PLEDGE AND SECURITY AGREEMENT
EXECUTION
COPY
PLEDGE AND SECURITY AGREEMENT,
dated as of July 16, 2010 (this "Agreement"), made by SouthPeak Interactive
Corporation, a Delaware corporation ("SouthPeak" or the "Company"), and each of its
existing "Subsidiaries" (as defined in the Securities Purchase Agreement defined
below) as named on the signature pages hereto (collectively, the "Existing Subsidiaries") and
each other Subsidiary of SouthPeak hereafter becoming party hereto (together
with SouthPeak and the Existing Subsidiaries, each a "Grantor" and, collectively,
the "Grantors"), in
favor of CNH Diversified
Opportunities Master Account, L.P., in its capacity as collateral agent
(in such capacity, the "Collateral Agent") for the
Buyers (as defined below) party to the Securities Purchase Agreement, dated as
of even date herewith (as amended, restated or otherwise modified from time to
time, the "Securities Purchase
Agreement").
WITNESSETH:
WHEREAS,
SouthPeak and each party listed as a "Buyer" on the Schedule of Buyers (as such
schedule may be amended, restated or otherwise modified from time to time)
attached thereto, each a "Buyer", and collectively, the
"Buyers") are parties to
the Securities Purchase Agreement, pursuant to which SouthPeak shall be required
to sell, and the Buyers shall purchase or have the right to purchase, the "Notes" (as defined in the
Securities Purchase Agreement);
WHEREAS,
the Buyers and the Collateral Agent have required that the Existing Subsidiaries
execute a Guaranty and this Agreement;
WHEREAS,
it is a condition precedent to the Buyers entering into the Securities Purchase
Agreement that SouthPeak shall have executed and delivered to the Collateral
Agent this Agreement providing for the grant to the Collateral Agent for the
benefit of the Buyers of a security interest in all personal property of
SouthPeak to secure all of SouthPeak's obligations under the Securities Purchase
Agreement and the "Notes" (as defined therein) issued pursuant thereto (as such
Notes may be amended, restated, replaced or otherwise modified from time to time
in accordance with the terms thereof, collectively, the "Notes");
WHEREAS,
each of the Existing Subsidiaries is a wholly-owned Subsidiary of SouthPeak and
will derive substantial benefits from the execution of the Securities Purchase
Agreement;
WHEREAS,
each of the Existing Subsidiaries, SouthPeak and each other Grantor (i) are or
will be mutually dependent on each other in the conduct of their respective
businesses as an integrated operation, with the credit needed from time to time
by one often being provided through financing obtained by the other and the
ability to obtain such financing being dependent on the successful operations of
each of the Existing Subsidiaries, SouthPeak and each other Grantor and (ii)
will receive a mutual benefit from the proceeds received by SouthPeak in respect
of the issuance of the Notes;
WHEREAS,
it is a condition precedent to the Buyers entering into the Securities Purchase
Agreement that each of the Existing Subsidiaries shall have granted to the
Collateral Agent for the benefit of the Buyers a security interest in all
personal property of each of the Existing Subsidiaries to secure SouthPeak's
obligations under the Securities Purchase Agreement and the Notes, and that each
future Subsidiary of SouthPeak becomes a party to this Agreement;
and
WHEREAS,
each of the Existing Subsidiaries and each other Grantor has determined that the
execution, delivery and performance of this Agreement directly benefits, and are
in the best interest of SouthPeak; and
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Buyers to perform under the Securities Purchase Agreement,
each Grantor agrees with the Collateral Agent, for the benefit of the Buyers, as
follows:
SECTION
1. Definitions.
(a) Reference
is hereby made to the Securities Purchase Agreement and the Notes for a
statement of the terms thereof. All terms used in this Agreement and
the recitals hereto which are defined in the Securities Purchase Agreement, the
Notes or in Articles 8 or 9 of the Uniform Commercial Code (the "Code") as in effect from time
to time in the State of New York, and which are not otherwise defined herein
shall have the same meanings herein as set forth therein; provided that terms
used herein which are defined in the Code as in effect in the State of New York
on the date hereof shall continue to have the same meaning notwithstanding any
replacement or amendment of such statute except as the Collateral Agent may
otherwise determine.
(b) The
following terms shall have the respective meanings provided for in the
Code: "Accounts", "Cash Proceeds", "Chattel Paper", "Commercial Tort
Claim", "Commodity Account", "Commodity Contracts", "Deposit Account",
"Documents", "Equipment", "Fixtures", "General Intangibles", "Goods",
"Instruments", "Inventory", "Investment Property", "Letter-of-Credit Rights",
"Noncash Proceeds", "Payment Intangibles", "Proceeds", "Promissory Notes",
"Security", "Record", "Security Account", "Software", and "Supporting
Obligations".
(c) As
used in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and
plural forms of such terms:
"Collateral" shall have the
meaning set forth in Section 2
hereof.
"Copyright Licenses" means all
licenses, contracts or other agreements, whether written or oral, naming any
Grantor as licensee or licensor and providing for the grant of any right to use
or sell any works covered by any copyright (including, without limitation, all
Copyright Licenses set forth in Schedule II
hereto).
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"Copyrights" means all domestic
and foreign copyrights, whether registered or not, including, without
limitation, all copyright rights throughout the universe (whether now or
hereafter arising) in any and all media (whether now or hereafter developed), in
and to all original works of authorship fixed in any tangible medium of
expression, acquired or used by any Grantor (including, without limitation, all
copyrights described in Schedule II hereto),
all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Copyright Office or in any similar office or agency of the United States or any
other country or any political subdivision thereof), and all reissues,
divisions, continuations, continuations in part and extensions or renewals
thereof.
"Event of Default" means (i) any defined
event of default under any one or more of the Transaction Documents, in each
instance, after giving effect to any notice, grace, or cure periods provided for
in the applicable Transaction Document, (ii) the failure by SouthPeak to pay any
amounts when due under the Notes or any other Transaction Document, or (iii) the
breach of any representation, warranty or covenant by any Grantor under this
Agreement.
"Existing Issuer" has the
meaning specified therefor in the definition of the term "Pledged
Shares".
"Guaranty" means the Guaranty,
dated as of the date hereof, by the Existing Subsidiaries in favor of the Buyers
and the Collateral Agent.
"Insolvency Proceeding" means
any proceeding commenced by or against any Person under any provision of the
Bankruptcy Code (Chapter 11 of Title 11 of the United States Code) or under
any other bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, or extensions generally
with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief.
"Intellectual Property" means
the Copyrights, Trademarks and Patents.
"Licenses" means the Copyright
Licenses, the Trademark Licenses and the Patent Licenses.
"Lien" means any mortgage, deed
of trust, pledge, lien (statutory or otherwise), security interest, charge or
other encumbrance or security or preferential arrangement of any nature,
including, without limitation, any conditional sale or title retention
arrangement, any capitalized lease and any assignment, deposit arrangement or
financing lease intended as, or having the effect of, security.
"Obligations" shall have the
meaning set forth in Section 3
hereof.
"Patent Licenses" means all
licenses, contracts or other agreements, whether written or oral, naming any
Grantor as licensee or licensor and providing for the grant of any right to
manufacture, use or sell any invention covered by any Patent (including, without
limitation, all Patent Licenses set forth in Schedule II
hereto).
"Patents" means all domestic
and foreign letters patent, design patents, utility patents, industrial designs,
inventions, trade secrets, ideas, concepts, methods, techniques, processes,
proprietary information, technology, know-how, formulae, rights of publicity and
other general intangibles of like nature, of any Grantor, now existing or
hereafter acquired (including, without limitation, all domestic and foreign
letters patent, design patents, utility patents, industrial designs, inventions,
trade secrets, ideas, concepts, methods, techniques, processes, proprietary
information, technology, know-how and formulae described in Schedule
II hereto), all applications, registrations and recordings thereof
(including, without limitation, applications, registrations and recordings in
the United States Patent and Trademark Office, or in any similar office or
agency of the United States or any other country or any political subdivision
thereof), and all reissues, divisions, continuations, continuations in part and
extensions or renewals thereof.
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"Permitted Liens" means (i) any
Lien for taxes not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with GAAP, (ii) any Lien created by operation of law, such as
materialmen's liens, mechanics' liens and other similar liens, arising in the
ordinary course of business with respect to a liability that is not yet due or
delinquent or that are being contested in good faith by appropriate proceedings,
(iii) Liens granted hereunder securing the Obligations; (iv) Liens granted in
favor of Xxxxxxxxx & Xxxxxxxxx, Inc. ("Xxxxxxxxx") securing the
Grantors' obligations under the Factoring Agreement with Xxxxxxxxx, dated as of
July 7, 2010 (the "Factoring
Agreement"), and (v) leases or subleases and licenses and sublicenses
granted to others in the ordinary course of the Grantors' business, not
interfering in any material respect with the business of a Grantor.1
"Pledged Debt" means the
indebtedness described in Schedule VII hereto and all indebtedness from time to
time owned or acquired by a Grantor, the promissory notes and other Instruments
evidencing any or all of such indebtedness, and all interest, cash, Instruments,
Investment Property, financial assets, securities, capital stock, other equity
interests, stock options and commodity contracts, notes, debentures, bonds,
promissory notes or other evidences of indebtedness and all other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such indebtedness.
"Pledged Interests" means,
collectively, (a) the Pledged Debt, (b) the Pledged Shares and (c) all security
entitlements in any and all of the foregoing.
"Pledged Issuer" has the
meaning specified therefor in the definition of the term "Pledged
Shares".
"Pledged Shares" means (a) the
shares of capital stock or other equity interests described in Schedule VIII
hereto, whether or not evidenced or represented by any stock certificate,
certificated security or other Instrument, issued by the Persons described in
such Schedule VIII (the "Existing Issuers"),
(b) the shares of capital stock or other equity interests at any time and from
time to time acquired by a Grantor of any and all Persons now or hereafter
existing (such Persons, together with the Existing Issuers, being hereinafter
referred to collectively as the "Pledged Issuers" and
each individually as a "Pledged Issuer"),
whether or not evidenced or represented by any stock certificate, certificated
security or other Instrument, and (c) the certificates representing such shares
of capital stock, all options and other rights, contractual or otherwise, in
respect thereof and all dividends, distributions, cash, Instruments, Investment
Property, financial assets, securities, capital stock, other equity interests,
stock options and commodity contracts, notes, debentures, bonds, promissory
notes or other evidences of indebtedness and all other property (including,
without limitation, any stock dividend and any distribution in connection with a
stock split) from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such capital stock.
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Please
advise what other "Existing Notes" (as defined in the prior markup) would
be outstanding after the closing date. It is our understanding
that any shareholder notes are either being converted or refinanced with
proceeds of the Notes at
closing.
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"Trademark Licenses" means all
licenses, contracts or other agreements, whether written or oral, naming any
Grantor as licensor or licensee and providing for the grant of any right
concerning any Trademark, together with any goodwill connected with and
symbolized by any such trademark licenses, contracts or agreements and the right
to prepare for sale or lease and sell or lease any and all Inventory now or
hereafter owned by any Grantor and now or hereafter covered by such licenses
(including, without limitation, all Trademark Licenses described in Schedule II
hereto).
"Trademarks" means all domestic
and foreign trademarks, service marks, collective marks, certification marks,
trade names, business names, d/b/a's, Internet domain names, trade styles,
designs, logos and other source or business identifiers and all general
intangibles of like nature, now or hereafter owned, adopted, acquired or used by
any Grantor (including, without limitation, all domestic and foreign trademarks,
service marks, collective marks, certification marks, trade names, business
names, d/b/a's, Internet domain names, trade styles, designs, logos and other
source or business identifiers described in Schedule II hereto),
all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any state thereof or any other country or any political subdivision
thereof), and all reissues, extensions or renewals thereof, together with all
goodwill of the business symbolized by such marks and all customer lists,
formulae and other Records of any Grantor relating to the distribution of
products and services in connection with which any of such marks are
used.
SECTION
2. Grant of Security
Interest. As collateral security for all of the Obligations,
each Grantor hereby pledges and assigns to the Collateral Agent for the benefit
of the Buyers, and grants to the Collateral Agent for the benefit of the Buyers
a continuing security interest in, all personal property of such Grantor,
wherever located and whether now or hereafter existing and whether now owned or
hereafter acquired, of every kind and description, tangible or intangible
(collectively, the "Collateral"), including,
without limitation, the following:
(a) all
Accounts;
(b) all
Chattel Paper (whether tangible or electronic);
(c) the
Commercial Tort Claims specified on Schedule VI
hereto;
(d) all
Deposit Accounts (including, without limitation, all cash, and all other
property from time to time deposited therein and the monies and property in the
possession or under the control of the Collateral Agent or a Buyer or any
affiliate, representative, agent or correspondent of the Collateral Agent or a
Buyer;
(e) all
Documents;
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(f)
all Equipment;
(g) all
Fixtures;
(h) all
General Intangibles (including, without limitation, all Payment
Intangibles);
(i)
all Goods;
(j)
all Instruments (including, without limitation, Promissory
Notes and each certificated Security);
(k) all
Inventory;
(l)
all Investment Property;
(m) all
Copyrights, Patents and Trademarks, and all Licenses;
(n) all
Letter-of-Credit Rights;
(o) all
Supporting Obligations;
(p) all
Pledged Interests;
(q) all
other tangible and intangible personal property of such Grantor (whether or not
subject to the Code), including, without limitation, all bank and other accounts
and all cash and all investments therein, all proceeds, products, offspring,
accessions, rents, profits, income, benefits, substitutions and replacements of
and to any of the property of such Grantor described in the preceding clauses of
this Section 2
(including, without limitation, any proceeds of insurance thereon and all causes
of action, claims and warranties now or hereafter held by such Grantor in
respect of any of the items listed above), and all books, correspondence, files
and other Records, including, without limitation, all tapes, desks, cards,
Software, data and computer programs in the possession or under the control of
such Grantor or any other Person from time to time acting for such Grantor that
at any time evidence or contain information relating to any of the property
described in the preceding clauses of this Section 2 or are
otherwise necessary or helpful in the collection or realization thereof;
and
(r) all
Proceeds, including all Cash Proceeds and Noncash Proceeds, and products of any
and all of the foregoing Collateral;
in each
case howsoever such Grantor's interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
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SECTION
3. Security for
Obligations. The security interest created hereby in the
Collateral constitutes continuing collateral security for all of the following
obligations, whether now existing or hereafter incurred (collectively, the
"Obligations"):
(a) the
prompt payment by each Grantor, as and when due and payable (by scheduled
maturity, required prepayment, acceleration, demand or otherwise), of all
amounts from time to time owing by it in respect of the Securities Purchase
Agreement, the Notes, the Guaranty and the other Transaction Documents,
including, without limitation, (A) all principal of and interest on the Notes
(including, without limitation, all interest that accrues after the commencement
of any Insolvency Proceeding of any Grantor, whether or not the payment of such
interest is unenforceable or is not allowable due to the existence of such
Insolvency Proceeding), (B) all amounts from time to time owing by such Grantor
under the Guaranty, and (C) all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any of the
Transaction Documents; and
(b) the
due performance and observance by each Grantor of all of its other obligations
from time to time existing in respect of any of the Transaction Documents for so
long as the Notes are outstanding.
SECTION
4. Representations and
Warranties. Each Grantor represents and warrants as
follows:
(a) Schedule I hereto
sets forth (i) the exact legal name of such Grantor, and (ii) the organizational
identification number of such Grantor or states that no such organizational
identification number exists.
(b) There
is no pending or written notice threatening any action, suit, proceeding or
claim affecting such Grantor before any governmental authority or any
arbitrator, or any order, judgment or award by any governmental authority or
arbitrator, that may adversely affect the grant by such Grantor, or the
perfection, of the security interest purported to be created hereby in the
Collateral, or the exercise by the Collateral Agent of any of its rights or
remedies hereunder.
(c) All
Federal, state and local tax returns and other reports required by applicable
law to be filed by such Grantor have been filed, or extensions have been
obtained, and all taxes, assessments and other governmental charges imposed upon
such Grantor or any property of such Grantor (including, without limitation, all
federal income and social security taxes on employees' wages) and which have
become due and payable on or prior to the date hereof have been paid, except to
the extent contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or Lien resulting from the non-payment thereof
and with respect to which adequate reserves have been set aside for the payment
thereof in accordance with generally accepted accounting principles consistently
applied ("GAAP").
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(d) All
Equipment, Fixtures, Goods and Inventory of such Grantor now existing are, and
all Equipment, Fixtures, Goods and Inventory of such Grantor hereafter existing
will be, located and/or based at the addresses specified therefor in Schedule III hereto,
except that such Grantor will give the Collateral Agent not less than 30 days'
prior written notice of any change of the location of any such Collateral, other
than to locations set forth on Schedule III and with
respect to which the Collateral Agent has filed financing statements and
otherwise fully perfected its Liens thereon. Such Grantor's chief
place of business and chief executive office, the place where such Grantor keeps
its Records concerning Accounts and all originals of all Chattel Paper are
located at the addresses specified therefor in Schedule III
hereto. None of the Accounts is evidenced by Promissory Notes or
other Instruments. Set forth in Schedule IV hereto is
a complete and accurate list, as of the date of this Agreement, of (i) each
Promissory Note, Security and other Instrument owned by each Grantor and (ii)
each Deposit Account, Securities Account and Commodities Account of each
Grantor, together with the name and address of each institution at which each
such Account is maintained, the account number for each such Account and a
description of the purpose of each such Account. Set forth in Schedule II hereto is
a complete and correct list of each trade name used by each Grantor and the name
of, and each trade name used by, each person from which such Grantor has
acquired any substantial part of the Collateral.
(e) Such
Grantor has delivered or made available to the Collateral Agent complete and
correct copies of each License described in Schedule II hereto,
including all schedules and exhibits thereto, which represents all of the
Licenses existing on the date of this Agreement. Each such License
sets forth the entire agreement and understanding of the parties thereto
relating to the subject matter thereof, and there are no other agreements,
arrangements or understandings, written or oral, relating to the matters covered
thereby or the rights of such Grantor or any of its affiliates in respect
thereof. Each material License now existing is, and any material
License entered into in the future will be, the legal, valid and binding
obligation of the parties thereto, enforceable against such parties in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or in law). No default under any material License
by any such party has occurred, nor does any defense, offset, deduction or
counterclaim exist thereunder in favor of any such party.
(f) Such
Grantor owns and controls, or otherwise possesses adequate rights to use, all
Trademarks, Patents and Copyrights, which are the only trademarks, patents,
copyrights, inventions, trade secrets, proprietary information and technology,
know-how, formulae, rights of publicity necessary to conduct its business in
substantially the same manner as conducted as of the date
hereof. Schedule II hereto
sets forth a true and complete list of all registered copyrights, issued
patents, Trademarks (including, without limitation, any Internet domain names
and the registrar of each such Internet domain name), and Licenses annually
owned or used by such Grantor as of the date hereof. To the best
knowledge of each Grantor, all such Intellectual Property of such Grantor is
subsisting and in full force and effect, has not been adjudged invalid or
unenforceable, is valid and enforceable and has not been abandoned in whole or
in part. Except as set forth in Schedule II, no such Intellectual
Property is the subject of any licensing or franchising
agreement. Such Grantor has no knowledge of any conflict with the
rights of others to any Intellectual Property and, to the best knowledge of such
Grantor, such Grantor is not now infringing or in conflict with any such rights
of others in any material respect, and to the best knowledge of such Grantor, no
other Person is now infringing or in conflict in any material respect with any
such properties, assets and rights owned or used by such
Grantor. Such Grantor has not received any notice that it is
violating or has violated the trademarks, patents, copyrights, inventions, trade
secrets, proprietary information and technology, know-how, formulae, rights of
publicity or other intellectual property rights of any third
party.
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(g) Such
Grantor is and will be at all times the sole and exclusive owner of, or
otherwise has and will have adequate rights in, the Collateral free and clear of
any Liens, except for Permitted Liens on any Collateral. No effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording or filing office except
(A) such as may have been filed in favor of the Collateral Agent relating
to this Agreement, and (B) such as may have been filed to perfect any
Permitted Liens.
(h) The
exercise by the Collateral Agent of any of its rights and remedies hereunder
will not contravene any law or any contractual restriction binding on or
otherwise affecting such Grantor or any of its properties and will not result in
or require the creation of any Lien, upon or with respect to any of its
properties.
(i) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other regulatory body, or any other Person, is
required for (i) the grant by such Grantor, or the perfection, of the
security interest purported to be created hereby in the Collateral, or
(ii) the exercise by the Collateral Agent of any of its rights and remedies
hereunder, except (A) for the filing under the Uniform Commercial Code as
in effect in the applicable jurisdiction of the financing statements, all of
which financing statements, have been duly filed and are in full force and
effect, (B) with respect to the perfection of the security interest created
hereby in the Intellectual Property, for the recording of the appropriate
Assignment for Security, substantially in the form of Exhibit A hereto, as
applicable, in the United States Patent and Trademark Office or the United
States Copyright Office, as applicable, and (C) with respect to the
perfection of the security interest created hereby in foreign Intellectual
Property and Licenses, for registrations and filings in jurisdictions located
outside of the United States and covering rights in such jurisdictions relating
to the Intellectual Property and Licenses.
(j) This
Agreement creates in favor of the Collateral Agent a legal, valid and
enforceable security interest in the Collateral, as security for the
Obligations. The Collateral Agent's having possession of all
Instruments and cash constituting Collateral from time to time, the recording of
the appropriate Assignment for Security executed pursuant hereto in the United
States Patent and Trademark Office and the United States Copyright Office, as
applicable, and the filing of the financing statements and the other filings and
recordings, as applicable, described in Schedule V hereto
and, with respect to the Intellectual Property hereafter existing and not
covered by an appropriate Assignment for Security, the recording in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, of appropriate instruments of assignment, result in the perfection
of such security interests. Such security interests are, or in the
case of Collateral in which such Grantor obtains rights after the date hereof,
will be, perfected, first priority security interests, subject only to Permitted
Liens and the recording of such instruments of assignment. Such
recordings and filings and all other action necessary or desirable to perfect
and protect such security interest have been duly taken, except for the
Collateral Agent's having possession of Instruments and cash constituting
Collateral after the date hereof and the other filings and recordations
described in Section
4(l) hereof.
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(k) As
of the date hereof, such Grantor does not hold any Commercial Tort Claims nor is
aware of any such pending claims, except for such claims described in Schedule
VI.
(l) Each
of the Existing Subsidiaries is a wholly-owned Subsidiary of SouthPeak and are
the only Subsidiaries of SouthPeak, as of the date hereof.
SECTION
5. Covenants as to the
Collateral. So long as any of the Obligations shall remain
outstanding, unless the Collateral Agent shall otherwise consent in
writing:
(a) Further
Assurances. Each Grantor will at its expense, at any time and
from time to time, promptly execute and deliver all further instruments and
documents and take all further action that the Collateral Agent may reasonably
request in order to: (i) perfect and protect the security
interest purported to be created hereby; (ii) enable the Collateral Agent
to exercise and enforce its rights and remedies hereunder in respect of the
Collateral; or (iii) otherwise effect the purposes of this Agreement,
including, without limitation: (A) marking conspicuously all
Chattel Paper and each License and, at the request of the Collateral Agent, each
of its Records pertaining to the Collateral with a legend, in form and substance
satisfactory to the Collateral Agent, indicating that such Chattel Paper,
License or Collateral is subject to the security interest created hereby,
(B) delivering and pledging to the Collateral Agent hereunder each
Promissory Note, Security, Chattel Paper or other Instrument, now or hereafter
owned by such Grantor, duly endorsed and accompanied by executed instruments of
transfer or assignment, all in form and substance satisfactory to the Collateral
Agent, (C) executing and filing (to the extent, if any, that such Grantor's
signature is required thereon) or authenticating the filing of, such financing
or continuation statements, or amendments thereto, as may be necessary or
desirable or that the Collateral Agent may request in order to perfect and
preserve the security interest purported to be created hereby,
(D) furnishing to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral in each case as the Collateral Agent
may reasonably request, all in reasonable detail, (E) if any Collateral
shall be in the possession of a third party, notifying such Person of the
Collateral Agent's security interest created hereby and obtaining a written
acknowledgment from such Person that such Person holds possession of the
Collateral for the benefit of the Collateral Agent, which such written
acknowledgement shall be in form and substance satisfactory to the Collateral
Agent, (F) if at any time after the date hereof, such Grantor acquires or
holds any Commercial Tort Claim, promptly notifying the Collateral Agent in a
writing signed by such Grantor setting forth a brief description of such
Commercial Tort Claim and granting to the Collateral Agent a security interest
therein and in the proceeds thereof, which writing shall incorporate the
provisions hereof and shall be in form and substance satisfactory to the
Collateral Agent, (G) upon the acquisition after the date hereof by such
Grantor of any motor vehicle or other Equipment subject to a certificate of
title or ownership (other than a Motor Vehicle or Equipment that is subject to a
purchase money security interest), causing the Collateral Agent to be listed as
the lienholder on such certificate of title or ownership and delivering evidence
of the same to the Collateral Agent in accordance with the Securities Purchase
Agreement; and (H) taking all actions required by any earlier versions of
the Uniform Commercial Code or by other law, as applicable, in any relevant
Uniform Commercial Code jurisdiction, or by other law as applicable in any
foreign jurisdiction.
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(b) Location of Equipment and
Inventory. Each Grantor will keep the Equipment and Inventory
at the locations specified therefor in Section 4(g)
hereof or, upon not less than thirty (30) days' prior written notice to the
Collateral Agent accompanied by a new Schedule V hereto
indicating each new location of the Equipment and Inventory, at such other
locations in the United States.
(c) Condition of
Equipment. Each Grantor will maintain or cause the Equipment
(necessary or useful to its business) to be maintained and preserved in good
condition, repair and working order, ordinary wear and tear excepted, and will
forthwith, or in the case of any loss or damage to any Equipment of such Grantor
within a commercially reasonable time after the occurrence thereof, make or
cause to be made all repairs, replacements and other improvements in connection
therewith which are necessary or desirable, consistent with past practice, or
which the Collateral Agent may reasonably request to such end. Such
Grantor will promptly furnish to the Collateral Agent a statement describing in
reasonable detail any such loss or damage in excess of $25,000 to any
Equipment.
(d) Taxes,
Etc. Each Grantor agrees to pay promptly when due all property
and other taxes, assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and supplies) against, the
Equipment and Inventory, except to the extent the validity thereof is being
contested in good faith by proper proceedings which stay the imposition of any
penalty, fine or Lien resulting from the non-payment thereof and with respect to
which adequate reserves in accordance with GAAP have been set aside for the
payment thereof.
(e) Insurance.
(i) Each
Grantor will, at its own expense, maintain insurance (including, without
limitation, commercial general liability and property insurance) with respect to
the Equipment and Inventory in such amounts, against such risks, in such form
and with responsible and reputable insurance companies or associations as is
required by any governmental authority having jurisdiction with respect thereto
or as is carried by such Grantor as of the date hereof and in any event, in
amount, adequacy and scope reasonably satisfactory to the Collateral
Agent. Each such policy for liability insurance shall provide for all
losses to be paid on behalf of the Collateral Agent and such Grantor as their
respective interests may appear, and each policy for property damage insurance
shall provide for all losses to be adjusted with, and paid directly to, the
Collateral Agent. Each such policy shall in addition (A) name the
Collateral Agent as an additional insured party thereunder (without any
representation or warranty by or obligation upon the Collateral Agent) as their
interests may appear, (B) contain an agreement by the insurer that any loss
thereunder shall be payable to the Collateral Agent on its own account
notwithstanding any action, inaction or breach of representation or warranty by
such Grantor, (C) provide that there shall be no recourse against the Collateral
Agent for payment of premiums or other amounts with respect thereto, and (D)
provide that at least 30 days' prior written notice of cancellation, lapse,
expiration or other adverse change shall be given to the Collateral Agent by the
insurer. Such Grantor will, if so requested by the Collateral Agent,
deliver to the Collateral Agent original or duplicate policies of such insurance
and, as often as the Collateral Agent may reasonably request, a report of a
reputable insurance broker with respect to such insurance. Such
Grantor will also, at the request of the Collateral Agent, execute and deliver
instruments of assignment of such insurance policies and cause the respective
insurers to acknowledge notice of such assignment.
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(ii) Reimbursement
under any liability insurance maintained by a Grantor pursuant to this Section 5(e) may be
paid directly to the Person who shall have incurred liability covered by such
insurance. In the case of any loss involving damage to Equipment or
Inventory, any proceeds of insurance maintained by a Grantor pursuant to this
Section 5(e)
shall be paid to the Collateral Agent (except as to which paragraph (iii) of
this Section
5(e) is not applicable), such Grantor will make or cause to be made the
necessary repairs to or replacements of such Equipment or Inventory, and any
proceeds of insurance maintained by such Grantor pursuant to this Section 5(e) shall be
paid by the Collateral Agent to such Grantor as reimbursement for the costs of
such repairs or replacements.
(iii) All
insurance payments in respect of such Equipment or Inventory shall be paid to
the Collateral Agent and applied as specified in Section 7(b)
hereof.
(f) Provisions Concerning the
Accounts and the Licenses.
(i) Each
Grantor will (A) give the Collateral Agent at least 30 days' prior written
notice of any change in such Grantor's name, identity or organizational
structure, (B) maintain its jurisdiction of incorporation as set forth in Section 4(b) hereto,
(C) immediately notify the Collateral Agent upon obtaining an organizational
identification number, if on the date hereof such Grantor did not have such
identification number, and (D) keep adequate records concerning the Accounts and
Chattel Paper and permit representatives of the Collateral Agent during normal
business hours on reasonable notice to such Grantor, to inspect and make
abstracts from such Records and Chattel Paper.
(ii) Each
Grantor will, except as otherwise provided in this subsection (f), continue
to collect, at its own expense, all amounts due or to become due under the
Accounts. In connection with such collections, such Grantor may (and,
at the Collateral Agent's direction, will) take such action as such Grantor or
the Collateral Agent may deem necessary or advisable to enforce collection or
performance of the Accounts; provided, however, that the
Collateral Agent shall have the right at any time, upon the occurrence and
during the continuance of an Event of Default, to notify the account debtors or
obligors under any Accounts of the assignment of such Accounts to the Collateral
Agent and to direct such account debtors or obligors to make payment of all
amounts due or to become due to such Grantor thereunder directly to the
Collateral Agent or its designated agent and, upon such notification and at the
expense of such Grantor and to the extent permitted by law, to enforce
collection of any such Accounts and to adjust, settle or compromise the amount
or payment thereof, in the same manner and to the same extent as such Grantor
might have done. After receipt by a Grantor of a notice from the
Collateral Agent that the Collateral Agent has notified, intends to notify, or
has enforced or intends to enforce a Grantor's rights against the account
debtors or obligors under any Accounts as referred to in the proviso to the
immediately preceding sentence, (A) all amounts and proceeds (including
Instruments) received by such Grantor in respect of the Accounts shall be
received in trust for the benefit of the Collateral Agent hereunder, shall be
segregated from other funds of such Grantor and shall be forthwith paid over to
the Collateral Agent in the same form as so received (with any necessary
endorsement) to be held as cash collateral and applied as specified in Section 7(b) hereof,
and (B) such Grantor will not adjust, settle or compromise the amount or payment
of any Account or release wholly or partly any account debtor or obligor thereof
or allow any credit or discount thereon. In addition, upon the
occurrence and during the continuance of an Event of Default, the Collateral
Agent may (in its sole and absolute discretion) direct any or all of the banks
and financial institutions with which such Grantor either maintains a Deposit
Account or a lockbox or deposits the proceeds of any Accounts to send
immediately to the Collateral Agent by wire transfer (to such account as the
Collateral Agent shall specify, or in such other manner as the Collateral Agent
shall direct) all or a portion of such securities, cash, investments and other
items held by such institution. Any such securities, cash,
investments and other items so received by the Collateral Agent shall (in the
sole and absolute discretion of the Collateral Agent) be held as additional
Collateral for the Obligations or distributed in accordance with Section 7
hereof. The provisions of this Section 5(f)(ii) shall be subject to
the rights and obligations of the Company and Xxxxxxxxx under the Factoring
Agreement and that certain Subordination and Intercreditor Agreement dated July
__, 2010, by and among the Company, Xxxxxxxxx, the Collateral Agent and the
Buyers.
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(iii) Upon
the occurrence and during the continuance of any breach or default under any
material License referred to in Schedule II hereto by
any party thereto other than a Grantor, the Grantor party thereto will, promptly
after obtaining knowledge thereof, give the Collateral Agent written notice of
the nature and duration thereof, specifying what action, if any, it has taken
and proposes to take with respect thereto and thereafter will take reasonable
steps to protect and preserve its rights and remedies in respect of such breach
or default, or will obtain or acquire an appropriate substitute
License.
(iv) Each
Grantor will, at its expense, promptly deliver to the Collateral Agent a copy of
each notice or other communication received by it by which any other party to
any material License referred to in Schedule II hereto
purports to exercise any of its rights or affect any of its obligations
thereunder, together with a copy of any reply by such Grantor
thereto.
(v) Each
Grantor will exercise promptly and diligently each and every right which it may
have under each material License (other than any right of termination) and will
duly perform and observe in all respects all of its obligations under each
material License and will take all action reasonably necessary to maintain such
Licenses in full force and effect. No Grantor will, without the prior
written consent of the Collateral Agent, cancel, terminate, amend or otherwise
modify in any respect, or waive any provision of, any material License referred
to in Schedule
II hereto.
(g) Transfers and Other
Liens.
(i) No
Grantor will sell, assign (by operation of law or otherwise), lease, license,
exchange or otherwise transfer or dispose of any of the Collateral, except (A)
Inventory in the ordinary course of business, (B) worn-out or obsolete assets
not necessary to the business, and (C) Accounts solely in accordance with the
terms and conditions of the Factoring Agreement.
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(ii) No
Grantor will create, suffer to exist or grant any Lien upon or with respect to
any Collateral other than a Permitted Lien.
(h) Intellectual
Property.
(i) If
applicable, each Grantor shall, upon the Collateral Agent's written request,
duly execute and delivered the applicable Assignment for Security in the form
attached hereto as Exhibit
A. Each Grantor (either itself or through licensees) will, and
will cause each licensee thereof to, take all action necessary to maintain all
of the Intellectual Property in full force and effect, including, without
limitation, using the proper statutory notices and markings and using the
Trademarks on each applicable trademark class of goods in order to so maintain
the Trademarks in full force and free from any claim of abandonment for non-use,
and such Grantor will not (nor permit any licensee thereof to) do any act or
knowingly omit to do any act whereby any Intellectual Property may become
invalidated; provided, however, that so long
as no Event of Default has occurred and is continuing, such Grantor shall not
have an obligation to use or to maintain any Intellectual Property (A) that
relates solely to any product or work, that has been, or is in the process of
being, discontinued, abandoned or terminated, (B) that is being replaced with
Intellectual Property substantially similar to the Intellectual Property that
may be abandoned or otherwise become invalid, so long as the failure to use or
maintain such Intellectual Property does not materially adversely affect the
validity of such replacement Intellectual Property and so long as such
replacement Intellectual Property is subject to the Lien created by this
Agreement or (C) that is substantially the same as another Intellectual Property
that is in full force, so long the failure to use or maintain such Intellectual
Property does not materially adversely affect the validity of such replacement
Intellectual Property and so long as such other Intellectual Property is subject
to the Lien and security interest created by this Agreement. Each
Grantor will cause to be taken all necessary steps in any proceeding before the
United States Patent and Trademark Office and the United States Copyright Office
or any similar office or agency in any other country or political subdivision
thereof to maintain each registration of the Intellectual Property (other than
the Intellectual Property described in the proviso to the immediately preceding
sentence), including, without limitation, filing of renewals, affidavits of use,
affidavits of incontestability and opposition, interference and cancellation
proceedings and payment of maintenance fees, filing fees, taxes or other
governmental fees in the ordinary course of business. If any
Intellectual Property (other than Intellectual Property described in the proviso
to the first sentence of subsection (i) of this clause (h)) is infringed,
misappropriated, diluted or otherwise violated in any material respect by a
third party, such Grantor shall (x) upon learning of such infringement,
misappropriation, dilution or other violation, promptly notify the Collateral
Agent and (y) to the extent such Grantor shall deem appropriate under the
circumstances, promptly xxx for infringement, misappropriation, dilution or
other violation, seek injunctive relief where appropriate and recover any and
all damages for such infringement, misappropriation, dilution or other
violation, or take such other actions as such Grantor shall deem appropriate
under the circumstances to protect such Intellectual Property. Each
Grantor shall furnish to the Collateral Agent from time to time upon its request
statements and schedules further identifying and describing the Intellectual
Property and Licenses and such other reports in connection with the Intellectual
Property and Licenses as the Collateral Agent may reasonably request, all in
reasonable detail and promptly upon request of the Collateral Agent, following
receipt by the Collateral Agent of any such statements, schedules or reports,
such Grantor shall modify this Agreement by amending Schedule II hereto,
as the case may be, to include any Intellectual Property and License, as the
case may be, which becomes part of the Collateral under this Agreement and shall
execute and authenticate such documents and do such acts as shall be necessary
or, in the judgment of the Collateral Agent, desirable to subject such
Intellectual Property and Licenses to the Lien and security interest created by
this Agreement. Notwithstanding anything herein to the contrary, upon
the occurrence and during the continuance of an Event of Default, such Grantor
may not abandon or otherwise permit any Intellectual Property to become invalid
without the prior written consent of the Collateral Agent, and if any
Intellectual Property is infringed, misappropriated, diluted or otherwise
violated in any material respect by a third party, such Grantor will take such
action as the Collateral Agent shall deem appropriate under the circumstances to
protect such Intellectual Property.
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(ii) In
no event shall a Grantor, either itself or through any agent, employee, licensee
or designee, file an application for the registration of any Trademark or
Copyright or the issuance of any Patent with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, or in any
similar office or agency of the United States or any country or any political
subdivision thereof unless it gives the Collateral Agent prior written notice
thereof. Upon request of the Collateral Agent, each Grantor shall
execute, authenticate and deliver any and all assignments, agreements,
instruments, documents and papers as the Collateral Agent may reasonably request
to evidence the Collateral Agent's security interest hereunder in such
Intellectual Property and the General Intangibles of such Grantor relating
thereto or represented thereby, and such Grantor hereby appoints the Collateral
Agent its attorney-in-fact to execute and/or authenticate and file all such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed, and such power (being coupled with an interest) shall be
irrevocable until the complete conversion of all of the Company's obligations
under the Notes to equity securities of the Company and/or indefeasible payment
in full in cash of all obligations under the Notes (together with any matured
indemnification obligations as of the date of such conversion and/or payment,
but excluding any inchoate or unmatured contingent indemnification
obligations).
(iii) Upon
the Collateral Agent's request, each Grantor shall cause each domain registrar
where any of such Grantor's Internet domain names are registered, whether as of
the date of this Agreement or at any time hereafter, to execute and deliver to
the Collateral Agent a domain name control agreement, in form and substance
reasonably satisfactory to the Collateral Agent, duly executed by such Grantor
and such domain registrar, or enter into other arrangements in form and
substance satisfactory to the Collateral Agent, pursuant to which such domain
registrar shall irrevocably agree, inter alia, that (i) it
will comply at any time with the instructions originated by the Collateral Agent
to such domain registrar directing substitution of the Collateral Agent or its
designee as the registered owner of such Internet domain names, without further
consent of such Grantor, which instructions the Collateral Agent will not give
to such domain registrar in the absence of a continuing Event of
Default.
-15-
(i) Deposit, Commodities and
Securities Accounts. Upon the Collateral Agent's request, each
Grantor shall cause each bank and other financial institution with an account
referred to in Schedule IV hereto to
execute and deliver to the Collateral Agent a control agreement, in form and
substance reasonably satisfactory to the Collateral Agent, duly executed by such
Grantor and such bank or financial institution, or enter into other arrangements
in form and substance satisfactory to the Collateral Agent, pursuant to which
such institution shall irrevocably agree, inter alia, that
(i) it will comply at any time with the instructions originated by the
Collateral Agent to such bank or financial institution directing the disposition
of cash, Commodity Contracts, securities, Investment Property and other items
from time to time credited to such account, without further consent of such
Grantor, which instructions the Collateral Agent will not give to such bank or
other financial institution in the absence of a continuing Event of Default,
(ii) all cash, Commodity Contracts, securities, Investment Property and
other items of such Grantor deposited with such institution shall be subject to
a perfected, first priority security interest in favor of the Collateral Agent,
(iii) any right of set off, banker's Lien or other similar Lien, security
interest or encumbrance shall be fully waived as against the Collateral Agent,
and (iv) upon receipt of written notice from the Collateral Agent during
the continuance of an Event of Default, such bank or financial institution shall
immediately send to the Collateral Agent by wire transfer (to such account as
the Collateral Agent shall specify, or in such other manner as the Collateral
Agent shall direct) all such cash, the value of any Commodity Contracts,
securities, Investment Property and other items held by it. Without
the prior written consent of the Collateral Agent, such Grantor shall not make
or maintain any Deposit Account, Commodity Account or Securities Account except
for the accounts set forth in Schedule IV
hereto. The provisions of this paragraph 5(i) shall not apply to (i)
Deposit Accounts for which the Collateral Agent is the depositary and (ii)
Deposit Accounts specially and exclusively used for payroll, payroll taxes and
other employee wage and benefit payments to or for the benefit of a Grantor's
salaried employees.
(j) Motor
Vehicles.
(i) Upon
the Collateral Agent's written request, each Grantor shall deliver to the
Collateral Agent originals of the certificates of title or ownership for all
motor vehicles owned by it with the Collateral Agent listed as lienholder, for
the benefit of the Buyers.
(ii) Each
Grantor hereby appoints the Collateral Agent as its attorney-in-fact, effective
the date hereof and terminating upon the termination of this Agreement, for the
purpose of (A) executing on behalf of such Grantor title or ownership
applications for filing with appropriate state agencies to enable motor vehicles
now owned or hereafter acquired by such Grantor to be retitled and the
Collateral Agent listed as lienholder thereof, (B) filing such applications with
such state agencies, and (C) executing such other documents and instruments on
behalf of, and taking such other action in the name of, such Grantor as the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof (including, without limitation, for the purpose of creating in favor of
the Collateral Agent a perfected Lien on the motor vehicles and exercising the
rights and remedies of the Collateral Agent hereunder). This
appointment as attorney-in-fact is coupled with an interest and is irrevocable
until the complete conversion of all of the Company's obligations under the
Notes to equity securities of the Company and/or indefeasible payment in full in
cash of all obligations under the Notes (together with any matured
indemnification obligations as of the date of such conversion and/or payment,
but excluding any inchoate or unmatured contingent indemnification
obligations).
(iii) Any
certificates of title or ownership delivered pursuant to the terms hereof shall
be accompanied by odometer statements for each motor vehicle covered
thereby.
-16-
(iv) So
long as no Event of Default shall have occurred and be continuing, upon the
request of such Grantor, the Collateral Agent shall execute and deliver to such
Grantor such instruments as such Grantor shall reasonably request to remove the
notation of the Collateral Agent as lienholder on any certificate of title for
any motor vehicle; provided, however, that any
such instruments shall be delivered, and the release effective, only upon
receipt by the Collateral Agent of a certificate from such Grantor stating that
such motor vehicle is to be sold or has suffered a casualty loss (with title
thereto passing to the casualty insurance company therefor in settlement of the
claim for such loss) and the amount that such Grantor will receive as sale
proceeds or insurance proceeds. Any proceeds of such sale or casualty
loss shall be paid to the Collateral Agent hereunder immediately upon receipt,
to be applied to the Obligations then outstanding.
(k) Control. Each
Grantor hereby agrees to take any or all action that may be necessary or
desirable or that the Collateral Agent may request in order for the Collateral
Agent to obtain control in accordance with Sections 9-105 – 9-107 of the Code
with respect to the following Collateral: (i) Electronic Chattel
Paper, (ii) Investment Property, (iii) Pledged Interests and (iv)
Letter-of-Credit Rights.
(l)
Inspection and
Reporting. Each Grantor shall permit the Collateral Agent, or
any agent or representatives thereof or such professionals or other Persons as
the Collateral Agent may designate, not more than once a year in the absence of
an Event of Default, (i) to examine and make copies of and abstracts from
such Grantor's records and books of account, (ii) to visit and inspect its
properties, (iii) to verify materials, leases, Instruments, Accounts,
Inventory and other assets of such Grantor from time to time, (iii) to
conduct audits, physical counts, appraisals and/or valuations, examinations at
the locations of such Grantor. Each Grantor shall also permit the
Collateral Agent, or any agent or representatives thereof or such professionals
or other Persons as the Collateral Agent may designate to discuss such Grantor's
affairs, finances and accounts with any of its officers subject to the execution
by the Collateral Agent or its designee(s) of a mutually agreeable
confidentiality agreement.
(m) Future
Subsidiaries. If any Grantor shall hereafter create or acquire
any Subsidiary, simultaneously with the creation of acquisition of such
Subsidiary, such Grantor shall cause such Subsidiary to become a party to this
Agreement as an additional "Grantor" hereunder, and to duly execute and/or
deliver such opinions of counsel and other documents, in form and substance
acceptable to the Collateral Agent, as the Collateral Agent shall reasonably
request with respect thereto.
SECTION
6. Additional Provisions
Concerning the Collateral.
(a) Each
Grantor hereby (i) authorizes the Collateral Agent to file one or more
Uniform Commercial Code financing or continuation statements, and amendments
thereto, relating to the Collateral and (ii) ratifies such authorization to
the extent that the Collateral Agent has filed any such financing or
continuation statements, or amendments thereto, prior to the date
hereof. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
-17-
(b) Each
Grantor hereby irrevocably appoints the Collateral Agent as its attorney-in-fact
and proxy, with full authority in the place and stead of such Grantor and in the
name of such Grantor or otherwise, from time to time in the Collateral Agent's
discretion, so long as an Event of Default shall have occurred and is
continuing, to take any action and to execute any instrument which the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Agreement (subject to the rights of such Grantor under Section 5 hereof),
including, without limitation, (i) to obtain and adjust insurance required to be
paid to the Collateral Agent pursuant to Section 5(e) hereof,
(ii) to ask, demand, collect, xxx for, recover, compound, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any Collateral, (iii) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper in connection with clause (i) or (ii)
above, (iv) to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem necessary or desirable for the collection of
any Collateral or otherwise to enforce the rights of the Collateral Agent and
the Buyers with respect to any Collateral, and (v) to execute assignments,
licenses and other documents to enforce the rights of the Collateral Agent and
the Buyers with respect to any Collateral. This power is coupled with
an interest and is irrevocable until the complete conversion of all of the
Company's obligations under the Notes to equity securities of the Company and/or
indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations).
(c) For
the purpose of enabling the Collateral Agent to exercise rights and remedies
hereunder, at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies upon and during an Event of Default, and for
no other purpose, each Grantor hereby grants to the Collateral Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to such Grantor) to use, assign,
license or sublicense any Intellectual Property now owned or hereafter acquired
by such Grantor, wherever the same may be located, including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof. Notwithstanding anything contained herein to the
contrary, but subject to the provisions of the Securities Purchase Agreement
that limit the right of such Grantor to dispose of its property and Section 5(h) hereof,
so long as no Event of Default shall have occurred and be continuing, such
Grantor may exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in
the ordinary course of its business. In furtherance of the foregoing,
unless an Event of Default shall have occurred and be continuing, the Collateral
Agent shall from time to time, upon the request of a Grantor, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which such Grantor shall have certified are appropriate (in such
Grantor's judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to this clause (c) as to any
Intellectual Property). Further, upon the complete conversion of all
of the Company's obligations under the Notes to equity securities of the Company
and/or indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations), the Collateral Agent (subject to Section 10(e) hereof)
shall release and reassign to such Grantor all of the Collateral Agent's right,
title and interest in and to the Intellectual Property, and the Licenses, all
without recourse, representation or warranty whatsoever. The exercise
of rights and remedies hereunder by the Collateral Agent shall not terminate the
rights of the holders of any licenses or sublicenses theretofore granted by such
Grantor in accordance with the second sentence of this clause
(c). Each Grantor hereby releases the Collateral Agent from any
claims, causes of action and demands at any time arising out of or with respect
to any actions taken or omitted to be taken by the Collateral Agent under the
powers of attorney granted herein other than actions taken or omitted to be
taken through the Collateral Agent's gross negligence or willful misconduct, as
determined by a final determination of a court of competent
jurisdiction.
-18-
(d) If
a Grantor fails to perform any agreement contained herein, the Collateral Agent
may itself perform, or cause performance of, such agreement or obligation, in
the name of such Grantor or the Collateral Agent, and the expenses of the
Collateral Agent incurred in connection therewith shall be payable by such
Grantor pursuant to Section 8 hereof and
shall be secured by the Collateral.
(e) The
powers conferred on the Collateral Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral or as to the taking of
any necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
(f) Anything
herein to the contrary notwithstanding (i) each Grantor shall remain liable
under the Licenses and otherwise with respect to any of the Collateral to the
extent set forth therein to perform all of its obligations thereunder to the
same extent as if this Agreement had not been executed, (ii) the exercise
by the Collateral Agent of any of its rights hereunder shall not release such
Grantor from any of its obligations under the Licenses or otherwise in respect
of the Collateral, and (iii) the Collateral Agent shall not have any
obligation or liability by reason of this Agreement under the Licenses or with
respect to any of the other Collateral, nor shall the Collateral Agent be
obligated to perform any of the obligations or duties of such Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
-19-
SECTION
7. Remedies Upon Event of
Default. If any Event of Default shall have occurred and be
continuing:
(a) The
Collateral Agent may exercise in respect of the Collateral, in addition to any
other rights and remedies provided for herein or otherwise available to it, all
of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may
(i) take absolute control of the Collateral, including, without limitation,
transfer into the Collateral Agent's name or into the name of its nominee or
nominees (to the extent the Collateral Agent has not theretofore done so) and
thereafter receive, for the benefit of the Collateral Agent, all payments made
thereon, give all consents, waivers and ratifications in respect thereof and
otherwise act with respect thereto as though it were the outright owner thereof,
(ii) require each Grantor to, and each Grantor hereby agrees that it will
at its expense and upon request of the Collateral Agent forthwith, assemble all
or part of its respective Collateral as directed by the Collateral Agent and
make it available to the Collateral Agent at a place or places to be designated
by the Collateral Agent that is reasonably convenient to both parties, and the
Collateral Agent may enter into and occupy any premises owned or leased by such
Grantor where the Collateral or any part thereof is located or assembled for a
reasonable period in order to effectuate the Collateral Agent's rights and
remedies hereunder or under law, without obligation to such Grantor in respect
of such occupation, and (iii) without notice except as specified below and
without any obligation to prepare or process the Collateral for sale,
(A) sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Collateral Agent's offices or elsewhere,
for cash, on credit or for future delivery, and at such price or prices and upon
such other terms as the Collateral Agent may deem commercially reasonable and/or
(B) lease, license or dispose of the Collateral or any part thereof upon
such terms as the Collateral Agent may deem commercially
reasonable. Each Grantor agrees that, to the extent notice of sale or
any other disposition of its respective Collateral shall be required by law, at
least ten (10) days' notice to such Grantor of the time and place of any public
sale or the time after which any private sale or other disposition of its
respective Collateral is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any
sale or other disposition of any Collateral regardless of notice of sale having
been given. The Collateral Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which it
was so adjourned. Each Grantor hereby waives any claims against the
Collateral Agent and the Buyers arising by reason of the fact that the price at
which its respective Collateral may have been sold at a private sale was less
than the price which might have been obtained at a public sale or was less than
the aggregate amount of the Obligations, even if the Collateral Agent accepts
the first offer received and does not offer such Collateral to more than one
offeree, and waives all rights that such Grantor may have to require that all or
any part of such Collateral be marshalled upon any sale (public or private)
thereof. Each Grantor hereby acknowledges that (i) any such sale
of its respective Collateral by the Collateral Agent shall be made without
warranty, (ii) the Collateral Agent may specifically disclaim any
warranties of title, possession, quiet enjoyment or the like, and
(iii) such actions set forth in clauses (i) and (ii) above shall not
adversely effect the commercial reasonableness of any such sale of
Collateral. In addition to the foregoing, (1) upon written
notice to any Grantor from the Collateral Agent, such Grantor shall cease any
use of the Intellectual Property or any trademark, patent or copyright similar
thereto for any purpose described in such notice; (2) the Collateral Agent may,
at any time and from time to time, upon 10 days' prior notice to such Grantor,
license, whether general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any of the Intellectual Property, throughout the universe
for such term or terms, on such conditions, and in such manner, as the
Collateral Agent shall in its sole discretion determine to the extent consistent
with any restrictions or conditions imposed upon such Grantor with respect to
such Intellectual Property by license or other contractual arrangement; and (2)
the Collateral Agent may, at any time, pursuant to the authority granted in
Section 6
hereof (such authority being effective upon the occurrence and during the
continuance of an Event of Default), execute and deliver on behalf of such
Grantor, one or more instruments of assignment of the Intellectual Property (or
any application or registration thereof), in form suitable for filing, recording
or registration in any country.
-20-
(b) Any
cash held by the Collateral Agent as Collateral and all Cash Proceeds received
by the Collateral Agent in respect of any sale of or collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Collateral Agent, be held by the Collateral Agent as collateral for, and/or
then or at any time thereafter applied (after payment of any amounts payable to
the Collateral Agent pursuant to Section 8 hereof) in
whole or in part by the Collateral Agent against, all or any part of the
Obligations in such order as the Collateral Agent shall elect, consistent with
the provisions of the Securities Purchase Agreement. Any surplus of
such cash or Cash Proceeds held by the Collateral Agent and remaining after the
complete conversion of all of the Company's obligations under the Notes to
equity securities of the Company and/or indefeasible payment in full in cash of
all obligations under the Notes (together with any matured indemnification
obligations as of the date of such conversion and/or payment, but excluding any
inchoate or unmatured contingent indemnification obligations) shall be paid over
to whomsoever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct.
(c) In
the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Collateral Agent and the Buyers are
legally entitled, such each shall be liable for the deficiency, together with
interest thereon at the highest rate specified in any of the applicable
Transaction Documents for interest on overdue principal thereof or such other
rate as shall be fixed by applicable law, together with the costs of collection
and the reasonable fees, costs, expenses and other client charges of any
attorneys employed by the Collateral Agent to collect such
deficiency.
(d) Each
Grantor hereby acknowledges that if the Collateral Agent complies with any
applicable state, provincial, or federal law requirements in connection with a
disposition of the Collateral, such compliance will not adversely affect the
commercial reasonableness of any sale or other disposition of the
Collateral.
(e) The
Collateral Agent shall not be required to marshal any present or future
collateral security (including, but not limited to, this Agreement and the
Collateral) for, or other assurances of payment of, the Obligations or any of
them or to resort to such collateral security or other assurances of payment in
any particular order, and all of the Collateral Agent's rights hereunder and in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or
arising. To the extent that each Grantor lawfully may, such Grantor
hereby agrees that it will not invoke any law relating to the marshalling of
collateral which might cause delay in or impede the enforcement of the
Collateral Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
such Grantor hereby irrevocably waives the benefits of all such
laws.
SECTION
8. Indemnity and
Expenses.
(a) Each
Grantor agrees, jointly and severally, to defend, protect, indemnify and hold
the Collateral Agent and each of the Buyers, jointly and severally, harmless
from and against any and all claims, damages, losses, liabilities, obligations,
penalties, fees, costs and expenses (including, without limitation, reasonable
legal fees, costs, expenses, and disbursements of such Person's counsel) to the
extent that they arise out of or otherwise result from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting solely and directly from such Person's gross
negligence or willful misconduct, as determined by a final judgment of a court
of competent jurisdiction.
-21-
(b) Each
Grantor agrees, jointly and severally, to upon demand pay to the Collateral
Agent the amount of any and all costs and expenses, including the reasonable
fees, costs, expenses and disbursements of counsel for the Collateral Agent and
of any experts and agents (including, without limitation, any collateral trustee
which may act as agent of the Collateral Agent), which the Collateral Agent may
incur in connection with (i) the preparation, negotiation, execution,
delivery, recordation, administration, amendment, waiver or other modification
or termination of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, or (iv) the failure by any Grantor to perform
or observe any of the provisions hereof.
SECTION
9. Notices,
Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied or delivered, if to a Grantor
at its address specified below and if to the Collateral Agent to it, at its
address specified below; or as to any such Person, at such other address as
shall be designated by such Person in a written notice to such other Person
complying as to delivery with the terms of this Section
9. All such notices and other communications shall be
effective (a) if sent by certified mail, return receipt requested, when
received or five days after deposited in the mails, whichever occurs first,
(b) if telecopied, when transmitted (during normal business hours) and
confirmation is received, otherwise, the day after the notice was transmitted if
confirmation is received, or (c) if delivered, upon delivery.
SECTION
10. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by each Grantor and the Collateral Agent, and no waiver of
any provision of this Agreement, and no consent to any departure by a Grantor
therefrom, shall be effective unless it is in writing and signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No
failure on the part of the Collateral Agent to exercise, and no delay in
exercising, any right hereunder or under any of the other Transaction Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Collateral Agent or
any Buyer provided herein and in the other Transaction Documents are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Collateral Agent or any Buyer under any of the
other Transaction Documents against any party thereto are not conditional or
contingent on any attempt by such Person to exercise any of its rights under any
of the other Transaction Documents against such party or against any other
Person, including but not limited to, any Grantor.
-22-
(c) To
the extent permitted by applicable law, each Grantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Agreement and any requirement that the Collateral Agent
exhaust any right or take any action against any other Person or any
Collateral. Each Grantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated herein and that
the waiver set forth in this Section 10(c) is
knowingly made in contemplation of such benefits. The Grantors hereby
waive any right to revoke this Agreement, and acknowledge that this Agreement is
continuing in nature and applies to all Obligations, whether existing now or in
the future.
(d) No
Grantor may exercise any rights that it may now or hereafter acquire against any
other Grantor that arise from the existence, payment, performance or enforcement
of any Grantor's obligations under this Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Collateral Agent against any Grantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from any
Grantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security solely on account of such claim, remedy or
right, unless and until the complete conversion of all of the Company's
obligations under the Notes to equity securities of the Company and/or
indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations). If any amount shall be paid to a
Grantor in violation of the immediately preceding sentence at any time prior to
the complete conversion of all of the Company's obligations under the Notes to
equity securities of the Company and/or indefeasible payment in full in cash of
all obligations under the Notes (together with any matured indemnification
obligations as of the date of such conversion and/or payment, but excluding any
inchoate or unmatured contingent indemnification obligations), such amount shall
be held in trust for the benefit of the Collateral Agent and shall forthwith be
paid to the Collateral Agent to be credited and applied to the Obligations and
all other amounts payable under the Transaction Documents, whether matured or
unmatured, in accordance with the terms of the Transaction Documents, or to be
held as Collateral for any Obligations or other amounts payable under the
Transaction Documents thereafter arising.
(e) Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(f)
This Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the complete conversion of all
of the Company's obligations under the Notes to equity securities of the Company
and/or indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations), and (ii) be binding on each Grantor and all other
Persons who become bound as debtor to this Agreement in accordance with Section
9-203(d) of the Code and shall inure, together with all rights and remedies of
the Collateral Agent and the Buyers hereunder, to the benefit of the Collateral
Agent and the Buyers and their respective permitted successors, transferees and
assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, without notice to any Grantor, the Collateral
Agent and the Buyers may assign or otherwise transfer their rights and
obligations under this Agreement and any of the other Transaction Documents, to
any other Person and such other Person shall thereupon become vested with all of
the benefits in respect thereof granted to the Collateral Agent and the Buyers
herein or otherwise. Upon any such assignment or transfer, all
references in this Agreement to the Collateral Agent or any such Buyer shall
mean the assignee of the Collateral Agent or such Buyer. None of the
rights or obligations of any Grantor hereunder may be assigned or otherwise
transferred without the prior written consent of the Collateral Agent, and any
such assignment or transfer without the consent of the Collateral Agent shall be
null and void.
-23-
(g) Upon
the complete conversion of all of the Company's obligations under the Notes to
equity securities of the Company and/or indefeasible payment in full in cash of
all obligations under the Notes (together with any matured indemnification
obligations as of the date of such conversion and/or payment, but excluding any
inchoate or unmatured contingent indemnification obligations), (i) this
Agreement and the security interests created hereby shall terminate and all
rights to the Collateral shall revert to the respective Grantor that granted
such security interests hereunder, and (ii) the Collateral Agent will, upon such
Grantor's request and at such Grantor's expense, (A) return to such Grantor such
of the Collateral as shall not have been sold or otherwise disposed of or
applied pursuant to the terms hereof, and (B) execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse
whatsoever.
(h) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND
THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED
HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(i)
ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
DOCUMENT RELATED THERETO MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
IN THE COUNTY OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS THEREOF, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH GRANTOR HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION, SUIT OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
-24-
(j)
EACH GRANTOR AND (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS AGREEMENT) THE
COLLATERAL AGENT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE PARTIES
HERETO.
(k) Nothing
contained herein shall affect the right of the Collateral Agent to serve process
in any other manner permitted by law or commence legal proceedings or otherwise
proceed against any Grantor or any property of such Grantor in any other
jurisdiction.
(l)
Each Grantor irrevocably and unconditionally waives any right it may have to
claim or recover in any legal action, suit or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
(m) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(n) This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together constitute one in the same
Agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-25-
IN
WITNESS WHEREOF, each of Grantor has caused this Agreement to be executed and
delivered by its officer thereunto duly authorized, as of the date first above
written.
SOUTHPEAK
INTERACTIVE CORPORATION
|
||||
By:
|
/s/Xxxx X. XxXxxxxxx | |||
Name:
Xxxx X. XxXxxxxxx
|
||||
Title:
Chief Financial Officer
|
||||
Address
for Notices:
|
||||
SouthPeak
Games
|
||||
0000
Xxxx Xxxxxxx
|
||||
Xxxxxxxxxx,
XX 00000
|
||||
Facsimile: 000-000-0000
|
||||
SOUTHPEAK
INTERACTIVE, L.L.C.,
|
||||
a
Virginia limited liability company
|
||||
By:
|
SOUTHPEAK
INTERACTIVE CORPORATION,
|
|||
its
sole
Member
|
/s/Xxxx X. XxXxxxxxx
|
||
Name:
Xxxx X. XxXxxxxxx
|
||
Title:
Chief Financial Officer
|
Address
for Notices:
SouthPeak Games |
|
0000
Xxxx Xxxxxxx
|
|
Xxxxxxxxxx,
XX 00000
|
|
Facsimile: 000-000-0000
|
[SouthPeak Pledge and Security
Agreement]
VID
SUB, LLC,
|
|||||
a
Delaware limited liability company
|
|||||
By:
|
SOUTHPEAK
INTERACTIVE CORPORATION,
|
||||
its
sole Member
|
|||||
|
|
By: |
/s/Xxxx X. XxXxxxxxx
|
||
|
Name: |
Xxxx
X. XxXxxxxxx
|
|||
|
Title: |
Chief
Financial Officer
|
|||
Address
for Notices:
|
|||||
SouthPeak
Games
|
|||||
0000
Xxxx Xxxxxxx
|
|||||
Xxxxxxxxxx,
XX 00000
|
|||||
Facsimile: 000-000-0000
|
|||||
IRP
GmbH,
|
|||||
a
Swiss company
|
|||||
By:
|
SOUTHPEAK
INTERACTIVE CORPORATION,
|
||||
its
sole shareholder
|
|||||
|
|
By: |
/s/Xxxx X. XxXxxxxxx
|
||
|
Name: |
Xxxx
X. XxXxxxxxx
|
|||
|
Title: |
Chief
Financial Officer
|
|||
Address
for Notices:
|
|||||
SouthPeak
Games
|
|||||
0000
Xxxx Xxxxxxx
|
|||||
Xxxxxxxxxx,
XX 00000
|
|||||
Facsimile: 000-000-0000
|
[SouthPeak Pledge and Security
Agreement]
GONE OFF DEEP,
LLC,
|
||||||
a
Delaware limited liability company
|
||||||
By:
|
VID
SUB,LLC, its sole Member
|
|||||
By:
|
SOUTHPEAK
INTERACTIVE
|
|||||
CORPORATION,
its sole Member
|
||||||
|
By:
|
/s/Xxxx X. XxXxxxxxx
|
||||
Name:
|
Xxxx
X. XxXxxxxxx
|
|||||
Title:
|
Chief
Financial Officer
|
|||||
Address
for Notices:
|
||||||
SouthPeak
Games
|
||||||
0000
Xxxx Xxxxxxx
|
||||||
Xxxxxxxxxx,
XX 00000
|
||||||
Facsimile: 000-000-0000
|
||||||
SOUTHPEAK INTERACTIVE
LIMITED,
|
||||||
a
UK company
|
||||||
By:
|
SOUTHPEAK
INTERACTIVE, L.L.C., its sole
|
|||||
stockholder
|
||||||
By:
|
SOUTHPEAK
INTERACTIVE
|
|||||
CORPORATION,
its sole Member
|
||||||
|
By:
|
/s/Xxxx X. XxXxxxxxx
|
||||
Name:
|
Xxxx
X. XxXxxxxxx
|
|||||
Title:
|
Chief
Financial Officer
|
|||||
Address
for Notices:
|
||||||
SouthPeak
Games
|
||||||
0000
Xxxx Xxxxxxx
|
||||||
Xxxxxxxxxx,
XX 00000
|
||||||
Facsimile: 000-000-0000
|
[SouthPeak Pledge and Security
Agreement]
GAMECOCK MEDIAL EUROPE
LIMITED,
|
|||||||
a
UK company
|
|||||||
By:
|
GONE
OFF DEEP, LLC, its sole stockholder
|
||||||
By:
|
VID
SUB, LLC, its sole Member
|
||||||
By:
|
SOUTHPEAK
INTERACTIVE
|
||||||
CORPORATION,
its sole Member
|
|||||||
|
By:
|
/s/Xxxx X. XxXxxxxxx
|
|||||
Name:
|
Xxxx
X. XxXxxxxxx
|
||||||
Title:
|
Chief
Financial Officer
|
||||||
Address
for Notices:
|
|||||||
SouthPeak
Games
|
|||||||
0000
Xxxx Xxxxxxx
|
|||||||
Xxxxxxxxxx,
XX 00000
|
|||||||
Facsimile: 000-000-0000
|
[SouthPeak Pledge and Security Agreement]
ACCEPTED
BY:
CNH
DIVERSIFIED OPPORTUNITIES
MASTER ACCOUNT,
L.P.,
as
Collateral Agent
By:
|
CNH
Partners, LLC
|
|||
its
Investment Manager
|
||||
By:
|
/s/Xxxxxxx X. Xxxx
|
|||
Name: Xxxxxxx
X. Xxxx
|
||||
Title: Associate
General Counsel
|
||||
Address:
|
CNH
Partners, LLC
|
|||
Two
Xxxxxxxxx Xxxxx
|
||||
Xxxxxxxxx,
XX
00000
|
[SouthPeak Pledge and Security
Agreement]
SCHEDULE
I
LEGAL
NAMES; ORGANIZATIONAL IDENTIFICATION NUMBERS; STATES OR
JURISDICTION
OF ORGANIZATION
Sched.
I-1
SCHEDULE
II
SOUTHPEAK
INTELLECTUAL PROPERTY AND
LICENSES
Sched.
II-1
EXISTING
SUBSIDIARIES
INTELLECTUAL PROPERTY AND
LICENSES
Sched.
II-1
SCHEDULE
III
LOCATIONS
OF SOUTHPEAK
LOCATION
|
Description
of Location (State if Location
|
(i) contains
Rolling Stock, other Equipment, Fixtures,
|
|
Goods
or Inventory,
|
|
(ii)
is chief place of business and
|
|
chief
executive office, or
|
|
(iii)
contains Records concerning Accounts
|
|
and
originals of Chattel
Paper)
|
Sched.
III-1
LOCATIONS OF EXISTING
SUBSIDIARIES
LOCATION
|
Description
of Location (State if Location
|
(i) contains
Rolling Stock, other Equipment, Fixtures,
|
|
Goods
or Inventory,
|
|
(ii)
is chief place of business and
|
|
chief
executive office, or
|
|
(iii)
contains Records concerning Accounts
|
|
and
originals of Chattel
Paper)
|
Sched.
III-1
SCHEDULE
IV
PROMISSORY
NOTES, SECURITIES, DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES
ACCOUNTS
SOUTHPEAK
Promissory
Notes:
Securities and Other
Instruments:
Name
and Address
|
||||
of
Institution
|
||||
Maintaining Account
|
|
Account Number
|
|
Type of Account
|
Sched.
IV-1
EXISTING
SUBSIDIARIES
Promissory
Notes
Securities and Other
Instruments
Name
and Address
|
||||
of
Institution
|
||||
Maintaining Account
|
|
Account Number
|
|
Type of Account
|
Sched.
IV-1
SCHEDULE
V
SOUTHPEAK
UCC-1
FINANCING STATEMENTS
Sched.
V-1
EXISTING
SUBSIDIARIES
UCC-1
FINANCING STATEMENTS
Sched.
V-1
SCHEDULE
VI
SOUTHPEAK
COMMERCIAL TORT
CLAIMS
EXISTING
SUBSIDIARIES
COMMERCIAL TORT
CLAIMS
Sched.
VI-1
SCHEDULE
VII
PLEDGED
DEBT
Sched.
VII-1
SCHEDULE
VIII
PLEDGED
SHARES
Sched.
VIII-1
EXHIBIT
A
ASSIGNMENT FOR
SECURITY
[TRADEMARKS] [PATENTS]
[COPYRIGHTS]
WHEREAS,
______________________________
(the "Assignor") [has
adopted, used and is using, and holds all right, title and interest in and to,
the trademarks and service marks listed on the annexed Schedule 1A,
which trademarks and service marks are registered or applied for in the United
States Patent and Trademark Office (the "Trademarks")] [holds
all right, title and interest in the letter patents, design patents and utility
patents listed on the annexed Schedule 1A,
which patents are issued or applied for in the United States Patent and
Trademark Office (the "Patents")] [holds all
right, title and interest in the copyrights listed on the annexed Schedule 1A, which
copyrights are registered in the United States Copyright Office (the "Copyrights")];
WHEREAS,
the Assignor has entered into a Security Agreement, dated as of July __, 2010
(as amended, restated or otherwise modified from time to time the "Security Agreement"),
in favor of CNH Diversified
Opportunities Master Account, L.P., as collateral agent for certain
buyers (the "Assignee");
WHEREAS,
pursuant to the Security Agreement, the Assignor has assigned to the Assignee
and granted to the Assignee for the benefit of the Buyers (as defined in the
Security Agreement) a continuing security interest in all right, title and
interest of the Assignor in, to and under the [Trademarks, together with, among
other things, the good-will of the business symbolized by the Trademarks]
[Patents] [Copyrights] and the applications and registrations thereof, and all
proceeds thereof, including, without limitation, any and all causes of action
which may exist by reason of infringement thereof and any and all damages
arising from past, present and future violations thereof (the "Collateral"), to
secure the payment, performance and observance of the "Obligations" (as defined
in the Security Agreement);
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Assignor does hereby pledge, convey, sell,
assign, transfer and set over unto the Assignee and grants to the Assignee for
the benefit of the Buyers a continuing security interest in the Collateral to
secure the prompt payment, performance and for the benefit of the Buyers
observance of the Obligations.
The
Assignor does hereby further acknowledge and affirm that the rights and remedies
of the Assignee with respect to the Collateral are more fully set forth in the
Security Agreement, the terms and provisions of which are hereby incorporated
herein by reference as if fully set forth herein.
Exh.
A-1
IN
WITNESS WHEREOF, the Assignor has caused this Assignment to be duly executed by
its officer thereunto duly authorized as of _____________, 20__
[GRANTOR]
|
||
By:
|
||
Name:
|
||
Title:
|
SouthPeak
Pledge and Security Agreement
STATE OF
____________
ss.:
COUNTY OF
__________
On this
____ day of _______________, 20__, before me personally came ________________,
to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say that s/he is the ________________ of
_______________________________________, a ____________________, and that s/he
executed the foregoing instrument in the firm name of
_______________________________________, and that s/he had authority to sign the
same, and s/he acknowledged to me that he executed the same as the act and deed
of said firm for the uses and purposes therein mentioned.
_______________________________________________
SCHEDULE 1A TO ASSIGNMENT
FOR SECURITY
[Trademarks
and Trademark Applications]
[Patent
and Patent Applications]
[Copyright
and Copyright Applications]
Owned by
______________________________
Xxx.
X-0