INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (as may be
amended, supplemented and otherwise modified from time to time, "IP Security
Agreement") is made and effective as of June 29, 2001, by NBG RADIO NETWORK,
INC. (including any successor or permitted assignee thereof, "Grantor"), in
favor of MCG FINANCE CORPORATION (including any successor, participant, assignee
or transferee thereof, "Administrative Agent"), as administrative agent for
itself and the Lenders (as defined in the Credit Agreement referred to below).
R E C I T A L S
- - - - - - - -
WHEREAS, Grantor and each direct and indirect Subsidiary of
Grantor (each, a "Borrower"; collectively, the "Borrowers") desire and have
applied to Administrative Agent and the Lenders for a credit facility consisting
of a term loan pursuant to which up to $6.2 million can be borrowed from time to
time; and
WHEREAS, pursuant to that certain Credit Facility Agreement by
and among Borrowers, Lenders and Administrative Agent dated as of June 29, 2001
(as may be amended from time to time, "Credit Agreement"), a condition precedent
to the obligation of the Administrative Agent or any Lender to execute and
perform under the Credit Agreement is that Borrowers shall have executed and
delivered that certain Master Security Agreement, Collateral Assignment and
Equity Pledge executed by Borrowers in favor of Administrative Agent for the
benefit of Administrative Agent and the Lenders dated as of June 29, 2001 (as
may be amended from time to time, "Security Agreement") encumbering all of
Borrowers' tangible and intangible personal property assets in favor of
Administrative Agent for the benefit of Administrative Agent and the Lenders;
and
WHEREAS, under the terms of the Security Agreement, Grantor
has agreed to assign certain intellectual property to Administrative Agent for
purposes of securing the obligations to Administrative Agent and the Lenders
under the Credit Agreement and related Loan Documents; and
WHEREAS, Grantor has determined that it is in its best
interest to execute this IP Security Agreement inasmuch as Grantor will derive
substantial direct and indirect benefits from the funding of the Advances by
Administrative Agent pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, Grantor and Administrative Agent hereby agree as follows:
1. Grant. Grantor hereby grants to Administrative Agent
an absolute, present, unconditional, continuing first priority security interest
in and to Grantor's entire right, title and interest in and to the following
property and rights (collectively, the "Collateral"):
(a) The U.S., state and foreign copyrights,
associated copyright registrations and applications for copyright registration,
and copyright licenses set forth on Schedule A attached hereto (collectively,
the "Copyrights"); and
(b) The U.S., state and foreign patents and patent
applications, and patent licenses set forth on Schedule B attached hereto,
including, without limitation, improvements, divisions, continuations, renewals,
reissues, extensions and continuations-in-part of the same (collectively, the
"Patents"); and
(c) The U.S., state and foreign trademark and service
xxxx registrations, trademark and service xxxx applications (except for "intent
to use" applications for trademark or service xxxx applications filed pursuant
to Section 1(b) of the Xxxxxx Act, unless and until an Amendment to Allege Use
or a Statement of Use under Section 1(c) or 1(d) of said Act has been filed),
and trademark and service xxxx licenses set forth on Schedule C attached hereto
(including all associated goodwill, collectively, the "Trademarks"); and
(d) Any and all claims and causes of action for past,
present or future infringement of any of the Collateral, with the right, but not
the obligation, to xxx for and collect damages for infringement of the
Collateral; and
(e) Any and all licenses or rights granted under any
of the Collateral, and all license fees and royalties arising from such licenses
or rights, to the extent permitted by such licenses or rights; and
(f) Any and all amendments, renewals, extensions,
reissuances and replacements of any of the Collateral; and
(g) Any and all products and proceeds of any of the
foregoing.
2. Requested Recordation. Grantor authorizes and
requests that the Register of Copyrights and the Commissioner of Patents and
Trademarks (and any state, foreign or other authorities to which this IP
Security Agreement is submitted) to file and record this IP Security Agreement
(and any corresponding or separate application forms of such jurisdiction) in
order to publicly reflect Administrative Agent's interest in the Collateral.
3. Assignment. Upon the occurrence of an Event of
Default (as defined in the Security Agreement), Grantor shall execute and
deliver to Administrative Agent an absolute assignment transferring its entire
right, title, and interest in and to the Collateral to Administrative Agent.
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4. Power of Attorney. Grantor hereby irrevocably grants
Administrative Agent a power of attorney, to act as Grantor's attorney-in-fact,
with full authority in the name, place and stead of Grantor, from time to time
in Administrative Agent's reasonable discretion regardless of whether a Default
or Event of Default is occurring:
(a) To modify or amend (in Lender's sole discretion
and without first obtaining Grantor's approval of or signature thereto) Schedule
A, Schedule B, and/or Schedule C hereof, as appropriate, to include references
to any registered intellectual property (or application or license therefor)
acquired by Grantor after the execution hereof or to delete any reference to any
Collateral in which Grantor no longer has or claims any right, title or
interest; and
(b) To execute, file and pursue (in Administrative
Agent's sole discretion and without first obtaining Grantor's approval of or
signature thereto, unless otherwise prohibited by applicable law) any
application, form or other document in order to perfect, maintain, continue or
otherwise protect Administrative Agent's interest or Grantor's rights in the
Collateral, including, without limitation, executing and filing (i) any
financing statement, any continuation statement or any amendment thereto, and
(ii) any document in any proceeding before the United States Patent and
Trademark Office, the United States Copyright Office or the relevant office of
any state or foreign jurisdiction (including, without limitation, the filing of
applications for renewal, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings) and to pay any fees and
taxes in connection therewith or otherwise; and
(c) To execute any assignment or other document
required to acknowledge, register or perfect Administrative Agent's interest in
any part of the Collateral without the signature of Grantor unless prohibited by
applicable law.
Grantor also hereby irrevocably grants Administrative
Agent a power of attorney, to act as Grantor's attorney-in-fact, with full
authority in the name, place and stead of Grantor, from time to time in
Administrative Agent's discretion after the occurrence and during the
continuance of a Default or an Event of Default, to take any other action and to
execute any other instrument which Administrative Agent may deem reasonably
necessary or advisable to accomplish the purposes of the Security Agreement or
this IP Security Agreement.
The foregoing power of attorney is coupled with an
interest and is irrevocable but will terminate upon the termination of the
Security Agreement.
5. Release. The security interest granted herein will
terminate (and all rights to the Collateral will revert to Grantor) upon
satisfaction of the following conditions: (a) payment and performance in full of
all the obligations secured hereby (unconditionally and indefeasibly) and (b)
the termination of the Credit Agreement (and the Facilities thereunder). Upon
any such termination, Administrative Agent (at Grantor's request and sole
expense) will execute and deliver to Grantor (without any representation,
warranty or recourse of any kind whatsoever) such documents as Grantor may
reasonably request and provide to Administrative Agent to evidence such
termination.
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6. Miscellaneous. This IP Security Agreement has been
entered into in conjunction with the provisions of and the security interest
granted to Administrative Agent under the Security Agreement. The rights and
remedies of Grantor and Administrative Agent with respect to the security
interest granted herein are in addition and without prejudice to those set forth
in the Security Agreement and the Credit Agreement, all terms and provisions of
which are hereby incorporated herein by reference. This IP Security Agreement
may be executed in any number of counterparts with the same effect as if all the
signatures on such counterparts appeared on one document; each such counterpart
will be deemed to be an original but all counterparts together will constitute
one and the same instrument. In the event that any provisions of this IP
Security Agreement are deemed to conflict with the Security Agreement or the
Credit Agreement, the provisions of the Security Agreement or Credit Agreement
shall govern.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this IP
Security Agreement, as an instrument under seal (whether or not any such seals
are physically attached hereto), through their duly authorized officers, as of
the date first written above.
IN WITNESS WHEREOF, the parties hereto have executed this IP
Security Agreement, as an instrument under seal (whether or not any such seals
are physically attached hereto), through their duly authorized officers, as of
the date first written above.
WITNESS: NBG RADIO NETWORK, INC.
(as Grantor)
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx III
--------------------------- ---------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxx III
Title: Secretary Title: President
[CORPORATE SEAL]
Address: The Cascade Building
000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITNESS: MCG FINANCE CORPORATION
(as Administrative Agent)
By: /s/Xxxx Xxxxxx By: /s/ X. Xxxxx Xxxxxxx
--------------------------- ---------------------------
Name: X. Xxxxx Xxxxxxx
Title: Executive Vice President
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
ACKNOWLEDGMENT
STATE OF NEW YORK
-------------------------------------------
: SS
COUNTY OF ULSTER
------------------------------------------
Before me, the undersigned, a Notary Public, on this 27TH day
of June, 2001, personally appeared Xxxx X. Xxxxxx, III to me known personally,
who, being by me duly sworn, did say that he/she is the Presidentof NBG RADIO
NETWORK, INC., and that said instrument (i.e., the Intellectual Property
Security Agreement) was signed on behalf of said NBG RADIO NETWORK, INC. by
authority of its board of directors, and the said Xxxx X. Xxxxxx acknowledged
said instrument to be his/her free act and deed.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
My Commission Expires: 2/7/02
------------------
ACKNOWLEDGEMENT
COMMONWEALTH OF VIRGINIA :
: SS
COUNTY OF ARLINGTON :
Before me, the undersigned, a Notary Public, on this _____ day
of _________, 2001, personally appeared X. Xxxxx Xxxxxxx to me known personally,
who, being by me duly sworn, did say that he is the Managing Director of MCG
FINANCE CORPORATION, and that said instrument (i.e., the Intellectual Property
Security Agreement) was signed on behalf of said MCG Finance Corporation by
authority of its Board of Directors, and the said Managing Director acknowledged
said instrument to be his free act and deed.
Notary Public
My Commission Expires:
------------------
SCHEDULE A
COPYRIGHT COLLATERAL
I. Registered Copyrights
---------------------
Copyright Registration Registration
Title Number Date
--------- ------------ ------------
II. Pending Copyright Applications
------------------------------
Copyright Application Filing Date of Date of
Title Number Date Creation Publication
--------- ----------- ------ -------- -----------
III. Unregistered Copyrights
-----------------------
Date and
Recordation Date of
Number of Expected
Copyright Date of Date of Original Assignment Registration
Title Creation Publication Author/Owner to Grantor (if applicable)
---------- -------- ----------- ------------ ------------ ---------------
From 1996 to the present, NBG has produced approximately 15,000 radio programs
ranging from one-minute vignettes to one-hour programs. These programs are
stored on CD, computer tape and cassettes.
IV. Copyright Licenses
------------------
Effective Expiration Subject
Copyright Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- -------
SCHEDULE B
PATENT COLLATERAL
I. Patents
-------
Patent Issue
Number Country Date Title
------ ------- ---- -----
II. Pending Patent Applications
---------------------------
Patent Atty. Docket Serial Filing
Title Number Country Number Date Status
------- ----------
III. Patent Licenses
---------------
Effective Expiration
Patent No. Country Licensor Licensee Date Date
---------- ------- -------- -------- -------- ------
SCHEDULE C
TRADEMARK COLLATERAL
I. Registered Trademarks
---------------------
Trademark Registration
Description Country Number
----------- ------- ------------
II. Pending Trademark Applications
------------------------------
Trademark Atty. Docket Serial Filing
Description Number Country Number Date Status
----------- ---------- ------- ------ ------ ------
"NBG Radio
Network" U.S.A. 78040980 12/28/2000 Newly filed
word xxxx application,
stylized. not yet
assigned to an
examining
"DIRECT attorney.
SAMPLING" U.S.A. 78042980 Newly filed
word xxxx application,
stylized. not yet
assigned to an
examining
"BIGG attorney.
SNOOP A non-final
DOGG U.S.A. 7802786 action has
RADIO" word been mailed.
xxxx stylized. This is a letter
from the
examining
attorney
requesting
additional
information
and/or making
an initial
refusal. No
final
determination
as to the
registrability
of the xxxx
has been
made.
III. Trademark Licenses
------------------
Registration Effective Expiration
Number Xxxx Country Licensor Licensee Date Date
---------- ---- ------- -------- -------- -------- -------
