonably requested by Grantor as shall be necessary to
evidence termination of all such security interests given by Grantor to Secured
Party hereunder, including cancellation of this Agreement by written notice from
Secured Party to the PTO.
[Signature on Following Page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of
the date first above written.
Grantor
POWERLINX, INC.
By:
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
Address:
0000 00xx Xx. X, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxx
Fax: (000) 000-0000
Email: xxxxxx@xxxxx-xxxx.xxx
Secured Party
SOFAER CAPITAL INC.
By:
Name:
Title:
Address:
c/o Sofaer Global Research (UK) Limited
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attn: Xxx Xxxxx
Fax: (000) 00 00 0000-0000
Email: xxxxxx@xxxxxx.xxx
