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RESTATED SECURITY AGREEMENT AND MORTGAGE- Exhibit 10.8(d)
TRADEMARKS AND COPYRIGHTS
THIS RESTATED SECURITY AGREEMENT AND MORTGAGE is made and delivered as of
this 30th day of April, 1999, by and between INTEGRATED INFORMATION SYSTEMS,
INC. ("GRANTOR"), an Arizona corporation, in favor of IMPERIAL BANK, a
California banking corporation ("LENDER"), who are parties to the Restated Loan
Agreement described below.
R E C I T A L S:
A. Grantor is the owner of the trademarks described in Schedule A-1
annexed hereto and made a part hereof, and trademark applications described in
Schedule A-2 annexed hereto and made a part hereof;
B. Grantor is the owner of the mask works, copyrighted material and
copyright registrations listed on Schedule B-1 hereto;
C. Grantor and Lender have entered into a Restated Credit Facilities
Agreement originally made by Grantor with Imperial Bank Arizona, an Arizona
banking corporation, dated as of December 18, 1997 (the "LOAN AGREEMENT"), and
thereafter assigned to Lender, and restated as of April 30, 1999, (as it may
hereafter be amended, modified, extended or restated from time to time, (the
"RESTATED LOAN AGREEMENT"); and
D. As a condition to Lender making any Loans under the Loan Agreement
and the Restated Loan Agreement, Lender has required the execution and delivery
of this Security Agreement and Mortgage by Grantor.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises set forth in the Loan
Agreement and the Restated Loan Agreement and in order to induce Lender to make
loans under the Restated Loan Agreement, Grantor hereby agrees with Lender as
follows:
1. Certain Defined Terms. As used in this Security Agreement and
Mortgage, unless the context otherwise requires:
"Copyrights" shall mean (i) all original works of authorship fixed in any
tangible medium of expression, all mask works fixed in a chip product, all
right, title and interest therein and thereto, and all registrations and
recordings thereof, including, without limitation, applications, registrations
and recordings in the United States Copyright Office or any other country or
any political subdivision thereof, all whether now or hereafter owned or
licensable by Grantor, including, but not limited to, those registrations or
applications for registrations described on Schedule B-1 annexed hereto and
made a part hereof, and (ii) all extensions or renewals thereof.
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"Intellectual Property" shall have the meaning given to it in Paragraph 2
of this Security Agreement and Mortgage.
"Trademarks" shall mean (i) all trademarks, trade names, trade dress,
service marks, prints and labels on which said trademarks, trade names, trade
dress and service marks have appeared or appear, designs and general intangibles
of like nature, now existing or hereafter adopted or acquired, all right, title
and interest therein and thereto, and all registrations and recordings thereof,
including, without limitation, applications (except intent-to-use applications),
registrations and recordings in the United States Patent and Trademark Office or
in any similar office or agency of the Untied States, any State thereof, or any
other country or any political subdivision thereof, all whether now or
hereafter owned or licensable by Grantor, including, but not limited to, those
described in Schedule A-1, and (ii) all reissues, extensions or renewals thereof
and all licenses thereof (including, without limitation, all license
agreements).
"Trademark Applications" shall mean (i) all applications (except
intent-to-use applications) for Trademarks that have been filed in the U.S.
Patent and Trademark Office as of the effective date of this Security Agreement,
or in the future, that have not yet issued as trademarks, all whether now or
hereafter owned or licensable by Grantor, including, but not limited to, those
described on Schedule A-2 annexed hereto and made a party hereof, and (ii) all
reissues, continuations, continuations-in-part, divisional or term restorations
and all extensions thereof and all licenses thereof.
Capitalized terms not defined herein shall have the meanings attributed to
such terms in the Restated Loan Agreement.
2. Grant of Security. As collateral security for the full and prompt
payment and performance by Grantor of the Obligations, Grantor does hereby
mortgage to and pledge with Lender and does hereby grant to Lender (also hereby
reaffirming its principal to Lender) of a first priority security interest in
all of Grantor's right, title and interest in and (also hereby reaffirming the
prior mortgage and pledge to Lender) to (i) each of the Trademarks, each of the
Trademark Applications, the goodwill of the business symbolized by each of the
Trademarks, all customer lists and other records relating to the distribution of
products bearing the Trademarks and each of the Trademark Applications described
respectively in Schedules A-1 and A-2 hereto; (ii) each of the Copyrights, and
each of the registrations listed on Schedule B-1 hereto; and (iii) any and all
proceeds of the foregoing, including, without limitation, any claims by Grantor
against third parties for infringement of the Trademarks or Copyrights
(collectively, the "Intellectual Property").
Grantor and Lender hereby confirm and agree that the grant of security in
Paragraph 2 of this Security Agreement and Mortgage is a collateral grant and
that, at all times prior to an exercise of Lender's rights under Paragraph 4
hereof, Grantor shall be the holder of title to the Intellectual Property.
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3. Representations, Warranties and Covenants of Grantor. Grantor hereby
represents, warrants, covenants and agrees as follows:
(a) Title to Trademarks: Subject to the Permitted Licenses (as hereinafter
defined) and Permitted Liens, Grantor has sole, full and clear title to the
registered United States Trademarks and Trademark Applications of Grantor for
the goods and services covered by the registrations or applications thereof
and such registrations are valid and subsisting and in full force and effect.
Notwithstanding anything to the contrary, Grantor may terminate, dispose of or
allow to expire any Trademark or Trademark Application which the Board of
Directors of Borrower determines in good faith is in the best interest of
Borrower taken as a whole.
(b) Use of Trademarks. Except to the extent that Lender, upon prior written
notice by Grantor, shall consent, Grantor (either itself or through licensees)
will continue to use its Trademarks on each and every trademark class of goods
applicable to its current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademarks in full force free from
any claim of abandonment for nonuse and Grantor will not (and will not permit
any licensee thereof to) do any act or knowingly omit to do any act whereby
any Trademark may become invalidated.
(c) Title to Copyrights. Subject to the Permitted Licenses and Permitted
Liens, Grantor has sole, full and clear title to the Copyrights of Grantor
shown on Schedule B-1 and each of said Copyrights is subsisting and in full
force and effect. None of the Copyrights has been abandoned or dedicated, and,
except to the extent that Lender upon prior written notice by Grantor, shall
consent, Grantor will not do any act, or omit to do any act, whereby the
Copyrights may become abandoned or dedicated, or the remedies available
against potential infringers weakened, and Grantor shall notify Lender
promptly if it knows of any reason or has reason to know that any such
copyright or registration may become abandoned or dedicated. Notwithstanding
anything to the contrary, Grantor may terminate, dispose of or allow to expire
any Copyright which the Board of Directors of Borrower determines in good
faith to be in the best interest of Borrower taken as a whole.
(d) Further Assurances. Grantor will perform all acts and execute all
documents (including, without limitation, the documents substantially in the
forms of Exhibits 1, and 2 annexed hereof) reasonably requested by Lender at
any time to evidence, perfect, maintain, record and enforce Lender's interest
in the Intellectual Property or otherwise in furtherance of the provisions of
this Security Agreement and Mortgage, and Grantor hereby authorizes Lender to
execute and file one or more financing statements (and similar documents) or
copies thereof or of this Security Agreement and Mortgage with respect to the
Intellectual Property, signed only by Lender.
(e) Pledge of Additional Trademarks and Copyrights. In the event that
Grantor, either itself or through Lender, or any employee, licensee or
designee, (i) files an application for the registration of any Trademark or
Copyright with the United States Patent and Trademark Office, United States
Copyright Office or any similar office or agency of the United States, any
State thereof, or any other country or any political
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subdivision thereof, or (ii) files any assignment of any trademark or
copyright which Grantor may acquire, own or license from a third party, with
the United States Patent and Trademark Office, United States Copyright Office
or any similar office or agency of the United States, any State thereof or any
other country or any political subdivision thereof, Grantor shall promptly,
but in no event more than fifteen (15) days subsequent to such filing, notify
Lender thereof, and, upon request of Lender shall promptly, but in no event
more than twenty (20) days subsequent to such notice, execute and deliver any
and all agreements, instruments, documents and papers as Lender may reasonably
request to evidence Lender's security interest in such Trademark or Copyright
and the goodwill and general intangibles of Grantor relating thereto or
represented thereby.
(f) Lender Appointed Attorney-in-Fact. Grantor hereby constitutes and
appoints Lender as its attorney-in-fact to execute and file, upon the
occurrence and during the continuance of an Event of Default, all such
writings for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power being coupled with an interest and is
irrevocable while this Security Agreement and Mortgage remains in effect.
Grantor hereby releases Lender 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 Lender under this Security Agreement and Mortgage, other than
actions taken or omitted to be taken through Lender's gross negligence,
willful misconduct or knowing violation of the law.
(g) Grantor Authority. Grantor has the right and power to grant the security
interest herein granted; and the Intellectual Property is not now, and at all
times hereafter will not be, subject to any Liens or assignments of any nature
whatsoever (except for the Permitted Licenses), and Grantor has not received
any notice from any third party claiming any right or interest in and to any
of the Intellectual Property or that Grantor's use thereof infringes the
rights of any third party.
(h) Negative Pledge. Except to the extent that Lender, upon reasonable prior
written notice by Grantor, shall consent, Grantor shall not assign (by
operation of law or otherwise), sell, mortgage, lease, transfer, pledge,
hypothecate, grant a security interest in or Lien upon, encumber, or otherwise
dispose of any of the Intellectual Property, and nothing in this Security
Agreement and Mortgage shall be deemed a consent by Lender to any such action
except as expressly permitted herein. Grantor shall not grant an exclusive
license or, except in the ordinary course of business, a non-exclusive license
in any of the Intellectual Property, and nothing in this Security Agreement
and Mortgage shall be deemed a consent by Lender to any such action except as
expressly permitted herein. Non-exclusive licenses permitted under the terms
of the immediately preceding sentence, together with those licenses set forth
in Schedule C annexed hereto and made a part hereof, as the same may in either
case be amended, extended, supplemented or renewed, are sometimes referred to
herein as "Permitted Licenses".
(i) No Additional Trademarks or Copyrights. As of the date hereof, neither
Grantor nor any subsidiary of Grantor owns any Trademarks or has any
Trademarks or Copyrights registered in, or the subject of pending applications
in, the United States Patent and Trademark Office, United States Copyright
Office or any similar office or agency in
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any other country or any political subdivision thereof, other than those
unregistered Trademarks and those grants, registration, applications for
registrations of Trademarks and Copyrights described in Schedules ▇-▇, ▇-▇,
▇-▇, and C hereto.
(j) Additional Further Assurances. Grantor will take all necessary steps 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 each application and
registration and grant of the Trademarks and Trademark Applications and
Copyrights, including, without limitation, filing renewals, affidavits of use,
affidavits of incontestability opposition, interference and cancellation
proceedings (except to the extent that dedication, abandonment or invalidation
is permitted under paragraphs 3(a) and 3(c) hereof).
(k) Lender Not Liable. Grantor assumes all responsibility and liability
arising from the use of the Trademarks, and hereby indemnifies and holds
Lender harmless from and against any claim, suit, loss, damage or reasonable
expense (including reasonable attorneys' fees and expenses (including, without
limitation, the allocated costs and expenses of in-house counsel)) arising out
of any alleged defect in any product manufactured, promoted or sold by Grantor
(or any Affiliate or Subsidiary thereof) in connection with any Trademark or
out of the manufacture, promotion, labeling, sale or advertisement of any such
product by Grantor (or any Affiliate or Subsidiary thereof). Grantor agrees
that Lender does not assume, and Lender shall not have any responsibility for,
the payment of any sums due or to become due under any agreement or contract
included in the Intellectual Property or the performance of any obligations to
be performed under or with respect to any such agreement or contract by
Grantor, and Grantor hereby agrees to indemnify and hold Lender harmless with
respect to any and all claims by any Person relating thereto (except for any
claims arising out of the gross negligence or willful misconduct of Lender);
(l) Lender's Rights. Lender may, in its sole discretion, pay any amount or
do any act either required of Grantor hereunder, or as may be requested by
Lender, to preserve, defend, protect, maintain, record or enforce Grantor's
obligations contained herein, the Obligations, the Intellectual Property, or
the right and interest granted Lender herein, and which Grantor fails to do or
pay, and any such payment shall be deemed an advance by Lender to Grantor and
shall be payable on demand together with interest thereon at the Default Rate
as specified in the Restated Loan Agreement. Lender agrees to give Grantor
reasonable notice of the foregoing action, except in an emergency situation or
where immediate action is required to protect the Intellectual Property.
(m) Protection of Trademarks. Grantor agrees that if it learns of any use by
any Person of any term or design likely to cause confusion with any material
Trademark that is reasonably expected to result in a Material Adverse Effect,
it shall promptly notify Lender of such use and, if requested by Lender, shall
cooperate with Lender, at Grantor's expense, in such manner as Lender, in its
reasonable discretion, may deem advisable for the protection of Lender's
interest in and to the Trademarks, it being understood that the foregoing
shall not preclude Grantor from bringing an action against a Person for the
protection of Grantor's interest in and to such Trademarks.
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(n) Licenses of Trademarks and Copyrights. All licenses of its
Trademarks and Copyrights that Grantor has granted to third parties are set
forth in Schedule C. Notwithstanding anything to the contrary herein,
Grantor may renew, extend, amend, supplement, terminate or allow to expire
the licenses set forth in Schedule C.
4. Remedies. Upon the occurrence and during the continuance of an Event
of Default, in addition to all other rights and remedies of Lender, whether
under law, the Restated Loan Agreement or otherwise (all such rights and
remedies being cumulative, not exclusive and enforceable alternatively,
successively or concurrently), Lender shall have the following rights and
remedies which it may exercise in accordance with the provisions of Section 11
of the Restated Loan Agreement:
(a) subject to the provisions of applicable law, Lender may, at any
time and from time to time, license, whether general, special or otherwise,
and whether on an exclusive (subject to existing licenses, if any) or
nonexclusive basis, any of the Patents, Trademarks or Copyrights,
throughout the world for such term or terms, on such conditions, and in
such manner, as Lender shall in its sole discretion determine;
(b) after consultation with Grantor (but not subject to the consent of
Grantor), Lender may (without assuming any obligations or liability
thereunder), at any time, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of
Grantor in, to and under any one or more license agreements with respect to
the Intellectual Property, and take or refrain from taking any action under
any license or sublicense thereof, and Grantor hereby releases Lender from,
and agrees, to hold Lender free and harmless from and against, any claims
arising out of, any action taken or omitted to be taken with respect to any
such license agreement, except to the extent that such claims are the
result of the gross negligence or willful misconduct of Lender;
(c) Lender may, at any time and from time to time upon thirty (30)
days notice to Grantor (which notice shall constitute a commercially
reasonable notice under Section 9-504 of the UCC and other applicable law),
assign, sell, or otherwise dispose of, the Intellectual Property of any of
it, either with or without special or other conditions or stipulations,
with power to buy the Intellectual Property or any part of it, and with
power also to execute assurances, and do all other acts and things for
completing the assignment, sale or disposition which Lender shall, in its
sole discretion, deem appropriate or proper;
(d) in addition to the foregoing, in order to implement the
assignment, sale or other disposal of any of the Intellectual Property
pursuant to Subparagraph 4(c) hereof, Lender may, at any time, pursuant to
the authority granted in Subparagraph 3(f) hereof (such authority becoming
effective on the occurrence and remaining effective during the continuation
as hereinabove provided of an Event of Default), execute and deliver on
behalf of Grantor, one or more instruments of assignment of the Patents,
Trademarks or Copyrights (or any application or registration thereof), in a
form suitable for filing, recording or registration in any country; and
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(e) Lender may apply the proceeds actually received from any such
license, assignment, sale or other disposition of the payment of the
Obligations as provided for in the Restated Loan Agreement.
Grantor shall remain liable for any deficiency with respect to the Obligations,
which shall bear interest and be payable at the Default Rate under the Restated
Loan Agreement. The rights of Grantor to receive any surplus, if any, shall be
subject to any duty of Lender imposed by law to the holder of any subordinate
security interest in the Intellectual Property known to Lender. Nothing
contained herein shall be construed as requiring Lender to take any such action
at any time. In the event of any such license, assignment, sale or other
disposition of the Intellectual Property, or any of it, after the occurrence and
during the continuation as hereinabove provided of an Event of Default (but in
no event for a period greater than ninety (90) days) Grantor shall supply, to
the extent reasonably possible, its know-how and expertise relating to the
manufacture and sale of the products bearing the Trademarks or in connection
with the Copyrights and its customer lists and other records relating to the
Trademarks or Copyrights and to the distribution of said products, to Lender or
its designee. Grantor agrees to pay when due all reasonable costs and expenses
incurred in any such transfer of the Trademarks or Copyrights, including any
taxes, fees and reasonable attorneys' fees (including, without limitation, the
allocated costs and expenses of in-house counsel), and all such costs shall be
added to the Obligations.
5. Amendments and Modification. No provision hereof shall be modified,
altered, waived or limited except by a written instrument expressly referring
to this Security Agreement and Mortgage and executed by the party to be charged.
6. Binding Nature. This Security Agreement and Mortgage shall be binding
upon and inure to the benefit of the successors, assigns or other legal
representatives of Grantor, and shall, together with the rights and remedies of
Lender hereunder, be binding upon and inure to the benefit of Lender, its
successors, assigns or other legal representatives.
7. Governing Law. This Security Agreement and Mortgage and the Obligations
shall be construed in accordance with and governed by the laws of the State of
California governing the performance of contracts wholly within the State of
California, without giving effect to the conflict of law principles thereof,
except to the extent that the validity or perfection of the
security interest hereunder, or remedies hereunder, in respect of any
particular intellectual property are governed by the laws of a jurisdiction
other than the State of California.
8. Waiver of Jury Trial. GRANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTER-CLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS SECURITY
AGREEMENT AND MORTGAGE, THE COLLATERAL OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. GRANTOR AGREES THAT THIS PARAGRAPH
8 IS A SPECIFIC AND MATERIAL ASPECT OF THIS SECURITY AGREEMENT AND MORTGAGE AND
ACKNOWLEDGES THAT LENDER WOULD NOT EXTEND TO GRANTOR ANY FINANCIAL
ACCOMMODATIONS UNDER THE RESTATED LOAN AGREEMENT IF
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THIS PARAGRAPH 8 WERE NOT PART OF THIS SECURITY AGREEMENT AND MORTGAGE.
9. Claims Resolution. The parties hereto agree:
(a) Other than matters involving the appointment of a receiver, or the
exercise of other provisional remedies (any and all of which may be initiated
pursuant to applicable law), each controversy, dispute or claim between or among
the parties hereto arising out of or relating to this Agreement (individually
and collectively, a "Claim") which is not settled in writing within thirty (30)
days after the date on which a party subject to this Agreement gives written
notice to all other parties that a Claim exists (the "CLAIM DATE"), will be
settled by a "Reference Proceeding."
(b) "Reference Proceeding" means a proceeding in California in
accordance with the provisions of Section 638 et seq. of the California Code of
Civil Procedure, or their successor section ("CCP"), which shall constitute the
exclusive remedy for the settlement of any Claim concerning this Agreement,
including whether such controversy, dispute or claim is subject to the
reference proceeding. Except as set forth above, the parties waive their rights
to initiate any legal proceedings against each other in any court or
jurisdiction other than Los Angeles County (the "COURT").
(c) The referee shall be a retired Judge of the Court selected by
mutual Agreement of the parties, and if they cannot so agree within forty-five
(45) days after the Claim Date, the Presiding Judge of the Court (or his
representative) shall promptly select the referee. The referee shall be
appointed to sit as a temporary judge, with all of the powers for a temporary
judge, as authorized by law, and upon selection should take and subscribe to the
oath of office as provided for in Rule 244 of the California Rules of Court (or
any subsequently enacted Rule). Each party shall have one peremptory challenge
pursuant to CCP Section 170.6.
(d) The referee shall (i) be requested to set the matter for hearing
within sixty (60) days after the Claim Date and (ii) try any and all issues of
law or fact and report a statement of decision upon them, if possible, within
ninety (90) days of the Claim Date. Any decision rendered by the referee will
be final, binding and conclusive and judgment shall be entered pursuant to CCP
Section 644 in any court in the State of California having jurisdiction.
(e) Any party may apply for a reference proceeding at any time after
thirty (30) days following notice to any other party of the nature of the
controversy, dispute or claim, by filing a petition for a hearing and/or trial.
(f) All discovery permitted by this Agreement shall be completed no
later than fifteen (15) days before the first hearing date established by the
referee. The referee may extend such period in the event of a party's refusal
to provide requested discovery for any reason whatsoever, including, without
limitation, legal objections raised to such discovery or unavailability of a
witness due to absence or illness. No party shall be entitled to "priority" in
conducting discovery. Either party upon seven (7) days written
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notice may take depositions, and request for production or inspection of
documents shall be responded to within ten (10) days after service. All
disputes relating to discovery which cannot be resolved by the parties
shall be submitted to the referee whose decision shall be final and binding
upon the parties. Pending appointment of the referee as provided herein,
the Superior Court is empowered to issue temporary and/or provisional
remedies, as appropriate.
(g) Except as expressly set forth in this Agreement, the referee
shall determine the manner in which the reference proceeding is conducted
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of
the reference proceeding. All proceedings and hearings conducted before the
referee, except for trial, shall be conducted without a court reporter,
except that when any party so requests, a court reporter will be used at
any hearing conducted before the referee. The party making such a request
shall have the obligation to arrange for and pay for the court reporter.
The costs of the court reporter at the trial shall be borne equally by the
parties.
(h) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the
State of California will be applicable to the reference proceeding. The
referee shall be empowered to enter equitable as well as legal relief, to
provide all temporary and/or provisional remedies and to enter equitable
orders that will be binding upon the parties. The referee shall issue a
single judgment at the close of the reference proceeding that shall dispose
of all of the claims of the parties that are the subject of the reference.
(i) The parties hereto expressly reserve the right to contest or
appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties hereto expressly reserve the
right to findings of fact, conclusions of law, a written statement of
decision, and the right to move for a new trial or a different judgment,
which new trial, if granted, is also to be a reference proceeding under
this provision.
(j) In the event that the enabling legislation which provides for
appointment of a referee is repealed (and no successor statue is enacted),
any dispute between the parties that would otherwise be determined by the
reference procedure herein described will be resolved and determined by
arbitration. The arbitration will be conducted by a retired judge of the
Court, in accordance with the California Arbitration Act, Section 1280
through Section 1294.2 of the CCP as amended from time to time. The
limitations with respect to discovery as set forth hereinabove shall apply
to any such arbitration proceeding.
10. Admissibility of Security Agreement and Mortgage. Grantor agrees that
any copy of this Security Agreement and Mortgage signed by Grantor and
transmitted by telecopier for delivery to Lender shall be admissible in evidence
as the original itself in any judicial or administrative proceeding, whether or
not the original is in existence.
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11. Address for Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (unless otherwise
expressly provided herein) and shall be sent and deemed to have been received as
set forth in Section 12.25 of the Restated Loan Agreement.
12. Security Interest Absolute. All rights of Lender and security
interests hereunder, and all of the obligations of Grantor hereunder, shall be
absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of any of the Loan
Documents or any other agreement relating thereto;
(b) any change in the time, manner or place of payment 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 any of the Loan Documents;
(c) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Grantor or a third party grantor of a
security interest or lien.
13. Continuing Security Interest. This Security Agreement and Mortgage
shall create a continuing security interest in the Intellectual Property and
shall: (i) remain in full force and effect until payment in full in cash or in
another manner acceptable to Lender and termination of the Obligations, and the
expiration or termination of the Commitment, (ii) be binding upon and inure to
the benefit of, and be enforceable by, Grantor, its successors and assigns, and
(iii) be binding upon and inure to the benefit of, and be enforceable by, Lender
and its successors, transferees and assigns. Upon payment in full in cash or in
another manner acceptable to Lender and termination of the Obligations, the
security interest granted hereby shall terminate and all rights to the
Intellectual Property shall revert to Grantor. Upon any such termination, Lender
will, at Grantor's expense, execute and deliver to Grantor such documents as
Grantor shall reasonably request to evidence such termination.
14. Counterparts. This Security Agreement and Mortgage may be executed by
the parties hereto individually or in any combination, in one or more
counterparts, each of which shall be an original and all of which shall together
constitute one and the same agreement.
15. Captions; Separability. The captions of the various sections and
paragraphs of this Security Agreement and Mortgage have been inserted only for
the purposes of convenience; such captions are not a part of this Security
Agreement and Mortgage and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Security Agreement and
Mortgage.
16. Schedules. Lender is authorized to annex hereto any schedules referred
to herein that have been delivered to it by Grantor.
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17. Acknowledgment of Receipt. Grantor acknowledges receipt of a copy of
this Security Agreement and Mortgage.
IN WITNESS WHEREOF, Grantor and Lender have each executed this Security
Agreement and Mortgage as of April 30, 1999.
INTEGRATED INFORMATION SYSTEMS, INC.,
an Arizona corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
Grantor's Address:
Fountainhead Corporate Park
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President & CEO
Telephone: (602)
Telefacsimile: (602)
IMPERIAL BANK, a California banking corporation
By /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Lender's Address:
One Arizona Center
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE A-1 TO SECURITY AGREEMENT AND MORTGAGE
TRADEMARKS
Application or Application Serial No.
Trademark Registration Date or Registration No.
--------- ----------------- ----------------------
CitiyServe NONE NONE
CityCode
CityPlan
CityWorks
CityBuild
FundTrack
Customer Service Automation
Case Management
Strategic Sales
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SCHEDULE A-2 TO SECURITY AGREEMENT AND MORTGAGE
TRADEMARK APPLICATIONS
Application or Application Serial No.
Trademark Registration Date or Registration No.
--------- ----------------- ----------------------
NONE
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SCHEDULE B-1 TO SECURITY AGREEMENT AND MORTGAGE
COPYRIGHTS
Issue or
Titles Filing Date Copyright No.
------ ----------- -------------
NONE
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SCHEDULE C TO SECURITY AGREEMENT AND MORTGAGE
LICENSES
Description of Licensed
Licensee Date of License Intellectual Property
-------- --------------- -----------------------
City of Phoenix Software Property known as
"CityServe"
Maricopa County
City of Long Beach
City of Commerce
National Family Legal
Foundation
City of Gainsville
State of Arizona
City of San Diego
City of Palo Alto
City of ▇▇▇▇▇▇ Software Property known as
"CityCode"
City of Indio
Town of ▇▇▇▇▇▇▇
City of Houston
JobBank Software Property known as
"Strategic Sales"
Leading Edge Technology
CDI
The Coriolis Group
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16
EXHIBIT 1 TO RESTATED SECURITY AGREEMENT AND MORTGAGE
TRADEMARK SECURITY AGREEMENT
R E C I T A L S:
A. INTEGRATED INFORMATION SYSTEMS, INC., an Arizona corporation
(herein referred to as "Grantor"), having an address at Fountainhead ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, owns the trademarks, trade names,
trade dress and service marks listed on the annexed Schedule 1-A, which
trademarks, trade names, trade dress and service marks are registered in the
United States Patent and Trademark Office (the "Trademarks"); and
B. Grantor and Imperial Bank, a California banking corporation
("Lender") have entered into a Restated Credit Facilities Agreement originally
made by Grantor with Imperial Bank Arizona, an Arizona banking corporation,
dated as of December 18, 1997 (the "Loan Agreement"), and thereafter assigned
to Lender, and restated as of April 30, 1999, (as it may hereafter be amended,
modified, extended or restated from time to time, (the "Restated Loan
Agreement"); and
C. Lender is desirous of having a security interest and mortgage in
favor of Lender on the above-identified property in order to secure the payment
of certain obligations of Grantor now or hereafter owing to Lender; and
D. Grantor has entered into a Security Agreement and Mortgage -
Trademarks, Patents and Copyrights (said Agreement, as it may hereafter be
amended or otherwise modified from time to time being the "Security Agreement
and Mortgage," the terms defined therein and not otherwise defined herein being
used herein as therein defined) in favor of Lender; and
WHEREAS, pursuant to the Security Agreement and Mortgage, Grantor has
granted to Lender a security interest in, and mortgage on, all right, title and
interest of Grantor in and to the Trademarks, together with all prints and
labels on which said Trademarks have appeared or appear, designs and general
intangibles of like nature, now existing or hereafter adopted or acquired, and
the goodwill of the business symbolized by the Trademarks and the Trademark
Applications (excluding intent-to-use 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, all whether now or hereafter owned or
licensable by Grantor, and all reissues, extensions or renewals thereof and all
proceeds thereof, including, without limitation, any claims by Grantor against
third parties for infringement thereof (the "Intellectual Property"), to secure
the payment, performance and observance of the Obligation;
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AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Grantor does hereby grant and convey to Lender (thereby
also reaffirming its prior grant and conveyance to Lender of) a security
interest in and mortgage lien on the Intellectual Property, in order to secure
the prompt payment, performance and observance of the Obligations.
Grantor does hereby further acknowledge and affirm that the rights and
remedies of Lender with respect to the security interest in the mortgage on the
Intellectual Property made and granted hereby and more fully set forth in the
Security Agreement and Mortgage, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein.
Lender's address is One Arizona Center, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, Grantor has duly executed or caused this Security
Agreement to be duly executed as of the 30th day of April, 1999.
INTEGRATED INFORMATION SYSTEMS, INC.,
an Arizona corporation
By: ________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief
Executive Officer
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On this _____ day of April, 1999, before me personally appeared ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at __________________________ , and that he is President and Chief
Executive Officer of Grantor; that he/she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
affixed pursuant to authority of the Board of Directors of said corporation and
that he/she signed his/her name thereto in his/her capacity as an authorized
officer of said corporation pursuant to such authority.
____________________________________
Notary Public
My Commission Expires:
_____________________
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SCHEDULE 1-A TO TRADEMARK SECURITY AGREEMENT
TRADEMARKS
Application or Application Serial No.
Trademark Registration Date or Registration No.
--------- ----------------- ----------------------
NONE
18
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EXHIBIT 2 TO RESTATED SECURITY AGREEMENT AND MORTGAGE
COPYRIGHT SECURITY AGREEMENT
R E C I T A L S:
A. INTEGRATED INFORMATION SYSTEMS, INC., an Arizona corporation (herein
referred to as "Grantor"), owns the copyrights listed on the annexed Schedule
2-A, which copyrights are registered in the United States Copyright Office (the
"Copyrights"); and
B. Grantor and Imperial Bank, a California banking corporation ("Lender")
have entered into a Restated Credit Facilities Agreement originally made by
Grantor with Imperial Bank Arizona, an Arizona banking corporation, dated as of
December 18, 1997 (the "Loan Agreement"), and thereafter assigned to Lender, and
restated as of April 30, 1999, (as it may hereafter be amended, modified,
extended or restated from time to time, (the "Restated Loan Agreement"); and
C. Lender is desirous of having a security interest and mortgage in favor
of Lender on the above-identified property in order to secure the payment of
certain obligations of Grantor now or hereafter owing to Lender; and
D. Grantor has entered into a Security Agreement and Mortgage -
Trademarks, Patents and Copyrights (said Agreement, as it may hereafter be
amended or otherwise modified from time to time being the "Security Agreement
and Mortgage," the terms defined therein and not otherwise defined herein being
used herein as therein defined) in favor of Lender; and
E. Pursuant to the Security Agreement and Mortgage, Grantor has granted
to Lender a security interest in, and mortgage on, all right, title and interest
of Grantor in and to the Copyrights, and the registrations and recordings
thereof in the United States Copyright Office or any other country or any
political subdivision thereof, all whether now or hereafter owned or licensable
by Grantor and all extensions or renewals thereof and all licenses thereof and
all proceeds thereof, including, without limitation, any claims by Grantor
against third parties for infringement thereof (the "Intellectual Property"), to
secure the payment, performance and observance of the Obligations.
A G R E E M E N T:
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Grantor does hereby grant and convey to Lender (thereby
also reaffirming its prior grant and conveyance to Lender of) a security
interest in and mortgage lien on the Intellectual Property, in order to secure
the prompt payment, performance and observance of the Obligations.
Grantor does hereby further acknowledge and affirm that the rights and
remedies of Lender with respect to the security interest in and mortgage on the
Intellectual Property made and granted hereby are more fully set forth in the
Security Agreement and Mortgage, the terms and provisions of which are hereby
incorporated herein by reference as if fully set forth herein.
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20
Lender's address is One Arizona Center, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, Grantor has duly executed or caused this Security
Agreement to be duly executed as of the 30th day of April, 1999.
INTEGRATED INFORMATION SYSTEMS, INC.,
an Arizona corporation
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
STATE OF ARIZONA )
)ss.
COUNTY OF MARICOPA)
On this day of April, 1999, before me personally appeared ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
resides at , and that he is
President and Chief Executive Officer of Grantor; that he/she knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was affixed pursuant to authority of the Board of Directors of
said corporation and that he/she signed his/her name thereto in his/her
capacity as an authorized officer of said corporation pursuant to such
authority.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------
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21
SCHEDULE 2-A TO COPYRIGHT SECURITY AGREEMENT
COPYRIGHTS
Issue or
Titles Filing Date Copyright No.
------ ----------- -------------
NONE
21