INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this “Agreement”),
dated
as of August 17, 2007, is made by PROLINK SOLUTIONS, LLC, a Delaware limited
liability company (“ProLink
Solutions”),
and
PROLINK HOLDINGS CORP., a Delaware corporation (“ProLink
Holdings”
together with ProLink Solutions, each a “Grantor”
and
collectively, the “Grantors”),
in
favor of CALLIOPE CAPITAL CORPORATION (“Calliope”).
WHEREAS,
pursuant to that certain Security Agreement dated as of the date hereof by
and
among Grantors, other subsidiaries of the Grantors which may hereafter become
a
party thereto and Calliope (as from time to time amended, restated, supplemented
and/or otherwise modified, the “Security
Agreement”),
Calliope has agreed to provide financial accommodations to the
Grantors;
WHEREAS,
Calliope is willing to enter into the Security Agreement, but only upon the
condition, among others, that the Grantors shall have executed and delivered
to
Calliope this Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantors hereby agrees as
follows:
Section
1 DEFINED
TERMS.
(a) When
used
herein the following terms shall have the following meanings:
“Copyrights”
means
all works capable of copyright under the laws of the United States, any other
country or any political subdivision thereof, whether registered or unregistered
and whether published or unpublished, all registrations and recordings thereof,
and all applications in connection therewith, including all registrations,
recordings and applications in the United States Copyright Office, and the
right
to obtain all renewals of any of the foregoing.
“Copyright
Licenses”
means
all written agreements relating to any Copyright, including agreements providing
the grant of rights to manufacture, distribute, exploit and sell materials
derived from any Copyright, and whether any Grantor is named as licensor,
licensee or otherwise.
“General
Intangibles”
shall
have the meaning provided thereto in Section 9-102 of the UCC, as amended,
restated or otherwise modified from time to time.
“IP
Licenses”
shall
mean Copyright Licenses, Patent Licenses and Trademark Licenses.
“Obligations”
has
the
meaning given to the term in the Security Agreement.
“Patents”
means
(a) all letters patent of the United States, any other country or any political
subdivision thereof, and all reissues and extensions of such letters patent,
(b)
all applications for letters patent of the United States or any other county
and
all divisions, continuations and continuations-in-part thereof, and (c) all
rights to obtain any reissues or extensions of the foregoing.
“Patent
Licenses”
means
all agreements, whether written or oral, relating to any Patent, including
agreements providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered in whole or in part by a Patent,
and whether any Grantor is named as licensor, licensee or
otherwise.
“Trademarks”
means
(a) all trademarks, trade names, corporate names, business names, fictitious
business names, trade styles, services marks, logos, domain names and other
source or business identifiers, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or political subdivision
thereof, or otherwise, and all common-law rights thereto, and (b) the right
to
obtain all renewals thereof.
“Trademark
Licenses”
means,
collectively, each agreement, whether written or oral, relating to any
Trademark, including agreements providing for the grant by or to any Grantor
of
any right to use any Trademark, and whether any Grantor is named as licensor,
licensee or otherwise.
“UCC”
has
the
meaning given to the term in the Security Agreement.
(b) All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Security Agreement.
Section
2 GRANT
OF SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL.
To
secure the complete and timely payment of all the Obligations of the Grantors
now or hereafter existing from time to time, each Grantor hereby grants to
Calliope a continuing first priority security interest in all of such Grantor’s
right, title and interest in, to and under the following, whether presently
existing or hereafter created or acquired (collectively, the “Collateral”):
(a) all
of
its Patents and Patent Licenses to which it is a party including those referred
to on Schedule
I
hereto;
(b) all
of
its Trademarks and Trademark Licenses to which it is a party including those
referred to on Schedule
II
hereto;
(c) all
of
its Copyrights and Copyright Licenses to which it is a party including those
referred to on Schedule
III
hereto;
(d) all
renewals, reissues, continuations or extensions of the foregoing;
(e) all
goodwill of the business connected with the use of, and symbolized by, each
Patent, each Patent License, each Trademark, each Trademark License, each
Copyright and each Copyright License; and
2
(f) all
products and proceeds of the foregoing, including, without limitation, any
claim
by such Grantor against third parties for past, present or future (i)
infringement or dilution of any Patent or Patent licensed under any Patent
License, (ii) injury to the goodwill associated with any Patent or any Patent
licensed under any Patent License, (iii) infringement or dilution of any
Trademark or Trademark licensed under any Trademark License, (iv) injury to
the
goodwill associated with any Trademark or any Trademark licensed under any
Trademark License, (v) infringement or dilution of any Copyright or Copyright
licensed under any Copyright License, and (vi) injury to the goodwill associated
with any Copyright or any Copyright licensed under any Copyright
License.
Section
3 REPRESENTATIONS
AND WARRANTIES.
Each
Grantor represents and warrants that:
(a) It
does
not have any interest in, or title to, any Patent, Trademark, Copyright or
any
IP License, except as set forth in Schedule
I,
Schedule
II
and
Schedule
III,
respectively, hereto.
(b) Except
as
set forth in Schedule
I,
Schedule
II
and
Schedule
III,
it is
either the sole owner of the Patents, Trademarks and Copyrights, or has the
sole
right to use the Patents, Trademarks and Copyrights, free and clear of all
liens
or other encumbrances.
(c) Each
of
the Patents, Trademarks and Copyrights is valid and enforceable, and there
is no
claim that the use of any of them violates the rights of any third
party.
(d) The
IP
Licenses are in full force and effect, and no Grantor is in breach or default
under any of the IP Licenses.
(e) This
Agreement is effective to create a valid and continuing first priority lien
on
and perfected security interests in favor of Calliope in all of each Grantor’s
Patents, Trademarks, Copyrights and IP Licenses and such perfected security
interests are enforceable as such as against any and all creditors of, and
purchasers from, such Grantor.
(f) Upon
the
filing of (i) appropriate financing statements, all action necessary or
desirable to protect and perfect Calliope’s first priority lien on each
Grantor’s Patents, Trademarks and IP Licenses shall have been duly taken and
(ii) the security interest in the Copyrights with the Copyright Office, all
action necessary or desirable to protect and perfect Calliope’s first priority
lien on each Grantor’s Copyrights shall have been duly taken.
Section
4 COVENANTS.
Each
Grantor covenants and agrees with Calliope that from and after the date of
this
Agreement:
(a) It
shall
notify Calliope immediately if it knows or has reason to know that any
application or registration relating to any Patent, Trademark or Copyright
(now
or hereafter existing) may become abandoned or dedicated, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent
and
Trademark Office, the United States Copyright Office or any court) regarding
any
Grantor’s ownership of or right to use any Patent, Trademark or Copyright, its
right to register the same, or to keep and maintain the same.
3
(b) In
no
event shall any Grantor, either directly or through any agent, employee,
licensee or designee, file an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office,
the
United States Copyright Office or any similar office or agency without giving
Calliope prior written notice thereof, and, upon request of Calliope, each
Grantor shall execute and deliver a supplement hereto (in form and substance
satisfactory to Calliope) to evidence Calliope’s lien on such Patent, Trademark
or Copyright, and such Grantor’s General Intangibles relating thereto or
represented thereby.
(c) It
shall
take all actions necessary or requested by Calliope to continue to use all
Trademarks (and all trademarks owned by a third party and subject to a Trademark
License) and maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of the Patents or
Trademarks (now or hereafter existing), including the filing of applications
for
renewal, affidavits of use, affidavits of noncontestability and opposition
and
interference and cancellation proceedings.
(d) In
the
event that any of the Collateral is infringed upon, misappropriated or diluted
by a third party, the Grantors shall notify Calliope promptly after any Grantor
learns thereof. Each Grantor shall, unless it shall reasonably determine that
such Collateral is in no way material to the conduct of its business or
operations, promptly xxx for infringement, misappropriation or dilution and
to
recover any and all damages for such infringement, misappropriation or dilution,
and shall take such other actions as Calliope shall deem appropriate under
the
circumstances to protect such Collateral.
Section
5 SECURITY
AGREEMENT.
The
security interests granted pursuant to this Agreement are granted in conjunction
with the security interests granted to Calliope by each Grantor pursuant to
the
Security Agreement. The Grantors and Calliope hereby acknowledge and affirm
that
the rights and remedies of Calliope with respect to the security interest in
the
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
Section
6 REINSTATEMENT.
This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against any Grantor for liquidation or
reorganization, should any Grantor become insolvent or make an assignment for
the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of such Grantor’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant
to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or
returned by any obligee of the Obligations, whether as a “voidable preference,”
“fraudulent conveyance,” or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
4
Section
7 EXECUTION
OF POWER OF ATTORNEY.
Concurrently with the execution and delivery hereof, each Grantor shall execute
and deliver to Calliope, in the form of Exhibit
A
hereto,
ten (10) originals of a Power of Attorney for the implementation of the
assignment, sale or other disposal of the Collateral pursuant to Calliope’s
rights and remedies under the Security Agreement.
Section
8 INDEMNIFICATION.
Each
Grantor assumes all responsibility and liability arising from the use of the
Patents, Trademarks and/or Copyrights and each Grantor hereby indemnifies and
holds Calliope harmless from and against any claim, suit, loss, damage or
expense (including reasonable attorneys’ fees) arising out of any Grantor’s
operations of its business from the use of the Patents, Trademarks and/or
Copyrights. In any suit, proceeding or action brought by Calliope under any
IP
License for any sum owing thereunder, or to enforce any provisions of such
IP
License, each Grantor will indemnify and keep Calliope harmless from and against
all expense, loss or damage suffered by reason of any defense, set off,
counterclaim, recoupment or reduction or liability whatsoever of the obligee
thereunder, arising out of a breach by any Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to or in favor of such obligee or its successors from any Grantor, and
all
such obligations of such Grantor shall be and remain enforceable against and
only against such Grantor and shall not be enforceable against Calliope. Grantor
shall have no obligations under this Section 8 in the event any claim, suit,
loss, damage or expense arises solely from the gross negligence or willful
misconduct of Calliope.
Section
9 NOTICES.
Whenever it is provided herein that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties by any other party, or whenever any of the parties
desires to give and serve upon any other party any communication with respect
to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be given in
the
manner, and deemed received, as provided for in the Security
Agreement.
Section
10 TERMINATION
OF THIS AGREEMENT.
Subject
to Section
6
hereof,
this Agreement shall terminate upon indefeasible payment in full in cash of
all
Obligations and irrevocable termination of the Security Agreement.
[Signature
Page to Follow]
5
IN
WITNESS WHEREOF, each Grantor has caused this Intellectual Property Security
Agreement to be executed and delivered by its duly authorized officer as of
the
date first set forth above.
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PROLINK
SOLUTIONS, LLC
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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ACCEPTED
AND ACKNOWLEDGED BY:
CALLIOPE
CAPITAL CORPORATION
| By: |
Laurus
Capital Management, LLC,
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as
investment manager
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By:
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Name:
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Title:
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SIGNATURE
PAGE TO
INTELLECTUAL
PROPERTY SECURITY
AGREEMENT
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STATE
OF ____________
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)
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)
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ss:
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COUNTY
OF __________
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)
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On
the
____ day of August, 2007, before me personally came _____________________ to
me
known, who being by me duly sworn, did depose and say s/he is the ______________
of ProLink Solutions, LLC, the limited liability company described in and which
executed the foregoing instrument; and that s/he signed her/his name thereto
pursuant to his/her authority under the organizational documents of said
company.
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Notary
Public
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My
Commission Expires:
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STATE
OF ____________
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)
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)
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ss:
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COUNTY
OF __________
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)
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On
the
____ day of August, 2007, before me personally came _____________________ to
me
known, who being by me duly sworn, did depose and say s/he is the ______________
of ProLink Holdings Corp., the corporation described in and which executed
the
foregoing instrument; and that s/he signed her/his name thereto pursuant to
his/her authority under the organizational documents of said
corporation.
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Notary
Public
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My
Commission Expires:
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SIGNATURE
PAGE TO
INTELLECTUAL
PROPERTY SECURITY
AGREEMENT
EXHIBIT
A
SPECIAL
POWER OF ATTORNEY
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STATE
OF NEW YORK
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)
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)
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ss:
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COUNTY
OF NEW YORK
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)
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KNOW
ALL
MEN BY THESE PRESENTS, that ProLink Solutions, LLC, a limited liability company
formed under the laws of Delaware, with its principal office at 000 X. Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000 (“Company”),
pursuant to an Intellectual Property Security Agreement dated as of August
___,
2007 (as amended, modified, restated and/or supplemented from time to time,
the
“Agreement”),
hereby appoints and constitutes Calliope Capital Corporation, with offices
at
c/o Laurus Capital Management, LLC, 000 Xxxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx,
Xxx
Xxxx 00000 (“Calliope”), its true and lawful attorney, with full power of
substitution, and with full power and authority to perform the following acts
on
behalf of Company:
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I.
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Assigning,
selling or otherwise disposing of all right, title and interest of
Company
in and to the Patents and Patent Licenses listed on Schedule
I
of
the Agreement, the Patents and Patent Licenses which are added to
the same
subsequent hereto, and all registrations and recordings thereof,
and all
pending applications therefor, recording, registering and filing
of, or
accomplishing any other formality with respect to the foregoing,
and
executing and delivering any and all agreements, documents, instruments
of
assignment or other papers necessary or advisable to effect such
purpose;
and
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II.
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Executing
any and all documents, statements, certificates or other papers necessary
or advisable in order to obtain the purposes described above as Calliope
may in its sole discretion
determine.
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This
power of attorney is made pursuant to the Agreement and may not be revoked
until
the payment in full of all Obligations (as defined in the Agreement) and the
irrevocable termination of the Agreement.
Dated: August
___, 2007
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PROLINK
SOLUTIONS, LLC
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By:
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Name:
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Title:
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POWER
OF
ATTORNEY - PATENTS
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STATE
OF ____________
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)
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)
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ss:
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COUNTY
OF __________
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)
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On
the
____ day of August, 2007, before me personally came _______________________
to
me known, who being by me duly sworn, did depose and say s/he is the
______________ of ProLink Solutions, LLC, the limited liability company
described in and which executed the foregoing instrument; and that s/he signed
her/his name thereto in accordance with his/her authority as granted by the
organizational documents of such company.
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Notary
Public
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My
Commission Expires:
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POWER
OF
ATTORNEY - PATENTS
SCHEDULE
I
| I. |
PATENT
REGISTRATIONS
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Owner
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Title
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Patent
#
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Issue
Date
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ProLink
Solutions, LLC
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Method
and apparatus for continuing play with cart-based navigation/information
system display
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7031947
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4/18/06
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ProLink
Solutions, LLC
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Golf
course yardage and information system with zone detection
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6525690
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2/25/03
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ProLink
Solutions, LLC
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Display
monitor for golf cart yardage and information system
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6470242
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10/22/02
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ProLink
Solutions, LLC
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Magnetic
wheel sensor for vehicle navigation system
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6446005
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9/3/02
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ProLink
Solutions, LLC
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Display
monitor for golf cart yardage and information system
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6236940
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5/22/01
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ProLink
Solutions, LLC
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Golf
course yardage and information system with zone detection
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6236360
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5/22/01
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ProLink
Solutions, LLC
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Map-matching
golf navigation system
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6024655
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2/15/00
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ProLink
Solutions, LLC
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Golf
course yardage and information system
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5878369
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3/2/99
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ProLink
Solutions, LLC
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Remote
golf ball locator
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5873797
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2/23/99
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ProLink
Solutions, LLC
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Golf
course yardage and information system
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5689431
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11/18/97
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ProLink
Solutions, LLC
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Player
positioning and distance finding system
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5438518
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8/1/95
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ProLink
Solutions, LLC
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Golf
cart roof
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D394637
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5/26/98
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| II. |
PATENT
APPLICATIONS
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Owner
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Title
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Application
Number
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Date
Filed
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ProLink
Solutions, LLC
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Allocating
Revenue Derived from Use of GPS-equipped Golf Carts
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11/406,833
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| III. |
PATENT
LICENSES
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Grantor
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Patents
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Reg.
No.
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Date
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Exclusivity
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Type
of
License
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|||||
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Optimal
Golf Solutions, Inc.
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United
States
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5,364,093
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11/15/94
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None
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||||||
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GPS
Industries, Inc.
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Austria
Eire
France
Great
Britain
Italy
Netherlands
Portugal
Sweden
Switzerland
Germany
Spain
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EP
617794
EP
617794
EP
617794
EP
617794
EP
617794
EP
617794
EP
617794
EP
617794
EP
617794
69228703.5
ES2132211
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12/16/2011
For
all patents
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None
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