EXHIBIT 10.29
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of the 24th day of July, 2001 made by
Infowave Software, Inc. (the "Borrower"), a corporation incorporated under the
laws of British Columbia and having its chief executive office at Xxxxx 000,
0000 Xxxxxxxx Xxxxxxx, Xxxxxxx, XX, X0X 0X0 (facsimile (000) 000-0000), to and
in favour of Xxxxxx Xxxx (the "Lender"), having an office at Xxxxx 000, 0000
Xxxxxxxx Xxxxxxx, Xxxxxxx, XX, X0X 0X0 (facsimile (000) 000-0000).
WHEREAS:
A. The Credit Agreement was entered into by the Borrower and the Lender, dated
as of the date hereof and the Lender has agreed to advance certain credit
facilities on the terms and conditions set out in the Credit Agreement.
B. It is a condition of the advance of the said credit facilities by the Lender
to the Borrower that the Borrower execute and deliver this Security Agreement to
the Lender as collateral security for the payment and performance of the
Obligations.
NOW THEREFORE WITNESSETH that, in consideration of these premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Borrower, the Borrower covenants, declares and agrees as
follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Terms Incorporated for Reference. All capitalized terms used
but not otherwise defined in this Security Agreement shall have the meanings
attributed to them in the Credit Agreement. Terms defined in the British
Columbia Personal Property Security Act (as amended from time to time, the
"PPSA") and used but not otherwise defined in this Security Agreement shall have
the same meaning herein.
Section 1.2 Defined Terms. In this Security Agreement, unless there is
something in the subject matter or context inconsistent therewith, the following
words and terms shall have the following meanings:
"Borrower" means Infowave Software, Inc., and its successors and
permitted assigns;
"Collateral" has the meaning set forth in Section 2.1;
"Credit Agreement" means the loan agreement dated as of the date
hereof between the Lender and the Borrower (as such agreement may at any time or
from time to time be amended, supplemented or otherwise modified or restated);
"Intellectual Property" means the Collateral, other than any proceeds
or payments;
"Lender" means Xxxxxx Xxxx and his heirs, executors, administrators,
successors and assigns;
"Licenses" means any and all licenses, sub-licenses, leases,
sub-leases, agreements to license or sub-license or lease or sub-lease, rights
of use or control (whether as licensee or licensor or lessee or lessor and
whether exclusive or non-exclusive) in respect of or in connection with the
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acquisition, ownership or use of Intellectual Property, together in each case
with any amendments, supplements, modifications, extensions, renewals or
replacements thereof, and "License" means any one of them;
"Lien" includes any mortgage, pledge, lien, hypothecation, security
interest or other encumbrance or charge (whether fixed, floating or otherwise)
or title retention, any right of set-off (arising otherwise than by operation of
law) and any deposit of moneys under any agreement or arrangement whereby such
moneys may be withdrawn only upon fulfillment of any conditions as to the
discharge of any other indebtedness or other obligation to any creditor, or any
right of or arrangement of any kind with any creditor to have its claims
satisfied prior to other creditors with or from the proceeds of any properties,
assets or revenues of any kind now owned or hereafter acquired;
"Obligations" has the meaning set forth in Section 2.2(1);
"Official Body" means any government or political subdivision or any
agency, authority, bureau, central bank, monetary authority, commission,
department or instrumentality thereof, or any court, tribunal, grand jury or
arbitrator, whether foreign or domestic;
"Patents" has the meaning set forth in Section 2.1(b);
"Permitted Encumbrance" has the meaning set forth in the Credit
Agreement;
"PPSA" has the meaning set forth in Section 1.1;
"Royalties" means all royalties, rents, issues, proceeds, profits or
other fees (including, without limitation, license fees), charges, assessments
or penalties payable to the Borrower or due or accruing due to the Borrower
pursuant to any License;
"Security Agreement" means this intellectual property security
agreement, as amended, supplemented, or otherwise modified or restated;
"Security Interest" has the meaning set forth in Section 2.2.(1); and
"Trade-marks" has the meaning set forth in Section 2.1(a).
ARTICLE 2
SECURITY
Section 2.1 Grant of Security. Subject to Section 2.4, the Borrower hereby
grants to the Lender a security interest in all present and after-acquired
intellectual or industrial property of the Borrower, including without
limitation all of the Borrower's right, title and interest throughout the world
in and to the following property, which is currently or in the future may be
owned, created, acquired, or used (whether pursuant to a License or otherwise)
by the Borrower, in whole or in part (collectively, the "Collateral", and all
references thereto herein include any part thereof):
(a) all trade-marks and rights and interests which are capable of being
protected as trade-marks (including service marks, certification
marks, designs, logos, indicia, trade names, corporate names, company
names, business names, fictitious business names, trade styles, and
other source or business identifiers, and applications pertaining
thereto), and including the trade names, trade-marks, trade-xxxx
registrations and pending applications
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listed on Schedule A attached hereto, as the same may be updated
hereafter from time to time, and rights to apply for, register, renew
and extend such trade-marks and trade-xxxx rights, and all Licenses in
respect of any of the above (the "Trade-marks");
(b) all of the Borrower's right, title and interest in and to all
patentable and unpatentable inventions, invention disclosures,
patents, patent applications, industrial designs and industrial design
applications, including the applications and registrations listed on
Schedule B attached hereto, as the same may be updated hereafter from
time to time, all reissues, divisions renewals, extensions and
continuations in part, foreign filing rights, and rights to register,
renew and extend such rights, and to request reexamination and/or
reissue of the patents, and all Licenses in respect of any of the
above (the "Patents");
(c) all copyrights, copyright applications, copyright registrations,
know-how, trade secrets, technical processes, recipes and formulae,
and Licenses in respect of any of the above (the "Copyrights");
(d) the right (without obligation) to xxx or bring opposition, expungement
or cancellation proceedings in the name of the Borrower or in the name
of the Lender for past, present and future infringements or violations
of any of the intellectual property listed in paragraphs (a) to (c)
above;
(e) all general intangibles relating to the foregoing, including all
associated goodwill;
(f) all rights in databases and data collections and all rights therein
throughout the world;
(g) all rights in computer software including all source code, object
code, firmware, development tools, files, records and data and all
documentation relating to the foregoing;
(h) all World Wide Web addresses, sites and domain names;
(i) all proceeds of and rights associated with any and all of the
foregoing (including, without limitation, Royalties and claims by the
Borrower against third parties for past, present or future
infringement of the Intellectual Property, including those items
listed in the Schedules to this Security Agreement, or for injury to
the goodwill associated with the use of any of the Trade-marks or for
breach or enforcement of any License, Royalties and proceeds of
infringement suits) and, to the extent not otherwise included, all
payments under insurance, or any indemnity, warranty, or guarantee,
payable by reason of loss or damage to or otherwise with respect to
the Collateral;
(j) all contracts, licenses, sublicenses and agreements with respect to,
relating to or ancillary to any of the foregoing; and
(k) any similar, corresponding, or equivalent rights to any of the
foregoing throughout the world.
Section 2.2 Obligations Secured. (1) The security interests granted hereby
(collectively, the "Security Interest") shall be continuing collateral security
for the due payment and performance of all debts, liabilities and obligations,
present or future, direct or indirect, absolute or contingent, matured or
unmatured, joint or several or joint and several, at any time due or accruing
due by the Borrower to the Lender under the Credit Agreement and the Security
Instruments or otherwise howsoever incurred,
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whether incurred as principal or surety (collectively, and together with the
expenses, costs and charges set out in Section 2.2(2), the "Obligations").
(2) All reasonable expenses, costs and charges incurred by or on behalf of
the Lender and the Lenders in connection with the preparation and issuance of
this Security Agreement, the perfection, preservation and protection of the
Security Interest and the enforcement of the Lender's rights and remedies
hereunder, including the realization of the Collateral, and including all legal
fees (on a solicitor and solicitor's own client basis) and disbursements, court
costs, receiver's or Lender's remuneration and other expenses of taking
possession of, repairing, protecting, insuring, preparing for disposition,
realizing, collecting, selling, licensing, transferring, delivering or obtaining
payment of the Collateral, shall be added to and form a part of the Obligations.
Section 2.3 Attachment. (1) The Borrower and the Lender hereby acknowledge
that (i) value has been given; (ii) the Borrower has rights in the Collateral
(other than after-acquired Collateral); and (iii) the Borrower and the Lender
have not agreed to postpone the time of attachment of the Security Interest.
(2) The Borrower agrees to promptly inform the Lender in writing of the
acquisition by the Borrower of any rights in or to any registrable or
unregistrable intellectual property which is not adequately described herein or
of the entitlement to the benefit of any application or registration therefore,
and the Borrower agrees to execute and deliver at its own expense from time to
time amendments to this Security Agreement or the schedules hereto or additional
security agreements or schedules as may be required by the Lender in order that
the Security Interest shall attach to such intellectual property.
Section 2.4 Scope of Security Interest. (1) Nothing in Section 2.1 shall be
construed as a grant of a security interest by the Borrower in any Intellectual
Property licensed to the Borrower as licensee or any License in which, as a
matter of law or by its terms, the Borrower may not grant a security interest
without the consent or authorization of the licensor unless such consent or
authorization has been obtained. To the extent that the creation of the Security
Interest would constitute a breach or permit the acceleration of any License to
which the Borrower is a party, the Security Interest shall not attach to the
Intellectual Property licensed thereby or to the License, but the Borrower shall
hold its interest therein in trust for the Lender and shall use its best efforts
to obtain the consent of the other party thereto. Upon the Borrower obtaining
the consent of such other party, the Security Interest shall be deemed to have
automatically attached to such Intellectual Property and License.
(2) Until the Security Interest shall have become enforceable with respect
to any particular item of Intellectual Property, the grant of the Security
Interest in that Intellectual Property shall not affect in any way the
Borrower's rights to commercially exploit that Intellectual Property, to defend
that Intellectual Property, to enforce the Borrower's rights therein or with
respect thereto against third parties in any court or to claim and be entitled
to receive any damages with respect to any infringement or violation thereof.
(3) The Security Interest shall not extend or apply to the last day of any
term of years reserved by a License, but the Borrower shall stand possessed of
any such reversion in trust to assign and dispose thereof as the Lender may
direct.
(4) The Lender will not be deemed in any manner to have assumed any
obligation of the Borrower under any License nor shall the Lender be liable to
any Official Body or license counterparties by reason of any default by any
person under any License or other contract. The Borrower agrees to indemnify and
hold the Lender harmless of and from all liability, loss, damage or expense
(including but
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not limited to actual fees and costs charged to the Lender by his lawyers) which
he may or might incur by reason of any claim or demand against him based on his
alleged assumption of the Borrower's duty and obligation to perform and
discharge the terms, covenants and agreements in any License.
(5) It is expressly acknowledged by the Borrower that, notwithstanding any
right or authority granted to the Borrower herein or in any other agreement or
instrument to deal with the Collateral, it is the intention of the Borrower and
the Lender that (i) the Security Interest shall operate and be construed as a
fixed and specific charge of all Collateral in respect of which the Borrower
presently has rights, and as a fixed and specific charge of all after-acquired
Collateral which shall attach forthwith upon the Borrower acquiring rights
therein, and (ii) the Security Interest shall neither operate nor be construed
as a floating charge.
Section 2.5 The Lender's Care and Custody of Collateral. (1) The Lender
shall not be bound to dispose of, realize, protect or enforce any of the
Borrower's right, title and interest in and to the Collateral or to institute
proceedings for the purpose thereof.
(2) The Lender shall have no obligation to keep Collateral in its
possession identifiable.
(3) The Lender may, after the Security Interest shall have become
enforceable, (i) notify any person obligated on a License to make payment
thereunder to the Lender whether or not the Borrower was theretofore making
collections thereon, and (ii) assume control of any proceeds arising from the
Collateral.
Section 2.6 The Borrower's Dealings with Collateral. Except as permitted by
the Credit Agreement, the Borrower shall not, without the prior written consent
of the Lender, sell, exchange, license, release or abandon or otherwise dispose
of the Collateral or create, assume or permit to remain outstanding any Lien in,
on or of the Collateral.
Section 2.7 Right of Set-Off. The Obligations secured by this Security
Agreement shall be paid, when due, by the Borrower to the Lender without regard
to any equities existing among the Borrower and the Lender, and without regard
to any right of set-off or cross-claim or of any claim or demand of the Borrower
against the Lender, or otherwise.
Section 2.8 Protective Disbursements. If the Borrower fails to perform any
covenant on its part contained in this Security Agreement then the Lender may,
in its absolute discretion, perform any such covenant capable of being performed
by it and, if any such covenant requires the payment or expenditure of money,
the Lender may make such payment but shall be under no obligation to do so, and
all sums so paid or expended by the Lender shall be immediately payable by the
Borrower, shall bear interest at the highest rate set forth in the Credit
Agreement until paid and shall be secured hereby, having the benefit of the Lien
hereby created in priority to the indebtedness evidenced by this Security
Agreement. No such performance or payment shall relieve the Borrower from any
default under this Security Agreement or any consequences of such default.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations, Warranties and Covenants. The Borrower hereby
represents, warrants, and covenants that:
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(a) a true and complete schedule setting forth all trade-xxxx and trade
name registrations and pending applications and all unregistered
trade-marks owned or controlled by the Borrower or licensed to the
Borrower, together with a summary description and full information in
respect of the filing or issuance thereof and expiration dates is set
forth on Schedule A attached hereto;
(b) a true and complete schedule setting forth all patents, patent
applications, industrial designs and industrial design applications
owned or controlled by the Borrower or licensed to the Borrower,
together with a summary description and full information in respect of
the filing or issuance thereof and expiration dates is set forth on
Schedule B attached hereto;
(c) a true and complete schedule setting forth all copyright applications
and registrations owned or controlled by the Borrower or licensed to
the Borrower, together with a summary description and full information
in respect of the filing or issuance thereof is set forth on Schedule
C attached hereto;
(d) the Borrower is the sole and exclusive owner of the entire and
unencumbered right, title, and interest in and to the Intellectual
Property identified in Schedules A, B and C and in and to all other
Intellectual Property (other than Permitted Encumbrances and licenses
granted in the ordinary course of business) except that, if any, which
is licensed from third parties, free and clear of any Liens, including
licenses, shop rights and covenants by the Borrower not to xxx third
persons;
(e) to the extend that any of the Intellectual Property has been developed
or created by an employee or a third party for the Borrower, the
Borrower has a written agreement with such employee or third party
with respect thereto and the Borrower has thereby obtained ownership
of, and is the exclusive owner of all such intellectual property by
operations of law or by valid assignment;
(f) except for the filing of a financing statement with provincial or
state personal property registries, and filings with the Canadian
Intellectual Property Office, the United States Patent and Trademark
Office and the United States Copyright Office, or the corresponding
offices in any other country which may be necessary or desirable to
perfect the Security Interest, no authorization, approval, or other
action by, and no notice to or filing with, any governmental authority
or regulatory body is required either for the grant by the Borrower of
the Security Interest or for the execution, delivery or performance of
this Security Agreement by the Borrower or for the perfection of or
the exercise by the Lender of its rights hereunder to the Collateral
in Canada or the United States;
(g) there is no financing statement or assignment of any of the
Intellectual Property (or similar statement or instrument of
registration under the law of any jurisdiction) now on file or
registered in any public office covering any interest of any kind in
the Collateral, or intended to cover any such interest, which has not
been subordinated, terminated or released by the secured party named
therein and so long as the Obligations remain outstanding, the
Borrower will not execute and there will not be on file in any public
office any financing statement or assignment of the Intellectual
Property (or similar statement or instrument of registration under the
law of any jurisdiction) or statements relating to the Collateral,
except (i) financing statements or assignments of the
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Intellectual Property filed or to be filed in respect of and covering
the Security Interest of the Lender hereby granted and provided for
and (ii) with respect to Permitted Encumbrances;
(h) the Borrower shall commence and diligently prosecute in its own name,
as the real party in interest, for its own benefit and its own
expense, such suits, administrative proceedings, or other actions for
infringement or other causes of action as are in its reasonable
business judgment necessary to protect the Collateral. The Borrower
shall diligently defend all suits, administrative proceedings or other
actions brought by third parties in respect of the Intellectual
Property or use thereof (other than in respect of Permitted
Encumbrances and licenses granted in the ordinary course of business).
The Borrower shall provide to the Lender any information with respect
thereto requested by the Lender. The Lender may, but shall not be
required to, provide at the Borrower's expense all necessary
cooperation in connection with any such suits, proceedings or actions
including, without limitation, joining as a necessary party. Following
the Borrower becoming aware thereof, the Borrower shall promptly
notify the Lender of the institution of or any adverse determination
in any proceeding in any patent, trade-xxxx or copyright office or
other regulatory authority, or any Canadian, United States, state,
provincial or foreign court regarding the Borrower's claim of
ownership in any of the Intellectual Property, its right to apply for
the same or its right to keep and maintain such rights;
(i) the Borrower has continuously used the Trade-marks in the countries
and association with the wares and services claimed in each of the
trade-xxxx applications and registrations set out in Schedule A, and
none of the Trade-marks have been abandoned or invalidated, and,
except to the extent that the Lender, upon 10 days' prior written
notice by the Borrower, shall consent, and except to the extent such
Borrower has a value business purpose for doing otherwise (so long as
any action on the part of any such the Borrower would not have a
material adverse effect on the Borrower's business) the Borrower
(either itself or through licensees) will continue to use the
Trade-marks on each and every trade-xxxx class of goods in order to
maintain the Trade-marks in full force free from any claim of
abandonment for nonuse and the Borrower will not (nor will it permit
any licensee thereof to) do any act or knowingly omit to do any act
whereby any Trade-xxxx xxx become abandoned or invalidated, and the
Borrower shall notify the Lender immediately if it knows of any reason
or has reason to know that any pending application or issued
Trade-xxxx xxx become abandoned or invalidated;
(j) in no event shall the Borrower, either itself or through any agent,
employee, licensee or designee, (i) file an application for the
registration of any Intellectual Property with the Canadian
Intellectual Property Office, the United States Patent and Trademark
Office or any similar office or agency of the United States or Canada,
any state or province thereof, any other country or any political
subdivision thereof or (ii) file any assignment of any Intellectual
Property, which the Borrower may acquire from a third party, with the
Canadian Intellectual Property Office, the United States Patent and
Trademark Office or any similar office or agency of the United States,
Canada, any state or province thereof, any other country or any
political subdivision thereof, unless the Borrower shall promptly
notify the Lender thereof, and, upon request of the Lender, execute
and deliver any and all assignments, agreements, instruments,
documents and papers as the Lender may reasonably request to evidence
the Lender's interest in such Intellectual Property and the
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goodwill and general intangibles of the Borrower relating thereto or
represented thereby, and the Borrower hereby constitutes the Lender
its attorney-in-fact to execute and file all 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;
(k) except to the extent that the Lender, upon prior written notice from
the Borrower, shall consent (which consent shall not be unreasonably
withheld), the Borrower will not assign, sell, mortgage, lease,
transfer, pledge, hypothecate, grant a security interest in or lien
upon, encumber, grant an exclusive license, grant a non-exclusive
license (except in the ordinary course of business), or otherwise
dispose of any of the Intellectual Property, and nothing in this
Security Agreement shall be deemed a consent by the Lender to any such
action except as expressly permitted herein;
(l) as of the date hereof neither the Borrower nor any affiliate or
subsidiary thereof owns any Intellectual Property registered in, or
the subject of pending applications in, the Canadian Intellectual
Property Office, the United States Patent and Trademark Office or any
similar office or agency of the United States, Canada, any state or
province thereof, any other country or any political subdivision
thereof, other than those described in Schedules A, B and C hereto;
(m) the Borrower will take all necessary steps in any proceeding before
the Canadian Intellectual Property Office, the United States Patent
and Trademark Office or any similar office or agency of the United
States, Canada, any state or province thereof, any other country or
any political subdivision thereof, to maintain each application and
registration of the Intellectual Property, including, without
limitation, filing of renewals, affidavits of use, and affidavits of
incontestability, payment of all maintenance and other fees, and
responding to and defending all opposition, interference, cancellation
and expungement proceedings (except to the extent that dedication,
abandonment or invalidation is permitted under paragraph (i) hereof);
(n) the Borrower agrees that the Lender does not assume, and shall have no
responsibility for, the payment of any sums due or to become due under
any agreement or contract included in the Intellectual Property or the
performance of any obligations to be performed under or with respect
to any such agreement or contract by the Borrower, and the Borrower
hereby agrees to indemnify and hold the Lender harmless of and from
all liability, loss, damage or expense (including but not limited to
actual fees and costs charged to the Lender by his lawyers) which he
may or might incur by reason of any and all claims by any person
relating thereto;
(o) the Borrower agrees that if it, or any affiliate or subsidiary
thereof, learns of any use by any person of any term or design likely
to cause confusion with any Trade-xxxx, it shall promptly notify the
Lender of such use and, if requested by the Lender, shall join with
the Lender, at its expense, in such action as the Lender, in its
reasonable discretion may deem advisable for the protection of the
Lender's interest in and to such Trade-marks;
(p) all licenses of Intellectual Property which the Borrower has granted
to third parties are set forth in Schedule D hereto;
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(q) if the Borrower shall acquire title to any new Intellectual Property,
the provisions of this Security Agreement shall automatically apply
thereto. The Borrower shall promptly notify the Lender in writing of
any rights to any new Trade-marks or Patents acquired by the Borrower
after the date hereof and of any registrations issued or applications
for registration made after the date hereof. Concurrently with the
filing of an application for registration for any Intellectual
Property, the Borrower shall execute, deliver and record in all places
where this Security Agreement is recorded an appropriate agreement,
substantially in the form hereof, with appropriate insertions, or an
amendment to this Security Agreement, in form and substance reasonably
satisfactory to the Lender, pursuant to which the Borrower shall grant
a security interest to the extent of its interest in such registration
as provided herein to the Lender; and
(r) the Borrower has and will maintain all such confidentiality agreements
as necessary to protect and preserve the Intellectual Property, and
will obtain from employees and any third-parties who receive any of
the Borrower's confidential information or who create any Intellectual
Property for the Borrower all such releases, assignments, waivers and
other agreements necessary to protect and preserve all such
Intellectual Property.
ARTICLE 4
ENFORCEMENT
Section 4.1 Default. The Security Interest shall be and become enforceable
against the Borrower (i) if and when it shall fail to make payments or perform
any of the Obligations on demand or otherwise when due and payable or to be
performed, as the case may be, pursuant to the provisions of the Credit
Agreement, (ii) if and when any representation or warranty made by the Borrower
in this Security Agreement or any other Credit Facility Document is incorrect in
any material respect when made or when reaffirmed, (iii) if and when the
Borrower fails to observe or perform any covenant, condition or agreement to be
observed or performed pursuant to this Security Agreement or any other Credit
Facility Document which could reasonably be expected to materially and adversely
affect the Lender; and upon the occurrence of an Event of Default as defined in
the Credit Agreement.
Section 4.2 Remedies. Whenever the Security Interest has become
enforceable, the Lender may realize upon the Collateral and enforce the rights
of the Lender by:
(a) sale, assignment, license, sub-license, granting options or options to
purchase or any other disposal of the Collateral including all
associated goodwill;
(b) collection of any proceeds arising in respect of the Collateral;
(c) collection, realization or sale of or other dealing with Royalties;
(d) the exercise of any contractual, legal or other rights or interests of
the Borrower under or in respect of the Collateral;
(e) the payment of any Lien that may exist or be threatened against the
Collateral, in which event such amount and any costs, charges and
expenses incurred in connection therewith shall be added to the
Obligations;
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(f) the appointment by instrument in writing of a receiver (which term as
used in this Security Agreement includes a receiver and manager) or
agent of the Collateral and the removal or replacement of such
receiver or agent from time to time;
(g) the institution of proceedings in any court of competent jurisdiction
for the appointment of a receiver of the Collateral;
(h) the institution of proceedings in any court of competent jurisdiction
for sale or foreclosure of the Collateral;
(i) filing proofs of claim and other documents to establish claims in any
proceeding relating to the Borrower;
(j) the set-off and application against the Obligations, to the fullest
extent permitted by law, of any monies to be paid by the Lender to the
Borrower under the Credit Agreement or any other agreement between the
Lender and the Borrower; and
(k) any other remedy or proceeding authorized or permitted by applicable
law.
In addition, upon the occurrence of any default or Event of Default, as defined
in the Credit Agreement, the Borrower shall grant to the Lender a royalty-free
exclusive license to use the Intellectual Property and associated goodwill to
the extent necessary to enable the Lender to possess and realize upon the
Intellectual Property prior to the realization thereon.
Such remedies may be exercised from time to time separately or in combination
and are in addition to and not in substitution for any other rights of the
Lender however created. The Lender may proceed by way of any action, suit or
other proceeding available at law and no right, remedy or power of the Lender
shall be exclusive of or dependent on any other. The Lender may exercise any of
its rights, remedies or powers separately or in combination and at any time. The
Lender shall not be bound to exercise any such rights or remedies, and the
exercise of such rights and remedies shall be without prejudice to the rights of
the Lender in respect of the Obligations including the right to claim for any
deficiency.
Section 4.3 Additional Rights. In addition to the remedies of the Lender
set forth in Section 4.2, the Lender may, whenever the Security Interest has
become enforceable, demand, commence, continue or defend any judicial or
administrative proceedings for the purpose of protecting, seizing, collecting,
realizing or obtaining possession or payment of the Collateral, and give valid
and effectual receipts and discharges therefor and compromise or give time for
the payment or performance of all or any part of the accounts or any contract or
any other obligation of any third party to the Borrower relating to the
Collateral.
Section 4.4 Concerning the Receiver. (1) Any receiver appointed by the
Lender shall be vested with the rights and remedies which could have been
exercised by the Lender in respect of the Borrower or the Collateral and such
other powers and discretions as are granted in the instrument of appointment and
any instrument or instruments supplemental thereto. The identity of the
receiver, any replacement thereof and any remuneration thereof shall be within
the unfettered discretion of the Lender.
(2) Any receiver appointed by the Lender shall act as agent for the Lender
for the purposes of taking possession of the Collateral, but otherwise and for
all other purposes (except as provided below) as agent for the Borrower. The
receiver may sell, assign, license, sub-license, grant options or options to
purchase or otherwise dispose of Collateral, including all associated goodwill,
as agent for the Borrower
-11-
or as agent for the Lender (but in all cases shall take direction from the
Lender) as the Lender may determine in its sole and unfettered discretion. The
Borrower agrees to ratify and confirm all actions of the receiver acting as
agent for the Borrower, and to release and indemnify the receiver in respect of
all such actions other than actions constituting gross negligence or misconduct.
(3) The Lender, in appointing or refraining from appointing any receiver,
shall not incur liability to the receiver, the Borrower or otherwise and shall
not be responsible for any misconduct or negligence of such receiver.
Section 4.5 Appointment of Attorney. The Borrower hereby irrevocably
appoints the Lender (and any officer thereof) as attorney of the Borrower (with
full power of substitution) to exercise, whenever the Security Interest has
become enforceable, in the name of and on behalf of the Borrower any of the
Borrower's right (including the right of disposal), title and interest in and to
the Collateral including the execution, endorsement and delivery of any
agreements, documents, instruments and any notices, receipts, assignments or
verifications of or in respect of Royalties. All acts of any such attorney are
hereby ratified and approved, and such attorney shall not be liable for any act,
failure to act or any other matter or thing in connection therewith, except for
its own negligence or wilful misconduct.
Section 4.6 Dealing with the Collateral and the Security Interest. (1) The
Lender shall not be obliged to exhaust its recourses against the Borrower or any
other person or persons or against any other security it, the Lender may hold in
respect of the Obligations before realizing upon or otherwise dealing with the
Collateral in such manner as the Lender may consider desirable.
(2) The Lender may grant extensions or other indulgences, take and give up
securities, accept compositions, grant releases and discharges and otherwise
deal with the Borrower and with other persons, sureties or securities as the
Lender may see fit, all without prejudice to the Obligations or the rights of
the Lender in respect of the Collateral.
(3) The Lender shall not be (i) bound under any circumstances to realize
upon the Collateral; (ii) liable or accountable for any failure to collect,
realize or obtain payment in respect of the Collateral; (iii) bound to institute
proceedings for the purpose of collecting, enforcing, realizing or obtaining
payment of the Collateral or for the purpose of preserving any rights of the
Lender and the Borrower or any other persons in respect thereof; (iv)
responsible for any loss occasioned by any sale or other dealing with the
Collateral or by the retention of or failure to sell or otherwise deal
therewith; or (v) bound to protect the Collateral from depreciating in value or
becoming worthless.
(4) All moneys from time to time received by the Lender or the receiver may
be applied as follows: first, in discharge of all operating expenses and other
ongoings affecting the Collateral; second, in keeping in good standing all Liens
on the Collateral having priority over the Security Interest; third, in payment
of the remuneration and disbursements of the receiver (if any); fourth, in
payment to the Lender of moneys payable hereunder and under any other agreements
between the Lender and the Borrower entered into pursuant thereto; and the
balance, if any, shall be paid to the Borrower or as a court of competent
jurisdiction may direct. If there shall be a deficiency, the Borrower shall
remain liable for such deficiency and shall pay the amount of such deficiency to
the Lender forthwith.
Section 4.7 Standards of Sale. Without prejudice to the ability of the
Lender to dispose of the Collateral in any manner which is commercially
reasonable, the Borrower acknowledges that a disposition of Collateral by the
Lender which takes place substantially in accordance with the following
provisions shall be deemed to be commercially reasonable:
-12-
(a) Collateral may be disposed of in whole or in part;
(b) Collateral may be disposed of by public action, public tender or
private contract, with or without advertising and without any other
formality;
(c) any purchaser or licensee of such Collateral may be a customer or
related party of the Lender;
(d) a disposition of Collateral may be on such terms and conditions as to
credit, deferred payment or otherwise as the Lender, in its
discretion, may deem advantageous;
(e) the Lender may establish an upset or reserve bid or price in respect
of the Collateral; and
(f) the Lender may buy in, rescind or vary any contract for the
disposition of Collateral and may dispose of any Collateral again
without being obligated to account or answer for any gain or loss
occasioned thereby.
Section 4.8 Dealings by Third Parties. No person dealing with the Lender or
its agent or a receiver shall be required (i) to determine whether the Security
Interest has become enforceable; (ii) to determine whether the powers which the
Lender or such agent or receiver on behalf of the Lender is purporting to
exercise have become exercisable; (iii) to determine whether any money remains
due to the Lender by the Borrower; (iv) to determine the necessity or expediency
of the stipulations and conditions subject to which any sale or license shall be
made; (v) to determine the propriety or regularity of any sale or of any other
dealing by the Lender with the Collateral; or (vi) to see to the application of
any money paid to the Lender.
Section 4.9 Statutory Waiver. To the fullest extent permitted by law, the
Borrower waives all of the rights, benefits and protection provided to it by any
statute which imposes limitations upon the rights, remedies or powers of a
secured party.
ARTICLE 5
GENERAL
Section 5.1 Discharge. The Security Interest shall be released and
discharged upon, but only upon, full payment of the Obligations and at the
request and expense of the Borrower.
Section 5.2 No Merger, etc. No judgment recovered by the Lender shall
operate by way of merger of or in any way affect the Security Interest, which is
in addition to and not in substitution for any other security now or hereafter
held by the Lender in respect of the Obligations.
Section 5.3 Waivers, etc. No amendment, consent or waiver by the Lender
shall be effective unless made in writing and signed by an authorized officer of
the Lender and then such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 5.4 Further Assurances. The Borrower shall from time to time,
whether before or after the Security Interest shall have become enforceable, do
all such acts and things and execute and deliver all such deeds, transfers,
assignments and instruments as the Lender may reasonably require for protecting
the Collateral or perfecting the Security Interest and for exercising all
rights, remedies, powers, authorities and discretions hereby conferred upon the
Lender, and the Borrower shall, from time to time
-13-
after the Security Interest has become enforceable, do all such acts and things
and execute and deliver all such deeds, transfers, assignments and instruments
as the Lender may require for facilitating the sale of or other dealing with the
Collateral in connection with any realization thereof.
Section 5.5 Notice. All notices, requests, demands, directions and
communications (in this Section 5.5, "notices") hereunder shall be sent by
telex, facsimile or similar means of recorded communication or hand delivery and
shall be effective when hand delivered or, in the case of successful telex,
facsimile or similar means of recorded communication, when received. All notices
shall be given to the respective addresses on page 1 of this Security Agreement
or, in either case, in accordance with any unrevoked written direction as to a
change of address given in accordance with this Section 5.5.
Section 5.6 Successors and Assigns. This Security Agreement shall be
binding upon the Borrower, its successors and permitted assigns, and shall enure
to the benefit of the Lender and its successors and assigns. The Borrower may
not assign or novate any of its rights or obligations under this Security
Agreement without the prior written consent of the Lender. All rights of the
Lender hereunder shall be assignable in accordance with the terms of the Credit
Agreement.
Section 5.7 Headings, etc. The division of this Security Agreement into
sections and subsections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation hereof.
Section 5.8 Severability. If and to the extent that any provision hereof
shall conflict with any mandatory provision of the PPSA (including, without
limitation, an exclusion or purported exclusion of a duty or onus imposed by the
PPSA or a limitation or purported limitation of the liability of or the amount
of damages recoverable from a person who has failed to discharge a duty or
obligation imposed by the PPSA), such provision of the PPSA shall govern. The
provisions of this Security Agreement are intended to be severable. If any
provision of this Security Agreement shall be held to be invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 5.9 Governing Law. This Security Agreement shall be governed by and
construed in accordance with the laws of the Province of British Columbia and of
Canada applicable therein and shall be treated in all respects as an British
Columbia contract.
Section 5.10 Incorporation of Schedules. Schedules A, B, C and D shall, for
all purposes hereof, form an integral part of this Security Agreement.
Section 5.11 Conflict. In the event of a conflict or inconsistency between
the provisions of this Security Agreement and the provisions of the Credit
Agreement, the provisions of the Credit Agreement shall prevail.
Section 5.12 Acknowledgement of Receipt/Waiver. The Borrower acknowledges
receipt of an executed copy of this Security Agreement. The Borrower waives, to
the extent permitted by law, the right to receive a copy of any financing
statement, financing change statement or verification statement registered with
or issued by any personal property registry or other Official Body in connection
with this Security Agreement.
-14-
IN WITNESS WHEREOF the Borrower has duly executed this Security Agreement
and affixed its corporate seal under the hands of its proper officers duly
authorized for the purpose thereof as of the date first above written.
INFOWAVE SOFTWARE, INC.
Per: ----------------------------------
Authorized Signatory
Per: ----------------------------------
Authorized Signatory
SCHEDULE A
TRADE-MARKS, TRADE-XXXX REGISTRATIONS AND PENDING APPLICATIONS
REGISTERED TRADE-MARKS
----------------------
--------------------------------------------------------------------------------
Trade-xxxx: I Design
Country: Canada
Registration No.: 527,301
Registration Date: May 4, 2000
--------------------------------------------------------------------------------
Trade-xxxx: I Design
Country: United States
Registration No.: 2,411,809
Registration Date: Dec. 12, 2000
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE
Country: Canada
Registration No.: 441,677
Registration Date: March 31, 1995
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE OFFICE ENABLER
Country: Canada
Registration No.: 496,520
Registration Date: June 19, 1998
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE OFFICE ENABLER
Country: United States
Registration No.: 2,291,877
Registration Date: November 16, 1999
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE WIRELESS ENABLER
Country: Canada
Registration No.: 507,188
Registration Date: January 27, 1999
--------------------------------------------------------------------------------
Trade-xxxx: infoWave Design
Country: United States
Registration No.: 2,301,202
Registration Date: December 21, 1999
--------------------------------------------------------------------------------
-2-
TRADE-XXXX APPLICATIONS
-----------------------
--------------------------------------------------------------------------------
Trade-xxxx: CRM2GO
Country: Canada
Serial No.: 1,045,777
Filing Date: February 8, 2000
--------------------------------------------------------------------------------
Trade-xxxx: SFA2GO
Country: Canada
Serial No.: 1,045,774
Filing Date: February 8, 2000
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE & CIRCLE WITHIN A CIRCLE DESIGN
Country: Canada
Serial No.: 1,084,735
Filing Date: November 30, 2000
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE & CIRCLE WITHIN A CIRCLE DESIGN
Country: United States
Serial No.: 76/218,583
Filing Date: March 5, 2001
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE WIRELESS ENABLER
Country: United States
Serial No.: 75/396,059
Filing Date: November 25, 1997
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE
Country: United States
Serial No.: 75/229,032
Filing Date: January 21, 1997
--------------------------------------------------------------------------------
Trade-xxxx: SYMMETRY
Country: United States
Serial No.: 75/816,213
Filing Date: Oct. 5, 1999
--------------------------------------------------------------------------------
Trade-xxxx: WIRELESS BUSINESS ENGINE
Country: United States
Serial No.: 76/139,261
Filing Date: October 3, 2000
--------------------------------------------------------------------------------
Trade-xxxx: WIRELESS BUSINESS ENGINE
Country: Canada
Serial No.: 1,074,166
Filing Date: September 8, 2000
--------------------------------------------------------------------------------
-3-
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE FOR THE NET
Country: United States
Serial No.: 75/803,984
Filing Date: September 21, 1999
--------------------------------------------------------------------------------
Trade-xxxx: INFOWAVE FOR EXCHANGE
Country: United States
Serial No.: 75/803,983
Filing Date: September 21, 1999
--------------------------------------------------------------------------------
Trade-xxxx: WIRELESS BUSINESS ENGINE
Country: European Community (Austria, Belgium, Denmark,
Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, Netherlands, Portugal, Spain, Sweden and
United Kingdom).
Serial No.: 1,996,636
Filing Date: November 29, 2000
--------------------------------------------------------------------------------
SCHEDULE B
PATENTS, PATENT APPLICATIONS, INDUSTRIAL DESIGNS
AND INDUSTRIAL DESIGN APPLICATIONS
Registrations
-------------
None
Applications
------------
United States Patent Application No. 09/755,898 - Filing Date May 5, 2001
Title: METHOD, APPARATUS, SIGNALS AND MEDIA FOR PROVIDING CUSTOM
OUTPUT IN RESPONSE TO USER INPUT AND E-MAIL SYSTEM
EMPLOYING SAME
Inventor: Xxxx Xxxxxx Xxxxxxx
Assignee: Infowave Software, Inc.
Canadian Patent Application No. 2,330,414 - Filing Date May 8, 2001
Title: METHOD, APPARATUS, SIGNALS AND MEDIA FOR PROVIDING CUSTOM
OUTPUT IN RESPONSE TO USER INPUT AND E-MAIL SYSTEM
EMPLOYING SAME
Inventor: Xxxx Xxxxxx Xxxxxxx
Assignee: Infowave Software, Inc.
SCHEDULE C
COPYRIGHT APPLICATIONS AND REGISTRATIONS
Nil.
SCHEDULE D
LICENSES
AT & T Wireless
Software Supply and License Agreement, dated September 25, 2000
Clearnet
Letter Agreement, dated March 27, 2000
Compaq Computer Corporation
Corporate Partnership Agreement dated April 5, 2000
CompServ, Inc.
North American Integration Partner Agreement dated Feb. 27, 2001
Getronics UK Ltd.
European Integration Partner Agreement dated March/April 2001
Glenayre Electronics, Inc.
1. Strategic Development Agreement dated March 31, 1999
2. Amendment and Addendum 1 to the Strategic Development Agreement dated March
31, 1999
Handango
Partner Agreement dated June 2000
Inflightonline
Letter Agreement dated September 2000
Intel Corporation
Software License and Development Agreement, dated June 2000
Interknowlogy LLC
North American Integration Partner Agreement dated Feb. 15, 2001
NETiMAGE
Partner Agreement, dated Sept/Oct 2000
Nextcell Inc.
General Licensing Agreement, September 1, 2000
Nokia Internet Communications, Inc.
Authorized Reseller Agreement, August 2000
Nokia Mobile Phones, Inc.
Value Added Services Cooperation Agreement, February 2000
Novatel Wireless, Inc.
Distribution Agreement dated November 17, 2000
-2-
Sierra Wireless, Inc.
Co-Marketing and Reseller Agreement, October 12, 1999
Sprint Spectrum L.P.
Software Company Alliance Agreement dated December 19, 2000
Suma Partners, Inc.
Partner Agreement dated June 2000
North American Integration Partner Agreement January/February 2001
Telus Mobility
Telus Mobility Letter Contract signed Nov. 30, 2000
The Xxxxxxxx Group
North American Integration Partner Agreement dated February/ March 2001
Wireless Internet Solutions Providers Inc.
Partner Agreement dated June 2000
WirelessKnowledge LLC
Strategic Partnership Agreement dated April 21, 1999
