Exhibit 10.37
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS
INTELLECTUAL PROPERTY SECURITY AGREEMENT (the “
Agreement ”), dated as of August 31, 2007, is made by
each of DIGITAL ANGEL CORPORATION, a Delaware corporation (“
DOC ”), DIGITAL ANGEL TECHNOLOGY CORPORATION, a
Minnesota corporation (“ DATC ”) and FEARING
MANUFACTURING CO., INC. (“FMC” and together with DOC
and DATC, the “ Grantors ” and each, a “
Grantor ”), in favor of KALLINA CORPORATION (“
Lender ”).
WHEREAS,
pursuant to that certain Security Agreement dated as of the date
hereof by and between Grantors (collectively, the “
Borrowers ”) and Lender (as from time to time amended,
restated, supplemented or otherwise modified, the “
Security Agreement ”), Lender has agreed to provide
financial accommodations to the Borrowers;
WHEREAS,
Lender is willing to enter into the Security Agreement, but only
upon the condition, among others, that each Grantor shall have
executed and delivered to Lender this 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, each
Grantor hereby agrees as follows:
Section 1. DEFINED TERMS .
(a) When
used herein the following terms shall have the following
meanings:
“
Copyrights ” means all copyrights arising under the
laws of the United States, any other country or any political
subdivision thereof, whether registered or unregistered and whether
published or unpublished, all registrations and recordings thereof,
and all applications in connection therewith, including all
registrations, recordings and applications in the United States
Copyright Office, and the right to obtain all renewals of any of
the foregoing.
“
Copyright Licenses ” means all written agreements
naming any Grantor as licensor or licensee, granting any right
under any Copyright, including the grant of rights to manufacture,
distribute, exploit and sell materials derived from any
Copyright.
“
General Intangibles ” shall have the meaning provided
thereto in Section 9-102 of the UCC, as amended, restated or
otherwise modified from time to time.
“
Obligations ” Loans, all advances, debts, liabilities,
obligations, covenants and duties owing by each Company and each of
its Eligible Subsidiaries to Lender (or any corporation that
directly or indirectly controls or is controlled by or is under
common control with Lender), other than those arising under the
Registration Rights Agreement or the Warrant, of every kind and
description (whether or not evidenced by any note or other
instrument and whether or not for the payment of money or the
performance or non-performance of any act), direct or
indirect,
absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, whether existing by operation
of law or otherwise now existing or hereafter arising including any
debt, liability or obligation owing from any Company and/or each of
its Eligible Subsidiaries to others which Lender may have obtained
by assignment or otherwise and further including all interest
(including interest accruing at the then applicable rate provided
in the Security Agreement after the maturity of the Loans and
interest accruing at the then applicable rate provided in the
Security Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, whether or not a claim for post-filing or post-petition
interest is allowed or allowable in such proceeding), charges or
any other payments each Company and each of its Eligible
Subsidiaries is required to make by law or otherwise arising under
or as a result of the Security Agreement, the Ancillary Agreements
(other than the Registration Rights Agreement or the Warrant) or
otherwise, together with all reasonable expenses and reasonable
attorneys’ fees chargeable to the Companies’ or any of
their Eligible Subsidiaries’ accounts or incurred by Lender
in connection therewith.
“
Patents ” means (a) all letters patent of the
United States, any other country or any political subdivision
thereof, and all reissues and extensions of such letters patent,
(b) all applications for letters patent of the United States
or any other county and all divisions, continuations and
continuations-in-part thereof, and (c) all rights to obtain
any reissues or extensions of the foregoing.
“
Patent Licenses ” means all agreements, whether
written or oral, providing for the grant by or to any Grantor of
any right to manufacture, use or sell any invention covered in
whole or in part by a Patent.
“
Trademarks ” means (a) all trademarks, trade
names, corporate names, business names, fictitious business names,
trade styles, services marks, logos and other source or business
identifiers, and all goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in
the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any
other country or political subdivision thereof, or otherwise, and
all common-law rights thereto, and (b) the right to obtain all
renewals thereof.
“
Trademark Licenses ” means, collectively, each
agreement, whether written or oral, providing for the grant by or
to any Grantor of any right to use any Trademark.
“
UCC ” shall have the meaning provided thereto in the
Security Agreement.
(b) All
capitalized terms used but not otherwise defined herein have the
meanings given to them in the Security Agreement.
Section 2. GRANT OF SECURITY INTEREST IN INTELLECTUAL
PROPERTY COLLATERAL . To secure the complete and timely payment
of all the Obligations of such Grantor now or hereafter existing
from time to time, each Grantor hereby grants to Lender a
continuing first priority security interest in all of such
Grantor’s right, title and interest in, to and under the
following, whether presently existing or hereafter created or
acquired (collectively, the “ Collateral
”):
2
(a) all of its Patents and Patent Licenses to which it is a
party including those referred to on Schedule I
hereto;
(b) all of its Trademarks and Trademark Licenses to which it
is a party including those referred to on Schedule II
hereto;
(c) all of its Copyrights and Copyright Licenses to which it
is a party including those referred to on Schedule III
hereto;
(d) all of the Patents, Trademarks and Copyrights identified
in Schedule I , Schedule II and
Schedule III , respectively, that are material to
its
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