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EXHIBIT 10.3
COLLATERAL LICENSE AGREEMENT
THIS COLLATERAL LICENSE AGREEMENT (this "License"), made as of the 30th day of
July 2001, by and among XxxxXxxxxx.Xxx Corp., a Florida corporation, and its
wholly-owned subsidiaries Xceedx Technologies Inc. and WelcomeTo Search Engine
Inc., corporations organized under the laws of the province of British Columbia,
Canada, (the "Licensors"), and Xxx Enterprises, Incorporated, a Delaware
corporation (the "Licensee").
RECITALS
A. Licensors and Licensee are parties to a certain Loan and Security
Agreement, dated August 16, 2000, (together with any and all amendments now or
hereafter made thereto, including but not limited to that one certain Amended
and Restated Loan and Security Agreement of even date herewith, hereinafter
collectively called the "Loan Agreement"), which provides for (1) Licensee from
time to time to extend credit to or for the account of Licensors and (2) the
grant by Licensors to Licensee of a security interest in certain Collateral,
including, without limitation, Licensors' Intellectual Property therein; and,
B. Licensee has required, as a condition to advancing loans to Licensors
under the Loan Agreement, that Licensors execute this License;
NOW, THEREFORE, in consideration of the premises set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Licensor agrees to the following:
TERMS AND CONDITIONS
1. INCORPORATION OF LOAN AGREEMENT. The Loan Agreement and the terms and
provisions thereof are hereby incorporated herein in their entirety by this
reference. Terms used herein that are not defined in this Agreement shall have
the meanings ascribed to them in the Loan Agreement.
2. COLLATERAL LICENSE. In addition to the rights and licenses granted
pursuant to any prior software license agreement between Licensors or any of
them and Licensee, Licensors hereby grant to Licensee, without any further
action, authorization, or instrument, a fully paid-up, irrevocable, perpetual,
nonexclusive world-wide right and license (hereafter, the "Licensed Rights") to
use, modify, maintain, prepare derivative works of, and update the Collateral in
any manner and, further, to practice the art disclosed by or embodied in the
collateral, in any and all manner whatsoever, and to sublicense to third parties
the right to do any or all of the foregoing. Provided, however, that in the
event Licensor shall fully comply with all of the terms and conditions of the
Loan Agreement, this license shall be null and void. Licensee agrees not to
exercise the rights conferred hereunder until such time as an Event of Default,
as defined in the Loan Agreement, shall occur, except to the extent such rights
are conferred upon Licensee by any other agreement to which Licensors or any of
them and Licensee are signatories.
3. SUPPLEMENTARY AGREEMENT. This Agreement is intended to be supplementary
to any license agreements heretofore entered into between Licensors or any of
them and Licensee with respect to the Collateral, and to any other license
agreement hereafter entered into by and between Licensee and any Licensor with
respect to the Collateral, within the meaning of Section 365(n) of the United
States Bankruptcy Code (11 USC ss. 365(n)).
4. RESTRICTIONS ON FUTURE AGREEMENTS. Licensors agree that, until the
Obligations are satisfied in full and the Loan Agreement is terminated, and
except as may otherwise be provided in the Loan Agreement, Licensor shall not,
without Licensee's prior written consent: (a) enter into any agreement (for
example, a license agreement) that is inconsistent with Licensors' obligations
under this License; or, (b) take any action, or permit any action to be taken by
others subject to its control, including licensees, or fail to take any action
(excluding nonpayment of U.S. maintenance fees on patents which are not
necessary or useful in the operation of Licensor's business or operations) if
doing so or not doing so would impair the validity or enforcement of Licensee's
rights hereunder.
5. TERM. The term of the License granted herein shall extend until the
payment in full of the Obligations and termination of the Loan Agreement.
6. TERMINATION OF LICENSEE'S SECURITY INTEREST. This License is made for
collateral purposes only. Upon payment in full of the Obligations and
termination of the Loan Agreement, all remaining right, title, and interest in
and to the Collateral shall automatically revert to Licensors. In such event,
Licensee shall execute and deliver to Licensors all instruments as may be
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necessary or proper to terminate Licensee's security interest in and to re-vest
in Licensor all right, title, and interest in and to the Collateral subject to
any prior disposition thereof that may have been made by Licensee pursuant
hereto or pursuant to the Loan Agreement.
7. LICENSEE'S RIGHT TO XXX. After the occurrence of an Event of Default
and so long as such Event of Default has not been waived, and after the
provision by Licensee of written notice to Licensors of Licensee's intention to
enforce its rights and claims hereunder, Licensee shall have the right, but
shall in no way be obligated, to bring suit and take other action in its own
name to enforce or otherwise protect, preserve, or realize upon the Collateral.
If Licensee shall commence any such suit or take any such action, Licensors
shall, at the request of Licensee, do any and all lawful acts and execute any
and all proper documents required by Licensee in aid of such action. Licensors
shall, upon demand, reimburse and indemnify Licensee for all costs and expenses
incurred by Licensee in the exercise of its rights under this Section 7.
8. WAIVERS. No course of dealing between Licensors and Licensee, nor any
failure to exercise or delay in exercising, on the part of the Licensee, 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.
9. SEVERABILITY. The provisions of this License Agreement are severable,
and if any clause or provision shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this License Agreement.
10. MODIFICATION. This License cannot be altered, amended, or modified in
any way, except by a writing signed by the parties hereto.
11. CUMULATIVE REMEDIES. All of Licensee's rights and remedies with respect
to the Collateral, whether established hereby or by the Loan Agreement, or by
any other agreements or by law, shall be cumulative and may be exercised
individually or concurrently. Licensee shall have, in addition to all other
rights and remedies given it by the terms of this License, all rights and
remedies allowed by law and the rights and remedies of a secured party under the
law enacted in any jurisdiction in which the Licensed Rights may be enforced.
12. POWER OF ATTORNEY. Licensor hereby authorizes Licensee to:
a. Make, constitute, and appoint any representative of Licensee
as Licensee may select, in its sole discretion, as Licensor's
true and lawful attorney-in-fact, with power to endorse
Licensor's name on all applications, documents, papers, and
instruments necessary or desirable for Licensee to give effect
to the provisions of this License and the intent of the
parties hereto;
b. Take any other actions with respect to the Licensed Rights,
consistent with this License, as Licensee deems in the best
interest of Licensee; or,
c. Following the occurrence of an Event of Default, grant or
issue any exclusive or nonexclusive license under the Licensed
Rights to anyone to the extent permitted by the provisions of
Paragraph 2 of this Agreement.
Licensee hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof. This power of attorney shall be irrevocable until the
Obligations are satisfied in full and the Loan Agreement is terminated.
13. EFFECT ON LOAN AGREEMENT. Licensors acknowledge and agrees that this
License is not intended to limit or restrict in any way the rights and remedies
of Licensee under the Loan Agreement but rather is intended to facilitate the
exercise of such rights and remedies.
14. BINDING EFFECT; BENEFITS. This License shall be binding upon Licensor
and its respective successors and assigns and shall inure to the benefit of
Licensee, its nominees, successors, and assigns.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
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16. GOVERNING LAW. This License shall be deemed to have been executed and
delivered in Delaware, and shall be governed by and construed in accordance with
the internal laws (as opposed to conflicts of law provisions) of that
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
BORROWERS: LENDER:
XxxxXxxxxx.Xxx Corp. Xxx Enterprises, Incorporated
/s/ Xxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxx
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By: Xxx Xxxxxxx By:
Title: President and CEO ---------------------------------
Title:
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Xceedx Technologies Inc.
/s/ Xxx Xxxxxxx
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By:
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Title:
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WelcomeTo Search Engine Inc.
/s/ Xxx Xxxxxxx
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By:
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Title:
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