Exhibit 10.7
GRANT OF SECURITY INTEREST
IN PATENTS AND TRADEMARKS
THIS GRANT OF SECURITY INTEREST ("GRANT"), effected as of February 6,
2006, is executed by INCENTRA SOLUTIONS INC. (f/k/a Front Porch Digital Inc.), a
corporation organized under the laws of the State of Nevada and MANAGEDSTORAGE
INTERANTIONAL, INC., a corporation organized under the laws of the State of
Delaware (together the "GRANTOR"), in favor of Laurus Master Fund, Ltd. (the
"SECURED PARTY").
A. Pursuant to a Security Agreement dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to time, the
"SECURITY AGREEMENT") among the Grantor, certain other Companies (as defined in
the Security Agreement), and the Secured Party, the terms and provisions of
which are hereby incorporated herein as if fully set forth herein, the Grantor
and the other Companies have granted a security interest to the Secured Party in
consideration of the Secured Party's agreement to provide financial
accommodations to the Grantor.
B. The Grantor (1) has adopted, used and is using the trademarks
reflected in the trademark registrations and trademark applications in the
United States Patent and Trademark Office more particularly described on
SCHEDULE 1 annexed hereto as part hereof (the "TRADEMARKS"), and (2) has
registered or applied for registration in the United States Patent and Trademark
Office of the patents more particularly described on SCHEDULE 2 annexed hereto
as part hereof (the "PATENTS").
C. The Grantor wishes to confirm its grant to the Secured Party of
a security interest in all right, title and interest of the Grantor in and to
the Trademarks and Patents, and all proceeds thereof, together with the business
as well as the goodwill of the business symbolized by, or related or pertaining
to, the Trademarks, and the customer lists and records related to the Trademarks
and Patents and all causes of action which may exist by reason of infringement
of any of the Trademarks and Patents (collectively, the "T&P Collateral"), to
secure the payment, performance and observance of the Obligations (as that term
is defined in the Security Agreement).
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged:
1. The Grantor does hereby further grant to the Secured Party a
security interest in the T&P Collateral to secure the full and prompt payment,
performance and observance of the Obligations.
2. The Grantor agrees to perform, so long as the Security Agreement
is in effect, all acts deemed necessary or desirable by the Secured Party to
permit and assist it, at the Grantor's expense, in obtaining and enforcing the
Trademarks and Patents in any and all countries. Such acts may include, but are
not limited to, execution of documents and assistance or cooperation in legal
proceedings. The Grantor hereby appoints the Secured Party as the Grantor's
attorney-in-
fact to execute and file any and all agreements, instruments,
documents and papers as the Secured Party may determine to be necessary or
desirable to evidence the Secured Party's security interest in the Trademarks
and Patents or any other element of the T&P Collateral, all acts of such
attorney-in-fact being hereby ratified and confirmed.
3. The Grantor acknowledges and affirms that the rights and
remedies of the Secured Party with respect to the security interest in the T&P
Collateral granted hereby are more fully set forth in the Security Agreement and
the rights and remedies set forth herein are without prejudice to, and are in
addition to, those set forth in the Security Agreement. In the event that any
provisions of this Grant are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
4. The Grantor hereby authorizes the Secured Party to file all such
financing statements or other instruments to the extent required by the Uniform
Commercial Code and agrees to execute all such other documents, agreements and
instruments as may be required or deemed necessary by the Secured Party, in each
case for purposes of affecting or continuing Secured Party's security interest
in the T&P Collateral.
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IN WITNESS WHEREOF, the Grantor has caused this instrument to be
executed as of the day and year first above written.
INCENTRA SOLUTIONS INC.
By: /s/ Thomas P. Sweeney, III
---------------------------
Name: Thomas P. Sweeney, III
Title: Chairman and CEO
MANAGEDSTORAGE INTERNATIONAL, INC.
By: /s/ Thomas P. Sweeney, III
---------------------------
Name: Thomas P. Sweeney, III
Title: Chairman and CEO
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LAURUS MASTER FUND, LTD.
By: /s/ David Grin
---------------------------
Name: David Grin
Title: Managing Partner
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STATE OF _____________)
) ss.:
COUNTY OF ____________)
On this ____ day of _________, ____, before me personally came
________ ________________ who, being by me duly sworn, did state as follows:
that he is ______________ of Incentra Solutions, Inc., that he is authorized to
execute the foregoing Grant on behalf of said corporation and that he did so by
authority of the Board of Directors of said corporation.
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Notary Public
STATE OF _____________)
) ss.:
COUNTY OF ____________)
On this ____ day of _________, ____, before me personally came
________ ________________ who, being by me duly sworn, did state as follows:
that he is ______________ of ManagedStorage International, Inc., that he is
authorized to execute the foregoing Grant on behalf of said corporation and that
he did so by authority of the Board of Directors of said corporation.
-------------------------
Notary Public
STATE OF _____________)
) ss.:
COUNTY OF ____________)
On this ____ day of _________, ____, before me personally came
________ _____________________ who, being by me duly sworn, did state as
follows: that [s]he is __________________ of Laurus Master Fund, Ltd., that
[s]he is authorized to execute the foregoing Grant on behalf of said corporation
and that [s]he did so by authority of the Board of Directors of said
corporation.
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Notary Public