EXHIBIT 10.34
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Xxxxxx & Xxxxxx, L.L.P.
Draft February 11, 1994
COMMERCIAL SECURITY AGREEMENT
This Commercial Security Agreement ("Agreement") is entered into as of
February 28, 1994, by and between FIRST INTERSTATE BANK OF TEXAS, N.A. ("Secured
Party") and VISUAL NUMERICS, INC. (EUROPE), a Texas corporation ("Debtor"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Second Restated and Amended Loan Agreement (as amended the "Loan
Agreement") dated as of December 16, 1992, by and among Debtor, Secured Party,
and IMSL, Inc., a Texas corporation as amended by First Amendment to Second
Amended and Restated Loan Agreement of even date herewith between Debtor,
Secured Party, Visual Numerics, Inc. ("Borrower") and others.
WHEREAS, Borrower has entered into the Loan Agreement providing for, among
other things, extending credit by the Secured Party to Borrower, from time to
time (collectively, the "Loans"), which Loans are evidenced by a Revolving Note
and two Term Notes each executed by Borrower and payable to the order of the
Secured Party;
WHEREAS, Debtor is a wholly-owned subsidiary of the Borrower, will derive
direct and indirect economic benefits from the Borrower as a result of the
Loans, and Debtor has executed a Guaranty of the Loans;
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Debtor grants to Secured Party the security interest (and the
pledges and assignments as applicable) hereinafter set forth and agrees with
Secured Party as follows:
A. OBLIGATIONS SECURED. The security interest and pledges and
assignments, as applicable, granted hereby are to secure punctual payment and
performance of the following: (i) the Notes, and any and all extensions,
renewals, modifications, increases and rearrangements thereof, (ii) the
obligations of Borrower to Secured Party under the Loan Agreement and the
obligations of Borrower and Debtor to Secured Party under any of the other Loan
Documents and otherwise relating to any Note, and (iii) any and all other
indebtedness, liabilities and obligations whatsoever of Borrower and Debtor to
Secured Party, whether direct or indirect, absolute or contingent, primary or
secondary, due or to become due and whether now existing or hereafter arising
pursuant to or under this Agreement, the Loan Agreement or any of the Loan
Documents, whether joint or several, or joint and several (all of which are
herein separately and collectively referred to as the "Obligations"). Debtor
acknowledges that the security interest hereby granted shall secure all future
advances pursuant to or under this Agreement, the Loan Agreement or any of the
Loan Documents.
B. DEFINITION OF TERMS USED HEREIN. As used herein, the following terms
shall have the following meanings:
Collateral. All of the following now or hereafter owned by Debtor: (i)
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Accounts, (ii) Inventory, (iii) Equipment, (iv) Fixtures, (v) General
Intangibles, (vi) Chattel Paper, (vii) Instruments, (viii) Copyrights, (ix)
Licenses, (x) Patents, (xi) Trademarks, (xii) Trade Secrets, and (xiii) all
Proceeds (including, without limitation, insurance proceeds) of, and additions,
improvements and accessions to, and books and records describing or used in
connection with, any and all of the foregoing property.
Accounts. All accounts now owned or existing as well as any and all
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accounts that may hereafter arise or be acquired by Debtor, and all the
proceeds and products thereof, including without limitation, all notes,
drafts, acceptances, instruments and chattel paper arising therefrom, and
all returned or repossessed goods arising from or relating to any such
accounts, or other proceeds of any sale or other disposition of inventory.
Chattel Paper. All of Debtor's interest under chattel paper, lease
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agreements and other instruments or documents, whether now existing or
owned by Debtor or hereafter arising or acquired by Debtor, evidencing both
a debt and security interest in or lease of specific goods.
Copyrights. All of the following now or hereafter owned by Debtor:
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(i) all copyright in any original work of authorship fixed in any tangible
medium of expression, now known or later developed, (ii) all registrations
and applications for registration of any such copyright in the United
States or any other country or political subdivision including without
limitation, registrations, recordings, supplemental registrations and
applications in the United States Copyright Office, and (iii) the right to
xxx for past, present and future infringement of the foregoing.
Copyright License. Any written agreement executed or to be executed
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by Debtor granting any right to any third party under any Copyright now or
hereafter owned by Debtor, or granting any right to Debtor under any
Copyright now or hereafter owned by any third party.
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Equipment. All equipment of every nature and description whatsoever
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now owned or hereafter acquired by Debtor including all appurtenances and
additions thereto and substitutions therefor, wheresoever located,
including all tools, parts and accessories used in connection therewith.
Fixtures. All of Debtor's fixtures and appurtenances thereto, and
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such other goods, chattels, fixtures, equipment and personal property
affixed or in any manner attached to real estate and/or building(s) or
structure(s), including all additions and accessions thereto and
replacements thereof and articles in substitution therefor, howsoever
attached or affixed.
General Intangibles. All general intangibles and other personal
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property now owned or hereafter acquired by Debtor, including without
limitation, intangible intellectual property of Debtor of any kind or
nature now owned or hereafter acquired by Debtor, including without
limitation, intellectual property rights in inventions, designs, Patents,
Copyrights, Licenses, Trademarks and associated goodwill, Trade Secrets,
confidential or proprietary technical and business information, know-how,
improvements, technical developments, know-how or other data or
information, software, databases and related documentation, registrations,
franchises, and all other intellectual property rights not otherwise
described above.
Inventory. All of Debtor's inventory, including all goods,
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merchandise, raw materials, goods in process, finished goods and other
tangible personal property, wheresoever located, now owned or hereafter
acquired and held for sale or lease or furnished or to be furnished under
contracts for service or used or consumed in Debtor's business and all
additions and accessions thereto and contracts with respect thereto and all
documents of title evidencing or representing any part thereof, and all
products and proceeds thereof, including, without limitation, all of such
which is now or hereafter located at the following locations: 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000.
Instruments. A pledge and assignment of said security interest in all
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of Debtor's now owned or
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existing as well as hereafter acquired or arising instruments and
documents.
License. Any Patent License, Trademark License, Copyright License or
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other intellectual property license as to which Debtor is a party.
Patent License. Any written agreement executed or to be executed by
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Debtor granting to any third party any right to practice any invention
disclosed and claimed in a Patent, now or hereafter owned by Debtor, or
granting to Debtor any right to practice any invention disclosed and
claimed in a Patent, now or hereafter owned by any third party.
Patents. All of the following now or hereafter owned by Debtor: (i)
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all extant letters patent of the United States or any other country or
political subdivision, all invention registrations and recordings thereof
in the United States or any other country or political subdivision, and all
applications for letters patent of the United States or any other country
or political subdivision, including, without limitation, invention
registrations, recordings and applications in the United States Patent and
Trademark Office or any other country or political subdivision, (ii) all
reissues, continuations, divisions, continuations-in-part or extensions
thereof, (iii) all inventions disclosed and claimed therein, including the
right to make, use and or sell the inventions disclosed and claimed
therein, and (iv) the right to xxx for past, present and future
infringement of the foregoing.
Proceeds. Any consideration received by Debtor from the sale,
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exchange, lease or other disposition of any asset or property which
constitutes Collateral, any value received as a consequence of the
possession of any Collateral and any payment received from any insurer or
other person or entity as a result of the destruction, loss, theft or other
involuntary conversion of whatever nature of any asset or property which
constitutes Collateral, any claim of Debtor which constitutes Collateral,
any claim of Debtor against third parties (i) for past, present or future
infringement of any Patent or Patent License, or (ii) for past, present or
future infringement or dilution of any Trademark or Trademark License or
for injury to the goodwill
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associated with any Trademark or Trademark licensed under any Trademark
License, or (iii) for past, present or future infringement of any Copyright
or Copyright License, and any and all other amounts from time to time to
time paid or payable under or in connection with any of the Collateral.
Trademark License. Any written agreement executed or to be executed
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by Debtor granting to any third party any right to use any Trademark now or
hereafter owned by Debtor, or granting to Debtor any right to use any
Trademark now or hereafter owned by any third party.
Trademarks. All of the following now or hereafter owned by Debtor:
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(i) all trademarks, service marks, trade names, corporate names, company
names, indicia, business source identifiers, business names, fictitious
business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature all of the
type for which exclusive rights may be provided under the laws of the
United States, any State within the United States or any other country or
political subdivision, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office, any State of
the United States or any other country or political subdivision, (ii) all
goodwill associated therewith arising in or relating to the ordinary course
of business of Debtor, (iii) all extensions or renewals thereof, and (iv)
the right to xxx for past, present and future infringement of the
foregoing.
Trade Secrets. All trade secrets and other confidential or
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proprietary technical and business information, now or hereafter owned by
Debtor, including, without limitation, manufacturing processes, formulas,
compositions, data and other technical information and know-how all of the
type for which exclusive rights may be provided under the laws of the
United States, any State within the United States or any other country or
political subdivision, and any improvements thereon or changes thereto.
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All terms not otherwise defined herein or defined in the Loan Agreement and
which are defined in the Uniform Commercial Code adopted in the State of Texas
in effect on the date of execution hereof shall have the meaning ascribed to
them in the Uniform Commercial Code adopted in the State of Texas in effect as
of the date of execution hereof and set forth in any amendment to the Uniform
Commercial Code adopted in the State of Texas to become effective after the date
of execution hereof.
C. SECURITY INTEREST. As security for the Obligations, Debtor hereby
assigns, conveys, mortgages, hypothecates transfers and grants to Secured Party
a security interest in and agrees that Secured Party shall continue to have a
security interest in (and a pledge and assignment as applicable) the Collateral.
D. USE OF COLLATERAL. Debtor represents, warrants and covenants that the
Collateral will be used by the Debtor primarily for business use.
E. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. Debtor
represents and warrants as follows:
1. Title to Collateral. The Debtor is, and as to any property acquired
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by the Debtor after the date hereof and which is included within the Collateral,
Debtor will be, the owner of good and indefeasible title to all Collateral free
and clear of all security interests or Liens, except for (a) the security
interests (and pledges and assignments, as applicable) granted hereby, (b) the
Permitted Liens, and (c) such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. The Collateral that is leased or
licensed to Debtor from third parties is free and clear of the rights of others
except (a) for the reversionary or residual interest of any lessor or licensor
(including, without limitation, any restrictions against assignment or the
like), and (b) for such rights of others that could not reasonably be expected
to have a Material Adverse Effect.
2. No Financing Statements. Except as otherwise permitted in this
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Subparagraph 2, there is no financing statement or similar filing now on file in
any public office covering all or any part of the Collateral, nor is there any
filing with the United States Patent and Trademark Office or United States
Copyright Office for the purpose of perfecting, confirming, continuing,
enforcing or protecting any security interest granted by Debtor in the
Collateral, and Debtor will not execute and there will not be on file in any
public office any such financing statement or similar filing except (a) the
financing statements filed or to be filed in favor
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of Secured Party, (b) the filing of this Agreement or a representation hereof
with the United States Patent and Trademark Office and the United States
Copyright Office and (c) those financing statements relating to the Permitted
Liens.
3. Address. The address of Debtor designated in the Loan Agreement is
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Debtor's chief executive office. Debtor agrees not to change its chief
executive office to another address without advance written notice to Secured
Party.
F. GENERAL COVENANTS. Debtor covenants and agrees as follows:
1. Operation of the Collateral. Debtor agrees to maintain and use the
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Collateral solely in the conduct of its own business, in a careful and proper
manner, and to the extent failure to do so would have a Material Adverse Effect,
in conformity with all applicable permits or licenses. Debtor shall comply in
all material respects with all requirements of law of any governmental authority
having jurisdiction over its business, except such (a) as may be contested in
good faith by appropriate proceedings and adequate reserves have been
established and are maintained in accordance with GAAP and deemed adequate by
Debtor, and (b) as to which such failure to comply would not have a Material
Adverse Effect. Debtor shall not use the Collateral in any unlawful manner or
for any unlawful purposes, or in any manner or for any purpose that would expose
the Collateral to unreasonable risk including, without limitation, unreasonable
risk of penalty, forfeiture or capture.
2. Good Standing. Debtor shall obtain and maintain in good standing at
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all times all applicable permits, licenses, registrations and certificates
respecting the Collateral.
3. Notices and Reports. In addition to those notices required by Debtor
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to Secured Party under the terms of the Loan Agreement, Debtor shall promptly
notify Secured Party in writing of any charge, lien, security interest or
encumbrance asserted against the Collateral (other than Permitted Liens). In
addition, Debtor shall deliver to Secured Party at least quarterly throughout
the term of this Agreement a written report describing (a) any litigation or
claim asserted against the Collateral, which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect and (b) any theft,
loss, injury or any other matter materially and adversely affecting the
Collateral or Debtor's interest therein. Debtor shall furnish such other
reports, information and data regarding the Collateral as Secured Party may
reasonably request from time to time. Secured Party is
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authorized to file one or more financing statements, continuation statements,
other similar filings with the United States Patent and Trademark Office or
United States Copyright Office, or other similar documents for the purpose of
perfecting, confirming, continuing, enforcing or protecting the security
interests, pledges, assignments and other rights granted to Secured Party
hereunder.
4. Additional Filings. Debtor agrees, at its expense, to promptly
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execute, deliver and file such financing statement or statements, or amendments
thereof or supplements thereto, notices of security interest therein or other
documents as are necessary and required or otherwise reasonably required from
time to time by Secured Party to perfect the security interest granted to
Secured Party in any Collateral hereafter acquired (except for that portion of
the Collateral the perfection of Secured Party's security interest in which is
governed by the laws of any jurisdiction other than the United States or any
State within the United States) and to preserve and protect the Secured Party's
rights to the Collateral (except for that portion of the Collateral the
perfection of Secured Party's security interest in which is governed by the laws
of any jurisdiction other than the United States or any State within the United
States).
5. Protection of Collateral. Secured Party, at its option, either before
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or after the occurrence and during the continuance of a default, but without any
obligation whatsoever to do so, may (a) discharge taxes, claims, charges, liens,
security interests, assessments or other encumbrances of any and every nature
whatsoever at any time levied, placed upon or asserted against the Collateral,
or any portion thereof, by any third party, (b) pay for the maintenance and
preservation of the Collateral, or any portion thereof, (c) pay any filing,
recording, registration, licensing or certification fees or other fees and
charges which may be required to maintain and preserve the Collateral, or any
portion thereof, or (d) take any other action reasonably required by Secured
Party to preserve and protect the Collateral, or any portion thereof, and
Secured Party's rights and remedies under this Agreement as Secured Party may
deem necessary or appropriate, in the exercise of its reasonable discretion.
Secured Party agrees to use its reasonable best efforts to provide Debtor with
written notice if Secured Party takes any of the foregoing actions. Debtor
agrees that Secured Party shall have no duty or obligation whatsoever to take
any of the foregoing action. Debtor agrees to promptly reimburse Secured Party
upon demand for any payment made or any expense incurred by the Secured Party
pursuant to this authorization. These payments and expenditures, together with
interest thereon from the date
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incurred until paid by Debtor at a per annum rate (the "Default Rate") equal to
the lesser of (i) the Highest Lawful Rate, if any, and (ii) a rate per annum
equal to the sum of (x) the Basic Rate, plus (y) two percent (2%) per annum,
which Debtor agrees to pay, shall constitute additional Obligations and shall be
secured by and entitled to the benefits of this Agreement.
6. Inspection. Debtor shall permit Secured Party by or through any of
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its officers, agents, attorneys or accountants, to visit any properties of
Debtor for the purpose of inspecting and examining the Collateral, or any
portion thereof, wherever located, and to examine and make copies and abstracts
from Debtor's books and records, all at such reasonable times during normal
business hours and as often as may be reasonably requested by Secured Party,
upon reasonable advance notice to Debtor; provided, however, during the
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continuation of an Event of Default (as such term is defined in the Loan
Agreement), Secured Party, by or through any of its officers, agents, attorneys
or accountants may visit such properties and inspect and examine all documents
pertaining to the validity or enforceability of any of the Collateral, at the
sole cost and expense of Debtor, at any time during normal business hours
without advance notice to Debtor. With respect to all non-public information
obtained by Secured Party in connection with any such inspection, Secured Party
shall comply with the confidentiality provision set forth in Section 8.10 of the
Loan Agreement.
7. Further Assurances. Debtor shall do, make, procure, execute and
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deliver all such additional and further acts, things, deeds, interests and
assurances as Secured Party may reasonably require from time to time to protect,
assure and enforce Secured Party's rights and remedies.
8. No Transfer. Except as otherwise provided in this Agreement with
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respect to Inventory, Debtor shall not, without the prior written consent of
Secured Party, sell, assign, transfer, lease, charter, encumber, hypothecate or
dispose of the Collateral, or any part thereof, or interest therein, or offer to
do any of the foregoing.
9. Landlord's Waivers. Debtor shall use its reasonable best efforts to
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furnish to Secured Party, if requested, a landlord's waiver of all liens with
respect to any Collateral covered by this Agreement that is or may be located
upon leased premises, such landlord's waivers to be in such form and upon such
terms as are reasonably acceptable to Secured Party.
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10. Affirmative and Negative Covenants Contained in the Loan Agreement.
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The Debtor will comply with and perform all affirmative and negative covenants
and agreements made by the Borrower in the Loan Agreement with respect to the
Debtor.
G. ADDITIONAL PROVISIONS REGARDING ACCOUNTS. The following provisions
shall apply to all accounts included within the Collateral:
1. Definitions. The term "account," as used in this Agreement, shall
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have the same meaning as set forth in the Uniform Commercial Code of Texas in
effect as of the date of execution hereof, and as set forth in any amendment to
the Uniform Commercial Code of Texas to become effective after the date of
execution hereof, and also shall include all present and future notes,
instruments, documents, general intangibles, drafts, acceptances and chattel
paper of Debtor, and the proceeds thereof.
2. Additional Warranties. As of the time any account becomes subject to
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the security interest (or pledge or assignment as applicable) granted hereby,
Debtor shall be deemed further to have warranted as to each and all of such
accounts as follows: (a) each account and all papers and documents relating
thereto are genuine and in all respects what they purport to be; (b) each
account is valid and subsisting and arises out of a bona fide sale of goods sold
and delivered to, or out of and for services theretofore actually rendered by
the Debtor to, the account debtor named in the account; (c) the amount of the
account represented as owing is the correct amount actually and unconditionally
owing except for normal cash discounts and is not subject to any setoffs,
credits, defenses, deductions or countercharges; and (d) Debtor is the owner
thereof free and clear of any charges, liens, security interests, adverse claims
and encumbrances of any and every nature whatsoever other than Permitted Liens
(as such term is defined in the Loan Agreement).
3. Collection of Accounts. Secured Party shall have the right in its own
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name or in the name of the Debtor, upon the occurrence and during the
continuance of an Event of Default, to require Debtor forthwith to transmit all
proceeds of collection of accounts to Secured Party, to notify any and all
account debtors to make payments of the accounts directly to Secured Party, to
demand, collect, receive, receipt for, xxx for, compound and give acquittal for,
any and all amounts due or to become due on the accounts and to endorse the name
of the Debtor on all commercial paper given in payment or part payment hereof,
and in Secured Party's discretion to file any claim or take any other action or
proceeding that
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Secured Party may deem necessary or appropriate to protect and preserve and
realize upon the accounts and related Collateral. Unless and until Secured Party
elects to collect accounts, and the privilege of Debtor to collect accounts is
revoked by Secured Party in writing, Debtor shall continue to collect accounts,
account for same to Secured Party. In order to assure collection of accounts in
which Secured Party has a security interest (or pledge or assignment of as
applicable) hereunder, Secured Party may notify the post office authorities to
change the address for delivery of mail addressed to Debtor to such address as
Secured Party may designate, and to open and dispose of such mail and receive
the collections of accounts included herewith. Secured Party shall have no duty
or obligation whatsoever to collect any account, or to take any other action to
preserve or protect the Collateral; however, should Secured Party elect to
collect any account or take possession of any Collateral, Debtor releases
Secured Party from any claim or claims for loss or damage arising from any act
or omission in connection therewith, unless such loss or damage arises from the
gross negligence or willful misconduct of Secured Party.
4. Identification and Assignment of Accounts. Upon Secured Party's
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request, whether before or after default, Debtor shall take such action and
execute and deliver such documents as Secured Party may reasonably request in
order to identify, confirm, xxxx, segregate and assign accounts and to evidence
Secured Party's interest in same. Without limitation of the foregoing, Debtor,
upon request, agrees to assign accounts to Secured Party, identify and xxxx
accounts as being subject to the security interest (or pledge or assignment as
applicable) granted hereby, xxxx Debtor's books and records to reflect such
assignments, and, upon the occurrence and during the continuance of any Event of
Default, forthwith to transmit to Secured Party in the form as received by
Debtor any and all proceeds of collection of such accounts.
5. Account Reports. Debtor will deliver to Secured Party, on such
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frequency as Secured Party may request, a written report in form and content
satisfactory to Secured Party, showing a listing and aging of accounts and such
other information as Secured Party may request from time to time. Debtor shall
notify Secured Party as soon as practicable of the assertion by any account
debtor of any setoff, defense or claim regarding an account or any other matter
adversely affecting an account.
6. Segregation of Returned Goods. Returned or repossessed goods arising
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from or relating to any accounts included within the Collateral shall if
requested by Secured Party be held separate and apart from any other property.
Debtor shall, as often as
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reasonably requested by Secured Party, report to Secured Party the appropriate
identifying information with respect to any such returned or repossessed goods
relating to accounts included in assignments or identifications made pursuant
hereto.
H. ADDITIONAL PROVISIONS REGARDING INVENTORY. The following provisions
shall apply to all inventory included within the Collateral:
1. Inventory Reports. Debtor will deliver to Secured Party, on such
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frequency as Secured Party may reasonably request, a written report in form and
content reasonably satisfactory to Secured Party, with respect to the preceding
month or other applicable period, showing Debtor's opening inventory, inventory
acquired, inventory sold, inventory returned, inventory used in Debtor's
business, closing inventory, any other inventory not within the preceding
categories, and such other information as Secured Party may reasonably request
from time to time. Debtor shall notify Secured Party as soon as practicable of
any matter adversely affecting the inventory, including, without limitation, any
event causing loss or depreciation in any material respect in the value of the
inventory and the amount of such possible loss or depreciation.
2. Location of Inventory. Debtor will promptly notify Secured Party in
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writing of any addition to, change in or discontinuance of its place(s) of
business as shown in this agreement, the places at which inventory is located as
shown herein, the location of its chief executive office and the location of the
office where it keeps its records as set forth herein. All Collateral will be
located at the place(s) of business identified in this agreement as modified by
any written notice(s) given pursuant hereto.
3. Use of Inventory. Unless and until the privilege of Debtor to dispose
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of inventory in the ordinary course of Debtor's business is revoked by Secured
Party upon the occurrence and during the continuance of an Event of Default,
Debtor may use and dispose of inventory in any manner not inconsistent with this
Agreement, may sell that part of the Collateral consisting of inventory provided
that all such sales are in the ordinary course of business, and may use and
consume any raw materials or supplies that are necessary in order to carry on
Debtor's business. A sale in the ordinary course of business does not include a
transfer in partial or total satisfaction of a debt.
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4. Accounts as Proceeds. All accounts that are proceeds of the inventory
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included within the Collateral shall be subject to all of the terms and
provisions hereof pertaining to accounts.
5. Protection of Inventory. Debtor shall take all action reasonably
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necessary to protect and preserve the inventory.
I. COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT COLLATERAL.
1. Trademark. Debtor (either itself or through licensees) will, for each
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Trademark which is and remains, or hereafter becomes and remains, material to
the conduct of Debtor's overall business, (i) to the extent consistent with
Debtor's past practice, continue to use such Trademark on each and every
trademark class of goods for which such Trademark remains material to the
conduct of Debtor's overall business in order to maintain such Trademark in full
force free from any valid claim of intentional abandonment for nonuse, (ii)
maintain as in the past the quality of products and services offered under such
Trademark, (iii) employ such Trademark with the notice of Federal registration,
(iv) not knowingly use such Trademark in willful violation of any third-party
rights and (v) not knowingly (and not knowingly permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark may become abandoned or invalidated.
2. Patent. Debtor (either itself or through licensees) will, for each
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Patent, take reasonable steps to ensure that Debtor does not knowingly do any
act, or knowingly omit to do any act, whereby any Patent which is material to
the conduct of Debtor's overall business may become invalidated and shall
continue to xxxx any products covered by a Patent with the relevant patent
number as required by the patent laws.
3. Copyright. Debtor (either itself or through licensees) will, for each
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work covered by a Copyright, take reasonable steps to ensure that Debtor
continues to publish, reproduce, display, adopt and distribute the work with
appropriate copyright notice as required under applicable copyright laws.
4. Notification. Debtor shall deliver to Secured Party at least semi-
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annually throughout the term of this Agreement a written report of (a) any
Patent, Trademark or Copyright which is material to the conduct of Debtor's
overall business and which has to its knowledge become abandoned or dedicated,
and (b) any material determination or development regarding such ownership of
any Patent, Trademark or Copyright, its right to register the same, or
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to keep and maintain the same which could have a Material Adverse Effect,
including, but not limited to, the commencement of, or any material development
in, any litigation or proceeding affecting Debtor in the United States Patent
and Trademark Office, United States Copyright Office or any court which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
5. Filings. In no event shall Debtor, either itself or through any
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agent, employee, licensee or designee, file an application for any Patent with
the United States Patent and Trademark Office, unless it timely executes,
delivers and files for record, at its expense, in the United States Patent and
Trademark Office, notice of this security interest in the form attached hereto
as Exhibit "A" or an equivalent thereof ("Notice of Security Interest").
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Debtor, at Debtor's expense, shall execute, deliver and file for record at least
semi-annually (a) Notice of Security Interest in the United States Patent and
Trademark Office and the Library of Congress, as appropriate, to evidence and
perfect this security interest in each Patent, application for Patent,
Trademark, application or registration of Trademark, Patent License and
Trademark License, provided no such Notice of Security Interest in favor of
Secured Party is on file with such Office or Library, and (b) Notice of Security
Interest in the United States Copyright Office to evidence and perfect this
security interest in each Copyright, Copyright License and application or
registration of Copyright, provided no such Notice of Security Interest in favor
of Secured Party is on file with such Office. Each Notice of Security Interest
shall completely and accurately describe such Collateral and shall otherwise
fully comply with the rules of the respective offices in which they are filed.
Upon request of Secured Party, Debtor shall execute and deliver any and all
other agreements, instruments, documents, financing statements or amendments or
supplements thereto, notices of security interest and papers as Secured Party
may reasonably request to evidence and perfect Secured Party's security interest
in any such Patent, Trademark, Copyright or License, and the goodwill and
general intangibles of Debtor relating thereto or represented thereby, and
Debtor hereby constitutes Secured Party its attorney-in-fact, effective upon the
occurrence and during the continuance of an Event of Default to execute and file
such writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable until the Obligations are paid in full.
6. Maintenance. Debtor will take all reasonably necessary steps that are
-----------
consistent with the practice in any proceeding
-14-
before the United States Patent and Trademark Office or United States Copyright
Office, to maintain and pursue each application relating to the Patents,
Trademarks and/or Copyrights (and to obtain the relevant grant or registration)
and to maintain each registration of the Patents, Trademarks and Copyrights to
the extent such application or registration is material to the conduct of such
Debtor's overall business, including, without limitation, appropriate filing of
application for renewal, affidavits of use, affidavits of incontestability and
maintenance fees, and, where appropriate, to initiate opposition, interference
and cancellation proceedings against third parties.
7. Infringement, Misappropriation or Dilution. In the event that any
------------------------------------------
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of Debtor's overall business is believed infringed, misappropriated or
diluted by a third party, Debtor shall if consistent with prudent business
practice, promptly xxx for infringement, misappropriation or dilution and to
recover any and all damages for such infringement, misappropriation or dilution,
and take such other actions as are appropriate under the circumstances to
protect such Collateral.
8. Validity. Debtor has notified the Secured Party in writing (a) of all
--------
prior licenses, conveyances and transfers of which it is aware and which are in
effect, and (b) of all suits pending, or litigation threatened of which the
Debtor has actual knowledge which relate in any way to the Patents, Trademarks,
Copyrights and Licenses that are material to the Debtor's overall business.
J. EVENTS OF DEFAULT. For purposes of this Agreement, the terms
"default" and "event of default" shall mean a "Default" and "Event of Default,"
respectively, as each of those terms are defined in the Loan Agreement.
K. REMEDIES. Upon the occurrence and during the continuance of an event
of default, Secured Party, at its option, shall be entitled to exercise any one
or more of the remedies set forth in the Loan Agreement, any of the other Loan
Documents, any remedy afforded at law or in equity and any of the following
remedies (all of which are cumulative):
1. Declare Obligations Due. Secured Party, at its option, may declare
-----------------------
the Obligations or any part thereof immediately due and payable, without demand,
notice of intention to accelerate, notice of acceleration, notice of nonpayment,
presentment, protest, notice
-15-
of dishonor, or any other notice whatsoever, all of which are hereby waived by
Debtor to the extent permitted by applicable law.
2. Remedies. Secured Party shall have all of the rights and remedies
--------
provided for in this Agreement, in the Loan Agreement and in any of the other
Loan Documents, the rights and remedies in the Uniform Commercial Code of Texas,
or to the extent the laws of states other than Texas would apply, then any
rights and remedies provided by the laws of those jurisdictions, and any and all
of the rights and remedies at law and equity, all of which shall be deemed
cumulative. Without limiting the generality of the foregoing, Debtor agrees
that Secured Party shall have the right to (a) require Debtor to assemble the
Collateral, or any portion thereof, and make it available to Secured Party at a
place designated by Secured Party that is reasonably convenient to both parties,
which Debtor agrees to do; (b) take possession of the Collateral, or any portion
thereof, with or without process of law, and, in this connection, enter any
premises where the Collateral, or any portion thereof, is located to remove
same, to render it unusable, or to dispose of same on such premises; (c) sell,
lease or otherwise dispose of the Collateral, or any portion thereof, by public
or private proceedings in a commercially reasonable manner, for cash or credit,
without assumption of credit risk and Secured Party may conduct one or multiple
sales of such Collateral, or any portion thereof, without limiting, releasing or
affecting the right of Secured Party to conduct other sales with respect to the
remaining Collateral; and/or (d) collect and receipt for, compound, compromise,
and settle, and give releases, discharges and acquittances with respect to, any
and all amounts owned by any person or entity with respect to the Collateral, or
any portion thereof. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Secured Party will send Debtor reasonable notice of the time and place
of any public sale or of the time after which any private sale or other
disposition will be made. Any requirement of reasonable notice to Debtor shall
be met if such notice is mailed, postage prepaid, to Debtor at the address of
Debtor designated in the Loan Agreement, at least ten (10) days before the day
of any public sale or at least ten (10) days before the time after which any
private sale or other disposition will be made.
3. Expenses. Debtor shall be liable for and agrees to pay the reasonable
--------
expenses incurred by Secured Party in enforcing its rights and remedies, in
retaking, holding, testing, repairing, improving, selling, leasing or disposing
of the Collateral, or any portion thereof, or like expenses, including, without
limitation,
-16-
reasonable attorneys' fees and out-of-pocket legal expenses incurred by Secured
Party. These expenses, together with interest thereon from the date incurred
until paid by Debtor at the Default Rate, which Debtor agrees to pay, shall
constitute additional Obligations and shall be secured by and entitled to the
benefits of this Agreement.
4. Proceeds; Surplus; Deficiencies. Proceeds received by Secured Party
-------------------------------
from disposition of the Collateral, or any portion thereof, shall be applied
toward Secured Party's expenses and other Obligations in such order or manner as
Secured Party may elect. Debtor shall be entitled to any surplus if one results
after lawful application of the proceeds. Debtor shall remain liable for any
deficiency.
5. Remedies Cumulative. The rights and remedies of Secured Party are
-------------------
cumulative and the exercise of any one or more of the rights or remedies shall
not be deemed an election of rights or remedies or a waiver of any other right
or remedy. Secured Party may remedy any default without waiving the default
remedied and may waive any default without waiving any other prior or subsequent
default.
-17-
L. OTHER AGREEMENTS.
1. Appointment of Secured Party as Attorney-in-Fact. Debtor irrevocably
------------------------------------------------
appoints Secured Party and any officer or agent thereof, with a full power of
substitution, as its true and lawful attorney-in-fact to take any and all
appropriate action in Secured Party's discretion and to execute any and all
documents and instruments which Secured Party may deem necessary and desirable
to accomplish the purpose of this Agreement, including without limitation, to
bring suit to enforce or defend any of the General Intangibles; to demand,
collect, recover and give receipts with respect to any sums due under any of the
Collateral and to receive, endorse and collect any drafts, instruments or
documents of title with respect to any Collateral, to remove any Collateral from
the property owner, encumbrancer or other person having an interest in the
property where any Collateral is located, and in connection therewith, Secured
Party is authorized to show a copy of this Agreement to such person as evidence
of Debtor's appointment of Secured Party as Debtor's agent and lawful attorney-
in-fact and of Debtor's authorization to allow Secured Party to remove any
collateral from said property; provided, however, that Secured Party will not
exercise any of its rights, except upon the occurrence and during the
continuance of an Event of Default. This power of attorney is a power coupled
with an interest and shall be irrevocable.
2. Savings Clause. The usury savings clause provided in Section 8.6 of
--------------
the Loan Agreement is incorporated by reference into this Agreement and is made
a part hereof for all purposes; it being agreed that all rights and remedies of
Secured Party hereunder are subject to the terms of such usury savings clause.
3. Waivers. Debtor and any maker, endorser, guarantor, surety or other
-------
party liable in any capacity respecting the Obligations hereby waive demand,
notice of intention to accelerate, notice of acceleration, notice of nonpayment,
presentment, protest, notice of dishonor and any other similar notice
whatsoever.
4. Severability. Any provision hereof found to be invalid by courts
------------
having jurisdiction shall be invalid only with respect to such provision (and
then only to the extent necessary to avoid such invalidity). The offending
provision shall be modified to the maximum extent possible to confer upon
Secured Party the benefits intended thereby. Such provision as modified and the
remaining provisions hereof shall be construed and enforced to the same
-18-
effect as if such offending provision (or portion thereof) had not been
contained herein, to the maximum extent possible.
5. Use of Copies. Upon the occurrence and during the continuance of a
-------------
default or an event of default, Secured Party may use and file any carbon,
photographic or other reproduction of this Agreement or any financing statement
signed by Debtor as a financing statement for all purposes, including without
limitation, filing in any state as may be permitted by the provisions of the
Uniform Commercial Code of such state; provided, however, Secured Party agrees
-------- -------
to omit from any copy or reproduction of this Agreement to be filed for record
in any public office the portion of Schedule III which lists and describes
------------
pending applications for letters patent, it being understood, however, that
Secured Party may file, or cause to be filed, separate notices of security
interest with the United States Patent and Trademark Office and attach thereto
descriptions of any pending individual applications for letters patent except
that only one pending application may be referenced in any one notice.
6. Relationship to Other Agreements. This Security Agreement and the
--------------------------------
security interests (and pledges and assignments as applicable) herein granted
are in addition to (and not in substitution, novation or discharge of) any and
all prior or contemporaneous security agreements, security interests, pledges,
assignments, liens, rights, titles or other interests in favor of Secured Party
or assigned to Secured Party by others in connection with the Obligations. All
rights and remedies of Secured Party in all such agreements are cumulative, but
in the event of actual conflict in terms and conditions, the terms and
conditions of this Agreement shall govern and control; provided, however, in the
-------- -------
event of any conflict between the terms and conditions of this Agreement (except
for the terms of paragraph F.3 and paragraph G.4 hereof) and the Loan Agreement,
the terms and conditions of the Loan Agreement shall govern and control.
7. Notices. Any notice or demand given by Secured Party to Debtor in
-------
connection with this Agreement, the Collateral or the Obligations shall be given
in accordance with Section 8.8 of the Loan Agreement.
8. Headings and Gender. Paragraph headings in this Agreement are for
-------------------
convenience only and shall be given no meaning or significance in interpreting
this Agreement. All words used herein shall be construed to be of such gender
or number as the circumstances require.
-19-
9. Amendments. Neither this Agreement nor any of its provisions may be
----------
changed, amended, modified, waived or discharged orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, amendment, modification, waiver or discharge is sought.
10. Continuing Agreement. The security interest (and pledges and
--------------------
assignments as applicable) hereby granted and all of the terms and provisions in
this Agreement shall be deemed a continuing agreement. Upon payment of all
Obligations of Secured Party under the Loan Agreement and the other Loan
Documents (x) this Agreement and the security interest (and pledges and
assignments) created hereby shall terminate and all rights to the Collateral
shall revert to Debtor, and (y) Secured Party will, upon Debtor's request and at
Debtor's expense, (i) return to Debtor such of the Collateral as shall not have
been sold or otherwise disposed of or applied pursuant to the terms hereof, and
(ii) execute and deliver to Debtor such documents as Debtor shall reasonably
request to evidence such termination.
11. Binding Effect. The provisions of this Security Agreement shall be
--------------
binding upon the successors and assigns of Debtor and the rights, powers and
remedies of Secured Party hereunder shall inure to the benefit of the successors
and assigns of Secured Party; provided, however, nothing herein contained shall
-------- -------
permit Debtor to assign, transfer or convey any or all of the Collateral in
violation of the terms of this Agreement or the Loan Agreement.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT (A)
PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE PERFECTION, FORECLOSURE
OF LIENS AND ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST THE COLLATERAL ARE
GOVERNED BY THE LAWS OF ANY APPLICABLE JURISDICTION OTHER THAN THE STATE OF
TEXAS, AND (B) THAT THE LAWS OF THE UNITED STATES OF AMERICA INCLUDING, WITHOUT
LIMITATION, THE NATIONAL BANK ACT, AND ANY RULES, REGULATIONS OR ORDERS ISSUED
OR PROMULGATED UNDER SUCH LAWS APPLICABLE TO THE AFFAIRS AND TRANSACTIONS
ENTERED INTO BY SECURED PARTY AND THE BANKS, OTHERWISE PREEMPT TEXAS OR OTHER
STATE LAW, IN WHICH EVENT SUCH FEDERAL LAW SHALL CONTROL.
-20-
EXECUTED as of the date provided hereinabove.
VISUAL NUMERICS, INC. (EUROPE)
By:/s/ Xxxxxxx X. Xxxxx
-------------------------------
Name:
Title:
- DEBTOR -
-00-
XXX XXXXX XX XXXXX (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was acknowledged before me on the ______ day of February,
1994, by _____________________, _________________, of VISUAL NUMERICS, INC.
(Europe), a Texas corporation, on behalf of said corporation.
_____________________________________
Notary Public in and for
the State of Texas
__________________________________________________________
Commission Expiration Printed Name of Notary
Exhibit "A" - Form of Notice of Security
Interest in Intellectual Property
-22-
EXHIBIT "A"
NOTICE OF SECURITY INTEREST
IN INTELLECTUAL PROPERTY
------------------------
This Notice of Security Interest in Intellectual Property is made as of
February __, 1994, by VISUAL NUMERICS, INC. (EUROPE) (the "Debtor"), a Texas
corporation, with its principal place of business located at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000, with reference to the following
facts:
WHEREAS, the Debtor entered into a First Amendment to Second Restated and
Amended Loan Agreement among the Debtor, IMSL, Inc. and First Interstate Bank of
Texas, N.A. (the "Secured Party") dated as of even date herewith (as the same
may be further amended and in effect from time to time, the "Loan Agreement");
WHEREAS, the Debtor has entered into a Commercial Security Agreement dated
as of even date herewith (as so amended and as the same may be further amended
and in effect from time to time, the "Security Agreement");
WHEREAS, the Debtor is the owner of or has certain rights in patents,
patent applications, trademark applications and registrations, copyrights,
copyright licenses, copyright applications and registrations and such other
intellectual property described in the Security Agreement (the "Assets");
WHEREAS, the Debtor has granted the Secured Party a continuing security
interest in and lien on the Assets on the terms and conditions set forth in the
Security Agreement;
WHEREAS, Debtor has agreed to record, from time to time, evidence of
Secured Party's security interest in the Assets, or any portion thereof, in the
United States Patent and Trademark Office, the Library of Congress and the
United States Copyright Office, appropriately;
WHEREAS, in compliance with such agreement, Debtor desires to record this
Notice as evidence of Secured Party's security interest in the intellectual
property more particularly described on Exhibit "A" attached hereto
-----------
(collectively, the "Subject Property").
NOW, THEREFORE, for valuable consideration and pursuant to the terms and
conditions set forth in the Security Agreement, NOTICE IS HEREBY GIVEN THAT:
A-1
Pursuant to the Security Agreement, the Debtor has granted to the Secured
Party a continuing security interest in and lien on the Subject Property or on
the rights in that Subject Property now owned and hereafter acquired by the
Debtor.
IN WITNESS WHEREOF, the Debtor has caused this Notice of Security Interest
in Intellectual Property to be executed by the undersigned, duly authorized
representative as of the date noted below.
VISUAL NUMERICS, INC. (EUROPE)
By________________________________
Name:
Title:
THE STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was acknowledged before me on the _____ day of
February, 1994, by ______________________________________________,
______________________________ of VISUAL NUMERICS, INC. (EUROPE), a Texas
corporation, on behalf of said corporation.
_____________________________________
Notary Public in and for
the State of Texas
__________________________________________________________
Commission Expiration Printed Name of Notary
Exhibit "A" - Description of Subject Property
A-2
EXHIBIT "A"
-----------
DESCRIPTION OF SUBJECT PROPERTY
-------------------------------
All of the following (the "Collateral") now or hereafter owned by Debtor
(as that term is defined in the Notice to which this exhibit is attached)
("Debtor"): (i) Copyrights, including, without limitation, those listed on
Schedule I hereto, as it may be amended from time to time, (ii) Licenses,
----------
including, without limitation, those listed on Schedule II hereto, as it may be
-----------
amended from time to time, (iii) General Intangibles, (iv) Patents, including,
without limitation, those listed on Schedule III hereto, as it may be amended
------------
from time to time, (v) Trademarks, including, without limitation, those listed
on Schedule IV hereto, as it may be amended from time to time, (vi) Trade
-----------
Secrets, including, without limitation, those relating to the products listed on
Schedule V hereto, as it may be amended from time to time, and (vii) all
----------
Proceeds (including, without limitation, insurance proceeds) of, and additions,
improvements and accessions to, and books and records describing or used in
connection with, any and all of the foregoing property.
Copyrights. All of the following now or hereafter owned by Debtor:
----------
(i) all copyright in any original work of authorship fixed in any tangible
medium of expression, now known or later developed, (ii) all registrations
and applications for registration of any such copyright in the United
States or any other country or political subdivision including, without
limitation, registrations, recordings, supplemental registrations and
applications in the United States Copyright Office, and (iii) the right to
xxx for past, present and future infringement of the foregoing.
Copyright License. Any written agreement executed or to be executed
-----------------
by Debtor granting any right to any third party under any Copyright now or
hereafter owned by Debtor, or granting any right to Debtor under any
Copyright now or hereafter owned by any third party.
General Intangibles. All intangible intellectual property of Debtor
-------------------
of any kind or nature now owned or hereafter acquired by Debtor, including
without limitation, intellectual property rights in inventions, designs,
Patents, Copyrights, Licenses, Trademarks and
A-3
associated goodwill, Trade Secrets, confidential or proprietary technical
and business information, know-how, improvements, technical developments,
know-how or other data or information, software, databases and related
documentation, registrations, franchises, and all other intellectual
property rights not otherwise described above.
License. Any Patent License, Trademark License, Copyright License or
-------
other intellectual property license as to which Debtor is a party.
Patent License. Any written agreement executed or to be executed by
--------------
Debtor granting to any third party any right to practice any invention
disclosed and claimed in a Patent, now or hereafter owned by Debtor, or
granting to Debtor any right to practice any invention disclosed and
claimed in a Patent, now or hereafter owned by any third party.
Patents. All of the following now or hereafter owned by Debtor: (i)
-------
all extant letters patent of the United States or any other country or
political subdivision, all invention registrations and recordings thereof
in the United States or any other country or political subdivision, and all
applications for letters patent of the United States or any other country
or political subdivision, including, without limitation, invention
registrations, recordings and applications in the United States Patent and
Trademark Office or any other country or political subdivision, (ii) all
reissues, continuations, divisions, continuations-in-part or extensions
thereof, (iii) all inventions disclosed and claimed therein, including the
right to make, use and or sell the inventions disclosed and claimed
therein, and (iv) the right to xxx for past, present and future
infringement of the foregoing.
Proceeds. Any consideration received by Debtor from the sale,
--------
exchange, lease or other disposition of any asset or property which
constitutes Collateral, any value received as a consequence of the
possession of any Collateral and any payment received from any insurer or
other person or entity as a result of the destruction, loss, theft or other
involuntary conversion of whatever nature of any asset or property which
constitutes Collateral, any claim of Debtor which constitutes
A-4
Collateral, any claim of Debtor against third parties (i) for past, present
or future infringement of any Patent or Patent License, or (ii) for past,
present or future infringement or dilution of any Trademark or Trademark
License or for injury to the goodwill associated with any Trademark or
Trademark licensed under any Trademark License, or (iii) for past, present
or future infringement of any Copyright or Copyright License, and any and
all other amounts from time to time to time paid or payable under or in
connection with any of the Collateral.
Trademark License. Any written agreement executed or to be executed
-----------------
by Debtor granting to any third party any right to use any Trademark now or
hereafter owned by Debtor, or granting to Debtor any right to use any
Trademark now or hereafter owned by any third party.
Trademarks. All of the following now or hereafter owned by Debtor:
----------
(i) all trademarks, service marks, trade names, corporate names, company
names, indicia, business source identifiers, business names, fictitious
business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature all of the type
for which exclusive rights may be provided under the laws of the United
States, any State within the United States or any other country or
political subdivision, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office, any State of
the United States or any other country or political subdivision, (ii) all
goodwill associated therewith arising in or relating to the ordinary course
of business of Debtor, (iii) all extensions or renewals thereof, and (iv)
the right to xxx for past, present and future infringement of the
foregoing.
Trade Secrets. All trade secrets and other confidential or
-------------
proprietary technical and business information, now or hereafter owned by
Debtor, including, without limitation, manufacturing processes, formulas,
compositions, data and other technical information and know-how all of the
type for which exclusive rights may be provided under the laws of the
United
A-5
States, any State within the United States or any other country or
political subdivision, relating to the products listed on Schedule V
----------
hereto, as it may be amended from time to time, and any improvements
thereon or changes thereto.
A-6
SCHEDULE I
A. Copyright Registrations
-----------------------
Date of
Copyright Registration No. Registration
--------- ---------------- ------------
B. Application for Copyright Registration
--------------------------------------
Copyright Application No. Filing Date
--------- ---------------- ------------
A-7
SCHEDULE II
A-8
SCHEDULE III
A. Patents
-------
Patent No. Issue Date Inventor(s) Title
---------- ---------- ----------- -----
B. Patent Applications
-------------------
Application Serial No. Filing Date Inventor(s) Title
---------------------- ----------- ----------- -----
A-9
SCHEDULE IV
A-10
SCHEDULE V
Products
--------
A-11
SCHEDULE VI
LOCATIONS
---------
A-12
