INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement (as amended, supplemented
or otherwise modified from time to time, this "Agreement"), dated as of March
14, 2007, is by and between SiriCOMM, Inc., a Delaware corporation ("Assignor"),
and Sunflower Capital, LLC, a Missouri limited liability company ("Assignee").
WHEREAS, Assignee has agreed to make a loan (the "Loan") to Assignor,
pursuant to that certain Loan Agreement, dated as of the date hereof, by and
between Assignor and Assignee (the "Loan Agreement"); and
WHEREAS, in order to induce Assignee to enter into the Loan Agreement
and to make the Loan, Assignor agreed to grant a continuing Lien in the
Collateral (as defined below) to secure the Obligations (as defined below);
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used but not defined herein
(including the recitals hereto) have the meanings ascribed to them in the Loan
Agreement. All other terms, unless the context otherwise requires, have the
meanings provided by the Uniform Commercial Code to the extent the same are used
or defined therein.
2. Assignment, Patent Mortgage and Grant of Security Interest. As
collateral security for the prompt and complete payment and performance of all
of Assignor's present or future indebtedness, obligations and liabilities of
every kind and character owed to Assignee arising out of the Loan Documents (the
"Obligations"), Assignor hereby grants a security interest and mortgage to
Assignee, as security, in Assignor's entire right, title and interest in, to and
under the following (the "Collateral"):
(a) any and all copyright rights, copyright applications,
copyright registrations and like protections in each work or authorship
and derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held, including without
limitation those set forth on Exhibit "A" attached hereto
(collectively, the "Copyrights");
(b) any and all trade secrets, proprietary information,
customer lists, manufacturing techniques, formulas, know-how, product
formulations, and any and all intellectual property rights in computer
software and computer software products, now or hereafter existing,
created, acquired or held;
(c) any and all design rights which may be available to
Assignor now or hereafter existing, created, acquired or held;
(d) all patents, patent applications and like protections
including, without limitation, improvements, divisions, continuations,
renewals, reissues, extensions and continuations-in-part of the same,
now or hereafter existing, created, acquired or held, including without
limitation the patents and patent applications set forth on Exhibit "B"
attached hereto (collectively, the "Patents");
(e) any trademark and servicemark rights, whether registered
or not, applications to register and registrations of the same and like
protections, all trade names, trade styles, designs, and the like, and
all elements of package or trade dress of goods, now or hereafter
existing, created, acquired or held, and the entire goodwill of the
business of Assignor connected with and symbolized by such trademarks,
including without limitation those set forth on Exhibit "C" attached
hereto (collectively, the "Trademarks");
(f) any and all claims for damages by way of past, present and
future infringement of any of the rights included above, with the
right, but not the obligation, to xxx for and collect such damages for
said use or infringement of the intellectual property rights identified
above;
(g) all licenses or other rights to use any of the Copyrights,
Patents or Trademarks, and all license fees and royalties arising from
such use;
(h) all amendments, extensions, renewals and extensions of any
of the Copyrights, Trademarks or Patents; and
(i) all proceeds and products of the foregoing, including
without limitation all payments under insurance or any indemnity or
warranty payable in respect of any of the foregoing.
3. Authorization and Request. Assignor authorizes and requests that the
Register of Copyrights and the Commissioner of Patents and Trademarks record
this Agreement. Assignor hereby authorizes Assignee to file with the appropriate
filing office, now or hereafter from time to time, financing statements,
continuation statements, and amendments thereto, naming Assignor as debtor
covering all assets of Assignor, including but not limited to any specific
listing, identification, or type of all or any portion of assets of Assignor.
Assignor acknowledges and agrees by evidence of its signature below, this
authorization is sufficient to satisfy the requirements of Revised Article 9 of
the Uniform Commercial Code, July 1, 2001 revisions.
4. Covenants and Warranties. Assignor represents, warrants, covenants
and agrees as follows:
(a) Assignor is the sole and lawful owner of the Collateral,
except for non-exclusive licenses granted by Assignor to its customers
in the ordinary course of business and except for Permitted
Encumbrances.
(b) Performance of this Agreement does not conflict with or
result in a breach of any agreement to which Assignor is a party or by
which Assignor is bound.
(c) During the term of this Agreement, Assignor will not
transfer or otherwise encumber any interest in the Collateral, except
for licenses granted by Assignor in the ordinary course of business and
for Permitted Encumbrances.
(d) Each of the Patents is valid and enforceable, and no part
of the Collateral has been judged invalid or unenforceable, in whole or
in part, and no claim has been made that any part of the Collateral
violates the rights of any third party.
(e) Assignor shall promptly advise Assignee of any material
change in the composition of the Collateral, including but not limited
to any subsequent ownership right of Assignor in or to any Trademark,
Patent or Copyright not specified in this Agreement,
(f) Assignor shall at its expense (i) protect, defend and
maintain the validity and enforceability of the Trademarks, Patents and
Copyrights, (ii) use its best efforts to detect infringements of the
Trademarks, Patents and Copyrights and promptly advise Assignee in
writing of material infringements detected and (iii) not allow any
Trademarks, Patents or Copyrights to be abandoned, forfeited or
dedicated to the public without the written consent of Assignee, which
shall not be unreasonably withheld,
(g) Assignor shall promptly register the most recent version
of any of Assignor's Copyrights, if not so already registered, and
shall, from time to time, execute and file such other instruments, and
take such further actions as Assignee may request from time to time to
perfect or continue the perfection of Assignee's interest in the
Collateral, at Assignor's sole expense,
(h) This Agreement creates, and in the case of after acquired
Collateral, this Agreement will create at the time Assignor first has
rights in such after acquired Collateral, in favor of Assignee a valid
and perfected first priority security interest in the Collateral in the
United States securing the payment and performance of the Obligations
owed to Assignee upon making the filings referred to in clause (i)
below.
(i) Except for, and upon, the filing with the Delaware
Secretary of State or other appropriate authority of appropriate UCC-1
financing statements, and the filing with the United States Patent and
Trademark Office with respect to the Patents and Trademarks and the
Register of Copyrights with respect to the Copyrights necessary to
perfect the security interests created hereunder, and, except as has
been already made or obtained, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority
or regulatory body is required either (i) for the grant by Assignor of
the security interest granted hereby or for the execution, delivery or
performance of this Agreement by Assignor or (ii) for the perfection in
the United States or the exercise by Assignee of its rights and
remedies hereunder.
(j) All information heretofore, herein or hereafter supplied
to Assignee by or on behalf of Assignor with respect to the Collateral
is accurate and complete in all material respects.
(k) Assignor shall not enter into any agreement that would
materially impair or conflict with Assignor's obligations hereunder
without Assignee's prior written consent. Assignor shall not permit the
inclusion in any contract to which it becomes a party of any provisions
that could or might in any way impair or prevent the creation of a
security interest in Assignor's rights and interests in any property
included within the definition of the Collateral acquired under such
contracts.
(l) Upon any officer of Assignor obtaining knowledge thereof,
Assignor will promptly notify Assignee in writing of any event that
materially adversely affects the value of any of the Collateral, the
ability of Assignor or Assignee to dispose of any of the Collateral or
the rights and remedies of Assignee in relation thereto, including the
levy of any legal process against any of the Collateral.
5. Assignee's Rights. Assignee shall have the right, but not the
obligation, to take, at Assignor's sole expense, any actions that Assignor is
required under this Agreement to take but which Assignor fails to take. Assignor
shall reimburse and indemnify Assignee for all costs and expenses incurred in
the reasonable exercise of its rights under this Section 5.
6. Inspection Rights. Assignor hereby grants to Assignee and its
employees, representatives and agents the right to visit, during reasonable
hours upon prior reasonable notice to Assignor, any of Assignor's and its
subcontractors' plants and facilities that manufacture, install or store
products (or that have done so during the prior six-month period) that are sold
under any of the Collateral, and to inspect the products and quality control
records relating thereto upon reasonable notice to Assignor and as often as may
be reasonably requested.
7. Further Assurances; Attorney in Fact.
(a) On a continuing basis, Assignor will, subject to any prior
licenses, encumbrances and restrictions and prospective licenses
disclosed to and/or approved by assignee, make, execute, acknowledge
and deliver, and file and record in the proper filing and recording
places in the United States, all such instruments, including
appropriate financing and continuation statements and collateral
agreements and filings with the United States Patent and Trademark
Office and the United States Register of Copyrights, and take all such
action as may reasonably be deemed necessary or advisable, or as
requested by Assignee, to perfect Assignee's security interest in all
Copyrights, Patents and Trademarks and otherwise to carry out the
intent and purposes of this Agreement, or for assuring and confirming
to Assignee the grant or perfection of a security interest in all
Collateral.
(b) Assignor hereby irrevocably appoints Assignee as
Assignor's attorney-in-fact, with full authority in the place and stead
of Assignor and in the name of Assignor, Assignee or otherwise, from
time to time in Assignee's discretion, to take any action and to
execute any instrument which Assignee may deem necessary or advisable
to perfect or to give public notice of the security interest in the
Collateral granted hereunder or, during the continuance of an Event of
Default, to exercise rights and remedies with respect to the
Collateral, including:
(i) to modify, in its sole discretion, this Agreement
without first obtaining Assignor's approval of or signature to
such modification by amending Exhibit "A", Exhibit "B" and
Exhibit "C" hereof, as appropriate, to include reference to
any right, title or interest in any Copyrights, Patents or
Trademarks acquired by Assignor after the execution hereof or
to delete any reference to any right, title or interest in any
Copyrights, Patents or Trademarks in which Assignor no longer
has or claims any right, title or interest;
(ii) to file, in its sole discretion, one or more
financing or continuation statements and amendments thereto,
relative to any of the Collateral without the signature of
Assignor where permitted by law; and
(iii) upon an Event of Default, to execute and file
any documents and to take any actions deemed necessary or
appropriate by Assignee to cause the Collateral to be assigned
or transferred to Assignee or any purchaser of the Collateral
at a foreclosure sale, and to cause title to any of the
Collateral to be registered in the name of Assignee or any
purchaser of the Collateral at a foreclosure sale.
8. Remedies. Upon the occurrence of an Event of Default, Assignee shall
have the right (a) to declare all Obligations owed to Assignee immediately due
and payable, (b) to exercise any rights and remedies Assignee may have under
this Agreement or any other Loan Document, or applicable law, and (c) to
exercise all the remedies of a secured party under the applicable Uniform
Commercial Code, as amended or in effect from time to time, including without
limitation the right to require Assignor to assemble the Collateral and any
tangible property in which Assignee has a security interest and to make it
available to Assignee at a place designated by Assignee. Assignee shall have a
nonexclusive, royalty free license to use the Copyrights, Patents and Trademarks
to the extent reasonably necessary to permit Assignee to exercise its rights and
remedies upon the occurrence of an Event of Default. Assignor will pay any
expenses (including attorneys' fees) incurred by Assignee in connection with the
exercise of any of Assignee's rights hereunder, including without limitation any
expense incurred in disposing of the Collateral. All of Assignee's rights and
remedies with respect to the Collateral shall be cumulative.
9. Indemnity. Assignor agrees to defend, indemnify and hold harmless
Assignee and its officers, employees, and agents against: (a) all obligations,
demands, claims, and liabilities claimed or asserted by any other party in
connection with the transactions contemplated by this Agreement, and (b) all
losses or expenses in any way suffered, incurred, or paid by Assignee as a
result of or in any way arising out of, following or consequential to
transactions between Assignee and Assignor, whether under this Agreement or
otherwise (including without limitation attorneys fees and expenses), except for
losses arising from or out of Assignee's gross negligence or willful misconduct.
10. Termination. At such time as Assignor shall completely satisfy all
of the Obligations secured hereby, Assignee shall execute and deliver to
Assignor all deeds, assignments and other instruments as may be necessary or
proper to terminate Assignee's security interest in the Collateral hereunder,
subject to any disposition thereof which may have been made by Assignee pursuant
hereto.
11. Course of Dealing. No course of dealing, nor any failure to
exercise, nor any delay in exercising any right, power or privilege hereunder
shall operate as a waiver thereof.
12. Amendments. This Agreement may be amended only by a written
instrument signed by Assignor and Assignee.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute the same instrument.
14. Governing Law and Jurisdiction. To the extent not governed by
Federal law, this Agreement shall be governed by the laws of the State of
Missouri, without regard for choice of law provisions. Assignor and Assignee
consent to the nonexclusive jurisdiction of any state or federal court in the
State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
SIRICOMM, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------------
Xxxx X. Xxxxxxxx, President
SUNFLOWER CAPITAL, LLC
By: /s/ Xxxxxxx X. Xxxxx, III
--------------------------------------------
Xxxxxxx X. Xxxxx, III, not individually, but in his
capacity as Trustee of the Xxxxxxx X. Xxxxx III
Revocable Trust Dated October 9, 2001, Member
STATE OF )
) SS.
COUNTY OF )
On this ____ day of March, 2007, before me appeared
_________________________, to me personally known, who being by me duly sworn
did say that he/she is the ________________________________ of SiriCOMM, Inc., a
Delaware corporation, and that said instrument was signed and sealed on behalf
of said corporation by authority of its Board of Directors, and he/she
acknowledged said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
--------------------------
Notary Public
My Commission Expires:
--------------------------
EXHIBIT "A"
COPYRIGHTS
EXHIBIT "B"
PATENTS
EXHIBIT "C"
TRADEMARKS
