INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement"
dated as of December 27, 2006, by and among Cross Atlantic Commodities,
Inc., a Nevada Corporation (the "Company"), and the secured parties
signatory hereto and their respective endorsees, transferees and
assigns (collectively, the "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement, dated the
date hereof, between Company and the Secured Party (the "Purchase
Agreement"), Company has agreed to issue to the Secured Party and the
Secured Party has agreed to purchase from Company certain of Company's
8% Callable Secured Convertible Notes, due three years from the date of
issue (the "Notes"), which are convertible into shares of Company's
Common Stock, par value $.001 per share (the "Common Stock"). In
connection therewith, Company shall issue the Secured Party certain
Common Stock purchase warrants (the "Warrants"); and
WHEREAS, in order to induce the Secured Party to purchase the
Notes, Company has agreed to execute and deliver to the Secured Party
this Agreement for the benefit of the Secured Party and to grant to it
a first priority security interest in certain Intellectual Property
(defined below) of Company to secure the prompt payment, performance
and discharge in full of all of Company's obligations under the Notes
and exercise and discharge in full of Company's obligations under the
Warrants; and
NOW, THEREFORE, in consideration of the agreements herein
contained and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Purchase Agreement and used herein are so used
as so defined; and the following terms shall have the following
meanings:
"Software Intellectual Property" shall mean:
(a) all software programs (including all source code,
object code and all related applications and data files), whether now
owned, upgraded, enhanced, licensed or leased or hereafter acquired by
the Company, above;
(b) all computers and electronic data processing hardware
and firmware associated therewith;
(c) all documentation (including flow charts, logic
diagrams, manuals, guides and specifications) with respect to such
software, hardware and firmware described in the preceding clauses (a)
and (b); and
all rights with respect to all of the foregoing, including, without
limitation, any and all upgrades, modifications, copyrights, licenses,
options, warranties, service contracts, program services, test rights,
maintenance rights, support rights, improvement rights, renewal rights
and indemnifications and substitutions, replacements, additions, or
model conversions of any of the foregoing.
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"Copyrights" shall mean (a) all copyrights, registrations
and applications for registration, issued or filed, including any
reissues, extensions or renewals thereof, by or with the United States
Copyright Office or any similar office or agency of the United States,
any state thereof, or any other country or political subdivision
thereof, or otherwise, including, all rights in and to the material
constituting the subject matter thereof, including, without limitation,
any referred to in Schedule B hereto, and (b) any rights in any
material which is copyrightable or which is protected by common law,
United States copyright laws or similar laws or any law of any State,
including, without limitation, any thereof referred to in Schedule B
hereto.
"Copyright License" shall mean any agreement, written or
oral, providing for a grant by the Company of any right in any
Copyright, including, without limitation, any thereof referred to in
Schedule B hereto.
"Intellectual Property" shall means, collectively, the Software
Intellectual Property, Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks, Trademark Licenses and Trade Secrets.
"Obligations" means all of the Company's obligations under
this Agreement and the Notes, in each case, whether now or hereafter
existing, voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or
extinguished and later decreased, created or incurred, and all or any
portion of such obligations or liabilities that are paid, to the extent
all or any part of such payment is avoided or recovered directly or
indirectly from the Secured Party as a preference, fraudulent transfer
or otherwise as such obligations may be amended, supplemented,
converted, extended or modified from time to time.
"Patents" shall mean (a) all letters patent of the United
States or any other country or any political subdivision thereof, and
all reissues and extensions thereof, including, without limitation, any
thereof referred to in Schedule B hereto, and (b) all applications for
letters patent of the United States and all divisions, continuations
and continuations-in-part thereof or any other country or any political
subdivision, including, without limitation, any thereof referred to in
Schedule B hereto.
"Patent License" shall mean all agreements, whether written
or oral, providing for the grant by the Company of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any thereof referred to in Schedule B hereto.
"Security Agreement" shall mean a Security Agreement, dated
the date hereof between Company and the Secured Party.
"Trademarks" shall mean (a) all trademarks, trade names,
corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos and other source or business
identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the
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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, or otherwise, including, without
limitation, any thereof referred to in Schedule B hereto, and (b) all
reissues, extensions or renewals thereof.
"Trademark License" shall mean any agreement, written or
oral, providing for the grant by the Company of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule B hereto.
"Trade Secrets" shall mean common law and statutory trade
secrets and all other confidential or proprietary or useful information
and all know-how obtained by or used in or contemplated at any time for
use in the business of the Company (all of the foregoing being
collectively called a "Trade Secret"), whether or not such Trade Secret
has been reduced to a writing or other tangible form, including all
documents and things embodying, incorporating or referring in any way
to such Trade Secret, all Trade Secret licenses, including each Trade
Secret license referred to in Schedule B hereto, and including the
right to xxx for and to enjoin and to collect damages for the actual or
threatened misappropriation of any Trade Secret and for the breach or
enforcement of any such Trade Secret license.
2. Grant of Security Interest. In accordance with
Section 3(m) of the Security Agreement, to secure the complete and
timely payment, performance and discharge in full, as the case may be,
of all of the Obligations, the Company hereby, unconditionally and
irrevocably, pledges, grants and hypothecates to the Secured Party, a
continuing security interest in, a continuing first lien upon, an
unqualified right to possession and disposition of and a right of set-
off against, in each case to the fullest extent permitted by law, all
of the Company's right, title and interest of whatsoever kind and
nature in and to the Intellectual Property (the "Security Interest").
3. Representations and Warranties. The Company hereby
represents and warrants, and covenants and agrees with, the Secured
Party as follows:
(a) The Company has the requisite corporate power
and authority to enter into this Agreement and otherwise to carry out
its obligations thereunder. The execution, delivery and performance by
the Company of this Agreement and the filings contemplated therein have
been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company. This Agreement
constitutes a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally.
(b) The Company represents and warrants that it has
no place of business or offices where its respective books of account
and records are kept (other than temporarily at the offices of its
attorneys or accountants) or places where the Intellectual Property is
stored or located, except as set forth on Schedule A attached hereto;
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(c) The Company is the sole owner of the
Intellectual Property (except for non-exclusive licenses granted by the
Company in the ordinary course of business), free and clear of any
liens, security interests, encumbrances, rights or claims, and is fully
authorized to grant the Security Interest in and to pledge the
Intellectual Property, except as set forth on Schedule D. There is not
on file in any governmental or regulatory authority, agency or
recording office an effective financing statement, security agreement,
license or transfer or any notice of any of the foregoing (other than
those that have been filed in favor of the Secured Party pursuant to
this Agreement) covering or affecting any of the Intellectual Property,
except as set forth on Schedule D. So long as this Agreement shall be
in effect, the Company shall not execute and shall not knowingly permit
to be on file in any such office or agency any such financing statement
or other document or instrument (except to the extent filed or recorded
in favor of the Secured Party pursuant to the terms of this Agreement),
except as set forth on Schedule D or for a financing statement
covering assets acquired by the Company after the date hereof, provided
that the value of the Intellectual Property covered by this Agreement
along with the Collateral (as defined in the Security Agreement) is
equal to at least 150% of the Obligations.
(d) The Company shall at all times maintain its
books of account and records relating to the Intellectual Property at
its principal place of business and its Intellectual Property at the
locations set forth on Schedule A attached hereto and may not relocate
such books of account and records unless it delivers to the Secured
Party at least 30 days prior to such relocation (i) written notice of
such relocation and the new location thereof (which must be within the
United States) and (ii) evidence that the necessary documents have been
filed and recorded and other steps have been taken to perfect the
Security Interest to create in favor of the Secured Party valid,
perfected and continuing first priority liens in the Intellectual
Property to the extent they can be perfected through such filings.
(e) This Agreement creates in favor of the Secured
Party a valid security interest in the Intellectual Property securing
the payment and performance of the Obligations and, upon making the
filings required hereunder, a perfected first priority security
interest in such Intellectual Property to the extent that it can be
perfected through such filings.
(f) Upon request of the Secured Party, the Company
shall execute and deliver any and all agreements, instruments,
documents, and papers as the Secured Party may request to evidence the
Secured Party's security interest in the Intellectual Property and the
goodwill and general intangibles of the Company relating thereto or
represented thereby, and the Company hereby appoints the Secured Party
its attorney-in-fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable
until the Obligations have been fully satisfied and are paid in full.
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(g) Except as set forth on Schedule D, the
execution, delivery and performance of this Agreement does not conflict
with or cause a breach or default, or an event that with or without the
passage of time or notice, shall constitute a breach or default, under
any agreement to which the Company is a party or by which the Company
is bound. No consent (including, without limitation, from stock
holders or creditors of the Company) is required for the Company to
enter into and perform its obligations hereunder.
(h) The Company shall at all times maintain the
liens and Security Interest provided for hereunder as valid and
perfected first priority liens and security interests in the
Intellectual Property to the extent they can be perfected by filing in
favor of the Secured Party until this Agreement and the Security
Interest hereunder shall terminate pursuant to Section 11. The Company
hereby agrees to defend the same against any and all persons. The
Company shall safeguard and protect all Intellectual Property for the
account of the Secured Party. Without limiting the generality of the
foregoing, the Company shall pay all fees, taxes and other amounts
necessary to maintain the Intellectual Property and the Security
Interest hereunder, and the Company shall obtain and furnish to the
Secured Party from time to time, upon demand, such releases and/or
subordinations of claims and liens which may be required to maintain
the priority of the Security Interest hereunder.
(i) The Company will not transfer, pledge,
hypothecate, encumber, license (except for non-exclusive licenses
granted by the Company in the ordinary course of business), sell or
otherwise dispose of any of the Intellectual Property without the prior
written consent of the Secured Party, which consent will not be
unreasonably withheld.
(j) The Company shall, within ten (10) days of
obtaining knowledge thereof, advise the Secured Party promptly, in
sufficient detail, of any substantial change in the Intellectual
Property, and of the occurrence of any event which would have a
material adverse effect on the value of the Intellectual Property or on
the Secured Party's security interest therein.
(k) The Company shall permit the Secured Party and
its representatives and agents to inspect the Intellectual Property at
any time, and to make copies of records pertaining to the Intellectual
Property as may be requested by the Secured Party from time to time.
(l) The Company will take all steps reasonably
necessary to diligently pursue and seek to preserve, enforce and
collect any rights, claims, causes of action and accounts receivable in
respect of the Intellectual Property.
(m) The Company shall promptly notify the Secured
Party in sufficient detail upon becoming aware of any attachment,
garnishment, execution or other legal process levied against any
Intellectual Property and of any other information received by the
Company that may materially affect the value of the Intellectual
Property, the Security Interest or the rights and remedies of the
Secured Party hereunder.
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(n) All information heretofore, herein or hereafter
supplied to the Secured Party by or on behalf of the Company with
respect to the Intellectual Property is accurate and complete in all
material respects as of the date furnished.
(o) Schedule A attached hereto contains a list of
all of the subsidiaries of Company.
(p) Schedule B attached hereto includes all
Licenses, and all Patents and Patent Licenses, if any, owned by the
Company in its own name as of the date hereof.
Schedule B hereto includes all Trademarks and Trademark Licenses, if
any, owned by the Company in its own name as of the date hereof.
Schedule B hereto includes all Copyrights and Copyright Licenses, if
any, owned by the Company in its own name as of the date hereof.
Schedule B hereto includes all Trade Secrets and Trade Secret Licenses,
if any, owned by the Company as of the date hereof. To the best of the
Company's knowledge, each License, Patent, Trademark, Copyright and
Trade Secret is valid, subsisting, unexpired, enforceable and has not
been abandoned. Except as set forth in Schedule B, none of such
Licenses, Patents, Trademarks, Copyrights and Trade Secrets is the
subject of any licensing or franchise agreement. To the best of the
Company's knowledge, no holding, decision or judgment has been rendered
by any Governmental Body which would limit, cancel or question the
validity of any License, Patent, Trademark, Copyright and Trade
Secrets. Except as set forth in Schedule B, no action or proceeding is
pending (i) seeking to limit, cancel or question the validity of any
License, Patent, Trademark, Copyright or Trade Secret, or (ii) which,
if adversely determined, would have a material adverse effect on the
value of any License, Patent, Trademark, Copyright or Trade Secret.
The Company has used and will continue to use for the duration of this
Agreement, proper statutory notice in connection with its use of the
Patents, Trademarks and Copyrights and consistent standards of quality
in products leased or sold under the Patents, Trademarks and
Copyrights.
(q) With respect to any Intellectual Property:
(i) such Intellectual Property is subsisting
and has not been adjudged invalid or
unenforceable, in whole or in part;
(ii) such Intellectual Property is valid and
enforceable;
(iii) the Company has made all necessary
filings and recordations to protect its
interest in such Intellectual Property,
including, without limitation, recordations of
all of its interests in the Patents, Patent
Licenses, Trademarks and Trademark Licenses in
the United States Patent and Trademark Office
and in corresponding offices throughout the
world and its claims to the Copyrights and
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Copyright Licenses in the United States
Copyright Office and in corresponding offices
throughout the world;
(iv) other than as set forth in Schedule B,
the Company is the exclusive owner of the
entire and unencumbered right, title and
interest in and to such Intellectual Property
and no claim has been made that the use of such
Intellectual Property infringes on the asserted
rights of any third party; and
(v) the Company has performed and will
continue to perform all acts and has paid all
required fees and taxes to maintain each and
every item of Intellectual Property in full
force and effect throughout the world, as
applicable.
(r) Except with respect to any Trademark or
Copyright that the Company shall reasonably determine is of negligible
economic value to the Company, the Company shall:
(i) maintain each Trademark and Copyright in
full force free from any claim of abandonment for non-use, maintain as
in the past the quality of products and services offered under such
Trademark or Copyright; employ such Trademark or Copyright with the
appropriate notice of registration; not adopt or use any xxxx which is
confusingly similar or a colorable imitation of such Trademark or
Copyright unless the Secured Party shall obtain a perfected security
interest in such xxxx pursuant to this Agreement; and not (and not
permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby any Trademark or Copyright may become
invalidated;
(ii) not, except with respect to any Patent
that it shall reasonably determine is of negligible economic value to
it, do any act, or omit to do any act, whereby any Patent may become
abandoned or dedicated; and
(iii) notify the Secured Party immediately if
it knows, or has reason to know, that any application or registration
relating to any Patent, Trademark or Copyright may become abandoned or
dedicated, or of any adverse determination or development (including,
without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and
Trademark Office, United States Copyright Office or any court or
tribunal in any country) regarding its ownership of any Patent,
Trademark or Copyright or its right to register the same or to keep and
maintain the same.
(s) Whenever the Company, either by itself or
through any agent, employee, licensee or designee, shall file an
application for the registration of any Patent, Trademark or Copyright
with the United States Patent and Trademark Office, United States
Copyright Office or any similar office or agency in any other country
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or any political subdivision thereof or acquire rights to any new
Patent, Trademark or Copyright whether or not registered, report such
filing to the Secured Party within five business days after the last
day of the fiscal quarter in which such filing occurs.
(t) The Company shall take all reasonable and
necessary steps, including, without limitation, in any proceeding
before the United States Patent and Trademark Office, United States
Copyright Office or any similar office or agency in any other country
or any political subdivision thereof, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain
each registration of the Patents, Trademarks and Copyrights, including,
without limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(u) In the event that any Patent, Trademark or
Copyright included in the Intellectual Property is infringed,
misappropriated or diluted by a third party, promptly notify the
Secured Party after it learns thereof and shall, unless it shall
reasonably determine that such Patent, Trademark or Copyright is of
negligible economic value to it, which determination it shall promptly
report to the Secured Party, promptly xxx for infringement,
misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such infringement,
misappropriation or dilution, or take such other actions as it shall
reasonably deem appropriate under the circumstances to protect such
Patent, Trademark or Copyright. If the Company lacks the financial
resources to comply with this Section 3(t), the Company shall so notify
the Secured Party and shall cooperate fully with any enforcement action
undertaken by the Secured Party on behalf of the Company.
4. Defaults. The following events shall be "Events of
Default":
(a) The occurrence of an Event of Default (as
defined in the Notes) under the Notes;
(b) Any representation or warranty of the Company
in this Agreement or in the Security Agreement shall prove to have been
incorrect in any material respect when made;
(c) The failure by the Company to observe or
perform any of its obligations hereunder or in the Security Agreement
for ten (10) days after receipt by the Company of notice of such
failure from the Secured Party; and
(d) Any breach of, or default under, the Warrants.
5. Duty To Hold In Trust. Upon the occurrence of any
Event of Default and at any time thereafter, the Company shall, upon
receipt by it of any revenue, income or other sums subject to the
Security Interest, whether payable pursuant to the Notes or otherwise,
or of any check, draft, note, trade acceptance or other instrument
evidencing an obligation to pay any such sum, hold the same in trust
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for the Secured Party and shall forthwith endorse and transfer any such
sums or instruments, or both, to the Secured Party for application to
the satisfaction of the Obligations.
6. Rights and Remedies Upon Default. Upon occurrence of
any Event of Default and at any time thereafter, the Secured Party
shall have the right to exercise all of the remedies conferred
hereunder and under the Notes, and the Secured Party shall have all the
rights and remedies of a secured party under the UCC and/or any other
applicable law (including the Uniform Commercial Code of any
jurisdiction in which any Intellectual Property is then located).
Without limitation, the Secured Party shall have the following rights
and powers:
(a) The Secured Party shall have the right to take
possession of the Intellectual Property and, for that purpose, enter,
with the aid and assistance of any person, any premises where the
Intellectual Property, or any part thereof, is or may be placed and
remove the same, and the Company shall assemble the Intellectual
Property and make it available to the Secured Party at places which the
Secured Party shall reasonably select, whether at the Company's
premises or elsewhere, and make available to the Secured Party, without
rent, all of the Company's respective premises and facilities for the
purpose of the Secured Party taking possession of, removing or putting
the Intellectual Property in saleable or disposable form.
(b) The Secured Party shall have the right to
operate the business of the Company using the Intellectual Property and
shall have the right to assign, sell, lease or otherwise dispose of and
deliver all or any part of the Intellectual Property, at public or
private sale or otherwise, either with or without special conditions or
stipulations, for cash or on credit or for future delivery, in such
parcel or parcels and at such time or times and at such place or
places, and upon such terms and conditions as the Secured Party may
deem commercially reasonable, all without (except as shall be required
by applicable statute and cannot be waived) advertisement or demand
upon or notice to the Company or right of redemption of the Company,
which are hereby expressly waived. Upon each such sale, lease,
assignment or other transfer of Intellectual Property, the Secured
Party may, unless prohibited by applicable law which cannot be waived,
purchase all or any part of the Intellectual Property being sold, free
from and discharged of all trusts, claims, right of redemption and
equities of the Company, which are hereby waived and released.
7. Applications of Proceeds. The proceeds of any such
sale, lease or other disposition of the Intellectual Property hereunder
shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including,
without limitation, any taxes, fees and other costs incurred in
connection therewith) of the Intellectual Property, to the reasonable
attorneys' fees and expenses incurred by the Secured Party in enforcing
its rights hereunder and in connection with collecting, storing and
disposing of the Intellectual Property, and then to satisfaction of the
Obligations, and to the payment of any other amounts required by
applicable law, after which the Secured Party shall pay to the Company
any surplus proceeds. If, upon the sale, license or other disposition
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of the Intellectual Property, the proceeds thereof are insufficient to
pay all amounts to which the Secured Party is legally entitled, the
Company will be liable for the deficiency, together with interest
thereon, at the rate of 15% per annum (the "Default Rate"), and the
reasonable fees of any attorneys employed by the Secured Party to
collect such deficiency. To the extent permitted by applicable law,
the Company waives all claims, damages and demands against the Secured
Party arising out of the repossession, removal, retention or sale of
the Intellectual Property, unless due to the gross negligence or
willful misconduct of the Secured Party.
8. Costs and Expenses. The Company agrees to pay all
out-of-pocket fees, costs and expenses incurred in connection with any
filing required hereunder, including without limitation, any financing
statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Party. The Company shall also pay
all other claims and charges which in the reasonable opinion of the
Secured Party might prejudice, imperil or otherwise affect the
Intellectual Property or the Security Interest therein. The Company
will also, upon demand, pay to the Secured Party the amount of any and
all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Secured Party may
incur in connection with (i) the enforcement of this Agreement, (ii)
the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Intellectual Property, or (iii) the
exercise or enforcement of any of the rights of the Secured Party under
the Notes. Until so paid, any fees payable hereunder shall be added to
the principal amount of the Notes and shall bear interest at the
Default Rate.
9. Responsibility for Intellectual Property. The Company
assumes all liabilities and responsibility in connection with all
Intellectual Property, and the obligations of the Company hereunder or
under the Notes and the Warrants shall in no way be affected or
diminished by reason of the loss, destruction, damage or theft of any
of the Intellectual Property or its unavailability for any reason.
10. Security Interest Absolute. All rights of the
Secured Party and all Obligations of the Company hereunder, shall be
absolute and unconditional, irrespective of: (a) any lack of validity
or enforceability of this Agreement, the Notes, the Warrants or any
agreement entered into in connection with the foregoing, or any portion
hereof or thereof; (b) any change in the time, manner or place of
payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any
departure from the Notes, the Warrants or any other agreement entered
into in connection with the foregoing; (c) any exchange, release or
nonperfection of any of the Intellectual Property, or any release or
amendment or waiver of or consent to departure from any other
Intellectual Property for, or any guaranty, or any other security, for
all or any of the Obligations; (d) any action by the Secured Party to
obtain, adjust, settle and cancel in its sole discretion any insurance
claims or matters made or arising in connection with the Intellectual
Property; or (e) any other circumstance which might otherwise
constitute any legal or equitable defense available to the Company, or
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a discharge of all or any part of the Security Interest granted hereby.
Until the Obligations shall have been paid and performed in full, the
rights of the Secured Party shall continue even if the Obligations are
barred for any reason, including, without limitation, the running of
the statute of limitations or bankruptcy. The Company expressly waives
presentment, protest, notice of protest, demand, notice of nonpayment
and demand for performance. In the event that at any time any transfer
of any Intellectual Property or any payment received by the Secured
Party hereunder shall be deemed by final order of a court of competent
jurisdiction to have been a voidable preference or fraudulent
conveyance under the bankruptcy or insolvency laws of the United
States, or shall be deemed to be otherwise due to any party other than
the Secured Party, then, in any such event, the Company's obligations
hereunder shall survive cancellation of this Agreement, and shall not
be discharged or satisfied by any prior payment thereof and/or
cancellation of this Agreement, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions
hereof. The Company waives all right to require the Secured Party to
proceed against any other person or to apply any Intellectual Property
which the Secured Party may hold at any time, or to marshal assets, or
to pursue any other remedy. The Company waives any defense arising by
reason of the application of the statute of limitations to any
obligation secured hereby.
11. Term of Agreement. This Agreement and the Security
Interest shall terminate on the date on which all payments under the
Notes have been made in full and all other Obligations have been paid
or discharged. Upon such termination, the Secured Party, at the
request and at the expense of the Company, will join in executing any
termination statement with respect to any financing statement executed
and filed pursuant to this Agreement.
12. Power of Attorney; Further Assurances.
(a) The Company authorizes the Secured Party, and
does hereby make, constitute and appoint it, and its respective
officers, agents, successors or assigns with full power of
substitution, as the Company's true and lawful attorney-in-fact, with
power, in its own name or in the name of the Company, to, after the
occurrence and during the continuance of an Event of Default, (i)
endorse any notes, checks, drafts, money orders, or other instruments
of payment (including payments payable under or in respect of any
policy of insurance) in respect of the Intellectual Property that may
come into possession of the Secured Party; (ii) to sign and endorse any
UCC financing statement or any invoice, freight or express xxxx, xxxx
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and
other documents relating to the Intellectual Property; (iii) to pay or
discharge taxes, liens, security interests or other encumbrances at any
time levied or placed on or threatened against the Intellectual
Property; (iv) to demand, collect, receipt for, compromise, settle and
xxx for monies due in respect of the Intellectual Property; and (v)
generally, to do, at the option of the Secured Party, and at the
Company's expense, at any time, or from time to time, all acts and
things which the Secured Party deems necessary to protect, preserve and
realize upon the Intellectual Property and the Security Interest
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granted therein in order to effect the intent of this Agreement, the
Notes and the Warrants, all as fully and effectually as the Company
might or could do; and the Company hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This
power of attorney is coupled with an interest and shall be irrevocable
for the term of this Agreement and thereafter as long as any of the
Obligations shall be outstanding.
(b) On a continuing basis, the Company will make,
execute, acknowledge, deliver, file and record, as the case may be, in
the proper filing and recording places in any jurisdiction, including,
without limitation, the jurisdictions indicated on Schedule C, attached
hereto, all such instruments, and take all such action as may
reasonably be deemed necessary or advisable, or as reasonably requested
by the Secured Party, to perfect the Security Interest granted
hereunder and otherwise to carry out the intent and purposes of this
Agreement, or for assuring and confirming to the Secured Party the
grant or perfection of a security interest in all the Intellectual
Property.
(c) The Company hereby irrevocably appoints the
Secured Party as the Company's attorney-in-fact, with full authority in
the place and stead of the Company and in the name of the Company, from
time to time in the Secured Party's discretion, to take any action and
to execute any instrument which the Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including the
filing, in its sole discretion, of one or more financing or
continuation statements and amendments thereto, relative to any of the
Intellectual Property without the signature of the Company where
permitted by law.
13. Notices. All notices, requests, demands and other
communications hereunder shall be in writing, with copies to all the
other parties hereto, and shall be deemed to have been duly given when
(i) if delivered by hand, upon receipt, (ii) if sent by facsimile, upon
receipt of proof of sending thereof, (iii) if sent by nationally
recognized overnight delivery service (receipt requested), the next
business day or (iv) if mailed by first-class registered or certified
mail, return receipt requested, postage prepaid, four days after
posting in the U.S. mails, in each case if delivered to the following
addresses:
If to the Company: Cross Atlantic Commodities, Inc.
0000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: [ ]
With a copy to: Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13
If to the Secured Party: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners, II, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
With copies to: Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
Facsimile: 000-000-0000
14. Other Security. To the extent that the Obligations
are now or hereafter secured by property other than the Intellectual
Property or by the guarantee, endorsement or property of any other
person, firm, corporation or other entity, then the Secured Party shall
have the right, in its sole discretion, to pursue, relinquish,
subordinate, modify or take any other action with respect thereto,
without in any way modifying or affecting any of the Secured Party's
rights and remedies hereunder.
15. Miscellaneous.
(a) No course of dealing between the Company and
the Secured Party, nor any failure to exercise, nor any delay in
exercising, on the part of the Secured Party, any right, power or
privilege hereunder or under the Notes shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege.
(b) All of the rights and remedies of the Secured
Party with respect to the Intellectual Property, whether established
hereby or by the Notes or by any other agreements, instruments or
documents or by law shall be cumulative and may be exercised singly or
concurrently.
(c) This Agreement and the Security Agreement
constitute the entire agreement of the parties with respect to the
subject matter hereof and is intended to supersede all prior
negotiations, understandings and agreements with respect thereto.
Except as specifically set forth in this Agreement, no provision of
this Agreement may be modified or amended except by a written agreement
specifically referring to this Agreement and signed by the parties
hereto.
(d) In the event that any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction for any reason, unless such provision is narrowed by
judicial construction, this Agreement shall, as to such jurisdiction,
be construed as if such invalid, prohibited or unenforceable provision
14
had been more narrowly drawn so as not to be invalid, prohibited or
unenforceable. If, notwithstanding the foregoing, any provision of
this Agreement is held to be invalid, prohibited or unenforceable in
any jurisdiction, such provision, as to such jurisdiction, shall be
ineffective to the extent of such invalidity, prohibition or
unenforceability without invalidating the remaining portion of such
provision or the other provisions of this Agreement and without
affecting the validity or enforceability of such provision or the other
provisions of this Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right
under this Agreement shall be considered valid unless in writing and
signed by the party giving such waiver, and no such waiver shall be
deemed a waiver of any subsequent breach or default or right, whether
of the same or similar nature or otherwise.
(f) This Agreement shall be binding upon and inure
to the benefit of each party hereto and its successors and assigns.
(g) Each party shall take such further action and
execute and deliver such further documents as may be necessary or
appropriate in order to carry out the provisions and purposes of this
Agreement.
(h) This Agreement shall be construed in accordance
with the laws of the State of New York, except to the extent the
validity, perfection or enforcement of a security interest hereunder in
respect of any particular Intellectual Property which are governed by a
jurisdiction other than the State of New York in which case such law
shall govern. Each of the parties hereto irrevocably submit to the
exclusive jurisdiction of any New York State or United States Federal
court sitting in Manhattan county over any action or proceeding arising
out of or relating to this Agreement, and the parties hereto hereby
irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such New York State or
Federal court. The parties hereto agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereto further waive any objection to
venue in the State of New York and any objection to an action or
proceeding in the State of New York on the basis of forum non
conveniens.
(i) EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH
PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT
EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY HAS
15
KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING
SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT,
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. IN THE EVENT OF A LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(j) This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the
same Agreement. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile
signature were the original thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
CROSS ATLANTIC COMMODITIES, INC.
By: /s/ Xxxxxxx Enemaerke
-------------------------
Xxxxxxx Enemaerke
Chief Executive Officer and President
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
Manager
17
SCHEDULE A
Principal Place of Business of the Company:
Locations Where Intellectual Property is Located or Stored:
List of Subsidiaries of the Company:
18
SCHEDULE B
A. Licenses, Patents and Patent Licenses
Registration or
Patent Application or Registration No. Country Filing
Date
B. Trademarks and Trademark Licenses
Registration or
Trademark Application or Registration No. Country Filing Date
C. Copyrights and Copyright Licenses
Registration or
Name Application or Registration No. Country Filing Date
D. Trade Secrets and Trade Secret Licenses
Registration or
Name Application or Registration No. Country Filing Date
19
SCHEDULE C
Jurisdictions:
18
DMEAST #9432335 v1
DMEAST #9432335 v1
