EXHIBIT 10.31
SECURITY AGREEMENT
BY AND BETWEEN
XXXXX XXXXXX XXXXXX
ON THE ONE HAND
AND
PLANETOUT INC.
AND
PLANETOUT USA INC.
ON THE OTHER HAND
TABLE OF CONTENTS
Page
----
1. CAPITALIZED TERMS AND ACCOUNTING TERMS................................................ 1
2. CREATION OF SECURITY INTEREST......................................................... 2
2.1 Grant of Security Interest................................................ 2
2.2 Effective Time............................................................ 2
2.3 Authorization of File..................................................... 2
3. REPRESENTATIONS AND WARRANTIES........................................................ 2
3.1 Collateral................................................................ 3
4. AFFIRMATIVE COVENANTS................................................................. 3
4.1 Quick Ratio and Tangible Net Worth Reports................................ 3
4.2 Further Assurances........................................................ 3
5. NEGATIVE COVENANTS.................................................................... 3
6. EVENTS OF DEFAULT..................................................................... 3
7. SECURED PARTY'S RIGHTS AND REMEDIES................................................... 4
7.1 Rights and Remedies....................................................... 4
7.2 Power of Attorney......................................................... 4
7.3 Accounts Collection....................................................... 5
7.4 Secured Party Expenses.................................................... 5
7.5 Secured Party's Liability for Collateral.................................. 5
7.6 Remedies Cumulative....................................................... 5
7.7 Demand Waiver............................................................. 6
8. NOTICES............................................................................... 6
9. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER............................................ 6
10. GENERAL PROVISIONS.................................................................... 6
10.1 Successors and Assigns.................................................... 6
10.2 Indemnification........................................................... 7
10.3 Time of Essence........................................................... 7
10.4 Severability of Provision................................................. 7
10.5 Amendments in Writing, Integration........................................ 7
10.6 Counterparts.............................................................. 7
-i-
10.7 Survival.................................................................. 7
10.8 Attorneys' Fees, Costs and Expenses....................................... 7
11. DEFINITIONS........................................................................... 8
-ii-
THIS SECURITY AGREEMENT dated as of May 25, 2004, between XXXXX XXXXXX
XXXXXX ("Secured Party"), whose address is Seaview, Chancery Lane, Xxxxxx
Church, Barbados, WI, on the one hand and PLANETOUT INC., a Delaware corporation
("Company"), and PLANETOUT USA INC., a Delaware corporation ("Guarantor" and
together with Company, collectively, jointly and severally, "Debtors"), each of
whose address is 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000, on
the other hand is made and entered into as of the Closing Date with reference to
the following facts:
A. Company and Secured Party are parties to that certain Securities
Purchase Agreement dated as of the date hereof (as amended, supplemented,
restated or otherwise modified from the time to time, the "Purchase Agreement").
B. Guarantor has entered into that certain General Continuing Guaranty
dated as of the date hereof (as amended, supplemented, restated or otherwise
modified from the time to time, the "Guaranty"), pursuant to which Guarantor is
guaranteeing Company's obligations to Secured Party under the Purchase
Agreement. Guarantor expects to receive substantial direct and indirect benefits
from Company's entry into the Purchase Agreement as well as Guarantor's entry
into the Guaranty and this Agreement.
C. In order to induce Secured Party to enter into the Purchase Agreement,
Company and Guarantor wish to grant Secured Party a security interest in certain
collateral of Company and Guarantor.
D. The parties desire that the security interest granted under this
Security Agreement shall not become effective until the Effective Time (as
defined below).
E.The parties further desire that Secured Party's rights hereunder should
be subordinate to the rights of Silicon Valley Bank pursuant to the terms of the
Subordination Agreement (as defined below).
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agreement as follows:
1. CAPITALIZED TERMS AND ACCOUNTING TERMS.
Section 11 provides definitions for certain capitalized terms used in this
Agreement. Capitalized terms that are used but not defined in this Agreement
shall have the meanings given such terms in the Purchase Agreement. Accounting
terms not defined in this Agreement will be construed following GAAP.
Calculations and determinations must be made following GAAP. The term "financial
statements" includes the notes and schedules. The terms "including" and
"includes" always mean "including (or includes) without limitation," in this or
any Financing Document.
-1-
2. CREATION OF SECURITY INTEREST
2.1 Grant of Security Interest.
Each of the Debtors grants Secured Party a continuing security
interest in all of its presently existing and later acquired Collateral to
secure all Obligations and performance of each Debtor's respective duties under
the Financing Documents. Except for Permitted Liens, said security interest
shall be a first priority security interest in the Collateral. If this Agreement
is terminated, Secured Party's lien and security interest in the Collateral
shall continue until each Debtor fully satisfies its Obligations.
2.2 Effective Time.
Notwithstanding anything to the contrary in any Financing Document,
the security interest granted hereunder shall not become effective until such
time (the "Effective Time") as (a) Company shall have failed(i) at the end of
any month, to have a Quick Ratio of at least 0.75 to 1.00 and a Tangible Net
Worth of at least $1,000,000 or (ii) to deliver to Secured Party the monthly
report required by Section 4.1 of this Agreement when due and such failure shall
not have been cured prior to Secured Party's notice pursuant to Section 2.2(b),
and (b) Secured Party shall have given Company notice that the security interest
granted hereunder shall be, as of the date on which such notice is given,
effective; provided that Secured Party may file financing statements on or after
the Closing Date pursuant to the authority granted in Section 2.3 hereof.
In the event that the security interest granted hereunder becomes
effective upon the Secured Party's notice following Company's failure timely to
deliver a monthly report required by Section 4.1 of this Agreement, upon the
delivery to the Secured Party of such late monthly report, the security interest
granted hereunder shall cease to be effective if such report indicates that the
Company had a Quick Ratio of at least 0.75 to 1.00 and a Tangible Net Worth of
at least $1,000,000 on the date with respect to which Company failed timely to
deliver such report. Upon the security interest's ceasing to be effective,
Secured Party shall return any Collateral seized by it that has not been
disposed of for value to third parties.
2.3 Authorization of File.
Each Debtor authorizes Secured Party to file or cause to be filed
financing statements at any time on or after the Closing Date, without notice to
Debtors, in such jurisdictions as Secured Party deems appropriate in order to
perfect or protect Secured Party's interest in the Collateral.
3. REPRESENTATIONS AND WARRANTIES
Each Debtor reaffirms all of its representations and warranties made in
each of the other Financing Documents, which representations and warranties are
incorporated into this Agreement by reference. In addition, each Debtor
represents and warrants as follows:
-2-
3.1 Collateral.
Debtor has good title to its respective Collateral, free of Liens
except Permitted Liens. Neither Debtor has notice of any actual or imminent
Insolvency Proceeding of any account debtor with respect to the Accounts that
constitute Collateral. All Inventory is in all material respects of good and
marketable quality, free from material defects. Debtor is the sole owner of its
respective Intellectual Property, except for non-exclusive licenses granted to
its customers in the ordinary course of business.
4. AFFIRMATIVE COVENANTS
Each Debtor reaffirms all of its covenants made in each of the other
Financing Documents, which covenants are incorporated into this Agreement by
reference. In addition, the Debtors covenant jointly and severally to do all of
the following for so long as there are outstanding Obligations:
4.1 Quick Ratio and Tangible Net Worth Reports.
Within thirty days after the last day of each calendar month,
Company will deliver to Secured Party a report showing the Company's Quick Ratio
and Tangible Net Worth as of the last day of such month signed by the principal
financial or accounting officer of the Company.
4.2 Further Assurances.
Debtors will execute any further instruments and take further action
as Secured Party reasonably requests to perfect or continue Secured Party's
security interest in the Collateral or to effect the purposes of this Agreement.
Beginning at the Effective Time, such actions may include, without limitation,
the prosecution or defense of suits to protect Secured Party's rights in the
Collateral, the execution and delivery of control agreements with respect to
deposit accounts, the delivery of collateral schedules listing locations
thereof, and the delivery of copies of applications relating to the registration
of rights in intellectual property.
5. NEGATIVE COVENANTS
Each Debtor reaffirms all of its negative covenants made in each of
the other Financing Documents, which covenants are incorporated into this
Agreement by reference. In addition, the Debtors covenant jointly and severally
that neither Debtor will, without at least 30 days' prior written notice,
relocate its chief executive office, change its state of formation (including
reincorporation), change its organizational number or name or add any new
offices or business locations (such as warehouses) in which a Debtor maintains
or stores over $25,000 in Collateral.
6. EVENTS OF DEFAULT
Each of the following events, should it occur or be continuing at or after
the Effective Time, shall be an Event of Default: (i) a Debtor's failure or
neglect to perform, keep, or observe any material term, provision, condition,
covenant, or agreement contained in this Agreement or (ii) any event that
constitutes an event of default under any other Financing Document.
-3-
7. SECURED PARTY'S RIGHTS AND REMEDIES
7.1 Rights and Remedies.
Subject to the rights of any Senior Lender under any Subordination
Agreement, effective at and after the Effective Time, when an Event of Default
occurs and continues Secured Party may, without notice or demand, do any or all
of the following:
7.1.1 Declare all Obligations immediately due and payable;
7.1.2 Settle or adjust disputes and claims directly with
account debtors for amounts, on terms and in any order that Secured Party
considers advisable; notify any Person owing a Debtor money of Secured Party's
security interest in the funds and verify the amount of the Account. Each Debtor
must collect all payments in trust for Secured Party and, if requested by
Secured Party, immediately deliver the payments to Secured Party in the form
received from the account debtor, with proper endorsements for deposit;
7.1.3 Make any payments and do any acts it considers necessary
or reasonable to protect its security interest in the Collateral. Debtors will
assemble the Collateral if Secured Party requires and make it available as
Secured Party designates. Secured Party may enter premises where the Collateral
is located, take and maintain possession of any part of the Collateral, and pay,
purchase, contest, or compromise any Lien which appears to be prior or superior
to its security interest and pay all expenses incurred. Each Debtor grants
Secured Party a license to enter and occupy any of its premises, without charge,
to exercise any of Secured Party's rights or remedies;
7.1.4 Apply to the Obligations any (i) balances and deposits
of Debtors it holds, or (ii) any amount held by Secured Party owing to or for
the credit or the account of Debtors;
7.1.5 Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell the Collateral. Secured Party is
granted a non-exclusive, royalty-free license or other right to use, without
charge, Debtors' labels, Patents, Copyrights, Mask Works, rights of use of any
name, trade secrets, trade names, Trademarks, service marks, and advertising
matter, or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Secured Party's exercise of its rights under this Section,
Debtors' rights under all licenses and all franchise agreements inure to Secured
Party's benefit; and
7.1.6 Dispose of the Collateral according to the Code.
7.2 Power of Attorney.
Effective only at and after the Effective Time when an Event of
Default occurs and continues, each Debtor irrevocably appoints Secured Party as
its lawful attorney to: (i) endorse in such Debtor's name on any checks or other
forms of payment or security; (ii) sign such Debtor's name on any invoice or
xxxx of lading for any Account or drafts against account debtors, (iii) make,
settle, and adjust all claims under such Debtor's insurance policies; (iv)
settle
-4-
and adjust disputes and claims about the Accounts directly with account debtors,
for amounts and on terms Secured Party determines reasonable; and (v) transfer
the Collateral into the name of Secured Party or a third party as the Code
permits. Secured Party may exercise the power of attorney to sign a Debtor's
name on any documents necessary to perfect or continue the perfection of any
security interest regardless of whether an Event of Default has occurred.
Secured Party's appointment as Debtors' attorney in fact, and all of Secured
Party's rights and powers, coupled with an interest, are irrevocable until all
Obligations have been fully repaid and performed.
7.3 Accounts Collection.
Subject to the rights of any Senior Lender, when an Event of Default
occurs and continues: (a) Secured Party may notify any Person owing a Debtor
money of Secured Party's security interest in the funds and verify the amount of
the Account and (b) Debtors must collect all payments in trust for Secured Party
and, if requested by Secured Party, immediately deliver the payments to Secured
Party in the form received from the account debtor, with proper endorsements for
deposit.
7.4 Secured Party Expenses.
If a Debtor fails to pay any amount or furnish any required proof of
payment to third persons, Secured Party may make all or part of the payment or
obtain insurance policies required under the Purchase Agreement and take any
action under the policies Secured Party deems prudent. Any amounts paid by
Secured Party are Secured Party Expenses and immediately due and payable,
bearing interest at the then applicable rate and secured by the Collateral. No
payments by Secured Party are deemed an agreement to make similar payments in
the future or Secured Party's waiver of any Event of Default.
7.5 Secured Party's Liability for Collateral.
If Secured Party complies with reasonable banking practices and
Section 9-207 of the Code, it is not liable for: (a) the safekeeping of the
Collateral; (b) any loss or damage to the Collateral; (c) any diminution in the
value of the Collateral; or (d) any act or default of any carrier, warehouseman,
bailee, or other person. Debtors bear all risk of loss, damage or destruction of
the Collateral.
7.6 Remedies Cumulative.
Secured Party's rights and remedies under this Agreement, the
Financing Documents, and all other agreements are cumulative. Secured Party has
all rights and remedies provided under the Code, by law, or in equity. Secured
Party's exercise of one right or remedy is not an election, and Secured Party's
waiver of any Event of Default is not a continuing waiver. Secured Party's delay
is not a waiver, election, or acquiescence. No waiver is effective unless signed
by Secured Party and then is only effective for the specific instance and
purpose for which it was given.
-5-
7.7 Demand Waiver.
Each Debtor waives demand, notice of default or dishonor, notice of
payment and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Secured Party on which such
Debtor is liable.
8. NOTICES
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, to the addresses set forth at the beginning of this Agreement or by
telefacsimile as follows:
Xxxxx Xxxxxx Xxxxxx: (000) 000-0000
Company: (000) 000-0000
Guarantor: (000) 000-0000
A party may change its notice information by giving the other party written
notice.
9. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
California law governs the Financing Documents without regard to any
contrary principles of conflicts of law. Debtors and Secured Party each submit
to the exclusive jurisdiction of the State and Federal courts in Santa Xxxxx
County, California.
BORROWER AND SECURED PARTY EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
10. GENERAL PROVISIONS
10.1 Successors and Assigns.
This Agreement binds and is for the benefit of the successors and
permitted assigns of each party. Neither Debtor may assign this Agreement or any
rights under it without Secured Party's prior written consent which may be
granted or withheld in Secured Party's discretion. Secured Party has the right,
without the consent of or notice to Debtors, to sell, transfer, negotiate, or
grant participation in all or any part of, or any interest in, Secured Party's
obligations, rights and benefits under this Agreement.
-6-
10.2 Indemnification.
Debtors, jointly and severally, will indemnify, defend and hold
harmless Secured Party and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities asserted by any other party in
connection with the transactions contemplated by the Financing Documents; and
(b) all losses or Secured Party Expenses incurred, or paid by Secured Party
from, following, or consequential to transactions between Secured Party and a
Debtor (including reasonable attorneys fees and expenses), except for losses
caused by Secured Party's gross negligence or willful misconduct.
10.3 Time of Essence.
Time is of the essence for the performance of all obligations in
this Agreement.
10.4 Severability of Provision.
Each provision of this Agreement is severable from every other
provision in determining the enforceability of any provision.
10.5 Amendments in Writing, Integration.
All amendments to this Agreement must be in writing and signed by
all parties hereto. This Agreement represents the entire agreement about this
subject matter, and supersedes prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this Agreement merge into this
Agreement and the Financing Documents.
10.6 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
10.7 Survival.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Debtors under the Financing Documents to indemnify Secured Party will survive
until all statutes of limitations for actions that may be brought against
Secured Party have run.
10.8 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between a Debtor and Secured Party
arising out of the Financing Documents, the prevailing party will be entitled to
recover its reasonable attorneys' fees and other reasonable costs and expenses
incurred, in addition to any other relief to which it may be entitled.
-7-
11. DEFINITIONS.
Following are definitions of certain capitalized terms used in this
Agreement.
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed a Debtor in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by a Debtor and Debtor's Books relating to any of the
foregoing.
"DEBTOR'S BOOKS" are all of each Debtor's books and records including
ledgers, records regarding such Debtor's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"CODE" is the California Uniform Commercial Code.
"COLLATERAL" is the property described on Exhibit A.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"COPYRIGHTS" are all 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.
"CONTROL AGREEMENT" means a control agreement, in form and substance
satisfactory to Secured Party, executed and delivered by a Debtor, Secured
Party, and the applicable securities intermediary (with respect to a securities
account) or bank (with respect to a deposit account).
"CURRENT LIABILITIES" are the aggregate amount of a Debtor's Total
Liabilities which mature within one (1) year.
"DEFERRED REVENUE" is all amounts received in advance of performance under
a contract and not yet recognized as revenue.
"EFFECTIVE TIME" has the meaning given such term in Section 2.2.
-8-
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which a Debtor has any interest.
"INSOLVENCY PROCEEDING" are proceedings by or against any Person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is:
(a) Copyrights, Trademarks, Patents, and Mask Works including
amendments, renewals, extensions, and all licenses or other rights to use and
all license fees and royalties from the use;
(b) Any trade secrets and any intellectual property rights in
computer software and computer software products now or later existing, created,
acquired or held;
(c) All design rights which may be available to a Debtor now
or later created, acquired or held;
(d) Any claims for damages (past, present or future) for
infringement of any of the rights above, with the right, but not the obligation,
to xxx and collect damages for use or infringement of the intellectual property
rights above;
All proceeds and products of the foregoing, including all insurance,
indemnity or warranty payments.
"INVENTORY" is present and future inventory in which a Debtor has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of a Debtor, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"MASK WORKS" are all mask works or similar rights available for the
protection of semiconductor chips, now owned or later acquired.
"PATENTS" are patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
"QUICK ASSETS" is, on any date, the Company's consolidated, unrestricted
cash, cash equivalents, net billed accounts receivable, as determined according
to GAAP.
"QUICK RATIO" is, on any date, the Company's Quick Assets divided by: (i)
Current Liabilities minus (ii) Deferred Revenue minus (iii) any portion of the
Obligations that is Current Liabilities plus (iv) any portion of outstanding
Senior Indebtedness that is not Current Liabilities.
-9-
"SECURED PARTY EXPENSES" are all audit fees and expenses and reasonable
costs and expenses (including reasonable attorneys' fees and expenses) for
preparing, negotiating, administering, defending and enforcing the Financing
Documents (including appeals or Insolvency Proceedings).
"SENIOR LENDER" is the lender under the Senior Loan Documents, if any.
"SUBORDINATION AGREEMENT" is a written agreement in a manner and form
acceptable to Secured Party and approved by Secured Party in writing setting
forth the terms of the subordination of the Obligations.
"SUBSIDIARY" is for any Person, or any other business entity of which more
than 50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Person or one or more Affiliates of the Person.
"TANGIBLE NET WORTH" is, on any date, the consolidated total assets of
Company and its Subsidiaries minus (a) any amounts attributable to (i) goodwill
and (ii) intangible items such as unamortized debt discount and expense,
Patents, trade and service marks and names, Copyrights and research and
development expenses except prepaid expenses, minus (b) Total Liabilities, plus
(c) the Obligations, plus (d) the cumulative amount of any non-cash equity-based
compensation expense.
"TOTAL LIABILITIES" is on any day, obligations that should, under GAAP, be
classified as liabilities on Company's consolidated balance sheet, including all
Indebtedness.
"TRADEMARKS" are trademark and servicemark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of Assignor connected with the trademarks.
(Signature page follows immediately.)
-10-
In witness of the foregoing, each of the parties hereto has caused this
Agreement to be executed as of the date first written above.
BORROWER:
PLANETOUT INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Financial Officer & Secretary
PLANETOUT USA INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Chief Financial Officer & Secretary
SECURED PARTY:
/s/ Xxxxx Xxxxxx Xxxxxx
---------------------------------------------
Xxxxx Xxxxxx Xxxxxx
-11-
EXHIBIT A
The Collateral consists of all of Debtor's right, title and interest in
and to the following whether owned now or hereafter arising and whether Debtor
has rights now or hereafter has rights therein and wherever located:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is held for sale or lease, or to be furnished under a contract of
service or is temporarily out of Debtor's custody or possession or in transit
and including any returns or repossession upon any accounts or other proceeds,
including insurance proceeds, resulting from the sale or disposition of any of
the foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks (including,
without limitation, those listed on Schedule A-1 to this exhibit), servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance, payment intangibles, and rights to payment of
any kind;
All now existing and hereafter arising accounts (including health-care
insurance receivables), contract rights, royalties, license rights and all other
forms of obligations owing to Debtor arising out of the sale or lease of goods,
the licensing of technology or the rendering of services by Debtor, whether or
not earned by performance, and any and all credit insurance, insurance
(including refunds) claims and proceeds, guaranties, and other security
therefor, as well as all merchandise returned to or reclaimed by Debtor;
All documents (including negotiable documents), cash, deposit accounts,
securities, securities entitlements, securities accounts, investment property,
financial assets, letters of credit, letter of credit rights, money,
certificates of deposit, instruments (including promissory notes) and chattel
paper (including tangible and electronic chattel paper) now owned or hereafter
acquired and Debtor's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all claims for damages by way of any past, present and
future infringement of any of the foregoing; and
-12-
All Debtor's Books relating to the foregoing, and the computers and
equipment containing said books and records, and any and all claims, rights and
interests in any of the above and all substitutions for, additions and
accessions to and proceeds thereof.
-13-
Schedule A-1
[Intentionally Omitted]
-14-
