Exhibit 4.2
INTELLECTUAL PROPERTY SECURITY AGREEMENT
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THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (the "Agreement"), dated as of
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August 31, 2006, is made by TRINITY WORKPLACE LEARNING CORPORATION, a Delaware
corporation ("Grantor"), in favor of LAURUS MASTER FUND, LTD. ("Laurus").
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WHEREAS, pursuant to that certain Security Agreement dated as of the date hereof
by and between Grantor, certain other companies party thereto and Laurus (as
from time to time amended, restated, supplemented or otherwise modified, the
"Security Agreement"), Laurus has agreed to provide financial accommodations to
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Grantor and certain of its subsidiaries;
WHEREAS, Laurus is willing to enter into the Security Agreement, but only upon
the condition, among others, that Grantor shall have executed and delivered to
Laurus this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
Section 1. DEFINED TERMS.
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(a) When used herein the following terms shall have the following meanings:
"Copyrights" means all copyrights arising under the laws of the United States,
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any other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished, all registrations and
recordings thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright
Office, and the right to obtain all renewals of any of the foregoing.
"Copyright Licenses" means all written agreements naming any Grantor as licensor
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or licensee, granting any right under any Copyright, including the grant of
rights to manufacture, distribute, exploit and sell materials derived from any
Copyright.
"General Intangibles" shall have the meaning provided thereto in Section 9-102
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of the UCC, as amended, restated or otherwise modified from time to time.
"Obligations" shall have the meaning provided thereto in the Security Agreement.
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"Patents" means (a) all letters patent of the United States, any other country
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or any political subdivision thereof, and all reissues and extensions of such
letters patent, (b) all applications for letters patent of the United States or
any other county and all divisions, continuations and continuations-in-part
thereof, and (c) all rights to obtain any reissues or extensions of the
foregoing.
"Patent Licenses" means all agreements, whether written or oral, providing for
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the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent.
"Trademarks" means (a) all trademarks, trade names, corporate names, business
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names, fictitious business names, trade styles, services marks, logos and other
source or business identifiers, and all goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether 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 political subdivision
thereof, or otherwise, and all common-law rights thereto, and (b) the right to
obtain all renewals thereof.
"Trademark Licenses" means, collectively, each agreement, whether written or
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oral, providing for the grant by or to any Grantor of any right to use any
Trademark.
"UCC" shall have the meaning provided thereto in the Master Security Agreement.
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(b) All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Security Agreement.
Section 2. GRANT OF SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL.
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To secure the complete and timely payment of all the Obligations of the Grantor
now or hereafter existing from time to time, Grantor hereby grants to Laurus a
continuing first priority security interest in all of Grantor's right, title and
interest in, to and under the following, whether presently existing or hereafter
created or acquired (collectively, the "Collateral"):
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(a) all of its Patents and Patent Licenses to which it is a party including
those referred to on Schedule I hereto;
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(b) all of its Trademarks and Trademark Licenses to which it is a party
including those referred to on Schedule II hereto;
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(c) all of its Copyrights and Copyright Licenses to which it is a party
including those referred to on Schedule III hereto;
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(d) all reissues, continuations or extensions of the foregoing;
(e) all goodwill of the business connected with the use of, and symbolized
by, each Patent, each Patent License, each Trademark, each Trademark License,
each Copyright and each Copyright License; and
(f) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present or
future (i) infringement or dilution of any Patent or Patent licensed under any
Patent License, (ii) injury to the goodwill associated with any Patent or any
Patent licensed under any Patent License, (iii) infringement or dilution of any
Trademark
or Trademark licensed under any Trademark License, (iv) injury to the goodwill
associated with any Trademark or any Trademark licensed under any Trademark
License, (v) infringement or dilution of any Copyright or Copyright licensed
under any Copyright License, and (vi) injury to the goodwill associated with any
Copyright or any Copyright licensed under any Copyright License.
Section 3. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
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that Grantor does not have any interest in, or title to, any Patent, Trademark
or Copyright except as set forth in Schedule I, Schedule II and Schedule III,
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respectively, hereto. Grantor's Patents, Trademarks and Copyrights are valid
and enforceable, are solely owned by Grantor and there is no claim that the use
of any of them violates the rights of any third person. This Agreement is
effective to create a valid and continuing lien on and perfected security
interests in favor of Laurus in all of Grantor's Patents, Trademarks and
Copyrights and such perfected security interests are enforceable as such as
against any and all creditors of, and purchasers from, Grantor. Upon filing of
this Intellectual Property Security Agreement with the United States Patent and
Trademark Office and the United States Copyright Office and the filing of
appropriate financing statements, all action necessary or desirable to protect
and perfect Laurus' Lien on each Grantor's Patents, Trademarks and Copyrights
shall have been duly taken.
Section 4. COVENANTS. Grantor covenants and agrees with Laurus that from
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and after the date of this Agreement:
(a) Grantor shall notify Laurus immediately if it knows or has reason to
know that any application or registration relating to any Patent, Trademark or
Copyright (now or hereafter existing) may become abandoned or dedicated, or of
any adverse determination or development (including the institution of, or any
such determination or development in, any proceeding in the United States Patent
and Trademark Office, the United States Copyright Office or any court) regarding
Grantor's ownership of any Patent, Trademark or Copyright, its right to register
the same, or to keep and maintain the same.
(b) In no event shall Grantor, either directly or through any agent,
employee, licensee or designee, file an application for the registration of any
Patent, Trademark or Copyright with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or agency
without giving Laurus prior written notice thereof, and, upon request of Laurus,
Grantor shall execute and deliver a supplement hereto (in form and substance
satisfactory to Laurus) to evidence Laurus' lien on such Patent, Trademark or
Copyright, and the General Intangibles of Grantor relating thereto or
represented thereby.
(c) Grantor shall take all actions necessary or requested by Laurus to
maintain and pursue each application, to obtain the relevant registration and to
maintain the registration of each of the Patents or Trademarks (now or hereafter
existing), including the filing of applications for renewal, affidavits of use,
affidavits of noncontestability and opposition and interference and cancellation
proceedings.
(d) In the event that any of the Collateral is infringed upon, or
misappropriated or diluted by a third party, Grantor shall notify Laurus
promptly after Grantor learns thereof. Grantor shall, unless it shall
reasonably determine that such Collateral is in no way material to the conduct
of its business or operations, promptly ▇▇▇ for infringement, misappropriation
or dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and shall take such other actions as Laurus shall
deem appropriate under the circumstances to protect such Collateral.
Section 5. SECURITY AGREEMENT. The security interests granted pursuant to
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this Agreement are granted in conjunction with the security interests granted to
Laurus by Grantor pursuant to the Security Agreement. Grantor hereby
acknowledges and affirms that the rights and remedies of Laurus with respect to
the security interest in the Collateral made and granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.
Section 6. REINSTATEMENT. This Agreement shall remain in full force and
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effect and continue to be effective should any petition be filed by or against
Grantor for liquidation or reorganization, should Grantor become insolvent or
make an assignment for the benefit of any creditor or creditors or should a
receiver or trustee be appointed for all or any significant part of Grantor's
assets, and shall continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee of the Obligations, whether as
a "voidable preference," "fraudulent conveyance," or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
Section 7. INDEMNIFICATION. (A) Grantor assumes all responsibility and
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liability arising from the use of the Patents, Trademarks and/or Copyrights and
Grantor hereby indemnifies and holds Laurus harmless from and against any claim,
suit, loss, damage or expense (inclu-ding reasonable attorneys' fees) arising
out of Grantor's operations of its business from the use of the Patents,
Trademarks and/or Copyrights. (B) In any suit, proceeding or action brought by
Laurus under any Patent License, Trademark License or Copyright License for any
sum owing thereunder, or to enforce any provisions of such license, Grantor will
indemnify and keep Laurus harmless from and against all expense, loss or damage
suffered by reason of any defense, set off, counterclaim, recoupment or
reduction or liability whatsoever of the obligee thereunder, arising out of a
breach of Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
obligee or its successors from Grantor, and all such obligations of Grantor
shall be and remain enforceable against and only against Grantor and shall not
be enforceable against Laurus.
Section 8. NOTICES. Whenever it is provided herein that any notice, demand,
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request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any
of the parties desires to give
and serve upon any other party any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be given in the manner, and deemed
received, as provided for in the Security Agreement.
Section 9. TERMINATION OF THIS AGREEMENT. Subject to Section 6 hereof, this
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Agreement shall terminate upon payment in full in cash of all Obligations and
irrevocable termination of the Security Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, Grantor has caused this Intellectual Property Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
TRINITY WORKPLACE LEARNING CORPORATION
By:____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
ACCEPTED and ACKNOWLEDGED by:
LAURUS MASTER FUND, LTD.
By:
Name:
Title: