EXHIBIT 10.15
SECURITY AGREEMENT IN COPYRIGHTED WORKS
This Security Agreement in Copyrighted Works (this "Agreement"), dated as
of February 28, 1996, is made by TSW INTERNATIONAL, INC., a Georgia corporation
("Grantor"), which has a mailing address at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx 00000, in favor of GREYROCK BUSINESS CREDIT, a Division of NationsCredit
Commercial Corporation ("GBC"), which has a mailing address at 000 Xxxxx
Xxxxxxxxxxx Xxxx., Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS
A. GBC is providing financing to Grantor pursuant to the Loan and
Security Agreement dated November 17, 1995 between GBC and Grantor (as amended
from time to time, the "Loan Agreement"). Pursuant to the Loan Agreement,
Grantor has granted to GBC a security interest in all of Grantor's present and
future assets, including without limitation all of Grantor's present and future
general intangibles, and including without limitation the "Copyrights" (as
defined below), to secure all of its present and future indebtedness,
liabilities, guaranties and other obligations to GBC.
B. To supplement GBC's rights in the Copyrights, Grantor is executing and
delivering this Agreement.
NOW, THEREFORE, for valuable consideration, Grantor agrees as follows:
1. ASSIGNMENT. To secure the complete and timely payment and performance
of all "Obligations" (as defined in the Loan Agreement), and without limiting
any other security interest Grantor has granted to GBC, Grantor hereby
hypothecates to GBC and grants, assigns, and conveys to GBC a security interest
in Grantor's entire right, title, and interest in and to all of the following,
now owned and hereafter acquired (collectively, the "Collateral"):
(a) REGISTERED COPYRIGHTS AND APPLICATIONS FOR COPYRIGHT
REGISTRATIONS. All of Grantor's present and future United States registered
copyrights and copyright registrations, including, without limitation, the
registered copyrights listed in SCHEDULE A to this Agreement (and including all
of the exclusive rights afforded a copyright registrant in the United States
under 17 U.S.C. Section 106 and any exclusive rights which may in the future
arise by act of Congress or otherwise) and all of Grantor's present and future
applications for copyright registrations (including applications for copyright
registrations of derivative works and compilations) (collectively, the
"Registered Copyrights"), and any and all royalties, payments, and other amounts
payable to Grantor in connection with the Registered Copyrights, together with
all renewals and extensions of the Registered Copyrights, the right to recover
for all past, present, and future infringements of the Registered Copyrights,
and
1.
all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Registered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto.
(b) UNREGISTERED COPYRIGHTS. All of Grantor's present and future
copyrights which are not registered in the United States Copyright Office (the
"Unregistered Copyrights"), whether now owned or hereafter acquired, including
without limitation the Unregistered Copyrights listed in SCHEDULE B to this
Agreement, and any and all royalties, payments, and other amounts payable to
Grantor in connection with the Unregistered Copyrights, together with all
renewals and extensions of the Unregistered Copyrights, the right to recover for
all past, present, and future infringements of the Unregistered Copyrights, and
all computer programs, computer databases, computer program flow diagrams,
source codes, object codes and all tangible property embodying or incorporating
the Unregistered Copyrights, and all other rights of every kind whatsoever
accruing thereunder or pertaining thereto. The Registered Copyrights and the
Unregistered Copyrights collectively are referred to herein as the "Copyrights."
(c) LICENSES. All of Grantor's right, title and interest in and to
any and all present and future license agreements with respect to the
Copyrights, including without limitation the license agreements listed in
SCHEDULE C to this Agreement (the "Licenses").
(d) ACCOUNTS RECEIVABLE. All present and future accounts, accounts
receivable and other rights to payment arising from, in connection with or
relating to the Copyrights.
(e) All cash and non-cash proceeds of any and all of the foregoing.
2. REPRESENTATIONS. Grantor represents and warrants that:
(a) Each of the Copyrights is valid and enforceable (except to the
extent that the Unregistered Copyrights must be registered to be enforced);
(b) Except for the security interest granted hereby and the
non-exclusive licenses granted to Grantor's licensees with respect to the
Copyrights in the ordinary course of business of Grantor, Grantor is (and upon
creation of all future Copyrights, will be) the sole and exclusive owner of the
entire and unencumbered right, title, and interest in and to each of the
Copyrights and other Collateral, free and clear of any liens, charges, or
encumbrances;
(c) There is no pending claim that the use of any of the Copyrights
does or may infringe upon or violate the rights of any third person nor does
Grantor have knowledge of any pending or threatened infringement of any of the
Copyrights by any third person.
2.
(d) Listed on SCHEDULES A AND B are all copyrights owned by Grantor,
in which Grantor has an interest, or which are used in Grantor's business.
(e) Listed on SCHEDULE C are all Licenses to which Grantor is a
party.
(f) Each employee, agent and/or independent contractor who has
participated in the creation of the property constituting the Collateral has
either executed an assignment of his or her rights of authorship to Grantor or
is an employee of Grantor acting within the scope of his or her employment and
was such an employee at the time of said creation.
(g) All of Grantor's present and future software, computer programs
and other works of authorship subject to United States copyright protection, the
sale, licensing or other disposition of which results in royalties receivable,
license fees receivable, accounts receivable or other sums owing to Grantor
(collectively, "Receivables"), have been and shall be registered with the United
States Copyright Office prior to the date Grantor requests or accepts any loan
from GBC with respect to such Receivables and prior to the date Grantor includes
any such Receivables in any accounts receivable aging, borrowing base report or
certificate or other similar report provided to GBC, and Grantor shall provide
to GBC copies of all such registrations promptly upon the receipt of the same.
Without limiting the generality of the foregoing, Grantor agrees to provide GBC
with a monthly report, signed by the president, chief financial officer, or
secretary of Grantor, whereby Grantor shall expressly renew the representations
and warranties contained in this Section 2, and which shall have attached
thereto updated versions of the Schedules provided for in this Section 2.
3. COVENANTS. Until all of the Obligations have been satisfied in full
and the Loan Agreement has terminated:
(a) Grantor shall not grant a security interest in any of the
Copyrights or other Collateral to any other person and shall not enter into any
agreement or take any action that is inconsistent with Grantor's obligations
hereunder or Grantor's other Obligations or would impair GBC's rights, under
this Agreement or otherwise, without GBC's prior written consent:
(b) Grantor shall ensure that each use of the Copyrights described in
Section 1 of this Agreement carries a complete and accurate copyright notice.
(c) Grantor shall use its best efforts to preserve and defend
Grantor's rights in the Copyrights unless Grantor, with the concurrence of GBC,
reasonably determines that a Copyright is not worth preserving or defending.
(d) Grantor shall undertake all reasonable measures to cause its
employees, agents and independent contractors to assign to Grantor all rights of
authorship to any
3.
copyrighted material in which Grantor has or may subsequently acquire any right
or interest.
4. LICENSE RIGHTS. Grantor may license or sublicense the Copyrights only
in the ordinary course of business and only on a non-exclusive basis, and only
to the extent of Grantor's rights and subject to GBC's security interest and
Grantor's obligations under this Agreement.
5. GBC MAY SUPPLEMENT. Grantor authorizes GBC to modify this Agreement
by amending SCHEDULE A OR B to include any future copyrights to be included in
the Copyrights. Grantor shall from time to time update the lists of Registered
Copyrights and Unregistered Copyrights on SCHEDULES A AND B and lists of
License Agreements on Schedule C as Grantor obtains or acquires copyrights or
grants or obtains licenses in the future. Notwithstanding the foregoing, no
failure to so modify this Agreement or amend SCHEDULES A OR B OR C shall in any
way affect, invalidate or detract from GBC's continuing security interest in all
Copyrights, whether or not listed on SCHEDULE A OR B and all license agreements
whether or not listed on SCHEDULE C.
6. DEFAULT. Upon an Event of Default (as defined in the Loan Agreement)
GBC shall have, in addition to all of its other rights and remedies under the
Loan Agreement, all rights and remedies of a secured party under the Uniform
Commercial Code (as enacted in any jurisdiction in which the Copyrights or other
Collateral are located or deemed to be located) or other applicable law. Upon
occurrence of an Event of Default, Grantor shall, upon request of GBC, give
written notice to all parties to the Licenses that all payments thereunder shall
be made to GBC, and GBC may itself give such notice.
7. FEES AND EXPENSES. On demand by GBC, without limiting any of the
terms of the Loan Agreement, Grantor shall pay all reasonable fees, costs, and
expenses (including without limitation reasonable attorneys' fees and legal
expenses) incurred by GBC in connection with (a) preparing this Agreement and
all other documents relating to this Agreement, (b) consummating this
transaction, (c) filing or recording any documents (including all taxes in
connection therewith) in public offices; and (d) paying or discharging any
taxes, counsel fees, maintenance fees, encumbrances, or other amounts in
connection with protecting, maintaining, or preserving the Copyrights or
defending or prosecuting any actions or proceedings arising out of or related to
the Copyrights.
8. GBC'S RIGHTS. In the event that Grantor fails to use its best efforts
to preserve and defend Grantor's rights in the Copyrights (except as permitted
by paragraph 3(c) hereof) within a reasonable period of time after learning of
the existence of any actual or threatened infringement thereof, upon twenty (20)
days prior written notice to Grantor, GBC shall have the right, but shall in no
way be obligated to, bring suit or take any other action, in its own name or in
Grantor's name, to enforce or preserve GBC's or Grantor's rights in the
Copyrights. Grantor shall at the request of GBC and at Grantor's expense do any
lawful acts and execute any documents requested by GBC to assist with
such enforcement. In the event Grantor has not taken action to enforce or
preserve GBC's and Grantor's rights in the Copyrights and GBC thereupon takes
such action, Grantor, upon
4.
demand, shall promptly reimburse and indemnify GBC for all costs and expenses
incurred in the exercise of GBC's or Grantor's rights under this Section 8.
9. NO WAIVER. No course of dealing between Grantor and GBC, nor any
failure to exercise nor any delay in exercising, on the part of GBC, any right,
power, or privilege under this Agreement or under the Loan Agreement or any
other agreement, shall operate as a waiver. No single or partial exercise of
any right, power, or privilege under this Agreement or under the Loan Agreement
or any other agreement by GBC shall preclude any other or further exercise of
such right, power, or privilege or the exercise of any other right, power, or
privilege by GBC.
10. RIGHTS ARE CUMULATIVE. All of GBC's rights and remedies with respect
to the Copyrights and other Collateral whether established by this Agreement,
the Loan Agreement, or any other documents or agreements, or by law shall be
cumulative and may be exercised concurrently or in any order.
11. COPYRIGHT OFFICE. At the request of GBC, Grantor shall execute any
further documents necessary or appropriate to create and perfect GBC's security
interest in the Copyrights, including without limitation any documents for
filing with the United States Copyright Office and/or any applicable state
office. GBC may record this Agreement, an abstract thereof, or any other
document describing GBC's interest in the Copyrights with the United States
Copyright Office, at the expense of Grantor.
12. INDEMNITY. Grantor shall protect, defend, indemnify, and hold
harmless GBC and GBC's assigns from all liabilities, losses, and costs
(including without limitation reasonable attorneys' fees) incurred or imposed on
GBC relating to the matters in this Agreement, including, without limitation, in
connection with GBC's defense of any infringement action brought by a third
party against GBC.
13. SEVERABILITY. The provisions of this Agreement are severable. If any
provision of this Agreement is held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such provision, or part thereof, in such jurisdiction, and shall not in any
manner affect such provision or part thereof in any other jurisdiction, or any
other provision of this Agreement in any jurisdiction.
14. ENTIRE AGREEMENT. This Agreement is subject to modification only by a
writing signed by the parties, except as provided in Section 5 of this
Agreement. To the extent that any provision of this Agreement conflicts with
any provision of the Loan Agreement, the provision giving GBC greater rights or
remedies shall govern, it being understood that the purpose of this Agreement is
to add to, and not detract from, the rights granted to GBC under the Loan
Agreement. This Agreement, the Loan Agreement, and the documents relating
thereto comprise the entire agreement of the parties with respect to the matters
addressed in this Agreement.
5.
15. FURTHER ASSURANCES. At GBC's request, Grantor shall execute and
deliver to GBC any further instruments or documentation, and perform any acts,
that may be reasonably necessary or appropriate to implement this Agreement, the
Loan Agreement or any other agreement, and the documents relating thereto,
including without limitation any instrument or documentation reasonably
necessary or appropriate to create, maintain, perfect, or effectuate GBC's
security interests in the Copyrights or other Collateral.
16. RELEASE. At such time as Grantor shall completely satisfy all of the
Obligations and the Loan Agreement shall be terminated, GBC shall execute and
deliver to Grantor all assignments and other instruments as may be reasonably
necessary or proper to terminate GBC's security interest in the Copyrights,
subject to any disposition of the Copyrights which may have been made by GBC
pursuant to this Agreement. For the purpose of this Agreement, the Obligations
shall be deemed to continue if GBC enters into any bankruptcy or similar
proceeding at a time when any amount paid to GBC could be ordered to be repaid
as a preference or pursuant to a similar theory, and shall continue until it is
finally determined that no such repayment can be ordered.
17. TRUE AND LAWFUL ATTORNEY. Grantor hereby appoints GBC as Grantor's
true and lawful attorney, with full power of substitution, to do any or all of
the following, in the name, place and stead of Grantor: (a) execute an abstract
of this Agreement or any other document describing GBC's interest in the
Copyrights, for filing with the United States Copyright Office; (b) execute any
modification of this Agreement pursuant to Section 5 of this Agreement; and (c)
following an Event of Default (as defined in the Loan Agreement) execute any
assignments, notices or transfer documents for purposes of transferring title or
right to receive any of the Copyrights or other collateral to any person,
including without limitation GBC.
18. SUCCESSORS. The benefits and burdens of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted
assigns of the parties; provided that Grantor may not transfer any of the
Collateral or any rights hereunder, without the prior written consent of GBC,
except as specifically permitted hereby.
19. GOVERNING LAW. The validity and interpretation of this Agreement and
the rights and obligations of the parties shall be governed by the laws of the
State of California, excluding its conflict of law rules to the extent such
rules would apply the law of another jurisdiction, and the United States.
20. WAIVER OF RIGHT TO JURY TRIAL. GBC AND GRANTOR EACH HEREBY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (i) THIS AGREEMENT; OR (ii) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN GBC AND GRANTOR; OR (iii) ANY CONDUCT,
ACTS OR OMISSIONS OF GBC OR GRANTOR OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED
6.
WITH GBC OR GRANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
WITNESS the execution hereof as of the date first written above.
Grantor:
TSW INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: CFO
------------------------------
Accepted.
GBC:
GREYROCK BUSINESS CREDIT,
a Division of NationsCredit Commercial Corporation
By: /s/ [illegible]
--------------------------------
Title: CEO
-----------------------------
7.
Schedule A
to
Security Agreement
in Copyrighted Works
TSW INTERNATIONAL, INC.
REGISTERED COPYRIGHTS
Year of Registration Date of
Title of Work Creation Number Issuance
----------------- -------- ------------ --------
MPAC-UX 14.1 1989 TX 0-000-000 1/29/96
MPAC-UX 14.2 1989 TX 0-000-000 1/29/96
MPAC-UX 14.3 1990 TX 0-000-000 1/29/96
MPAC-UX 15.0 1991 TX 0-000-000 1/29/96
MPAC-UX 15.1 1992 TX 0-000-000 1/29/96
MPAC-UX 16.0 1992 TX 0-000-000 1/29/96
MPAC-UX 17.0 1994 TX 0-000-000 1/29/96
MPAC-UX-18.0 1995 TX 0-000-000 1/29/96
MPAC-2000 3.3 1991 TX 0-000-000 1/29/96
MPAC-2000 5.0 1994 TX 0-000-000 1/29/96
MPAC-SQL 2.0 1991 TX 0-000-000 1/29/96
MPAC-SQL 2.2 1992 TX 0-000-000 1/29/96
MPAC-SQL 3.1 1994 TX 0-000-000 1/29/96
MPAC-SQL 3.4 1994 TX 0-000-000 1/29/96
MPAC-SQL 3.5 1995 TX 0-000-000 1/29/96
EMPAC 6.0 1995 TX 0-000-000 1/29/96
EMPAC 6.1 1995 TXu 728-359 1/29/96
EPS 2.0 1995 TX 0-000-000 1/29/96
Curator 1.0 1994 TX 0-000-000 1/29/96
Curator 1.1 1994 TX 0-000-000 1/29/96
Curator 2.0 1995 TX 0-000-000 1/29/96
Year of Registration Date of
Title of Work Creation Number Issuance
----------------- -------- ------------ --------
Curator 1994 TX 0-000-000 1/29/96
Hyperlinking 1.0
Natural Language 1992 TX 0-000-000 1/29/96
for MPAC-SQL 1.0
