INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL
PROPERTY SECURITY AGREEMENT (this “Agreement” dated as of December 26,
2007, by and among Juniper Group, Inc., a Nevada corporation (the
“Company”), and the secured parties signatory hereto and their respective
endorsees, transferees and assigns (collectively, the “Secured
Party”).
W
I T N E
S S E T H :
WHEREAS,
pursuant to a Securities Purchase Agreement, dated the date hereof, between
Company and the Secured Party (the “Purchase Agreement”), Company has
agreed to issue to the Secured Party and the Secured Party has agreed to
purchase from Company certain of Company’s 8% Callable Secured Convertible
Notes, due three years from the date of issue (the “Notes”), which are
convertible into shares of Company’s Common Stock, par value $.001 per share
(the “Common Stock”). In connection therewith, Company shall
issue the Secured Party certain Common Stock purchase warrants (the
“Warrants”); and
WHEREAS,
in order to induce the Secured Party to purchase the Notes, Company has agreed
to execute and deliver to the Secured Party this Agreement for the benefit
of
the Secured Party and to grant to it a first priority security interest in
certain Intellectual Property (defined below) of Company to secure the prompt
payment, performance and discharge in full of all of Company’s obligations under
the Notes and exercise and discharge in full of Company’s obligations under the
Warrants; and
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined
Terms. Unless otherwise defined herein, terms which are defined
in the Purchase Agreement and used herein are so used as so defined; and
the
following terms shall have the following meanings:
“Software
Intellectual Property” shall mean:
(a) all
software programs (including all source code, object code and all related
applications and data files), whether now owned, upgraded, enhanced, licensed
or
leased or hereafter acquired by the Company, above;
(b) all
computers and electronic data processing hardware and firmware associated
therewith;
(c) all
documentation (including flow charts, logic diagrams, manuals, guides and
specifications) with respect to such software, hardware and firmware described
in the preceding clauses (a) and (b); and
(d) all
rights with respect to all of the foregoing, including, without limitation,
any
and all upgrades, modifications, copyrights, licenses, options, warranties,
service contracts, program services, test rights, maintenance rights, support
rights, improvement rights, renewal rights and indemnifications and
substitutions, replacements, additions, or model conversions of any of the
foregoing.
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“Copyrights”
shall mean (a) all copyrights, registrations and applications for registration,
issued or filed, including any reissues, extensions or renewals thereof,
by or with the United States Copyright Office or any similar office or agency
of
the United States, any state thereof, or any other country or political
subdivision thereof, or otherwise, including, all rights in and to the material
constituting the subject matter thereof, including, without limitation, any
referred to in Schedule B hereto, and (b) any rights in any material
which is copyrightable or which is protected by common law, United States
copyright laws or similar laws or any law of any State, including, without
limitation, any thereof referred to in Schedule B hereto.
“Copyright
License” shall mean any agreement, written or oral, providing for a grant by
the Company of any right in any Copyright, including, without limitation,
any
thereof referred to in Schedule B hereto.
“Intellectual
Property” shall means, collectively, the Software Intellectual Property,
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark
Licenses and Trade Secrets.
“Obligations”
means all of the Company’s obligations under this Agreement and the Notes, in
each case, whether now or hereafter existing, voluntary or involuntary, direct
or indirect, absolute or contingent, liquidated or unliquidated, whether
or not
jointly owed with others, and whether or not from time to time decreased
or
extinguished and later decreased, created or incurred, and all or any portion
of
such obligations or liabilities that are paid, to the extent all or any part
of
such payment is avoided or recovered directly or indirectly from the Secured
Party as a preference, fraudulent transfer or otherwise as such obligations
may
be amended, supplemented, converted, extended or modified from time to
time.
“Patents”
shall mean (a) all letters patent of the United States or any other country
or
any political subdivision thereof, and all reissues and extensions thereof,
including, without limitation, any thereof referred to in Schedule B
hereto, and (b) all applications for letters patent of the United States
and all
divisions, continuations and continuations-in-part thereof or any other country
or any political subdivision, including, without limitation, any thereof
referred to in Schedule B hereto.
“Patent
License” shall mean all agreements, whether written or oral, providing for
the grant by the Company of any right to manufacture, use or sell any invention
covered by a Patent, including, without limitation, any thereof referred
to in
Schedule B hereto.
“Security
Agreement” shall mean the Security Agreement, dated the date hereof between
Company and the Secured Party.
“Trademarks”
shall mean (a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos
and other source or business identifiers, and the 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 any political
subdivision thereof, or otherwise, including, without limitation, any thereof
referred to in Schedule B hereto, and (b) all reissues, extensions or
renewals thereof.
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“Trademark
License” shall mean any agreement, written or oral, providing for the grant
by the Company of any right to use any Trademark, including, without limitation,
any thereof referred to in Schedule B hereto.
“Trade
Secrets” shall mean common law and statutory trade secrets and all other
confidential or proprietary or useful information and all know-how obtained
by
or used in or contemplated at any time for use in the business of the Company
(all of the foregoing being collectively called a “Trade Secret”),
whether or not such Trade Secret has been reduced to a writing or other tangible
form, including all documents and things embodying, incorporating or referring
in any way to such Trade Secret, all Trade Secret licenses, including each
Trade
Secret license referred to in Schedule B hereto, and including the right
to xxx for and to enjoin and to collect damages for the actual or threatened
misappropriation of any Trade Secret and for the breach or enforcement of
any
such Trade Secret license.
2. Grant
of Security Interest. In accordance with Section 3(m) of the
Security Agreement, to secure the complete and timely payment, performance
and
discharge in full, as the case may be, of all of the Obligations, the Company
hereby, unconditionally and irrevocably, pledges, grants and hypothecates
to the
Secured Party, a continuing security interest in, a continuing first lien
upon,
an unqualified right to possession and disposition of and a right of set-off
against, in each case to the fullest extent permitted by law, all of the
Company’s right, title and interest of whatsoever kind and nature in and to the
Intellectual Property (the “Security Interest”).
3. Representations
and Warranties. The Company hereby represents and warrants, and
covenants and agrees with, the Secured Party as follows:
(a) The
Company has the requisite corporate power and authority to enter into this
Agreement and otherwise to carry out its obligations thereunder. The
execution, delivery and performance by the Company of this Agreement and
the
filings contemplated therein have been duly authorized by all necessary action
on the part of the Company and no further action is required by the
Company. This Agreement constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its terms, except
as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditor’s rights
generally.
(b) The
Company represents and warrants that it has no place of business or offices
where its respective books of account and records are kept (other than
temporarily at the offices of its attorneys or accountants) or places where
the
Intellectual Property is stored or located, except as set forth on Schedule
A attached hereto;
(c) The
Company is the sole owner of the Intellectual Property (except for non-exclusive
licenses granted by the Company in the ordinary course of business), free
and
clear of any liens, security interests, encumbrances, rights or claims, and
is
fully authorized to grant the Security Interest in and to pledge the
Intellectual Property, except as set forth on Schedule D, or for a
financing statement covering assets acquired by the Company after the date
hereof. There is not on file in any governmental or regulatory
authority, agency or recording office an effective financing statement, security
agreement, license or transfer or any notice of any of the foregoing (other
than
those that have been filed in favor of the Secured Party pursuant to this
Agreement) covering or affecting any of the Intellectual Property, except
as set
forth on
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Schedule
D. So long as this Agreement shall be in effect, the Company
shall not execute and shall not knowingly permit to be on file in any such
office or agency any such financing statement or other document or instrument
(except to the extent filed or recorded in favor of the Secured Party pursuant
to the terms of this Agreement), except as set forth on Schedule D or for
a financing statement covering assets acquired by the Company after the date
hereof, provided that the value of the Intellectual Property covered by this
Agreement along with the Collateral (as defined in the Security Agreement)
is
equal to at least 150% of the Obligations.
(d) The
Company shall at all times maintain its books of account and records relating
to
the Intellectual Property at its principal place of business and its
Intellectual Property at the locations set forth on Schedule A attached
hereto and may not relocate such books of account and records unless it delivers
to the Secured Party at least 30 days prior to such relocation (i) written
notice of such relocation and the new location thereof (which must be within
the
United States) and (ii) evidence that the necessary documents have been
filed and recorded and other steps have been taken to perfect the Security
Interest to create in favor of the Secured Party valid, perfected and continuing
first priority liens in the Intellectual Property to the extent they can
be
perfected through such filings.
(e) This
Agreement creates in favor of the Secured Party a valid security interest
in the
Intellectual Property securing the payment and performance of the Obligations
and, upon making the filings required hereunder, a perfected first priority
security interest in such Intellectual Property to the extent that it can
be
perfected through such filings.
(f)
Upon request of the Secured Party, the Company shall execute and deliver
any and
all agreements, instruments, documents, and papers as the Secured Party may
request to evidence the Secured Party’s security interest in the Intellectual
Property and the goodwill and general intangibles of the Company relating
thereto or represented thereby, and the Company hereby appoints the Secured
Party its attorney-in-fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable until
the
Obligations have been fully satisfied and are paid in full.
(g) Except
as set forth on Schedule D, the execution, delivery and performance of
this Agreement does not conflict with or cause a breach or default, or an
event
that with or without the passage of time or notice, shall constitute a breach
or
default, under any agreement to which the Company is a party or by which
the
Company is bound. No consent (including, without limitation, from
stock holders or creditors of the Company) is required for the Company to
enter
into and perform its obligations hereunder.
(h) The
Company shall at all times maintain the liens and Security Interest provided
for
hereunder as valid and perfected first priority liens and security interests
in
the Intellectual Property to the extent they can be perfected by filing in
favor
of the Secured Party until this Agreement and the Security Interest hereunder
shall terminate pursuant to Section 11. The Company hereby agrees to
defend the same against any and all persons. The Company shall
safeguard and protect all Intellectual Property for the account of the Secured
Party. Without limiting the generality of the foregoing, the Company
shall pay all fees, taxes and other amounts necessary to maintain the
Intellectual Property and the Security Interest hereunder, and the Company
shall
obtain and furnish to the Secured Party from time to time, upon demand,
such
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releases
and/or subordinations of claims and liens which may be required to maintain
the
priority of the Security Interest hereunder.
(i) The
Company will not transfer, pledge, hypothecate, encumber, license (except
for
non-exclusive licenses granted by the Company in the ordinary course of
business), sell or otherwise dispose of any of the Intellectual Property
without
the prior written consent of the Secured Party, which consent will not be
unreasonably withheld.
(j) The
Company shall, within ten (10) days of obtaining knowledge thereof, advise
the
Secured Party promptly, in sufficient detail, of any substantial change in
the
Intellectual Property, and of the occurrence of any event which would have
a
material adverse effect on the value of the Intellectual Property or on the
Secured Party’s security interest therein.
(k) The
Company shall permit the Secured Party and its representatives and agents
to
inspect the Intellectual Property at any time, and to make copies of records
pertaining to the Intellectual Property as may be requested by the Secured
Party
from time to time; provided however, that the Secured Party shall not publicly
disclose any information which the Company advises the Secured Party is
confidential.
(l) The
Company will take all steps reasonably necessary to diligently pursue and
seek
to preserve, enforce and collect any rights, claims, causes of action and
accounts receivable in respect of the Intellectual Property.
(m) The
Company shall promptly notify the Secured Party in sufficient detail upon
becoming aware of any attachment, garnishment, execution or other legal process
levied against any Intellectual Property and of any other information received
by the Company that may materially affect the value of the Intellectual
Property, the Security Interest or the rights and remedies of the Secured
Party
hereunder.
(n) All
information heretofore, herein or hereafter supplied to the Secured Party
by or
on behalf of the Company with respect to the Intellectual Property is accurate
and complete in all material respects as of the date furnished.
(o) Schedule
A attached hereto contains a list of all of the subsidiaries of
Company.
(p) Schedule
B attached hereto includes all Licenses, and all Patents and Patent
Licenses, if any, owned by the Company in its own name as of the date
hereof. Schedule B hereto includes all Trademarks and
Trademark Licenses, if any, owned by the Company in its own name as of the
date
hereof. Schedule B hereto includes all Copyrights and
Copyright Licenses, if any, owned by the Company in its own name as of the
date
hereof. Schedule B hereto includes all Trade Secrets and Trade
Secret Licenses, if any, owned by the Company as of the date
hereof. To the best of the Company’s knowledge, each License, Patent,
Trademark, Copyright and Trade Secret is valid, subsisting, unexpired,
enforceable and has not been abandoned. Except as set forth in
Schedule B, none of such Licenses, Patents, Trademarks, Copyrights and
Trade Secrets is the subject of any licensing or franchise
agreement. To the best of the Company’s knowledge, no holding,
decision or judgment has been rendered by any Governmental Body which would
limit, cancel or question the validity of any License, Patent, Trademark,
Copyright and Trade Secrets . Except as set forth in Schedule
B, no action or proceeding is pending (i) seeking to limit, cancel or
question the validity of any License, Patent,
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Trademark,
Copyright or Trade Secret, or (ii) which, if adversely determined, would
have a
material adverse effect on the value of any License, Patent, Trademark,
Copyright or Trade Secret. The Company has used and will continue to
use for the duration of this Agreement, proper statutory notice in connection
with its use of the Patents, Trademarks and Copyrights and consistent standards
of quality in products leased or sold under the Patents, Trademarks and
Copyrights.
(q) With
respect to any Intellectual Property:
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(i)
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such
Intellectual Property is subsisting and has not been adjudged invalid
or
unenforceable, in whole or in part;
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(ii)
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such
Intellectual Property is valid and
enforceable;
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(iii)
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the
Company has made all necessary filings and recordations to protect
its
interest in such Intellectual Property, including, without limitation,
recordations of all of its interests in the Patents, Patent Licenses,
Trademarks and Trademark Licenses in the United States Patent and
Trademark Office and in corresponding offices throughout the world
and its
claims to the Copyrights and Copyright Licenses in the United States
Copyright Office and in corresponding offices throughout the
world;
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(iv)
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other
than as set forth in Schedule B, the Company is the exclusive owner
of the entire and unencumbered right, title and interest in and
to such
Intellectual Property and no claim has been made that the use of
such
Intellectual Property infringes on the asserted rights of any third
party;
and
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(v)
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the
Company has performed and will continue to perform all acts and
has paid
all required fees and taxes to maintain each and every item of
Intellectual Property in full force and effect throughout the world,
as
applicable.
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(r) Except
with respect to any Trademark or Copyright that the Company shall reasonably
determine is of negligible economic value to the Company, the Company
shall:
(i) maintain
each Trademark and Copyright in full force free from any claim of abandonment
for non-use, maintain as in the past the quality of products and services
offered under such Trademark or Copyright; employ such Trademark or
Copyright with the appropriate notice of registration; not adopt or use any
xxxx
which is confusingly similar or a colorable imitation of such Trademark or
Copyright unless the Secured Party shall obtain a perfected security interest
in
such xxxx pursuant to this Agreement; and not (and not permit any licensee
or
sublicensee thereof to) do any act or knowingly omit to do any act whereby
any
Trademark or Copyright may become invalidated;
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(ii) not,
except with respect to any Patent that it shall reasonably determine is of
negligible economic value to it, do any act, or omit to do any act, whereby
any
Patent may become abandoned or dedicated; and
(iii) notify
the Secured Party immediately if it knows, or has reason to know, that any
application or registration relating to any Patent, Trademark or Copyright
may
become abandoned or dedicated, or of any adverse determination or development
(including, without limitation, the institution of, or any such determination
or
development in, any proceeding in the United States Patent and Trademark
Office,
United States Copyright Office or any court or tribunal in any country)
regarding its ownership of any Patent, Trademark or Copyright or its right
to
register the same or to keep and maintain the same.
(s) Whenever
the Company, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Patent,
Trademark or Copyright with the United States Patent and Trademark Office,
United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof or acquire rights to any new
Patent, Trademark or Copyright whether or not registered, report such filing
to
the Secured Party within five business days after the last day of the fiscal
quarter in which such filing occurs.
(t) The
Company shall take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any similar office or agency in
any
other country or any political subdivision thereof, to maintain and pursue
each
application (and to obtain the relevant registration) and to maintain each
registration of the Patents, Trademarks and Copyrights, including, without
limitation, filing of applications for renewal, affidavits of use and affidavits
of incontestability.
(u) In
the event that any Patent, Trademark or Copyright included in the Intellectual
Property is infringed, misappropriated or diluted by a third party, promptly
notify the Secured Party after it learns thereof and shall, unless it shall
reasonably determine that such Patent, Trademark or Copyright is of negligible
economic value to it, which determination it shall promptly report to the
Secured Party, promptly xxx for infringement, misappropriation or dilution,
to
seek injunctive relief where appropriate and to recover any and all damages
for
such infringement, misappropriation or dilution, or take such other actions
as
it shall reasonably deem appropriate under the circumstances to protect such
Patent, Trademark or Copyright. If the Company lacks the financial
resources to comply with this Section 3(t), the Company shall so notify the
Secured Party and shall cooperate fully with any enforcement action undertaken
by the Secured Party on behalf of the Company.
4. Defaults. The
following events shall be “Events of Default”:
(a) The
occurrence of an Event of Default (as defined in the Notes) under the
Notes;
(b) Any
representation or warranty of the Company in this Agreement or in the Security
Agreement shall prove to have been incorrect in any material respect when
made;
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(c) The
failure by the Company to observe or perform any of its obligations hereunder
or
in the Security Agreement for ten (10) days after receipt by the Company
of
notice of such failure from the Secured Party; and
(d) Any
breach of, or default under, the Warrants.
5. Duty
To Hold In Trust. Upon the occurrence of any Event of Default and
at any time thereafter, the Company shall, upon receipt by it of any revenue,
income or other sums subject to the Security Interest, whether payable pursuant
to the Notes or otherwise, or of any check, draft, note, trade acceptance
or
other instrument evidencing an obligation to pay any such sum, hold the same
in
trust for the Secured Party and shall forthwith endorse and transfer any
such
sums or instruments, or both, to the Secured Party for application to the
satisfaction of the Obligations.
6. Rights
and Remedies Upon Default. Upon occurrence of any Event of
Default and at any time thereafter, the Secured Party shall have the right
to
exercise all of the remedies conferred hereunder and under the Notes, and
the
Secured Party shall have all the rights and remedies of a secured party under
the UCC and/or any other applicable law (including the Uniform Commercial
Code
of any jurisdiction in which any Intellectual Property is then
located). Without limitation, the Secured Party shall have the
following rights and powers:
(a) The
Secured Party shall have the right to take possession of the Intellectual
Property and, for that purpose, enter, with the aid and assistance of any
person, any premises where the Intellectual Property, or any part thereof,
is or
may be placed and remove the same, and the Company shall assemble the
Intellectual Property and make it available to the Secured Party at places
which
the Secured Party shall reasonably select, whether at the Company’s premises or
elsewhere, and make available to the Secured Party, without rent, all of
the
Company’s respective premises and facilities for the purpose of the Secured
Party taking possession of, removing or putting the Intellectual Property
in
saleable or disposable form.
(b) The
Secured Party shall have the right to operate the business of the Company
using
the Intellectual Property and shall have the right to assign, sell, lease
or
otherwise dispose of and deliver all or any part of the Intellectual Property,
at public or private sale or otherwise, either with or without special
conditions or stipulations, for cash or on credit or for future delivery,
in
such parcel or parcels and at such time or times and at such place or places,
and upon such terms and conditions as the Secured Party may deem commercially
reasonable, all without (except as shall be required by applicable statute
and
cannot be waived) advertisement or demand upon or notice to the Company or
right
of redemption of the Company, which are hereby expressly waived. Upon
each such sale, lease, assignment or other transfer of Intellectual Property,
the Secured Party may, unless prohibited by applicable law which cannot be
waived, purchase all or any part of the Intellectual Property being sold,
free
from and discharged of all trusts, claims, right of redemption and equities
of
the Company, which are hereby waived and released.
7. Applications
of Proceeds. The proceeds of any such sale, lease or other
disposition of the Intellectual Property hereunder shall be applied first,
to
the expenses of retaking, holding, storing, processing and preparing for
sale,
selling, and the like (including, without limitation, any taxes, fees and
other
costs incurred in connection therewith) of the Intellectual Property, to
the
reasonable attorneys’ fees and expenses incurred by the Secured
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Party
in
enforcing its rights hereunder and in connection with collecting, storing
and
disposing of the Intellectual Property, and then to satisfaction of the
Obligations, and to the payment of any other amounts required by applicable
law,
after which the Secured Party shall pay to the Company any surplus
proceeds. If, upon the sale, license or other disposition of the
Intellectual Property, the proceeds thereof are insufficient to pay all amounts
to which the Secured Party is legally entitled, the Company will be liable
for
the deficiency, together with interest thereon, at the rate of 15% per annum
(the “Default Rate”), and the reasonable fees of any attorneys employed
by the Secured Party to collect such deficiency. To the extent
permitted by applicable law, the Company waives all claims, damages and demands
against the Secured Party arising out of the repossession, removal, retention
or
sale of the Intellectual Property, unless due to the gross negligence or
willful
misconduct of the Secured Party.
8. Costs
and
Expenses. The
Company agrees to pay all out-of-pocket fees, costs and expenses incurred
in
connection with any filing required hereunder, including without limitation,
any
financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Party. The Company shall also pay
all other claims and charges which in the reasonable opinion of the Secured
Party might prejudice, imperil or otherwise affect the Intellectual Property
or
the Security Interest therein. The Company will also, upon demand,
pay to the Secured Party the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of any experts
and
agents, which the Secured Party may incur in connection with (i) the enforcement
of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Intellectual Property,
or
(iii) the exercise or enforcement of any of the rights of the Secured Party
under the Notes. Until so paid, any fees payable hereunder shall be added
to the
principal amount of the Notes and shall bear interest at the Default
Rate.
9. Responsibility
for Intellectual Property. The Company assumes all liabilities
and responsibility in connection with all Intellectual Property, and the
obligations of the Company hereunder or under the Notes and the Warrants
shall
in no way be affected or diminished by reason of the loss, destruction, damage
or theft of any of the Intellectual Property or its unavailability for any
reason.
10. Security
Interest Absolute. All rights of the Secured Party and all
Obligations of the Company hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Notes, the Warrants or any agreement entered into in connection with
the
foregoing, or any portion hereof or thereof; (b) any change in the time,
manner
or place of payment or performance of, or in any other term of, all or any
of
the Obligations, or any other amendment or waiver of or any consent to any
departure from the Notes, the Warrants or any other agreement entered
into in connection with the foregoing; (c) any exchange, release or
nonperfection of any of the Intellectual Property, or any release or amendment
or waiver of or consent to departure from any other Intellectual Property
for,
or any guaranty, or any other security, for all or any of the Obligations;
(d)
any action by the Secured Party to obtain, adjust, settle and cancel in its
sole
discretion any insurance claims or matters made or arising in connection
with
the Intellectual Property; or (e) any other circumstance which might otherwise
constitute any legal or equitable defense available to the Company, or a
discharge of all or any part of the Security Interest granted
hereby. Until the Obligations shall have been paid and performed in
full, the rights of the Secured Party shall continue even if the Obligations
are
barred for any reason, including, without limitation, the
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running
of the statute of limitations or bankruptcy. The Company expressly
waives presentment, protest, notice of protest, demand, notice of nonpayment
and
demand for performance. In the event that at any time any transfer of any
Intellectual Property or any payment received by the Secured Party hereunder
shall be deemed by final order of a court of competent jurisdiction to have
been
a voidable preference or fraudulent conveyance under the bankruptcy or
insolvency laws of the United States, or shall be deemed to be otherwise
due to
any party other than the Secured Party, then, in any such event, the Company’s
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. The Company
waives all right to require the Secured Party to proceed against any other
person or to apply any Intellectual Property which the Secured Party may
hold at
any time, or to marshal assets, or to pursue any other remedy. The
Company waives any defense arising by reason of the application of the statute
of limitations to any obligation secured hereby.
11. Term
of Agreement. This Agreement and the Security Interest shall
terminate on the date on which all payments under the Notes have been made
in
full and all other Obligations have been paid or discharged. Upon
such termination, the Secured Party, at the request and at the expense of
the
Company, will join in executing any termination statement with respect to
any
financing statement executed and filed pursuant to this Agreement.
12. Power
of Attorney; Further Assurances.
(a) The
Company authorizes the Secured Party, and does hereby make, constitute and
appoint it, and its respective officers, agents, successors or assigns with
full
power of substitution, as the Company’s true and lawful attorney-in-fact, with
power, in its own name or in the name of the Company, to, after the occurrence
and during the continuance of an Event of Default, (i) endorse any notes,
checks, drafts, money orders, or other instruments of payment (including
payments payable under or in respect of any policy of insurance) in respect
of
the Intellectual Property that may come into possession of the Secured Party;
(ii) to sign and endorse any UCC financing statement or any invoice, freight
or
express xxxx, xxxx of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with accounts,
and
other documents relating to the Intellectual Property; (iii) to pay or discharge
taxes, liens, security interests or other encumbrances at any time levied
or
placed on or threatened against the Intellectual Property; (iv) to demand,
collect, receipt for, compromise, settle and xxx for monies due in respect
of
the Intellectual Property; and (v) generally, to do, at the option of the
Secured Party, and at the Company’s expense, at any time, or from time to time,
all acts and things which the Secured Party deems necessary to protect, preserve
and realize upon the Intellectual Property and the Security Interest granted
therein in order to effect the intent of this Agreement, the Notes and the
Warrants, all as fully and effectually as the Company might or could do;
and the
Company hereby ratifies all that said attorney shall lawfully do or cause
to be
done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable for the term of this Agreement and thereafter
as long as any of the Obligations shall be outstanding.
(b) On
a continuing basis, the Company will make, execute, acknowledge, deliver,
file
and record, as the case may be, in the proper filing and recording places
in any
jurisdiction, including, without limitation, the jurisdictions indicated
on
Schedule C, attached hereto, all such instruments, and take all such
action as may reasonably be deemed
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10
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necessary
or advisable, or as reasonably requested by the Secured Party, to perfect
the
Security Interest granted hereunder and otherwise to carry out the intent
and
purposes of this Agreement, or for assuring and confirming to the Secured
Party
the grant or perfection of a security interest in all the Intellectual
Property.
(c) The
Company hereby irrevocably appoints the Secured Party as the Company’s
attorney-in-fact, with full authority in the place and stead of the Company
and
in the name of the Company, from time to time in the Secured Party’s discretion,
to take any action and to execute any instrument which the Secured Party
may
deem necessary or advisable to accomplish the purposes of this Agreement,
including the filing, in its sole discretion, of one or more financing or
continuation statements and amendments thereto, relative to any of the
Intellectual Property without the signature of the Company where permitted
by
law.
13. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing, with copies to all the other parties hereto, and shall be deemed
to
have been duly given when (i) if delivered by hand, upon receipt, (ii) if
sent
by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
nationally recognized overnight delivery service (receipt requested), the
next
business day or (iv) if mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, four days after posting in the
U.S.
mails, in each case if delivered to the following addresses:
|
If
to the Company:
|
Juniper
Group, Inc.
|
|
|
00000
Xxxxx Xxxx, Xxxxx 000
|
|
|
Xxxx
Xxxxx, Xxxxxxx 00000
|
|
|
Attention: Chief
Executive Officer
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
With
a
copy
to: Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxxx
Xxxxxxxxx, Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
|
If
to the Secured Party:
|
AJW
Partners, LLC
|
|
|
AJW
Master Fund, Ltd.
|
|
|
New
Millennium Capital Partners II, LLC
|
|
|
0000
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxx,
Xxx Xxxx 00000
|
|
|
Attention: Xxxxx
Xxxxxxxx
|
|
|
Facsimile: 000-000-0000
|
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|
With
copies to:
|
Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
|
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention: Xxxxxx
X. Xxxxxxxx, Esquire
Facsimile: 000-000-0000
14. Other
Security. To the extent that the Obligations are now or hereafter
secured by property other than the Intellectual Property or by the guarantee,
endorsement or property of any other person, firm, corporation or other entity,
then the Secured Party shall have the right, in its sole discretion, to pursue,
relinquish, subordinate, modify or take any other action with respect thereto,
without in any way modifying or affecting any of the Secured Party’s rights and
remedies hereunder.
15. Miscellaneous.
(a) No
course of dealing between the Company and the Secured Party, nor any failure
to
exercise, nor any delay in exercising, on the part of the Secured Party,
any
right, power or privilege hereunder or under the Notes shall operate as a
waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise
thereof
or the exercise of any other right, power or privilege.
(b) All
of the rights and remedies of the Secured Party with respect to the Intellectual
Property, whether established hereby or by the Notes or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
(c) This
Agreement and the Security Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and is intended to supersede
all prior negotiations, understandings and agreements with respect
thereto. Except as specifically set forth in this Agreement, no
provision of this Agreement may be modified or amended except by a written
agreement specifically referring to this Agreement and signed by the parties
hereto.
(d) In
the event that any provision of this Agreement is held to be invalid, prohibited
or unenforceable in any jurisdiction for any reason, unless such provision
is
narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or
unenforceable. If, notwithstanding the foregoing, any provision of
this Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective
to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions
of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other
jurisdiction.
(e) No
waiver of any breach or default or any right under this Agreement shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
or right, whether of the same or similar nature or otherwise.
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12
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(f) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
(g) Each
party shall take such further action and execute and deliver such further
documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) This
Agreement shall be construed in accordance with the laws of the State of
New
York, except to the extent the validity, perfection or enforcement of a security
interest hereunder in respect of any particular Intellectual Property which
are
governed by a jurisdiction other than the State of New York in which case
such
law shall govern. Each of the parties hereto irrevocably submit to
the exclusive jurisdiction of any New York State or United States Federal
court
sitting in Manhattan county over any action or proceeding arising out of
or
relating to this Agreement, and the parties hereto hereby irrevocably agree
that
all claims in respect of such action or proceeding may be heard and determined
in such New York State or Federal court. The parties hereto agree
that a final judgment in any such action or proceeding shall be conclusive
and
may be enforced in other jurisdictions by suit on the judgment or in any
other
manner provided by law. The parties hereto further waive any
objection to venue in the State of New York and any objection to an action
or
proceeding in the State of New York on the basis of forum non
conveniens.
(i) EACH
PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE
TO
THE SUBJECT MATER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS
A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT
EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT
AND
THAT EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY
WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING SUCH CONSULTATION. THIS
WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS AND SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF A LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(j) This
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. In the event that any
signature is delivered by facsimile transmission, such signature shall create
a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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14
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the day and year first above written.
JUNIPER
GROUP, INC.
By: _____________________________________
Xxxxx
X.
Xxxxxxxxxxx
Chief
Executive Officer
AJW
PARTNERS, LLC
By:
SMS
Group, LLC
|
|
By: _____________________________________
|
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
AJW
MASTER FUND, LTD.
By: First
Street Manager II, LLC
|
|
By: _____________________________________
|
|
|
Xxxxx
X. Xxxxxxxx
|
|
|
Manager
|
|
|
NEW
MILLENNIUM CAPITAL PARTNERS II,
LLC
|
|
|
By: First
Street Manager II, LLC
|
By: _____________________________________
Xxxxx
X. Xxxxxxxx
Manager
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15
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SCHEDULE
A
Principal
Place of Business of the Company:
Locations
Where Intellectual Property is Located or Stored:
List
of Subsidiaries of the Company:
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16
-
SCHEDULE
B
A. Licenses,
Patents and Patent Licenses
Application or Registration
or
|
|
Patent
|
Registration
No.
|
Country
|
Filing
Date
|
B. Trademarks
and Trademark Licenses
Registration
or
|
|
Trademark
|
Application
or Registration No.
|
Country
|
Filing
Date
|
C. Copyrights
and Copyright Licenses
D. Trade
Secrets and Trade Secret Licenses
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17
-
SCHEDULE
C
Jurisdictions:
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18
-
SCHEDULE
D
Liens,
interests, encumbrances, rights or claims against the
Collateral
Financing
statement, security agreement, license or transfer covering or affecting
the
Collateral
Any
financing Statement
Breach
or default under any agreement to which the Company is bound
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19
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