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EXHIBIT 10.44
SUPPLEMENTAL SECURITY AGREEMENT
(Copyrights)
THIS SUPPLEMENTAL SECURITY AGREEMENT (this "Agreement") is made and
dated this 28 day of April, 1997 by and among DOVE FOUR POINT, INC., a Florida
corporation, with its chief executive office at 0000 Xxxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000, and successor via merger to Four Point
Entertainment, Inc. (the "Grantor"); DOVE ENTERTAINMENT, INC., a California
corporation formerly named Dove Audio, Inc. (the "Borrower"); and SANWA BANK
CALIFORNIA, a California bank (the "Bank").
RECITALS
A. Reference is made to the (i) Security Agreement among the
Grantor, the Borrower and the Bank dated August 16, 1996 (as such agreement may
be amended, modified or supplemented from time to time, the "Security
Agreement"), and (ii) the Guaranty dated August 16, 1996 from the Grantor in
favor of the Bank guaranteeing Indebtedness (as defined therein) of the Borrower
to the Bank (as such guaranty may be amended, modified or supplemented from time
to time, the "Guaranty"). As used herein the term "Obligations" shall mean the
Indebtedness defined in the Security Agreement, which includes the Indebtedness
as defined in, and all other obligations of the Grantor under, the Guaranty.
Capitalized terms used herein without definition have the meanings assigned
thereto in the Security Agreement.
B. Pursuant to the Security Agreement the Grantor has granted to
the Bank a security interest in certain assets of the Grantor, including,
without limitation, all of the general intangibles now owned or hereafter
created or acquired by the Grantor.
C. The parties hereto desire to supplement the Security Agreement
as it relates to certain general intangible Collateral consisting generally of
copyrights and to create hereby a document appropriate for recordation in the
Copyright Office of the United States (the "Copyright Office").
AGREEMENT
In consideration of the above Recitals and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows.
1. CONFIRMATION OF GRANT OF SECURITY INTEREST. The Grantor hereby
confirms the grant of the security interest in, lien on, and assignment of the
Collateral described in the Security Agreement, as set forth therein, and
acknowledges that such Collateral includes, without limitation, all of the
Grantor's right, title and interest in the following (the "Copyrights"):
(a) All now existing or hereafter created or acquired,
copyrights of the Grantor, including, without limitation, the copyrights in the
materials specifically described on Exhibit A attached hereto, as the same may
be amended or replaced from time to time with the consent of the Bank;
(b) All now existing and hereafter arising registrations
and applications for registration relating to any of the foregoing, all renewals
and extensions thereof throughout the world for as long as permissible under any
federal or foreign copyright law or regulation, and all rights to make such
applications and to renew and extend the same;
(c) All now existing and hereafter arising rights and
licenses to make, have made, use and/or sell any items disclosed, claimed or
covered by any of the foregoing;
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(d) All now existing and hereafter arising rights (but not
any obligation) to register claims under any state, federal or foreign copyright
law or regulation;
(e) All now existing and hereafter arising rights, claims
and interests under licensing or other contracts pertaining to any of the
foregoing;
(f) All now existing and hereafter arising documents,
instruments and agreements which reveal the name and address of sources of
supply, distribution methods and all terms of purchase, rental, license or use
and delivery for all materials, products and components used in connection with
any of the foregoing;
(g) All now existing and hereafter arising goodwill
associated with any of the foregoing;
(h) All now existing and hereafter arising rights (but not
any obligation) to xxx or bring opposition or cancellation proceedings in the
name of the Grantor or the Bank for past, present and future infringements of
any of the foregoing; and
(i) All products and proceeds of any of the foregoing.
2. RESTRICTIONS ON FUTURE AGREEMENTS. The Grantor agrees that
until the Obligations have been satisfied in full, except as permitted by the
Security Agreement, the Grantor shall not, without the Bank's prior written
consent (which consent shall not be unreasonably withheld), abandon any
Copyrights or enter into any agreement, including, without limitation, any
license agreement, which is inconsistent with the Grantor's obligations under
the Security Agreement, and the Grantor further agrees that it will not take any
action, or permit any action to be taken by others subject to its control,
including licensees, or fail to take any action, which would affect the validity
or enforcement of the rights of the Bank under this Agreement.
3. NEW COPYRIGHTS. The Grantor represents and warrants that the
Copyrights listed on Exhibit A constitute all of the material Copyrights now
owned by the Grantor which are registered (or pending for registration) with the
Copyright Office. If, before the Obligations have been satisfied in full, the
Grantor shall obtain rights to any new registered Copyrights (or Copyrights for
which registrations are pending) the provisions of this Agreement shall
automatically apply thereto and the Grantor shall give to the Bank prompt
written notice of any such event. The Grantor hereby authorizes the Bank to
modify this Agreement by amending Exhibit A to include any future Copyrights or
any applications or registrations therefor not listed thereon, in which the
Grantor has rights under Section 1 hereof or under this Section 3.
4. ROYALTIES; TERMS. The Grantor hereby agrees that the Bank's
rights in all Copyrights shall be to the full extent of the Grantor's rights
therein, and shall be without any liability for royalties or other related
charges from the Bank to the Grantor. The term of the Bank's security interest
in the Copyrights shall extend until such time as all of the Obligations have
been paid in full.
5. ADDITIONAL COVENANTS. In addition to all covenants and
agreements set forth in the Security Agreement, the Grantor agrees (a) not to
sell or assign the interest in, or grant any license under, the Copyrights,
except in the ordinary course of business and on commercially reasonable terms,
without obtaining the prior written consent of the Bank; (b) to maintain all
records with respect to the Copyrights at its address set forth on the first
page hereof and not to change the location where such records are maintained
without giving the Bank prior written notice thereof; (c) to inform the Bank
promptly after it becomes aware of any event or circumstance materially
adversely affecting the Copyrights, the value thereof or the Grantor's or the
Bank's rights therein or thereto; and (d) to furnish the Bank with current
versions of Exhibit A upon request.
6. DUTIES OF THE GRANTOR. The Grantor shall have the duty (a) to,
in a commercially reasonably manner, prosecute diligently any application for
Copyrights pending as of the date hereof or thereafter, until the Obligations
have been paid in full, (b) to make application on Copyrights as customary and
appropriate in the operation of the Grantor's business, (c) to file and
prosecute opposition and cancellation proceedings as customary and appropriate
in the operation of the Borrower's business, and (d) to preserve and maintain,
in a commercially
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reasonable manner, all rights in applications for registrations of Copyrights.
Any expenses incurred in connection with such applications shall be borne by the
Grantor. The Grantor shall not abandon any right to file an application for a
copyright without the consent of the Bank, which consent shall not be
unreasonably withheld.
7. THE BANK MAY PERFORM. If the Grantor fails to perform any
agreement contained herein, the Bank, upon written notice to the Grantor, if
practicable, may itself perform, or cause performance of, such agreement, and
the reasonable out of pocket expenses of the Bank incurred in connection
therewith shall be payable by the Grantor under Section 11 hereof.
8. THE BANK'S DUTIES. The powers conferred on the Bank hereunder
are solely to protect its interest in the Copyrights and shall not impose any
duty upon the Bank to exercise any such powers. Except for the accounting for
moneys actually received by it hereunder, the Bank shall have no duty as to any
of the Copyrights or of taking any steps to preserve rights against prior
parties or any other rights pertaining to any of the Copyrights but may do so at
its option, and all expenses incurred in connection therewith shall be for the
sole account of the Grantor and shall be added to the Obligations.
9. REMEDIES; BANK'S RIGHT TO XXX. If any Event of Default shall
have occurred and be continuing:
(a) The Bank may exercise in respect of the Copyrights, in
addition to other rights and remedies provided for herein or in the Security
Agreement or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code as in effect from time to
time in the State of California (the "Code") (whether or not the Code applies to
the affected Copyrights).
(b) The Bank shall have the right, but shall in no way be
obligated, to bring suit in its own name to enforce the Copyrights, and any
licenses thereunder, and, if the Bank shall commence any such suit, the Grantor
shall, at the request of the Bank do any and all lawful acts and execute any and
all proper documents reasonably required by the Bank in aid of such enforcement
and the Grantor shall promptly, upon demand, reimburse and indemnify the Bank
for all out of pocket costs and expenses incurred by the Bank in the exercise of
its rights under this Section 9. The Grantor shall notify the Bank of any suits
it commences to enforce the Copyrights and shall provide the Bank with copies of
any documents reasonably requested by the Bank relating to such suits.
(c) All of the Bank's rights and remedies with respect to
the Copyrights whether established hereby or by the Security Agreement, or by
any other agreements or by law, shall be cumulative and may be exercised
singularly or concurrently.
10. POWER OF ATTORNEY; EFFECT ON THE SECURITY AGREEMENT. The
Grantor hereby authorizes and empowers the Bank to make, constitute and appoint
any officer or agent of the Bank as the Grantor's true and lawful
attorney-in-fact, with power (but not the obligation) after the occurrence and
during the continuance of an Event of Default (a) to endorse the Grantor's name
on all applications, documents, papers and instruments reasonably necessary or
desirable for the Bank in the use and protection of the Copyrights, (b) to grant
or issue any commercially reasonably exclusive or nonexclusive license under the
Copyrights to anyone, (c) to assign, pledge, convey or otherwise transfer title
in or dispose of, in a commercially reasonable manner, the Copyrights to anyone,
and (d) to file any claims or take any action or institute any proceedings which
the Bank may deem necessary or desirable for the protection or enforcement of
any of the rights of the Bank with respect to any of the Copyrights. This power
of attorney, being coupled with an interest, is irrevocable until the
Obligations have been paid in full. The Grantor hereby acknowledges and agrees
that this Agreement is not intended to limit or restrict in any way the rights
and remedies of the Bank under the Security Agreement but rather is intended to
facilitate the exercise of such rights and remedies.
11. EXPENSES.
(a) The Grantor agrees to indemnify the Bank from and
against any and all claims, losses and liabilities growing out of or resulting
from this Agreement (including, without limitation, enforcement of this
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Agreement), except claims, losses or liabilities resulting solely from the
Bank's gross negligence or willful misconduct. Such agreement of the Grantor
shall survive the payment in full of the Obligations.
(b) The Grantor will, upon written demand, pay to the Bank
the amount of any and all out of pocket costs and expenses, including reasonable
attorneys fees and costs and reasonable disbursements of any experts and agents.
12. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Grantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
13. SEVERABILITY. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid and
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
of this Agreement in any other jurisdiction.
14. NOTICES. All notices and other communications provided for
hereunder shall be given in the manner and to the addresses set forth in the
Security Agreement.
15. CONTINUING SECURITY INTEREST; TERMINATION.
(a) The Bank's security interest in the Copyrights shall
(a) remain in full force and effect until payment in full of the Obligations,
(b) be binding upon the Grantor, its successors and assigns, and (c) inure,
together with the rights and remedies of the Bank hereunder, to the benefit of
the Bank and its successors and assigns, subject to the terms and conditions of
the Security Agreement. The Grantor's successors and assigns shall include,
without limitation, a receiver, trustee or debtor-in-possession thereof or
therefor.
(b) Upon the payment in full of the Obligations, the Bank's
security interest in the Copyrights shall terminate and all rights to the
Copyrights shall revert to the Grantor. The Bank will, at the Grantor's expense,
execute and deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination.
16. RELATIONSHIP TO SECURITY AGREEMENT. The Copyrights shall
constitute Collateral for all purposes of the Security Agreement and the Bank
shall have all rights, powers and remedies with respect to the Copyrights that
it has with respect to other Collateral. Reference is hereby made to the
Security Agreement, the terms and conditions of which are incorporated herein by
this reference, including, without limitation, the provisions relating to the
priority of the Bank's security interest in Collateral, choice of law, consent
to jurisdiction, and waivers by the Grantor and the Borrower.
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17 CONFIRMATION OF GUARANTY. Grantor in its capacity as guarantor
under the Guaranty (i) consents to this Agreement (which supplements the
Security Agreement) and to the Supplemental Loan Agreement (Copyrights) of even
date herewith between the Borrower and the Bank, and (ii) confirms that the
Guaranty remains in full force and effect.
EXECUTED as of the date first written above.
DOVE FOUR POINT, INC.,
a Florida corporation
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: President and CEO
DOVE ENTERTAINMENT, INC.,
a California corporation
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: President and CEO
SANWA BANK CALIFORNIA,
a California bank
By: /s/ E. XXXXX XXXXX
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Name: E. Xxxxx Xxxxx
Title: Vice President
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SUPPLEMENTAL SECURITY AGREEMENT
(COPYRIGHTS)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On April 28, 1997 before me, Xxxxxxxx Xxxx, personally
appeared Xxxxxxx Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXXX XXXX
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SIGNATURE
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ___________, 1997 before me, __________, personally
appeared ______________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument the person, or the entity
upon behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
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SIGNATURE
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STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On April 28, 1997 before me, Xxxxxxxx Xxxx, personally
appeared Xxxxxxx Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument the person, or the entity
upon behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx Xxxx
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SIGNATURE
