EXHIBIT 10.6
INTELLECTUAL PROPERTY SECURITY
AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY
AGREEMENT, dated as of September 19, 2008, is made by Biovest
International, Inc., a Delaware corporation (“ Grantor
”), in favor of the holders of the Grantor’s 15%
Convertible Debentures due March 31, 2010 in the original
aggregate principal amount not to exceed $5,000,000 (each as
amended, modified, supplemented and/or restated from time to time,
collectively, the “ Debentures ”) signatory
hereto, their endorsees, transferees and assigns (the “
Secured Parties ”).
W I T N E S S E T H:
WHEREAS, pursuant to the Debentures
the Secured Parties provide or will provide certain financial
accommodations to the Grantor; and
WHEREAS, Secured Parties are willing
to purchase one or more Debentures, but only upon the condition,
among others, that Grantor shall have executed and delivered to the
Secured Parties, this Intellectual Property 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, Grantor hereby agrees as
follows:
1. DEFINED TERMS . All
capitalized terms used but not otherwise defined herein shall have
the meanings given to them in that certain Security Agreement dated
as of the date hereof (as amended, modified, supplemented and/or
restated from time to time) among the Grantor and Secured
Parties.
2. GRANT OF SECURITY INTEREST IN
INTELLECTUAL PROPERTY COLLATERAL . To secure the complete and
timely payment of all the Obligations of Grantor now or hereafter
existing from time to time, Grantor hereby pledges and grants to
Secured Parties a continuing first priority security interest in
all of Grantor’s right, title and interest in, to and under
the following, whether presently existing or hereafter created or
acquired (collectively, the “ Intellectual Property
Collateral ”):
(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 reissues, continuations or
extensions of the foregoing;
(e) all goodwill of the business
connected with the use of, and symbolized by, each Patent, each
Patent License, each Trademark, each Trademark License, each
Copyright and each Copyright License; and
(f) all products and proceeds of the
foregoing, including, without limitation, any claim by Grantor
against third parties for past, present or future
(i) infringement or dilution of any Patent or Patent licensed
under any Patent License, (ii) injury to the goodwill
associated with any Patent or any Patent licensed under any Patent
License, (iii) infringement or dilution of any Trademark or
Trademark licensed under any Trademark License, (iv) injury to
the goodwill associated with any Trademark or any Trademark
licensed under any Trademark License, (v) infringement or
dilution of any Copyright or Copyright licensed under any Copyright
License, and (vi) injury to the goodwill associated with any
Copyright or any Copyright licensed under any Copyright
License.
3. REPRESENTATIONS AND
WARRANTIES . Grantor represents and warrants that Grantor does
not have any interest in, or title to, any Patent, Trademark or
Copyright except as set forth in Schedule I, Schedule II and
Schedule III, respectively, hereto. This Intellectual Property
Security Agreement is effective to create a valid and continuing
lien in favor of the Secured Parties in all of Grantor’s
Patents, Trademarks and Copyrights enforceable as such as against
any and all creditors of, and purchasers from, Grantor. Upon filing
of this Intellectual Property Security Agreement with the United
States Patent and Trademark Office, the United States Copyright
Office and the filing of appropriate financing statements with the
Secretary of State for the State of Delaware, all action necessary
or desirable to protect and perfect Secured Parties’ lien on
Grantor’s Patents, Trademarks and Copyrights shall have been
duly taken.
4. COVENANTS . Grantor
covenants and agrees with Secured Parties that from and after the
date of this Intellectual Property Security Agreement and until the
Termination Date:
(a) Grantor shall notify Secured
Parties immediately if it knows or has reason to know that any
application or registration relating to any Patent, Trademark or
Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any adverse determination or development
(including the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court)
regarding Grantor’s ownership of any Patent, Trademark or
Copyright, its right to register the same, or to keep and maintain
the same.
(b) In no event shall Grantor,
either directly or through any agent, employee, licensee or
designee, file an applicat
