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Exhibit 10.3
PATENT SECURITY AGREEMENT
This PATENT
SECURITY AGREEMENT (this "PATENT SECURITY AGREEMENT") is
made this 7th day of April, 2009, among Ivivi Technologies, Inc.
(the
"BORROWER"), and Emigrant Capital Corp. (together with its
successors and
assigns, if any, the "SECURED PARTY").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant
to that certain Loan Agreement, dated as of April 7,
2009 (as amended, restated, supplemented or otherwise modified from
time to
time, the "LOAN AGREEMENT"), among the Borrower, as borrower, and
the Secured
Party, as lender, the Secured Party is willing to make certain
financial
accommodations available to the Borrower pursuant to the terms and
conditions
thereof;
WHEREAS, the
Lender is willing to make the financial accommodations to
the Borrower as provided for in the Loan Agreement, but only upon
the condition,
among others, that the Borrower shall have executed and delivered
to the Secured
Party that certain Security Agreement, dated as of April 7, 2009
(including all
annexes, exhibits or schedules thereto, as from time to time
amended, restated,
supplemented or otherwise modified, the "SECURITY AGREEMENT");
and
WHEREAS, pursuant
to the Security Agreement, the Borrower is required
to execute and deliver to the Secured Party this Patent 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, the Borrower hereby
agrees as
follows:
1. DEFINED TERMS.
All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or
the Loan
Agreement.
2. GRANT OF
SECURITY INTEREST IN PATENT COLLATERAL. The Borrower hereby
grants to the Secured Party a continuing first priority security
interest
(subject to Permitted Liens) in all of the Borrower's right, title
and interest
in, to and under the following, whether presently existing or
hereafter created
or acquired (collectively, the "PATENT COLLATERAL"):
(a) all of its Patents and Patent Intellectual Property
Licenses to which it is a party including those referred to on
SCHEDULE I
hereto;
(b) all reissues, continuations or extensions of the
foregoing; and
(c) all products and proceeds of the foregoing, including any
claim by the Borrower against third p arties for past, present or
future
infringement of any Patent or any right to receive license fees,
royalties, and
other compensation under any Intellectual Property License.
3. SECURITY FOR
OBLIGATIONS. This Patent Security Agreement and the
Security Interest created hereby secures the payment and
performance of all the
Secured Obligations, whether now existing or arising hereafter.
Without limiting
the generality of the foregoing, this Patent Security Agreement
secures the
payment of all amounts which constitute part of the Secured
Obligations and
would be owed by the Borrower to the Secured Party whether or not
they are
unenforceable or not allowable due to the existence of an
Insolvency Proceed
