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Exhibit 10.4
INTELLECTUAL PROPERTY
SECURITY AGREEMENT
This
INTELLECTUAL PROPERTY SECURITY AGREEMENT (as from time to time
amended, restated, supplemented or otherwise modified, the
“ Agreement
”), dated as of July 11, 2008, is made by TELENATIONAL
COMMUNICATIONS, INC., a Delaware corporation
(“Grantor”), in favor of LV ADMINISTRATIVE
SERVICES CORP., as administrative and collateral agent for the
Creditor Parties (as defined in the Security Agreement
referred to below) (the “ Agent
”).
WHEREAS,
pursuant to that certain Security Agreement dated as of March
31, 2008 by and among Grantor, Rapid Link, Incorporated
(“ Rapid
Link ”), One Ring Networks, Inc. (“
One
Ring ” and together with Grantor and Rapid Link,
collectively, the “ Borrowers
”), the Agent and the Lenders (as defined therein) (as
amended, restated, supplemented and/or otherwise modified from
time to time, the “ Security
Agreement ”), the Lenders have agreed to provide
financial accommodations to Borrowers;
WHEREAS,
Creditor Parties are willing to provide financial
accommodations to the Borrowers in accordance with the
Security Agreement only upon the condition, among others, that
Grantor shall have executed and delivered to Agent 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, Grantor hereby agrees as follows:
Section
1.
DEFINED TERMS;
RULES OF CONSTRUCTION .
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(a)
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Capitalized
terms used in this Agreement but not otherwise defined herein have
the meanings given to them in the Security Agreement.
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(b)
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When
used herein the following terms shall have the following
meanings:
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“
Copyrights
” means all copyrights arising or protected 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whether published or unpublished, all registrations and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 therefor, and all applications in connection
therewith, including but not limited to all registrations,
recordings and applications in the United States Copyright
Office, any State, or any similar office or agency of the
United States, any State, any other country or political
subdivision, or any other registry.
“
Copyright
Licenses ” means all agreements pursuant to which
Grantor is licensor or licensee, granting any right under any
Copyright, including but not limited to, rights to
manufacture, reproduce, display, distribute, perform, modify
or otherwise exploit, and sell materials embodying or derived
from, any Copyrighted work.
“
Intellectual
Property ” means any and all of the following,
throughout the world: Patents, Trademarks,
Copyrights, mask works, designs, trade secrets, information,
databases, rights of publicity, software, and any other
proprietary rights and processes; any licenses to use any of
the foregoing owned by a third party including Patent
Licenses, Trademark Licenses and Copyright Licenses; and
registrations, applications and recordings pertaining to any
of the foregoing on any registry;
“
Obligations
” shall have the meaning provided thereto in the
Security Agreement.
“
PTO
” means the United States Patent and Trademark Office
and any successor office or agency.
“
Patents
” means all patents issued by the PTO, any similar
office or agency of the United States, any State, or any other
country or political subdivision or other registry, all
recordings thereof, and all applications
therefor.
“
Patent
Licenses ” means all agreements pursuant to which
Grantor is licensor or licensee, granting any right to
manufacture, have made, import, use, or sell any invention
covered in whole or in part by a Patent.
“
Trademarks
” means all trademarks, trade names, corporate names,
business names, fictitious business names, Internet Domain
Names, trade styles, services marks, logos and other source or
business identifiers, arising or protected under the laws of
the United States, any State any other country or political
subdivision thereof, whether registered or unregistered, and
all goodwill connected with the use of and symbolized thereby,
all registrations and recordings thereof, and all applications
therefor, in the PTO, in any similar office or agency of the
United States, any State, any other country or political
subdivision, any Internet Domain Name registrar, or any other
registry.
“
Trademark
Licenses ” mean all agreements pursuant to which
Grantor is licensor or licensee, granting any right to use a
Trademark.
“
UCC
” shall have the meaning provided thereto in the
Security Agreement.
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(c)
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All
Schedules, Addenda, Annexes and Exhibits hereto or expressly
identified to this Agreement are incorporated herein by reference
and taken together with this Agreement constitute but a single
agreement. The words “herein”,
“hereof” and “hereunder” or other words of
similar import refer to this Agreement as a whole, including the
Exhibits, Addenda, Annexes and Schedules thereto, as the same may
be from time to time amended, modified, restated or supplemented,
and not to any particular section, subsection or clause contained
in this Agreement. Wherever from the context it appears
appropriate, each term stated in either the singular or plural
shall include the singular and the plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. The term
“or” is not exclusive. The term
“including” (or any form thereof) shall not be limiting
or exclusive. All references to statutes and related
regulations shall include any amendments of same and any successor
statutes and regulations. All references in this
Agreement or in the Schedules, Addenda, Annexes and Exhibits to
this Agreement to sections, schedules, disclosure schedules,
exhibits, and attachments shall refer to the corresponding
sections, schedules, disclosure schedules, exhibits, and
attachments of or to this Agreement. All references to
any instruments or agreements, including references to any of this
Agreement or the Ancillary Agreements shall include any and all
modifications or amendments thereto and any and all extensions or
renewals thereof.
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(d)
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The
parties acknowledge that each party and its counsel have reviewed
this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement
or any amendments, schedules or exhibits thereto.
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(e)
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In
the event of an irreconcilable conflict between the terms of this
Agreement and the terms of the Security Agreement, the Agent shall
have the right to determine which Agreement shall govern with
respect to each such conflict.
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Section
2.
GRANT OF
SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL
. To secure the prompt payment to the Creditor
Parties of the Obligations of the Grantor now or hereafter
existing from time to time, Grantor hereby pledges and grants
to the Agent, for the ratable benefit of the Creditor Parties,
a continuing security interest in and Lien upon all of
Grantor’s right, title and interest in, to and under the
following, whether presently existing or hereafter created or
acquired (collectively, the “ Collateral
”):
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(a)
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Trademarks
and Trademark Licenses to which it is a party including those
referred to on Schedule I
hereto;
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(b)
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Patents
and Patent Licenses to which it is a party, including those
referred to on Schedule II
hereto;
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(c)
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Copyrights
and Copyright Licenses to which it is a party, including those
referred to on Schedule III
hereto;
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(d)
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Intellectual
Property not covered by the foregoing, including those referred to
on Schedule IV
hereto;
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(e)
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Renewals,
reissues, continuations, divisions, or extensions of any of the
foregoing;
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(f)
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Rights
to sue third parties for past, present or future infringement,
dilution, misappropriation, or other violation of rights in any
Intellectual Property, including injury to the goodwill associated
with any Trademark, and all causes of action for the
same:
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(g)
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All
products and Proceeds of all or any of the foregoing, tort claims
and all claims and other rights to
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