Exhibit 10.34
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (as may be amended,
supplemented and otherwise modified from time to time, "IP Security Agreement")
is made and effective as of March 16, 2000, by CARAVELA SOFTWARE, INC.
(including any successor or permitted assignee thereof, "Grantor"), in favor of
MCG FINANCE CORPORATION, as Administrative Agent (including any successor,
participant, assignee or transferee thereof, "Administrative Agent") for itself
and the Lenders (as defined in the Credit Agreement below).
R E C I T A L S
WHEREAS, Grantor and each direct and indirect Subsidiary of Grantor
(each, a "Borrower"; collectively, the "Borrowers") desire and have applied to
Administrative Agent and the Lenders for a credit facility consisting of a term
loan pursuant to which up to $15.0 million can be borrowed from time to time;
and
WHEREAS, pursuant to that certain Credit Facility Agreement by and
among Borrowers, Lenders and Administrative Agent dated as of March 16, 2000 (as
may be amended from time to time, "Credit Agreement"), a condition precedent to
the obligation of the Administrative Agent or any Lender to execute and perform
under the Credit Agreement is that Borrowers shall have executed and delivered
that certain Master Security Agreement, Collateral Assignment and Equity Pledge
executed by Borrowers in favor of Administrative Agent for the benefit of
Administrative Agent and the Lenders dated as of March 16, 2000 (as may be
amended from time to time, "Security Agreement") encumbering all of Borrowers'
tangible and intangible personal property assets in favor of Administrative
Agent for the benefit of Administrative Agent and the Lenders; and
WHEREAS, under the terms of the Security Agreement, Grantor has
agreed to assign certain intellectual property to Administrative Agent for
purposes of securing the obligations to Administrative Agent and the Lenders
under the Credit Agreement and related Loan Documents; and
WHEREAS, Grantor has determined that it is in its best interest to
execute this IP Security Agreement inasmuch as Grantor will derive substantial
direct and indirect benefits from the funding of the Advances by Administrative
Agent pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, Grantor and Administrative Agent hereby agree as follows:
1. Grant. Grantor hereby grants to Administrative Agent an absolute,
present, unconditional, continuing first priority security interest in and to
Grantor's entire right, title and interest in and to the following property and
rights (collectively, the "Collateral"):
(a) The U.S., state and foreign copyrights, associated
copyright registrations and applications for copyright registration, and
copyright licenses set forth on Schedule A attached hereto (collectively, the
"Copyrights"); and
(b) The U.S., state and foreign patents and patent
applications, and patent licenses set forth on Schedule B attached hereto,
including, without limitation, improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the same (collectively, the
"Patents"); and
(c) The U.S., state and foreign trademark and service xxxx
registrations, trademark and service xxxx applications, and trademark and
service xxxx licenses set forth on Schedule C attached hereto (including all
associated goodwill, collectively, the "Trademarks"); and
(d) Any and all claims and causes of action for past, present
or future infringement of any of the Collateral, with the right, but not the
obligation, to xxx for and collect damages for infringement of the Collateral;
and
(e) Any and all licenses or rights granted under any of the
Collateral, and all license fees and royalties arising from such licenses or
rights, to the extent permitted by such licenses or rights; and
(f) Any and all amendments, renewals, extensions, reissuances
and replacements of any of the Collateral; and
(g) Any and all products and proceeds of any of the foregoing.
2. Requested Recordation. Grantor authorizes and requests that the
Register of Copyrights and the Commissioner of Patents and Trademarks (and any
state, foreign or other authorities to which this IP Security Agreement is
submitted) to file and record this IP Security Agreement (and any corresponding
or separate application forms of such jurisdiction) in order to publicly reflect
Administrative Agent's interest in the Collateral.
3. Assignment. Upon the occurrence of an Event of Default (as
defined in the Security Agreement), Grantor shall execute and deliver to
Administrative Agent an absolute assignment transferring its entire right,
title, and interest in and to the Collateral to Administrative Agent.
4. Power of Attorney. Grantor hereby irrevocably grants
Administrative Agent a power of attorney, to act as Grantor's attorney-in-fact,
with full authority in the name, place and stead of Grantor, from time to time
in Administrative Agent's discretion, to take any action and to execute any
instrument which Administrative Agent may deem reasonably necessary or advisable
to accomplish the purposes of the Security Agreement or this IP Security
Agreement. This authority includes, without limitation, the following:
(a) To modify or amend (in Administrative Agent's sole
discretion and without first obtaining Grantor's approval of or signature
thereto) Schedule A, Schedule B,
2
and/or Schedule C hereof, as appropriate, to include references to any
registered intellectual property (or application or license therefor) acquired
by Grantor after the execution hereof or to delete any reference to any
Collateral in which Grantor no longer has or claims any right, title or
interest; and
(b) To execute, file and pursue (in Administrative Agent's
sole discretion and without first obtaining Grantor's approval of or signature
thereto, unless otherwise prohibited by applicable law) any application, form or
other document in order to perfect, maintain, continue or otherwise protect
Administrative Agent's interest or Grantor's rights in the Collateral,
including, without limitation, executing and filing (i) any financing statement,
any continuation statement or any amendment thereto, and (ii) any document in
any proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or the relevant office of any state or foreign
jurisdiction (including, without limitation, the filing of applications for
renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings) and to pay any fees and taxes in
connection therewith or otherwise; and
(c) To execute any assignment or other document required to
acknowledge, register or perfect Administrative Agent's interest in any part of
the Collateral without the signature of Grantor unless prohibited by applicable
law.
The foregoing power of attorney is coupled with an interest and is irrevocable.
5. Release. The security interest granted herein will terminate (and
all rights to the Collateral will revert to Grantor) upon satisfaction of the
following conditions: (a) payment and performance in full of all the obligations
secured hereby (unconditionally and indefeasibly) and (b) the termination of the
Credit Agreement (and the Facilities thereunder). Upon any such termination,
Administrative Agent (at Grantor's request and sole expense) will execute and
deliver to Grantor (without any representation, warranty or recourse of any kind
whatsoever) such documents as Grantor may reasonably request and provide to
Administrative Agent to evidence such termination.
6. Miscellaneous. This IP Security Agreement has been entered into
in conjunction with the provisions of and the security interest granted to
Administrative Agent under the Security Agreement. The rights and remedies of
Grantor and Administrative Agent with respect to the security interest granted
herein are in addition and without prejudice to those set forth in the Security
Agreement and the Credit Agreement, all terms and provisions of which are hereby
incorporated herein by reference. This IP Security Agreement may be executed in
any number of counterparts with the same effect as if all the signatures on such
counterparts appeared on one document; each such counterpart will be deemed to
be an original but all counterparts together will constitute one and the same
instrument. In the event that any provisions of this IP Security Agreement are
deemed to conflict with the Security Agreement or the Credit Agreement, the
provisions of the Security Agreement or Credit Agreement shall govern.
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IN WITNESS WHEREOF, the parties hereto have executed this IP
Security Agreement, as an instrument under seal (whether or not any such seals
are physically attached hereto), through their duly authorized officers, as of
the date first written above.
ATTEST: CARAVELA SOFTWARE, INC.
(Grantor)
By: By: /s/ Xxxx X. Xxxxx
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxx
Title: Assistant Secretary Title: President and Treasurer
[CORPORATE SEAL]
Address: 0 Xxx Xxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: (___) _________
Facsimile: (___) _________
WITNESS: MCG FINANCE CORPORATION
(Administrative Agent)
By: By: /s/ Xxxxxx Xxxxxx
------------------------------ ------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Operating Officer and
Chief Financial Officer
Address: 0000 Xxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ACKNOWLEDGMENT
STATE OF _______________________ :
: SS
COUNTY OF ______________________ :
Before me, the undersigned, a Notary Public, on this ____ day of
March, 2000, personally appeared Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, to me
known personally, who, being by me duly sworn, did each separately say that he
is the President and Treasurer and Assistant Secretary (respectively, as
appropriate) of CARAVELA SOFTWARE, INC., and that said instrument (i.e., the
Intellectual Property Security Agreement) was signed on behalf of said Caravela
Software, Inc. by authority of its Board of Directors, and the said President
and Treasurer, and Assistant Secretary each acknowledged said instrument to be
his free act and deed.
__________________________________________
Notary Public
My Commission Expires:____________________
ACKNOWLEDGEMENT
STATE OF _______________________ :
: SS
COUNTY OF ______________________ :
Before me, the undersigned, a Notary Public, on this _____ day of
March, 2000, personally appeared Xxxxxx Xxxxxx, to me known personally, who,
being by me duly sworn, did say that he is the Chief Operating Officer and Chief
Financial Officer of MCG FINANCE CORPORATION, and that said instrument (i.e.,
the Intellectual Property Security Agreement) was signed on behalf of said MCG
Finance Corporation by authority of its Board of Directors (through its Credit
Committee), and the said Chief Operating Officer and Chief Financial Officer
knowledged said instrument to be his free act and deed.
__________________________________________
Notary Public
My Commission Expires:____________________
SCHEDULE A
COPYRIGHT COLLATERAL
I. Registered Copyrights
Copyright Registration Registration
Title Number Date
--------- ------------ ------------
N/A
II. Pending Copyright Applications
Copyright Application Filing Date of Date of
Title Number Date Creation Publication
--------- ----------- ------ -------- -----------
N/A
III. Unregistered Copyrights
Date and Date of
Recordation Expected
Number of Registration
Copyright Date of Date of Original Assignment (if
Title Creation Publication Author/Owner to Grantor applicable)
---------- -------- ----------- ------------ ------------ -----------
N/A
IV. Copyright Licenses
Effective Expiration Subject
Copyright Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- -------
N/A
SCHEDULE B
PATENT COLLATERAL
I. Patents
Patent Issue
Number Country Date Title
------ ------- ---- -----
N/A
II. Pending Patent Applications
Patent Atty. Docket Serial Filing
Title Number Country Number Date Status
------ ----------- ------- ------ ---- ------
N/A
III. Patent Licenses
Effective Expiration
Patent No. Country Licensor Licensee Date Date
---------- ------- -------- -------- --------- ----------
N/A
SCHEDULE C
TRADEMARK COLLATERAL
I. Registered Trademarks
Trademark Registration
Description Country Number
----------- ------- ------------
CONNIX USA 2,008,293
II. Pending Trademark Applications
Atty.
Trademark Docket Serial Filing
Description Number Country Number Date Status
----------- ------ ------- ------ ------ ------
N/A
III. Trademark Licenses
Registration Effective Expiration
Number Xxxx Country Licensor Licensee Date Date
------------ ---- ------- -------- -------- --------- ----------
N/A
