Collateral Assignment of Intellectual Property

INTELLECTUAL PROPERTY COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT

Intellectual Property Collateral Assignment and Security Agreement (this "Assignment"), dated effective as of , by and between , a corporation ("Grantor"), and , a corporation ("Secured Party").

W I T N E S S E T H:

WHEREAS, Grantor and Secured Party are parties to that certain Agreement, dated (as amended, the "Agreement"), which provides for (1) the extension of credit by Secured Party to or for the benefit of Grantor; and (2) the grant by Grantor to Secured Party of a security interest in the property described in Section 1 below;

WHEREAS, Secured Party has required, as a condition to advancing funds to Grantor under the Agreement, that Grantor execute and deliver to Secured Party this Assignment; and

WHEREAS, Grantor and Secured Party desire to secure the performance and payment by Grantor of all of its obligations to Secured Party under the Agreement (collectively, the "Obligations") by a pledge of the property described in Section 1 below, all in accordance with the terms and conditions of this Assignment.

NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor agrees as follows:

1. Collateral Assignment. To secure the complete and timely satisfaction of the Obligations, Grantor hereby grants, conveys, and assigns to Secured Party all of Grantor's right, title, and interest in and to the following (collectively, the "Collateral"):

1.1 Patents. The patents and patent applications listed in Schedule A (as further described below, the "Patents"), together with:

1.1.1. The inventions, improvements, claims, inventor's notes and shop rights associated therewith.

1.1.2. The reissues, divisions, continuations, renewals, extensions, continuations-in-part, and improvements thereof.

1.1.3. All income, royalties, damages, and payments now and hereafter due and/or payable under and with respect thereto, including, without limitation, damages and payments for past or future infringements thereof.

1.1.4. All rights corresponding thereto, including, without limitation, the right to sue and recover for past, present and future infringements thereof.

1.1.5. All other proceeds and products of the foregoing, including, without limitation, any rights pursuant to its agreements with any other party relating thereto.

1.2. Trademarks. The trademarks, trademark applications and statements of intent to use trademarks listed in Schedule 1.2 (as further described below, the "Trademarks"), together with:

1.2.1. The logos, business practices, use standards, trade dress, and good will associated therewith.

1.2.2. The renewals, extensions and modifications thereof.

1.2.3. All income, royalties, damages, and payments now and hereafter due and/or payable under and with respect thereto, including, without limitation, damages and payments for past or future infringements, dilution or improper use thereof;

1.2.4. All rights corresponding thereto, including, without limitation, the right to sue and recover for past, present and future infringements, dilution or improper use thereof.

1.2.5. All other proceeds and products of the foregoing, including, without limitation, any rights pursuant to its agreements with any other party relating thereto.

1.3. Copyrights. The copyrights listed in Schedule 1.3 (as further described below, the "Patents"), together with:

1.3.1. The embodiments, works for hire and derivative works associated therewith.

1.3.2. All income, royalties, damages, and payments now and hereafter due and/or payable under and with respect thereto, including, without limitation, damages and payments for past or future infringements thereof.

1.3.3. All rights corresponding thereto, including, without limitation, the right to sue and recover for past, present and future infringements thereof.

1.3.4. All other proceeds and products of the foregoing, including, without limitation, any rights pursuant to Grantor's agreements with any other party relating thereto.

2. Scope. The assignment of the Collateral herein creates a first-priority mortgage and security interest having priority over all other security interests. Secured Party's rights to the Collateral will be worldwide and will not require the payment of any royalties or other related charges by Secured Party to Grantor or any other person. The Collateral includes Patents, Trademarks and Copyrights now owned by Grantor, those Patents, Trademarks and Copyrights currently applied for, and all Patents, Trademarks and Copyrights hereafter applied for or filed by Grantor or hereafter granted or otherwise arising in Grantor's interest.

3. Representations and Warranties. Grantor represents and warrants to Secured Party as follows:

3.1. The Patents, Trademarks and Copyrights are subsisting, have not been adjudged invalid or unenforceable in whole or in part, and are not currently being challenged in any way.

3.2. None of the Patents, Trademarks or Copyrights have lapsed or expired.

3.3. No claim has been made that the use of any of the Patents, Trademarks and Copyrights in the conduct of Grantor's business constitutes an infringement of any senior or dominant patent, trademark, copyright or other intellectual property right in the same jurisdiction.

3.4. Grantor owns the entire right, title, and interest in and to each of the Patents, Trademarks and Copyrights free and clear of any liens and encumbrances of every kind and nature, except for the rights granted by Grantor pursuant to this Assignment.

3.5. Grantor has used proper statutory notice in connection with its use of the Patents, Trademarks and Copyrights.

4. Covenants. During the Term, except as may otherwise be provided in the Agreement and except with the prior written consent of Secured Party, Grantor:

4.1. Will not enter into any agreement inconsistent with Grantor's obligations under this Assignment.

4.2. Will continue to use proper statutory notice in connection with its use of the Patents, Trademarks and Copyrights.

4.3. Will use commercially reasonable efforts to discover, preserve and protect its intellectual property; will file applications for Patents, Trademarks and Copyrights with respect to such intellectual property when commercially reasonable to do so, giving due consideration to the economic and strategic value and opinion of counsel as to desirability and feasibility of such application; and will prosecute diligently all present and future applications for Patents, Trademarks or Copyrights.

4.4. Will not abandon any pending Patent, Trademark or Copyright application.

4.5. Will promptly pay when due all taxes and assessments upon the Collateral or for its use.

4.6. Will preserve, maintain, and enforce against infringement, dilution and improper use all Patents, Trademarks and Copyrights; and will not, directly or indirectly, take any action, or fail to take any action which would impair the validity or enforceability of any of the Patents, Trademarks or Copyrights.

4.7. Will not create, incur or suffer or permit to be created or incurred or to exist any lien or security interest upon or against any of the Collateral that is prior in right to that of Secured Party.

5. License.

5.1. Patents. Secured Party hereby grants to Grantor the royalty-free, exclusive, nontransferable right and license to make, have made, use, and sell the inventions disclosed and claimed in the Patents solely for Grantor's own benefit.

5.2. Trademarks. Secured Party hereby grants to Grantor the royalty-free, exclusive, nontransferable right and license to use in commerce Trademarks solely for Grantor's own benefit.

5.3. Copyrights. Secured Party hereby grants to Grantor the royalty-free, exclusive, nontransferable right and license to use and create derivative works from works subject to the Copyrights solely for Grantor's own benefit.

5.4. Limitations. The licenses granted under this Section 5 will terminate at the end of the Term or sooner upon an Event of Default. Except as otherwise permitted by Agreement, and except with the prior written consent of Secured Party, Grantor will not sell, assign its interest in, or grant any sublicense under, any of the licenses granted under this Section 5.

6. Term. The period of effectiveness of this Assignment (the "Term") will begin on the earlier of (1) the execution of this Assignment by Grantor and Secured Party; or (2) the effectiveness of the Agreement and will end at the later of (a) the complete satisfaction of the Obligations; or (b) the date the Agreement becomes without further force and effect. Notwithstanding the foregoing, Section 8 will survive the Term for two (2) years.

7. Right to Inspect. Secured Party has the right, at any reasonable time and from time to time, to inspect Grantor's premises and to examine Grantor's books, records, and operations which are relevant to Grantor's intellectual property generally, to the Patents, Trademarks and Copyrights, and to the enforcement of the provisions of this Assignment.

8. Confidential Information. "Confidential Information" means information on tangible media conspicuously labeled as "proprietary" or "confidential" or with comparable legend ("marked") provided by one party ("Provider") to another party ("Recipient") hereunder. Orally disclosed information is also Confidential Information if Provider gives Recipient a marked writing containing a summary, the approximate date and time and the recipients of such disclosure within thirty (30) days of disclosure. No information can be Confidential Information if (1) it is publicly available through no fault of Recipient; (2) Recipient gets it from a third party who had the right to provide it; (3) Recipient independently develops it or knew it before receiving it hereunder; or (4) Provider discloses it to a third party without restriction. Recipient will hold and protect Confidential Information with the same degree of care that it uses with its own information of like importance, but in no event less than a reasonable standard of care.

9. Termination. This Assignment is made for collateral purposes only. At the end of the Term, all of Secured Party's right, title, and interest in and to the Collateral will automatically revert to Grantor. In such event, Secured Party will execute and deliver to Grantor all termination statements and other instruments which are required to terminate Secured Party's security interest and to vest in Grantor all right, title, and interest in and to the Collateral, subject to any prior enforcement by Secured Party of its security interest as provided under this Assignment.

10. Expenses. Each party will bear its own expenses of complying with the terms of this Assignment. Such expenses of compliance for Grantor will include, without limitation, the expenses of maintaining the Collateral as provided in Section 4. Such expenses of Compliance for Secured Party will include, without limitation, the expenses of perfecting the security interest created by this Assignment.

11. Events of Default. An "Event of Default" will occur under this Assignment upon the happening of any of the following events:

11.1. The Agreement. The occurrence of an event of default under the Agreement.

11.2. Payment. A default in the payment of the Obligations.

11.3. Performance. A default in the performance of the Obligations or any provision of this Assignment which is unremedied ten (10) days after notice to Grantor of such default from Secured Party.

11.4. Insolvency. The dissolution, insolvency, business failure, appointment of a receiver for any part of the Collateral, assignment for the benefit of creditors, or commencement of any proceeding under any bankruptcy or insolvency law by or against Grantor.

12. Remedies. Upon the occurrence of an Event of Default, so long as such Event of Default has not been waived, and after written notice from Secured Party to Grantor of Secured Party's intention to enforce its rights and claims in the Collateral, Secured Party is authorized and empowered either (1) to take any or all of the Collateral as Secured Party's property (a "Taking"); (2) to cause any or all of the Collateral to be sold at any bona fide public auction upon thirty (30) days' written notice to Grantor (a "Sale"); or (3) to bring suit and take any other action in its own name to enforce or otherwise protect, preserve, or realize upon the Collateral (a "Suit"). In the event of a Taking, Secured Party will apply the Collateral to the unpaid interest (if any) of, and then to the unpaid principal of, the Obligations, valuing the Collateral at its fair market value on the date of such Taking, after first subtracting the costs of such Taking, which costs will include, without limitation, the cost of determining such fair market value. Secured Party may bid at any Sale and, in the event of a Sale, will apply the proceeds of such Sale first to the reasonable expenses attendant to the Sale, then to the unpaid interest (if any) of the Obligations, and lastly to the unpaid principal of the Obligations. Grantor will, at the request of Secured Party, and in connection with any Taking, Sale, Suit or any other action taken to enforce Secured Party's rights in the Collateral (1) do any and all lawful acts and execute any and all instruments reasonably required by Secured Party; and (2) reimburse and indemnify Secured Party for all reasonable expenses incurred by Secured Party. If the fair market value of the Collateral (in the event of a Taking) or the proceeds from any Sale exceed the sum of (1) Secured Party's reasonable expenses attendant to such Taking or Sale; and (2) the Obligations, then Secured Party will hold the excess subject to the order of Secured Party.

13. Power of Attorney.

13.1 Authorization. Grantor hereby authorizes Secured Party to:

13.1.1. Make, constitute, and appoint any representative of Secured Party as Secured Party may select, in its sole discretion, as Grantor's true and lawful attorney-in-fact, with power to endorse Grantor's name on all applications, documents, papers, and instruments necessary or desirable for Secured Party to give effect to the provisions of this Assignment and the intent of the parties hereto.

13.1.2. Unilaterally modify the schedules to this Assignment to add to, delete or modify the Patents, Trademarks and Copyrights listed therein, which additions, deletions or modifications will be binding upon Secured Party and Grantor upon notice thereof to Grantor.

13.1.3. Take any other actions with respect to the Collateral, consistent with this Assignment, as Secured Party deems in the best interest of Secured Party.

13.1.4. Following the occurrence of an Event of Default, grant or issue any exclusive or non-exclusive license under the Patents, Trademarks or Copyrights to any person.

13.1.5. Following the occurrence of an Event of Default, subject to the terms of any existing license agreement, assign, pledge, convey, or otherwise transfer title in or dispose of the Collateral to any person.

13.2. Ratification. Grantor hereby ratifies all that Secured Party, acting as Grantor's attorney-in-fact will lawfully do or cause to be done by virtue hereof. This power of attorney will be irrevocable during the Term.

14. Cumulative Remedies. All of Secured Party's rights and remedies with respect to the Collateral, whether established hereby or by the Agreement, or by any other agreements or by law, will be cumulative and may be exercised individually or concurrently. Secured Party will have, in addition to all other rights and remedies given it by the terms of this Assignment, all rights and remedies allowed by law and the rights and remedies of a secured party under the Uniform Commercial Code as enacted in any jurisdiction in which the Collateral may be used or rights thereto enforced. Grantor acknowledges and agrees that this Assignment is not intended to limit or restrict in any way the rights and remedies of Secured Party under the Agreement but rather is intended to facilitate the exercise of such rights and remedies.

15. Waivers. No course of dealing between Grantor and Secured Party and no failure or delay of Secured Party to exercise any right, power or privilege hereunder will operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

16. Severability. The provisions of this Assignment are severable, and if any clause or provision is held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability will affect only such clause or provision, or part thereof, in such jurisdiction, and will not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Assignment.

17. Binding Effect; Benefits. This Assignment will be binding upon Grantor and its respective successors and assigns and will inure to the benefit of Secured Party, its nominees, successors, and assigns.

18 General. This Assignment will inure to the benefit of and be binding upon Grantor, Secured Party and their respective successors and assigns. No party is liable for its breach if such breach is due to an event beyond its reasonable control. All required notices must be in writing. No failure or delay to enforce a provision will be deemed a waiver thereof. This Assignment is governed by the internal law of , is the entire and exclusive set of terms and conditions for the assignment and disposition of the Collateral, supersedes conflicting terms of any letters or other documents issued under it, and may only be modified by a writing signed by all parties (except as provided in Section 13.1.2).

IN WITNESS WHEREOF, the parties have executed this Assignment by their signature or the signature of their duly authorized representatives below.