EXHIBIT 10.49
COPYRIGHT SECURITY AGREEMENT
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THIS COPYRIGHT SECURITY AGREEMENT is made as of August 16, 1996 (this
"Agreement"), by and between Visual Numerics, Inc., a Texas corporation
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("Borrower"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual ("Lender").
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W I T N E S S E T H:
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WHEREAS, Borrower and Lender are parties to that certain Loan and Security
Agreement of even date herewith (as the same may hereafter be modified, amended,
restated or supplemented from time to time, the "Loan Agreement"), pursuant to
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which Lender may, from time to time, extend credit to Borrower; and
WHEREAS, Lender has required Borrower to execute and deliver this Agreement
(i) in order to secure the prompt and complete payment, observance and
performance of all of the Borrower's "Liabilities" (as defined in the Loan
Agreement) and (ii) as a condition precedent to any extension of credit under
the Loan Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower agrees as follows:
1. Defined Terms.
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(A) Unless otherwise defined herein, each capitalized term used herein
that is defined in the Loan Agreement shall have the meaning specified for such
term in the Loan Agreement.
(B) The words "hereof," "herein" and "hereunder" and words of like import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and section or paragraph references
are to this Agreement unless otherwise specified.
(C) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
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specified.
2. Incorporation of Premises. The premises set forth above are
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incorporated into this Agreement by this reference thereto and are made a part
hereof.
3. Incorporation of the Loan Agreement. The Loan Agreement and the terms
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and provisions thereof are hereby incorporated herein in their entirety by this
reference thereto and are made a part hereof.
4. Security Interest in Copyrights. To secure the complete and timely
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payment, performance and satisfaction of all
of the Liabilities of Borrower, Borrower hereby grants to Lender a security
interest in, as and by way of a first mortgage and security interest having
priority over all other security interests, with power of sale to the extent
permitted by applicable law, all of Borrower's now owned or existing and
hereafter acquired or arising:
(A) copyrights and semiconductor chip product mask works, whether
statutory or common law, registered or unregistered, now or hereafter in
force throughout the world, including, without limitation, all of
Borrower's right, title and interest in and to all copyrights and mask
works registered in the United States Copyright Office or anywhere else in
the world and all applications for registration thereof, whether pending or
in preparation, and also including, without limitation, the applications,
copyrights and mask works referred to in Schedule A hereto; and (i) the
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continuations, renewals and extensions thereof, (ii) all income, royalties,
damages, proceeds, products and payments now and hereafter due and/or
payable under and with respect thereto, including, without limitation,
payments under all licenses entered into in connection therewith and
damages and payments for past or future infringements thereof, (iii) the
right to ▇▇▇ for past, present and future infringements thereof, and (iv)
all of Borrower's rights corresponding thereto throughout the world (all of
the foregoing, together with the items described in clauses (i)-(iv) in
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this paragraph 4(A) are sometimes hereinafter individually and/or
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collectively referred to as the "Copyrights"); and
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(B) copyright and mask work licenses, including each copyright and
mask work license referred to in Schedule B hereto, the right to ▇▇▇ for
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past, present and future infringements of any thereof, all rights
corresponding thereto throughout the world, all extensions and renewals of
any thereof and all proceeds of the foregoing, including, without
limitation, licenses, royalties, income, payments, claims, damages and
proceeds of suit (all of the foregoing are hereinafter referred to
collectively as the "Licenses"). Notwithstanding the foregoing provisions
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of this paragraph 4(B), the Licenses shall not include any license
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agreement in effect as of the date hereof which by its terms prohibits the
grant of the security contemplated by this Agreement; provided, however,
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that upon the termination of such prohibitions for any reason whatsoever,
the provisions of this paragraph 4 shall be deemed to apply thereto
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automatically.
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5. Restrictions on Future Agreements. Borrower will not, without
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Lender's prior written consent, enter into any agreement, including, without
limitation, any license agreement, which is inconsistent with this Agreement,
and Borrower further agrees that it will not take any action, and will use its
best efforts not to permit any action to be taken by others, including, without
limitation, licensees, or fail to take any action, which would in any respect
affect the validity or enforcement of the rights transferred to Lender under
this Agreement or the rights associated with the Copyrights or Licenses.
6. New Copyrights and Licenses. Borrower represents and warrants
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that, (i) the Copyrights listed on Schedule A include all of the copyrights and
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copyright applications now owned or held by Borrower, (ii) the Licenses listed
on Schedule B include all of the copyright license agreements under which
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Borrower is the licensee or licensor, (iii) there are no Liens, claims or
encumbrances in such Copyrights and Licenses as of the date hereof and (iv) no
Liens, claims or encumbrances in such Copyrights and Licenses will be granted by
Borrower to any Person or asserted by any Person against Borrower other than
Lender. If, prior to the termination of this Agreement, Borrower shall (a)
obtain rights to any new patentable inventions, (b) become entitled to the
benefit of any copyright, copyright application, license, renewal or extension
of any Copyright or License, or (c) enter into any new copyright license
agreement, the provisions of paragraph 4 above shall automatically apply
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thereto. Borrower shall give to Lender written notice of events described in
clauses (a), (b) and (c) of the preceding sentence promptly after the occurrence
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thereof, but in any event not less frequently than on a quarterly basis.
Borrower hereby authorizes Lender to modify this Agreement unilaterally (x) by
amending Schedule A to include any future copyrights, and by amending Schedule B
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to include any future copyright license agreements, which are Copyrights or
Licenses under paragraph 4 above or under this paragraph 6, and (y) by filing,
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in addition to and not in substitution for this Agreement, a duplicate original
of this Agreement containing on Schedule A or Schedule B thereto, as the case
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may be, such future copyrights and license agreements.
7. Royalties. Borrower hereby agrees that the use by Lender of the
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Copyrights and Licenses as authorized hereunder in connection with Lender's
exercise of its rights and remedies under paragraph 15 or pursuant to subsection
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8.2 of the Loan Agreement shall be coextensive with Borrower's rights thereunder
and with respect thereto and without any liability to Borrower for royalties or
other related charges from Lender.
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8. Right to Inspect; Further Assignments and Security Interests.
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Lender may at all reasonable times (and at any time when an Event of Default or
Default exists) have access to, examine, audit, make copies (at Borrower's
expense) and extracts from and inspect Borrower's premises and examine
Borrower's books, records and operations relating to the Patents and Licenses.
Borrower agrees not to sell or assign its respective interests in, or grant any
license under, the Copyrights or the Licenses without the prior written consent
of Lender.
9. Nature and Continuation of Lender's Security Interest;
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Termination of Lender's Security Interest. This Agreement is made for
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collateral security purposes only. This Agreement shall create a continuing
security interest in the Patents and Licenses and shall terminate only when the
Liabilities have been paid in full in cash and the Loan Agreement has been
terminated. When this Agreement has terminated, Lender shall promptly execute
and deliver to Borrower, at Borrower's expense, all termination statements and
other instruments as may be necessary or proper to terminate Lender's security
interest in the Copyrights and Licenses, subject to any disposition thereof
which may have been made by Lender pursuant to this Agreement or the Loan
Agreement.
10. Duties of Borrower. Borrower agrees to use its best efforts to
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maintain in full force and effect the Copyrights and Licenses that are or shall
be necessary or economically desirable in the operation of Borrower's business.
Any expenses incurred in connection with the foregoing shall be borne by
Borrower. Lender shall not have any duty with respect to the Copyrights and
Licenses. Without limiting the generality of the foregoing, Lender shall not be
under any obligation to take any steps necessary to preserve rights in the
Copyrights or Licenses against any other parties, but may do so at its option
from and after the occurrence of an Event of Default or a Default, and all
expenses incurred in connection therewith shall be for the sole account of
Borrower and shall be added to the Liabilities secured thereby.
11. Lender's Right to ▇▇▇. From and after the occurrence of an Event
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of Default or a Default, Lender shall have the right, but shall not be
obligated, to bring suit in its own name to enforce the Copyrights and the
Licenses and, if Lender shall commence any such suit, Borrower shall, at the
request of Lender, do any and all lawful acts and execute any and all proper
documents required by Lender in aid of such enforcement. Borrower shall, upon
demand, promptly reimburse Lender for all costs and expenses incurred by Lender
in the exercise of its rights under this paragraph 11 (including, without
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limitation, fees and expenses of attorneys and paralegals for Lender).
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12. Waivers. Lender's failure, at any time or times hereafter, to
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require strict performance by Borrower of any provision of this Agreement shall
not waive, affect or diminish any right of Lender thereafter to demand strict
compliance and performance therewith nor shall any course of dealing between
Borrower and Lender have such effect. No single or partial exercise of any right
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right. None of the undertakings, agreements, warranties, covenants
and representations of Borrower contained in this Agreement shall be deemed to
have been suspended or waived by Lender unless such suspension or waiver is in
writing signed by an officer of Lender and directed to Borrower specifying such
suspension or waiver.
13. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
14. Modification. This Agreement cannot be altered, amended or
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modified in any way, except as specifically provided in paragraphs 4 and 6
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hereof or by a writing signed by the parties hereto.
15. Cumulative Remedies; Power of Attorney. Borrower hereby
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irrevocably designates, constitutes and appoints Lender (and all Persons
designated by Lender in its sole and absolute discretion) as Borrower's true and
lawful attorney-in-fact, and authorizes Lender and any of Lender's designees, in
Borrower's or Lender's name, to take any action and execute any instrument to
the extent necessary to accomplish the purposes of this Agreement, including,
without limitation, from and after the occurrence of an Event of Default or a
Default and the giving by Lender of notice to Borrower of Lender's intention to
enforce its rights and claims against Borrower, to (i) endorse Borrower's name
on all applications, documents, papers and instruments necessary or desirable
for Lender in the use of the Copyrights or the Licenses, (ii) assign, pledge,
convey or otherwise transfer title in or dispose of the Copyrights or the
Licenses to anyone, (iii) grant or issue any exclusive or nonexclusive license
under the Copyrights, or, to the extent permitted, under the Licenses, to
anyone, and (iv) take any other actions with respect to the Copyrights or the
Licenses as Lender deems in its best interest.
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Borrower hereby ratifies all that such 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 until all of the Liabilities shall have been paid in full
in cash and the Loan Agreement shall have been terminated. Borrower acknowledges
and agrees that this Agreement is not intended to limit or restrict in any way
the rights and remedies of Lender under the Loan Agreement or any of the
Financing Agreements, but rather is intended to facilitate the exercise of such
rights and remedies.
Lender shall have, in addition to all other rights and remedies given
it by the terms of this Agreement, all rights and remedies allowed by law and
the rights and remedies of a secured party under the Uniform Commercial Code as
enacted in any jurisdiction in which the Copyrights or the Licenses may be
located or deemed located. Upon the occurrence of an Event of Default or a
Default and the election by Lender to exercise any of its remedies under Section
9-504 or Section 9-505 of the Uniform Commercial Code with respect to the
Copyrights and Licenses, Borrower agrees to assign, convey and otherwise
transfer title in and to the Copyrights and the Licenses to Lender or any
transferee of Lender and to execute and deliver to Lender or any such transferee
all such agreements, documents and instruments as may be necessary, in Lender's
sole discretion, to effect such assignment, conveyance and transfer. All of
Lender's rights and remedies with respect to the Patents and the Licenses,
whether established hereby, by the Loan Agreement, by any other agreements or by
law, shall be cumulative and may be exercised separately or concurrently.
Notwithstanding anything set forth herein to the contrary, it is hereby
expressly agreed that upon the occurrence of an Event of Default or a Default,
Lender may exercise any of the rights and remedies provided in this Agreement,
the Loan Agreement and any of the other Financing Agreements.
16. Successors and Assigns. This Agreement shall be binding upon
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Borrower and its successors and assigns, and shall inure to the benefit of
Lender and its nominees, successors and assigns. Borrower's successors and
assigns shall include, without limitation, a receiver, trustee or debtor-in-
possession of or for Borrower; provided, however, that Borrower shall not
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voluntarily assign or transfer its rights or obligations hereunder without
Lender's prior written consent.
17. Governing Law. Lender and Borrower hereby accept this Agreement
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at Chicago, Illinois by signing and delivering it there. Any dispute between
Lender and Borrower arising out of, connected with, related to, or incidental to
the relationship between them in connection with this Agreement, and whether
arising in contract, tort, equity, or otherwise, shall be
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resolved in accordance with the internal laws (as opposed to conflict of laws
provisions) of the State of Illinois.
18. Notices. All notices or other communications hereunder shall be
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given in the manner and to the addresses set forth in the Loan Agreement.
19. Section Titles. The section and paragraph titles herein are for
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convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
20. Execution in Counterparts. This Agreement may be executed in any
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number of counterparts and by different parties hereto in separate 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 WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
VISUAL NUMERICS, INC., a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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__ Name:
Title:
ACCEPTED AND AGREED:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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__Charles ▇. ▇▇▇▇▇▇▇, an individual
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Schedule A
to
Copyright Security Agreement
Dated as of August 16, 1996
COPYRIGHTS
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U.S. COPYRIGHT REGISTRATIONS
DATE OF
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TITLE OF WORK REGISTRATION NO. REGISTRATION
------------- ---------------- ------------
1. IMSL Libraries Version 2 TXu 492355 10/11/91
2. C/BASE Library Version 1 TXu 492620 10/11/91
3. Exponent Graphics TX 2886528 07/31/90
4. Exponent Graphics (v1.0) TXu 431359 09/29/89
5. SFUN/ Library TXu 397-123 09/29/89
6. SFUN/Library (v2.1) Users Manual TXu 387-229 09/29/89
7. STAT/Environment and TXu 397-122 09/29/89
Installation Assurance Test
(v1.1)
8. STAT/Library (v1.1) TXu 397-118 09/29/89
9. STAT/Library (v1.1) User's TXu 387-350 09/29/89
Manual (Vol. 1,2,3)
10. STAT/PROTRAN (v2.1) TXu 407-816 02/28/90
11. STAT/PROTRAN (v2.1) User's TXu 405-848 02/28/90
Manual
12. PDE/PROTRAN (v2.0) TXu 407-804 02/28/90
13. PDE/PROTRAN (v2.0) User's Manual TXu 405-849 02/28/90
14. MATH/PROTRAN (v2.1) TXu 407-813 02/28/90
15. MATH/PROTRAN (v2.1) User's TXu 405-850 02/28/90
Manual
16. Environment and Installation TXu 386-926 09/29/89
Assurance Test Users Guide
17. SFUN/Environment and TXu 397-119 09/29/89
Installation Assurance Test
(v2.1)
APPLICATIONS FOR U.S. COPYRIGHT REGISTRATIONS
OFFICIAL DOCKET
TITLE OF WORK CONTROL NO. DATE OF DEPOSIT
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None None None
Schedule B
to
Copyright Security Agreement
Dated as of August 16, 1996
LICENSE AGREEMENTS
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All licenses relating to the copyrights set forth on Schedule A.
STATE OF ILLINOIS )
) SS
COUNTY OF ▇▇▇▇ )
The foregoing Copyright Security Agreement was acknowledged before me
this 16th day of August, 1996, by _______________, the_______________, Visual
Numerics, Inc., a Texas corporation, on behalf of such corporation.
_______________________________
Notary Public
My commission expires: ________
STATE OF ILLINOIS )
) SS
COUNTY OF ▇▇▇▇ )
The foregoing Copyright Security Agreement was acknowledged before me
this 16th day of August, 1996, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual.
_______________________________
Notary Public
My commission expires: ________