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 XXXXX XXXXXX
ENTERTAINMENT CORPORATION (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:
6
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, 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.
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 discretion, to take any
2
action and to execute any instrument which Administrative Agent may deem
reasonably necessary or advisable to accomplish the purposes of the Security
Agreement or this IP Security Agreement. This authority includes, without
limitation, the following:
(a) To modify or amend (in Administrative Agent'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.
The foregoing power of attorney is coupled with an interest and is irrevocable.
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.
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
3
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.
4
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: XXXXX XXXXXX ENTERTAINMENT
CORPORATION
(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)
---------- -------- ----------- ------------ ------------ ---------------
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
----------- ---------- ------- ------ ------ ------
III. Trademark Licenses
------------------
Registration Effective Expiration
Number Xxxx Country Licensor Licensee Date Date
---------- ---- ------- -------- -------- -------- -------
