EXHIBIT 10.53
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Security
Agreement"), dated as of November ___, 2000, is executed by Interactive Telesis,
Inc., a Delaware corporation ("Borrower"), in favor of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Guaranty Finance, LLC, a California limited liability company ("Secured
Lender").
RECITALS
A. Borrower and Secured Lender have entered into (i) a Loan and
Security Agreement dated the date hereof, and (ii) the Schedule attached thereto
and made an integral part thereof (collectively, the "Agreement"), pursuant to
which Secured Lender has made Loan(s) available to Borrower.
B. In order to induce Secured Lender to enter into the Agreement,
Borrower has agreed to enter into this Security Agreement and to grant the
security interest in the Collateral described below.
AGREEMENT
NOW, THEREFORE, in consideration described in the above recitals and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Borrower hereby agrees with Secured Lender as follows:
1. DEFINITIONS AND INTERPRETATION. Unless otherwise defined herein,
all capitalized terms used herein and defined in the Agreement
shall have the respective meanings given to those terms in the
Agreement.
2. GRANT OF SECURITY INTEREST. AS SECURITY FOR THE OBLIGATIONS,
Borrower hereby pledges and assigns to Secured Lender and grants
to Secured Lender a security interest in all of its right, title
and interests in and to the following property now owned or
hereafter acquired (collectively and severally, the
"Collateral"):
2.1 All copyrights including all original works of authorship
fixed in any tangible medium of expression, all right, title
and interest therein and thereto, and all resignations and
recordings thereof, including all applications,
registrations and recordings in the United States Copyright
Office or any successor or agency thereto (the "Copyright
Office") or in any similar office or agency of the United
States, any state thereof, or any foreign country
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or any political subdivision thereof, all whether now owned
or hereafter acquired by Borrower, including those described
on Attachment I hereto (collectively, the "Copyrights");
2.2 All patentable inventions, patent rights, shop rights,
letter patent of the United States or any other country, all
right, title and interest therein and thereto, and all
registrations and recordings thereof, including all patent
registrations an recordings in the United States Patent and
Trademark Office or any successor office or agency thereto
(the "Patent and Trademark Office") or in any similar office
or agency of the United States, any state thereof or any
foreign country or political subdivision thereof, all
whether now owned or hereafter acquired by Borrower,
including those described in Attachment I hereto
(collectively, the "Patents");
2.3 All trademarks, trade names, trade styles and service marks,
and all prints and labels on which said trademarks, trade
names, trade styles and service marks have appeared or
appear, and all designs and general intangibles of like
nature, now existing or hereafter adopted or acquired, all
right, title and interest therein and thereto, all
registrations and recordings thereof, including all
applications, registrations and recordings in the Patent and
Trademark Office or in any similar office or agency of the
United States, any state thereof, or any foreign country or
any political subdivision thereof, all whether now owned or
hereafter acquired by Borrower, including those described in
Attachment I hereto (collectively, the "Trademarks");
2.4 All goodwill of Borrower's business symbolized by the
Trademarks and all customer lists and other records of
Borrower relating to the distribution of products or
provision of services bearing or covered by the Trademarks;
2.5 All information, including formulas, patterns, compilations,
programs, devices, methods, techniques or processes, that
derives independent economic value, actual or potential,
from not being generally know to, and not being ready
ascertainable by proper means by other persons who can
obtain economic value from its disclosure or use, all
whether now owned or hereafter acquired by the Borrower
(collectively, the "Trade Secrets");
2.6 All claims by Borrower against any Person for past, present
or future infringement of the Patents, Trademarks,
Copyrights, or Trade Secrets;
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2.7 All proceeds of the foregoing (including, without
limitation, whatever is receivable or received when
Collateral or proceeds are sold, collected, exchanged,
returned, substituted or otherwise disposed of, whether such
disposition is voluntary or involuntary, including rights to
payment and return premiums and insurance proceeds under
insurance with respect to any Collateral, and all rights to
payment with respect to any cause of action affecting or
relating to the Collateral).
3. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
to Secured Lender that (a) Borrower is the owner of the
Collateral (or, in the case of after-acquired Collateral, at the
time Borrower acquires rights in the Collateral, will be the
owner thereof) and that no other Person has any right, title,
claim, or interest (by way of Lien or otherwise) in, against or
to the Collateral other than Permitted Liens; (b) Secured Lender
has or, in the case of after-acquired Collateral, will have, a
perfected first-priority security interest in the Collateral; and
(c) Borrower does not own any Patents, Trademarks, Copyrights
registered in, or the subject of pending applications in, the
Patent and Trademark Office, the Copyright Office or any similar
offices or agencies in any other country or any political
subdivision thereof, other than those described in Attachment I
hereto.
4. COVENANTS RELATING TO COLLATERAL. Borrower hereby agrees (a) to
perform all commercially reasonable acts that may be necessary to
maintain, preserve, protect and perfect the Collateral, the Lien
granted to Secured Lender therein and the first priority of such
Lien; (b) to appear in and defend any action or proceeding which
may affect its title to or Secured Lender's interest in the
Collateral; (c) to promptly register the most recent version of
Borrower's material Copyrights, if not so already registered, as
Secured Lender may reasonably request from time to time; (d) on a
continuing basis, to make, execute and acknowledge and deliver
appropriate filings with the Patent and Trademark Office and the
Copyright Office, including one or more Powers of Attorney
substantially in the form of Attachment II hereto. Secured Lender
agrees not to use the Powers of Attorney unless an Event of
Default has occurred and is continuing.
5. NOTICE OF PATENT, TRADEMARK OR COPYRIGHTS. Borrower will promptly
notify Secured Lender upon (a) the filing by Borrower of 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, or (b) the acquisition by
Borrower of any Patent, Trademark or Copyright that is filed 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.
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6. SUCCESSORS AND ASSIGNS. This Security Agreement shall bind and
inure to the benefit of the respective successors and permitted
assigns of each of the parties; provided, however, that neither
this Agreement nor any rights hereunder may be assigned by
Borrower without Secured Lender's prior written consent, which
consent may be granted or withheld in Secured Lender's sole
discretion. Secured Lender shall have the right at any time,
pursuant to the Agreement, to sell, transfer, or negotiate all or
any part of, or any interest in the Obligations, this Agreement
or any of the Related Agreements, and upon any such sale,
transfer or negotiation, the assignee thereof shall be entitled
to all of the right and interest of the Secured Lender so
transferred.
7. SEVERABILITY. If a court of competent jurisdiction finds any
provision of this Security Agreement to be invalid or
unenforceable as to any person or circumstances, such find shall
not render that provision invalid or unenforceable as to any
other persons or circumstances. If feasible, any such offending
provision shall be deemed to be modified to be within the limits
of enforceability or validity; however, if the offending
provision cannot be so modified, it shall be stricken and all
other provisions of this Security Agreement in all other respects
shall remain valid and enforceable.
8. WAIVER. Secured Lender shall not be deemed to have waived any
rights under this Security Agreement, unless such waiver is given
in writing and signed by Secured Lender. No delay or omission on
the part of Secured Lender in exercising any right shall operate
as a waiver of such right or any other right. A waiver by Secured
Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Secured Lender's right otherwise to demand
strict compliance with that provision or any other provision of
this Security Agreement. No prior waiver by Secured Lender, nor
any course of dealing between Secured Lender and Borrower, shall
constitute a waiver of any of Secured Lender's rights or of any
obligations of Borrower as to any future transactions. Whenever
the consent of Secured Lender is required under this Security
Agreement, the granting of such consent by Secured Lender in any
instance shall not constitute continuing consent in subsequent
instances where such consent is required and in all cases may be
granted or withheld in the sole discretion of Secured Lender.
9. COUNTERPARTS. This Security Agreement may be executed in any
number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, Borrower has caused this Security Agreement to be
executed as of the first day and year first written above.
INTERACTIVE TELESIS INC.
BY:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary and Chief Financial Officer
AGREED:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GUARANTY FINANCE, LLC
BY:
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
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STATE OF CALIFORNIA )
)
COUNTY OF )
--------------------------
On November 21, 2000, before me, ___________________________________,
Personally appeared _____________________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on such
instrument the person or entity on behalf of which the person(s) acted executed
the instrument.
WITNESS my hand and official seal.
Signature _________________________________ (Seal)
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ATTACHMENT I
TO INTELLECTUAL PROPERTY SECURITY AGREEMENT
---------------------------------------------------------------------------------------------------------------------
TRADEMARKS (INCLUDING TRADEMARK APPLICATIONS)
---------------------------------------------------------------------------------------------------------------------
TRADEMARK JURISDICTION REGISTRATION DATE REGISTRATION NUMBER
---------------------------------------------------------------------------------------------------------------------
InvestorReach June 28, 1996 75/126541
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MarketReach July 8, 1996 75/131187
---------------------------------------------------------------------------------------------------------------------
Telesurvey August 5, 1999 75/640079
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VoiceVault June 2, 2000 76/062380
---------------------------------------------------------------------------------------------------------------------
The Voice of Experience August 28, 2000 76/117692
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PATENTS (INCLUDING PATENT APPLICATIONS)
----------------------------------------------------------------------------------------------------------------------
PATENT JURISDICTION REGISTRATION DATE REGISTRATION NUMBER
---------------------------------------------------------------------------------------------------------------------
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COPYRIGHTS (INCLUDING COPYRIGHT APPLICATIONS)
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COPYRIGHTS JURISDICTION REGISTRATION DATE REGISTRATION NUMBER
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ATTACHMENT II
TO INTELLECTUAL PROPERTY SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
--------------------------
KNOW ALL PERSONS BY THESE PRESENTS, THAT INTERACTIVE TELESIS INC., a
Delaware corporation ("Borrower"), pursuant to an Intellecutal Property Security
Agreement dated the date hereof (the "SECURITY AGREEMENT"), between Borrower and
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GUARANTY FINANCE, LLC, a California limited liability company
("SECURED LENDER"), hereby appoints and constitutes Secured Lender, its true and
lawful attorney, with full power of substitution, and with full power and
authority to perform the following acts on behalf of Borrower:
1. For the purpose of assigning, selling, licensing, or otherwise
disposing of all right, title and interest of Borrower in and to any letters
patent of the United States or any other country or political subdivision
thereof, and all regisrations, recordings, reissues, continuations,
continuations-in-part and extensions thereof, and all pending applications
therefor, and for the purpose of the recording, registering and filing of, or
accomplishing any other formality with respect to, the foregoing, to execute and
deliver any and all agreements, documents, instruments of assignment or other
papers to the extent necessary or advisable to effect such purpose;
2. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any trademarks,
trade names, trade styles and service marks, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications
therefore, and for the purpose of the recording, registering and filing of, or
accomplishing any other formality with respect to, the foregoing, to execute and
deliver any and all agreements, documents, instruments of assignment or other
papers to the extent necessary or advisable to effect such purpose;
3. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any copyrights,
and all registations, recordings, reissues, extensions and renewals thereof, and
all pending applications therefore, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with respect to,
the foregoing, to execute and deliver any and all agreements, documents,
instruments of assignment or other papers to the extent necessary or advisable
to effect such purpose;
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4. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Borrower in and to any mask works,
and all registrations, recordings, reissues, extensions and renewals thereof,
and all pending applictations therefore, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with respect to,
the foregoing, to execute and deliver any and all agreements, documents,
instruments of assignment or other papers to the extent necessary or advisable
to effect such purpose;
5. For the purpose of evidencing and perfecting Secured Lender's
interest in any patent, trademark, copyright or mask work not previously
assigned to Secured Lender as security, or in any patent, trademark, copyright
or mask work, which Borrower may acquire from a third party, and for the purpose
of the recording, registering and filing of, or accomplishing any other
formality with respect to, the foregoing, to execute and deliver any and all
agreements, documents, instruments of assignment or other papers to the extent
necessary or advisable to effect such purpose.
6. To execute any and all documents, statements, certificates or
other papers to the extent necessary or advisable to obtain the purposes
described above as Secured Lender may in its sole discretion determine.
Dated: November ___, 2000
Interactive Telesis Inc.
By:
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary & Chief Financial Officer
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STATE OF CALIFORNIA )
)
COUNTY OF )
--------------------------
On November ____, 2000, before me, _________________________________,
Personally appeared _____________________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on such
instrument the person or entity on behalf of which the person(s) acted executed
the instrument.
WITNESS my hand and official seal.
Signature _____________________________ (Seal)
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