AMENDED AND RESTATED INTELLECTUAL PROPERTY SECURITY AGREEMENT
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED INTELLECTUAL PROPERTY SECURITY AGREEMENT (as from time
to
time amended, restated, supplemented or otherwise modified, this “Agreement”),
dated
as of March 31, 2008, is made by PROLINK HOLDINGS CORP., a Delaware corporation
(the “Company”)
and
PROLINK SOLUTIONS, LLC, a Delaware limited liability company (“ProLink
Solutions”)
(each
a “Grantor”
and,
collectively, “Grantors”),
in
favor of LV
ADMINISTRATIVE SERVICES, INC.,
a
Delaware corporation, as administrative and collateral agent for the Lenders
(as
defined in the Security Agreement referred to below) (the “Agent”).
WHEREAS,
pursuant to that certain Amended and Restated Security Agreement dated as of
the
date hereof (as amended, restated, supplemented and/or otherwise modified from
time to time, the “Security
Agreement”)
by and
among Grantors, other subsidiaries of the Grantors which may hereafter become
a
party thereto, the Lenders party thereto from time to time and the Agent, the
Lenders have agreed to provide financial accommodations to
Grantors;
WHEREAS,
Creditor Parties are willing to enter into the Security Agreement only upon
the
condition, among others, that Grantors shall have executed and delivered to
Agent this Agreement; and
WHEREAS,
as of the date of this Agreement, the terms, conditions, covenants, agreements,
representations and warranties contained in that certain Intellectual Property
Security Agreement dated as of August 17, 2007 (the “Original
IP Security Agreement”),
made
by the Companies in favor of Calliope Capital Corporation (“Calliope”)
and
the other lenders (as partial assignees) (the “Other
Lenders”)
shall
be deemed amended and restated in their entirety as set forth in this Agreement
and the Original IP Security Agreement and shall be consolidated with and into
and superseded by this Agreement; provided,
however,
that
nothing contained in this Agreement shall impair or affect the liens on the
Collateral heretofore pledged, granted and/or assigned by the Companies to
Calliope and the Other Lenders as security for the Secured Obligations under
and
as defined in the Original IP Security Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantors hereby agrees as
follows:
Section
1 DEFINED
TERMS.
(a) When
used
herein the following terms shall have the following meanings:
“Copyrights”
means
all works capable of copyright under the laws of the United States, any other
country or any political subdivision thereof, whether registered or unregistered
and whether published or unpublished, all registrations and recordings thereof,
and all applications in connection therewith, including all registrations,
recordings and applications in the United States Copyright Office, and the
right
to obtain all renewals of any of the foregoing.
“Copyright
Licenses”
means
all written agreements relating to any Copyright, including agreements providing
the grant of rights to manufacture, distribute, exploit and sell materials
derived from any Copyright, and whether any Grantor is named as licensor,
licensee or otherwise.
“Creditor
Parties”
has
the
meaning given to the term in the Security Agreement.
“General
Intangibles”
shall
have the meaning provided thereto in Section 9-102 of the UCC, as amended,
restated or otherwise modified from time to time.
“IP
Licenses”
shall
mean Copyright Licenses, Patent Licenses and Trademark Licenses.
“Obligations”
has
the
meaning given to the term in the Security Agreement.
“Patents”
means
(a) all letters patent of the United States, any other country or any political
subdivision thereof, and all reissues and extensions of such letters patent,
(b)
all applications for letters patent of the United States or any other county
and
all divisions, continuations and continuations-in-part thereof, and (c) all
rights to obtain any reissues or extensions of the foregoing.
“Patent
Licenses”
means
all agreements, whether written or oral, relating to any Patent, including
agreements providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered in whole or in part by a Patent,
and whether any Grantor is named as licensor, licensee or
otherwise.
“Trademarks”
means
(a) all trademarks, trade names, corporate names, business names, fictitious
business names, trade styles, services marks, logos, domain names and other
source or business identifiers, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or political subdivision
thereof, or otherwise, and all common-law rights thereto, and (b) the right
to
obtain all renewals thereof.
“Trademark
Licenses”
means,
collectively, each agreement, whether written or oral, relating to any
Trademark, including agreements providing for the grant by or to any Grantor
of
any right to use any Trademark, and whether any Grantor is named as licensor,
licensee or otherwise.
“UCC”
has
the
meaning given to the term in the Security Agreement.
(b) All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Security Agreement.
Section
2 GRANT
OF SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL.
To
secure the complete and timely payment of all the Obligations of the Grantors
now or hereafter existing from time to time, each Grantor hereby acknowledges
and confirms that the Creditor Parties have and shall continue to have a
security interest in and Lien upon all of the Collateral (as defined below)
heretofore granted by such Grantor to Calliope (and subsequently partially
assigned to each Creditor Party) pursuant to the Original IP Security Agreement.
In furtherance of the foregoing, to secure the complete and timely payment
of
all the Obligations of the Grantors now or hereafter existing from time to
time,
each Grantor hereby grants to Agent, for the ratable benefit of the Creditor
Parties, a continuing first priority security interest in all of such Grantor’s
right, title and interest in, to and under the following, whether presently
existing or hereafter created or acquired (collectively, the “Collateral”):
2
(a) all
of
its Patents and Patent Licenses to which it is a party including those referred
to on Schedule
I
hereto;
(b) all
of
its Trademarks and Trademark Licenses to which it is a party including those
referred to on Schedule
II
hereto;
(c) all
of
its Copyrights and Copyright Licenses to which it is a party including those
referred to on Schedule
III
hereto;
(d) all
renewals, reissues, continuations or extensions of the foregoing;
(e) all
goodwill of the business connected with the use of, and symbolized by, each
Patent, each Patent License, each Trademark, each Trademark License, each
Copyright and each Copyright License; and
(f) all
products and proceeds of the foregoing, including, without limitation, any
claim
by such Grantor against third parties for past, present or future (i)
infringement or dilution of any Patent or Patent licensed under any Patent
License, (ii) injury to the goodwill associated with any Patent or any Patent
licensed under any Patent License, (iii) infringement or dilution of any
Trademark or Trademark licensed under any Trademark License, (iv) injury to
the
goodwill associated with any Trademark or any Trademark licensed under any
Trademark License, (v) infringement or dilution of any Copyright or Copyright
licensed under any Copyright License, and (vi) injury to the goodwill associated
with any Copyright or any Copyright licensed under any Copyright
License.
Section
3 REPRESENTATIONS
AND WARRANTIES.
Each
Grantor represents and warrants that:
(a) It
does
not have any interest in, or title to, any Patent, Trademark, Copyright or
any
IP License, except as set forth in Schedule
I,
Schedule
II
and
Schedule
III,
respectively, hereto.
(b) Except
as
set forth in Schedule
I,
Schedule
II
and
Schedule
III,
it is
either the sole owner of the Patents, Trademarks and Copyrights, or has the
sole
right to use the Patents, Trademarks and Copyrights, free and clear of all
liens
or other encumbrances.
(c) Each
of
the Patents, Trademarks and Copyrights is valid and enforceable, and there
is no
claim that the use of any of them violates the rights of any third
party.
(d) The
IP
Licenses are in full force and effect, and no Grantor is in breach or default
under any of the IP Licenses.
3
(e) This
Agreement is effective to create a valid and continuing first priority lien
on
and perfected security interests in favor of Agent, for the ratable Creditor
Parties of the Lenders, in all of each Grantor’s Patents, Trademarks, Copyrights
and IP Licenses and such perfected security interests are enforceable as such
as
against any and all creditors of, and purchasers from, such
Grantor.
(f) Upon
the
filing of (i) appropriate financing statements, all action necessary or
desirable to protect and perfect Agent’s first priority lien on each Grantor’s
Patents, Trademarks and IP Licenses shall have been duly taken and (ii) the
security interest in the Copyrights with the Copyright Office, all action
necessary or desirable to protect and perfect Agent’s first priority lien on
each Grantor’s Copyrights shall have been duly taken.
Section
4 COVENANTS.
Each
Grantor covenants and agrees with Agent that from and after the date of this
Agreement:
(a) It
shall
notify Agent immediately if it knows or has reason to know that any application
or registration relating to any Patent, Trademark or Copyright (now or hereafter
existing) may become abandoned or dedicated, or of any adverse determination
or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court) regarding any Grantor’s
ownership of or right to use any Patent, Trademark or Copyright, its right
to
register the same, or to keep and maintain the same.
(b) In
no
event shall any Grantor, either directly or through any agent, employee,
licensee or designee, file an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office,
the
United States Copyright Office or any similar office or agency without giving
Agent prior written notice thereof, and, upon request of Agent, each Grantor
shall execute and deliver a supplement hereto (in form and substance
satisfactory to Agent) to evidence Agent’s lien on such Patent, Trademark or
Copyright, and such Grantor’s General Intangibles relating thereto or
represented thereby.
(c) It
shall
take all actions necessary or requested by Agent to continue to use all
Trademarks (and all trademarks owned by a third party and subject to a Trademark
License) and maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of the Patents or
Trademarks (now or hereafter existing), including the filing of applications
for
renewal, affidavits of use, affidavits of noncontestability and opposition
and
interference and cancellation proceedings.
(d) In
the
event that any of the Collateral is infringed upon, misappropriated or diluted
by a third party, the Grantors shall notify Agent promptly after any Grantor
learns thereof. Each Grantor shall, unless it shall reasonably determine that
such Collateral is in no way material to the conduct of its business or
operations, promptly xxx for infringement, misappropriation or dilution and
to
recover any and all damages for such infringement, misappropriation or dilution,
and shall take such other actions as Agent shall deem appropriate under the
circumstances to protect such Collateral.
4
Section
5 SECURITY
AGREEMENT.
The
security interests granted pursuant to this Agreement are granted in conjunction
with the security interests granted to Agent, for the ratable benefit of the
Creditor Parties, by each Grantor pursuant to the Security Agreement. The
Grantors and Agent hereby acknowledge and affirm that the rights and remedies
of
the Creditor Parties with respect to the security interest in the Collateral
made and granted hereby are more fully set forth in the Security Agreement,
the
terms and provisions of which are incorporated by reference herein as if fully
set forth herein.
Section
6 REINSTATEMENT.
This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against any Grantor for liquidation or
reorganization, should any Grantor become insolvent or make an assignment for
the benefit of any creditor or creditors or should a receiver or trustee be
appointed for all or any significant part of such Grantor’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant
to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or
returned by any obligee of the Obligations, whether as a “voidable preference,”
“fraudulent conveyance,” or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
SECTION
7 EXECUTION
OF POWER OF ATTORNEY.
Concurrently with the execution and delivery hereof, each Grantor shall execute
and deliver to Agent, in the form of Exhibit
A
hereto,
ten (10) original Powers of Attorney for the implementation of the assignment,
sale or other disposal of the Collateral pursuant to the Creditor Parties’
rights and remedies under the Security Agreement.
SECTION
8 INDEMNIFICATION.
Each
Grantor assumes all responsibility and liability arising from the use of the
Patents, Trademarks and/or Copyrights and each Grantor hereby indemnifies and
holds the Creditor Parties harmless from and against any claim, suit, loss,
damage or expense (including reasonable attorneys’ fees) arising out of any
Grantor’s operations of its business from the use of the Patents, Trademarks
and/or Copyrights. In any suit, proceeding or action brought by the Creditor
Parties under any IP License for any sum owing thereunder, or to enforce any
provisions of such IP License, each Grantor will indemnify and keep the Creditor
Parties harmless from and against all expense, loss or damage suffered by reason
of any defense, set off, counterclaim, recoupment or reduction or liability
whatsoever of the obligee thereunder, arising out of a breach by any Grantor
of
any obligation thereunder or arising out of any other agreement, indebtedness
or
liability at any time owing to or in favor of such obligee or its successors
from any Grantor, and all such obligations of such Grantor shall be and remain
enforceable against and only against such Grantor and shall not be enforceable
against any of the Creditor Parties. Grantors shall have no obligations under
this Section 8 in the event any claim, suit, loss, damage or expense arises
solely from the gross negligence or willful misconduct of the Creditor
Parties.
5
Section
9 NOTICES.
Whenever it is provided herein that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties by any other party, or whenever any of the parties
desires to give and serve upon any other party any communication with respect
to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be given in
the
manner, and deemed received, as provided for in the Security
Agreement.
Section
10 TERMINATION
OF THIS AGREEMENT.
Subject
to Section
6
hereof,
this Agreement shall terminate upon indefeasible payment in full in cash of
all
Obligations and irrevocable termination of the Security Agreement.
[Signature
Page to Follow]
6
IN
WITNESS WHEREOF, each Grantor has caused this Amended and Restated Intellectual
Property Security Agreement to be executed and delivered by its duly authorized
officer as of the date first set forth above.
|
PROLINK
SOLUTIONS, LLC
By:
Name:
Title:
By:
Name:
Title:
|
|
|
ACCEPTED
AND ACKNOWLEDGED BY:
LV
ADMINISTRATIVE SERVICES INC.,
as
Agent
By:
Name:
Title:
Authorized Signatory
|
7
STATE
OF
____________ )
)
ss:
COUNTY
OF
__________ )
On
the
____ day of _______________, 2008, before me personally came
_____________________ to me known, who being by me duly sworn, did depose
and
say s/he is the ______________ of ProLink Solutions, LLC, the limited liability
company described in and which executed the foregoing instrument; and that
s/he
signed her/his name thereto pursuant to his/her authority under the
organizational documents of said company.
|
Notary
Public
My
Commission Expires:
|
STATE
OF
____________ )
)
ss:
COUNTY
OF
__________ )
|
Notary
Public
My
Commission Expires:
|
8
EXHIBIT
A
SPECIAL
POWER OF ATTORNEY
|
STATE
OF NEW YORK
|
)
|
|
)
ss:
|
|
|
COUNTY
OF NEW YORK
|
)
|
KNOW
ALL
MEN BY THESE PRESENTS, that ProLink Solutions, LLC, a limited liability company
formed under the laws of Delaware, with its principal office at 000 X. Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000 (“Company”),
pursuant to an Amended and Restated Intellectual Property Security Agreement
dated as of March 31, 2008 (as amended, modified, restated and/or supplemented
from time to time, the “Agreement”),
hereby appoints and constitutes LV
Administrative
Services, Inc.,
as
collateral and administrative agent of the Lenders defined therein (in such
capacity, “Agent”),
with
offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, its true
and lawful attorney, with full power of substitution, and with full power and
authority to perform the following acts on behalf of Company:
I. Assigning,
selling or otherwise disposing of all right, title and interest of Company
in
and to the Patents and Patent Licenses listed on Schedule
I
of the
Agreement, the Patents and Patent Licenses which are added to the same
subsequent hereto, and all registrations and recordings thereof, and all pending
applications therefor, recording, registering and filing of, or accomplishing
any other formality with respect to the foregoing, and executing and delivering
any and all agreements, documents, instruments of assignment or other papers
necessary or advisable to effect such purpose; and
II. Executing
any and all documents, statements, certificates or other papers necessary or
advisable in order to obtain the purposes described above as Agent may in its
sole discretion determine.
[REMAINDER
OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS.]
9
This
Power of Attorney is made pursuant to the Agreement and may not be revoked
until
the payment in full of all Obligations (as defined in the Agreement) and the
irrevocable termination of the Agreement.
Dated
as
of: March
31,
2008
|
PROLINK
SOLUTIONS, LLC
By:_____________________________
Name:
Title:
|
|
STATE
OF NEW YORK
|
)
|
|
)
ss:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
____ day of _______________, 2008, before me personally came
_______________________ to me known, who being by me duly sworn, did depose
and
say s/he is the ______________ of ProLink Solutions, LLC, the limited liability
company described in and which executed the foregoing instrument; and that
s/he
signed her/his name thereto in accordance with his/her authority as granted
by
the organizational documents of such company.
|
____________________________
Notary
Public
My
Commission Expires:
|
10
