EXHIBIT 10.7.6
Execution Copy
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT made and entered into
as of April 10, 2006 (this "AGREEMENT"), by SLM Holdings, Inc. (the "Borrower"),
Sales Lead Management Inc. (the "Subsidiary"; each of Borrower and Subsidiary a
"Grantor" and, collectively, the "Grantors"), in favor of Aegis NY Venture Fund,
LP, a New York limited partnership (the "LENDER").
WITNESSETH:
WHEREAS, the Borrower and the Lender are entering into a certain Loan and
Security Agreement dated as of even date herewith (as amended, supplemented or
otherwise modified from time to time, the "Loan Agreement"; capitalized terms
which are used herein and not otherwise defined shall have the meanings given to
them in the Loan Agreement); and
WHEREAS, it is a condition precedent to the effectiveness of the Loan
Agreement that the Grantors shall have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises hereof and to induce the
Lender to enter into the Loan Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
AGREEMENT
SECTION 1. SECURITY FOR OBLIGATIONS.
(a) SECURITY INTEREST IN PATENTS. To secure the full and prompt
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of all of the Obligations, each Grantor hereby grants and conveys to
the Lender a valid security interest in all of its right, title and interest in
the United States and throughout the world in, to and under all of the now owned
and hereafter acquired United States and foreign patents and all patent and
design patent applications, and all issues, reissues, re-examinations,
continuations, continuations-in-part or divisions thereof, and all proceeds
thereof (hereinafter collectively referred to as the "Patents"). All registered
and unexpired patents and all currently pending patent applications with the
U.S. Patent and Trademark Office (the "PTO") in which any Grantor has an
interest are listed on SCHEDULE A opposite such Grantor's name. Each Grantor
hereby further grants, assigns and conveys to the Lender a valid security
interest in all of the right, title and interest of such Grantor in and to all
proceeds, income, royalties, damages and payments now or hereafter due and
payable under or in respect of all Patents and in and to all rights during the
term of this Agreement to xxx, collect and retain damages and payments for past
or future infringements of the Patents.
(b) SECURITY INTEREST IN TRADEMARKS. To secure the full and prompt
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of all of the
Obligations, each Grantor hereby grants and conveys to the Lender a valid
security interest in all of its right, title and interest in the United States
and throughout the world in, to and under all of its now owned and hereafter
acquired trademarks, service marks and trade names, domain names, and all
similar designations of source or origin (whether or not such name is the
subject of a registration or an application therefor), and all registrations and
applications to register the same, and all renewals thereof, and the goodwill of
the business relating thereto, and all proceeds thereof (hereinafter
collectively referred to as the "TRADEMARKS"). All trademark registrations and
all currently pending trademark applications with the PTO in which a Grantor has
an interest and all foreign trademark registrations and all currently pending
trademark applications in which a Grantor has an interest, are listed on
Schedule B opposite such Grantor's name. Each Grantor hereby further grants to
the Lender, a valid security interest in all of its right, title and interest in
and to (i) all proceeds, income, royalties, damages and payments now and
hereafter due and payable under or in respect of all Trademarks, (ii) all rights
during the term of this Agreement to xxx, collect and retain for the Lender's
benefit damages and payments for past or future infringements of the Trademarks
and (iii) all rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether the Obligor is a
licensee or licensor under any such license agreement.
(c) SECURITY INTEREST IN COPYRIGHTS. To secure the full and prompt
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of all of the Obligations, each Grantor hereby grants to the Lender,
a valid security interest in all of its right, title and interest in the United
States and throughout the world in, to and under all of its now owned and
hereafter acquired copyrights, and all registrations and applications to
register the same, all renewals thereof, any written agreement, naming any
Grantor as licensor or licensee, granting any right under any copyright any work
which is or may be subject to copyright protection pursuant to Title 17 of the
U.S. Code, and all physical things embodying such works (including, without
limitation, copies thereof) created or otherwise used in the business of any
Grantor, and all proceeds thereof (hereinafter collectively referred to as the
"COPYRIGHTS"). All copyright registrations and all currently pending copyright
applications with the United States Copyright Office in which a Grantor has an
interest are listed on Schedule C opposite such Grantor's name. Each Grantor
hereby further grants to the Lender, a valid security interest in all of its
right, title and interest in and to all proceeds, income, royalties, damages and
payments now and hereafter due and payable under or in respect of all Copyrights
and in and to all rights during the term of this Agreement to xxx, collect and
retain for the Lender's benefit damages and payments for past or future
infringements of the Copyrights.
(d) SECURITY INTEREST IN PROPRIETARY INFORMATION. To secure the full
and prompt payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all of the Obligations, each Grantor hereby grants
to the Lender, a valid security interest in all of its right, title and interest
in the United States and throughout the world in, to and under all of its now
owned and hereafter acquired source code, machine code, software, domain names,
inventions, discoveries, trade secrets, improvements, processes, methods,
formulae, applications, ideas, know-how, customer lists, corporate and other
business records, license rights, advertising materials, operating manuals,
sales literature, drawings, specifications, descriptions, name plates,
catalogues, dealer contracts, supplier contracts, distributor agreements,
confidential information, consulting agreements, engineering contracts,
proprietary information, and goodwill (and all other assets which uniquely
reflect such goodwill), and to all income, royalties, damages and
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payments now and hereafter due and/or payable therefor or in respect thereof and
all proceeds thereof (collectively, the "PROPRIETARY INFORMATION" and, together
with the Patents, the Trademarks, the Copyrights and all other assets described
above, the "INTELLECTUAL PROPERTY COLLATERAL").
(e) CERTAIN EXCLUSIONS FROM GRANT OF SECURITY INTERESTS. Anything in
this Agreement to the contrary notwithstanding, the foregoing grant, assignment,
transfer, and conveyance of security interests shall not extend to, and the term
"Copyrights" shall not include, any item of Copyrights described in Section 2(c)
above that is now or hereafter held by a Grantor as licensee or otherwise,
solely in the event and to the extent that: (i) as the proximate result of the
foregoing grant, assignment, transfer, or conveyance of security interests, such
Grantor's rights in or with respect to such item of Copyrights would be
forfeited or would become void, voidable, terminable, or revocable, or if such
Grantor would be deemed to have breached, violated, or defaulted the underlying
license or other agreement that governs such item of Copyrights pursuant to the
restrictions in the underlying license or other agreement that governs such item
of Copyrights; (ii) any such restriction shall be effective and enforceable
under applicable law, including the Uniform Commercial Code (the "UCC"); and
(iii) any such forfeiture, voidness, voidability, terminability, revocability,
breach, violation, or default cannot be remedied or prevented by such Grantor
using its reasonable efforts (but without any obligation to make any material
expenditures of money or to commence legal proceedings); PROVIDED, HOWEVER, that
the foregoing grant, assignment, transfer, and conveyance of security interests
shall extend to, and the term "Copyrights" shall include, (y) any and all
proceeds of such item of Copyrights and (z) upon any such licensor or other
applicable party's consent with respect to any such otherwise excluded item of
Copyrights being obtained, thereafter such item of Copyrights as well as any
proceeds thereof that might theretofore have been excluded from such grant,
assignment, transfer, and conveyance of security interests and the term
"Copyrights."
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OBLIGOR.
(a) The Grantors are and will continue to be the owner of all of the
Intellectual Property Collateral, free from any adverse claim, security
interest, lien or encumbrance in favor of any Person except for the security
interest granted under the Loan Agreement, except as set forth on SCHEDULE D
attached hereto and made a part hereof, except for liens, licenses and other
dispositions permitted by the Loan Agreement and except as otherwise expressly
permitted pursuant to this Section 2.
(b) None of the Intellectual Property Collateral is or shall become
subject to any lien, security interest or other encumbrance in favor of any
Person other than the Lender, except for any liens, licenses and other
dispositions permitted by the Loan Agreement, and each Grantor agrees not to
license, transfer, convey or encumber any interest in or to its Intellectual
Property Collateral except as permitted by the Loan Agreement. Each Grantor
shall also be permitted to license its Intellectual Property (on a nonexclusive
basis) in the ordinary course of business on commercially reasonable terms to
third parties. Any license of the Intellectual Property Collateral granted after
the date hereof by a Grantor (each, a "LICENSE") shall be in writing and shall
not prohibit the applicable Grantor from assigning, transferring, selling,
sublicensing or otherwise disposing of all or any of its right, title and
interest thereunder to the Lender or its designees in accordance with Section 4
hereof.
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(c) Except for liens, licenses and other dispositions permitted by
the Loan Agreement, no Grantor has made any previous assignment, transfer or
agreement in conflict herewith or constituting a present or future assignment,
transfer, or encumbrance of any of its Intellectual Property Collateral.
(d) No Grantor is aware of any financing statement or other document
or instrument now signed or on file in any public office granting a security
interest in or otherwise encumbering any part of the Intellectual Property
Collateral, except those showing the Lender as secured party, except for liens,
licenses and other dispositions permitted by the Loan Agreement. So long as any
Obligations remain outstanding or any commitments thereunder remain in effect,
no Grantor will execute, and there will not be on file in any public office, any
such financing statement or other document or instruments, except financing
statements filed or to be filed in favor of the Lender and except for the grant
of any license.
(e) Subject to any limitation stated therein or in connection
therewith, each Grantor has taken reasonable steps and will take reasonable
steps to ensure all information furnished to the Lender concerning the
Intellectual Property Collateral and proceeds thereof is and will be accurate
and correct in all material respects.
(f) All Intellectual Property Collateral consisting of applications
for Patents and for registrations of Trademarks and Copyrights has been duly and
properly filed and all Intellectual Property Collateral consisting of issued or
granted Patents and of registrations of Trademarks and Copyrights (including,
without limitation, any and all renewals, reissues, continuations or divisions
thereof, as the case may be) has been duly and properly maintained except where
the abandonment or dedication to the public of any of such Patents, Trademarks,
or Copyrights of a Grantor is deemed to be in the best interests of the
applicable Grantor in the exercise of its reasonable business judgment.
(g) Promptly upon the receipt by a Grantor of an official filing
receipt indicating that a patent application or an application for registration
of a trademark has been received from a Grantor by the PTO or an application for
registration of a copyright has been received from a Grantor by the U.S.
Copyright Office and upon the issuance of any patent or of any trademark or
copyright registration, such Grantor shall provide Lender with prompt written
notice thereof and shall take all actions and execute and deliver to the Lender
all documents necessary or appropriate to perfect a first priority security
interest in such patent, trademark or copyright application or such patent or
trademark or copyright registration, and such Grantor shall cause instruments
sufficient to perfect, protect or establish the first priority lien or security
interest granted hereunder to be recorded in the PTO with respect to all United
States patent applications filed by it or patents issued to it during the prior
calendar quarter or preceding period, as the case may be, and with respect to
all trademark applications filed by it or trademark registrations issued to it,
such Grantor shall cause instruments sufficient to perfect, protect or establish
the first priority lien or security interest granted hereunder to be recorded in
the U.S. Copyright Office with respect to United States copyright applications
filed by it or copyright registrations issued to it.
(h) Except for dispositions of the Intellectual Property Collateral
permitted by the Loan Agreement, no Grantor shall take any action, or permit any
action to be taken by others
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subject to such Grantor's control, including any such Licensees, or fail to take
any action, or permit others subject to such Grantor's control, including any
such Licensees, to fail to take any action, subject to the provisions of Section
2(g), which would, in the case of any such actions or failures to act taken
singly or together, adversely affect the validity, grant and enforceability of
the security interest granted to the Lender herein; PROVIDED, HOWEVER, that, so
long as no Event of Default shall have occurred and be continuing, each Grantor
may take or fail to take such actions in the ordinary course of business, when
deemed to be in the best interest of such Grantor in the exercise of its
reasonable business judgment, and is otherwise not explicitly prohibited by this
Agreement. Notwithstanding the foregoing, no Grantor shall be permitted to
abandon or dedicate to the public any of the Trademarks, Patents, Copyrights or
other Intellectual Property Collateral in accordance with the terms of Section
2(l).
(i) Each Grantor shall promptly notify the Lender, in writing, of
any suit, action, proceeding, claim or counterclaim brought against such Grantor
that would reasonably be expected to adversely affect the Intellectual Property
Collateral in a material manner, and shall, on request, deliver to the Lender a
copy of all pleadings, papers, orders or decrees theretofore and thereafter
filed in any such suit, action or proceeding, and shall keep the Lender duly
advised in writing of the progress of any such suit.
(j) In the event of any material infringement of the Intellectual
Property Collateral by others or in the event of any other conduct materially
detrimental to the Intellectual Property Collateral by others known or brought
to the attention of a Grantor, the Grantors shall as promptly as practicable
notify the Lender in writing at the address set forth in the Loan Agreement of
such infringement or other conduct and the full nature and extent of such
infringement or other conduct known to the Grantors.
(k) If requested by the Lender, the Grantors shall provide the
Lender a complete report with respect to the Intellectual Property Collateral
and all licenses granted thereof granted by the Grantors. Upon request by the
Lender, the Grantors shall deliver to counsel for the Lender copies of any such
Intellectual Property Collateral and other documents concerned with or related
to the prosecution, protection, maintenance, enforcement and issuance of the
Intellectual Property Collateral.
(l) The Grantors shall notify the Lender in writing at the address
set forth in the Loan Agreement at least 30 days prior to any proposed voluntary
abandonment of any material amount of its Intellectual Property Collateral and
obtain the prior written consent of the Lender.
(m) During the term of this Agreement, each Grantor agrees:
(i) whenever any of the registered Trademarks are used by or
on behalf of a Grantor to, if reasonably practicable and to the extent
consistent with past practice, affix or cause to be affixed a notice that
the xxxx is a registered trademark or service xxxx, which notice shall be
in a form accepted or required by the trademark marking laws of each
country in which the xxxx is so used and registered; and
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(ii) whenever any of the underlying works covered by
registered Copyrights are used by or on behalf of a Grantor to (only to
the extent required under the laws of the relevant countries,
jurisdictions, territories, or international accords) affix or cause to be
affixed a notice that said underlying works are so covered, which notice
shall be in a form accepted or required by the copyright laws of such
country in which said underlying works are so used and registered.
(n) Each Grantor agrees, upon the reasonable request by the Lender,
during the term of this Agreement:
(i) to execute, acknowledge and deliver all additional
instruments and documents necessary or appropriate to effect the purposes
and intents of this Agreement, in a form reasonably acceptable to counsel
for the Lender;
(ii) to do all such other acts as may be necessary or
appropriate in order to carry out the purposes and intents of this
Agreement, and to create, evidence, perfect (except to the extent not
perfectible by using commercially reasonable efforts pursuant to the laws
of the relevant country, jurisdiction or territory) and continue the
security interests of the Lender, in the Intellectual Property Collateral;
and
(iii) Without limiting the generality of the foregoing, each
Grantor:
(A) authorizes the Lender, in the Lender's sole
discretion after ten (10) business days prior notice to the
applicable Grantor, to modify this Agreement without first
obtaining such Grantor's approval of or signature to such
modification by amending Schedule A, B or C hereof to include
a reference to any right, title or interest in any existing
Copyright, Patent or Trademark acquired or developed by any
Grantor after the execution hereof, or to delete any reference
to any right, title or interest in any Copyright, Patent or
Trademark in which the Grantors no longer has or claims any
right, title or interest; and
(B) hereby authorizes the Lender, in the Lender's sole
discretion, to file one or more financing or continuation
statements or other notices of security interest, and after
ten (10) business days prior notice to the applicable Grantor,
amendments thereto, relative to all or any portion of the
Intellectual Property Collateral without the signature of the
applicable Grantor where permitted by law.
(o) Each Grantor represents and warrants to the Lender that:
(i) the security interests granted to the Lender hereunder in
United States patents and patent applications (the "U.S. PATENTS") and in
the United States trademark registrations and applications (the "U.S.
TRADEMARKS"), upon the filing of appropriate filings with the PTO and
appropriate UCC financing statements, shall constitute a first priority,
perfected security interest in the U.S. Patents and U.S. Trademarks;
PROVIDED, HOWEVER, that recordation, filing or registration of such
security
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interest may be required to perfect such security interest in U.S. Patents
and U.S. Trademarks acquired by a Grantor after the date hereof;
(ii) the security interests granted to the Lender hereunder in
the registered Copyrights and Copyright applications (the "U.S.
COPYRIGHTS"), upon the filing of appropriate filings with the United
States Copyright Office and appropriate UCC financing statements, shall
constitute a first priority, perfected security interest in the U.S.
Copyrights; PROVIDED, HOWEVER, that recordation, filing or registration of
such security interest may be required to perfect such security interest
in U.S. Copyrights acquired by a Grantor after the date hereof; and
(iii) the security interests granted to the Lender hereunder
in the Proprietary Information located in the United States, upon the
filing of any appropriate filings with the PTO or United States Copyright
Office and appropriate UCC financing statements, shall constitute a first
priority, perfected security interest in such Proprietary Information, to
the extent that a first security interest can be created through such
filings; PROVIDED, HOWEVER, that recordation, filing or registration of
such security interests may be required to perfect such security interest
in the Proprietary Information acquired by a Grantor after the date
hereof.
(p) Each Grantor shall, concurrently with the execution and delivery
of this Agreement, execute and deliver to Lender an original Special Power of
Attorney in the form of Annex I annexed hereto for the implementation of the
assignment, sale or other disposition of the Intellectual Property Collateral
pursuant to Lender's exercise of the rights and remedies granted to the Lender
hereunder.
SECTION 3. INDEMNITY. Each Grantor agrees to indemnify the Lender from and
against any and all claims, losses and liabilities arising out of or resulting
from this Agreement (including, without limitation, enforcement of this
Agreement and any actions taken pursuant to Section 4 or any failure to act
thereunder), except for claims, losses or liabilities resulting from the gross
negligence or willful misconduct of the Lender.
SECTION 4. RIGHTS AND REMEDIES UPON AN EVENT OF DEFAULT.
(a) If any Event of Default shall have occurred and be continuing,
then and in every such case, subject to any mandatory requirements of applicable
law then in effect, the Lender, in addition to other rights and remedies
provided for herein and any rights now or hereafter existing under applicable
law, shall have all rights and remedies as a secured creditor under the UCC in
all relevant jurisdictions and may:
(i) personally, or by attorneys, immediately take possession
of the Intellectual Property Collateral or any part thereof, from the
Grantors or any other Person who then has possession of any part thereof,
with or without notice or process of law, and for that purpose may enter
upon the premises of the Grantors where any of the Intellectual Property
Collateral is located and remove the same and use in connection with such
removal any and all services, supplies, aids and other facilities of the
Grantors; or
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(ii) sell, assign or otherwise liquidate, or direct the
applicable Grantor to sell, assign or otherwise liquidate, any or all of
the Intellectual Property Collateral or any part thereof, and take
possession of the proceeds of any such sale or liquidation.
(b) Any collateral repossessed by the Lender under or pursuant to
Section 4(a) and any other Intellectual Property Collateral whether or not so
repossessed by the Lender, may be sold, assigned, leased or otherwise disposed
of under one or more contracts or as an entirety, and without the necessity of
gathering at the place of sale the property to be sold, and in general in such
manner, at such time or times, at such place or places and on such terms as the
Lender may, in compliance with any mandatory requirements of applicable law,
determine to be commercially reasonable. Any such disposition which shall be a
private sale or other private proceedings permitted by such requirements shall
be made upon not less than 30 days' written notice to the applicable Grantor.
Any such disposition which shall be a public sale permitted by such requirements
shall be made upon not less than 30 days' written notice to the applicable
Grantor specifying the time and place of such sale and, in the absence of
applicable requirements of law, shall be by public auction (which may, at the
option of the Lender, be subject to reserve), after publication of notice of
such auction not less than 30 days prior thereto in two newspapers in general
circulation in the jurisdiction in which such auction is to be held. To the
extent permitted by any such requirement of law, the Lender may bid for and
become the purchaser of the Intellectual Property Collateral or any item
thereof, offered for sale in accordance with this Section without accountability
to any Grantor (except to the extent of surplus money received). If, under
mandatory requirements of applicable law, the Lender shall be required to make
disposition of the Intellectual Property Collateral within a period of time
which does not permit the giving of notice to the applicable Grantor as
hereinabove specified, the Lender need give the applicable Grantor only such
notice of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law. The Lender shall not be obligated to
make any sale of Intellectual Property Collateral regardless of notice of sale
having been given. The Lender may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(c) Upon the occurrence and during the continuance of a Default or
an Event of Default, the Lender shall have the right at any time to make any
payments and do any other acts the Lender may deem necessary to protect the
Lender's security interests in the Intellectual Property Collateral, including,
without limitation, the rights to pay, purchase, contest or compromise any
encumbrance, charge or lien which, in the reasonable judgment of the Lender,
appears to be prior to or superior to the security interests granted hereunder,
and appear in and defend any action or proceeding purporting to affect its
security interests in, and/or the value of, the Intellectual Property
Collateral. The Borrower hereby agrees to reimburse the Lender for all
reasonable payments made and expenses incurred under this Agreement including
reasonable fees, expenses and disbursements of attorneys and paralegals acting
for the Lender, including any of the foregoing payments under, or acts taken to
protect its security interests in, the Intellectual Property Collateral, which
amounts shall be secured under this Agreement, and agree they shall be bound by
any payment made or act taken by the Lender hereunder absent the Lender's gross
negligence or willful misconduct. The Lender shall have no obligation to make
any of the foregoing payments or perform any of the foregoing acts.
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(d) Each Grantor hereby irrevocably authorizes and appoints the
Lender, or any Person or agent the Lender may designate, as such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, at the Borrower's cost and expense, in
the Lender's discretion, to, upon the occurrence and during the continuance of
Default or an Event of Default, take any action and to execute any instrument
that the Lender may deem necessary or advisable to accomplish the purposes and
intents of this Agreement and to exercise all of the following powers, which
powers, being coupled with an interest, shall be irrevocable until all of the
Obligations shall have been paid and satisfied in full:
(i) ask for, demand, collect, bring suit, recover, compromise,
administer, accelerate or extend the time of payment, issue credits,
compromise, receive and give acquittance and receipts for moneys due and
to become due under or in respect of any of the Intellectual Property
Collateral;
(ii) receive, take, endorse, negotiate, sign, assign and
deliver and collect any checks, notes, drafts or other instruments,
documents and chattel paper, in connection with clause (i) above;
(iii) receive, open and dispose of all mail addressed to any
Grantor and notify postal authorities to change the address for delivery
thereof to such address as the Lender may designate;
(iv) give customers indebted to the applicable Grantor with
respect to the Intellectual Property Collateral of the Grantor's notice of
the Lender's interest therein, and/or to instruct such customers to make
payment directly to the Lender for the applicable Grantor's account and/or
to request, at any time from customers indebted to the applicable grantor
with respect to the Intellectual Property Collateral, verification of
information concerning the Intellectual Property Collateral and the
amounts owing thereon;
(v) convey any item of Intellectual Property Collateral to any
purchaser thereof;
(vi) record any instruments under Section 2(g) hereof;
(vii) make any payments or take any acts under Section 4(c)
hereof; and
(viii) file any claims or take any action or institute any
proceedings that the Lender may reasonably deem necessary or desirable for
the collection of any of the Intellectual Property Collateral or otherwise
to enforce the rights of the Lender with respect to any of the
Intellectual Property Collateral.
The Lender's authority under this Section 4(d) shall include, without
limitation, the authority to execute and give receipt for any certificate of
ownership or any document, transfer title to any item of Intellectual Property
Collateral,, sign each Grantor's name on all financing statements or any other
documents deemed necessary or appropriate to preserve, protect or perfect the
security interest in the Intellectual Property Collateral and to file the same,
prepare, file and sign each Grantor's name on any notice of lien, assignment or
satisfaction of lien or similar document in
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connection with any Intellectual Property Collateral, and prepare, file and sign
each Grantor's name on a proof of claim in bankruptcy or similar document
against any customer of such Grantor, and to take any other actions arising from
or incident to the rights, powers and remedies granted to the Lender in this
Agreement. This power of attorney is coupled with an interest and is irrevocable
by the Grantors.
(e) All cash proceeds received by the Lender in respect of any sale
of, collection from, or other realization upon all or any part of the
Intellectual Property Collateral shall be applied by the Lender against the
Obligations in such order as the Lender may determine.
(f) The Lender shall have the right of setoff as provided in the
Loan Agreement.
(g) Upon the occurrence and during the continuance of a Default or
an Event of Default, all income, royalties, payments and damages under or in
respect of the Intellectual Property Collateral, if any, received thereafter
shall be held by the applicable Grantor in trust for the benefit of the Lender,
separate from such Grantor's own property or funds and immediately turned over
to the Lender with proper assignments or endorsements. Upon the occurrence and
during the continuance of a Default or an Event of Default, the Lender shall
have the right to notify payors of income, royalties, payments and damages under
or in respect of the Intellectual Property Collateral to make payment directly
to the Lender.
(h) Each and every right, power and remedy hereby specifically given
to the Lender shall be in addition to every other right, power and remedy
specifically given under this Agreement or under the Loan Agreement or now or
hereafter existing at law or in equity, or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time or simultaneously and as often and in such order as
may be deemed expedient by the Lender. All such rights, powers and remedies
shall be cumulative and the exercise or the beginning of exercise of one shall
not be deemed a waiver of the right to exercise of any other or others. No delay
or omission of the Lender in the exercise of any such right, power or remedy and
no renewal or extension of any of the Obligations shall impair any such right,
power or remedy or shall be construed to be a waiver of any Default or Event of
Default or any acquiescence therein.
SECTION 5. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in writing and
sent by certified or registered mail, return receipt requested, or by overnight
delivery service, with all charges prepaid, or by telecopier,
if to the Lender, then to,
Aegis NY Venture Fund GP, LLC
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
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With a copy to,
Nimkoff Xxxxxxxxx & Xxxxxxxxx, LLP
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to any Grantor, then to:
SLM Holdings, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000X
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
With a copy to:
Xxxxxxx Savage LLP
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
All such notices and correspondence shall be deemed given (i) if
sent by certified or registered mail, three (3) Business Days after being
postmarked, (ii) if sent by overnight delivery service, when received at the
above stated addresses or when delivery is refused and (iii) if sent by
facsimile transmission, when receipt of such transmission is acknowledged.
(b) HEADINGS. The headings in this Agreement are for purposes of
reference only and shall not affect the meaning or construction of any provision
of this Agreement.
(c) SEVERABILITY. The provisions of this Agreement are severable,
and if any clause or provision shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect, in that jurisdiction only, such clause or provision, or part thereof,
and shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Agreement in any
jurisdiction.
(d) AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver of any
provision of this Agreement and any consent to any departure by any Grantor from
any provision of this Agreement shall not be effective unless the same shall be
in writing and signed by the Grantors and the Lender and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(e) INTERPRETATION. Time is of the essence in each provision of this
Agreement of which time is an element. All terms not defined herein or in the
Loan Agreement shall have the meaning set forth in the UCC, except where the
context otherwise requires. To the extent a
11
term or provision of this Agreement conflicts with the Loan Agreement and is not
dealt with herein with more specificity, the Loan Agreement shall control with
respect to the subject matter of such term or provision. Acceptance of or
acquiescence in a course of performance rendered under this Agreement shall not
be relevant in determining the meaning of this Agreement even though the
accepting or acquiescing party had knowledge of the nature of the performance
and opportunity for objection.
(f) CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Intellectual Property Collateral and shall
(i) remain in full force and effect until the payment in full of the
Obligations, (ii) be binding upon each Grantor and its successors and assigns
and (iii) inure, together with the rights and remedies of the Lender hereunder,
to the benefit of the Lender and its successors, transferees and assigns.
(g) REINSTATEMENT. To the extent permitted by law, this Agreement
shall continue to be effective or be reinstated if at any time any amount
received by the Lender in respect of the Obligations is rescinded or must
otherwise be restored or returned by the Lender upon the occurrence or during
the pendency of any bankruptcy, reorganization or other similar proceeding
applicable to any Grantor, or upon or during the occurrence of any dissolution,
liquidation or winding up of any Grantor, all as though such payments had not
been made.
(h) SURVIVAL OF PROVISIONS. All representations, warranties and
covenants of the Grantors contained herein shall survive the date hereof, and
shall terminate only upon the full and final payment and performance of the
Obligations secured hereby and termination of the Loan Agreement.
(i) LENDER MAY PERFORM. If any Grantor fails to perform any
agreement contained herein, the Lender may itself perform, or cause performance
of, such agreement, and the reasonable expenses of the Lender incurred in
connection therewith shall be payable by the Borrower and shall constitute
Obligations secured by this Agreement.
(j) NO DUTY ON LENDER. The powers conferred on the Lender hereunder
are solely to protect the interest of the Lender in the Intellectual Property
Collateral and shall not impose any duty upon the Lender to exercise any such
powers. Except for the safe custody of any Intellectual Property Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Lender shall have no duty as to any Intellectual Property Collateral, as to
ascertaining or taking action with respect to matters relative to any
Intellectual Property Collateral, whether or not the Lender has or is deemed to
have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Intellectual Property Collateral. The Lender shall be deemed to have exercised
reasonable care in the custody and preservation of any Intellectual Property
Collateral in its possession if such Intellectual Property Collateral is
accorded treatment substantially equal to that which the Lender accords its own
similar property. To the extent the Intellectual Property Collateral is held by
a custodian, the Lender shall be deemed to have exercised reasonable care if it
has selected the custodian with reasonable care.
(k) DELAYS; PARTIAL EXERCISE OF REMEDIES. No delay or omission of
the Lender to exercise any right or remedy hereunder, whether before or after
the happening of any Default
12
or Event of Default, shall impair any such right or shall operate as a waiver
thereof or as a waiver of any such Default or Event of Default. No single or
partial exercise by the Lender of any right or remedy shall preclude any other
or further exercise thereof, or preclude any other right or remedy.
(l) RELEASE; TERMINATION OF AGREEMENT. Subject to the provisions of
Section 5(g) hereof, upon the payment in full in cash of the Obligations this
Agreement and the Liens created hereby shall terminate and all rights in the
Intellectual Property Collateral shall revert to the Grantors. At such time, the
Lender shall, upon the request and at the expense of the Borrower, (A) execute
and deliver to the applicable Grantor such documents and shall take such other
actions as the applicable Grantor shall reasonably request to evidence such
termination and (B) reassign and redeliver to the applicable Grantor all of the
Intellectual Property Collateral hereunder which has not been sold, disposed of,
retained or applied by the Lender in accordance with the terms hereof. Such
reassignment and redelivery shall be without warranty by or recourse to the
Lender, except as to the absence of any prior assignments or encumbrances by the
Lender of its interest in the Intellectual Property Collateral.
(m) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement. This Agreement may be delivered
by telecopier with the same force and effect if it were a manually executed and
delivered counterpart.
(n) GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
(o) SERVICE OF PROCESS. EACH GRANTOR AGREES THAT SERVICE OF PROCESS
IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL) POSTAGE PREPAID, TO THE APPLICABLE GRANTOR AT ITS ADDRESS
SET FORTH IN SECTION 5(A). NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT
OF THE LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST ANY GRANTOR OR ITS
RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
(p) SUBMISSION TO JURISDICTION. EACH GRANTOR AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE LOAN AGREEMENT OR OTHER
DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF THE STATE
13
AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK AND THE COURTS TO
WHICH AN APPEAL THEREFROM MAY BE TAKEN; AND
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(r) WAIVER OF JURY TRIAL. EACH GRANTOR AND THE LENDER HEREBY WAIVE
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS
AGREEMENT, THE LOAN AGREEMENT OR ANY OF THE OTHER DOCUMENTS, OR ANY OTHER
AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized officers as of the day and year
first above written.
SLM HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: XXXXX Xxxxxxx
Title: CEO
SALES LEAD MANAGEMENT INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: XXXXX Xxxxxxx
Title: CEO
Accepted and Agreed as of the
date first above written:
AEGIS NY VENTURE FUND, LP, as Lender
BY: /s/ Xxxx Rosuts
-----------------------
Name: Xxxx Rosuts
Title: Chairman
15
INTELLECUTAL PROPERTY SECURITY
SCHEDULE A
"TBEV The Broker's Advantage"
SCHEDULE B
"TBEV The SLM Dialer" Trademark Pending
Schedule A
PATENTS AND PATENT APPLICATIONS
16
Schedule B
TRADEMARKS AND TRADEMARK APPLICATIONS
17
Schedule C
COPYRIGHT REGISTRATIONS
18
Schedule D
ASSIGNMENTS, TRANSFERS, AGREEMENTS, FINANCING STATEMENTS, ETC.
19
ANNEX I
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that [SLM Holdings, Inc.]. (an "Obligor"),
hereby appoints and constitutes, severally, Aegis NY Venture Fund, LP as Lender
("Secured Party"), and each officer thereof, its true and lawful attorney, with
full power of substitution and with full power and authority to perform the
following acts on behalf of Obligor pursuant to and in accordance with the Loan
and Security Agreement between Obligor and Secured Party dated as of even date
herewith (the "Loan Agreement") and the Security Agreement (as defined below):
1. Execution and delivery of any and all agreements, documents,
statements, instruments of assignment, certificates or other papers which
Secured Party, in its discretion, deems necessary or advisable for the purpose
of assigning, selling, or otherwise disposing of all right, title, and interest
of Obligor in and to (a) any patents and all registrations, recordings,
reissues, extensions, and renewals thereof, or for the purpose of recording,
registering and filing of, or accomplishing any other formality with respect to
the foregoing, (b) any trademarks and all registrations, recordings, reissues,
extensions, and renewals thereof, or for the purpose of recording, registering
and filing of, or accomplishing any other formality with respect to the
foregoing and (c) any copyright and all registrations, recordings, reissues,
extensions and renewals thereof, or for the purpose of recording, registering
and filing of, or accomplishing any other formality with respect to the
foregoing..
This Power of Attorney is made pursuant to an Intellectual Property
Security Agreement, dated as of even date herewith, by Obligor in favor of
Secured Party (the "Security Agreement") and is subject to the terms and
provisions thereof.
This Power of Attorney being coupled with an interest, is irrevocable
until all "Obligations," as such term is defined in the Loan Agreement, are paid
in full and the Security Agreement is terminated in accordance with Section 5(l)
thereof.
Dated: April 10, 2006
[SLM Holdings, Inc.]
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: CEO
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 10th day of April, 2006, before me personally came Xxxxx Xxxxxxx,
to me known, who being duly sworn, did depose and say, that he is the CEO of SLM
Holdings, Inc. described in and which executed the foregoing instrument; and
that he signed his name thereto by order of the ______________________________.
XXXXXXX X. XXXXXXXX
Notary Public, State of New York
No. 02AN5069819
Qualified in New York County
Commission Expires 12/02/06
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Notary Public
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