EXHIBIT 10.10
TRADEMARK AND PATENT
SECURITY AGREEMENT
THIS TRADEMARK AND PATENT SECURITY AGREEMENT, dated as of April 1, 2003,
is made by FIND/SVP, INC., a New York corporation (the "Grantor"), in favor of
PETRA MEZZANINE FUND, L.P., a Delaware limited partnership (the "Lender").
WITNESSETH:
WHEREAS, pursuant to that certain Loan Agreement of even date herewith,
(as amended, extended, modified, restructured or renewed from time to time, the
"Loan Agreement") by and among Grantor and Lender, Lender has agreed to make a
loan in the aggregate principal amount of $3,000,000 (the "Loan") to the Grantor
evidenced by a Secured Promissory Note of even date herewith in the original
principal amount of $3,000,000, made and executed by Grantor and payable to the
order of Lender (together with any amendments, extensions, modifications and/or
renewals thereof and/or any promissory notes given in payment thereof, the
"Note");
WHEREAS, the Grantor owns certain Trademarks and Patents listed on
SCHEDULE A hereto;
WHEREAS, the Grantor desires to mortgage, pledge and grant to Lender, for
the benefit of Lender, a security interest in all of its right, title and
interest in, to and under the Collateral, including the property listed on the
attached SCHEDULE A, together with any renewal or extension thereof, and all
Proceeds thereof, to secure the payment of the Obligations;
WHEREAS, it is a condition precedent to the obligation of the Lender to
make the Loan to the Grantor under the Loan Agreement, that Grantor execute this
Agreement;
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and to induce Lender to
enter into the Loan Agreement and to induce Lender to make the Loan to the
Grantor under the Loan Agreement, the Grantor hereby agrees with Lender, as
follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which are defined
in the Loan Agreement and used herein are so used as so defined, and the
following terms shall have the following meanings:
"COLLATERAL" has the meaning assigned to it in Section 2 of this
Security Agreement.
"OBLIGATIONS" means (a) loans to be made concurrently or in
connection with this Agreement or the Loan Agreement as evidenced by one or more
promissory notes payable to the order of Lender that shall be due and payable as
set forth in such promissory notes, and any renewals or extensions thereof, (b)
the full and prompt payment and performance of any and all other indebtednesses
and other obligations of Grantor to Lender, direct or contingent (including but
not limited to obligations incurred as indorser, guarantor or surety), however
evidenced or denominated, and however and whenever incurred, including but not
limited to indebtednesses incurred pursuant to any present or future commitment
of Lender to Grantor, and (c) all future advances made by Lender for taxes,
levies, insurance and preservation of the Collateral and all attorney's fees,
court costs and expenses of whatever kind incident to the collection of any of
said indebtedness or other obligations and the enforcement and protection of the
security interest created hereby.
"PATENTS" means all types of exclusionary or protective rights
granted (or applications therefor) for inventions in any country of the world
(including, without limitation, letters patent, plant patents, utility models,
breeders' right certificates, inventor's certificates and the like), and all
reissues and extensions thereof and all divisions, continuations and
continuations-in-part thereof, including, without limitation, all such rights
referred to in SCHEDULE A hereto.
"PATENT LICENSE" means all agreements material to the operation of
Grantor's businesses, whether written or oral, providing for the grant by or to
the Grantor of any right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, any thereof referred to in SCHEDULE A
hereto.
"PROCEEDS" means "proceeds," as such term is defined in Section
9-306(1) of the UCC and, to the extent not included in such definition, shall
include, without limitation, (a) any and all proceeds of any insurance,
indemnity, warranty, guaranty or letter of credit payable to the Grantor, from
time to time with respect to any of the Collateral, (b) all payments (in any
form whatsoever) paid or payable to the Grantor from time to time in connection
with any taking of all or any part of the Collateral by any governmental
authority or any Person acting under color of governmental authority), (c) all
judgments in favor of the Grantor in respect of the Collateral and (d) all other
amounts from time to time paid or payable or received or receivable under or in
connection with any of the Collateral.
"SECURITY AGREEMENT" means this Trademark and Patent Security
Agreement, as amended, supplemented or otherwise modified from time to time.
"TRADEMARKS" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source of business identifiers used in any country in the
world, whether registered or unregistered, and the goodwill associated
therewith, now existing or hereafter acquired and material to the businesses of
the Grantor, and (b) all registrations,
recordings and renewals thereof, and all applications in connection therewith,
issued by or filed in a national, state or local governmental authority of any
country, including, without limitation, all such rights referred to in SCHEDULE
A hereto.
"TRADEMARK LICENSE" means any agreement, material to the businesses
of the Grantor, written or oral, providing for the grant by or to the Grantor of
any right to use any Trademark, including, without limitation, any thereof
referred to in SCHEDULE A hereto.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the State of New York.
2. GRANT OF SECURITY INTEREST. As collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, Grantor hereby assigns and grants
to Lender for the benefit of Lender a security interest in all of Grantor's
right, title and interest in and to the following property now owned or at any
time hereafter acquired by Grantor or in which Grantor now has or at any time in
the future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Trademarks;
(ii) all Trademark Licenses to the extent assignable;
(iii) all Patents;
(iv) all Patent Licenses to the extent assignable; and
(v) to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing;
that are material to the business of Grantor, and whether or not included in
SCHEDULE A.
3. REPRESENTATIONS AND WARRANTIES CONCERNING TRADEMARKS. Grantor
represents and warrants that SCHEDULE A hereto includes all of Grantor's
registered Trademarks and Trademark Licenses and all of the Patents and Patent
Licenses owned by Grantor in its own name or as to which Grantor has any
colorable claim of ownership that are material to the businesses of Grantor as
of the date hereof. To the best of Grantor's knowledge, each Trademark and
Patent is valid, subsisting, unexpired, enforceable and has not been abandoned.
Except as set forth in SCHEDULE A, none of the Trademarks or Patents is the
subject of any licensing or franchise agreement. All licenses of the Trademarks
and Patents are in force and, to the best knowledge of the Grantor, not in
default. No holding, decision or judgment has been rendered by any governmental
authority which would limit, cancel or question the validity of any material
Trademark or Patent. No action or proceeding is pending (i) seeking to limit,
cancel or question the validity of any Trademark or Patent or the Grantor's
ownership thereof or (ii) which, if
adversely determined, would reasonably be likely to have a material adverse
effect on the value of any Trademark or Patent.
4. COVENANTS. Grantor covenants and agrees with Lender that, from and
after the date of this Security Agreement until the Obligations are paid in
full:
(a) FURTHER DOCUMENTATION. From time to time, upon the written
request of Lender, and at the sole expense of Grantor, the Grantor will promptly
and duly execute and deliver such further instruments and documents and take
such further action as Lender may reasonably request for the purpose of
obtaining or preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the UCC in effect in any
jurisdiction with respect to the liens created hereby. Grantor also hereby
authorizes Lender to file any such financing or continuation statement without
the signature of Grantor to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction.
(b) LIMITATION ON LIEN ON COLLATERAL. Grantor will not create, incur
or permit to exist, will take all commercially reasonable actions to defend the
Collateral against, and will take such other commercially reasonable action as
is necessary to remove, any lien or claim on or to the Collateral, other than
the liens created hereby, and other than as permitted pursuant to the Loan
Agreement, and will take all commercially reasonable actions to defend the
right, title and interest of Lender in and to any of the Collateral against the
claims and demands of all persons whomsoever.
(c) LIMITATIONS ON DISPOSITIONS OF COLLATERAL. Grantor will not
sell, transfer or otherwise dispose of any of the Collateral, or attempt, offer
or contract to do so except as permitted in the Loan Agreement.
(d) NOTICES. Grantor will advise Lender promptly, in reasonable
detail, at its address set forth in the Loan Agreement, (i) of any lien (other
than liens created hereby or permitted under the Loan Agreement) on, or claim
asserted against, Trademarks or Patents and (ii) of the occurrence of any other
event which could reasonably be expected to have a material adverse effect on
the aggregate value of the Collateral or on the liens created hereunder.
(e) PATENTS AND TRADEMARKS.
(i) Grantor (either itself or through licensees) will, except
with respect to any Trademark that the Grantor shall reasonably determine is of
immaterial economic value to it or otherwise reasonably determines not to do so,
(A) continue to use each Trademark on each and every trademark class of goods
applicable to its current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full force free from any
claim of abandonment for non-use, (B) maintain as in the past the quality of
products and services offered under such Trademark, (C) use
reasonable efforts to employ such Trademark with the appropriate notice of
registration, (D) not adopt or use any xxxx which is confusingly similar or a
colorable imitation of such Trademark unless within thirty (30) days after such
use or adoption Lender, for its benefit, shall obtain a perfected security
interest in such xxxx pursuant to this Security Agreement, and (E) not (and not
permit any licensee or sublicensee thereof to) do any act or knowingly omit to
do any act whereby any Trademark may become invalidated.
(ii) Grantor will not, except with respect to any Patent that
Grantor shall reasonably determine is of immaterial economic value to it or
otherwise reasonably determine so to do, do any act, or omit to do any act,
whereby any Patent may become abandoned or dedicated.
(iii) Grantor will promptly notify Lender if it knows, or has
reason to know, that any application relating to any material Patent or any
Trademark may become abandoned or dedicated, or of any adverse determination or
material development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United States Patent
and Trademark office or any court or tribunal in any country) regarding the
Grantor's ownership of any Patent or Trademark or its right to register the same
or to keep and maintain the same.
(iv) Whenever a Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for any Patent
or for the registration of any Trademark with the United States Patent and
Trademark Office or any similar office or agency in any other country or any
political subdivision thereof, the Grantor shall report such filing to Lender
within fifteen (15) business days after the last day of the fiscal quarter in
which such filing occurs. Upon request of Lender, the Grantor shall execute and
deliver any and all reasonably necessary agreements, instruments, documents, and
papers as Lender may request to evidence Lender's security interest in any newly
filed Patent or Trademark and the goodwill and general intangibles of the
Grantor relating thereto or represented thereby, and each Grantor hereby
constitutes Lender 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 are paid in full.
(v) Grantor, except with respect to any Patent or Trademark
the Grantor shall reasonably determine is of immaterial economic value to it or
it otherwise reasonably determines not to so do, will take all reasonable and
necessary steps, including, without limitation, in any proceedings before any
tribunal, office or agency in any other country or any political subdivision
thereof, to maintain and pursue each application (and to obtain the relevant
registration or Patent) and to maintain each Patent and each registration of
Trademarks, including, without limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability when appropriate.
(vi) In the event Grantor knows or has reason to know that any
material Patent or Trademark included in the Collateral is infringed,
misappropriated or diluted by a third party, the Grantor shall promptly notify
Lender after it learns thereof
and shall, unless the Grantor shall reasonably determine that such Patent or
Trademark is of immaterial economic value to the Grantor which determination the
Grantor shall promptly report to Lender, promptly xxx for infringement,
misappropriation or dilution, or take such other actions as the Grantor shall
reasonably deem appropriate under the circumstances to protect such Patent or
Trademark.
5. LENDER'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. Grantor hereby irrevocably constitutes and appoints
Lender and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Grantor and in the name of the Grantor or in its own
name, from time to time after the occurrence, and during the continuation of, an
Event of Default in Lender's discretion, for the purpose of carrying out the
terms of this Security Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement, and, without
limiting the generality of the foregoing, the Grantor hereby gives Lender the
power and right, on behalf of the Grantor without notice to or assent by the
Grantor, to do the following:
(i) at any time when any Event of Default shall have occurred
and is continuing, in the name of the Grantor or its own name, or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under, or with
respect to, any Collateral and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by
Lender for the purpose of collecting any and all such moneys due with respect to
such Collateral whenever payable;
(ii) to pay or discharge taxes and liens levied or placed on
or threatened against the Collateral, to effect any repairs or any insurance
called for by the terms of this Security Agreement and to pay all or part of the
premiums therefor and the costs thereof; and
(iii) (a) to direct any party liable for any payment under any
of the Collateral to make payment of any and all monies due or to become due
thereunder directly to Lender or as Lender shall direct, (b) to ask or demand
for, collect, receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising out of
any Collateral, (c) to sign and endorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with any
of the Collateral, (d) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other right in
respect of any Collateral, (e) to defend any suit, action or proceeding brought
against the Grantor with respect to any Collateral, (f) to settle, compromise or
adjust any suit, action or proceeding described in the preceding clause and, in
connection therewith, to give such discharges or
releases as Lender may deem appropriate, (g) to assign any Trademark (along with
goodwill of the business to which such Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such manner, as Lender shall
in its sole discretion determine, and (h) generally, to sell, transfer, pledge
and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though Lender were the absolute owner
thereof for all purposes, and to do, at Lender's option and the Grantor's
expense, at any time, or from time to time, all acts and things which Lender
deems necessary to protect, preserve or realize upon the Collateral and the
liens of Lender thereon and to effect the intent of this Security Agreement, all
as fully and effectively as the Grantor might do.
Grantor hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
(b) OTHER POWERS. Grantor also authorizes Lender, at any time and
from time to time, to execute, in connection with the sale provided for in
Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) NO DUTY ON THE PART OF LENDER. The powers conferred on Lender
hereunder are solely to protect the interests of Lender in the Collateral and
shall not impose any duty upon Lender to exercise any such powers. Lender shall
be accountable only for amounts that it actually receives as a result of the
exercise of such powers, and neither it nor any of its partners, officers,
directors, employees or agents shall be responsible to the Grantor for any act
or failure to act hereunder, except for their own gross negligence or willful
misconduct or failure to comply with mandatory provisions of applicable law.
6. PERFORMANCE BY LENDER OF GRANTOR'S OBLIGATIONS. If Grantor fails to
perform or comply with any of its agreements contained herein and Lender, as
provided for by the terms of this Security Agreement, shall itself perform or
comply, or otherwise cause performance or compliance, with such agreement, the
expenses of Lender incurred in connection with such performance or compliance,
together with interest thereon at the highest default rate provided in the Note,
shall be payable by the Grantor to Lender on demand and shall constitute
Obligations secured hereby.
7. PROCEEDS. It is agreed that if an Event of Default shall occur and be
continuing (a) all Proceeds received by Grantor consisting of cash, checks and
other cash equivalents shall be held by the Grantor in trust for Lender,
segregated from other funds of the Grantor, and shall, forthwith upon receipt by
the Grantor, be turned over to Lender in the exact form received by Grantor
(duly endorsed by Grantor to Lender, if required), and (b) any and all such
Proceeds received by Lender (whether from Grantor or otherwise) shall promptly
be applied by Lender against, the Obligations (whether matured or unmatured),
such application to be in such order as Lender shall elect. Any balance of such
Proceeds remaining after the Obligations shall have been paid in full
shall be paid over to Grantor or to whomsoever may be lawfully entitled to
receive the same.
8. REMEDIES. If an Event of Default shall occur and be continuing, Lender,
may exercise, in addition to all other rights and remedies granted to it in this
Security Agreement and in any other instrument or agreement securing, evidencing
or relating to the Obligations, all rights and remedies of a secured party under
the UCC. Without limiting the generality of the foregoing, Lender without demand
of performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon
Grantor or any other person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or, contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any office of Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or on future delivery without assumption of any
credit risk. Lender shall have the right upon any such public sale or sales,
and, to the extent permitted by law, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Grantor,
which right or equity is hereby waived or released. Grantor further agrees, at
Lender's request, to assemble the Collateral and make it available to Lender at
places which Lender shall reasonably select, whether at the Grantor's premises
or elsewhere. Lender shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of Lender hereunder, including, without limitation,
reasonable attorneys' fees and disbursements, to the payment in whole or in part
of the Obligations, in such order as Lender may elect, and only after such
application and after the payment by Lender of any other amount required by any
provision of law, including, without limitation, Section 9-504(l)(c) of the UCC,
need Lender account for the surplus, if any, to the Grantor. To the extent
permitted by applicable law, Grantor waives all claims, damages and demands it
may acquire against Lender arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition. Grantor shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by Lender to collect such
deficiency.
9. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL. Lender's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the UCC or otherwise,
shall be to deal with it in the same manner as Lender would deal with similar
property for its own account. Neither Lender nor any of its partners, directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay
in doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or otherwise.
10. POWERS COUPLED WITH AN INTEREST. All authorizations and agencies
herein Contained with respect to the Collateral are irrevocable and powers
coupled with an interest.
11. SEVERABILITY. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. PARAGRAPH HEADINGS. The paragraph headings used in this Security
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. NO WAIVER; CUMULATIVE REMEDIES. Lender shall not by any act (except by
a written instrument pursuant to Section 14 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of Lender, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by Lender of any
right or remedy hereunder on any occasion shall not be construed as a bar to any
right or remedy which Lender would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
14. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. None of the terms or
provisions of this Security Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Grantor and
Lender, provided that any provision of this Security Agreement may be waived by
Lender in a written letter or agreement executed by Lender or by telex or
facsimile transmission from Lender. This Security Agreement shall be binding
upon the successors and assigns of the Grantor and shall inure to the benefit of
Lender and its successors and assigns.
15. NOTICES. All notices, requests and demands to or upon the Grantor or
Lender to be effective shall be in writing or by telecopy or telex and unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered by hand, or, in the case of mail, three days after deposit
in the postal system, first class postage prepaid, or, in the case of telecopy
notice, confirmation of receipt received, or, in the case of telex notice, when
sent, answerback received, addressed to a party at the address provided for such
party in the Loan Agreement.
16. GOVERNING LAW. This Security Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Tennessee
applicable to contracts to be wholly performed in such State.
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered as of the date first above written.
GRANTOR:
FIND/SVP, INC.,
a New York corporation
By: /s/ Xxxxx Xxxxx
--------------------------------
Title: Vice President
LENDER:
PETRA MEZZANINE FUND, L.P.
By: /s/ Xxxxxx X. X'Xxxxx, III
--------------------------------
Title: Managing Member
STATE OF ____________________ )
)
COUNTY OF ___________________ )
Before me, the undersigned, a Notary Public in and for the State and
County aforesaid, personally appeared ___________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself to be the _____________________ of
FIND/SVP, INC., the within named bargainor, a corporation, and that he as such
______________, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as such __________.
WITNESS my hand, at office in _________________________, this ________ day
of April, 2003.
_______________________________
Notary Public
My Commission Expires:
STATE OF ____________________ )
)
COUNTY OF ___________________ )
Personally appeared before me, the undersigned, a Notary Public,
________________________, with whom I am personally acquainted, who acknowledged
that he executed the within instrument for the purposes therein contained, and
who further acknowledged that he is the general partner of PETRA MEZZANINE FUND,
L.P., a limited partnership, and is authorized by the limited partnership to
execute this instrument on behalf of the limited partnership.
WITNESS my hand, at office in _________________________, this ________ day
of April, 2003.
_______________________________
Notary Public
My Commission Expires:
