Exhibit 99.2
SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
This SECURITY AGREEMENT (INTELLECTUAL PROPERTY) (this "SECURITY
AGREEMENT"), dated as of July 5, 2007, is entered into by and among SWMX, Inc.,
a Delaware corporation ("SWMX"), Softwave Media Exchange, Inc., a Delaware
corporation ("SOFTWAVE", and collectively with SWMX, "GRANTOR"), and BlueCrest
Capital Finance, L.P., a Delaware limited partnership ("LENDER").
A. Pursuant to that certain Loan and Security Agreement, dated as of March
23, 2007 (as amended, restated, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT"), by and between Grantor and Lender, the Lender
agreed to extend loans and other financial accommodations to Grantor upon the
terms and subject to the conditions set forth therein.
B. Grantor and Lender have entered into that certain Forbearance Agreement
of even date herewith (the "FORBEARANCE AGREEMENT"), which is conditioned upon,
among other things, receipt by Lender of this Security Agreement duly executed
by Grantor.
AGREEMENT
In consideration of the above recitals and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor hereby agrees with Lender as follows:
1. DEFINITIONS AND INTERPRETATION. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"COLLATERAL" has the meaning given to that term in SECTION 2 hereof.
"COPYRIGHT OFFICE" means the United States Copyright Office or any
successor office or agency thereto.
"COPYRIGHTS" has the meaning given to that term in ATTACHMENT 1
hereto.
"FORBEARANCE AGREEMENT" has the meaning given to that term in
RECITAL B hereof.
"GRANTOR" has the meaning given to that term in the introductory
paragraph hereof.
"LENDER" has the meaning given to that term in the introductory
paragraph hereof.
"LOAN AGREEMENT" has the meaning given to that term in RECITAL A
hereof.
"PATENT AND TRADEMARK OFFICE" means the United States Patent and
Trademark Office or any successor office or agency thereto.
"PATENT APPLICATIONS" means all applications made by, or on behalf
of, Grantor to the Patent and Trademark Office or to any similar office or
agency of any foreign country or political subdivision thereof for the
registration of Patents.
"PATENT REGISTRATIONS" means all Patents registered with the Patent
and Trademark Office or with any similar office or agency of any foreign country
or political subdivision thereof and all Patent Applications.
"PATENTS" has the meaning given to that term in ATTACHMENT 1 hereto.
"SECURED OBLIGATIONS" means the Borrower's Liabilities (as defined
in the Loan Agreement).
"SECURITY AGREEMENT" means this Security Agreement (Intellectual
Property) and all exhibits and schedules hereto, as the same may from time to
time be amended, modified, supplemented or restated.
"TRADE SECRETS" has the meaning given to that term in ATTACHMENT 1
hereto.
"TRADEMARKS" has the meaning given to that term in ATTACHMENT 1
hereto.
"UCC" means the Uniform Commercial Code as the same may, from time
to time, be in effect in the State of New York; PROVIDED, HOWEVER, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Lender's security interest in any collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" means the Uniform Commercial Code as
in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection of priority and for purposes of
definitions related to such provisions.
Unless otherwise defined herein, all other capitalized terms used herein and
defined in the Loan Agreement shall have the respective meanings given to those
terms in the Loan Agreement, and all terms defined in the UCC shall have the
respective meanings given to those terms in the UCC.
2. GRANT OF SECURITY INTEREST. Grantor hereby assigns, conveys,
mortgages, pledges, grants, hypothecates and transfers to Lender, as security
for the full, prompt, complete and final payment when due (whether at stated
maturity, by acceleration or otherwise) and prompt performance and observance of
all of the Secured Obligations, and in order to induce the Lender to enter into
the Forbearance Agreement a, a security interest in and to all of Grantor's
right, title and interest in, to and under the property described in ATTACHMENT
1 hereto, whether now owned or hereafter acquired (collectively, the
"COLLATERAL"), which ATTACHMENT 1 is incorporated herein.
3. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants to
Lender as follows:
(a) Grantor has good and valid rights in, title to or leasehold
interests in each item of the Collateral pledged by Grantor hereunder (or, in
the case of after-acquired Collateral, at the time Grantor acquires rights in
such after-acquired Collateral pledged by Grantor hereunder). No other Person
has (or, in the case of after-acquired Collateral, at the time Grantor acquires
rights therein, will have) any right, title, claim or interest (by way of lien,
purchase option or otherwise) in, against or to the Collateral, other than
Permitted Liens.
(b) Lender has (or in the case of after-acquired Collateral, at the
time Grantor acquires rights therein, will have) a first priority perfected
security interest in the Collateral, subject to Permitted Liens; PROVIDED,
HOWEVER, that Lender must make the filings with the Patent and Trademark Office
or Copyright Office contemplated by this Security Agreement to perfect its
security interest in Grantor's Patents, Trademarks or Copyrights registered with
such offices.
(c) Grantor has full corporate power and authority to make the
conditional assignment and to grant the security interest herein granted.
(d) Grantor has the sole, full and unencumbered right, title and
interest in and to (i) each of the Trademarks described in SCHEDULE A TO
ATTACHMENT 1 hereto for the goods and services covered by the registrations
thereof, (ii) each of the Patents described in SCHEDULE B TO ATTACHMENT 1
hereto, and (iii) each of the Copyrights described in SCHEDULE C TO ATTACHMENT 1
hereto. Any registrations for such Trademarks and Patents are valid and
enforceable and in full force and effect and none of the Patents has been
abandoned or dedicated.
(e) Grantor does not own any Patents, Trademarks or Copyrights
registered in, or the subject of pending applications in, the Patent and
Trademark Office or the Copyright Office, other than those described in
SCHEDULES A, B, AND C TO ATTACHMENT 1 hereto.
(f) No claim has been made by any third party and remains unresolved
that any of the issued Patents, Trademarks or Copyrights is invalid and
unenforceable or violates or may violate the rights of any Person.
(g) Set forth in SCHEDULE D TO ATTACHMENT 1 hereto is a complete
list of all licenses of Patents, Trademarks, Copyrights and Trade Secrets which
Grantor has granted to any Person.
(h) Set forth in SCHEDULE E TO ATTACHMENT 1 hereto is a complete
list of all licenses of Patents, Trademarks, Copyrights and Trade Secrets which
any Person has granted to Grantor other than for standard off the shelf
software.
(i) Grantor has obtained from each of its employees, officers,
directors and consultants who may be considered the inventor of patentable
inventions (invented within the scope of such Person's relationship with
Grantor) an assignment to such Grantor of all rights to such inventions,
including Patents.
(j) Grantor has taken all commercially reasonable steps to protect
the secrecy and the validity under applicable law of all material Trade Secrets.
4. COVENANTS OF THE GRANTOR. Grantor hereby agrees as follows:
(a) Grantor, at the Grantor's expense, shall promptly procure,
execute and deliver to Lender all documents, instruments and agreements and
perform all acts which are necessary, or which Lender may request, to establish,
maintain, preserve, protect and perfect the Collateral, the lien granted to
Lender therein and the first priority of such lien (subject to Permitted Liens)
or to enable Lender to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the preceding
sentence, Grantor shall (i) execute all notices of security interest for each
relevant type of intellectual property in forms suitable for filing with the
Patent and Trademark Office or the Copyright Office, as applicable,
substantially in the forms of ATTACHMENTS 2 AND 3 hereto or other forms
acceptable to Lender and (ii) take all commercially reasonable steps in any
proceeding before the Patent and Trademark Office, the Copyright Office or any
similar office or agency in any other country or any political subdivision
thereof, to diligently prosecute or maintain, as applicable, each application
and registration of the Patents, Trademarks and Copyrights, including filing of
renewals, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings (except to the extent that the failure
to prosecute or maintain or the dedication, abandonment or invalidation thereof
is permitted hereunder or unless Grantor in the exercise of its prudent business
judgment deems the failure to prosecute or maintain or the dedication,
abandonment or invalidation to be commercially reasonable).
(b) Grantor shall not use any Collateral or permit any Collateral to
be used in violation of (i) any provision of the Loan Agreement, this Security
Agreement or any Other Agreements, (ii) any applicable governmental rule or
contractual obligation, or (iii) any policy of insurance covering the
Collateral.
(c) Grantor shall pay promptly when due all taxes and other
governmental charges, all liens and all other charges (except to the extent
constituting Permitted Liens) now or hereafter imposed upon, relating to or
affecting any Collateral.
(d) Grantor shall appear in and defend any action or proceeding
which may affect its title to or Lender's security interest in the Collateral.
(e) Grantor shall keep accurate and complete records of the
Collateral and shall permit Lender to examine and make copies of such records
and provide such reports and information relating to the Collateral as Lender
may request from time to time.
(f) Grantor shall not sell, encumber, lease, rent, option, license
or otherwise dispose of or transfer any Collateral or right or interest therein
except as permitted in the Loan Agreement, and Grantor shall keep the Collateral
free of all liens except Permitted Liens.
(g) Grantor (either directly or through licensees) will continue to
use the Trademarks in connection with each and every trademark class of goods or
services applicable to its current line of products or services as reflected in
its current catalogs, brochures, price lists or similar materials in order to
maintain the Trademarks in full force and effect free from any claim of
abandonment for nonuse, and Grantor will not (and will not permit any licensee
thereof to) do any act or knowingly omit to do any act whereby any Trademark may
become invalidated. Grantor will not do any act, or omit to do any act, whereby
the Patents or Patent Registrations may become abandoned or dedicated or the
remedies available against potential infringers weakened and shall notify Lender
immediately if it knows of any reason or has reason to know that any such Patent
Registration may become abandoned or dedicated, unless Grantor, in the exercise
of its prudent business judgment, deems any such Patent not to have any
significant commercial value. Grantor will not do any act or omit to do any act,
whereby the Copyrights may become abandoned or dedicated or the remedies
available against potential infringers weakened unless Grantor, in the exercise
of its prudent business judgment, deems any such Copyright not to have any
significant commercial value, and shall notify Lender immediately if it knows of
any reason or has reason to know that any such Copyright may become abandoned or
dedicated.
(h) Grantor will promptly notify Lender upon the filing, either by
Grantor or through any agent, employee, licensee or designee, of (i) an
application for the registration of any Patent, Trademark, or Copyright with the
Patent and Trademark Office or the Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, (ii) any
assignment of any Patent or Trademark, which Grantor may acquire from a third
party, with the Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof, or (iii) any assignment
of any Copyright, which Grantor may acquire from a third party, with the
Copyright Office or any similar office or agency in any other country or any
political subdivision thereof.
(i) Grantor shall make application to (i) the Patent and Trademark
Office to register any unpatented but patentable inventions developed by Grantor
or its employees or consultants (within the scope of their employment or
consulting relationship), unless Grantor, in the exercise of its prudent
business judgment, deems any such Patent not to have any significant commercial
value or determines that its rights thereunder are better preserved as a Trade
Secret, (ii) the Patent and Trademark Office to register any registerable but
unregistered Trademarks used by Grantor in connection with its products or
services unless Grantor in the exercise of its prudent business judgment, deems
any such Trademark not to have any significant commercial value, and (iii) the
Copyright Office to register any unregistered Copyright to which Grantor has
rights unless Grantor in the exercise of its prudent business judgment, deems
any such Copyright not to have any significant commercial value or determines
that its rights thereunder are better protected as a Trade Secret.
(j) Grantor shall and shall cause its employees and licensees to (i)
use proper statutory notice in connection with its use of the Patents,
Trademarks and Copyrights, (ii) maintain consistent standards of quality in its
manufacture of products sold under the Trademarks or provision of services in
connection with the Trademarks, and (iii) take all commercially reasonable steps
necessary to protect the secrecy and the validity under applicable law of all
material Trade Secrets.
(k) If Grantor learns of any use by any Person of any term or design
likely to cause confusion with any Trademark, Grantor shall promptly notify
Lender of such use and of all steps taken and to be taken to remedy any
infringement of such Trademark.
(l) Grantor shall maintain with each employee or consultant who may
have access to the Trade Secrets of Grantor an agreement by which such employee
or consultant agrees not to disclose such Trade Secrets and with each employee
or consultant who may be the inventor of patentable inventions (invented within
the scope of their employment or consulting relationship) an invention
assignment agreement requiring such employee or consultant to assign all rights
to such inventions, including, patents and patent applications, to Grantor and
further requiring such employee or consultant to cooperate fully with Grantor
and its successors in interest, including Lender, and their counsel, in the
prosecution of any patent application or in any litigation involving the
invention, whether such cooperation is required during such employee's
employment or such consultant's relationship with Grantor or after the
termination thereof.
5. AUTHORIZED ACTION BY THE ADMINISTRATIVE AGENT. Grantor hereby
irrevocably appoints Lender as its attorney-in-fact and agrees that Lender may
perform (but Lender shall not be obligated to and shall incur no liability to
Grantor or any third party for failure so to do) any act which Grantor is
obligated by this Security Agreement to perform, and to exercise such rights and
powers as Grantor might exercise with respect to the Collateral, including,
without limitation, the right to (a) collect by legal proceedings or otherwise
and endorse, receive and receipt for all royalties, payments, proceeds and other
sums and property now or hereafter payable on or on account of the Collateral;
(b) insure, process, preserve and enforce the Collateral; (c) make any
compromise or settlement, and take any action it deems advisable, with respect
to the Collateral; (d) pay any indebtedness of Grantor relating to the
Collateral; and (e) execute UCC financing statements and other documents,
instruments and agreements required hereunder; PROVIDED, HOWEVER, that Lender
shall exercise such powers only after the occurrence and during the continuance
of an Event of Default. Grantor agrees to reimburse Lender upon demand for all
costs and expenses, including attorneys' fees, Lender may incur while acting as
Grantor's attorney-in-fact hereunder, all of which costs and expenses are
included in the Secured Obligations. Grantor agrees that such care as Lender
gives to the safekeeping of its own property of like kind shall constitute
reasonable care of the Collateral when in Lender's possession; PROVIDED,
HOWEVER, that Lender shall not be required to make any presentment, demand or
protest, or give any notice and need not take any action to preserve any rights
against any prior party or any other Person in connection with the Secured
Obligations or with respect to the Collateral.
6. DEFAULT AND REMEDIES. Grantor shall be deemed in default under this
Security Agreement upon the occurrence and during the continuance of an Event of
Default, as that term is defined in the Loan Agreement. In addition to all other
rights and remedies granted to Lender by this Security Agreement, the Loan
Agreement, the Other Agreements, the UCC and other applicable governmental
rules, Lender may, upon the occurrence and during the continuance of any Event
of Default, exercise any one or more of the following rights and remedies: (a)
collect, receive, appropriate or realize upon the Collateral or otherwise
foreclose or enforce the Lender's security interests in any or all Collateral in
any manner not prohibited by applicable governmental rules or in this Security
Agreement; (b) notify any or all licensees of Collateral to make payments
thereon directly to Lender; (c) sell, license or otherwise dispose of any or all
Collateral at one or more public or private dispositions, whether or not such
Collateral is present at the place of sale, for cash or credit or future
delivery, on such commercially reasonable terms and in such commercially
reasonable manner as Lender may determine; (d) upon five (5) Business Days'
prior notice to Grantor, direct Grantor not to make any further use of the
Patents, the Trademarks (or any xxxx similar thereto), or the Copyrights (or any
work deriving therefrom); (e) upon five (5) Business Days' prior notice to
Grantor, license, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any of the Patents, Trademarks or Copyrights,
throughout the world for such term or terms, on such conditions, and in such
manner, as Lender shall in its sole discretion determine; (f) enforce (and upon
notice to Grantor have the exclusive right to enforce) against any licensee or
sublicensee all rights and remedies of Grantor in, to and under any one or more
license agreements with respect to the Collateral (without assuming any
obligations or liability thereunder), and take or refrain from taking any action
under any thereof; and (g) in addition to the foregoing, in order to implement
the assignment, sale or other disposal of any of the Collateral, pursuant to the
authority granted in SECTION 5 hereof, execute and deliver on behalf of Grantor,
upon five (5) Business Days' prior notice to Grantor, one or more instruments of
assignment of the Patents, Trademarks or Copyrights (or any application or
registration thereof), in form suitable for filing, recording or registration in
any country.
7. APPLICATION OF PROCEEDS. The proceeds of any sale, disposition or other
realization upon all or any part of the Collateral shall be applied by Lender to
the Secured Obligations in any manner whatsoever as Lender shall choose in its
sole and absolute discretion.
8. INDEMNIFICATION AND RELEASE.
(a) Grantor assumes all responsibility and liability arising from
the use of the Patents, Trademarks and Copyrights, and Grantor hereby jointly
and severally indemnifies and holds Lender and its directors, officers,
employees, agents and any of its respective Affiliates ("Indemnitees") harmless
from and against any claim, suit, loss, damage or expense (including attorneys'
fees and expenses) arising out of or in connection with (i) any alleged
infringement of any patent, trademark, service xxxx, trade name, trade secret or
copyright of a third party or alleged defect in any product manufactured,
promoted or sold by Grantor (or any Affiliate of Grantor) in connection with any
Patent, Trademark or Copyright, (ii) the manufacture, promotion, labeling, sale
or advertisement of any product or service by Grantor (or any Affiliate of
Grantor), (iii) any action taken or omitted to be taken by Lender hereunder with
respect to any license agreement of Grantor or (iv) any claim, suit or
proceeding instituted by Grantor or in which Grantor participates. Grantor
agrees that the Indemnities do not assume, and shall have no responsibility for,
the payment of any sums due or to become due under any agreement or contract
included in the Collateral or the performance of any obligations to be performed
under or with respect to any such agreement or contract by Grantor, and Grantor
hereby agrees to indemnify and hold each Indemnitee harmless with respect to any
and all claims by any Person relating thereto.
(b) Grantor hereby releases the Indemnitees from any claims, causes
of action and demands at any time arising out of or with respect to any actions
taken or omitted to be taken by Lender under the powers of attorney granted in
SECTION 5 hereof, other than actions or omissions determined by a final,
non-appealable judgment of a court of competent jurisdiction to have arisen
through the gross negligence or willful misconduct of such Indemnitees.
(c) Grantor agrees to cause Lender to be named as an additional
insured with respect to any policy of insurance held by Grantor from time to
time covering product liability or intellectual property infringement risk.
(d) Nothing contained in this SECTION 8 shall, however, be deemed to
require Grantor to indemnify or hold harmless any Indemnitee from or against any
losses, costs, suits, expenses, claims or damages to the extent determined by a
final, non-appealable judgment of a court of competent jurisdiction to have
arisen from such Indemnitee's gross negligence or willful misconduct.
9. MISCELLANEOUS.
(a) NOTICES. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Grantor or Lender under this Security Agreement shall be given as provided in
SECTION 9.1 of the Loan Agreement.
(b) PARTIAL INVALIDITY. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Security Agreement nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
(c) HEADINGS. The section headings and captions appearing in this
Security Agreement are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Security
Agreement.
(d) NO WAIVER; CUMULATIVE REMEDIES. Lender shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder or under the Loan Agreement or the Other Agreements, nor
shall any single or partial exercise of any right or remedy hereunder or
thereunder on any one or more occasions preclude the further exercise thereof or
the exercise of any other right or remedy hereunder or thereunder. The rights
and remedies hereunder provided or provided under the Loan Agreement or the
Other Agreements are cumulative and may be exercised singly or concurrently, and
are not exclusive of any rights and remedies provided by law or by any of the
Other Agreements. None of the terms or provisions of this Security Agreement may
be waived, altered, modified or amended except by an instrument in writing, duly
executed by Grantor and Lender. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
(e) TIME IS OF THE ESSENCE. Time is of the essence for the
performance of each of the terms and provisions of this Security Agreement.
(f) REINSTATEMENT. This Security Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against Grantor for liquidation or reorganization, should Grantor become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of Grantor's
property and assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured 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 Secured
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 Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
(g) TERMINATION OF THIS SECURITY AGREEMENT. Subject to SECTION 9(F),
this Security Agreement shall terminate upon the full, complete and final
payment of the Secured Obligations and the termination of Grantor's commitments
under the Loan Agreement.
(h) SUCCESSORS AND ASSIGNS. This Security Agreement and all
obligations of Grantor hereunder shall be binding upon the successors and
assigns of Grantor, and shall, together with the rights and remedies of Lender
hereunder, inure to the benefit of Lender and its successors and assigns except
that Grantor may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of Lender. Any assignment or
transfer in violation of the foregoing shall be null and void.
(i) FURTHER INDEMNIFICATION. Grantor agrees to pay, and to save
Lender harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all excise, sales or other similar taxes which may
be payable or determined to be payable with respect to any of the Collateral or
in connection with any of the transactions contemplated by this Security
Agreement.
(j) AMENDMENTS, ETC. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Security Agreement, no
approval or consent thereunder, and no consent to any departure by Grantor
therefrom, may in any event be effective unless in writing signed by Lender, and
then only in the specific instance and for the specific purpose given and any
such amendment, modification, supplement, extension, termination or waiver shall
be binding upon Lender and Grantor; and, without the approval in writing of
Lender, no amendment, modification, supplement, termination, waiver or consent
may be effective as to the matters set forth in the Loan Agreement, including,
without limitation, the release of Grantor.
(k) ENTIRE AGREEMENT. THIS SECURITY AGREEMENT REPRESENTS THE
COMPLETE AND FINAL AGREEMENT AMONG GRANTOR AND LENDER AND SUPERSEDES ALL PRIOR
AGREEMENTS, WRITTEN OR ORAL, ON THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR
AMONG GRANTOR AND LENDER.
(l) GOVERNING LAW. This Security Agreement shall be governed by,
construed and enforced in accordance with, the internal law of the State of New
York without reference to conflicts of law rules other than Section 5-1401 of
the General Obligations Law of the State of New York except that matters
concerning the validity and perfection of a security interest shall be governed
by the conflict of law rules set forth in the UCC. Grantor hereby consents to
the application of New York civil law to the construction, interpretation and
enforcement of this Security Agreement, and to the application of New York civil
law to the procedural aspects of any suit, action or proceeding relating
thereto, including, but not limited to, legal process, execution of judgments
and other legal remedies.
(m) COUNTERPARTS. This Security Agreement may be executed in any
number of identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for all
purposes. Transmission by telecopier of an executed counterpart of this Security
Agreement shall be deemed to constitute due and sufficient delivery of such
counterpart.
(n) PAYMENTS FREE OF TAXES, ETC. All payments made by Grantor under
this Security Agreement shall be made by Grantor free and clear of and without
deduction for any and all present and future taxes, levies, charges, deductions
and withholdings (except as otherwise provided in the Loan Agreement). In
addition, Grantor shall pay upon demand any stamp or other taxes, levies or
charges of any jurisdiction with respect to the execution, delivery,
registration, performance and enforcement of this Security Agreement. Upon
request by Lender, Grantor shall furnish evidence satisfactory to Lender that
all requisite authorizations and approvals by, and notices to and filings with,
governmental authorities and regulatory bodies have been obtained and made and
that all requisite taxes, levies and charges have been paid.
(o) GRANTORS' CONTINUING LIABILITY. Notwithstanding any provision of
this Security Agreement or any Other Agreement or any exercise by Lender of any
of its rights hereunder or thereunder (including, without limitation, any right
to collect or enforce any Collateral), (i) Grantor shall remain liable to
perform its obligations and duties in connection with the Collateral and (ii)
Lender shall not assume or be considered to have assumed any liability to
perform such obligations and duties or to enforce any of Grantor's rights in
connection with the Collateral.
(p) ADDITIONAL PROVISIONS. Grantor hereby acknowledges and agrees
that the jury trial waiver, consent to jurisdiction and other provisions in
SECTIONS 9.12 AND 9.13 of the Loan Agreement apply to this Security Agreement
and are incorporated herein as though set forth in full.
IN WITNESS WHEREOF, this Security Agreement has been duly executed as of
the day and year first above written.
GRANTOR:
SWMX, Inc.,
a Delaware corporation
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
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Title: CFO
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Softwave Media Exchange, Inc.,
a Delaware corporation
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
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Title: CFO
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LENDER:
BlueCrest Capital Finance, L.P.
a Delaware limited partnership
By: BlueCrest Capital Finance GP, LLC
Its: General Partner
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Managing Director
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