SECURITY INTEREST AGREEMENT
Exhibit
10.3
ANNEX
V
TO
BRIDGE
LOAN AGREEMENT
SECURITY
INTEREST
AGREEMENT ("Security Interest Agreement"), dated as of July 26, 2007,
by and among the persons set forth on Schedule 1 (each a “Secured Party” and
collectively, the “Secured Parties”), RIM SEMICONDUCTOR COMPANY, a Utah
corporation with headquarters located at 000 XX 000xx Xxx., Xxxxx 000, Xxxxxxxx,
XX 00000 (the “Company” or the “Debtor”), and XXXXXXX & XXXXXX, LLP, as
agent for the Secured Parties (the “Agent”).
RECITALS
A. Reference
is made to (i) that certain Bridge Loan Agreement of even date herewith (the
“Bridge Loan Agreement”) to which the Debtor and each of the Secured Parties are
parties, and (ii) the Transaction Agreements, including, without limitation,
the
Notes. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Bridge Loan Agreement or other relevant
Transaction Agreements.
B. Pursuant
to the Notes, the Debtor has certain obligations to each of the Secured Parties
(all such obligations, the “Obligations”).
C. In
order to induce each of the Secured Parties to execute and deliver the
Transaction Agreements and to make the advances to the Debtor contemplated
thereby, and as contemplated by the Bridge Loan Agreement and the Notes, the
Debtor has agreed to grant to each of the Secured Parties a security interest
in
the Collateral (as defined below) to secure the due and punctual fulfillment
of
the Obligations. Each of the Secured Parties is willing to enter into
the Bridge Loan Agreement and the other Transaction Agreements only upon
receiving the Debtor’s execution of this Security Interest
Agreement.
NOW,
THEREFORE, in consideration of the
premises, the mutual covenants and conditions contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Grant
of Security Interest.
(a) In
order to secure the due and punctual fulfillment of the Obligations, the Debtor
hereby grants, conveys, transfers and assigns to the Secured Parties (and to
each of them based on their respective Allocable Shares, as defined below)
a
continuing security interest in the Collateral.
1
(b) For
purposes of this Agreement, the following terms shall have the meanings
indicated:
“COLLATERAL”
is all right, title and interest of Debtor in and to all of the following,
whether now owned or (except as with respect to Intellectual Property and
general intangibles referred to below) hereafter acquired and wherever located:
All assets of the Debtor, including, but not limited to: all personal and
fixture property of every kind and nature, including without limitation all
goods (including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts (including accounts
receivable), chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced by
a
writing), commercial tort claims, securities and all other investment property,
supporting obligations, any other contract rights or rights to the payment
of
money, insurance claims and proceeds, and all general intangibles now owned
(including all payment intangibles); all Equipment; all Intellectual Property;
and any and all claims, rights and interests in any of the above, and all
guaranties and security for any of the above, and all substitutions and
replacements for, additions, accessions, attachments, accessories, and
improvements to, and proceeds (including proceeds of any insurance policies,
proceeds of proceeds and claims against third parties) of, any and all of the
above, and all Debtor’s books relating to any and all of the above and includes,
without limiting the generality of the above, the assets listed in Exhibit
B.
“CODE”
is
the Uniform Commercial Code, in effect in the State of Delaware as in effect
from time to time.
“COPYRIGHTS”
are all copyrights, copyright rights, applications or registrations and like
protections in each work or authorship or derivative work, whether published
or
not (whether or not it is a trade secret) now or later existing, created,
acquired or held.
“EQUIPMENT”
has the meaning set forth in the Code and includes all present and future
machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools,
parts and attachments in which Debtor has any interest.
“INTELLECTUAL
PROPERTY” is all present (a) Copyrights, (b) trade secret rights, including all
rights to unpatented inventions and know-how, and confidential information;
(c)
mask work or similar rights available for the protection of semiconductor chips;
(d) Patents; (e) Trademarks; (f) computer software and computer software
products; (g) designs and design rights; (h) technology; (i) all claims for
damages by way of past, present and future infringement of any of the rights
included above; (j) all licenses or other rights to use any property or rights
of a type described above.
“PATENTS”
are patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
2
“TRADEMARKS”
are trademarks, servicemarks, trade styles, and trade names, whether or not
any
of the foregoing are registered, and all applications to register and
registrations of the same and like protections, and the entire goodwill of
the
business of Debtor connected with and symbolized by any such
trademarks.
(b)
The
security interests granted pursuant to this Section (the "Security Interests")
are granted as security only and shall not subject any of the Secured Parties
to, or transfer or in any way affect or modify, any obligation or liability
of
the Debtor under any of the Collateral or any transaction which gave rise
thereto.
(c)
The
term “Allocable Share” means, with respect to each Secured Party (if there is
more than one Secured Party), as of the relevant date, the fraction equal to
(i)
the outstanding principal of the Notes then held by such Secured Party, divided
by (ii) the aggregate outstanding principal of the Notes then held by all
Secured Parties.
Section
2. Filing; Further Assurances.
(a)
The
Debtor will, at its expense, cause to be searched the public records with
respect to the Collateral and will execute, deliver, file and record (in such
manner and form as each of the Secured Parties may reasonably require), or
permit each of the Secured Parties to file and record, as its attorney in fact
for such purpose, any financing statement, any carbon, photographic or other
reproduction of a financing statement or this Security Interest Agreement (which
shall be sufficient as a financing statement hereunder), any specific
assignments or other paper that may be reasonably necessary or desirable, or
that the Secured Parties may reasonably request, in order to create,
preserve, perfect or validate any Security Interest or to enable each of the
Secured Parties to exercise and enforce its rights hereunder with respect to
any
of the Collateral.
(b)
Each
Secured Party has designated an Agent as provided in the Section titled “Agent”
below. Among other things, such Agent shall be agent of each such
Secured Party for execution of and identification on any financing statement
or
similar instrument referring to or describing the Collateral.
(c)
If
Debtor does not comply with Section 2(a) hereof in a prompt manner, the Agent
is
authorized to execute and file any and all financing statements desired to
be
filed by the relevant Secured Party to reflect the security interest in the
Collateral in any and all jurisdictions. For such purposes, the
Debtor irrevocably appoints the Agent (acting by Xxxxxx X. Xxxxxxx and Xxxxxx
Xxxxxxxx, or either one of them), with full power of substitution to execute
and
file such financing statements naming the Debtor as debtor thereon.
3
Section
3. Representations and Warranties of Debtor. The Debtor hereby
represents and warrants to each Secured Party (a) that, except for the Permitted
Liens as defined in set forth in Exhibit A attached hereto, the Debtor is,
or to
the extent that certain of the Collateral is to be acquired after the date
hereof, will be, the owner of the Collateral free from any adverse lien,
security interest or encumbrance; and (b) that except for such financing
statements as may be described on Exhibit A attached hereto and made a part
hereof, no financing statement covering the Collateral is on file in any public
office, other than the financing statements filed pursuant to this Security
Agreement.
Section
4. Covenants of Debtor. The Debtor hereby covenants and agrees with
each Secured Party that the Debtor (a) will, at the Debtor's sole
cost and expense, defend the Collateral against all claims and demands of all
persons at any time claiming any interest therein junior to the Secured Party's
interest; (b) will provide the Secured Party with prompt written notice of
(i)
any change in the chief executive officer of the Debtor or the office where
the
Debtor maintains its books and records pertaining to the Collateral; (ii) the
movement or location of all or a material part of the Collateral to
or at any address other than as set forth in said Exhibit B; and (iii) any
facts
which constitute a Debtor Event of Default (as such term is defined below),
or
which, with the giving of notice and/or the passage of time,
could or would constitute a Debtor Event of Default,
pursuant to the Section titled “Debtor Events of Default” below; (c) will
promptly pay any and all taxes, assessments and governmental charges upon the
Collateral prior to the date penalties are attached thereto, except to the
extent that such taxes, assessments and charges shall be contested in good
faith
by the Debtor; (d) will immediately notify the Secured Party of any event
causing a substantial loss or diminution in the value of all or any material
part of the Collateral and the amount or an estimate of the amount of such
loss
or diminution; (e) will not sell or offer to sell or otherwise assign, transfer
or dispose of the Collateral or any interest therein, without the prior written
consent of the Secured Party, except in the ordinary course of business; (f)
will keep the Collateral free from any adverse lien, security interest or
encumbrance (except for encumbrances specified in Exhibit
A attached hereto) and in good order and repair,
reasonable wear and tear excepted, and will not waste or destroy the Collateral
or any part thereof; and (g) will not use the Collateral in material violation
of any statute or ordinance the violation of which could materially and
adversely affect the Debtor's business.
Section
5. Records Relating To Collateral. The Debtor will keep its records
concerning the Collateral at its offices designated in the caption of this
Security Interest Agreement or at such other place or places of business of
which the Secured Party shall have been notified in writing no less than ten
(10) days prior thereto. The Debtor will hold and preserve such records and
chattel paper and will permit representatives of the Secured Party at any time
during normal business hours upon reasonable notice to examine and inspect
the
Collateral and to make abstracts from such records and chattel paper, and will
furnish to the Secured Party such information and reports regarding the
Collateral as the Secured Party may from time to time reasonably
request.
Section
6. General Authority. From and during the term of any Debtor Event of
Default, the Debtor hereby appoints the Secured Party the Debtor's lawful
attorney, with full power of substitution, in the name of the Debtor, for the
sole use and benefit of the Secured Party, but at the Debtor's expense, to
exercise, all or any of the following powers with respect to all or any of
the
Collateral:
4
(a)
to
demand, xxx for, collect, receive and give acquittance for any and all monies
due or to become due;
(b)
to
receive, take, endorse, assign and deliver all checks, notes, drafts, documents
and other negotiable and non- negotiable instruments and chattel paper taken
or
received by the Secured Party;
(c)
to
settle, compromise, prosecute or defend any action or proceeding with respect
thereto;
(d)
to
sell, transfer, assign or otherwise deal in or with the same or the
proceeds thereof or the related goods securing the Collateral, as fully and
effectually as if the Secured Party were the sole and absolute owner
thereof;
(e)
to
extend the time of payment of any or all thereof and to make any allowance
and
other adjustments with reference thereto; and
(f)
to
discharge any taxes, liens, security interests or other encumbrances at any
time
placed thereon;
provided,
however, that the Secured Party shall give the Debtor not less than ten (10)
business days prior written notice of the time and place of any sale or other
intended disposition of any of the Collateral.
The
exercise by the Secured Party or by the Agent of or failure to so exercise
any
authority granted herein shall in no manner affect Debtor's liability to the
Secured Party, and provided, further, that the Secured Party and the Agent
shall
be under no obligation or duty to exercise any of the powers hereby conferred
upon them and they shall be without liability for any act or failure to act
in
connection with the collection of, or the preservation of, any rights under
any
of the Collateral.
Section
7. Debtor Events of Default.
(a)The
Debtor shall be in default under this Security Agreement upon the occurrence
of
an Event of Default (as defined in the Note) by the
Debtor (a "Debtor Event of Default").
5
(b)The
Debtor hereby irrevocably agrees that, upon the occurrence of a Debtor Event
of
Default, the Debtor shall be deemed to have consented to an immediate conveyance
and transfer to the Secured Party of the copyrights and all other rights the
Debtor may have in the software included in the Collateral, including, but
not
necessarily limited to, the software identified in Schedule B attached hereto.
In furtherance of the foregoing, and not in limitation thereof, the Debtor
will,
upon the occurrence of a Debtor Event of Default, deliver to the Secured Party
copies of the source code of the relevant software, with accompanying written
assignment of the software to the Secured Party. Without limiting the
foregoing, such source code and assignment shall be in form sufficient to enable
the Secured Party to register the software in Secured Party’s name with the
Copyright Register. The Debtor hereby agrees to take all steps necessary or
appropriate, as requested by the Secured Party, to effectuate and reflect such
conveyance and transfer or assignment to Secured Party. In all
events, such conveyance, transfer or assignment shall be deemed to vest title
in
such software in the Secured Party.
(c)
In
furtherance of the foregoing and not in limitation thereof, the Debtor
acknowledges and agrees that the Secured Party may, upon the occurrence of
a
Debtor Event of Default, seek the immediate entry of a preliminary injunction
prohibiting the Debtor’s use of such software in any shape, way or manner,
including, but not necessarily limited to, through the sale of products that
use
any of such software, and the Debtor hereby irrevocably agrees that it will
not
contest an application seeking entry of a preliminary injunction and that it
will accept the entry of such injunction.
Section
8. Remedies Upon Debtor Event of Default. If any Debtor Event of
Default shall have occurred, then in addition to the provisions of Section
7
hereof, the Secured Party may exercise all the rights and remedies of a secured
party under the Code. The Secured Party may require the Debtor to assemble
all
or any part of the Collateral and make it available to the Secured Party at
a
place to be designated by the Secured Party which is reasonably convenient.
The
Secured Party shall give the Debtor ten (10) business days prior written notice
of the Secured Party's intention to make any public or private sale or sale
at a
broker's board or on a securities exchange of the Collateral. At any such sale
the Collateral may be sold in one lot as an entirety or in separate parcels,
as
the Secured Party, in its sole discretion, may determine. The Secured Party
shall not be obligated to make any such sale pursuant to any such
notice. The Secured Party may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale may
be
made at any time or place to which the same may be adjourned. The
Secured Party, instead of exercising the power of sale herein conferred upon
it,
may proceed by a suit or suits at law or in equity to foreclose the Security
Interests and sell the Collateral, or any portion thereof, under a judgment
or
decree of a court or courts of competent jurisdiction.
Section
9. Application of Collateral and Proceeds. The proceeds of
any sale of, or other realization upon, all or any part of the Collateral shall
be applied in the following order of priorities: (a) first, to pay the
reasonable expenses of such sale or other realization, including, without
limitation, reasonable attorneys' fees, and all expenses, liabilities and
advances reasonably incurred or made by the Secured Party in connection
therewith, and any other unreimbursed expenses for which the Secured Party
is to
be reimbursed pursuant to the Section titled “Expenses; Secured Party's
Lien” below; (b) second, to the payment of the Obligations in such
order of priority as the Secured Party, in its sole discretion, shall
determine; and (c) finally, to pay to the Debtor, or its successors
or assigns, or as a court of competent jurisdiction may direct, any surplus
then
remaining from such proceeds.
6
Section
10. Expenses; Secured Party's Lien. If any Debtor Event of
Default shall have occurred, the Debtor will forthwith upon demand pay to the
Secured Party: (a) the amount which the Secured Party may have been required
to
pay to free any of the Collateral from any lien thereon; and (b) the amount
of
any and all reasonable out-of-pocket expenses, including, without limitation,
the reasonable fees and disbursements of its counsel, and of any agents not
regularly in its employ, which the Secured Party may incur in
connection with the collection, sale or other disposition of any of the
Collateral.
Section
11. Termination of Security Interests; Release of
Collateral. Upon the payment, performance or other satisfaction
in full of all the Obligations, the Security Interests shall terminate and
all
rights to the Collateral shall revert to the Debtor. Upon any such termination
of the Security Interests or release of Collateral, the Secured Party will,
at
the Debtor's expense, to the extent permitted by law, execute and deliver to
the
Debtor such documents as the Debtor shall reasonably request to evidence the
termination of the Security Interests or the release of such Collateral, as
the
case may be.
Section
12. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be
in
writing and, unless otherwise specified herein, shall be (a) personally served,
(b) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by reputable air courier service with charges
prepaid, or (d) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice given in accordance herewith. Any notice or
other communication required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address
or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (ii) on the second business day
following the date of mailing by express courier service or on the fifth
business day after deposited in the mail, in each case, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall be for (i) the Debtor as
provided in the Bridge Loan Agreement for notices to the Company,
(ii) for each Secured Party as provided in the Bridge Loan Agreement for notices
to the Lender and (iii) for the Agent as provided in the Bridge Loan Agreement
for notices to the Escrow Agent. Any party hereto may from time to
time change its address or facsimile number for notices under this Section
in
the manner contemplated by the Bridge Loan Agreement.
7
Section
13. Agent.
(a)
Anything in the other provisions of this Security Interest Agreement to the
contrary notwithstanding, the Secured Party may designate another entity to
act
as agent (the “Agent”) for the Secured Party with respect to any one or more of
the rights of Secured Party hereunder, including, but not necessarily limited
to, the right to hold the security interest and/or be named as secured party
(as
agent for the Secured Party) in any filed financing statement and to take action
in the name and stead of the Secured Party hereunder. Such
designation may be made with or without power of substitution, Such
designation shall remain in effect until canceled by the Secured Party, as
provided herein; provided, however, that such cancellation shall not affect
the
validity of any action theretofore taken by such agent pursuant to this Security
Interest Agreement. The Debtor acknowledges and agrees to honor such
designation and acknowledges that the Agent is acting as the agent of the
Secured Party and not as a principal.
(b)
Each
Secured Party hereby confirms that the Secured Party has designated Xxxxxxx
& Xxxxxx, LLP (acting by Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxxxx, or either
one of them), as its initial Agent, with full right of
substitution.
(c)
If
there is more than one Secured Party, the Agent shall act as agent for all
Secured Parties. Any revocation of the authority of the Agent or the
designation of an alternate Agent shall be done only by Secured Parties who
represent a Majority in Interest of the Holders (as defined below) at that
time;
provided that at all times all Secured Parties shall be represented by one
and
the same Agent. The term “Majority in Interest of the Holders” means,
as of the relevant date, one or more Secured Parties whose respective
outstanding principal amounts of the Notes held by each of them, as of such
date, aggregate more than fifty percent (50%) of the aggregate outstanding
principal amounts of the outstanding Notes held by all Secured Parties on that
date.
(d)
Reference is made to the provisions of Sections 2 through 15, inclusive, of
the
Joint Escrow Instructions. All such provisions are incorporated
herein by reference, as if set forth herein in full, except that, for such
purposes, the references therein to (i) the “Escrow Agent” shall be deemed to be
references to the “Agent” under this Security Interest Agreement, (ii) the
“Company” shall be deemed to be references to the Debtor under this Security
Interest Agreement, and (iii) the “Lender” shall be deemed to be references to
the relevant Secured Party under this Security Interest Agreement.
Section
14. Miscellaneous.
8
(a)
No
failure on the part of the Secured Party to exercise, and no delay in
exercising, and no course of dealing with respect to, any right, power or remedy
under this Security Interest Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise by the Secured Party of any right, power
or
remedy under this Security Interest Agreement preclude the exercise, in whole
or
in part, of any other right, power or remedy. The remedies in this Security
Interest Agreement are cumulative and are not exclusive of any other remedies
provided by law. Neither this Security Interest Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally but only by
a
statement in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
(b)
The
execution and delivery by Debtor of this Security Interest Agreement and all
documents delivered in connection herewith have been duly and validly authorized
by all necessary corporate action of Debtor and this Agreement and all documents
delivered in connection herewith have been duly and validly executed and
delivered by Debtor. The execution and delivery by Debtor of this
Security Interest Agreement and all documents delivered in connection herewith
will not result in a breach or default of or under the Certificate of
Incorporation, By-laws or any agreement, contract or indenture of
Debtor. This Security Interest Agreement and all documents delivered
in connection therewith are legal, valid and binding obligations of Debtor
enforceable against Debtor in accordance with their terms.
(c)
In
the event that any action is taken by Debtor or Secured Party in connection
with
the this Security Interest Agreement, or any related document or matter, the
losing party in such legal action, in addition to such other damages as he
or it
may be required to pay, shall pay reasonable attorneys’ fees to the prevailing
party.
Section
15.Separability. If any provision hereof shall prove invalid or
unenforceable in any jurisdiction whose laws shall be deemed applicable, the
other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Secured
Party.
Section
16. Governing Law.
9
(a)
This
Security Interest Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware for contracts to be wholly performed
in
such state and without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the exclusive
jurisdiction of the federal courts whose districts encompass any part of the
City of Wilmington or (except with respect to issues relating to the
copyright in and to the software, as contemplated by Section 7 hereof, which
shall exclusively be in the aforesaid federal courts) or of the state courts
of
the State of Delaware sitting in the City of Wilmington in connection with
any
dispute arising under this Security Interest Agreement and hereby waives, to
the
maximum extent permitted by law, any objection, including any objection based
on
forum non coveniens, to the bringing of any such proceeding in such
jurisdictions or to any claim that such venue of the suit, action or proceeding
is improper. To the extent determined by such court, the Debtor shall reimburse
the Secured Party for any reasonable legal fees and disbursements incurred
by
the Secured Party in enforcement of or protection of any of its rights under
this Security Interest Agreement. Nothing in this Section shall
affect or limit any right to serve process in any other manner permitted by
law.
(b)
The
Debtor and the Secured Party acknowledge and agree that irreparable damage
would
occur in the event that any of the provisions of this Security Interest
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions
of
this Security Interest Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which any
of
them may be entitled by law or equity.
Section
16. Jury Trial Waiver. The Debtor and the Secured Party
hereby waive a trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other in respect of any matter
arising out of or in connection with the Note or this Security Interest
Agreement.
Section
17. Assignment. Except in connection with the transfer of
all of the rights of a Secured Party under the Transaction Agreements, a Secured
Party shall not assign or transfer its security interest granted hereunder,
and,
further, upon the occurrence of a permitted transfer of a Secured Party’s
security interest in the Collateral, the transferee shall be vested with all
of
the rights and powers of the assigning Secured Party hereunder with respect
to
the Collateral.
[Balance
of page intentionally left blank]
10
Section
18. Waiver. The Debtor waives any right that it may have
to require Secured Party to proceed against any other person, or proceed against
or exhaust any other security, or pursue any other remedy Secured Party may
have.
IN
WITNESS WHEREOF, the Parties have executed this Security Interest Agreement
as
of the day, month and year first above written.
SECURED
PARTIES:
|
DOUBLE
U MASTER FUND LP
|
PROFESSIONAL
OFFSHORE OPPORTUNITY FUND LTD.
|
| By:/s/[illegible] | By:/s/Xxxx X. Xxxxxxx |
DEBTOR:
RIM
SEMICONDUCTOR COMPANY
By:/s/Xxx
Xxxxxxxxxx,
Xx.
Chairman
AGENT:
XXXXXXX
& XXXXXX, LLP
By:/s/Xxxxxx
Xxxxxxxx
11
SCHEDULE
1
The
Secured Parties are:
|
Name
|
Address
|
|
Double
U Master Fund LP
|
Harbour
House, Waterfront Drive
Road
Town, Tortola, BVI
|
|
Professional
Offshore Opportunity Fund Ltd.
|
0000
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
|
EXHIBIT
A
EXCEPTIONS
TO REPRESENTATIONS
1.
Certain encumbrances and liens, including (i) mechanics’, materialmen’s, and
similar liens, (ii) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (iii)
purchase money liens and liens securing rental payments under capital lease
and
similar arrangements, and other liens arising in the ordinary course of business
and not incurred in connection with the borrowing of money.
2.
Security interest (“Existing Senior Security Interest”) in the Collateral
granted to Double U Master Fund LP (“Existing Senior Secured Party”) pursuant to
Security Interest Agreement, dated as of March 26, 2007, between Debtor and
Existing Senior Secured Party to secure, among other things, payment in full
of
the Specified Note (as defined in Annex VII to the Bridge Loan
Agreement). The Bridge Loan Agreement and the Transaction Agreements
contemplate that the Specified Note will be paid in full on the Closing Date
out
of the Escrow Funds, at which time the Existing Senior Secured Party
will release the Existing Senior Security Interest.
All
of the above exceptions to representations on this Exhibit A shall be
collectively referred to and defined as the “Permitted Liens” and individually
as a “Permitted Lien”.
Exhibit
A-1
EXHIBIT
B
ADDITIONAL
INFORMATION RE COLLATERAL, ETC.
The
Collateral includes without limitation Debtor’s right, title and interest in and
to the following:
United
States Trademarks/Service Marks:
|
Xxxx:
|
Application
No./
Registration
No.:
|
Filing
Date:
|
|
IPSL
|
78/844,821
|
03/23/2006
|
|
CUPRIA
|
78/956,366
|
08/21/2006
|
|
United
States Patents:
|
||
|
Title
of Case
|
Patent
No./
Publication
No.:
|
Filing
Date:
|
|
TIMING
RECOVERY WITH
MINIMUM
JITTER MOVEMENT
|
6,138,244
|
09/30/1998
|
|
TURBO
TRELLIS-CODED
MODULATION
|
6,671,327
|
05/01/2000
|
|
METHOD
AND APPARATUS FOR
CONNECTING
BROADBAND VOICE AND
DATA
SIGNALS TO TELEPHONE SYSTEMS
|
6,674,845
|
06/21/2001
|
|
PRECURSOR
DECISION FEEDBACK
EQUALIZER
(PDFE)
|
6,697,423
|
10/10/2000
|
|
PARALLEL
TURBO TRELLIS-CODED
MODULATION
|
6,757,859
|
05/01/2000
|
Exhibit
B-1
|
DMT
BIT ALLOCATION WITH
IMPERFECT
TEQ
|
6,999,507
|
12/20/2000
|
|
SOFT-DECISION
DECODING OF
CONVOLUTIONALLY
ENCODED
CODEWORD
|
6,999,531
|
02/26/2001
|
|
METHOD
AND SYSTEM FOR PERFORMING
A
FAST-FOURIER TRANSFORM
|
7,024,443
|
11/08/2002
|
|
METHOD
AND APPARATUS FOR
CONNECTING
BROADBAND VOICE AND
DATA
SIGNALS TO TELEPHONE SYSTEMS
|
7,106,855
|
04/12/2001
|
|
FLEXIBLE
BIT SELECTION USING TURBO
TRELLIS-CODED
MODULATION
|
2002/0136320
|
03/18/2002
|
|
DMT
PEAK REDUCTION WITHOUT
AFFECTING
TRANSMISSION SIGNAL
|
2002/0159550
|
03/01/2002
|
|
FAST
FOURIER TRANSFORM SIGNAL
PROCESSING
|
2003/0145026
|
01/30/2003
|
|
METHOD
OF REDUCING PEAK-TO-
AVERAGE
RATIO IN MULTI-CARRIER COMMUNICATIONS SYSTEMS
|
2005/0141410
|
10/29/2004
|
|
METHOD
OF INCREASING CHANNEL
CAPACITY
OF FFT AND IFFT ENGINES
|
2005/0152409
|
10/29/2004
|
|
COMMUNICATING
DATA USING
WIDEBAND
COMMUNICATIONS
|
2004/258168
|
08/30/2002
|
|
COMMUNICATING
DATA USING
WIDEBAND
COMMUNICATIONS
|
2005/063479
|
08/30/2002
|
Exhibit B-2
