INTELLECTUAL PROPERTY SECURITY AGREEMENTIntellectual Property IP Rights Security Agreement |
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MOBILEPRO CORP | AMERICAN FIBER NETWORK, INC | CLOSECALLAMERICA, INC | Cornell Capital Partners, LP | DAVEL ACQUISITION CORP | DAVEL COMMUNICATIONS GROUP, INC | DAVEL COMMUNICATIONS, INC | DAVEL FINANCING COMPANY, LLC | PEOPLES TELEPHONE COMPANY, INC | PHONETEL TECHNOLOGIES, INC | PROGAMES NETWORK, INC | TELALEASING ENTERPRISES, INC | YA Global Investments, LP. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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INTELLECTUAL PROPERTY SECURITY
AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT
(this
“
Agreement ”),
dated as of June 30, 2008, by (i) MobilePro Corp., a Delaware
corporation (the “
Company ”),
and (ii) each subsidiary and affiliate of the Company listed
on
Schedule I attached
hereto (the “
Subsidiaries ,”
and collectively with the Company, the “
Grantors ”)
in favor of YA Global Investments, L.P. (f/k/a Cornell Capital
Partners, L.P.) (the “
Secured Party ”).
RECITALS:
A.
Reference
is made to (a) the Global Security Agreement, dated as of the
date hereof, between the Grantors and the Secured Party (as
may be amended and supplemented from time to time, the
“
Security Agreement ”);
and (b) the Global Guaranty Agreement, dated as of the date hereof,
among the Grantors, as guarantors, and the Secured Party as may be
amended and supplemented from time to time, the “
Guaranty Agreement ”)
.
B.
The
Secured Party has extended financial accommodations to certain
Grantors, pursuant to the Secured Convertible Debentures or
otherwise, and the Grantors will each directly benefit from
the extension of such financial accommodation as part of the
affiliated business operations of the Grantors; each Grantor
acknowledges that without this Agreement, the Secured Party
would not be willing to enter into the transaction documents
related to such financial accommodations.
C.
Each
Grantor has determined that the execution, delivery and
performance of this Agreement directly benefits, and is in the
best interest of, such Grantor.
NOW THEREFORE ,
in consideration of the mutual covenants, agreements, warranties,
and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions.
(a)
Generally .
All references herein to the UCC shall mean the Uniform Commercial
Code as in effect from time to time in the State of New
Jersey;
provided ,
however ,
that if a term is defined in Article 9 of the UCC differently than
in another Article thereof, the term shall have the meaning set
forth in Article 9;
provided
further that,
if by reason of mandatory provisions of law, perfection, or the
effect of perfection or non-perfection, of the security interest in
any IP Collateral or the availability of any remedy hereunder is
governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New Jersey, then “
UCC ”
means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non-perfection or
availability of such remedy, as the case may be.
(b)
Definition of Certain Terms Used Herein .
Unless the context otherwise requires, all capitalized terms used
but not defined in this Agreement, including its preamble and
recitals, shall have the meanings set forth in the Security
Agreement. In addition, as used herein, the following terms shall
have the following meanings:
1
“
Copyrights ”
shall mean all copyrights, copyright applications and like
protections in each work of authorship or derivative work thereof
of the Grantors, whether registered or unregistered, whether
published or unpublished and whether or not constitute a trade
secret, including, without limitation, the United States copyright
registrations listed on
EXHIBIT A annexed
hereto and made a part hereof, and symbolized by, any of the
foregoing.
“
Copyright Licenses ”
shall mean all agreements, whether written or oral, providing for
the grant by or to the Grantors of any right under any Copyright,
including, without limitation, the agreements listed on
EXHIBIT A
annexed
hereto and made a part hereof.
“
Copyright Office ”
shall mean the United States Copyright Office or any other federal
governmental agency which may hereafter perform its
functions.
“
IP Collateral ”
shall have the meaning assigned to such term in Section 2 of this
Agreement.
“
Licenses ”
shall mean, collectively, the Copyright Licenses, Patent Licenses,
Trademark Licenses, and any other license providing for the grant
by or to the Grantors of any right under any IP
Collateral.
“
Patents ”
shall mean all patents and applications for patents of the
Grantors, and the inventions and improvements therein disclosed,
and any and all divisions, revisions, reissues and continuations,
continuations-in-part, extensions, and reexaminations of said
patents including, without limitation, the United States patent
registrations listed on
EXHIBIT B annexed
hereto and made a part hereof.
“
Patent Licenses ”
shall mean all agreements, whether written or oral, providing for
the grant by or to the Grantors of any right under any Patent,
including, without limitation, the agreements listed on
EXHIBIT B
annexed
hereto and made a part hereof.
“
PTO ”
shall mean the United States Patent and Trademark Office or any
other federal governmental agency which may hereafter perform its
functions.
“
Trademarks ”
shall mean all trademarks, trade names, corporate names, company
names, domain names, business names, fictitious business names,
trade dress, trade styles, service marks, designs, logos and other
source or business identifiers of the Grantors, whether registered
or unregistered, including, without limitation, the United States
trademark registrations listed on
EXHIBIT C annexed
hereto and made a part hereof, together with any goodwill of the
business connected with, and symbolized by, any of the
foregoing.
“
Trademark Licenses ”
shall mean all agreements, whether written or oral, providing for
the grant by or to the Grantors of any right under any Trademark,
including, without limitation, the agreements listed on
EXHIBIT C
annexed
hereto and made a part hereof.
2
SECTION 2.
Grant of Security Interest. In
furtherance and as confirmation of the security interest granted by
the Grantors to the Secured Party under the Security Agreement, and
as further security for the payment or performance in full of the
Obligations, each Grantor hereby grants to the Secured Party a
continuing security interest, with a power of sale (which power of
sale shall be exercisable only following the occurrence and during
the continuance of an Event of Default), in all of the present and
future right, title and interest of such Grantor in and to the
following property, and each item thereof, whether now owned or
existing or hereafter acquired or arising, together with all
products, proceeds, substitutions, and accessions of or to any of
the following property (collectively, the “
IP Collateral ”):
(b)
All
Patents and Patent Licenses;
(c)
All
Trademarks and Trademark Licenses ;
(d)
All
other Licenses;
(e)
All
renewals of any of the foregoing;
(f)
All
trade secrets, know-how and other proprietary information;
works of authorship and other copyright works (including
copyrights for computer programs), and all tangible and
intangible property embodying the foregoing; inventions
(whether or not patentable) and all improvements thereto;
industrial design applications and registered industrial
designs; books, records, writings, computer tapes or disks,
flow diagrams, specification sheets, computer software, source
codes, object codes, executable code, data, databases, and
other physical manifestations, embodiments or incorporations
of any of the foregoing, and any Licenses in any of the
foregoing, and all other IP Collateral and proprietary
rights;
(g)
All
General Intangibles connected with the use of, or related to,
any and all IP Collateral (including, without limitation, all
goodwill of each Grantor and its business, products and
services appurtenant to, associated with, or symbolized by,
any and all IP Collateral and the use thereof);
(h)
All
income, royalties, damages and payments now and hereafter due
and/or payable under and with respect to any of the foregoing,
including, without limitation, payments under all Licenses
entered into in connection therewith and damages and payments
for past or future infringements, misappropriations or
dilutions thereof;
(i)
The
right to sue for past, present and future infringements,
misappropriations, and dilutions of any of the foregoing;
and
(j)
All
of the Grantors’ rights corresponding to any of the
foregoing throughout the world.
SECTION 3.
Protection of IP Collateral By Grantors .
Except as set forth below in this Section 3, the
Grantors shall undertake the following with respect to each of the
items respectively described in Sections 2(a), (b), (c), (d), (e),
(f) and (g):
3
(a)
Pay
all renewal fees and other fees and costs associated with
maintaining the IP Collateral and with the processing and
prosecution of the IP Collateral and take all other steps
reasonably necessary to maintain each registration of the IP
Collateral.
(b)
Take
all actions reasonably necessary to prevent any of the IP
Collateral from becoming forfeited, abandoned, dedicated to
the public, invalidated or impaired in any way.
(c)
At
the Grantors’ sole cost, expense, and risk, pursue the
processing and prosecution of each application for
registration which is the subject of the security interest
created herein and not abandon or delay any such
efforts.
(d)
At
the Grantors’ sole cost, expense, and risk, take any and
all action which the Grantors reasonably deem necessary or
desirable under the circumstances to protect the IP Collateral
from infringement, misappropriation or dilution, including,
without limitation, the prosecution and defense of
infringement actions.
SECTION 4.
Grantors’ Representations and Warranties
.
In addition to any representations and warranties contained in any
of the other Transaction Documents (other than the Prior Debt
Documents, but only to the extent amended or otherwise modified by
the other Transaction Documents), each Grantor represents and
warrants that:
(i)
EXHIBIT A is
a true, correct and complete list of all United States Copyright
registrations owned by each Grantor and all Copyright Licenses to
which such Grantor is a party as of the date hereof.
(ii)
EXHIBIT B is
a true, correct and complete list of all United States Patents
owned by each Grantor and all Patent Licenses to which such Grantor
is a party as of the date hereof.
(iii)
EXHIBIT C is
a true, correct and complete list of all United States Trademark
registrations owned by each Grantor and all Trademark Licenses to
which such Grantor is a party as of the date hereof.
(iv)
Except
as set forth in
EXHIBITS A ,
B
and
C ,
none of the IP Collateral owned by a Grantor is the subject of any
licensing or franchise agreement pursuant to which such Grantor is
the licensor or franchisor as of the date hereof.
(v)
The
Grantors shall not transfer or otherwise encumber any interest
in the IP Collateral, except for (i) non-exclusive licenses
granted by a Grantor in the ordinary course of business, as
set forth in this Agreement, or (ii) Permitted
Liens.
(vi)
Each
Grantor owns, or is licensed to use, all IP Collateral in
connection with the conduct of its business. No claim has been
asserted and is pending by any person challenging or
questioning the use by a Grantor of any of its IP Collateral,
or the validity or effectiveness of any of its IP Collateral.
Each Grantor considers that the use by such Grantor of the IP
Collateral does not infringe the rights of any person in any
material respect. No holding, decision or judgment has been
rendered by any governmental authority which would limit,
cancel or question the validity of, or a Grantor’s
rights in, any IP Collateral in any material
respect.
4
(vii)
Performance
of this Agreement does not conflict with or result in a breach
of any material agreement to which any Grantor is
bound.
(viii)
Each
Grantor shall give the Secured Party prompt written notice,
with reasonable detail, following the occurrence of any of the
following:
(A)
Each
Grantor’s obtaining rights to, or being issued a
registration in or receiving an issuance of, any new IP
Collateral, or otherwise acquiring ownership of any registered
IP Collateral (other than the acquisition by a Grantor of the
right to sell products containing the trademarks of others in
the ordinary course of such Grantor’s
business).
(B)
Each
Grantor’s becoming entitled to the benefit of any
registered IP Collateral whether as licensee or licensor
(other than commercially available off the shelf computer
programs, products or applications and a Grantor’s right
to sell products containing
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