COYOTE LICENSE AGREEMENT
This Coyote License Agreement (this "Agreement") is made as of this 26th
day of January, 2000 (the "Effective Date"), by and between Coyote Network
Systems, Inc., a Delaware corporation with its principal office located in
Westlake Village, California ("CNSI"), and Coyote Leasing, LLC, a Delaware
limited liability company with its principal office located in Stamford,
Connecticut (the "Licensee").
R E C I T A L S
WHEREAS, CNSI, Licensee, Coyote Technologies, LLC, a California limited
liability company with its principal office located at Westlake Village,
California ("CTL") and First Venture Leasing, LLC, a Delaware limited liability
company with its principal office located in Stamford, Connecticut ("First
Venture") have entered into that certain Financial Services Agreement (the
"Financial Services Agreement"), and CNSI, CTL and Licensee have entered into
that certain Master Remarketing Agreement, each dated as of the date hereof
(collectively, the "FVL Agreements");
WHEREAS, the Licensee will offer certain leasing and credit programs to
CNSI and CTL Customers and create and develop new financing facilities and
programs to be offered to CNSI and CTL Customers;
WHEREAS, CNSI now uses and may hereafter adopt certain trademarks, service
marks, trade names and other designations (collectively, the "Marks") in
connection with its business including without limitation those Marks identified
on Schedule A attached hereto; and
WHEREAS, CNSI desires to grant a license, and Licensee desires to accept a
license, to use the Marks in connection with the Business and the Products and
Services, pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual covenants
set forth herein, the parties hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
the meanings specified in the Financial Services Agreement. The following terms
shall have the following meanings herein:
"Affiliate" means with respect to a given Person, mean any other Person
directly or indirectly controlled by or under direct or indirect common control
with the Person specified.
"Business" shall mean the business of providing the Services and of
performing all other activities reasonably related thereto including without
limitation leasing the Products, remarketing the Products in accordance with the
Master Remarketing Agreement, and bundling the Products with non-Products.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization, government (and any department or agency
thereof) or other entity.
"Products" shall mean any products (including, without limitation, related
software licenses, but not including real estate) and related installation and
maintenance services provided, furnished, manufactured, sold and/or marketed by
CNSI or any of its Affiliates now and in the future, and such additional goods
or services of CNSI or any of its Affiliates as the parties may from time to
time agree.
"Services" means the financing or leasing of Products to CNSI customers.
2. Grant of License. CNSI hereby grants to Licensee an exclusive,
perpetual, sublicensable, worldwide, royalty-free right and license to use the
Marks in connection with the Business and the Products and Services. Licensee
acknowledges that, as between CNSI and Licensee, CNSI is the owner of the Marks
as used in connection with the Business and the Products and Services.
3. Term and Termination. This Agreement and the license granted herein
shall commence as of the Effective Date and shall be perpetual. Notwithstanding
the foregoing, this Agreement shall terminate (subject to Section 8 hereof) as
follows:
(a) if either party materially breaches any of its obligations under this
Agreement, the non-defaulting party may terminate this Agreement on thirty (30)
days' written notice; provided that such notice of termination shall be of no
further force or effect if the default is cured by the defaulting party to the
reasonable satisfaction of the non-defaulting party within sixty (60) days after
receipt of such notice;
(b) immediately upon the dissolution of Licensee; or
(c) immediately upon termination or expiration of the Financial Services
Agreement.
4. Representations and Warranties. CNSI represents and warrants to Licensee
that (i) CNSI exclusively owns or otherwise holds valid rights to the Marks and
has the right to grant the licenses and rights it grants hereunder upon the
terms and conditions provided herein; and (ii) the use of the Marks as permitted
herein does not and will not violate any intellectual property, proprietary or
other right of any Person.
5. (a) Indemnification. From and after the date hereof, CNSI shall
indemnify, defend and hold harmless Licensee and its general partners, members,
officers, agents, representatives, and employees (with respect to any Claims
relating to (i), (ii) or (iii) below, the party to whom such indemnification
obligation is owed is referred to in this Section 5 as the "Indemnified Party"),
from and against any and all actions, claims, losses, costs, liabilities, and
expenses (including reasonable attorneys' fees) resulting from or arising out of
(i) CNSI's breach of representations, warranties, covenants or other provisions
contained in this Agreement; (ii) claims asserted by third parties which, if
proven, would place CNSI in breach of representations, warranties, covenants or
other provisions contained in this Agreement; or (iii) claims asserted by third
parties concerning Licensee's uses anywhere throughout the world of the Marks as
permitted hereunder (collectively, "Claims") and will promptly reimburse any
Indemnified Party for all Claims as incurred in connection with the
investigation of, preparation for, or defense of any pending or threatened
action or proceeding (collectively, "Proceeding"), whether or not such
Indemnified Party is a formal party to any such Proceeding. An Indemnified Party
shall not, without the prior written consent of CNSI (which consent shall not be
unreasonably withheld), settle, compromise or consent to the entry of any
judgment in any pending or threatened Proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Party is
an actual or potential party to such Proceeding), provided, however, that the
Indemnified Party may execute such settlement, compromise or consent to the
entry of judgment in any pending or threatened Proceeding if the same includes
an unconditional release of CNSI hereunder from all liability arising out of
such Proceeding.
(b) Procedure. Promptly after an Indemnified Party receives notice of the
commencement of any Proceeding in respect of which indemnification may be sought
hereunder, the Indemnified Party will notify CNSI; but the omission to so notify
CNSI shall not relieve CNSI from any obligation hereunder unless, and only to
the extent that, such omission results in CNSI's forfeiture of substantive
rights or defenses. If any such Proceeding shall be brought against CNSI, CNSI
shall, upon written notice given reasonably promptly following the Indemnified
Party's notice to CNSI of any such Proceeding, be entitled to assume the defense
thereof at its own expense with counsel chosen by the Indemnifying Party and
reasonably satisfactory to the Indemnified Party; provided; however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense.
6. Quality Control. Licensee agrees that the Products and Services that it
renders in connection with the Marks shall equal or exceed reasonable standards
hereafter identified by CNSI to Licensee (provided that Licensee shall have six
(6) months from the time that Licensee receives written notice of such
identified reasonable standards to comply therewith). If CNSI believes that the
quality of Products or Services offered by Licensee under the Marks fails to
meet the standard of quality set forth in this Section 6, then CNSI shall so
notify Licensee, specifying, in reasonable detail, the reason for such failure.
Licensee will have sixty (60) days to cure the deficiency and, if such
deficiency is not cured with respect to such Products and/or Services to CNSI's
reasonable satisfaction, then Licensee will not provide such Products and/or
Services in connection with the Marks until the deficiency is cured to CNSI's
reasonable satisfaction.
7. Infringement.
(a) Licensee shall promptly notify CNSI of any violation of the Marks by a
third party which may come to Licensee's attention. CNSI shall have the initial
right to determine whether or not any action shall be taken with respect to such
violation, and the nature of the action to be taken. Licensee agrees to
cooperate in any reasonable manner with CNSI in the conduct of such litigation,
at CNSI's expense. Any recovery obtained by CNSI as a result of any such action
brought under this Section 7 shall belong entirely to CNSI.
(b) In the event that CNSI determines that litigation should not be
commenced or otherwise fails, after a reasonable period of time, to take
reasonable action to stop such infringement, Licensee may, upon CNSI's written
consent, do so in its own name, and CNSI will cooperate in any reasonable manner
with Licensee in the conduct of such litigation, at Licensee's expense. Any
recovery obtained by Licensee as a result of any such action brought under this
paragraph 7(b) shall belong entirely to Licensee.
8. Effect of Termination. Within six (6) months of the effective date of
termination of this Agreement (the "Phase Out Period"), Licensee shall cease all
uses of the Marks. Notwithstanding the foregoing sentence, Licensee shall be
permitted to use the Marks beyond the Phase Out Period in connection with
transactions consummated by Licensee as part of the Services prior to
termination of this Agreement. Termination of this Agreement for any reason
shall not affect (i) those obligations which have accrued as of the date of
termination or (ii) those obligations which, from the context thereof, are
intended to survive termination of this Agreement (including without limitation
the provisions of Section 5 hereof).
9. General Provisions.
(a) Amendments and Waivers. Except as otherwise expressly provided herein,
this Agreement shall not be amended or modified in any fashion except by an
instrument in writing signed by the parties hereto. Waiver by a party of any
condition, or any breach of this Agreement by any other party, shall not be
effective unless in a writing signed by the waiving party, and no such waiver
shall operate or be construed as the waiver of any conditions other than those
expressly identified in the written waiver or of the same or another breach on a
subsequent occasion.
(b) Successor and Assigns. All terms and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may be assigned by
either party without the prior written consent of the other party.
(c) No Third Party Beneficiaries. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns. Except as set forth in Article IX of
the Financial Services Agreement, this Agreement is not for the benefit of any
other Person, other than CNSI, the First Venture Entities and their respective
Subsidiaries, and no other Person, other than CNSI, the First Venture Entities
and their respective Subsidiaries, shall have any rights against the parties
hereunder.
(d) Rules of Construction. The headings in this Agreement are inserted only
as a matter of convenience and in no way affect the terms or intent of any
provision of this Agreement. All defined phrases, pronouns, and other variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular,
or plural, as the actual identity of the organization, person, or persona may
require. No provision of this Agreement shall be construed against any parties
hereto by reason of the extent to which such parties or its counsel participated
in the drafting hereof.
(e) CHOICE OF LAW; CONSENT TO JURISDICTION. THIS AGREEMENT IS MADE AND
ENTERED INTO UNDER THE LAWS OF THE STATE OF NEW YORK, AND THE LAWS OF THAT STATE
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY THEREUNDER (WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF) SHALL GOVERN THE
VALIDITY AND INTERPRETATION HEREOF AND THE PERFORMANCE BY PARTIES HERETO OF
THEIR RESPECTIVE DUTIES AND OBLIGATIONS HEREUNDER. Each party hereby irrevocably
consents that any legal action or proceeding against it or any of its assets
with respect to this Agreement may be brought in any jurisdiction where it or
any of its assets may be found, or in any court of the State of New York or any
Federal court of the United States of America located in New York, New York, or
both, as the other party may elect, and by execution and delivery of this
Agreement, each party hereby irrevocably submits to and accepts with regard to
any such action or proceeding, for itself and in respect of its assets,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
party further agrees that final judgment against such party in any action or
proceeding in connection with this Agreement shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States of
America by suit on the judgment, a certified or exemplified copy of which shall
be conclusive evidence of the fact and the amount of such party's indebtedness.
Each party hereby irrevocably waives, to the fullest extent permitted by Law,
any objection which such party may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
brought in the State of New York, and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in the State of New York
has been brought in an inconvenient forum.
(f) Severability of Provisions. If any provision of this Agreement shall be
contrary to the internal laws of New York or any other applicable Law, at the
present time or in the future, such provision shall be deemed null and void, but
shall not affect the legality of the remaining provisions of this Agreement.
This Agreement shall be deemed to be modified and amended so as to be in
compliance with applicable Law and this Agreement shall then be construed in
such a way as will best serve the intention of the parties at the time of the
execution of this Agreement.
(g) Counterparts; Delivery. This Agreement may be executed in one or more
counterparts. Each such counterpart shall be considered an original and all of
such counterparts shall constitute a single agreement binding all the parties as
if all had signed a single document. The parties acknowledge that delivery of
executed counterparts of this Agreement may be effected by a facsimile
transmission or other comparable means, with an original document to be
delivered promptly thereafter via overnight courier.
(h) Entire Agreement. This Agreement (including any schedules, exhibits or
other attachments hereto), taken together with the other Operative Documents,
constitute the entire agreement among the parties. This Agreement and the other
agreements referred to in the preceding sentence supersede all prior and
contemporaneous agreements, statements, understandings, and representations of
the parties. There are no representations, warranties, agreements, arrangements,
or understandings, oral or written between the parties relating to the subject
matter of this Agreement which are not fully expressed herein or in the other
Operative Documents. The parties agree that the traditional formulation of the
parol evidence rule (whereby extrinsic evidence may not be used to vary or
contradict the unambiguous terms of a document that represents a final and
complete expression of the parties' agreement) shall govern in any action or
proceeding that may ensue concerning this Agreement and/or the other Operative
Documents.
(i) Notices. All notices, requests, consents, or other communications
required or permitted to be given under this Agreement shall be in writing, may
be delivered in person by telex or telecopy, by overnight air courier, or by
certified or registered mail (return receipt requested with all fees prepaid),
and shall be deemed to have been duly given and to have become effective upon
the date actually delivered to the parties or their assignees at the following
addresses:
If to CNSI:
Coyote Network Systems, Inc.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to First Venture:
First Venture Leasing, LLC
C/O Acorn Roseand & Management
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
section.
(j) Waiver of Jury Trial. The parties hereto hereby waive their respective
right to trial by jury of any cause of action, claim, counterclaim or
cross-complaint in any action, proceeding and/or hearing brought by any party
hereto against another party hereto on any matter whatsoever relating to,
resulting from, arising out of, or in any way connected with this Agreement, or
any amendment or breach hereof, including, without limitation, any claim or
injury or damage, or the enforcement of any remedy under any Law, statute, or
regulation, emergency or otherwise, now or hereafter in effect.
(k) Further Assurances. The parties hereto from time to time after
execution of this Agreement, without further consideration, shall execute and
deliver, as appropriate, such documents and take such actions as may be
reasonably necessary or proper to carry out and consummate the transactions
contemplated by this Agreement.
(l) Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction; provided, however, that the foregoing shall not be
construed as prohibiting any party from pursuing any other rights and remedies
available to it for such breach or threatened breach.
(m) Force Majeure. Neither party shall be liable for defaults or delays due
to acts of God or the public enemy, acts or demands of government or any
government agency, strikes, fires, flood, accident, or other unforeseeable
causes beyond its control and not due to its fault or negligence. Any party
desiring to excuse its default or delay for any such reason shall notify the
other party of the cause of such default or delay within five (5) days after the
beginning thereof.
(n) Relationship of Parties. Nothing contained in this Agreement shall be
construed as constituting a partnership or agency relationship between the
parties hereto. On and after the Effective Date, the relationship of the parties
one to another for all purposes shall be that of independent contractors.
IN WITNESS WHEREOF the undersigned hereto execute this Agreement.
COYOTE NETWORK SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and COO
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF CALIFORNIA
ss.:
COUNTY OF LOS ANGELES
On this 26th day of January, 2000, before me, the undersigned, personally
appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
____________________
[NOTARY SEAL]
COYOTE LEASING, LLC
By:
Name:
Title: