Exhibit
10.10
INTELLECTUAL
PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT (as the same may from
time to time be amended, restated or otherwise modified, this
“Agreement”) is made as of the 30 th day of July, 2007, by
MEDIABISTRO.COM INC., a Delaware corporation
(“Pledgor”), in favor of KEYBANK NATIONAL ASSOCIATION,
as the administrative agent under the Credit Agreement, as
hereinafter defined (“Agent”), for the benefit of the
Lenders, as hereinafter defined.
1. Recitals
.
JUPITERMEDIA CORPORATION, a Delaware corporation (together with its
successors and assigns, “Borrower”), entered into that
certain Credit and Security Agreement, dated as of July 12,
2007, with the lenders from time to time listed on Schedule
1 thereto (together with their respective successors and
assigns and any other additional lenders that become party to the
Credit Agreement, collectively, the “Lenders” and,
individually, each a “Lender”), Agent, and Citizens
Bank, N.A., as the syndication agent (as the same may from time to
time be amended, restated or otherwise modified, the “Credit
Agreement”). Pledgor desires that the Lenders grant to
Borrower the financial accommodations as described in the Credit
Agreement.
Pledgor, a subsidiary of Borrower whose financing is provided by
the Loans and Letters of Credit, as each term is defined in the
Credit Agreement, deems it to be in the direct pecuniary and
business interests of Pledgor that Borrower obtain from the Lenders
the Commitment, as defined in the Credit Agreement, and the Loans
and Letters of Credit, as each term is defined in the Credit
Agreement, provided for in the Credit Agreement.
Pledgor understands that the Lenders are willing to grant such
financial accommodations to Borrower only upon certain terms and
conditions, one of which is that Pledgor grant to Agent, for the
benefit of the Lenders, a security interest in the Collateral, as
hereinafter defined, and this Agreement is being executed and
delivered in consideration of the Lenders entering into the Credit
Agreement and each financial accommodation granted to Borrower by
the Lenders and for other valuable consideration.
2.
Definitions . Except as specifically defined
herein, (a) capitalized terms used herein that are defined in
the Credit Agreement shall have their respective meanings ascribed
to them in the Credit Agreement, and (b) unless otherwise
defined in the Credit Agreement, terms that are defined in the
U.C.C. are used herein as so defined. As used in this Agreement,
the following terms shall have the following meanings:
“Assignment” means an Assignment in the form of
Exhibit A attached hereto.
“Collateral” means, collectively, all of
Pledgor’s existing and future right, title and interest in,
to and under (a) industrial designs, patents, patent
registrations, patent applications, trademarks, trademark
registrations, trademark applications, service marks, trade names,
and copyright registrations and other intellectual property or
registrations, whether federal, state or foreign, including, but
not limited to, those that are registered or pending as listed on
Schedule 1
hereto (as such
Schedule 1 may from time to time be amended, supplemented or
otherwise modified); (b) common law trademark rights,
copyrights, improvements, confidential information and inventions;
(c) renewals, continuations, extensions, reissues and
divisions of any of the foregoing; (d) rights to sue for past,
present and future infringements or any other commercial tort
claims relating to any of the foregoing; (e) all licenses and
all income, revenue and royalties with respect to any licenses,
whether registered or unregistered and all other payments earned
under contract rights relating to any of the foregoing;
(f) all general intangibles and all intangible intellectual or
similar property of Pledgor connected with and symbolized by any of
the foregoing; (g) goodwill associated with any of the
foregoing; (h) all payments under insurance, including the
returned premium upon any cancellation of insurance (whether or not
Agent or any Lender is the loss payee thereof) or any indemnity,
warranty or guaranty payable by reason of loss or damage to or
otherwise with respect to any of the foregoing; and
(i) Proceeds of any of the foregoing.
“Event of Default” means an event or condition that
constitutes an Event of Default, as defined in Section 8
hereof.
“ITU Application” shall mean a trademark application
filed with the USPTO pursuant to 15 U.S.C. § 1051(b).
“Obligations” means, collectively, (a) all
Indebtedness and other obligations now owing or hereafter incurred
by Borrower to Agent, the Fronting Lender, the Swing Line Lender or
any Lender pursuant to the Credit Agreement, and includes the
principal of and interest on all Loans and all obligations pursuant
to Letters of Credit; (b) each renewal, extension,
consolidation or refinancing of any of the foregoing, in whole or
in part; (c) all interest from time to time accruing on any of
the foregoing, and all fees and other amounts payable to Agent or
any Lender pursuant to the Credit Agreement or any other Loan
Document; (d) all obligations and liabilities of the Companies
owing to Lenders under Hedge Agreements; (e) the Bank Product
Obligations owing to Lenders under Bank Product Agreements;
(f) every other liability, now or hereafter owing to Agent or
any Lender by any Company or Pledgor pursuant to the Credit
Agreement or any other Loan Document; and (g) all Related
Expenses.
“Trademark Act” shall mean the U.S Trademark Act of
1946, as amended.
“USCO” means the United States Copyright Office in
Washington, D.C.
“USPTO” means the United States Patent and Trademark
Office in Washington D.C.
3. Grant of
Assignment and Security Interest . In consideration
of and as security for the full and complete payment of all of the
Obligations, Pledgor hereby agrees that Agent shall at all times
have, and hereby grants to Agent, for the benefit of the Lenders, a
security interest in all of the Collateral, including (without
limitation) all of Pledgor’s future Collateral, irrespective
of any lack of knowledge by Agent or the Lenders of the creation or
acquisition thereof. Pledgor, Agent and the Lenders hereby
acknowledge and agree that, with respect to any ITU Application
included within the Collateral, to the extent such an ITU
Application would, under the Trademark Act, be deemed to be
transferred in violation of 15 U.S.C. § 1060(a) as a result of
the
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security interest
granted herein, or otherwise invalidated or made unenforceable as a
result of the execution or performance of this Agreement, no
security interest shall be deemed to have been granted in such ITU
Application (notwithstanding the provisions of this Agreement or
any other Loan Document) until such time as the circumstances that
would give rise to such violation, invalidation or unenforceability
no longer exist.
4.
Representations and Warranties . Pledgor hereby
represents and warrants to Agent and each Lender as follows:
4.1. Pledgor owns all of the Collateral
and, whether the same are registered or unregistered, no such
Collateral has been adjudged invalid or unenforceable.
4.2. The Collateral is valid and
enforceable.
4.3. Except as disclosed on Schedule
4 hereto of the Credit Agreement, Pledgor has no knowledge of
any material claim that the use of any of the Collateral does or
may violate the rights of any Person.
4.4. Except for liens expressly permitted
pursuant to Section 5.9 of the Credit Agreement, Pledgor is
the sole and exclusive owner of the entire and unencumbered right,
title and interest in and to the Collateral, free and clear of any
liens, charges and encumbrances, including, without limitation,
pledges, assignments, licenses, registered user agreements and
covenants by Pledgor not to sue third Persons.
4.5. Pledgor has full power, authority and
legal right to pledge the Collateral and enter into this Agreement
and perform its terms.
4.6. Pledgor has used, and shall continue
to use, for the duration of this Agreement, proper statutory notice
in connection with its use of the Collateral, except where the
failure to do so will not have a Material Adverse Effect.
5. Further
Assignment Prohibited . Pledgor shall not enter
into any agreement that is inconsistent with Pledgor’s
obligations under this Agreement and shall not otherwise sell or
assign its interest in, or grant any license or sublicense with
respect to, any of the Collateral, without Agent’s prior
written consent except in the ordinary course of business. Absent
such prior written consent, any attempted sale or license is null
and void.
6. Right to
Inspect . Upon reasonable notice to Pledgor from
Agent, Pledgor hereby grants to Agent, for the benefit of the
Lenders, and its employees and agents the right, during regular
business hours, to visit any location of Pledgor or, if applicable,
any other location, and to inspect the products and quality control
records relating thereto at Pledgor’s expense.
7. Standard
Patent and Trademark Use . Pledgor shall not
knowingly use any material Collateral in any manner that would
materially jeopardize the validity or legal status thereof. Pledgor
shall comply with all patent marking requirements as specified in
35 U.S.C. §287. Pledgor shall use commercially reasonable
efforts to conform its usage of any trademarks
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to standard trademark
usage, including, but not limited to, using the trademark symbols
® , ™,
and SM where
appropriate.
8. Event of
Default .
8.1. The occurrence of an Event of Default,
as defined in the Credit Agreement, shall constitute an Event of
Default.
8.2. Pledgor expressly acknowledges that
Agent, on behalf of the Lenders, shall record this Agreement with
the USCO and the USPTO, as appropriate. Contemporaneously herewith,
Pledgor shall execute and deliver to Agent the Assignment, which
Assignment shall have no force and effect and shall be held by
Agent in escrow until the occurrence of an Event of Default;
provided, that, anything herein to the contrary notwithstanding,
the security i
