1
Exhibit 10.8(c)
RESTATED SECURITY AGREEMENT
This Restated Security Agreement is made and delivered pursuant to the
terms of that certain Restated Credit Facilities Agreement originally made by
and between INTEGRATED INFORMATION SYSTEMS, INC., an Arizona corporation
("DEBTOR") and IMPERIAL BANK ARIZONA, an Arizona banking corporation, dated as
of December 18, 1997 (the "LOAN AGREEMENT"), and thereafter assigned to
Imperial Bank, a California banking corporation, ("Imperial Bank"), and
restated and amended as of April 30, 1999, (as it may hereafter be amended,
modified, extended or restated from time to time, (the "Restated Loan
Agreement"). Unless otherwise defined herein or the context otherwise requires
(or as such terms are defined in the Uniform Commercial Code enacted in the
State of California as of the date hereof and as it may be amended hereafter
(the "UCC")), capitalized terms used herein have the meanings provided in the
Restated Loan Agreement.
1. For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and to secure payment and performance of the
"Obligations" (defined in the Restated Loan Agreement), Debtor hereby grants a
security interest to Imperial Bank in all the "Collateral" as defined in
Schedule 1 annexed hereto.
2. DEBTOR'S WARRANTIES. Debtor warrants: (a) Debtor has the authority
and has obtained all approvals and consents necessary to incur the Obligations
and to enter into this agreement, and there is no legal restriction or
agreement affecting Debtor's right to grant a security interest in the
Collateral; (b) Debtor is and, as to Collateral acquired after the date hereof,
will be the owner of the Collateral, free and clear of all Liens, encumbrances
and claims whatsoever, except Liens to which Imperial Bank has specifically
consented; (c) Collateral deposited with or otherwise relied upon by Imperial
Bank prior to, contemporaneous with or subsequent to the execution of this
agreement is or will be true, correct, complete, valid, and genuine; (d) none
of the Collateral located on the premises of a third party is subject to any
tolling, processing or consignment agreement or arrangement; (e) all Accounts
or General Intangibles comprising Collateral are genuine, as appearing on their
face, enforceable according to their terms, free of disputes, set-offs,
counterclaims and defenses, and represent indebtedness, obligations, interests
or property justly owning to and owned by Debtor as therein provided; (f) no
financing statement or security agreement covering any of Debtor's property of
the type, kind or class of the Collateral is or will be on file in any public
office, except as allowed by the Loan Documents; (g) this Security Agreement
when executed will be a legal, valid and binding obligation of Debtor,
enforceable in accordance with its terms; (h) it has no knowledge of any fact
that would of necessity preclude Imperial Bank from having a first priority
perfected security interest in the Collateral upon the making by Debtor of
appropriate trademark, copyright and UCC-1 security filings; and (i) Debtor is
not aware of any claim that the use of the Intellectual Property by Debtor does
or may violate the asserted rights of any third party.
3. IMPERIAL BANK'S AUTHORITY. Debtor authorizes Imperial Bank to do
the following from time to time, in its own or in Debtor's name and at
Debtor's expense, without notice or demand to Debtor, and without affecting
Debtor's liability hereunder or on the Obligations:
2
(a) if an Event of Default occurs or exists, notify any obligor or account
debtor, on an Instrument or Account that is part of the Collateral, to make
payment to Imperial Bank; (b) if an Event of Default occurs or exists, demand,
xxx for, collect, or make any compromise or settlement with reference to the
Collateral, and any interest, dividends, principal payments, benefits and other
sums payable on account of the Collateral, as Imperial Bank in its sole
discretion chooses; (c) if an Event of Default occurs or exists, collect by
legal proceedings or otherwise, and endorse, receive and receipt for all
dividends, interest, payments, proceeds and other sums and property now or
hereafter payable with respect to or on account of the Collateral; (d) if an
Event of Default exists, make any payment and perform any agreement undertaken
by Debtor, and expend such sums and incur such expense, including reasonable
attorney's fees and legal expenses, as Imperial Bank reasonably deems
advisable; (e) if an Event of Default occurs or exists, transfer the Collateral
into its own name or into the name of one of its nominees; (f) renew, extend,
or otherwise extend the time for payment of the Obligations or any part
thereof, including decreasing the rate of interest thereon and in the event
this agreement is ever marked "paid by renewal" or with words of similar
effect, the security interest granted herein and the obligations renewed shall,
respectively, continue to be deemed granted and incurred on the date hereof; (g)
take and hold security, other than the Collateral, for the payment of the
Obligations or any part thereof, and exchange, enforce, waive, and release the
Collateral or any part thereof or any such other security; (h) if an Event of
Default occurs or exists, apply the Collateral or other security, and direct
the order or manner of sale thereof as Imperial Bank in its discretion may
determine; (i) enter into any extension, subordination, reorganization,
deposit, merger or consolidation agreement or any other agreement affecting or
relating to the Collateral, and in connection therewith deposit or surrender
control of the Collateral or any part thereof, and accept other property in
exchange or substitution therefor; (j) assign or negotiate any of the
Obligations and, in the case of such transfer, deliver the whole or any part
of the Collateral to the transferee who shall succeed to all the powers and
rights of Imperial Bank in respect thereof, and Imperial Bank shall thereafter
be forever relieved and fully discharged from any liability or responsibility
with respect to the transferred Collateral; (k) release or substitute Debtor of
any of its liabilities and obligations or any part thereof; (l) delay
exercising or not exercise any right or remedy under this or any other
agreement, without waiving that or any other past, present or future right or
remedy; (m) insure, process and preserve all or any part of the Collateral; (n)
if an Event of Default occurs or exists, receive premiums and proceeds of
insurance covering the Collateral, and Debtor hereby directs insurers to pay
any return or unearned premium becoming due on any such insurance to Imperial
Bank, and irrevocably appoints Imperial Bank by any of its officers as
Debtor's attorney-in-fact, upon 10 business days written notice to Debtor, to
cancel such insurance and to endorse and sign any instrument payable to Debtor
or required to obtain such insurance premium or proceeds; and, (o) if an Event
of Default occurs or exists, take any action it deems advisable, and exercise
all the rights, powers and remedies of an owner with respect to all or any part
of the Collateral.
4. IMPERIAL BANK'S DUTIES. Imperial Bank makes no express or implied
warranties, including warranties of merchantability or fitness, for any of the
Collateral delivered or released to Debtor. Imperial Bank's duty with respect
to the Collateral shall be solely to use reasonable care in the custody and
preservation of Collateral in its possession, which shall not include any steps
necessary to preserve rights against prior parties nor the duty to send
notices, perform services or take any action in connection with the management
of the Collateral. Such care as Imperial Bank gives to the safekeeping of its
own property of like kind shall constitute
2
3
reasonable care of the Collateral when in Imperial Bank's possession. As
appropriate, commercially reasonable preparation or processing of the Collateral
includes completing or continuing any operation necessary to the sale or other
disposition of the Collateral. Neither Imperial Bank nor its correspondents or
agents shall have any responsibility or liability for: (a) the form,
sufficiency, correctness, genuineness or legal effect of any instrument or
document constituting a part of or in any way relating to the Collateral, or any
signature thereon; (b) making any presentment, demand or protest, or giving
notice, in connection with any obligation or evidence of indebtedness held by it
as part of the Collateral or in connection with the Obligations; (c) the
description or misdescription, quantity, weight, quality, condition, packing,
delivery or value of property or goods represented, or purported to be
represented, by documents or instruments; (d) the performance or nonperformance
of any contract or obligation of carriage, storage, insurance or otherwise,
relating thereto; (e) the consequences arising out of any error, interruption,
delay, mutilation or loss in transit of cables, telegrams, letters, instruments
or documents, including errors in translation or interpretations; (f)
obligations imposed by foreign laws, customs or regulations; or (g) consequences
arising out of acts or decisions of public authorities, strikes, lockouts,
riots, wars, acts of God or other causes beyond the control of Imperial Bank,
its correspondents or agents.
5. EVENTS OF DEFAULT. If a Default as described in Section 10 of the
Restated Loan Agreement occurs or exists, that shall be an "Event of Default"
hereunder.
6. IMPERIAL BANK'S REMEDIES. Upon the occurrence of one or more Events
of Default, without demand or notice of any kind (all of which are hereby
expressly waived), Imperial Bank (and its agents) shall have the rights and
remedies of a secured creditor, and Debtor shall have the rights and duties of
a debtor, provided to them under the UCC, and Imperial Bank may, at its
election and in addition to all other rights, powers and privileges and
notwithstanding any cessation of Debtor's liability or any bar of any statute
of limitations, which Debtor hereby waives to the fullest extent permitted by
law: (a) exercise all rights, privileges or remedies available to Imperial Bank
hereunder or under the Restated Loan Agreement or as may be provided by
applicable law or in equity; (b) terminate any agreement for financial
accommodation; (c) as appropriate, take immediate possession of the Collateral,
without notice and with or without resort to legal process, and for such
purpose Imperial Bank may enter upon any premises on which the Collateral or
any part thereof may be situated and remove it therefrom or render the
Collateral unusable, and upon Imperial Bank's demand, Debtor shall assemble the
Collateral and make it available at a reasonably convenient place designated by
Imperial Bank; (d) remove any and all Collateral from the state or country in
which it may be held to any other state or country, and there be dealt with by
Imperial Bank as provided in this agreement; (e) transfer any part of the
Collateral or any voting securities constituting all or any part of the
Collateral into the name of Imperial Bank for the purpose of exercising its
rights with respect to such Collateral or voting said securities as Imperial
Bank may determine in its sole discretion, provided however, that such transfer
shall not be deemed a retention of such securities in satisfaction of the
obligations secured hereunder unless written notice to that effect is given by
Imperial Bank to Debtor; (f) at its option, retain the Collateral in
satisfaction of the Obligations by sending written notice of such election to
Debtor, but unless such written notice is sent; retention of the Collateral
shall not be in satisfaction of any of the Obligations; (g) lease or license
all or any part of the Collateral, or sell, assign and deliver all or any part
of the Collateral at public or private sale (regardless whether the Collateral
is present at
3
4
the place of sale), and at any sale or disposition of the Collateral, Imperial
Bank may bid and become a purchaser at any public sale, and may accept a trade
of property for all or a portion of the sale price; (h) make or have made any
repairs deemed necessary or desirable, the cost of which is to be charged to
the Debtor; (i) realize upon insurance policies with respect to the Collateral
with a cash surrender value, securities, instruments or documents that will be
redeemed by the issuer upon surrender, without notice to Debtor; and (j) apply
the Collateral, or the proceeds of any disposition of Collateral, towards the
satisfaction of the Obligations in any manner and in any order that Imperial
Bank, in its sole discretion, chooses. Upon a failure by Debtor in so doing,
Imperial Bank may obtain physical damage/loss insurance (protecting Imperial
Bank only if it chooses), pay taxes, assessments, Liens, fees, charges or
encumbrances, and order and pay for repairs or spend any amounts necessary to
maintain the Collateral in Debtor's exclusive possession and in good condition
and repair, and all amounts so expended shall, with interest thereon at the
rate applicable upon default as provided in the Restated Loan Agreement,
constitute part of the Obligations and shall be immediately due and payable. No
such act or expenditure by Imperial Bank shall relieve Debtor from the
consequences of such default. The making of any such payment or the performance
of any obligation on behalf of Debtor shall constitute prima facie evidence of
the necessity and the reasonableness therefor. If notice to Debtor is required,
Imperial Bank shall give written notice to Debtor not less than ten (10) days
prior to the date of public sale of the Collateral or prior to the date after
which private sale of the Collateral will be made by mailing such notice to
Debtor at the address designated with Debtor's signature below (and Debtor
acknowledges and agrees that such notice is reasonable under Section 47-9504 of
the UCC). Any excess proceeds of Collateral remaining after satisfaction of
Obligations to Imperial Bank shall be applied and distributed as provided in
the Restated Loan Agreement, but Debtor shall continue to be liable for any
deficiency remaining after application of the Collateral or proceeds thereof to
the Obligations, together with interest thereon at the Default Rate.
7. WAIVERS. Debtor waives: (a) any right to require Imperial Bank to
proceed against any person, exhaust any Collateral, or pursue any other remedy
in Imperial Bank's power; (b) any requirement that any guarantor be required to
be joined in any action brought to enforce the Obligations by this agreement,
and any requirement that Debtor be joined in any action to enforce the
liability of a guarantor; (c) any defense arising by reason of any disability
or other defense of Debtor, or any other person, or by reason of cessation from
any cause whatsoever of the liability of Debtor or any other person; (d) any
right to enforce or compel the enforcement of any remedy which Imperial Bank
now has or may hereafter have against Debtor or against any other person; and
(e) any benefit of and any right to participate in the Collateral or other
security whatsoever now or hereafter held by Imperial Bank. Until all of the
Obligations shall have been satisfied and paid in full, Debtor shall not have
any right of subrogation. The waiver of any breach or Default by Debtor under
any of the terms of this Security Agreement shall not be deemed to be a waiver
of any subsequent breach or Default on the part of Debtor under this Security
Agreement.
8. MISCELLANEOUS AGREEMENTS. Debtor agrees to the following: (a) to give
Imperial Bank prior written notice of any change of place of business or
insurance with respect to the Collateral; (b) notices shall be given in
accordance with the Restated Loan Agreement; (c) acceptance by Imperial Bank of
any performance which does not comply strictly with the terms hereof shall not
be deemed to be a waiver or bar of any right of Imperial Bank, nor a release of
any of the Obligations; (d) if Collateral is made available to Debtor, and if
items of Collateral are goods
4
5
in possession of a bailee (subject to a non-negotiable document) or are
documents representing goods (subject to a negotiable document), such
entrustment shall be deemed for the sole purpose of ultimate sale or exchange,
or for the purpose of loading, unloading, storing, shipping, trans-shipping,
manufacturing, processing or otherwise dealing with it in a manner preliminary
to its sale or exchange, or if instruments, is for the purpose of ultimate sale
or exchange or of presentation, collection, renewal or registration of transfer;
(e) no agency, fiduciary, representative or partnership relationship exists
between the Debtor on the one hand, and Imperial Bank on the other hand; (f) at
any time, and from time to time, Debtor agrees to take, without further
consideration, such actions and to execute and deliver such documents as
Imperial Bank deems necessary to effectuate the purposes of this Security
Agreement; (g) inapplicability or unenforceability of any provision of this
Security Agreement shall not limit or impair the operation or validity of any
other provision of this Security Agreement; (h) this Security Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof; (i) this Security Agreement is intended to represent the mutual
intent of the parties thereto and no rule of strict construction shall be
applied against any party; (j) TIME IS OF THE ESSENCE HEREOF; (k) Debtor agrees
that the Loan Documents shall be deemed to include this Security Agreement, and
in the event of a conflict between any of the provisions of this Security
Agreement and any provisions of the other Loan Documents, the provisions of the
Restated Loan Agreement shall control in the absence of manifest error; (l) in
the event that any time after the Closing Date Imperial Bank is for any reason
compelled to surrender to any Person all or any portion of any of the Collateral
or any payments received by them as contemplated by this Security Agreement,
because the same (or any portion thereof) is determined to be void or voidable
as a fraudulent transfer, a preference, or a diversion of trust funds or for any
other reason, then, to the extent any of such Collateral or any of such payments
are compelled to be surrendered, any Obligation Secured, deemed to have been
satisfied and discharged, the Loan Documents, and any promissory notes which
have been cancelled, as the case may be, will be reinstated with the same force
and effect as though they had continued in full force and effect notwithstanding
the receipt of any of such Collateral or any of such payments, and any action
taken by Imperial Bank in reliance upon or by reason of the receipt of any of
such Collateral or any of such payment or payments shall be without prejudice to
Imperial Bank's rights under the Loan Documents, or the Note, as the case may
be, and such action shall be deemed to have been conditioned upon the receipt of
all of such Collateral or any of such payment or payments to Imperial Bank
having become final and irrevocable; (m) no provision of this Security Agreement
shall be amended, waived, or modified except by an instrument in writing signed
by the Debtor and Imperial Bank; (n) no delay or omission on the part of
Imperial Bank in exercising any right shall operate as a waiver of such right or
any other right; (o) a waiver on any one occasion shall not be construed as a
bar to the exercise of any right on any future occasion; (p) Debtor shall not
sell, assign, transfer or otherwise convey any of its rights or delegate any of
its obligations or duties under this Agreement, and any attempted sale,
assignment, transfer, conveyance or delegation shall be void, and a Default
under Section 10 of the Restated Loan Agreement; (q) the rights of Imperial Bank
under this Agreement are assignable in part or in whole, as provided in the
Restated Loan Agreement, and any assignee of Imperial Bank shall succeed to and
be possessed of the rights of Imperial Bank hereunder to the extent of the
assignment made; and (r) this is a continuing agreement, and to the extent
possible, applies to all past, present and future indebtedness, obligations and
transactions of Debtor, or any of them, with Imperial Bank, and whether or not
such transactions continue, increase, decrease or create new indebtedness after
or
5
6
before payment of prior indebtedness, and notwithstanding the bankruptcy of, or
other event or proceedings affecting Debtor.
9. GOVERNING LAW. This agreement shall be deemed to have been made in the
State of California and the validity of this agreement and the construction,
interpretation, and enforcement hereof, and the rights of the parties hereto
shall be determined under, governed by, and construed in accordance with the
laws of the State of California, without regard to principles of conflicts of
law.
10. ACKNOWLEDGMENT OF INFORMED AGREEMENT. Debtor acknowledges that it has
received a copy of this agreement as executed and that it has had the
opportunity to seek, and has in fact sought, the advice and benefit of legal
counsel prior to executing this Agreement.
11. DEBTOR UNDERSTANDS AND EXPRESSLY AGREES THAT THIS SECURITY AGREEMENT
HAS BEEN FREELY AND VOLUNTARILY ENTERED INTO, AND THAT NO ORAL OR WRITTEN
REPRESENTATIONS OR PROMISES OF ANY KIND, UNLESS SPECIFICALLY CONTAINED IN THIS
SECURITY AGREEMENT, HAVE BEEN MADE BY IMPERIAL TO INDUCE OR OTHERWISE INFLUENCE
DEBTOR TO ENTER INTO THIS AGREEMENT. DEBTOR EXPRESSLY AGREES THAT THIS
AGREEMENT IS NOT EXECUTED PURSUANT TO ANY DURESS, AND IS EXECUTED IN MUTUAL
GOOD FAITH BETWEEN THE PARTIES AND IS NOT GIVEN OR INTENDED TO HINDER, DELAY OR
DEFRAUD ANY CREDITOR, OR TO CONTRAVENE ANY OF THE BANKRUPTCY LAWS OF THE UNITED
STATES PERTAINING TO FRAUDULENT CONVEYANCES OR ANY OTHER APPLICABLE LAWS.
IN WITNESS WHEREOF, Debtor has executed this Security Agreement as of
April 30, 1999.
INTEGRATED INFORMATION SYSTEMS, INC.,
an Arizona corporation
By: Xxxxx X. Xxxxxx
-----------------------------------------
Title: President
--------------------------------------
Debtor's Address:
Fountainhead Corporate Park
0000 Xxxx Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
President & CEO
Telephone: (602)
Telefacsimile: (602)
6
7
SCHEDULE 1
TO RESTATED SECURITY AGREEMENT BETWEEN
INTEGRATED INFORMATION SYSTEMS, INC. ("Debtor")
and IMPERIAL BANK ARIZONA
COLLATERAL
All of the property described below in, to or under which Debtor now has
or hereafter acquires any right, title or interest, whether present, future or
contingent and in Debtor's expectancy to acquire such property (all of the
property described on this schedule (including the annexed Definitions) is
herein called the "COLLATERAL"):
(a) All accounts, instruments, promissory notes, order paper, chattel
paper, electronic chattel paper, letter of credit rights, payment
intangibles, general intangibles, investment property,
health-care-insurance receivables, and commercial tort claims, arising
directly or indirectly from the sale, lease, license or rental of
goods or the sale or provision of services by Debtor or the business
or other operations of Debtor, together with all proceeds,
Collections, guaranties and other security therefor, all right, title
and interest of Debtor in the goods that gave rise thereto, including
the right to stoppage in transit, all returned, rejected, rerouted or
repossessed goods, the sale or lease of which shall have given rise to
any account or any such instrument or chattel paper, and all proceeds
thereof;
(b) All inventory, goods, merchandise, materials, raw materials, goods in
process, finished goods, packaging and shipping materials and other
tangible personal property, whether now or hereafter in existence, and
held for sale or lease, or to be or actually furnished under contracts
for service or consumed in Debtor's business, whether or not such
inventory be in the constructive or actual possession or custody of
Debtor, whether or not Debtor holds legal title thereto, and whether
any such inventory is represented by warehouse receipts or bills of
lading or has been or may be placed in transit or delivered to a
public warehouse, together with any and all proceeds resulting from
the sale or other Disposition thereof, and all books and records
pertaining thereto;
(c) All equipment, accessories, appliances, apparatuses, spare parts,
supplies, materials, blueprints, specifications and maintenance
records related thereto, now or hereafter owned or acquired by Debtor,
wherever situated, together with all goods appertaining or attached,
or kept or used or intended for use in connection therewith, and all
property substituted or exchanged for any and all of the foregoing,
and all improvements to, replacements of, and additions to any and all
of the foregoing;
(d) All furniture and fixtures;
7
8
(e) All Intellectual Property now owned or hereafter created or
acquired by Debtor, including without limitation all licenses, options,
warranties, service contracts, program services, test rights, maintenance
rights, support rights, improvement rights, renewal rights,
indemnifications and model conversions of any of the foregoing;
(f) All of Debtor's Deposits (whether or not evidenced by a
certificate with Imperial Bank), and all of Debtor's personal property
coming into the hands of or under the control of Imperial Bank in any
manner, including securities held by, deposited with, assigned or pledged
to Imperial Bank, and all interest, dividends, stock rights, stock
dividends, benefits and other property or rights to which Debtor may become
entitled by virtue of the ownership thereof;
(g) All rights under and interests in lease, license or rental
agreements pertaining to inventory, equipment or Intellectual Property that
are retained or reserved to Debtor, and all reversion or similar interests
in property that are subject to lease, license or rental agreement;
(h) All rights as unpaid seller or lienor that arise in connection
with any of the Collateral, including the rights of replevin, reclamation
and stoppage in transit, and the right to xxx or file mechanics' or
materialmen's liens in the name of Debtor or otherwise for the unpaid
balances due thereunder;
(i) All tax refund claims, all policies or certificates of insurance
covering any of the Collateral, all contracts, agreements or rights of
indemnification, guaranty or surety relating to any of the Collateral, and
all claims, awards, loss payments, proceeds and premium refunds that may
become payable with respect to any such policies, certificates, contracts,
agreements or rights;
(j) All ledger cards, invoices, delivery receipts, worksheets, books
of accounts, statements, correspondence, customer lists, files, journals,
ledgers and records in any form, written or otherwise, related to any of
the Collateral;
(k) All claims for loss or damage to or in connection with any of the
Collateral, all other claims in any form for the payment of money,
including tort claims, and all rights with respect to such claims and all
proceeds thereof;
(l) All accessions to any of the Collateral;
(m) All general intangibles arising by virtue of the Collateral owned
or held by or in the name of Debtor;
(n) All property substituted or exchanged for the Collateral; and
(o) All proceeds of the foregoing, in any form, including all
proceeds received, due or to become due from any sale, exchange or other
disposition of any of the Collateral, whether such proceeds are cash or
noncash in nature or are represented by checks, drafts, notes or other
instruments for the payment of money.
8
9
Schedule 1 Definitions
----------------------
"Collections" mean all collections, payments or receipts of any kind or
character, whether in the form of cash or other property, on or with respect to
any note, instrument, account or general intangible (including any of the
Collateral), whether or not in the ordinary course, pursuant to the terms
thereof, or otherwise, including by any act of discounting, compromise,
settlement or change of any term thereof.
"Debtor's Deposits" shall include: (i) depository and other accounts of
DEBTOR, including all depository and other accounts maintained with Imperial
Bank; (ii) any successor and/or replacement account(s), and any and all
securities (including, without limitation, treasury notes, treasury bills,
stocks, bonds, options, futures, and investment contracts of every kind and
nature, whether similar or dissimilar to the foregoing), money, instruments,
documents, goods, chattel paper, accounts, general intangibles, deposit
accounts and other property and rights of any nature now or hereafter held in
or in connection with or constituting part of such account(s); (iii) all
certificates and instruments issued with respect to any property of Debtor
referred to in subsection (ii); (iv) all replacements, substitutions, interest,
cash and stock dividends, warrants, options, or other rights and amounts paid,
accrued, received, receivable or distributed with respect to any property of
DEBTOR referred to in subsection (ii) or (iii) from time to time; and (v) with
respect to the foregoing, all proceeds thereof, including without limitation
insurance proceeds and payments under the Securities Investor Protection Act of
1970, as amended.
"Intellectual Property" means, collectively, all Computer Hardware and
Software Property, Copyright Property, Patent Property and Trademark Property
of Debtor:
Debtor's Computer Hardware and Software Property shall include:
(i) All computer and other electronic data processing
hardware, integrated computer systems, central processing units,
memory units, display terminals, printers, features, computer
elements, card readers, tape drives, hard and soft disk drives,
cables, electrical supply hardware, generators, power equalizers,
accessories and all peripheral devices and other related computer
hardware;
(ii) All software programs (including both source code, object
code and all related applications and data files), whether now owned,
licensed or leased or hereafter acquired by Debtor;
(iii) All firmware associated with the property described in
clauses (i) and (ii) of this definition;
(iv) All documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to the hardware,
software and firmware described in the preceding clauses (i) through
(iii) of this definition; and
(v) All rights with respect to all of the foregoing, including
without limitation, any and all Copyright Property, licenses, options,
warranties, service contracts, program services, test rights,
maintenance rights, support rights,
9
10
improvement rights, renewal rights and indemnifications and substitutions,
replacements, additions or model conversions of any of the foregoing.
Debtor's Copyright Property shall include:
(i) Now or hereafter in force throughout the world, including,
without limitation, all of Debtor's right, title and interest in and to all
copyrights registered in the United States Copyright Office or anywhere
else in the world and also including, all applications (excluding
intent-to-use applications) for registration thereof, whether pending or in
preparation, and all copyrights arising from such applications;
(ii) All extensions and renewals of any of the above;
(iii) All copyright licenses and other agreements providing Debtor
with the right to use any of the types of items referred to in clauses (i)
and (ii) of this definition;
(iv) The right to xxx for past, present and future infringements with
respect to the Copyright Property described in clauses (i) and (ii) of this
definition and, to the extent applicable, clause (iii) of this definition;
and
(v) All proceeds of the foregoing, including, without limitation,
licenses, royalties, income, payments, claims by Debtor against third
parties for past, present or future infringements with respect to the
Copyright Property described herein, to the extent applicable, and all
rights corresponding thereto throughout the world.
Debtor's Patent Property shall include:
(i) All of Debtor's inventions (whether or not patentable and
whether or not reduced to practice) and all of Debtor's patents, patent
applications (including, without limitation, all patents and patent
applications in preparation for filing) and patent disclosures throughout
the world;
(ii) All reissues, divisions, continuations, continuations-in-part,
revisions, extensions, renewals and reexaminations of any of the items
described in clause (i) of this definition;
(iii) All patent licenses of Debtor (whether as licensee or licensor);
(iv) The right to xxx third parties for past, present or future
infringements of any Patent Property described herein, to the extent
applicable, and
(v) All proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), including
any claim by Debtor against third parties for past, present or future
infringements of any patent or (to the
10
11
extent applicable or permitted as a matter of law) patent covered by a
patent license and all rights corresponding thereto throughout the
world.
Debtor's Software Property shall include:
(i) All software programs (including source code, object code
and all related applications and data files), whether now owned,
licensed or leased or hereafter acquired by Debtor;
(ii) All firmware associated with the property described in
clause (i) of this definition;
(iii) All documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to the software and
firmware described in the preceding clauses (i) and (ii) of this
definition; and
(iv) All rights held by Borrower with respect to all of the
foregoing, including without limitation, any and all copyrights,
licenses, options, warranties, service contracts, program services,
test rights, maintenance rights, support rights, improvement rights,
renewal rights and indemnifications and substitutions, replacements,
additions or model conversions of any of the foregoing.
Debtor's Trademark Property shall include:
(i) Now or hereafter in force throughout the world, including,
without limitation, all of Debtor's right, title and interest in and
to all trademarks, trademark applications, the goodwill of the
business symbolized by trademarks, all customer lists and other
records relating to the distribution of products bearing the
trademarks;
(ii) All extensions and renewals of any of the above;
(iii) All trademark licenses and other agreements providing
Debtor with the right to use any of the types of items referred to in
clauses (i) and (ii) of this definition;
(iv) The right to xxx for past, present and future
infringements with respect to the Trademark Property described in
clauses (i) and (ii) of this definition and, to the extent applicable,
clause (iii) of this definition; and
(v) All proceeds of the foregoing, including, without
limitation, licenses, royalties, income, payments, claims by Debtor
against third parties for past, present or future infringements with
respect to the Trademark Property described herein, to the extent
applicable, and all rights corresponding thereto throughout the world.
11
