Exhibit 10.3
PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT (this "PATENT SECURITY AGREEMENT") is
made this 7th day of April, 2009, among Ivivi Technologies, Inc. (the
"BORROWER"), and Emigrant Capital Corp. (together with its successors and
assigns, if any, the "SECURED PARTY").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Loan Agreement, dated as of April 7,
2009 (as amended, restated, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT"), among the Borrower, as borrower, and the Secured
Party, as lender, the Secured Party is willing to make certain financial
accommodations available to the Borrower pursuant to the terms and conditions
thereof;
WHEREAS, the Lender is willing to make the financial accommodations to
the Borrower as provided for in the Loan Agreement, but only upon the condition,
among others, that the Borrower shall have executed and delivered to the Secured
Party that certain Security Agreement, dated as of April 7, 2009 (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "SECURITY AGREEMENT"); and
WHEREAS, pursuant to the Security Agreement, the Borrower is required
to execute and deliver to the Secured Party this Patent Security Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower hereby agrees as
follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or the Loan
Agreement.
2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. The Borrower hereby
grants to the Secured Party a continuing first priority security interest
(subject to Permitted Liens) in all of the Borrower's right, title and interest
in, to and under the following, whether presently existing or hereafter created
or acquired (collectively, the "PATENT COLLATERAL"):
(a) all of its Patents and Patent Intellectual Property
Licenses to which it is a party including those referred to on SCHEDULE I
hereto;
(b) all reissues, continuations or extensions of the
foregoing; and
(c) all products and proceeds of the foregoing, including any
claim by the Borrower against third p arties for past, present or future
infringement of any Patent or any right to receive license fees, royalties, and
other compensation under any Intellectual Property License.
3. SECURITY FOR OBLIGATIONS. This Patent Security Agreement and the
Security Interest created hereby secures the payment and performance of all the
Secured Obligations, whether now existing or arising hereafter. Without limiting
the generality of the foregoing, this Patent Security Agreement secures the
payment of all amounts which constitute part of the Secured Obligations and
would be owed by the Borrower to the Secured Party whether or not they are
unenforceable or not allowable due to the existence of an Insolvency Proceeding
involving the Borrower.
4. SECURITY AGREEMENT. The security interests granted pursuant to this
Patent Security Agreement are granted in conjunction with the security interests
granted to the Borrower pursuant to the Security Agreement. The Borrower hereby
acknowledges and affirms that the rights and remedies of the Secured Party with
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respect to the security interest in the Patent Collateral made and granted
hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
5. AUTHORIZATION TO SUPPLEMENT. If the Borrower shall obtain rights to
any new patentable inventions or become entitled to the benefit of any patent
application or patent for any reissue, division, or continuation, of any patent,
the provisions of this Patent Security Agreement shall automatically apply
thereto. The Borrower shall give prompt notice in writing to the Secured Party
with respect to any such new patent rights. Without limiting the Borrower's
obligations under this Section, the Borrower hereby authorizes the Secured Party
unilaterally to modify this Agreement by amending SCHEDULE I to include any such
new patent rights of the Borrower. Notwithstanding the foregoing, no failure to
so modify this Patent Security Agreement or amend SCHEDULE I shall in any way
affect, invalidate or detract from Secured Party's continuing security interest
in all Patent Collateral, whether or not listed on SCHEDULE I.
6. COUNTERPARTS. This Patent Security Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument. In proving this Patent Security Agreement or any other Loan Document
in any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signatures delivered by a party by facsimile transmission or by
e-mail transmission shall be deemed an original signature hereto.
7. CONSTRUCTION. Unless the context of this Patent Security Agreement
or any other Loan Document clearly requires otherwise, references to the plural
include the singular, references to the singular include the plural, the terms
"includes" and "including" are not limiting, and the term "or" has, except where
otherwise indicated, the inclusive meaning represented by the phrase "and/or."
The words "hereof," "herein," "hereby," "hereunder," and similar terms in this
Patent Security Agreement or any other Loan Document refer to this Patent
Security Agreement or such other Loan Document, as the case may be, as a whole
and not to any particular provision of this Patent Security Agreement or such
other Loan Document, as the case may be. Section, subsection, clause, schedule,
and exhibit references herein are to this Patent Security Agreement unless
otherwise specified. Any reference in this Patent Security Agreement or in any
other Loan Document to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements set forth herein). Any reference herein or in any
other Loan Document to the satisfaction or repayment in full of the Secured
Obligations shall mean the repayment in full in cash (or cash collateralization
in accordance with the terms of the Loan Agreement) of all Secured Obligations
other than unasserted contingent indemnification Secured Obligations. Any
reference herein to any Person shall be construed to include such Person's
successors and assigns. Any requirement of a writing contained herein or in any
other Loan Document shall be satisfied by the transmission of a Record and any
Record so transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Borrower has caused this Patent Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
BORROWER: IVIVI TECHNOLOGIES, INC., as Borrower
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: CFO
SECURED PARTY: EMIGRANT CAPITAL CORP., as Secured Party
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
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