EXHIBIT 4.7
EXECUTION COPY
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"IP SECURITY AGREEMENT") dated December 29, 2005, is made by the Persons listed
on the signature pages hereof (collectively, the "GRANTORS") in favor of Xxxxx
Fargo Bank, N.A. ("XXXXX FARGO") as Collateral Agent (the "COLLATERAL AGENT")
for and representative of (in such capacity, together with its successors and
assigns, the "SECURED PARTY") the Holders (as defined in the Indenture (as
defined below)).
WHEREAS, National Coal Corp., a Florida corporation, and the
Grantors have entered into an Indenture dated as of December 29, 2005 (as
amended, amended and restated, supplemented or otherwise modified from time to
time the "INDENTURE"), with Xxxxx Fargo, as Collateral Agent. Terms defined in
the Indenture and not otherwise defined herein are used herein as defined in the
Indenture.
WHEREAS, as a condition precedent to the purchase of the Notes
by the Holders, each Grantor has executed and delivered that certain Security
Agreement dated December 29, 2005 made by the Grantors to the Secured Party (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "SECURITY AGREEMENT").
WHEREAS, under the terms of the Security Agreement, the
Grantors have granted to the Secured Party a security interest in, among other
property, certain intellectual property of the Grantors, and have agreed as a
condition thereof to execute this IP Security Agreement for recording with the
U.S. Patent and Trademark Office, the United States Copyright Office and other
governmental authorities.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Grantor agrees as
follows:
1. GRANT OF SECURITY. Each Grantor hereby grants to the Secured Party a
security interest in all of such Grantor's right, title and interest in
and to the following (the "COLLATERAL"):
(a) the trademark and service xxxx registrations and applications
set forth on SCHEDULE A hereto (provided that no security
interest shall be granted in United States intent-to-use
trademark applications to the extent that, and solely during
the period in which, the grant of a security interest therein
would impair the validity or enforceability of such
intent-to-use trademark applications under applicable federal
law), together with the goodwill symbolized thereby (the
"TRADEMARKS");
(b) all copyrights, whether registered or unregistered, now owned
or hereafter acquired by such Grantor (the "COPYRIGHTS");
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the
foregoing, all rights in the foregoing
provided by international treaties or conventions, all rights
corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto;
(d) any and all claims for damages and injunctive relief for past,
present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the
foregoing, with the right, but not the obligation, to xxx for
and collect, or otherwise recover, such damages; and
(e) any and all proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect
to, and supporting obligations relating to, any and all of the
Collateral of or arising from any of the foregoing.
2. SECURITY FOR OBLIGATIONS. The grant of a security interest in, the
Collateral by each Grantor under this IP Security Agreement secures the
payment of all Obligations of such Grantor now or hereafter existing
under or in respect of the Notes, the Indenture, or the Security
Documents, whether direct or indirect, absolute or contingent, and
whether for principal, reimbursement obligations, interest, premiums,
penalties, fees, indemnifications, contract causes of action, costs,
expenses or otherwise.
3. RECORDATION. Each Grantor authorizes and requests that the Register of
Copyrights and the Commissioner for Trademarks and any other applicable
U.S. government officer record this IP Security Agreement.
4. EXECUTION IN COUNTERPARTS. This IP Security Agreement may be executed
in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
5. GRANTS, RIGHTS AND REMEDIES. This IP Security Agreement has been
entered into in conjunction with the provisions of the Security
Agreement. Each Grantor does hereby acknowledge and confirm that the
grant of the security interest hereunder to, and the rights and
remedies of, the Secured Party with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of
which are incorporated herein by reference as if fully set forth
herein.
6. GOVERNING LAW. This IP Security Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, each Grantor has caused this IP Security
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
NATIONAL COAL CORP.
By: /s/ Xxx X. Xxx
------------------------------------
Name: Xxx X. Xxx
Title: CEO
Address for Notices:
NATIONAL COAL CORPORATION
By: /s/ Xxx X. Xxx
------------------------------------
Name: Xxx X. Xxx
Title: CEO
Address for Notices:
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NC TRANSPORTATION, INC.
By: /s/ Xxx X. Xxx
------------------------------------
Name: Xxx X. Xxx
Title: CEO
Address for Notices:
NC RAILROAD, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
Address for Notices:
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SCHEDULE A
--------------------------- -------------- ------------ ------------ -------------- ------------ ---------------
TRADEMARK FILING DATE APPL. NO. ISSUE DATE REG. NO. STATUS OWNER
--------------------------- -------------- ------------ ------------ -------------- ------------ ---------------
NCC 8/4/03 5/20/04 2,835,601 Effective National Coal
Corporation
--------------------------- -------------- ------------ ------------ -------------- ------------ ---------------
NCC 07/07/2003 Effective National Coal
(Tennessee Registration) Corporation
--------------------------- -------------- ------------ ------------ -------------- ------------ ---------------
N 1/18/2005 78549105 Not Available Pending National Coal
Corporation
(Serial No.)
--------------------------- -------------- ------------ ------------ -------------- ------------ ---------------
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FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT SUPPLEMENT (this
"IP SECURITY AGREEMENT Supplement") dated December 29, 2005, is made by the
Person listed on the signature page hereof (the "GRANTOR") in favor of Xxxxx
Fargo Bank, N.A. ("XXXXX FARGO"), as Collateral Agent (the "COLLATERAL AGENT")
for and representative of (in such capacity, together with its successors and
assigns, the "SECURED PARTY") the Holders (as defined in the Indenture (as
defined below)).
WHEREAS, National Coal Corp., a Florida corporation, and the
Grantors have entered into an Indenture dated as of December 29, 2005 (as
amended, amended and restated, supplemented or otherwise modified from time to
time the "INDENTURE"), with Xxxxx Fargo, as Collateral Agent. Terms defined in
the Indenture and not otherwise defined herein are used herein as defined in the
Indenture.
WHEREAS, pursuant to the Indenture, the Grantor and certain
other Persons have executed and delivered that certain Security Agreement dated
December 29, 2005 made by the Borrower, the Guarantors and any other Grantors
from time to time party thereto (collectively, the "GRANTORS") in favor of the
Secured Party (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "SECURITY AGREEMENT") and that certain
Intellectual Property Security Agreement dated December 29, 2005 made by the
Grantors in favor of the Secured Party (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "IP SECURITY
AGREEMENT").
WHEREAS, under the terms of the Security Agreement, the
Grantor has granted to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in the Additional Collateral (as defined in
SECTION 1 below) of the Grantor and has agreed as a condition thereof to execute
this IP Security Agreement Supplement for recording with the U.S. Patent and
Trademark Office, the United States Copyright Office and other U.S. governmental
authorities.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Grantor agrees as
follows:
1. GRANT OF SECURITY. Each Grantor hereby grants to the Secured Party a
security interest in all of such Grantor's right, title and interest in
and to the following (the "ADDITIONAL COLLATERAL"):
(a) the trademark and service xxxx registrations and applications
set forth on SCHEDULE A hereto (provided that no security
interest shall be granted in United States intent-to-use
trademark applications to the extent that, and solely during
the period in which, the grant of a security interest therein
would impair the validity or enforceability of such
intent-to-use trademark applications under applicable federal
law), together with the goodwill symbolized thereby (the
"TRADEMARKS");
(b) all copyrights, whether registered or unregistered, now owned
or hereafter acquired by such Grantor (the "COPYRIGHTS");
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the
foregoing, all rights in the foregoing provided by
international treaties or conventions, all rights
corresponding thereto throughout the world and all other
rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto;
(d) any and all claims for damages and injunctive relief for past,
present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the
foregoing, with the right, but not the obligation, to xxx for
and collect, or otherwise recover, such damages; and
(e) any and all proceeds of, collateral for, income, royalties and
other payments now or hereafter due and payable with respect
to, and supporting obligations relating to, any and all of the
foregoing or arising from any of the foregoing.
2. SUPPLEMENT TO SECURITY AGREEMENT. [SCHEDULE V] to the Security
Agreement is, effective as of the date hereof, hereby supplemented to
add to such Schedule the Additional Collateral.
3. SECURITY FOR OBLIGATIONS. The grant of a security interest in the
Additional Collateral by the Grantor under this IP Security Agreement
Supplement secures the payment of all Obligations of the Grantor now or
hereafter existing under or in respect of the Notes, the Indenture or
the Security Documents, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract causes
of action, costs, expenses or otherwise.
4. RECORDATION. The Grantor authorizes and requests that the Register of
Copyrights and the Commissioner for Trademarks and any other U.S.
applicable government officer to record this IP Security Agreement
Supplement.
5. GRANTS, RIGHTS AND REMEDIES. This IP Security Agreement Supplement has
been entered into in conjunction with the provisions of the Security
Agreement. The Grantor does hereby acknowledge and confirm that the
grant of the security interest hereunder to, and the rights and
remedies of, the Secured Party with respect to the Additional
Collateral are more fully set forth in the Security Agreement, the
terms and provisions of which are incorporated herein by reference as
if fully set forth herein.
6. GOVERNING LAW. This IP Security Agreement Supplement shall be governed
by, and construed in accordance with, the laws of the State of New
York.
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IN WITNESS WHEREOF, the Grantor has caused this IP Security
Agreement Supplement to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
[ADDITIONAL GRANTOR]
By:
--------------------------------
Name:
Title:
Address for Notices:
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