EXHIBIT 10.2
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of
November 5, 2003 by and between SILICON VALLEY BANK ("Secured Party") and NSTOR
CORPORATION, INC. ("Grantor").
RECITALS
A. Secured Party and Grantor are entering into that certain Accounts
Receivable Purchase Agreement by dated of even date herewith (as the same may be
amended, modified or supplemented from time to time, the "Financing Agreement";
capitalized terms used herein which are not defined, have the meanings set forth
in the Financing Agreement).
B. Pursuant to the terms of the Financing Agreement, Grantor has granted
to Secured Party a security interest in all of Grantor's right, title and
interest, whether presently existing or hereafter acquired, in, to all
Intellectual Property and all other Collateral.
NOW, THEREFORE, as collateral security for the payment and performance
when due of all of the Obligations, Grantor hereby grants, represents, warrants,
covenants and agrees as follows:
AGREEMENT
1. Grant of Security Interest. To secure all of the Obligations, Grantor grants
and pledges to Secured Party a security interest in all of Grantor's right,
title and interest in, to and under its intellectual property, including without
limitation the following (collectively, the Intellectual Property):
(a) All of present and future United States registered copyrights and copyright
registrations, including, without limitation, the registered copyrights,
maskworks, software, computer programs and other works of authorship subject to
United States copyright protection listed in Exhibit A to this Agreement (and
including all of the exclusive rights afforded a copyright registrant in the
United States under 17 U.S.C. ss.106 and any exclusive rights which may in the
future arise by act of Congress or otherwise) and all present and future
applications for copyright registrations (including applications for copyright
registrations of derivative works and compilations) (collectively, the
"Registered Copyrights"), and any and all royalties, payments, and other amounts
payable to Borrower in connection with the Registered Copyrights, together with
all renewals and extensions of the Registered Copyrights, the right to recover
for all past, present, and future infringements of the Registered Copyrights,
and all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Registered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto.
(b) All present and future copyrights, maskworks, software, computer programs
and other works of authorship subject to (or capable of becoming subject to)
United States copyright protection which are not registered in the United States
Copyright Office (the "Unregistered Copyrights"), whether now owned or hereafter
acquired, and any and all royalties, payments, and other amounts payable to
Borrower in connection with the Unregistered Copyrights, together with all
renewals and extensions of the Unregistered Copyrights, the right to recover for
all past, present, and future infringements of the Unregistered Copyrights, and
all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Unregistered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto. The Registered Copyrights and the
Unregistered Copyrights collectively are referred to herein as the "Copyrights."
(c) All right, title and interest in and to any and all present and future
license agreements with respect to the Copyrights.
(d) All present and future accounts, accounts receivable, royalties, and other
rights to payment arising from, in connection with or relating to the
Copyrights.
(e) All patents, patent applications and like protections including, without
limitation, improvements, divisions, continuations, renewals, reissues,
extensions and continuations-in-part of the same, including without limitation
the patents and patent applications set forth on Exhibit B attached hereto
(collectively, the "Patents");
(f) All trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Borrower connected with and symbolized by
such trademarks, including without limitation those set forth on Exhibit C
attached hereto (collectively, the "Trademarks");
(g) Any and all claims for damages by way of past, present and future
infringements of any of the rights included above, with the right, but not the
obligation, to xxx for and collect such damages for said use or infringement of
the rights identified above;
(h) All licenses or other rights to use any of the Copyrights, Patents or
Trademarks, and all license fees and royalties arising from such use to the
extent permitted by such license or rights;
(i) All amendments, extensions, renewals and extensions of any of the
Copyrights, Trademarks or Patents; and
(j) All proceeds and products of the foregoing, including without limitation all
payments under insurance or any indemnity or warranty payable in respect of any
of the foregoing, and all license royalties and proceeds of infringement suits,
and all rights corresponding to the foregoing throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part of the foregoing.
2. Financing Agreement. This security interest is granted in conjunction with
the security interest granted to Secured Party under the Financing Agreement.
The rights and remedies of Secured Party with respect to the security interest
granted hereby are in addition to those set forth in the Financing Agreement and
the other Financing Documents, and those which are now or hereafter available to
Secured Party as a matter of law or equity. Each right, power and remedy of
Secured Party provided for herein or in the Financing Agreement or any of the
other Financing Documents, or now or hereafter existing at law or in equity
shall be cumulative and concurrent and shall be in addition to every right,
power or remedy provided for herein and the exercise by Secured Party of any one
or more of the rights, powers or remedies provided for in this Agreement, the
Financing Agreement or any of the other Financing Documents, or now or hereafter
existing at law or in equity, shall not preclude the simultaneous or later
exercise by any person, including Secured Party, of any or all other rights,
powers or remedies.
3. Covenants and Warranties. Borrower represents, warrants, covenants and agrees
as follows:
(a) Borrower shall undertake all reasonable measures to cause its employees,
agents and independent contractors to assign to Borrower all rights of
authorship to any copyrighted material in which Borrower has or may subsequently
acquire any right or interest.
(b) Borrower shall promptly advise Secured Party of any Trademark, Patent or
Copyright not specified in this Agreement, which is hereafter acquired by
Borrower.
(c) Section 6.2(P) of the Financing Agreement hereby is incorporated herein as
though fully set forth herein, mutatis mutandis.
4. General. If any action relating to this Agreement is brought by either party
hereto against the other party, the prevailing party shall be entitled to
recover reasonable attorneys fees, costs and disbursements. This Agreement may
be amended only by a written instrument signed by both parties hereto. To the
extent that any provision of this Agreement conflicts with any provision of the
Financing Agreement, the provision giving Secured Party greater rights or
remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to Secured Party under the
Financing Agreement. This Agreement, the Financing Agreement, and the other
Financing Documents comprise the entire agreement of the parties with respect to
the matters addressed in this Agreement. This Agreement shall be governed by the
laws of the State of California, without regard for choice of law provisions.
Borrower and Secured Party consent to the nonexclusive jurisdiction of any state
or federal court located in Santa Xxxxx County, California.
5. Waiver of Right to Jury Trial. SECURED PARTY and Borrower each hereby
waive the right to trial by jury in any action or proceeding based upon, arising
out of, or in any way relating to: (i) this Agreement; or (ii) any other present
or future instrument or agreement between SECURED PARTY and Borrower; or (iii)
any conduct, acts or omissions of SECURED PARTY or Borrower or any of their
directors, officers, employees, agents, attorneys or any other persons
affiliated with SECURED PARTY or Borrower; in each of the foregoing cases,
whether sounding in contract or tort or otherwise.
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
Address of Grantor: Grantor:
6190 Corte Del Cedro NSTOR CORPORATION, INC.
Xxxxxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxxx
Title: Acting President, Chief Operating
and Financial Officer
Name: Xxxxxx X. Xxxxxx
Address of Secured Party: Secured Party:
0000 Xxxxxx Xxxxx SILICON VALLEY BANK
Xxxxx Xxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxxx Xxxxxxxx
Title: Vice President Commerical
Finance Division
Exhibits "A", "B" and "C" to this document are not included with this filing,
however, may be obtained by contacting the registrant.
