EXHIBIT 10.2
COPYRIGHT SECURITY AGREEMENT
This Agreement, dated as of April 8, 2003, is made by Fastnet
Corporation, a Pennsylvania corporation (the "Grantor"), having a mailing
address at Two Xxxxxxxx Place, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000, for the benefit of Equinox Business Credit Corp., a New
Jersey corporation (the "Secured Party"), having a place of business at 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxx Xxxxxx 00000.
The Grantor is the owner of all of the copyrighted works,
registrations, and applications for registration described in Schedule A hereto.
The Grantor, various subsidiaries of the Grantor (together
with the Grantor, collectively, the "Borrowers") and the Secured Party are
parties to a Loan and Security Agreement of even date herewith (as the same may
be amended, supplemented or restated from time to time, the "Loan Agreement").
As a condition to extending credit under the Loan Agreement,
the Lender has required that the Grantor execute this agreement to evidence the
security interest granted to the Secured Party in any copyrights or copyright
applications not expressly covered by other security agreements.
ACCORDINGLY, in consideration of the agreements of the Secured
Party set forth in the Loan Agreement, the Grantor hereby agrees as follows:
1. DEFINITIONS. Terms defined in the Loan Agreement and not
otherwise defined herein shall have the meanings given them in the Loan
Agreement. In addition, the following terms have the meanings set forth below:
"Copyrights" means all of the Grantor's right, title and
interest in and to all copyrightable works and all copyrights of the
Grantor and licenses thereunder, whether presently existing or
hereafter arising, including but not limited to the registered
copyrights, applications to register copyrights, and unregistered works
(if any) listed on Schedule A.
"Event of Default" means (i) an Event of Default, as defined
in the Loan Agreement, any other Ancillary Agreement or security
agreement now in existence or hereafter entered into by the Grantor, or
(ii) any breach by the Grantor of any of its obligations under this
Agreement.
2. SECURITY INTEREST. In order to secure the Obligations, the
Grantor hereby confirms and acknowledges that it has granted and created (and,
to the extent not previously granted under the Loan Agreement, does hereby grant
and create) a security interest, with power of sale to the extent permitted by
the Loan Agreement and by law, in the Copyrights. This security interest is in
any and all rights of Grantor that may exist or hereafter arise under any
copyright law now or hereinafter in effect in the United States of America or in
any other country.
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3. REPRESENTATIONS AND WARRANTIES. The Grantor represents and
warrants that (a) the Grantor owns each of the works and rights listed in
Schedule A, free and clear of any Lien other than Permitted Liens, and (b) the
Copyrights listed in Schedule A include all copyrightable works owned or
controlled by the Grantor as of the effective date hereof, excluding immaterial
copyrights.
4. SATISFACTION. Upon full payment or satisfaction of the
Obligations and termination of any credit facilities extended to the Borrowers
by the Secured Party, this Agreement, and the rights granted hereunder to the
Secured Party, shall be terminated upon demand by a written termination
statement to the effect that the Secured Party no longer claims a security
interest under this Agreement.
5. ADMINISTRATION OF COPYRIGHTS. Prior to the occurrence of an
Event of Default, the Grantor may control and manage the Copyrights, including
the right to make and distribute copies of the works covered thereby, and may
receive and use the income, revenue, profits, and royalties that arise from the
use of the Copyrights and any licenses thereunder, in the same manner and to the
same extent as if this Agreement had not been entered into. The Grantor shall
give the Secured Party prompt notice of any change in the status of said
copyrights or the Grantor's rights thereunder.
6. PROTECTION OF COPYRIGHTS. The Grantor covenants that it
will at its own expense protect, defend and maintain the Copyrights to the
extent reasonably advisable in its business, and if the Grantor fails to do so,
the Secured Party may (but shall have no obligation to) do so in the Grantor's
name or in the Secured Party's name, but at the Grantor's expense, and the
Grantor shall reimburse the Secured Party in full for all expenses, including
reasonable attorney's fees incurred by the Secured Party in protecting,
defending and maintaining the Copyrights. The Grantor further covenants that it
will give notice to the Secured Party sufficient to allow the Secured Party to
timely carry out the provisions of this paragraph.
7. REMEDIES. Upon the occurrence of an Event of Default, the
Secured Party may, at its option, exercise any one or more of the following
remedies: (a) exercise all rights and remedies available under the UCC, or under
any applicable law; (b) sell, assign, transfer, pledge, encumber or otherwise
dispose of any Copyright; (c) enforce any Copyright, and any licenses
thereunder; and (d) exercise or enforce any or all other rights or remedies
available to the Secured Party by law or agreement against the Copyrights,
against the Grantor or against any other person or property. Upon the exercise
of any remedy by the Secured Party hereunder, the Grantor shall be deemed to
have waived all of its rights provided in 17 U.S.C. ss. 106A or any other "moral
rights of authors." If the Secured Party shall exercise any remedy under this
Agreement, the Grantor shall, at the request of the Secured Party, do any and
all lawful acts and execute any and all proper documents required by the Secured
Party in aid of thereof. For the purposes of this paragraph, the Grantor
appoints the Secured Party as its attorney with the right, but not the duty, to
endorse such Grantor's name on all applications, documents, papers and
instruments necessary for the Secured Party to (i) act in its own name or
enforce or use the Copyrights, (ii) grant or issue any exclusive or
non-exclusive licenses under the Copyrights to any third party, and/or (iii)
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sell, assign, transfer, pledge, encumber or otherwise transfer title in or
dispose of any Copyright. The Grantor hereby ratifies all that such attorney
shall lawfully do or cause to be done by virtue hereof. This power of attorney
shall be irrevocable until satisfaction of this Agreement in accordance with
paragraph 4. The Grantor shall reimburse the Secured Party for all reasonable
attorney's fees and expenses of all types incurred by the Secured Party, or its
counsel, in connection with the exercise of the rights of the Secured Party
under this Agreement, together with interest thereon from the date or dates the
same were incurred at the Default Rate.
8. GENERAL RIGHTS AND OBLIGATIONS. Except as expressly set
forth herein, the rights and obligations of the Grantor and the Secured Party
with respect to the Copyrights shall in all respects be governed by the Loan
Agreement, the terms of which are incorporated as fully as if set forth at
length herein.
IN WITNESS WHEREOF, the Grantor has executed this Agreement as
of the date first above-written.
FASTNET CORPORATION
By /S/XXXX XXXXXXX
-------------------------
Its Chief Financial Officer
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