Exhibit 4.1(d)
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SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of February 18, 1998, made by each
grantor listed on the signature pages hereof (each individually a "Grantor" and
collectively the "Grantors"), in favor of United States Trust Company of New
York as trustee (in such capacity, the "Trustee") under the Indenture referred
below, in its capacity as collateral agent (in such capacity, the "Collateral
Agent") for the ratable benefit of the registered holders (the "Noteholders") of
the 12% Senior Secured PIK Notes due 2003 (the "Notes") issued by Mentus Media
Corp., a Delaware corporation (the "Company"), under the Indenture dated as of
February 18, 1998 (the "Indenture"), between the Company and the Trustee.
W I T N E S S E T H :
WHEREAS, the Company and NatWest Capital Markets Limited (the
"Initial Purchaser") have entered into a Purchase Agreement dated February 12,
1998 (the "Purchase Agreement"), pursuant to which, among other things, the
Initial Purchaser has agreed to purchase the Notes from the Company; and
WHEREAS, it is a condition precedent to the obligations of the
Initial Purchaser to purchase the Notes under the Purchase Agreement, that the
Grantors shall have executed and delivered this Security Agreement to the
Collateral Agent;
NOW, THEREFORE, in consideration of the premises and to induce the
Initial Purchaser to enter into the Purchase Agreement and to purchase the
Notes, the Grantors hereby agree with the Collateral Agent, as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Indenture and used herein are so used as so defined, and the
meanings assigned to terms defined herein or in the Indenture shall be equally
applicable to both the singular and plural forms of such terms; the following
terms which are defined in the Uniform Commercial Code in effect in the State of
New York on the date hereof are used herein as so defined: Chattel Paper,
Documents, Equipment, Farm Products, General Intangibles, Goods, Instruments,
Inventory and Proceeds; and the following terms shall have the following
meanings:
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"Books and Records" means all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks and related data processing
software that at any time evidence or contain information relating to any of the
Collateral (as defined) or are otherwise necessary or helpful in the collection
thereof or realization thereupon.
"Closing Date" means February 18, 1998.
"Code" means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral" shall have the meaning assigned to it in Section 2 of
this Security Agreement.
"Computer Hardware and Software Collateral" means (a) all computer
and other electronic data processing hardware, integrated computer systems,
central processing units, memory units, display terminals, printers, features,
computer elements, card readers, tape drives, hard and soft disk drives, cables,
electrical supply hardware, generators, power equalizers, accessories and all
peripheral devices and other related computer hardware; (b) all software
programs (including both source code, object code and related applications and
data files), whether now owned, licensed or leased or hereafter acquired by each
Grantor, designed for use on the computers and electronic data processing
hardware described in clause (a) above; (c) all firmware associated therewith;
(d) all documentation (including flow charts, logic diagrams, manuals, guides
and specifications) with respect to such hardware, software and firmware
described in the preceding clauses (a) through (c); and (e) all rights with
respect to all of the foregoing, including, without limitation, any and all
copyrights, licenses, options, warranties, service contracts, program services,
test rights, maintenance rights, support rights, improvement rights, renewal
rights and indemnifications and any substitutions, replacements, additions or
model conversions of any of the foregoing, but excluding any license or lease to
the extent that the terms thereof prohibit (after giving effect to any approvals
or waivers) the assignment of, or granting a security interest in, such license
or lease (it being understood and agreed, however, that notwithstanding the
foregoing, all rights to payment for money due or to become due pursuant to any
such excluded license or lease shall be subject to the security interests
created by this Agreement).
"Contracts" means the contracts entered into by each Grantor,
including, without limitation, (a) all rights of each Grantor to receive moneys
due and to become due to it thereunder or in connection therewith, (b) all
rights of each Grantor to damages arising out of, or for, breach or default in
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respect thereof and (c) all rights of each Grantor to perform and exercise all
remedies thereunder, but excluding any contract to the extent that the terms
thereof prohibit (after giving effect to any approvals or waivers) the
assignment of, or granting a security interest in, such contract (it being
understood and agreed, however, that notwithstanding the foregoing, all rights
to payment for money due or to become due pursuant to any such excluded contract
shall be subject to the security interests created by this Agreement).
"Copyright License" means any written agreement naming any Grantor
as licensor or licensee or granting any right under any Copyright, including the
agreements described in Schedule I hereto.
"Copyrights" means (a) all copyrights of any Grantor, whether
published or unpublished and whether now or hereafter in force throughout the
world, all registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations, recordings
and applications in the United States Copyright office referred to in Schedule I
hereto and (b) all renewals thereof.
"Deposits" means, with respect to any Grantor, all cash, money,
currency and deposit accounts, including, without limitation, demand, time,
savings, passbooks or similar accounts maintained with banks, savings and loan
associations or other financial institutions (but excluding deposit accounts
maintained in trust by such Grantor or otherwise segregated from other funds of
such Grantor for the benefit of customers of such Grantor and containing only
funds owing to such customers).
"Obligations" shall mean the unpaid principal amount of, or any
premium applicable to, and interest on the Notes (including, without limitation,
interest accruing after the maturity of the Notes and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Grantor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
and all other obligations and liabilities of any Grantor to the Noteholders or
the Collateral Agent (including as Trustee under the Indenture), whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Notes, the Indenture or this Security Agreement (in each such case as the same
may be amended, supplemented or modified from time to time) and any other
document made, delivered or given in connection therewith or herewith, whether
on account of principal, premium, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel) or otherwise.
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"Patent License" means any agreement providing for the grant by or
to any Grantor of any right under any patent or patent application, or any
Patent, and all license rights, immunities from suit and all other rights and
interests conferred by or to any Grantor with respect to patents, patent
applications, utility models and utility model applications under all licenses
and agreements.
"Patents" means any and all now or in the future issued or
registered, anywhere in the world, patents and utility models, and any and all
now or in the future filed, anywhere in the world, patent applications and
utility model applications, whose subject matter is now or hereafter conceived,
or reduced to practice, or which is now or hereafter owned, acquired or
controlled, by any Grantor under which such Grantor has the right to grant
licenses; and all divisions, continuations, and continuations-in-part of,
substitutions for and additions to any of the foregoing patent and utility model
applications directly or through one or more intervening applications, and all
reissues, reexaminations, renewals, and extensions of any such patents and
utility models, including, without limitation, any thereof referred to in
Schedule II hereto.
"Pledged Equipment" means that certain equipment pledged pursuant to
(i) the Security Agreement dated as of January 1, 1997 between the Company and
Outdoor Advertising, LLC, and (ii) the Security Agreement dated as of August 18,
1997 between Morris Communications, Inc. and the Company.
"Pledged Equipment Seller" means Adams Outdoor Advertising, LLC or
Morris Communications, Inc.
"Receivables" means any "account" as such term is defined in the
Code as in effect on the date hereof in the State of New York, now or hereafter
owned by any Grantor and, in any event, shall include, but not be limited to,
all the Company's or any Restricted Subsidiary's rights to payment for goods
sold or leased or services performed by the any Grantor, whether now in
existence or arising from time to time hereafter, including, without limitation,
rights evidenced by an account, note, contract, security agreement, chattel
paper, or other evidence or indebtedness or security, together with (a) all
security pledged, assigned, hypothecated or granted to or held by any Grantor to
secure the foregoing, (b) all of such Grantor's right, title and interest in and
to any goods, the sale of which gave rise thereto, (c) all guarantees,
endorsements and indemnifications on, or of, any of the foregoing, (d) all
powers or attorney for the execution of any evidence of indebtedness or security
or other writing in connections therewith, (e) all books, records, ledger cards,
and invoices related thereto, (f) all evidence of the filing of financing
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statements and other statements and the registration of other instruments in
connection therewith and amendments thereto, notices to other creditors or
secured parties, and certificates from filing or other registration officers,
(g) all credit information, reports and memoranda relating thereto and (h) all
other writings related in any way to the foregoing.
"Security" means any "security," as such term is defined in Article
8 of the Code and, in any event, shall include, but not be limited to, any
obligation of an "issuer" (as such term is defined in Article 8 of the Code), or
a share, participation, or other interest in an issuer or in property or an
enterprise of an issuer: (a) which is represented by a Security certificate in
bearer or registered form, or the transfer of which may be registered upon books
maintained for that purpose by or on behalf of the issuer; (b) which is one of a
class or series or by its terms is divisible into a class or series of shares,
participations, interests, or obligations; and (c) which (i) is, or is of a
type, dealt in or traded on securities exchanges or securities markets; or (ii)
is a medium for investment and by its terms expressly provides that it is a
security governed by Article 8 of the Code.
"Security Agreement" means this Security Agreement, as amended,
supplemented or otherwise modified from time to time.
"Termination Date" means the date upon which the Grantors under this
Security Agreement, the Pledgors under the Pledge Agreement dated as of the date
hereof among the pledgors named therein and the Collateral Agent and the Company
under the Indenture have fulfilled all obligations under the Notes and the
aforementioned agreements.
"Trademark License" means any agreement providing for the grant by
or to any Grantor of any right to use any Trademark, including, without
limitation, any thereof referred to in Schedule III hereto.
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers of any Grantor, now
existing anywhere in the world or hereafter adopted or acquired, whether
currently in use or not, and the goodwill associated therewith, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, any thereof referred to in Schedule
III hereto, and (b) all renewals thereof.
2. Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, each Grantor
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hereby grants to the Collateral Agent a security interest for the benefit of the
Holders in all of the following property now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Receivables;
(ii) all Chattel Paper;
(iii) all Computer Hardware and Software Collateral;
(iv) all Contracts;
(v) all Copyrights;
(vi) all Copyright Licenses;
(vii) all Deposits;
(viii) all Documents;
(ix) all Equipment;
(x) all Goods;
(xi) all General Intangibles;
(xii) all Patents;
(xiii) all Patent Licenses;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Trademarks;
(xvii) all Trademark Licenses;
(xviii) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing; and
(xix) all Books and Records related to the foregoing; provided
however, in the case of Collateral described in clauses (ii), (iv), (v),
(vi),
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(viii), (xi), (xii), (xiii), (xiv), and (xvi) the assignment of, or
granting of a security interest in, such property are permitted (it being
understood and agreed, however, that notwithstanding the foregoing, all
rights to payment for money due or to become due pursuant to any such
excluded property shall be subject to the security interest created by
this Agreement.
3. Rights of the Collateral Agent; Limitations on the Collateral
Agent's Obligations.
(a) Grantors Remain Liable under Receivables and Contracts. Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each of its Receivables and Contracts to observe and perform all the conditions
and obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to each such Receivable and in
accordance with and pursuant to the terms and provisions of each such Contract.
The Collateral Agent shall not have any obligation or liability under any
Receivable (or any agreement giving rise thereto) or under any Contract by
reason of or arising out of this Security Agreement or the receipt by the
Collateral Agent of any payment relating to such Receivable or Contract pursuant
hereto, nor shall the Collateral Agent be obligated in any manner to perform any
of the obligations of any Grantor under or pursuant to any Receivable (or any
agreement giving rise thereto) or under or pursuant to any contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Receivable (or any agreement giving rise thereto) or under any Contract, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
(b) Notice to Receivable Debtors and Contracting Parties. Upon the
request of the Collateral Agent at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall notify account debtors on
its Receivables and parties to the Contracts that the Receivables and each
Contract have been assigned to the Collateral Agent for the benefit of the
Noteholders and the Collateral Agent and that payments in respect thereof shall
be made directly to the Collateral Agent. The Collateral Agent may in its own
name or in the name of others communicate with account debtors on the
Receivables and parties to the Contracts to verify with them to its satisfaction
the existence, amount and terms of any Receivables or Contracts.
(c) Analysis of Receivables. The Collateral Agent shall have
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the right to make test verifications of the Receivables in any manner and
through any medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the Collateral Agent may
require in connection therewith. At any time and from time to time, upon the
Collateral Agent's request and at the expense of each Grantor, each Grantor
shall cause independent public accountants or others satisfactory to the
Collateral Agent to furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Receivables.
(d) Collections on Receivables. If required by the Collateral Agent
after the occurrence and during the continuance of an Event of Default, any
payments of Receivables, when collected by any Grantor, shall be forthwith (and,
in any event, within two Business Days) deposited by such Grantor in the exact
form received, duly indorsed by such Grantor to the Collateral Agent if
required, in a special collateral account maintained by the Collateral Agent,
and, until so turned over, shall be held by such Grantor in trust for the
Collateral Agent, segregated from other funds of such Grantor. Each deposit of
any such Proceeds shall be accompanied by a report identifying in reasonable
detail the nature and source of the payments included in the deposit. All
Proceeds constituting collections of Receivables while held by the Collateral
Agent (or by the Grantor in trust for the Collateral Agent) shall continue to be
collateral security for all of the Obligations and shall not constitute payment
thereof until applied as hereinafter provided. At any time after the occurrence
and during the continuance of an Event of Default, at the Collateral Agent's
election, the Collateral Agent shall apply all or any part of the funds on
deposit in said special collateral account on account of the Obligations in such
order as the Collateral Agent may elect, and any part of such funds which the
Collateral Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Collateral Agent to the applicable Grantor or to whomsoever may be lawfully
entitled to receive the same. After the occurrence and during the continuance of
an Event of Default, at the Collateral Agent's request, the Grantors shall
deliver to the Collateral Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
4. Representations and Warranties. Each Grantor hereby represents
and warrants that:
(a) Title; No Other Liens. Except for the Lien granted to the
Collateral Agent pursuant to this Security Agreement, such Grantor owns each
item of the Collateral free and clear of any and all Liens or claims of others
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except as permitted by the Indenture. No security agreement, financing statement
or other public notice with respect to all or any part of the Collateral is on
file or of record in any public office, except as permitted by the Indenture and
such as may have been filed in favor of the Collateral Agent, pursuant to this
Security Agreement.
(b) Perfected First Priority Liens. The Liens granted pursuant to
this Security Agreement will constitute upon the completion of all necessary
filings or notices in proper public offices or the taking of any necessary
possessions or similar acts, perfected Liens on all Collateral, which are,
except as permitted by the Indenture, prior to all other Liens on such
Collateral created by such Grantor and in existence on the date hereof and which
are enforceable as such against all creditors of such Grantor.
(c) Receivables. The amount represented by such Grantor to the
Collateral Agent from time to time as owing by each account debtor or by all
account debtors in respect of the Receivables will at such time be the correct
amount actually owing by such account debtor or debtors thereunder. No amount
payable to such Grantor under or in connection with any Receivable is evidenced
by any Instrument or Chattel Paper which has not been delivered to the
Collateral Agent. The place where each Grantor keeps its records concerning the
Receivables is set forth on Schedule IV hereto.
(d) Consents. No consent of any party to any Contract is required,
or purports to be required, in connection with the execution, delivery and
performance of this Security Agreement.
(e) Bank Accounts. The bank accounts with the banks listed on
Schedule V hereto are the only bank or deposit accounts that such Grantor
currently maintains.
(f) Inventory and Equipment. The Inventory and the Equipment with an
aggregate value in excess of $25,000 are kept at the locations listed on
Schedule VI hereto and have not been kept at any other location within the
five-month period ending on the Closing Date.
(g) Chief Executive Office. Each Grantor's chief executive office
and chief place of business is located at the offices listed in Schedule VII.
(h) Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
(i) Governmental Obligors. None of the obligors on any
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Receivable with a value greater than $150,000 is a Governmental Authority.
5. Covenants. Each Grantor covenants and agrees with the Collateral
Agent, from and after the date of this Security Agreement until the Obligations
are paid in full:
(a) Further Documentation; Pledge of Instruments and Chattel Paper.
At any time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of each Grantor, each Grantor will promptly and
duly execute and deliver such further instruments and documents and take such
further action as the Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Uniform Commercial Code in
effect in any such jurisdiction with respect to the Liens created hereby. Each
Grantor also hereby authorizes the Collateral Agent to file any such financing
or continuation statement without the signature of such Grantor to the extent
permitted by applicable law. A carbon, photographic or other reproduction of
this Security Agreement shall be sufficient as a financing statement for filing
in any jurisdiction. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any Instrument or Chattel Paper,
such Instrument or Chattel Paper shall be immediately delivered to the
Collateral Agent, duly endorsed in a manner satisfactory to the Collateral
Agent, to be held as Collateral pursuant to this Security Agreement.
(b) Indemnification. Each Grantor agrees to pay, and to save the
Collateral Agent harmless from, any and all liabilities, costs and expenses
(including, without limitation, legal fees and expenses) (i) with respect to, or
resulting from, any delay in paying, any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any of the
Collateral, (ii) with respect to, or resulting from, any delay in complying with
any requirement of law applicable to any of the Collateral or (iii) in
connection with any of the transactions contemplated by this Security Agreement.
In any suit, proceeding or action brought by the Collateral Agent under any
Receivable or Contract for any sum owing thereunder, or to enforce any
provisions of any Receivable or Contract, each Grantor will save, indemnify and
keep the Collateral Agent harmless from and against all expense, loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
or liability whatsoever of the account debtor or obligor thereunder, arising out
of a breach by such 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 account debtor or obligor or its successors from such Grantor.
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(c) Maintenance of Records. Each Grantor will keep and maintain at
its own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the Receivables. For the Collateral Agent's further
security, the Collateral Agent shall have a security interest in all of each
Grantor's books and records pertaining to the Collateral, and each Grantor shall
turn over any such books and records for inspection at the office of such
Grantor to the Collateral Agent or to its representatives during normal business
hours at the request of the Collateral Agent.
(d) Limitation on Liens on Collateral. Each Grantor (x) will not
create, incur or permit to exist, will defend the Collateral against, and will
take such other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby and other than as permitted by
the Indenture, and (y) will defend the right, title and interest of the
Collateral Agent in and to any of the Collateral against the claims and demands
of all Persons whomsoever.
(e) Limitations on Dispositions of Collateral. Each Grantor will not
sell, transfer, lease or otherwise dispose of any of the Collateral, or attempt,
offer or contract to do so except as permitted by the Indenture.
(f) Limitations on Modifications, Waivers, Extensions of Contracts
and Agreements Giving Rise to Receivables. Each Grantor will not (i) except in
the ordinary course of its business, amend, modify, terminate or waive any
provision of any Contract or any agreement giving rise to a Receivable in any
manner which could reasonably be expected to materially adversely affect the
value of such Contract or Receivable as Collateral, or (ii) fail to deliver to
the Collateral Agent a copy of each material demand, notice or document received
by it relating in any way to any Contract or any agreement giving rise to a
Receivable in excess of $250,000.
(g) Limitations on Discounts, Compromises, Extensions of
Receivables. Other than in the ordinary course of business as generally
conducted by each Grantor over a period of time, each Grantor will not grant any
extension of the time of payment of any of the Receivables, compromise, compound
or settle the same for less than the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof, or allow any credit or
discount whatsoever thereon, to the extent that the same, individually or in the
aggregate, could reasonably be expected to have a material adverse effect on the
business, properties, assets, liabilities, results of operations, condition
(financial or other) or prospects of such Grantor.
(h) Further Identification of Collateral. Each Grantor will
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furnish to the Collateral Agent from time to time, statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Collateral Agent may reasonably request,
all in reasonable detail.
(i) Notices. Each Grantor will advise the Collateral Agent promptly,
in reasonable detail of, (i) any Lien (other than Liens created hereby or
permitted under the Indenture) on, or claim asserted against, any of the
Collateral, (ii) the opening by such Grantor of any bank or deposit account
after the Closing Date, (iii) any Receivable arising after the Closing Date with
respect to which the obligor thereon is a Governmental Authority if the
aggregate outstanding amount of such Receivable exceeds $150,000 and (iv) the
occurrence of any other event which could reasonably be expected to have a
material adverse effect on the aggregate value of the Collateral or on the Liens
created hereunder.
(j) Changes in Locations, Name, etc. Each Grantor will not (i)
change the location of its chief executive office/chief place of business from
that specified in Section 4(g) or remove its books and records from the location
specified in Section 4(c), (ii) to the extent that a financing statement or
statements necessary to perfect the security interest created hereby in such
inventory has not been filed in the appropriate places, permit any of the
Inventory or Equipment to be kept at a location other than that specified in
Section 4(f) or (iii) change its name, identity or corporate structure to such
an extent that any financing statement filed by the Collateral Agent in
connection with this Agreement would become misleading, unless it shall have
given the Collateral Agent at least 30 days' prior written notice thereof.
(k) Copyrights. (i) Each Grantor (either itself or through
licensees) will (a) employ each Copyright with appropriate copyright notice
consistent with its past practice and (b) not knowingly (and not permit any
licensee or sublicensee thereof knowingly to) do any act or knowingly omit to do
any act whereby any Copyright or any portion of the Copyright may become
invalidated.
(ii) Each Grantor will not (either itself or through licensees)
knowingly do any act, or omit to do any act, whereby any Copyright or any
portion of the Copyrights may become injected into the public domain.
(iii) Each Grantor shall notify the Collateral Agent immediately if
it knows, or has reason to know, that any Copyright or any portion of the
Copyrights may become injected into the public domain or of any adverse
determination (including, without limitation, the institution of, or any such
determination or development in, any court or tribunal in the United States or
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any other country) regarding such Grantor's ownership of any Copyright or any
portion of the Copyrights.
(iv) Each Grantor will, with respect to any Copyright that such
Grantor registers after the Closing Date or any Copyright License that such
Grantor knowingly acquires after the Closing Date, promptly (i) take all actions
necessary so that the Collateral Agent shall obtain a perfected security
interest in such Copyright or Copyright License and (ii) provide to the
Collateral Agent a revised Schedule I hereto listing all registered Copyright
and all Copyright Licenses owned by such Grantor.
(v) On each December 31 of each year following the Closing Date (or,
if the Collateral Agent so requests in writing, more often), each Grantor either
itself or through any agent, employee, licensee or designee, shall provide to
the Collateral Agent a document confirming the Collateral Agent's security
interest in all Copyrights and Copyright Licenses acquired by such Grantor
during the preceding calendar year. Each Grantor shall execute and deliver any
and all additional agreements, instruments, documents, and papers as the
Collateral Agent may reasonably request or as may otherwise be required by law
to confirm the Collateral Agent's security interest in such Copyrights and
Copyright Licenses, and each Grantor hereby constitutes the Collateral Agent its
attorney-in-fact to file all such writings for the foregoing purposes, all
lawful acts of such attorney being hereby ratified and confirmed; such power
being coupled with an interest is irrevocable until the Obligations are paid in
full.
(vi) Each Grantor will take all reasonable and necessary steps as it
shall deem appropriate under the circumstances, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain each
registration of each Copyright owned by such Grantor including, without
limitation, filing of applications for renewal, where necessary. Nothing set
forth in this Agreement shall create an obligation of the Company to register
any Copyright.
(vii) Each Grantor will promptly notify the Collateral Agent of any
infringement of any Copyright or any portion of the Copyrights of which it
becomes aware and will take all appropriate steps to stop the infringement as
are reasonably mutually agreed upon by such Grantor and the Collateral Agent.
(viii) Each Grantor will deliver to the Collateral Agent on the
Closing Date an assignment of security interest in United States Copyrights
substantially in the form of Annex C hereto.
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(l) Trademarks. (i) Each Grantor (either itself or through
licensees) will, with respect to each Trademark, (i) continue to use such
Trademark to the extent necessary to maintain such Trademark in full force free
from any claim of abandonment for non-use, if consistent with its overall
business plan or if to do otherwise would be an unsound commercial and business
judgment, (ii) maintain as in the past the quality of products and services
offered under such Trademark, (iii) employ such Trademark with the appropriate
notice of registration, (iv) not (and not permit any licensee or sublicensee
thereof to) do any act or knowingly omit to do any act whereby any Trademark may
become invalidated other than solely (x) through the discontinuance of the sale
of goods or the provision of services or (y) the abandonment of a Trademark
where, in each such case covered by (x) and (y) above, the Collateral Agent
shall have received not less than fifteen (15) days' prior written notice of any
such discontinuance or abandonment and such Grantor shall have acted in a manner
consistent with its overall business plan and the exercise of sound commercial
and business judgment. Nothing in this Security Agreement shall restrict such
Grantor from adding new goods and services to its business or, upon not less
than fifteen (15) days' prior written notice to the Collateral Agent and in a
manner consistent with such Grantor's overall business plan and the exercise of
sound commercial and business judgment, discontinuing the provision of goods or
services and thereby abandoning any Trademark relating thereto.
(ii) Each Grantor will notify the Collateral Agent immediately if it
knows, or has reason to know, that any application or registration relating to
any Trademark may become abandoned, or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office or any court or tribunal in any country) regarding such
Grantor's ownership of any Trademark or its right to register the same or to
keep and maintain the same.
(iii) Each Grantor will, with respect to any Trademark that such
Grantor registers after the Closing Date or any Trademark License that such
Grantor acquires after the Closing Date, promptly (i) take all actions necessary
so that the Collateral Agent shall obtain a perfected security interest in such
Trademark or Trademark License and (ii) provide to the Collateral Agent a
revised Schedule III hereto listing all registered Trademarks and all Trademark
Licenses owned by such Grantor.
(iv) On each December 31 of each year following the Closing Date
(or, if the Collateral Agent so requests in writing, more often), each Grantor
either itself or through any agent, employee, licensee or designee,
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shall provide to the Collateral Agent, a document confirming the Collateral
Agent's security interest in any Trademark with respect to which such Grantor
has filed an application for registration during the preceding calendar year.
Each Grantor shall execute and deliver any and all agreements, instruments,
documents, and papers as the Collateral Agent may request or as may otherwise be
required by law to evidence the Collateral Agent's security interest in any
Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby, and each Grantor hereby constitutes the
Collateral Agent its attorney-in-fact to execute and file all such writings for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable until the
Obligations are paid in full.
(v) Each Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark office, or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of the
Trademarks, including, without limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability. Notwithstanding the
foregoing, each Grantor may decline to maintain and pursue each of its
applications and decline to maintain each of its registrations as aforesaid upon
not less than fifteen (15) days' prior written notice to the Collateral Agent
and if to so decline is consistent with such Grantor's overall business plan and
is an exercise of sound commercial and business judgment.
(vi) In the event that any Trademark included in the Collateral is
infringed, misappropriated or diluted by a third party, each Grantor shall
promptly notify the Collateral Agent after it learns thereof and shall promptly
take all appropriate steps to stop the infringement as are reasonably mutually
agreed upon by such Grantor and the Collateral Agent.
(vii) Each Grantor will deliver to the Collateral Agent on the
Closing Date an assignment of security interest in United States Trademarks
substantially in the form of Annex A hereto.
(m) Patents. (i) Each Grantor will notify the Collateral Agent
immediately if it knows, or has reason to know, that any application relating to
any Patent may become abandoned or of any adverse determination or development
(including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office
or any court or tribunal in any country) regarding such Grantor's ownership of
any Patent.
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(ii) Each Grantor will, with respect to any Patent that such Grantor
obtains after the Closing Date or any Patent License that such Grantor acquires
after the Closing Date, promptly (i) take all actions necessary so that the
Collateral Agent shall obtain a perfected security interest in such Patent or
Patent License and (ii) provide to the Collateral Agent a revised Schedule II
hereto listing all Patents and all Patent Licenses owned by such Grantor.
(iii) On each December 31 of each year following the Closing Date
(or, if the Collateral Agent so requests in writing, more often), each Grantor
either itself or through any agent, employee, licensee or designee, shall
provide to the Collateral Agent, a document confirming the Collateral Agent's
security interest in any Patent or Patent License which such Grantor has
obtained during the preceding calendar year. Each Grantor shall execute and
deliver any and all agreements, instruments, documents, and papers as the
Collateral Agent may request or as otherwise may be required by law to evidence
the Collateral Agent's security interest in such Patents or Patent Licenses, and
each Grantor hereby constitutes the Collateral Agent its attorney-in-fact to
execute and file all such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power being coupled with an
interest is irrevocable until the Obligations are paid in full.
(iv) Each Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each patent or
application for patent and to maintain each Patent, including, without
limitation, payment of maintenance fees. Notwithstanding the foregoing, each
Grantor may decline to maintain and pursue each of its patents and applications
for patents and decline to maintain each Patent as aforesaid upon not less than
fifteen (15) days' prior written notice to the Collateral Agent and if to so
decline is consistent with such Grantor's overall business plan and is an
exercise of sound commercial and business judgment.
(v) In the event that any Patent included in the Collateral is
infringed by a third party, each Grantor shall promptly notify the Collateral
Agent after it learns thereof and shall promptly take all appropriate steps to
stop the infringement as are reasonably mutually agreed upon by such Grantor and
the Collateral Agent.
(vi) Each Grantor will deliver to the Collateral Agent on the
Closing Date an assignment of security interest in United States Patents
substantially in the form of Annex B hereto.
(n) Patent Licenses. Each Grantor shall comply with its
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obligations under each of its license agreements relating to each Patent.
6. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Powers. Each Grantor hereby irrevocably constitutes and appoints
the Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, from time to time (in the Collateral Agent's
discretion) for the purpose of carrying out the terms of this Security
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, except
any notice required by law referred to in Section 9 hereof, to do the following:
(i) at any time when any Event of Default shall have occurred and is
continuing, in the name of such Grantor or its own name, or otherwise,
upon five days notice to the Grantor, to take possession of and indorse
and collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Receivable, Instrument, General
Intangible or Contract or with respect to any other Collateral and to file
any claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Collateral Agent for the
purpose of collecting any and all such moneys due under any Receivable,
Instrument, General Intangible or Contract or with respect to any other
Collateral whenever payable;
(ii) if the Company has failed to do so within a reasonable time, to
pay or discharge taxes and Liens levied or placed on or threatened against
the Collateral, to effect any repairs or any insurance called for by the
terms of this Security Agreement and to pay all or any part of the
premiums therefor and the costs thereof; and
(iii) upon the occurrence and during the continuance of any Event of
Default, (A) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent
shall direct; (B) to ask for or demand, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to become
due at any time in respect of or arising out of any Collateral; (C) to
sign and indorse any invoices, freight or
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express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other documents
in connection with any of the Collateral; (D) to commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any thereof and to
enforce any other right in respect of any Collateral; (E) to defend any
suit, action or proceeding brought against such Grantor with respect to
any Collateral; (F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection therewith, to
give such discharges or releases as the Collateral Agent may deem
appropriate; (G) to assign any Copyright or Trademark (along with the
goodwill of the business to which any such Copyright or Trademark
pertains), throughout the world for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its sole
discretion determine; and (H) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the Collateral
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Collateral
Agent's Liens thereon and to effect the intent of this Security Agreement,
all as fully and effectively as the Grantor might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until the Obligations are paid in full.
(b) Other Powers. Each Grantor also authorizes the Collateral Agent,
at any time and from time to time, to execute, in connection with the sale
provided for in Section 9 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral.
(c) No Duty on Collateral Agent's Part. The powers conferred on the
Collateral Agent hereunder are solely to protect the Collateral Agent's
interests in the Collateral and shall not impose any duty upon the Collateral
Agent to exercise any such powers. The Collateral Agent shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither it nor any of its officers, directors, employees or agents
shall be responsible to such Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
7. Performance by Collateral Agent of Each Grantor's Obligations. If
any Grantor fails to perform or comply with any of its
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agreements contained herein and the Collateral Agent, as provided for by the
terms of this Security Agreement, shall itself perform or comply, or otherwise
cause performance or compliance, with such agreement, the expenses of the
Collateral Agent incurred in connection with such performance or compliance,
together with interest thereon, shall be payable by such Grantor to the
Collateral Agent on demand and shall constitute Obligations secured hereby.
8. Proceeds. In addition to the rights of the Collateral Agent
specified in Section 3(d) with respect to payments of Receivables, it is agreed
that if an Event of Default shall occur and be continuing (a) all Proceeds
received by each Grantor consisting of cash, checks and other instruments shall
be held by such Grantor in trust for the Collateral Agent, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Collateral Agent in the exact form received by such Grantor
(duly indorsed by such Grantor to the Collateral Agent, if required), and (b)
any and all such Proceeds received by the Collateral Agent (whether from such
Grantor or otherwise) may, in the sole discretion of the Collateral Agent, be
held by the Collateral Agent as collateral security for, and/or then or at any
time thereafter may be applied by the Collateral Agent against, the Obligations
(whether matured or unmatured), such application to be in such order as the
Collateral Agent shall elect. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full shall be paid over to such Grantor or
to whomsoever may be lawfully entitled to receive the same.
9. Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent may exercise, in addition to all other rights and remedies
granted to it in this Security Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the Code. Without limiting the generality of
the foregoing, the Collateral Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are,
to the extent permitted by applicable law, hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Collateral Agent or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Collateral Agent shall have the right upon any such public sale or sales,
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and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in such Grantor, which right or equity is hereby waived, to
the extent permitted by applicable law, or released. Each Grantor further
agrees, at the Collateral Agent's request, to assemble the Collateral and make
it available to the Collateral Agent at places which the Collateral Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The
Collateral Agent shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all costs and
expenses of every kind incurred therein or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Collateral Agent hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Collateral Agent may elect, and only after
such application and after the payment by the Collateral Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Collateral Agent account for the surplus, if
any, to such Grantor. To the extent permitted by applicable law, such Grantor
waives all claims, damages and demands it may acquire against the Collateral
Agent arising out of the exercise by them of any rights hereunder. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent to collect such deficiency.
In furtherance, but not in limitation of, the foregoing, if an Event
of Default shall occur and be continuing, each Grantor shall assign, license, or
sublicense, as requested by Collateral Agent, any or all of the Patent Licenses
to the Collateral Agent.
10. Limitation on Duties Regarding Preservation of Collateral. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent, nor any of its directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or
otherwise.
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11. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the Collateral are irrevocable and powers
coupled with an interest until the Obligations are indefeasibly paid in full.
12. Severability. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in this Security
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14. No Waiver; Cumulative Remedies. The Collateral Agent shall not
by any act (except by a written instrument pursuant to Section 15 hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Collateral Agent would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Security Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
each Grantor and the Collateral Agent, provided that any provision of this
Security Agreement may be waived by the Collateral Agent in a written letter or
agreement executed by the Collateral Agent or by facsimile transmission from the
Collateral Agent. This Security Agreement shall be binding upon the successors
and assigns of each Grantor and shall inure to the benefit of the Collateral
Agent, the Holders and their respective successors and assigns.
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16. Termination of Security Interest; Release of Collateral. (a)
Upon the repayment in full of all Obligations, the security interest granted in
the Collateral pursuant to this Security Agreement shall terminate and all
rights to the Collateral shall revert to the Grantors.
(b) Upon (i) any such termination of the security interest granted
in the Collateral pursuant to this Security Agreement or release of Collateral
pursuant to this Section and (ii) the Collateral Agent having been furnished all
certificates and opinions as may be required by the Trust Indenture Act, the
Collateral Agent will, at the expense of each Grantor, execute and deliver to
each Grantor such documents as such Grantor shall reasonably request to evidence
the termination of such security interest and deliver to such Grantor all
Collateral so released then in its possession.
17. Notices. All notices or other communications provided for
hereunder shall be in writing and sent by first class mail or nationwide
overnight delivery service, (i) if to a Grantor, addressed to it at its chief
executive office listed in Schedule VII, or at such other address as such
Grantor shall have specified to the Collateral Agent, and (ii) if to the
Collateral Agent, addressed to it at United States Trust Company of New York,
114 West 47th Street, 25th Floor, New York, New York 10036-1532, Attention:
Corporate Trust Department.
18. Grant of Access to Trademark, Trademark License, Copyright,
Copyright License, Patent or Patent License or Collateral. For the purposes of
enabling the Collateral Agent to exercise rights and remedies under Sections 6
and 9 hereof at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent during the continuance of an Event of Default access to all media in which
any Trademark, Copyright, Patent, Trademark License, Copyright License or Patent
License may be recorded or stored and to all computer and automatic machinery
software and programs used for the compilation or printout thereof to the extent
that such Grantor may lawfully do so.
19. Integration. This Security Agreement represents the agreement of
each Grantor and the Collateral Agent with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Collateral Agent relative to subject matter hereof not expressly set forth or
referred to herein or in the Securities and the Indenture.
20. GOVERNING LAW. THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH GRANTOR UNDER THIS SECURITY AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCEPT TO
THE EXTENT THAT THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF
THE SECURITY INTEREST CREATED HEREBY, IN RESPECT OF ANY PARTICULAR COLLATERAL,
ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
21. Additional Grantors. It is understood and agreed that no
Subsidiaries of the Company exist on the date hereof. Any such Subsidiary
established or created after the date hereof and that is required to become a
Subsidiary Guarantor pursuant to Section 4.19 of to the Indenture shall
automatically become a Grantor hereunder by executing a counterpart hereof and
delivering the same to the Collateral Trustee.
22. The Indenture. In the performance of its duties and obligations
hereunder, the Collateral Agent shall be entitled to the benefits of Articles 7
and 10 of the Indenture.
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IN WITNESS WHEREOF, each Grantor has caused this Security
Agreement to be duly executed and delivered as of the date first above written.
GRANTOR: MENTUS MEDIA CORP.
By____________________________
Name:
Title:
Accepted and Agreed:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Collateral Agent
By_____________________________
Name:
Title:
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SCHEDULE I
Copyrights and Copyright Licenses
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SCHEDULE II
Patents and Patent Licenses
U.S. Patent No. Description Expiration
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SCHEDULE III
Trademarks and Trademark Licenses
Trademark Name Serial/Registration Application or
Number Registration
Date
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SCHEDULE IV
Location of Records Regarding Receivables
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SCHEDULE V
Bank Accounts
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SCHEDULE VI
Location of Inventory and Equipment
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SCHEDULE VII
Chief Executive Offices
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Annex A
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of
which are hereby acknowledged, the undersigned with principal offices at the
address set forth next to their name appearing in the signature pages hereof,
(each individually an "Assignor" and collectively the "Assignors") hereby
assigns and grants to United States Trust Company of New York, as Collateral
Agent, with principal offices at 114 West 47th Street, 25th Floor, New York, New
York 10036 (the "Assignee"), a security interest in (i) all of the Assignors'
right, title and interest in and to the United States trademarks, trademark
registrations and trademark applications (the "Marks") set forth on Schedule A
attached hereto, together with (ii) all Proceeds (as such term is defined in the
Security Agreement referred to below) and products of the Marks, (iii) the
goodwill of the businesses symbolized by the Marks and (iv) all causes of action
arising prior to or after the date hereof for infringement of any of the Marks
or unfair competition regarding the same.
THIS ASSIGNMENT is made to secure the full and prompt performance
and payment of all the Obligations of the Assignors, as such term is defined in
the Security Agreement among the Assignors, the other assignors party thereto
and the Assignee, dated as of February 18, 1998 (as amended from time to time,
the "Security Agreement"). Upon the occurrence of the Termination Date (as
defined in the Security Agreement), the Assignee shall, upon such satisfaction,
execute, acknowledge, and deliver to the Assignors an
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ANNEX A
Page 2
instrument in writing releasing the security interest in the Marks acquired
under this Assignment.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
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ANNEX A
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Assignment of
Security Interest as of the 18th day of February, 1998.
MENTUS MEDIA CORP.
as Assignor
By______________________________
Name:
Title:
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[To be notarized for each signatory]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 18th day of February, 1998 before me personally came Michael
J. Kolthoff who, being by me duly sworn, did state as follows: that [s]he is
Treasurer of Mentus Media Corp., that [s]he is authorized to execute the
foregoing Assignment of Security Interest on behalf of said corporation and that
[s]he did so by authority of the Board of Directors of said corporation.
----------------------------
Notary Public
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Annex B
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of
which are hereby acknowledged, the undersigned with principal offices at the
address set forth next to their name appearing in the signature pages hereof
(each individually an "Assignor" and collectively the "Assignors") hereby
assigns and grants to United States Trust Company of New York as Collateral
Agent, with principal offices at 114 West 47th Street, 25th Floor, New York, New
York 10036 (the "Assignee"), a security interest in (i) all of the Assignors'
right, title and interest in and to the United States patents (the "Patents")
set forth on Schedule A attached hereto, together with (ii) all Proceeds (as
such term is defined in the Security Agreement referred to below) and products
of the Patents and (iii) all causes of action arising prior to or after the date
hereof for infringement of any of the Patents or unfair competition regarding
the same.
THIS ASSIGNMENT is made to secure the full and prompt performance
and payment of all the Obligations of the Assignors, as such term is defined in
the Security Agreement among the Assignors, the other assignors party thereto
and the Assignee, dated as of February 18, 1998 (as amended from time to time,
the "Security Agreement"). Upon the occurrence of the Termination Date (as
defined in the Security Agreement), the Assignee shall, upon such satisfaction,
execute, acknowledge, and deliver to the Assignors an instrument in writing
releasing the security interest in the Patents acquired
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ANNEX B
Page 2
under this Assignment.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
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ANNEX B
Page 3
IN WITNESS WHEREOF, the undersigned have executed this Assignment of
Security Interest as of the 18th day of February, 1998.
Address:
MENTUS MEDIA CORP.
as Assignor
By______________________________
Name:
Title:
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[Notarized for each signatory]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 18th day of February, 1998 before me personally came
_______________, who being duly sworn, did depose and say that [s]he is
Treasurer of Mentus Media Corp., that [s]he is authorized to execute the
foregoing Assignment of Security Interest 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
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ANNEX C
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of
which are hereby acknowledged, the undersigned with principal offices at the
address set forth next to their name appearing in the signature pages hereof
(each individually an "Assignor" and collectively the "Assignors") is the owner
of all right, title and interest in and to the United States copyrights and
associated United States copyright registrations and applications for
registration set forth in Schedule A attached hereto;
WHEREAS, United States Trust Company of New York, as Collateral
Agent, having its principal offices at 114 West 47th Street, 25th Floor, New
York, New York 10036 (the "Assignee"), desires to acquire a security interest
in, and lien on, all of Assignors' right, title and interest in and to
Assignors' copyrights and copyright registrations and applications therefor; and
WHEREAS, the Assignors are willing to assign to the Assignee, and to
grant to the Assignee a security interest in and lien upon the copyrights and
copyright registrations and applications therefor described above;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and subject to the terms and conditions of the
Security Agreement, dated as of February 18, 1998, among the Assignors, the
other assignors from time to time party thereto and the Assignee (as amended
from time to time, the "Security Agreement"), each of
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ANNEX C
Page 2
the Assignors hereby assigns to the Assignee, and grants to the Assignee a
security interest in and a lien upon, all of Assignors' right, title and
interest in and to Assignors' copyrights and copyright registrations and
applications more particularly set forth on Schedule A attached hereto, (the
"Copyrights") together with (i) all Proceeds (as such term is defined in the
Security Agreement referred to below) of the Copyrights, and (ii) all causes of
action arising prior to or after the date hereof for infringement of any
Copyright.
This ASSIGNMENT OF SECURITY INTEREST is made to secure the
satisfactory performance and payment of all the Obligations (as such term is
defined in the Security Agreement) of the Assignors and shall be effective as of
the date of the Security Agreement. Upon the occurrence of the Termination Date
(as defined in the Security Agreement), the Assignee shall, upon such
satisfaction, execute, acknowledge, and deliver to the Assignors an instrument
in writing releasing the security interest in the Copyrights acquired under this
Assignment of Security Interest.
This Assignment of Security Interest has been granted in conjunction
with the security interest granted to Assignee under the Security Agreement. The
rights and remedies of the Assignee with respect to the security interest
granted herein are without prejudice to, and are in addition to those set forth
in the Security Agreement, all terms and provisions of which are incorporated
herein by reference. In the event that any provisions of this Assignment of
Security Interest are deemed to conflict with the Security Agreement, the
provisions of the Security Agreement shall govern.
IN WITNESS WHEREOF, the undersigned have executed this
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ANNEX C
Page 3
Assignment as of the 18th day of February, 1998.
MENTUS MEDIA CORP.
as Assignor
By______________________________
Name:
Title:
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ANNEX C
Page 4
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[Notarized for each signatory]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 18th day of February, 1998, before me personally came
______________ who, being by me duly sworn, did state as follows: that [s]he is
Treasurer of Mentus Media Corp., that [s]he is authorized to execute the
foregoing Assignment of Security Interest 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
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