EXHIBIT 10.17
INTELLECTUAL PROPERTY SECURITY AGREEMENT
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INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of May 8, 2002,
between Achievement Tec Holdings, Inc., a Delaware corporation (the "Company"),
Achievement Tec, Inc. a Texas corporation ("Achievement"), Career Direction,
Inc., a Texas corporation ("Career") (each of Achievement and Career is a
"Subsidiary" and, the Subsidiaries together with Company, are the "Debtors") and
the secured parties signatory hereto and their respective endorsees, transferees
and assigns (each a "Secured Party" and collectively, the "Secured Parties").
W I T N E S S E T H:
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WHEREAS, pursuant to a Secured Convertible Debenture Purchase
Agreement, dated the date hereof, between the Company and the Secured Parties
(the "Purchase Agreement"), the Company has agreed to issue to the Secured
Parties and the Secured Parties have agreed to purchase from the Company certain
of the Company's 10% Secured Convertible Debentures, due two years from the date
of issue (the "Debentures"), which are convertible into shares of the Company's
Common Stock, $.001 par value (the "Common Stock"); and
WHEREAS, in order to induce the Secured Parties to purchase the
Debentures, the Company has agreed to execute and deliver to the Secured Parties
this Agreement for the benefit of the Secured Parties and to grant to them a
security interest (which is pari passu with the security interest granted by the
Company to AJW Partners, LLC and New Millennium Capital Partners II, LLC (the
"Initial Secured Parties") pursuant to a Security Agreement and an Intellectual
Property Security Agreement, both dated June 29, 2001 ("Initial Security
Agreements" and subordinate only to a federal tax lien created in favor of the
Internal Revenue Service on April 8, 2002 with respect to Career as set forth on
Schedule 1 attached hereto ("Federal Tax Lien")), in certain property of the
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Debtors to secure the prompt payment, performance and discharge in full of all
of the Company's obligations under the Debentures and agreements entered into in
connection therewith..
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. Certain Definitions. As used in this Agreement, the following
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terms shall have the meanings set forth in this Section 1. Terms used but not
otherwise defined in this Agreement that are defined in Article 9 of the UCC
(such as "general intangibles" and "proceeds") shall have the respective
meanings given such terms in Article 9 of the UCC.
(a) "Business Day" means any day except Saturday, Sunday and
any day which shall be a legal holiday or a day on which banking institutions in
the State of New York or Texas generally are authorized or required by law or
other government actions to close.
(b) "Collateral" means all of the Debtor's right, title and
interest in and to all of Trademarks, Patents, Copyrights, and other general
intangible property of the Debtors, all trade secrets, intellectual property
rights in computer software and computer software products, design rights which
may be available to the Debtors, rights to proceeds arising from any and all
claims for damages by way of past, present and future infringement of any
Collateral with the right but not the obligation to ▇▇▇ on behalf of and collect
such damages for said use or infringement, licenses to use any of the
Copyrights, Patents or Trademarks, and all license fees and royalties arising
from such use to the extent permitted by such license or rights. The term
"Collateral" shall include all of the foregoing items, whether presently owned
or existing or hereafter acquired or coming into existence, all additions and
accessions thereto, all substitutions and replacements thereof, and all
proceeds, products and accounts thereof, including without limitation all
proceeds from the licensing or sale or other transfer of Collateral and of
insurance covering the same and of any tort claims in connection therewith.
(c) "Copyrights" means any and all copyrights, copyright
applications, copyright registration and like protections in each work or
authorship and derivative work thereof that is created by the Debtor, whether
published or unpublished and whether or not the same also constitutes a trade
secret, now or hereafter existing, created, acquired or held, including, without
limitation, those set forth on Exhibit A attached hereto.
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(d) "Obligations" means all of the Debtor's obligations under
this Agreement, the Registration Rights Agreement, the Debentures and the
Purchase Agreement, 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.
(e) "Patents" means all of the Debtor's patents, patent
applications, letters patent and like protections of the United States or any
other country, including, without limitation, improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same, and including, without limitation, those set forth on Exhibit B attached
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hereto.
(f) "Trademarks" means any trademark, service ▇▇▇▇ right,
whether or not registered, applications to register and registrations of the
same and like protections, and the entire goodwill of the business of the
Debtors connected with or symbolized by such trademarks, including, without
limitation, those set forth on Exhibit C attached hereto.
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(g) "UCC" means the Uniform Commercial Code and/or any other
applicable law of each jurisdiction in which any Debtor is incorporated or
organized (including, without limitation the State of Delaware, and the State of
Texas) and any jurisdiction as to any Collateral located therein.
2. Grant of Security Interest. As an inducement for the Secured
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Party to purchase the Debentures and to secure the complete and timely payment,
performance and discharge in full, as the case may be, of all of the
Obligations, the Debtors hereby, unconditionally and irrevocably, pledges,
grants and hypothecates to the Secured Party, a continuing security interest in,
a lien upon and a right of set-off against all of the Debtor's right, title and
interest of whatsoever kind and nature in and to the Collateral (the "Security
Interest") senior to all liens and encumbrances of the Debtors other than the
Federal Tax Lien and pari passu with the security interest granted by the
Company to the Initial Secured Parties pursuant to the Initial Security
Agreements (the "Initial Priority Interest").
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3. Representations, Warranties, Covenants and Agreements of the
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Debtors. Each Debtor represents and warrants to, and covenants and agrees with,
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the Secured Parties as follows:
(a) Each Debtor 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 such Debtor
of this Agreement and the filings contemplated therein have been duly authorized
by all necessary action on the part of such Debtor and no further action is
required by such Debtor.
(b) Each Debtor is the sole owner of the Collateral (except
for non-exclusive licenses granted by such Debtor in the ordinary course of
business), free and clear of any liens, security interests, encumbrances, rights
or claims other than the Initial Priority Interest (which is pari passu with the
Security Interest created hereunder) and the Federal Tax Lien, and is fully
authorized to grant the Security Interest in and to pledge the Collateral. No
consent is required to enter into this Agreement or issue the Debentures or to
create the Security Interest hereunder that has not been received. There is not
on file in any governmental or regulatory authority, agency or recording office
an effective financing statement or similar instrument, 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 Parties pursuant to this Agreement or
with respect to the Federal Tax Lien or the Initial Priority Interest) covering
or affecting any of the Collateral. So long as this Agreement shall be in
effect, the Debtors 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
Parties pursuant to the terms of this Agreement or with respect to the Initial
Priority Interest).
(c) Exhibit A sets forth a true and complete list of all
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Copyrights in existence as of the date of this Agreement. Exhibit B sets forth a
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true and complete list of all Patents that have been filed as of the date of
this Agreement. Exhibit C sets forth a true and complete list of all Trademarks
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filed as of the date of this Agreement. Each Debtor shall, within ten (10) days
of obtaining knowledge thereof, advise each Secured Party in writing of any
change in the composition of the Collateral, including, without limitation, any
subsequent ownership rights of such Debtor in or to any Copyright, Patent or
Trademark.
(d) Each of the Patents, Trademarks and Copyrights is valid
and enforceable, and no part of the Collateral has been judged invalid or
unenforceable. No written claim has been received that any of the Patents,
Trademarks or Copyrights or the Debtor's use of any Collateral violates the
rights of any third party. There has been no adverse decision to the Debtors'
claim of ownership rights in or exclusive rights to use the Collateral in any
jurisdiction or to the Debtor's right to keep and maintain such Collateral in
full force and effect, and there is no proceeding involving said rights pending
or, to the best knowledge of the Debtors, threatened before any court, judicial
body, administrative or regulatory agency, arbitrator or other governmental
authority.
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(e) Each Debtor shall at all times maintain its books of
account and records relating to the Collateral at its principal place of
business and may not relocate such books of account and records unless it
delivers to the Secured Parties 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 appropriate financing
statements and other 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 Parties valid, perfected and continuing liens in the Collateral pari
passu with the Initial Priority Interest and subordinate only to the Federal Tax
Lien. The principal place of business of the Debtors is located at the address
set forth on the applicable signature pages to this Agreement.
(f) This Agreement creates in favor of each Secured Party a
valid security interest in the Collateral, including the Collateral listed on
the Exhibits hereto, securing the payment and performance of the Obligations,
and, upon making the filings described in the immediately following sentence, a
perfected first priority security interest in such Collateral pari passu with
the Initial Priority Interest and subordinate only to the Federal Tax Lien. The
Security Interest is senior to all liens and encumbrances (except for the
Federal Tax Lien) and is pari passu with the Initial Priority Interest. Except
for (x) the filing of this Agreement with the United States Patent and Trademark
Office with respect to the Patents and Trademarks and the filing of this
Agreement with the Register of Copyrights with respect to the Copyrights, and
(y) the filing of financing statements on Form-1 under the UCC with the
jurisdictions indicated in Schedule B, attached hereto, no authorization or
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approval of or filing with or notice to any governmental authority or regulatory
body is required either: (i) for the grant by each Debtor of, or the
effectiveness of, the Security Interest granted hereby or for the execution,
delivery and performance of this Agreement by such Debtor or (ii) for the
perfection of or exercise by the Secured Party of its rights and remedies
hereunder. Each Debtor acknowledges and agrees that a copy of this Agreement (or
instruments executed and delivered pursuant hereto) will be filed and recorded
with each of the United States Patent and Trademark Office and the Register of
Copyrights with respect to the Patents, Trademarks and Copyrights that are now
or hereafter in existence.
(g) On the date of execution of this Agreement, each Debtor
will deliver to the Secured Parties: (i) one or more executed UCC financing
statements on Form-1 with respect to the Security Interest for filing with the
jurisdictions indicated on Schedule B, attached hereto and in such other
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jurisdictions as may be requested by the Secured Party in compliance with
applicable law and (ii) one or more executed recordation sheets relating to the
filing and recording of this Agreement with each of the United States Patent and
Trademark Office and the Register of Copyrights with respect to the Patents,
Trademarks and Copyrights that are now in existence.
(h) 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 Debtors are a party or by which the Debtors are
bound. No consent (including, without limitation, from stock holders or
creditors of the Debtors) is required for the Debtors to enter into and perform
its obligations hereunder.
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(i) Each Debtor 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 Collateral in favor of the Secured Parties
(subordinate only to the Federal Tax Lien) and pari passu with the Initial
Priority Interest until this Agreement and the Security Interest hereunder shall
terminated pursuant to Section 10. Each Debtor hereby agrees to defend the same
against any and all persons. Each Debtor shall safeguard and protect all
Collateral for the account of the Secured Parties. At the request of a Secured
Party, each Debtor will sign and deliver to the Secured Parties at any time or
from time to time one or more financing statements pursuant to the UCC (or any
other applicable statute) in form reasonably satisfactory to the Secured Parties
and will pay the cost of filing the same in all public offices wherever filing
is, or is deemed by the Secured Parties to be, necessary or desirable to effect
the rights and obligations provided for herein. Without limiting the generality
of the foregoing, the Debtors shall pay all fees, taxes and other amounts
necessary to maintain the Collateral and the Security Interest hereunder, and
each Debtor shall obtain and furnish to the Secured Parties 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.
(j) Each Debtor will not allow any Collateral to be abandoned,
forfeited or dedicated to the public without the prior written consent of the
Secured Parties. The Debtors will not transfer, pledge, hypothecate, encumber,
license (except for non-exclusive licenses granted by the Debtors in the
ordinary course of business), sell or otherwise dispose of any of the Collateral
without the prior written consent of the Secured Parties.
(k) Each Debtor shall, within ten (10) days of obtaining
knowledge thereof, advise each Secured Party promptly, in sufficient detail, of
any substantial change in the Collateral, and of the occurrence of any event
which would have a material adverse effect on the value of the Collateral or on
the Secured Parties' security interest therein.
(l) Each Debtor shall permit the Secured Parties and its
representatives and agents to inspect the Collateral at any time, and to make
copies of records pertaining to the Collateral as may be requested by the
Secured Parties from time to time.
(m) Each Debtor 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 Collateral.
(n) Each Debtor shall promptly notify the Secured Parties in
sufficient detail upon becoming aware of any attachment, garnishment, execution
or other legal process levied against any Collateral and of any other
information received by such Debtor that may materially affect the value of the
Collateral, the Security Interest or the rights and remedies of the Secured
Parties hereunder.
(o) All information heretofore, herein or hereafter supplied
to the Secured Parties by or on behalf of the Debtors with respect to the
Collateral is accurate and complete in all material respects as of the date
furnished.
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4. Defaults. The following events shall be "Events of Default":
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(a) The occurrence of an Event of Default (as defined in the
Debentures) under the Debentures;
(b) Any representation or warranty of the Debtors in this
Agreement or in the Security Agreement, dated the date hereof between the
Debtors and the Secured Parties, shall prove to have been incorrect in any
material respect when made; and
(c) The failure by a Debtor to observe or perform any of its
obligations hereunder or in the Security Agreement, dated the date hereof
between the Debtor and the Secured Party, for ten (10) days after receipt by
such Debtor of notice of such failure from the Secured Parties.
5. Duty To Hold In Trust. Upon the occurrence of any Event of
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Default and at any time thereafter, each Debtor shall, upon receipt by it of any
revenue, income or other sums subject to the Security Interest, whether payable
pursuant to the Debentures 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 for the Secured Parties and shall forthwith endorse and
transfer any such sums or instruments, or both, to the Secured Parties for
application to the satisfaction of the Obligations.
6. Rights and Remedies Upon Default. Upon occurrence of any Event
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of Default and at any time thereafter, each Secured Party shall have the right
to exercise all of the remedies conferred hereunder and under the Debentures,
and each 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 Collateral is then located). Without
limitation, each Secured Party shall have the following rights and powers:
(a) Each Secured Party shall have the right to take possession
of all tangible manifestations or embodiments of the Collateral and, for that
purpose, enter, with the aid and assistance of any person, any premises where
the Collateral, or any part thereof, is or may be placed and remove the same,
and the Debtors shall assemble the Collateral and make it available to such
Secured Party at places which the Secured Party shall reasonably select, whether
at the Debtor's premises or elsewhere.
(b) Each Secured Party shall have the right to operate the
business of the Debtors using the Collateral and shall have the right to assign,
sell, or otherwise dispose of and deliver all or any part of the Collateral, 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 such 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 Debtors or right of redemption of
the Debtors, which are hereby expressly waived. Upon each such sale, assignment
or other transfer of Collateral, each Secured Party may, unless prohibited by
applicable law which cannot be waived, purchase all or any part of the
Collateral being sold, free from and discharged of all trusts, claims, right of
redemption and equities of the Debtors, which are hereby waived and released.
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(c) Each Secured Party may license or, to the same extent the
Debtors are permitted by law and contract to do so, sub-license, whether or an
exclusive or non-exclusive basis, any of the Collateral throughout the world for
such term, on such conditions and in such manner as such Secured Party shall, in
its sole discretion, determine.
(d) Each Secured Party may (without assuming any obligations
or liabilities thereunder), at any time, enforce (and shall have the exclusive
right to enforce) against licensee or sub licensee all rights and remedies of
the Debtors in, to and under any license agreement with respect to such
Collateral, and take or refrain from taking any action thereunder.
(e) Each Secured Party may, in order to implement the
assignment, license, sale or other disposition of any of the Collateral pursuant
to this Section, pursuant to the authority provided for in Section 11, execute
and deliver on behalf of the Debtors one or more instruments of assignment of
the Collateral in form suitable for filing, recording or registration in any
jurisdictions as such Secured Party may determine advisable.
7. Applications of Proceeds; Expenses. (a) The proceeds of any such
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sale, lease, license or other disposition of the Collateral 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 Collateral,
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 Collateral, and then to satisfaction of the Obligations, and to
the payment of any other amounts required by applicable law, after which the
Secured Parties shall pay to the Debtors any surplus proceeds. If, upon the
sale, license or other disposition of the Collateral, the proceeds thereof are
insufficient to pay all amounts to which the Secured Parties are legally
entitled, the Debtors 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 Parties to collect such
deficiency. To the extent permitted by applicable law, each Debtor waives all
claims, damages and demands against the Secured Parties arising out of the
repossession, removal, retention or sale of the Collateral, unless due to the
gross negligence or willful misconduct of the Secured Parties.
(b) Each Debtor 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 Parties. The
Debtors shall also pay all other claims and charges which in the reasonable
opinion of the Secured Parties might prejudice, imperil or otherwise affect the
Collateral or the Security Interest therein. The Debtor will also, upon demand,
pay to the Secured Parties 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 Parties 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 Collateral, or (iii)
the exercise or enforcement of any of the rights of the Secured Parties under
the Debentures. Until so paid, any fees payable hereunder shall be added to the
principal amount of the Debentures and shall bear interest at the Default Rate.
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8. Responsibility for Collateral. The Debtor assumes all
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liabilities and responsibility in connection with all Collateral, and the
obligations of the Debtor hereunder or under the Debentures shall in no way be
affected or diminished by reason of the loss, destruction, damage or theft of
any of the Collateral or its unavailability for any reason.
9. Security Interest Absolute. All rights of the Secured Parties
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and all Obligations of the Debtor hereunder, shall be absolute and
unconditional, irrespective of: (a) any lack of validity or enforceability of
this Agreement, the Debentures 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 Debentures or any other agreement entered into in
connection with the foregoing; (c) any exchange, release or nonperfection of any
of the Collateral, or any release or amendment or waiver of or consent to
departure from any other collateral for, or any guaranty, or any other security,
for all or any of the Obligations; (d) any action by the Secured Parties to
obtain, adjust, settle and cancel in its sole discretion any insurance claims or
matters made or arising in connection with the Collateral; or (e) any other
circumstance which might otherwise constitute any legal or equitable defense
available to the Debtor, or 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 Parties shall continue even if the
Obligations are barred for any reason, including, without limitation, the
running of the statute of limitations or bankruptcy. The Debtor 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 Collateral or
any payment received by the Secured Parties 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 Parties, then, in any such event, the Debtor'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 Debtor waives all right to require the
Secured Parties to proceed against any other person or to apply any Collateral
which the Secured Parties may hold at any time, or to marshal assets, or to
pursue any other remedy. The Debtor waives any defense arising by reason of the
application of the statute of limitations to any obligation secured hereby.
10. Term of Agreement. This Agreement and the Security Interest
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shall terminate on the date on which all payments under the Debentures have been
made in full and all other Obligations have been paid or discharged. Upon such
termination, the Secured Parties, at the request and at the expense of the
Debtor, will join in executing any termination statement with respect to any
financing statement executed and filed pursuant to this Agreement.
11. Power of Attorney; Further Assurances. (a) The Debtor authorizes
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the Secured Parties, and does hereby make, constitute and appoint it, and its
respective officers, agents, successors or assigns with full power of
substitution, as the Debtor's true and lawful attorney-in-fact, with power, in
its own name or in the name of the Debtor, 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 Collateral that may
come into possession of the Secured Parties; (ii) to sign and endorse any UCC
financing statement or any invoice, freight or express ▇▇▇▇, ▇▇▇▇ of lading,
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storage or warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts, and other documents
relating to the Collateral; (iii) to pay or discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on or threatened
against the Collateral; (iv) to demand, collect, receipt for, compromise, settle
and ▇▇▇ for monies due in respect of the Collateral; and (v) generally, to do,
at the option of the Secured Parties, and at the Debtor's expense, at any time,
or from time to time, all acts and things which the Secured Parties deems
necessary to protect, preserve and realize upon the Collateral and the Security
Interest granted therein in order to effect the intent of this Agreement and the
Debentures, all as fully and effectually as the Debtor might or could do; and
the Debtor 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 Debtors 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 B, attached hereto, all such instruments,
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including appropriate financing and continuation statements and collateral
agreements and filings with the United States Patent and Trademark Office and
the Register of Copyrights, 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 Parties the grant or perfection of a security interest in all the
Collateral.
(c) The Debtors hereby irrevocably appoints the Secured
Parties as the Debtors' attorney-in-fact, with full authority in the place and
stead of the Debtors and in the name of the Debtor, 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:
(i) To modify, in its sole discretion, this Agreement
without first obtaining the Debtors' approval of or signature to such
modification by amending Exhibit A, Exhibit B and Exhibit C, hereof, as
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appropriate, to include reference to any right, title or interest in any
Copyrights, Patents or Trademarks acquired by the Debtors after the execution
hereof or to delete any reference to any right, title or interest in any
Copyrights, Patents or Trademarks in which the Debtor no longer has or claims
any right, title or interest; and
(ii) To file, in its sole discretion, one or more
financing or continuation statements and amendments thereto, relative to any of
the Collateral without the signature of the Debtor where permitted by law.
12. Notices. Any and all notices or other communications or
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deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Business Day, (b) the next Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Business Day
or later than 6:30 p.m. (New York City time) on any Business Day, (c) the
Business following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The addresses for such notices and
communications are those set forth on the signature pages hereof, or such other
address as may be designated in writing hereafter, in the same manner, by such
Person.
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13. Other Security. To the extent that the Obligations are now or
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hereafter secured by property other than the Collateral or by the guarantee,
endorsement or property of any other person, firm, corporation or other entity,
then the Secured Parties 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 Parties'
rights and remedies hereunder.
14. Miscellaneous.
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(a) No course of dealing between the Debtor and the Secured
Parties, nor any failure to exercise, nor any delay in exercising, on the part
of the Secured Parties, any right, power or privilege hereunder or under the
Debentures 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 Parties with
respect to the Collateral, whether established hereby or by the Debentures or by
any other agreements, instruments or documents or by law shall be cumulative and
may be exercised singly or concurrently.
(c) This Agreement constitutes 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 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.
10
(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) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced in the state and federal
courts sitting in the City of New York, Borough of Manhattan. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, Borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of the any of this Agreement), and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If either party shall commence
an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
(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 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.
11
(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.
* * * * * * * * * * *
12
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
ACHIEVEMENT TEC HOLDINGS, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
Address for Notice:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
13
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
ACHIEVEMENT TEC, INC.
By:____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Address for Notice:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
14
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
CAREER DIRECTION, INC.
By:___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notice:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
15
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
Its Investment Manger
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
Address for Notice:
New Millennium Capital Partners II, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
16
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
AJW PARTNERS, LLC
By: SMS Group, LLC
Its Investment Manger
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
Address for Notice:
AJW Partners, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
17
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
AJW/NEW MILLENNIUM OFFSHORE LTD
By: SMS Group, LLC
Its Investment Manger
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
Address for Notice:
AJW/New Millennium Offshore Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
18
IN WITNESS WHEREOF, the parties hereto have caused this Intellectual
Property Security Agreement to be duly executed on the day and year first above
written.
PEGASUS CAPITAL PARTNERS, LLC
By: SMS Group, LLC
Its Investment Manger
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
Address for Notice:
Pegasus Capital Partners, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
19
EXHIBIT A
---------
Copyrights
Description Registration Registration
Number Date
-----------------------------------------------------------------------------
20
EXHIBIT B
---------
Patents
Description Registration Registration
Number Date
-----------------------------------------------------------------------------
21
EXHIBIT C
---------
Trademarks
Description Registration Registration
Number Date
-----------------------------------------------------------------------------
22
SCHEDULE A
----------
List of subsidiaries of the Debtor:
----------------------------------
23
SCHEDULE B
----------
Jurisdictions:
-------------
24