Aircraft Security Agreement - Intergraph Corp. and Foothill Capital Corp.
AIRCRAFT SECURITY AGREEMENT
---------------------------
THIS AIRCRAFT SECURITY AGREEMENT ("this Agreement"), is
entered into as of December 20, 1996 between INTERGRAPH
CORPORATION, a Delaware corporation ("Debtor"), with its chief
executive office located at One Madison Industrial Park,
Huntsville, Alabama 35894, and FOOTHILL CAPITAL CORPORATION, a
California corporation ("Secured Party"), with a place of business
located at 11111 Santa Monica Boulevard, Suite 1500, Los Angeles,
California 90025-3333, with reference to the following facts:
RECITALS
--------
WHEREAS, Debtor and Secured Party have entered into a Loan and
Security Agreement, dated as of December 20, 1996 (as amended,
restated, modified, renewed, or extended from time to time, the
"Loan Agreement");
WHEREAS, Debtor is the sole owner of the Aircraft described
and identified in Schedule 1 attached hereto and incorporated
herein by reference, subject only to the liens and rights of
Secured Party granted herein. (Unless the context clearly requires
otherwise, the term "Aircraft" as used hereinafter shall be deemed
to mean the aircraft identified in Schedule 1, together with the
engines attached or belonging thereto and any and all components,
appliances, equipment, accessories, avionics, instruments, parts,
manuals, books and records, and other property installed in,
appurtenant to or delivered with or in respect of each such
aircraft. Furthermore, capitalized words used herein but not
otherwise defined herein shall have the respective meanings
assigned to them in the Loan Agreement.);
WHEREAS, Secured Party wishes to obtain and Debtor wishes to
provide Secured Party with security for the repayment of all of the
Obligations owing by Debtor to Secured Party (hereinafter
collectively referred to as the "Secured Obligations"); and
WHEREAS, pursuant to the Loan Agreement and as one of the
conditions thereof precedent to the obligations of Secured Party
under the Loan Agreement, Debtor has agreed to execute and deliver
this Agreement to Secured Party.
GRANT OF SECURITY INTEREST AND MORTGAGE
---------------------------------------
NOW, THEREFORE, in order to secure prompt payment and
performance of all present and future Secured Obligations, Debtor
does hereby assign and grant a security interest in and mortgage to
Secured Party the following described personal property
(hereinafter sometimes collectively referred to as the "Mortgaged
Property"):
(1) The Aircraft identified in Schedule 1;
(2) All appurtenances, accessions, appliances, spare parts,
instruments, avionics, accessories or other equipment or parts
related to each Aircraft, whether now or hereafter belonging to
Debtor and part of, installed on or attached to any of the
Aircraft;
(3) All property constituting replacements of or additions to
any of the property described above, in the event that any such
replacements or additions shall become the property of Debtor;
(4) All right, title and interest of Debtor in and to any
lease, rental agreement or charter agreement respecting the
Aircraft, including without limitation the right to receive either
directly or indirectly from any party or person any rents or other
payments due under such agreement(s);
(5) All log books, records and other documents maintained by
Debtor with respect to the foregoing items (1) through (4); and
(6) All the proceeds and products of the foregoing items (1)
through (4), including without limitation, all accounts,
instruments, documents, contract rights, general intangibles,
money, deposit accounts, goods, inventory, equipment and machinery
and other tangible and intangible assets of Debtor arising out of
or resulting from the sale or other disposition of any of the
foregoing items and the proceeds of such proceeds, and the proceeds
of insurance policies issued with respect to the foregoing and with
respect to the use and operation of the Aircraft.
IT IS HEREBY COVENANTED AND AGREED by and between Secured
Party and Debtor that the terms, provisions and conditions upon
which the Mortgaged Property is to be held and disposed of are as
follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES AND
----------------------------------
COVENANTS OF DEBTOR
-------------------
Section 1.1 - Title to Mortgaged Property
- ------------------------------------------
Debtor represents and warrants that it has good and clear
title to the Mortgaged Property free of all Liens, other than
Permitted Liens.
ARTICLE 2
EVENTS OF DEFAULT AND REMEDIES
------------------------------
Section 2.1 - Rights and Remedies Upon Default
- -----------------------------------------------
Upon the occurrence and during the continuance of any Event of
Default, Secured Party shall have the right, to the extent provided
under the Loan Agreement, to declare all or any portion of the
Secured Obligations immediately due and payable and to terminate
any commitment by Secured Party to make Revolving Advances or to
issue L/Cs or L/C Guaranties to Debtor under the Loan Agreement.
Secured Party shall have all other rights, powers, privileges and
remedies available to a secured party under the UCC, at law or in
equity, or otherwise.
Section 2.2 - Exercise of Remedies
- -----------------------------------
Each right, power and remedy herein granted Secured Party
is cumulative and in addition to every other right, power and
remedy herein specifically given or now or hereafter existing under
or by virtue of the provisions of any other agreement between
Debtor and Secured Party or in equity, at law or by virtue of
statute or otherwise. No failure to exercise, and no delay in
exercising, any right, power or remedy held by Secured Party
hereunder or otherwise, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or
remedy held hereunder or otherwise, preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy.
Section 2.3 - Replacements and Additions
- -----------------------------------------
Secured Party acknowledges that Debtor may, from time to
time, replace portions, repair, or make additions to, the Aircraft,
provided that the value of such Aircraft is not thereby impaired.
Any such replacement property or additions which may become the
property of Debtor shall immediately upon the acquisition thereof
be and become subject to the lien of the security interest and
mortgage created, granted and conveyed pursuant to this Agreement.
Debtor shall execute such documents as are reasonably necessary to
grant to Secured Party a security interest in or perfect Secured
Party's security interest in said replacements or additions.
ARTICLE 3
MISCELLANEOUS PROVISIONS
------------------------
Section 3.1 - Entire Agreement
- -------------------------------
This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof.
This Agreement cannot be changed or terminated orally.
Section 3.2 - Notices
- ----------------------
Unless otherwise specifically provided in this Agreement,
any notice or other communication relating to this Agreement or any
other agreement entered into in connection therewith shall be in
writing and shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by
prepaid telex, TWX, telefacsimile, or telegram (with messenger
delivery specified) to Debtor or to Secured Party in the manner set
forth in the Loan Agreement
Section 3.3 - Loan Document
- ----------------------------
This Agreement is a Loan Document.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first written
above.
INTERGRAPH CORPORATION,
a Delaware corporation
By
------------------------------------
Title:
--------------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By
------------------------------------
Title:
--------------------------------
EXHIBIT C-1
(Form of Compliance Certificate)
[on Borrower's letterhead]
To: Foothill Capital Corporation
11111 Santa Monica Boulevard, Suite 1500
Los Angeles, California 90025-3333
Attn: Business Finance Division Manager
Re: Compliance Certificate dated ____________, 199__
Ladies and Gentlemen:
Reference is made to that certain Loan and Security
Agreement, dated as of December 20, 1996 (as the same may from time
to time be amended, modified, supplemented or restated, the "Loan
Agreement") between Intergraph Corporation, a Delaware corporation
("Borrower") and Foothill Capital Corporation ("Foothill"). The
initially capitalized terms used in this Compliance Certificate
have the meanings set forth in the Loan Agreement unless
specifically defined herein.
Pursuant to Section 6.3 of the Loan Agreement, the
undersigned officer of Borrower hereby certifies that:
1. The financial information of Borrower furnished in
Schedule 1 attached hereto, has been prepared in accordance with
GAAP (except for year-end adjustments and the lack of footnotes, in
the case of financial statements delivered under Section 6.3(a) of
the Loan Agreement) and fairly presents the financial condition of
Borrower.
2. Such officer has reviewed the terms of the Loan
Agreement and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions and
condition of Borrower during the accounting period covered by
financial statements delivered pursuant to Section 6.3 of the Loan
Agreement.
3. Such review has not disclosed the existence on and
as of the date hereof, and the undersigned does not have knowledge
of the existence as of the date hereof of any event or condition
that constitutes a Default or Event of Default, except for such
conditions or events listed on Schedule 2 attached hereto,
specifying the nature and period of existence thereof and what
action Borrower has taken, is taking or proposes to take with
respect thereto.
4. Borrower is in timely compliance with all
representations, warranties, and covenants set forth in the Loan
Agreement and the other Loan Documents, except as set forth on
Schedule 2 attached hereto. Without limiting the generality of the
foregoing, Borrower is in compliance with the covenants contained
in Sections 7.20 and 7.21 of the Loan Agreement as demonstrated on
Schedule 3 hereof.
IN WITNESS WHEREOF, this Compliance Certificate is
executed by the undersigned this _____ day of _______________,
________.
Intergraph Corporation,
a Delaware corporation
By: ________________________
Name:
Title:
COPYRIGHT SECURITY AGREEMENT
----------------------------
This COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated
as of December 20, 1996 is made by INTERGRAPH CORPORATION, a
Delaware corporation ("Debtor"), in favor of FOOTHILL CAPITAL
CORPORATION, a California corporation ("Secured Party").
RECITALS
--------
A. Debtor and Secured Party have entered into that certain
Loan and Security Agreement, dated as of the date hereof (as
amended, modified, renewed or extended from time to time, the
"Loan Agreement"), pursuant to which Secured Party has agreed to
make certain financial accommodations to Debtor, and Debtor has
granted to Secured Party a security interest in (among other
things) certain of the general intangibles of Debtor.
B. Pursuant to the Loan Agreement and as one of the
conditions precedent to the obligations of Secured Party under
the Loan Agreement, Debtor has agreed to execute and deliver this
Agreement to Secured Party for filing with the United States
Copyright Office and with any other relevant recording systems in
any domestic or foreign jurisdiction, and as further evidence of
and to effectuate Secured Party's existing security interests in
the copyrights and other general intangibles described herein.
ASSIGNMENT
----------
NOW, THEREFORE, for valuable consideration, the receipt
and adequacy of which is hereby acknowledged, Debtor hereby
agrees in favor of Secured Party as follows:
II. Definitions; Interpretation.
A. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Copyright Collateral" has the meaning set forth in Section 2.
"Copyrights" has the meaning set forth in Section 2.
"Lien" means any pledge, security interest, assignment,
charge or encumbrance, lien (statutory or other), or other prefer
ential arrangement (including any agreement to give any security
interest).
"Secured Obligations" means all liabilities,
obligations, or undertakings owing by Debtor to Secured Party of
any kind or description arising out of or outstanding under,
advanced or issued pursuant to, or evidenced by the Loan
Agreement, the other Loan Documents, or this Agreement,
irrespective of whether for the payment of money, whether direct
or indirect, absolute or contingent, due or to become due,
voluntary or involuntary, whether now existing or hereafter
arising, and including all interest (including interest that
accrues after the filing of a case under the Bankruptcy Code) and
any and all costs, fees (including attorneys fees), and expenses
which Debtor is required to pay pursuant to any of the foregoing,
by law, or otherwise.
"UCC" means the Uniform Commercial Code as in effect
from time to time in the State of California.
"United States" and "U.S." each mean the United States
of America.
B. Terms Defined in UCC. Where applicable and except as
otherwise defined herein, terms used in this Agreement shall have
the meanings ascribed to them in the UCC.
C. Interpretation. In this Agreement, except to the
extent the context otherwise requires:
(i) Any reference to a Section or a Schedule
is a reference to a section hereof, or a schedule hereto,
respectively, and to a subsection or a clause is, unless
otherwise stated, a reference to a subsection or a clause of
the Section or subsection in which the reference appears.
(ii) The words "hereof," "herein," "hereto,"
"hereunder" and the like mean and refer to this Agreement as
a whole and not merely to the specific Section, subsection,
paragraph or clause in which the respective word appears.
(iii) The meaning of defined terms shall
be equally applicable to both the singular and plural forms
of the terms defined.
(iv) The words "including," "includes" and
"include" shall be deemed to be followed by the words
"without limitation."
(v) References to agreements and other
contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto.
(vi) References to statutes or regulations
are to be construed as including all statutory and
regulatory provisions consolidating, amending or replacing
the statute or regulation referred to.
(vii) Any captions and headings are for
convenience of reference only and shall not affect the
construction of this Agreement.
(viii) Capitalized words not otherwise
defined herein shall have the respective meanings ascribed
to them in the Loan Agreement.
(ix) In the event of a direct conflict
between the terms and provisions of this Agreement and the Loan
Agreement, it is the intention of the parties hereto that both
such documents shall be read together and construed, to the
fullest extent possible, to be in concert with each other. In
the event of any actual, irreconcilable conflict that cannot be
resolved as aforesaid, the terms and provisions of the Loan
Agreement shall control and govern; provided, however, that the
inclusion herein of additional obligations on the part of Debtor
and supplemental rights and remedies in favor of Secured Party
(whether under California law or applicable federal law), in each
case in respect of the Copyright Collateral, shall not be deemed
a conflict with the Loan Agreement.
III. Security Interest.
A. Assignment and Grant of Security. As security for the
payment and performance of the Secured Obligations, Debtor hereby
grants, assigns, transfers and conveys to Secured Party a
continuing security interest in all of Debtor's right, title and
interest in, to and under the following property, whether now
existing or hereafter acquired or arising or in which Debtor now
has or hereafter acquires or develops an interest and wherever
the same may be located (the "Copyright Collateral"):
(i) all copyrights, rights, titles and interests in and to
published and unpublished works of authorship that Debtor owns or
uses in its business or will in the future adopt and so use, and
all copyrights in any original or derivative works of authorship
and all works protectable by copyright that are presently, or in
the future may be, owned, created, authored (as a work for hire),
acquired or used (whether pursuant to a license or otherwise) by
Debtor, in whole or in part (collectively, the "Copyrights"), all
copyright registrations and applications for copyright
registration that have heretofore been or may hereafter be issued
thereon or applied for in the United States or throughout the
world, including registrations, recordings, supplemental
registrations and pending applications for registration in the
United States Copyright Office (the "Registrations"), all common
law and other rights in and to the Copyrights throughout the
world, including all copyright licenses (collectively, the
"Copyright Rights"), and all renewals and extensions thereof,
throughout the world, including all proceeds thereof (such as, by
way of example and not by limitation, license royalties and
proceeds of infringement suits), the right (but not the
obligation) to renew and extend such Copyrights, Registrations
and Copyright Rights and to register works protectable by
copyright and the right (but not the obligation) to sue or bring
opposition or cancellation proceedings in the name of Debtor or
in the name of Secured Party for past, present and future
infringements or violations of the Copyrights, Registrations and
Copyright Rights, and recover damages for past, present and
future infringements or violations thereof, and all rights
corresponding thereto throughout the world, including:
(A) all of Debtor's right, title and
interest in and to all copyrights or rights or
interests in copyrights registered or recorded in the
United States Copyright Office, including the
Registrations listed on Schedule A attached hereto, as
the same may be amended or supplemented pursuant hereto
from time to time;
(B) all of Debtor's right, title and
interest in and to all renewals and extensions of any
such copyrights, including renewals or extensions of
the Registrations listed on Schedule A attached hereto,
that may be secured under the law now or hereafter in
force and effect;
(C) all of Debtor's right, title and
interest to make and exploit all derivative works based
on or adopted from all works covered by any of the
Copyright Collateral; and
(D) all of Debtor's right, title and
interest pursuant to or under licensing or other
contracts in favor of Debtor pertaining to copyrights
and works protectable by copyright presently or in the
future owned or used by third parties;
(ii) all inventions, designs, patents, patent applications,
registrations, trade secrets, proprietary rights, corporate or
other business records, computer programs, source codes, object
codes, data bases and all other intangible personal property at
any time used in connection with the businesses of Debtor
(referred to herein as "Proprietary Rights");
(iii) all general intangibles (as defined in the UCC)
and all intangible intellectual or other similar property of
Debtor of any kind or nature, whether now owned or hereafter
acquired or developed, associated with or arising out of any of
the Copyrights, Registrations, Copyright Rights or Proprietary
Rights and not otherwise described above; and
(iv) all proceeds of any and all of the foregoing Copyright
Collateral (including license royalties, rights to payment,
accounts receivable and proceeds of infringement suits) and, to
the extent not otherwise included, all payments under insurance
(whether or not Secured Party is the loss payee thereof) or any
indemnity, warranty or guaranty payable by reason of loss or
damage to or otherwise with respect to the foregoing Copyright
Collateral. For purposes of this Agreement, the term "proceeds"
includes whatever is receivable or received when Copyright
Collateral or proceeds are sold, licensed, collected, exchanged
or otherwise disposed of, whether such disposition is voluntary
or involuntary, and includes, without limitation, all rights to
payment, including returned premiums, with respect to any
insurance relating thereto.
B. Certain Exclusions from Grant of Security Interest.
Anything in this Agreement and the other Loan Documents to the
contrary notwithstanding, the foregoing grant, assignment,
transfer, and conveyance of a security interest shall not extend
to, and the term "Copyright Collateral" shall not include, any
item of Copyright Collateral described in Section 2(a) above that
is now or hereafter held by Debtor as licensee or otherwise,
solely in the event and to the extent that: (i) as the proximate
result of the foregoing grant, assignment, transfer, or
conveyance of a security interest, Debtor's rights in or with
respect to such item of Copyright Collateral would be forfeited
or would become void, voidable, terminable, or revocable, or if
Debtor would be deemed to have breached, violated, or defaulted
the underlying license or other agreement that governs such item
of Copyright Collateral pursuant to the restrictions in the
underlying license or other agreement that governs such item of
Copyright Collateral; (ii) any such restriction shall be
effective and enforceable under applicable law, including Section
9318(4) of the Code; and (iii) any such forfeiture, voidness,
voidability, terminability, revocability, breach, violation, or
default cannot be remedied by Debtor using its best efforts (but
without any obligation to make any material expenditures of money
or to commence legal proceedings); provided, however, that the
foregoing grant, assignment, transfer, and conveyance of security
interest shall extend to, and the term "Copyright Collateral"
shall include, (y) any and all proceeds of such item of Copyright
Collateral to the extent that the assignment or encumbering of
such proceeds is not so restricted, and (z) upon any such
licensor or other applicable party's consent with respect to any
such otherwise excluded item of Copyright Collateral being
obtained, thereafter such item of Copyright Collateral as well as
any proceeds thereof that might theretofore have been excluded
from such grant, assignment, transfer, and conveyance of a
security interest and the term "Copyright Collateral."
C. Continuing Security Interest. Debtor agrees that this
Agreement shall create a continuing security interest in the
Copyright Collateral which shall remain in effect until
terminated in accordance with Section 17.
D. Incorporation into Loan Agreement. This Agreement
shall be fully incorporated into the Loan Agreement and all
understandings, agreements and provisions contained in the Loan
Agreement shall be fully incorporated into this Agreement.
Without limiting the foregoing, the Copyright Collateral
described in this Agreement shall constitute part of the
Collateral in the Loan Agreement.
E. Licenses. Anything in the Loan Agreement or this
Agreement to the contrary notwithstanding, Debtor may grant non-
exclusive licenses of the Copyright Collateral (subject to the
security interest (if any) of Secured Party therein) in the
ordinary course of business consistent with past practice.
IV. Representations and Warranties. Debtor represents and
warrants to Secured Party and for the benefit of Secured Party
the following:
(a) True and Complete List. Set forth in Schedule A is a
true and complete list of all Copyrights, Registrations in the
United States Copyright Office, and applications for
Registrations in the United States Copyright Office owned by
Debtor or held (whether pursuant to a license or otherwise) or
used in conducting its business, in whole or in part;
(b) Powers. Debtor has full power, authority and legal
right to pledge and to grant to Secured Party a security interest
in all of the Copyright Collateral pursuant to this Agreement,
and to execute, deliver and perform its obligations in accordance
with the terms of this Agreement, without the consent or approval
of any other Person except as already obtained;
(c) Validity. Each of the Copyrights referred to in
Schedule A is valid, subsisting and enforceable, and Debtor has
properly complied with all applicable statutory and regulatory
requirements, including all notice requirements, in connection
with each of such Copyrights, and, except as set forth on
Schedule 5.10 to the Loan Agreement, no claim has been made that
the use of any of such Copyrights does or may infringe or
otherwise violate the rights of any third Person;
(d) Title. Debtor has rights in and good title to the
Copyright Collateral shown on the schedules hereto as being owned
by it, is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to such Copyright
Collateral, free and clear of any Liens (other than Liens in
favor of Secured Party), including pledges, agreements, licenses,
registered user agreements and covenants by Debtor not to sue
third Persons; for any Copyright Collateral for which Debtor is
either a licensor or a licensee pursuant to a license or
licensing agreement regarding such Copyright Collateral, each
such license or licensing agreement is in full force and effect,
Debtor is not in default of any of its obligations thereunder and
other than the parties to such licenses or licensing agreements,
no other Person has any rights in or to any of such Copyright
Collateral;
(e) No Violation. The execution, delivery and performance
by Debtor of this Agreement do not violate any provision of law
or the articles of incorporation or by-laws of Debtor or result
in a breach of or constitute a default under any contract,
obligation, indenture or other instrument to which Debtor is a
party or by which Debtor may be bound;
(f) Authorization. This Agreement has been duly
authorized, executed and delivered, and constitutes a legal,
valid and binding agreement of Debtor enforceable in accordance
with its terms; and
(g) Secrecy. Debtor has taken and will continue to take
all reasonable steps to protect the secrecy of all trade secrets
relating to any of its unpublished Copyright Collateral and its
Proprietary Rights.
V. Covenants. Debtor covenants that so long as this
Agreement shall be in effect, Debtor shall:
(a) Further Acts. On a continuing basis, make, execute,
acknowledge and deliver, and file and record in the proper filing
and recording places, all such instruments and documents,
including appropriate financing and continuation statements and
security agreements, and take all such action as reasonably may
be necessary or advisable or reasonably may be requested by
Secured Party to carry out the intent and purposes of this
Agreement, or for assuring, confirming or protecting the grant or
perfection of the security interest granted or purported to be
granted hereby, to ensure Debtor's compliance with this Agreement
or to enable Secured Party to exercise and enforce its rights and
remedies hereunder with respect to the Copyright Collateral.
Without limiting the generality of the foregoing sentence,
Debtor:
(i) authorizes Secured Party in its sole discretion after ten
(10) days prior notice to Debtor, to modify this Agreement
without first obtaining Debtor's approval of or signature to such
modification by amending Schedule A hereof to include a reference
to any right, title or interest in any existing Copyright,
Registration or Copyright Right or any Copyright, Registration or
Copyright Right acquired or developed by Debtor after the
execution hereof, or to delete any reference to any right, title
or interest in any Copyright, Registration or Copyright Right in
which Debtor no longer has or claims any right, title or
interest; and
(ii) hereby authorizes Secured Party, in its sole discretion,
to file one or more financing or continuation statements, and
after ten (10) days prior notice to Debtor, amendments thereto,
relative to all or any portion of the Copyright Collateral
without the signature of Debtor where permitted by law;
(b) Compliance with Law. Comply, in all material respects,
with all applicable statutory and regulatory requirements in
connection with any and all of the Copyright Collateral that is
the subject of the Registrations and give such notice of
copyright, prosecute such material claims, keep such
confidentiality and do all other acts and take all other measures
which may be necessary or desirable to preserve, protect and
maintain such Copyright Collateral and all of Debtor's rights
therein, including diligently prosecute any material copyright
application pending as of the date of this Agreement or
thereafter;
(c) Compliance with Agreement. Comply with each of the
terms and provisions of this Agreement, and not enter into any
agreement (for example, a license agreement) which is
inconsistent with the obligations of Debtor under this Agreement
without Secured Party's prior written consent; and
(d) Lien Protection. Not permit the inclusion in any
contract to which Debtor becomes a party of any provision that
could or might impair or prevent the creation of a security
interest in favor of Secured Party in Debtor's rights and
interest in any property included within the definitions of the
Copyrights, Registrations and Copyright Rights acquired under
such contracts.
VI. New Copyrights, Registrations and Copyright Rights. If
Debtor shall obtain rights to or develop any new works
protectable by copyright, or become entitled to the benefit of
any Copyright Rights, Registration or application for
Registration not described on the schedules hereto, or any
renewals or extension of any Copyright, Copyright Rights or
Registration, the provisions of this Agreement shall
automatically apply thereto. Debtor shall give Secured Party
written notice (a) of any such work or such rights of material
value to Debtor or the operation of its businesses and (b) any
such Registration, applications for Registration or renewal or
extension of any Copyright. Concurrently with or promptly after
the filing of an application for any Registration for any
Copyright, Debtor shall execute and deliver a Copyright Security
Agreement substantially in the form of this Agreement and
otherwise in form and substance satisfactory to the Secured
Party, pursuant to which Debtor shall grant and reaffirm its
grant of a security interest to the extent of its interest in
such Registration as provided herein to Secured Party, and Debtor
shall cause such agreement to be recorded in the offices and
jurisdictions indicated by Secured Party.
VII. Copyright Registration, Renewal and Litigation.
(a) Registration. Debtor shall have the duty diligently to
make any application for Registration on any existing or future
unregistered but copyrightable works that are material to
Debtor's business or operations and to do any and all acts which
are reasonably necessary or desirable to preserve, renew and
maintain all rights in all Copyrights, Registrations and
Copyright Rights; provided, however, that Debtor shall not be
obligated to renew any Copyrights, Registrations or Copyright
Rights covering any products that Debtor has not sold, licensed
or used in its business for the previous five (5) years and which
are of nominal commercial value or covering any products that are
immaterial to Debtor's business operations. Any expenses
incurred in connection therewith shall be borne solely by Debtor.
Except as otherwise permitted in this Section 6(a), Debtor shall
not do any act or omit to do any act whereby any of the Copyright
Collateral may become abandoned or fall into the public domain or
fail to renew any Copyright, Registration or Copyright Right
owned by Debtor without the prior written consent of Secured
Party.
(b) Protection. Except as provided in Section 8 and
notwithstanding Section 1, Debtor shall have the right and
obligation to commence and diligently prosecute in its own name,
as real party in interest, for its own benefit and at its own
expense, such suits, proceedings or other actions for
infringement or other damage as are in its reasonable business
judgment necessary to protect the Copyright Collateral or any of
Debtor's rights therein. Debtor shall provide to Secured Party
any information with respect thereto requested by Secured Party.
Secured Party shall provide at Debtor's expense all necessary
cooperation in connection with any such suit, proceeding or
action including joining as a nominal party if Secured Party
shall have been satisfied that it is not incurring any risk of
liability because of such joinder. Debtor shall provide at its
expense representation acceptable to Secured Party for the common
interest of Debtor and Secured Party with respect to such
proceedings.
(c) Notice. Debtor shall, promptly upon its becoming aware
thereof, notify Secured Party in writing of the institution of,
or any adverse determination in, any proceeding, application,
suit or action of any kind described in Section 6(a) or 6(b), or
regarding Debtor's claim of ownership in any of the Copyrights,
Registrations or Copyright Rights, its right to register the
same, or its right to keep and maintain such registration,
whether before the United States Copyright Office or any United
States or foreign court or governmental agency. Debtor shall
provide promptly to Secured Party any information with respect
thereto requested from time to time by Secured Party.
VIII. Events of Default. The occurrence of any "Event
of Default" under the Loan Agreement or any other Loan Document
shall constitute an Event of Default hereunder.
IX. Remedies. Following the occurrence and during the
continuation of an Event of Default, Secured Party shall have all
rights and remedies available to it under the Loan Agreement and
the other Loan Documents and applicable law (which rights and
remedies are cumulative) with respect to its security interests
in any of the Copyright Collateral or any other collateral.
Debtor agrees that such rights and remedies include the right of
Secured Party as a secured party to sell or otherwise dispose of
its collateral after default, pursuant to UCC Section 9-504.
Debtor agrees that Secured Party shall at all times have such
royalty free licenses, to the extent permitted by law, for any
Copyright, Copyright Rights, Proprietary Right and any other
Copyright Collateral that is reasonably necessary to permit the
exercise of any of Secured Party's rights or remedies upon or
after the occurrence of (and during the occurrence of) an Event
of Default with respect to (among other things) any tangible
asset of Debtor in which Secured Party has a security interest,
including Secured Party's rights to sell inventory, tooling or
packaging which is acquired by Debtor (or its successors,
permitted assignees, or trustee in bankruptcy). In addition to
and without limiting any of the foregoing, upon the occurrence
and during the continuance of an Event of Default, Secured Party
shall have the right but shall in no way be obligated to bring
suit, or to take such other action as Secured Party deems
necessary or advisable, in the name of Debtor or Secured Party,
to enforce or protect any Copyright, Registration, Copyright
Right or Proprietary Right, and any license thereunder, in which
event Debtor shall, at the request of Secured Party, do any and
all lawful acts and execute any and all documents required by
Secured Party in aid of such enforcement. To the extent that
Secured Party shall elect not to bring suit to enforce any
Copyright, Registration, Copyright Rights, Proprietary Right, or
any license thereunder, Debtor agrees to use all reasonable
measures and its diligent efforts, whether by action, suit,
proceeding or otherwise, to prevent the infringement,
misappropriation or violation thereof by others and for that
purpose agrees diligently to maintain any action, suit or
proceeding against any Person necessary to prevent such
infringement, misappropriation or violation.
X. Authorization. If Debtor fails to comply with any of
its obligations hereunder, Secured Party may do so in Debtor's
name or in Secured Party's name, but at Debtor's expense, and
Debtor hereby agrees to reimburse Secured Party in full upon
demand for all expenses, including attorneys fees, incurred by
Secured Party in protecting, defending and maintaining any of the
Copyright Collateral or any right, title or interest of Debtor or
Secured Party therein. Debtor hereby appoints Secured Party, and
authorizes, directs and empowers Secured Party to make,
constitute and appoint any officer or agent of Secured Party as
Secured Party may select, in its exclusive discretion, as the
true and lawful attorney-in-fact of Debtor, with the power, if
Debtor refuses or fails to do so timely, (a) to execute in the
name of Debtor any financing statement or other instrument and
any modification, supplement or amendment to this Agreement or
any supplemental Copyright Security Agreement described in
Sections 4(a) or 5 hereof, and do such other acts on Debtor's
behalf, that Secured Party reasonably may deem necessary or
advisable to accomplish the purposes hereof, and (b) upon and
after the occurrence and continuation of any Event of Default,
(i) to endorse Debtor's name on all applications, documents,
papers and instruments reasonably necessary for Secured Party to
use any of the Copyright Collateral, and (ii) to grant or issue
any exclusive or nonexclusive license under any of the Copyright
Collateral to anyone else, or as may be reasonably necessary for
Secured Party to assign, pledge, convey or otherwise transfer
title in or dispose of any of the Copyright Collateral or any
other collateral to anyone else. Debtor hereby ratifies all that
such attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest and
is irrevocable until termination of this Agreement.
XI. Notices. All notices and other communications
hereunder to or from Secured Party and Debtor shall be in writing
and shall be mailed, sent or delivered in accordance with the
Loan Agreement.
XII. GOVERNING LAW AND VENUE; JURY TRIAL WAIVER. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT TO THE EXTENT THAT
THE VALIDITY OR PERFECTION OF THE ASSIGNMENT AND SECURITY
INTERESTS HEREUNDER IN RESPECT OF ANY PROPERTY ARE GOVERNED BY
FEDERAL LAW, IN WHICH CASE SUCH CHOICE OF CALIFORNIA LAW SHALL
NOT BE DEEMED TO DEPRIVE SECURED PARTY OF SUCH RIGHTS AND
REMEDIES AS MAY BE AVAILABLE UNDER FEDERAL LAW. THE VALIDITY OF
THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA. THE PARTIES AGREE THAT ALL
ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS
LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA OR, AT
THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN WHICH
SECURED PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND
WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN
CONTROVERSY. DEBTOR AND SECURED PARTY WAIVES, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT
THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION
11.
DEBTOR AND SECURED PARTY HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. DEBTOR AND SECURED PARTY REPRESENT THAT EACH
HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
XIII. Entire Agreement; Amendment. This Agreement,
together with the Schedules and Exhibits hereto, which are
incorporated herein by this reference, contains the entire
agreement of the parties with respect to the subject matter
hereof and supersedes all prior drafts and communications
relating to such subject matter. Neither this Agreement nor any
provision hereof may be modified, amended or waived except by the
written agreement of the parties, as provided in the Loan
Agreement. Notwithstanding the foregoing, Secured Party may re-
execute this Agreement, modify, amend or supplement the Schedules
hereto or execute a supplemental Copyright Security Agreement, as
provided herein, and the terms of any such modification,
amendment, supplement or supplemental Copyright Security
Agreement shall be deemed to be incorporated herein by this
reference.
XIV. Severability. If one or more provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any
respect in any jurisdiction or with respect to any party, such
invalidity, illegality or unenforceability in such jurisdiction
or with respect to such party shall, to the fullest extent
permitted by applicable law, not invalidate or render illegal or
unenforceable any such provision in any other jurisdiction or
with respect to any other party, or any other provisions of this
Agreement.
XV. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
XVI. Loan Agreement. Debtor acknowledges that the rights
and remedies of Secured Party with respect to the security
interest in the Copyright Collateral granted hereby are more
fully set forth in the Loan Agreement, the applicable Security
Agreement, and the other Loan Documents and all such rights and
remedies are cumulative.
XVII. No Inconsistent Requirements. Debtor acknowledges
that this Agreement and the other Loan Documents may contain
covenants and other terms and provisions variously stated
regarding the same or similar matters, and Debtor agrees that all
such covenants, terms and provisions are cumulative and all shall
be performed and satisfied in accordance with their respective
terms.
XVIII. Termination. Upon the satisfaction in full of all
Secured Obligations, this Agreement shall terminate and Secured
Party shall execute and deliver such documents and instruments
and take such further action reasonably requested by Debtor and
at Debtor's expense as shall be necessary to evidence termination
of the security interest granted by Debtor to Secured Party
hereunder.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement, as of the date first above written.
INTERGRAPH CORPORATION
a Delaware corporation
By:
--------------------------
Title:
-----------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
--------------------------
Title:
-----------------------
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On January __, 1997, before me,
______________________________, Notary Public, personally
appeared ______________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On January __, 1997, before me,
______________________________, Notary Public, personally
appeared ______________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
[SEAL]
PATENT SECURITY AGREEMENT
-------------------------
THIS PATENT SECURITY AGREEMENT (this "Agreement"), dated
as of December 20, 1996 is made by INTERGRAPH CORPORATION, a
Delaware corporation ("Debtor"), in favor of FOOTHILL CAPITAL
CORPORATION, a California corporation ("Secured Party").
RECITALS
--------
A. Debtor and Secured Party have entered into that certain
Loan and Security Agreement, dated as of the date hereof (as
amended, modified, renewed or extended from time to time, the "Loan
Agreement"), pursuant to which Secured Party has agreed to make
certain financial accommodations to Debtor, and pursuant to which
Debtor has granted to Secured Party a security interest in (among
other things) certain of the general intangibles of Debtor.
B. Pursuant to the Loan Agreement and as one of the
conditions precedent to the obligations of Secured Party under the
Loan Agreement, Debtor has agreed to execute and deliver this
Agreement to Secured Party for filing with the United States Patent
and Trademark Office and with any other relevant recording systems
in any domestic or foreign jurisdiction, and as further evidence of
and to effectuate Secured Party's existing security interests in
the patents and other general intangibles described herein.
ASSIGNMENT
----------
NOW, THEREFORE, for valuable consideration, the receipt
and adequacy of which is hereby acknowledged, Debtor hereby agrees
in favor of Secured Party as follows:
II. Definitions; Interpretation.
A. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Bankruptcy Code" means the United States Bankruptcy Code
(11 U.S.C. 101 et seq.), as amended, and any successor statute.
"Event of Default" means any Event of Default under the
Loan Agreement.
"Lien" means any pledge, security interest, assignment,
charge or encumbrance, lien (statutory or other), or other prefer
ential arrangement (including any agreement to give any security
interest).
"Loan Documents" has the meaning assigned to it in the
Loan Agreement.
"Patent Collateral" has the meaning set forth in
Section 2.
"Patents" has the meaning set forth in Section 2.
"Person" means an individual, corporation, partnership,
joint venture, trust, unincorporated organization or any other
juridical entity.
"Proceeds" means whatever is receivable or received from
or upon the sale, lease, license, collection, use, exchange or
other disposition, whether voluntary or involuntary, of any Patent
Collateral, including "proceeds" as defined at UCC Section 9306,
and all proceeds of proceeds. Proceeds shall include (i) any and
all accounts, chattel paper, instruments, general intangibles, cash
and other proceeds, payable to or for the account of Debtor, from
time to time in respect of any of the Patent Collateral, (ii) any
and all proceeds of any insurance, indemnity, warranty or guaranty
payable to or for the account of Debtor from time to time with
respect to any of the Patent Collateral, (iii) any and all claims
and payments (in any form whatsoever) made or due and payable to
Debtor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any
part of the Patent Collateral by any Person acting under color of
governmental authority, and (iv) any and all other amounts from
time to time paid or payable under or in connection with any of the
Patent Collateral or for or on account of any damage or injury to
or conversion of any Patent Collateral by any Person.
"PTO" means the United States Patent and Trademark Office
and any successor thereto.
"Secured Obligations" means all liabilities, obligations,
or undertakings owing by Debtor to Secured Party of any kind or
description arising out of or outstanding under, advanced or
issued pursuant to, or evidenced by the Loan Agreement, the other
Loan Documents, or this Agreement, irrespective of whether for the
payment of money, whether direct or indirect, absolute or
contingent, due or to become due, voluntary or involuntary, whether
now existing or hereafter arising, and including all interest
(including interest that accrues after the filing of a case under
the Bankruptcy Code) and any and all costs, fees (including
attorneys fees), and expenses which Debtor is required to pay
pursuant to any of the foregoing, by law, or otherwise.
"UCC" means the Uniform Commercial Code as in effect from
time to time in the State of California.
"United States" and "U.S." each mean the United States of
America.
B. Terms Defined in UCC. Where applicable and except as
otherwise defined herein, terms used in this Agreement shall have
the meanings ascribed to them in the UCC.
C. Interpretation. In this Agreement, except to the extent
the context otherwise requires:
(i) Any reference to a Section or a Schedule is a reference
to a section hereof, or a schedule hereto, respectively, and to a
subsection or a clause is, unless otherwise stated, a reference to
a subsection or a clause of the Section or subsection in which the
reference appears.
(ii) The words "hereof," "herein," "hereto," "hereunder" and
the like mean and refer to this Agreement as a whole and not merely
to the specific Section, subsection, paragraph or clause in which
the respective word appears.
(iii) The meaning of defined terms shall be equally
applicable to both the singular and plural forms of the terms
defined.
(iv) The words "including," "includes" and "include" shall
be deemed to be followed by the words "without limitation."
(v) References to agreements and other contractual
instruments shall be deemed to include all subsequent amendments
and other modifications thereto.
(vi) References to statutes or regulations are to be
construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation referred to.
(vii) Any captions and headings are for convenience of
reference only and shall not affect the construction of this Agree
ment.
(viii) Capitalized words not otherwise defined herein
shall have the respective meanings assigned to them in the Loan
Agreement.
(ix) In the event of a direct conflict between the terms and
provisions of this Agreement and the Loan Agreement, it is the
intention of the parties hereto that both such documents shall be
read together and construed, to the fullest extent possible, to be
in concert with each other. In the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the
terms and provisions of the Loan Agreement shall control and
govern; provided, however, that the inclusion herein of additional
obligations on the part of the Debtor and supplemental rights and
remedies in favor of Secured Party (whether under California law or
applicable federal law), in each case in respect of the Patent
Collateral, shall not be deemed a conflict with the Loan Agreement.
III. Security Interest.
A. Assignment and Grant of Security Interest. As security
for the payment and performance of the Secured Obligations, Debtor
hereby grants, assigns, transfers and conveys to Secured Party a
continuing security interest in all of Debtor's right, title and
interest in, to and under the following property, whether now
existing or hereafter acquired or arising (collectively, the
"Patent Collateral"):
(i) all letters patent of the U.S. or any other country, all
registrations and recordings thereof, and all applications for
letters patent of the U.S. or any other country, owned, held or
used by Debtor in whole or in part, including all existing U.S.
patents and patent applications of Debtor which are described in
Schedule A hereto, as the same may be amended or supplemented
pursuant hereto from time to time, and together with and including
all patent licenses held by Debtor, together with all reissues,
divisions, continuations, renewals, extensions and continuations-in-
part thereof and the inventions disclosed therein, and all rights
corresponding thereto throughout the world, including the right to
make, use, lease, sell and otherwise transfer the inventions
disclosed therein, and all proceeds thereof, including all license
royalties and proceeds of infringement suits (collectively, the
"Patents");
(ii) all claims, causes of action and rights to sue for past,
present and future infringement or unconsented use of any of the
Patents and all rights arising therefrom and pertaining thereto;
(iii) all general intangibles (as defined in the UCC) and
all intangible intellectual or other similar property of Debtor of
any kind or nature, whether now owned or hereafter acquired or
developed, associated with or arising out of any of the Patents and
not otherwise described above; and
(iv) all products and Proceeds of any and all of the
foregoing.
B. Certain Exclusions from Grant of Security Interest.
Anything in this Agreement and the other Loan Documents to the
contrary notwithstanding, the foregoing grant, assignment,
transfer, and conveyance of a security interest shall not extend
to, and the term "Patent Collateral" shall not include, any item of
Patent Collateral described in Section 2(a) above that is now or
hereafter held by Borrower as licensee or otherwise, solely in the
event and to the extent that: (i) as the proximate result of the
foregoing grant, assignment, transfer, or conveyance of a security
interest, Borrower's rights in or with respect to such item of
Patent Collateral would be forfeited or would become void,
voidable, terminable, or revocable, or if Borrower would be deemed
to have breached, violated, or defaulted the underlying license or
other agreement that governs such item of Patent Collateral
pursuant to the restrictions in the underlying license or other
agreement that governs such item of Patent Collateral; (ii) any
such restriction shall be effective and enforceable under
applicable law, including Section 9318(4) of the Code; and (iii)
any such forfeiture, voidness, voidability, terminability,
revocability, breach, violation, or default cannot be remedied by
Debtor using its best efforts (but without any obligation to make
any material expenditures of money or to commence legal
proceedings); provided, however, that the foregoing grant,
assignment, transfer, and conveyance of security interest shall
extend to, and the term "Patent Collateral" shall include, (y) any
and all Proceeds of such item of Patent Collateral to the extent
that the assignment or encumbering of such Proceeds is not so
restricted, and (z) upon any such licensor or other applicable
party's consent with respect to any such otherwise excluded item of
Patent Collateral being obtained, thereafter such item of Patent
Collateral as well as any Proceeds thereof that might theretofore
have been excluded from such grant, assignment, transfer, and
conveyance of a security interest and the term "Patent Collateral."
C. Continuing Security Interest. Debtor agrees that this
Agreement shall create a continuing security interest in the Patent
Collateral which shall remain in effect until terminated in
accordance with Section 16.
D. Incorporation into Loan Agreement. This Agreement shall
be fully incorporated into the Loan Agreement and all
understandings, agreements and provisions contained in the Loan
Agreement shall be fully incorporated into this Agreement. Without
limiting the foregoing, the Patent Collateral described in this
Agreement shall constitute part of the Collateral in the Loan
Agreement.
E. Licenses. Anything in the Loan Agreement or this
Agreement to the contrary notwithstanding, Debtor may grant non-
exclusive licenses of the Patent Collateral (subject to the
security interest (if any) of Secured Party therein) in the
ordinary course of business consistent with past practice.
IV. Further Assurances; Appointment of Secured Party as Attorney-
in-Fact. Debtor at its expense shall execute and deliver, or cause
to be executed and delivered, to Secured Party any and all
documents and instruments, in form and substance satisfactory to
Secured Party, and take any and all action, which Secured Party may
reasonably request from time to time, to perfect and continue
perfected, maintain the priority of or provide notice of Secured
Party's security interest in the Patent Collateral and to
accomplish the purposes of this Agreement. Secured Party shall
have the right to, in the name of Debtor, or in the name of Secured
Party or otherwise, without notice to or assent by Debtor, and
Debtor hereby irrevocably constitutes and appoints Secured Party
(and any of Secured Party's officers or employees or agents
designated by Secured Party) as Debtor's true and lawful attorney-
in-fact with full power and authority, if Debtor refuses or fails
to do so timely, (i) to sign the name of Debtor on all or any of
such documents or instruments, and perform all other acts, that
Secured Party reasonably deems necessary or advisable in order to
perfect or continue perfected, maintain the priority or
enforceability of or provide notice of Secured Party's security
interest in, the Patent Collateral, and (ii) to execute any and all
other documents and instruments, and to perform any and all acts
and things for and on behalf of Debtor, which Secured Party may
deem necessary or advisable to maintain, preserve and protect the
Patent Collateral and to accomplish the purposes of this Agreement,
including (A) after the occurrence and during the continuance of
any Event of Default, to defend, settle, adjust or institute any
action, suit or proceeding with respect to the Patent Collateral,
(B) during a Triggering Event, to assert or retain any rights under
any license agreement for any of the Patent Collateral, including
any rights of Debtor arising under Section 365(n) of the Bankruptcy
Code, and (C) after the occurrence and during the continuance of
any Event of Default, to execute any and all applications,
documents, papers and instruments for
Secured Party to use the Patent Collateral, to grant or
issue any exclusive or non-exclusive license with respect to any
Patent Collateral (it being understood that so long as no Event of
Default has occurred and is continuing, Debtor may grant or issue
licenses in the ordinary course of business with respect to the
Patent Collateral), and to assign, convey or otherwise transfer
title in or dispose of the Patent Collateral. The power of
attorney set forth in this Section 3, being coupled with an
interest, is irrevocable so long as this Agreement shall not have
terminated in accordance with Section 16.
Nothing in this Agreement shall obligate Debtor to
commence any suit, proceeding or other action for infringement of
any of the Patents that are not material to the business of Debtor.
V. Representations and Warranties. Debtor represents and
warrants to Secured Party as follows:
A. No Other Patents. A true and correct list of all of
the existing Patents owned, held (whether pursuant to a license or
otherwise) or used by Debtor, in whole or in part, is set forth in
Schedule A.
B. Validity. Each of the Patents listed on Schedule A is
subsisting and has not been adjudged invalid or unenforceable, in
whole or in part, all maintenance fees required to be paid on
account of any Patents have been timely paid for maintaining such
Patents in force, and, to the best of Debtor's knowledge, each of
the Patents is valid and enforceable.
C. Ownership of Patent Collateral; No Violation.
(i) Debtor has rights in and good title to the existing Patent Collateral,
(ii) with respect to the Patent Collateral shown on Schedule A
hereto as owned by it, Debtor is the sole and exclusive owner
thereof, free and clear of any Liens and rights of others (other
than the security interest created hereunder), including licenses,
shop rights and covenants by Debtor not to sue third persons and
(iii) with respect to any Patent for which Debtor is either a
licensor or a licensee pursuant to a license or licensee agreement
regarding such Patent, each such license or licensing agreement is
in full force and effect, Debtor is not in default of any of its
obligations thereunder and, other than the parties to such licenses
or licensing agreements, no other Person is known by Debtor to have
any rights in or to any of the Patent Collateral. To the best of
Debtor's knowledge, the past, present and contemplated future use
of the Patent Collateral by Debtor has not, does not and will not
infringe upon or violate any right, privilege or license agreement
of or with any other Person.
D. No Infringement. To the best of Debtor's knowledge, no
material infringement or unauthorized use presently is being made
of any of the Patent Collateral by any Person.
E. Powers. Debtor has the unqualified right, power and
authority to pledge and to grant to Secured Party a security
interest in all of the Patent Collateral pursuant to this
Agreement, and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or
approval of any other Person except as already obtained.
VI. Covenants. So long as any of the Secured Obligations remain
unsatisfied, Debtor agrees that it will comply with all of the
covenants, terms and provisions of this Agreement, the Loan
Agreement and the other Loan Documents, and Debtor will promptly
give Secured Party written notice of the occurrence of any event
that could have a material adverse effect on any of the Patents or
the Patent Collateral, including any petition under the Bankruptcy
Code filed by or against any licensor of any of the Patents for
which Debtor is a licensee.
VII. Future Rights. Except as otherwise expressly agreed to in
writing by Secured Party, for so long as any of the Secured
Obligations shall remain outstanding, or, if earlier, until Secured
Party shall have released or terminated, in whole but not in part,
its interest in the Patent Collateral, if and when Debtor shall
obtain rights to any new patentable inventions, or become entitled
to the benefit of any Patent, or any reissue, division,
continuation, renewal, extension or continuation-in-part of any
Patent or Patent Collateral or any improvement thereof (whether
pursuant to any license or otherwise), the provisions of Section 2
shall automatically apply thereto and Debtor shall give to Secured
Party prompt notice thereof. Debtor shall do all things deemed
necessary or advisable by Secured Party to ensure the validity,
perfection, priority and enforceability of the security interests
of Secured Party in such future acquired Patent Collateral. In
accordance with Section 3 hereof, Debtor hereby authorizes Secured
Party to modify, amend or supplement the Schedules hereto and to re-
execute this Agreement from time to time on Debtor's behalf and as
its attorney-in-fact to include any future patents which are or
become Patent Collateral and to cause such re-executed Agreement or
such modified, amended or supplemented Schedules to be filed with
the PTO.
VIII. Remedies. Secured Party shall have all rights and
remedies available to it under the Loan Agreement and applicable
law (which rights and remedies are cumulative) with respect to the
security interests in any of the Patent Collateral or any other
Collateral. Debtor agrees that such rights and remedies include
the right of Secured Party as a secured party to sell or otherwise
dispose of its Collateral after default, pursuant to UCC Section
9504. Debtor agrees that Secured Party shall at all times have
such royalty free licenses, to the extent permitted by law, for any
Patent Collateral that is reasonably necessary to permit the
exercise of any of Secured Party's rights or remedies upon or after
the occurrence of an Event of Default with respect to (among other
things) any tangible asset of Debtor in which Secured Party has a
security interest, including Secured Party's rights to sell
inventory, tooling or packaging which is acquired by Debtor (or its
successor, assignee or trustee in bankruptcy). In addition to and
without limiting any of the foregoing, upon the occurrence and
during the continuance of an Event of Default, Secured Party shall
have the right but shall in no way be obligated to bring suit, or
to take such other action as Secured Party deems necessary or
advisable, in the name of Debtor or Secured Party, to enforce or
protect any of the Patent Collateral, in which event Debtor shall,
at the request of Secured Party, do any and all lawful acts and
execute any and all documents required by Secured Party in aid of
such enforcement. To the extent that Secured Party shall elect not
to bring suit to enforce such Patent Collateral, upon, during, or
after the occurrence of an Event of Default, Debtor agrees to use
all reasonable measures and its diligent efforts, whether by
action, suit, proceeding or otherwise, to prevent the infringement,
misappropriation or violations thereof by others and for that
purpose agrees diligently to maintain any action, suit or
proceeding against any Person necessary to prevent such
infringement, misappropriation or violation.
IX. Binding Effect. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by Debtor and Secured Party
and their respective successors and assigns.
X. Notices. All notices and other communications hereunder
shall be in writing and shall be mailed, sent or delivered in
accordance with the Loan Agreement.
XI. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California, except to the extent that the validity or perfection of
the security interests hereunder in respect of any Patent
Collateral are governed by federal law, in which case such choice
of California law shall not be deemed to deprive Secured Party of
such rights and remedies as may be available under federal law.
XII. Entire Agreement; Amendment. This Agreement, together
with the Schedules hereto, contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes
all prior drafts and communications relating to such subject
matter. Neither this Agreement nor any provision hereof may be
modified, amended or waived except by the written agreement of the
parties, as provided in the Loan Agreement. Notwithstanding the
foregoing, Secured Party may re-execute this Agreement or modify,
amend or supplement the Schedules hereto as provided in Section 6
hereof.
XIII. Severability. If one or more provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any
respect in any jurisdiction or with respect to any party, such
invalidity, illegality or unenforceability in such jurisdiction or
with respect to such party shall, to the fullest extent permitted
by applicable law, not invalidate or render illegal or
unenforceable any such provision in any other jurisdiction or with
respect to any other party, or any other provisions of this
Agreement.
XIV. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but
one and the same agreement.
XV. Loan Agreement. Debtor acknowledges that the rights and
remedies of Secured Party with respect to the security interest in
the Patent Collateral granted hereby are more fully set forth in
the Loan Agreement and all such rights and remedies are cumulative.
XVI. No Inconsistent Requirements. Debtor acknowledges that this
Agreement and the other Loan Documents may contain covenants and
other terms and provisions variously stated regarding the same or
similar matters, and Debtor agrees that all such covenants, terms
and provisions are cumulative and all shall be performed and
satisfied in accordance with their respective terms.
XVII. Termination. Upon the indefeasible payment in full of
the Secured Obligations, including the cash collateralization,
expiration, or cancellation of all Secured Obligations, if any,
consisting of letters of credit, and the full and final termination
of any commitment to extend any financial accommodations under the
Loan Agreement, this Agreement shall terminate and Secured Party
shall execute and deliver such documents and instruments and take
such further action reasonably requested by Debtor and at Debtor's
expense as shall be necessary to evidence termination of the
security interest granted by Debtor to Secured Party hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement, as of the date first above written.
INTERGRAPH CORPORATION,
a Delaware corporation
By:
-----------------------------
Title:
--------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
-----------------------------
Title:
--------------------------
STATE OF CALIFORNIA )
) ss
COUNTY OF )
------------
On January __, 1997, before me,
______________________________, Notary Public, personally appeared
______________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s)
whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
------------------------
Signature
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
------------
On January __, 1997, before me,
______________________________, Notary Public, personally appeared
______________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s)
whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and
that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
[SEAL]
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of December 20, 1996, made by
the Persons listed on the signature pages hereof (each a "Pledgor"
and collectively the "Pledgors"; provided that "Pledgor" shall be
deemed to include any other Person that executes and delivers an
amendment in the form of Exhibit A hereto agreeing to be bound by
the terms and provisions hereof), to Foothill Capital Corporation
("Foothill").
W I T N E S S E T H :
WHEREAS, Intergraph Corporation ("Borrower") and Foothill
have entered into that certain Loan and Security Agreement, dated
as of even date herewith (as it may be amended, supplemented or
otherwise modified from time to time, the "Loan Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Loan Agreement);
and
WHEREAS, each Pledgor is the legal and beneficial owner
of the shares of capital stock or other equity securities described
in Schedules I, II, and III hereto (or any addenda thereto) and
issued by the respective issuers named therein (collectively, the
"Pledged Shares"); and
WHEREAS, as used herein, the term "Excluded Equity
Interests" shall mean: (i) equity interests in entities that are
not corporations or limited liability companies but are strategic
alliances, joint marketing ventures, joint development ventures, or
other similar joint arrangements entered into by Borrower in the
ordinary course of Borrower's business; and (ii) with respect to
any Subsidiary, options or other rights to acquire equity
securities of that Subsidiary that are issued or granted, in the
ordinary course of business and generally consistent with past
practice of Borrower's Subsidiaries (other than Foreign
Subsidiaries), to officers, directors, employees, or consultants of
that Subsidiary in connection with incentive compensation
arrangements and that do not in the aggregate, in the case of any
single Subsidiary, involve or permit the issuance of more than 15%
of the total equity securities of such Subsidiary, and equity
securities issued pursuant to the exercise of such rights or
options; and
WHEREAS, the Pledged Shares identified on Schedule I
hereto as of the date hereof (and any addenda thereto as of the
date thereof) represent all of the capital stock or other equity
securities (other than Excluded Equity Interests) of each direct or
indirect Subsidiary of Borrower having total assets of $100,000 or
more that is not a Foreign Subsidiary (each, a "Pledged Domestic
Issuer"); and
WHEREAS, the Pledged Shares identified on Schedule II
hereto (and any addenda thereto) represent all of the capital stock
or other equity securities (other than the Excluded Foreign
Portion) of each Foreign Subsidiary identified thereon (each, a
"Pledged Foreign Issuer); and
WHEREAS, the Pledged Shares identified on Schedule III
hereto (and any addenda thereto) represent all right, title, and
interest of Borrower in and to all of the capital stock or other
equity interests underlying the Permitted Toehold Investments (the
issuers thereof being the "Pledged Toehold Issuers"; the Pledged
Domestic Issuers, the Pledged Foreign Issuers, and the Pledged
Toehold Issuers being, collectively, the "Issuers"); and
WHEREAS, it is a condition precedent under the Loan
Agreement to the making of the Advances and the Term Loan and the
issuance of Letters of Credit that the Pledgors shall have made the
pledge contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises and to
induce Foothill to make the Advances and the Term Loan and to cause
the issuance of the Letters of Credit, each Pledgor hereby agrees
with Foothill as follows:
SECTION l. Pledge. Each Pledgor hereby pledges to
Foothill, and grants to Foothill a security interest in, all of
such Pledgor's right, title, and interest in and to the following
(the "Pledged Collateral"):
(i) all of the Pledged Shares;
(ii) all additional shares of stock or other
securities of any Issuer of the Pledged Shares from time to
time acquired by such Pledgor in any manner (any such shares
being "Additional Shares"); provided, however, that with
respect to any Pledged Domestic Issuer, any such Additional
Shares shall not include the Excluded Equity Interests;
provided further that with respect to any Pledged Foreign
Issuer, any such Additional Shares shall not include the
Excluded Foreign Portion thereof;
(iii) the certificates (if any) representing the
shares referred to in clauses (i) and (ii) above; and
(iv) all dividends, cash, instruments and other
property or proceeds, from time to time received, receivable
or otherwise distributed in respect of or in exchange for any
or all of the Pledged Shares and/or Additional Shares.
SECTION 2. Security for Obligations. This Agreement
secures, and the Pledged Collateral is security for, the full and
prompt payment by Borrower when due (whether at stated maturity, by
acceleration or otherwise) of, and the performance by Borrower of,
the Obligations, whether now or hereafter existing and whether for
principal, interest, fees, expenses or otherwise, and the
performance by each Pledgor of its obligations hereunder
(collectively, the "Secured Obligations").
SECTION 3. Delivery of Pledged Collateral. Subject
to Section 4.1 and Section 4.2 of the Loan Agreement and only to
the extent any such certificates or instruments exist: (a) all
certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of
Foothill pursuant hereto (and, in the case of Pledged Shares issued
by any Pledged Foreign Issuer, to the extent permitted by
applicable foreign law) and shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments
of transfer or assignment in blank, all in form and substance
satisfactory to Foothill; (b) during any Triggering Event, Foothill
shall have the right to the extent permitted under any applicable
law, at any time in its discretion and without notice to any
Pledgor, to transfer to or to register in its name or in the name
of any of its nominees any or all of the Pledged Collateral; (c)
Foothill shall have the right at any time to exchange certificates
representing or evidencing any of the Pledged Collateral for
certificates of smaller or larger denominations; and (d) Foothill
acknowledges and agrees that, in the case of Pledged Shares issued
by any Pledged Foreign Issuer, any Pledgor may deliver to Foothill
one or more single certificates representing both Pledged Shares
and shares which are not pledged or required to be pledged
hereunder (the "Unpledged Shares") and that, upon any Pledgor's
written request, Foothill shall cooperate with such Pledgor to
permit the exchange of certificates of smaller or larger
denominations and shall return to, or permit to be retained by,
such Pledgor certificates representing any Unpledged Shares;
provided, however, that (i) Foothill shall not be obligated to
relinquish possession of any certificates representing (either in
whole or in part) Pledged Shares if in the reasonable opinion of
Foothill such action would cause the Lien of Foothill with respect
to such Pledged Shares to cease to be perfected, and (ii) in no
event shall such Pledgor be entitled to the return of certificates
representing more than the Excluded Foreign Portion of any Pledged
Foreign Issuer.
SECTION 4. Representations and Warranties. Each
Pledgor makes the following representations:
(a) As of the date that the applicable Pledged Shares
are pledged hereunder, the Pledged Shares (i) have been duly
authorized and validly issued; (ii) are fully paid and non-
assessable; and (iii) constitute (x) all of the issued and
outstanding capital stock and other equity securities (other than
Excluded Equity Interests) of each Pledged Domestic Issuer, (y) all
of the issued and outstanding capital stock and other equity
securities (other than the Excluded Foreign Portion thereof) of
each Pledged Foreign Issuer, and (z) all right, title, and interest
of Borrower in and to all of the capital stock or other equity
interests underlying the Permitted Toehold Investments (and, as to
each Pledged Toehold Issuer, representing the percentage indicated
on Schedule III of all of the capital stock and other equity
interests issued by such Issuer).
(b) Such Pledgor is the legal and beneficial owner of
the Pledged Collateral free and clear of any Lien, except for
Permitted Liens.
(c) Upon compliance with any applicable local law
registration requirements, the pledge of the Pledged Shares issued
by each Pledged Domestic Issuer pursuant to this Agreement creates
a valid, perfected and first priority security interest in such
Pledged Collateral, in favor of Foothill.
(d) Subject to Section 4.1 of the Loan Agreement and
except with respect to any Pledged Collateral relating to any
Pledged Foreign Issuer, no consent, authorization, approval, or
other action by, and no notice to or filing with, any Governmental
Authority is required either (i) for the pledge by such Pledgor of
the Pledged Collateral pursuant to this Agreement or for the due
execution, delivery or performance of this Agreement by such
Pledgor, or (ii) for the exercise by Foothill of the voting or
other rights provided for in this Agreement or of the remedies in
respect of the Pledged Collateral pursuant to this Agreement,
except as may be required in connection with the disposition of the
Pledged Collateral by laws affecting the offering and sale of
securities generally or for any filings necessary to comply with
applicable local law registration requirements.
SECTION 5. Further Assurances, Etc. (a) Each Pledgor
agrees that at any time and from time to time, at the cost and
expense of such Pledgor, such Pledgor will promptly execute and
deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Foothill may
reasonably request, in order to perfect and protect the Lien
granted or purported to be granted hereby or to enable Foothill to
exercise and enforce its rights and remedies hereunder with respect
to any Pledged Collateral.
(b) Each Pledgor agrees to defend the title to the
Pledged Collateral and the Lien thereon of Foothill against the
claim of any other Person and to maintain and preserve such Lien
until indefeasible payment in full of all obligations.
SECTION 6. Voting Rights; Dividends; Etc.
(a) As long as no Event of Default shall have occurred
and be continuing (and, in the case of subsection (a) (i) of this
Section 6, as long as no notice thereof shall have been given by
Foothill to the Pledgors pursuant to subsection (b) hereof):
(i) Each Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement or any other Loan Document;
provided, however, that such Pledgor shall not exercise or shall
refrain from exercising any such right if such action could
reasonably be expected to result in a Material Adverse Change;
(ii) Each Pledgor shall be entitled to receive and retain
(subject to any Lien thereon in favor of Foothill) any and all
dividends or distributions paid in respect of the Pledged
Collateral, other than any and all:
(A) dividends paid or payable other than in
cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect
of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares or
Additional Pledged Shares in connection with a partial or
total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus,
and
(C) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any
Pledged Collateral, all of which shall be forthwith
delivered to Foothill for deposit in the Lockboxes in the
manner set forth in the Loan Agreement, and shall, if
received by such Pledgor, be received in trust for the
benefit of Foothill, be segregated from the other
property or funds of such Pledgor, and be forthwith
delivered to Foothill for deposit in the Lockboxes in the
same form as so received (with any necessary
endorsement); and
(iii) Foothill shall execute and deliver (or cause to be
executed and delivered) to any Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the purpose
of enabling such Pledgor to exercise the voting and other rights
which it is entitled to exercise pursuant to paragraph (i) above
and to receive the dividends or distributions which it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an
Event of Default:
(i) Upon notice by Foothill to any Pledgor,
all rights of such Pledgor to exercise the voting and
other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 6(a) (i) above
shall cease, and all such rights shall thereupon become
vested in Foothill who shall thereupon have the sole
right to exercise such voting and other consensual
rights.
(ii) All rights of any Pledgor to receive the
dividends or distributions which it would otherwise be
authorized to receive and retain pursuant to Section 6(a)
(ii) above shall cease, and all such rights shall
thereupon become vested in Foothill who shall thereupon
have the sole right to receive and hold as Pledged
Collateral such dividends or distributions for deposit in
the Lockboxes.
(iii) All dividends or distributions which
are received by any Pledgor contrary to the provisions of
paragraph (ii) of this Section 6(b) shall be received in
trust for the benefit of Foothill, shall be segregated
from other property or funds of such Pledgor and shall be
forthwith delivered to Foothill for deposit in the
Lockboxes in the same form as so received (with any
necessary endorsement).
(iv) Each Pledgor shall, if necessary to permit
Foothill to exercise the voting and other rights which it
may be entitled to exercise pursuant to Section 6(b)(i)
above and to receive all dividends and distributions
which it may be entitled to receive under Section
6(b)(ii) above, execute and deliver to Foothill, from
time to time and upon written notice of Foothill,
appropriate proxies and other instruments as Foothill may
reasonably request. The foregoing shall not in any way
limit Foothill's power and authority granted pursuant to
Section 8 hereof.
SECTION 7. Transfers and Other Liens; Additional Shares.
(a) Each Pledgor agrees that it will not (i) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of
the Pledged Collateral except as permitted by the Loan Agreement,
or (ii) create or permit to exist any Lien upon or with respect to
any of the Pledged Collateral, except for the Lien created pursuant
to this Agreement or Liens permitted pursuant to Section 7.2 of the
Loan Agreement.
(b) Each Pledgor agrees that it will (i) except as
permitted by the Loan Agreement, cause each Pledged Domestic Issuer
and each Pledged Foreign Issuer of the Pledged Shares not to issue
any shares of capital stock or other equity securities in addition
to or in substitution for the Pledged Shares (except for, in the
case of Pledged Domestic Issuers, any Excluded Equity Interests),
(ii) pledge hereunder, immediately upon its acquisition (directly
or indirectly) thereof, any and all Additional Shares, and (iii)
promptly (and in any event within three Business Days) deliver to
Foothill a Pledge Amendment, duly executed by such Pledgor, in
substantially the form of Exhibit A hereto (a "Pledge Amendment"),
in respect of the Additional Shares, together with all certificates
or other instruments representing or evidencing the same. Each
Pledgor hereby (i) authorizes Foothill to attach each Pledge
Amendment to this Pledge Agreement, (ii) agrees that all capital
stock and other equity securities listed on any Pledge Amendment
delivered to Foothill shall for all purposes hereunder constitute
Pledged Shares, and (iii) is deemed to have made, upon such
delivery, the representations and warranties contained in Section 4
hereof with respect to such Pledged Collateral.
SECTION 8. Foothill Appointed Attorney-in-Fact and
Proxy. Subject to Section 6 hereof, each Pledgor hereby
irrevocably constitutes and appoints Foothill and any officer or
agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact and proxy with full irrevocable power and
authority in the place and stead of such Pledgor and in the name of
such Pledgor or in its own name, from time to time in Foothill's
discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute
and deliver any and all documents and instruments which Foothill
may deem necessary or advisable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing,
hereby gives Foothill the power and right, on behalf of such
Pledgor, upon the occurrence and during the continuance of an Event
of Default, to receive, indorse and collect all instruments made
payable to such Pledgor representing any dividend or distribution
in respect of the Pledged Collateral or any part thereof, to give
full discharge for the same, and to vote or grant any consent in
respect of the Pledged Shares authorized by Section 6(b) hereof.
Each Pledgor hereby ratifies, to the extent permitted by law, all
that any said attorney shall lawfully do or cause to be done by
virtue hereof. This power, being coupled with an interest, is
irrevocable until, and shall automatically terminate upon, the
termination of this Agreement pursuant to Section 17.
SECTION 9. Foothill May Perform. If any Pledgor
fails to perform any agreement contained herein, Foothill may
itself perform, or cause performance of, such agreement, and the
expenses of Foothill incurred in connection therewith shall be
payable by such Pledgor under Section 12 hereof and constitute
Obligations secured hereby.
SECTION 10. Reasonable Care. Foothill shall be deemed
to have exercised reasonable care in the custody and preservation
of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which
Foothill accords its own property, it being understood that
Foothill shall not have any responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged
Collateral, whether or not Foothill has or is deemed to have
knowledge of any such matter, or (ii) taking any necessary steps to
preserve rights against any Person with respect to any Pledged
Collateral.
SECTION 11. Remedies upon Default. If any Event of
Default shall have occurred and be continuing:
(a) Foothill may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of
a secured party after default under the Code or any other
applicable law in effect in the State of California at that time,
and Foothill may also, without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board
or at any office of Foothill or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as Foothill may deem
commercially reasonable. Each Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice
to such Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute
reasonable notification. Foothill shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having
been given. Foothill may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and
place to which it was so adjourned. Each Pledgor hereby waives any
claims against Foothill arising by reason of the fact that the
price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained
at a public sale, even if Foothill accepts the first offer received
and does not offer such Pledged Collateral to more than one
offeree. With respect to Pledged Collateral consisting of
securities registered under the Securities Act of 1933, as amended
(the "Securities Act"), Foothill will comply with applicable
securities laws in connection with any foreclosure sale.
(b) Each Pledgor recognizes that by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, Foothill may be compelled, with respect to any
sale of all or any part of the Pledged Collateral, to limit
purchasers to those who will agree, among other things, to acquire
such securities for their own account, for investment, and not with
a view to the distribution or resale thereof. Each Pledgor
acknowledges and agrees that any such sale may result in prices and
other terms less favorable to the seller than if such sale were a
public sale without such restrictions and, notwithstanding such
circumstances, agrees that any such sale shall be deemed to have
been made in a commercially reasonable manner. Foothill shall be
under no obligation to delay the sale of any of the Pledged
Collateral for the period of time necessary to permit any Pledgor
to register such securities for public sale under the Securities
Act, or under applicable state securities laws, even if such
Pledgor would agree to do so.
(c) If Foothill determines to exercise its right to sell
any or all of the Pledged Collateral, upon written request, each
Pledgor shall, from time to time, furnish to Foothill all such
information as Foothill may request in order to determine the
number of shares and other instruments included in the Pledged
Collateral which may be sold by Foothill as exempt transactions
under the Securities Act and rules of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
SECTION 12. Expenses. Each Pledgor will, jointly and
severally, upon demand pay to Foothill the amount of any and all
reasonable expenses, including, without limitation, the reasonable
fees and expenses of Foothill's counsel and of any experts and
agents, which Foothill may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation
of, sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the
rights and remedies hereunder of Foothill, or (iv) the failure by
any Pledgor to perform or observe any of the provisions hereof.
SECTION 13. Security Interest Absolute. All rights of
Foothill and obligations of the Pledgors hereunder, and all
security interests created or granted hereby, shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of
any provision of the Loan Agreement or any other Loan
Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of
payment of, or in any other term of, or any increase in
the amount of, all or any of the Secured Obligations, or
any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the
Loan Agreement or any other Loan Document;
(iii) any exchange, release or non-perfection
of any Lien on any other collateral, or any release or
amendment or waiver of any term of any guaranty of, or
consent to departure from any requirement of any guaranty
of, all or any of the Secured Obligations; or
(iv) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, Borrower or any Pledgor.
SECTION 14. Amendments, Etc. No amendment or waiver
of any provision of this Agreement nor consent to any departure by
any Pledgor herefrom shall in any event be effective unless the
same shall be in writing and signed by Foothill and each Pledgor
affected thereby, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
SECTION 15. Addresses for Notices. All notices and
other communications provided for hereunder shall be in writing
(including, without limitation, by telecopy) and mailed by postage
prepaid registered mail, return receipt requested, telecopied or
delivered by hand, if to any Pledgor, in care of Borrower and in
the manner set forth in Section 12 of the Loan Agreement, and if to
Foothill, in the manner set forth in Section 12 of the Loan
Agreement.
SECTION 16. Continuing Security Interest; Transfer of
Obligations. This Pledge Agreement shall create a continuing
security interest in the Pledged Collateral and shall (i) remain in
full force and effect until the termination of this Agreement
pursuant to Section 17, (ii) be binding upon each Pledgor, its
successors and assigns, and (iii) inure, together with the rights
and remedies of Foothill hereunder, to the benefit of and be
enforceable by Foothill and its successors, transferees and
assigns.
SECTION 17. Termination of Security Interest. This
Agreement, and the security interests created or granted hereby,
shall automatically terminate and be released on the date at which
(i) the commitments of Foothill to extend credit to Borrower under
the Loan Agreement have been irrevocably terminated, and (ii) all
Secured Obligations have been fully and finally paid in cash. In
addition, upon any Asset Disposition by any Pledgor of any of the
Pledged Collateral to the extent permitted under the Loan Agreement
(and the application of the proceeds thereof, if any, in accordance
with the Loan Agreement), Foothill shall release the security
interest created or granted hereby in respect of the Pledged
Collateral (but not the proceeds thereof) that is the subject of
such permitted Asset Disposition. Upon any release of the security
interest created by this Agreement in any of the Pledged Collateral
pursuant to this Section 17, Foothill (without recourse upon, or
any representation or warranty whatsoever by, Foothill) shall
promptly (i) return, transfer and deliver to the applicable Pledgor
all certificates, instruments and other property held by Foothill
pursuant to this Agreement representing or evidencing such Pledged
Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof, as the case may be, all without
recourse upon, or representation or warranty whatsoever by,
Foothill, except that the same shall be free and clear of any
claims, liens or encumbrances created by or in respect of Foothill,
and at the cost and expense of such Pledgor, and (ii) execute and
deliver to each Pledgor (at the cost and expense of such Pledgor)
such instruments as may be reasonably requested by such Pledgor
acknowledging the release of such security interest with respect to
such Pledged Collateral.
SECTION 18. Amendment of Governing Documents. As soon
as practicable and in any event within 90 days after the Closing
Date (or, if later, 90 days after the date that such Pledgor
becomes a party to this Agreement) and to the extent permitted by
applicable law, each Pledgor shall, and shall cause each applicable
Pledged Domestic Issuer or Pledged Foreign Issuer whose outstanding
common stock is pledged by it hereunder to, take all action
necessary to amend the governing documents of each Issuer where
such governing documents restrict the assignment of any such
shares, so as to allow the enforcement by Foothill of its rights
under this Agreement.
SECTION 19. Governing Law; Severability. This
Agreement shall be governed by, and be construed and interpreted in
accordance with, the law of the State of California. Wherever
possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity and without
invalidating the remaining provisions of this Agreement.
SECTION 20. Waiver of Jury Trial. Each Pledgor waives
any right it may have to a trial by jury in respect of any
litigation based on, or arising out of, under or in connection
with, this Agreement or any other Loan Document, or any course of
conduct, course of dealing, verbal or written statement or other
action of any loan party or any secured party.
SECTION 21. Section Titles. The Section titles contained
in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not part of this Agreement.
SECTION 22. Waivers.
(a) To the maximum extent permitted by law, each Pledgor
hereby waives: (i) notice of acceptance hereof; (ii) notice of any
loans or other financial accommodations made or extended under the Loan
Agreement, or the creation or existence of any Obligations; (iii) notice
of the amount of the Obligations, subject, however, to Section 2.10 of
the Loan Agreement and Pledgor's right to make inquiry of Foothill to
ascertain the amount of the Obligations at any reasonable time;
(iv) notice of any adverse change in the financial condition of Borrower
or of any other fact that might increase such Pledgor's risk hereunder;
(v) notice of presentment for payment, demand, protest, and notice
thereof as to any instrument among the Loan Documents; (vi) notice of
any Default or Event of Default under the Loan Agreement; and (vii) all
other notices (except if such notice is specifically required to be
given to such Pledgor under this Agreement) and demands to which such
Pledgor might otherwise be entitled.
(b) To the fullest extent permitted by applicable law,
each Pledgor waives the right by statute or otherwise to require
Foothill to institute suit against Borrower or to exhaust any rights and
remedies which Foothill has or may have against Borrower. Each Pledgor
further waives any defense arising by reason of any disability or other
defense (other than the defense that the Obligations shall have been
fully and finally indefeasibly paid) of Borrower or by reason of the
cessation from any cause (other than that the Obligations shall have
been fully and finally indefeasibly paid) whatsoever of the liability of
Borrower in respect thereof.
(c) To the maximum extent permitted by law, each Pledgor
hereby waives: (i) any rights to assert against Foothill any defense
(legal or equitable), set-off, counterclaim, or claim which such Pledgor
may now or at any time hereafter have against Borrower or any other
party liable to Foothill on account of or with respect to the
Obligations; (ii) any defense, set-off, counterclaim, or claim, of any
kind or nature, arising directly or indirectly from the present or
future sufficiency, validity, or enforceability of the Obligations;
(iii) any defense arising by reason of any claim or defense based upon
an election of remedies by Foothill including, to the extent applicable,
the provisions of 580d and 726 of the California Code of Civil
Procedure, or any similar law of California or any other jurisdiction;
(iv) the benefit of any statute of limitations affecting any Pledgor's
liability hereunder or the enforcement thereof.
(d) To the maximum extent permitted by law, each Pledgor
hereby waives any right of subrogation that such Pledgor has or may have
as against any other Pledgor with respect to the Obligations. In
addition, each Pledgor hereby waives any right to proceed against any
other Pledgor, now or hereafter, for contribution, indemnity,
reimbursement, or any other suretyship rights and claims (irrespective
of whether direct or indirect, liquidated or contingent), with respect
to the Obligations. Each Pledgor also hereby waives any right to
proceed or to seek recourse against or with respect to any property or
asset of any other Debtor. As between any Pledgor and Foothill, each
Pledgor hereby agrees that, in light of the waivers contained in this
Section, such Pledgor shall not be deemed to be a "creditor" (as that
term is defined in the Bankruptcy Code or otherwise) of any other
Pledgor, whether for purposes of the application of Sections 547 or 550
of the United States Bankruptcy Code or otherwise.
(e) If any of the Secured Obligations at any time are
secured by a mortgage or deed of trust upon real property, Foothill may
elect, in its sole discretion, upon a default with respect to the
Secured Obligations, to foreclose such mortgage or deed of trust
judicially or nonjudicially in any manner permitted by law, before or
after enforcing this Agreement, without diminishing or affecting the
liability of any Pledgor hereunder. Each Pledgor understands that (i)
by virtue of the operation of California's antideficiency law applicable
to nonjudicial foreclosures, an election by Foothill nonjudicially to
foreclose such a mortgage or deed of trust probably would have the
effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Pledgor against Borrower or
guarantors or sureties, and (ii) absent the waiver given by such Pledgor
herein, such an election might estop Foothill from enforcing this
Agreement against such Pledgor. Understanding the foregoing, and
understanding that each Pledgor is hereby relinquishing a defense to the
enforceability of this Agreement, each Pledgor hereby waives any right
to assert against Foothill any defense to the enforcement of this
Agreement, whether denominated "estoppel" or otherwise, based on or
arising from an election by Foothill nonjudicially to foreclose any such
mortgage or deed of trust. Each Pledgor understands that the effect of
the foregoing waiver may be that such Pledgor may have liability
hereunder for amounts with respect to which such Pledgor may be left
without rights of subrogation, reimbursement, contribution, or indemnity
against Borrower or guarantors or sureties. Each Pledgor also agrees
that the "fair market value" provisions of Section 580a of the
California Code of Civil Procedure shall have no applicability with
respect to the determination of such Pledgor's liability under this
Agreement.
(f) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER
OR OTHER PROVISION SET FORTH IN THIS AGREEMENT, EACH PLEDGOR HEREBY
WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS PERMITTED BY LAW, ANY AND
ALL DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF
CALIFORNIA CIVIL CODE 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2838,
2839, 2845, 2848, 2849, AND 2850, TO THE EXTENT APPLICABLE, CALIFORNIA
CODE OF CIVIL PROCEDURE 580a, 580b, 580c, 580d, AND 726, AND, TO THE
EXTENT APPLICABLE, CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE.
[remainder of page intentionally left blank]
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER
OR OTHER PROVISION SET FORTH IN THIS AGREEMENT, EACH PLEDGOR HEREBY
WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY
FOOTHILL, EVEN THOUGH THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL
FORECLOSURE WITH RESPECT TO SECURITY FOR A SECURED OBLIGATION, HAS
DESTROYED SUCH PLEDGOR'S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST
THE PRINCIPAL BY THE OPERATION OF SECTION 580d OF THE CODE OF CIVIL
PROCEDURE OR OTHERWISE.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to
be duly executed and delivered by its duly authorized officer on the
date first above written.
INTERGRAPH CORPORATION
By:
-------------------------
Name:
Title:
INTERGRAPH DELAWARE, INC.
By:
--------------------------
Name:
Title:
M&S COMPUTING INVESTMENTS, INC.
By:
--------------------------
Name:
Title:
Accepted and Acknowledged:
FOOTHILL CAPITAL CORPORATION
By:
-------------------------
Name:
Title:
TRADEMARK SECURITY AGREEMENT
----------------------------
This TRADEMARK SECURITY AGREEMENT (this "Agreement"),
dated as of December 20, 1996, is made by INTERGRAPH CORPORATION, a
Delaware corporation ("Debtor"), in favor of FOOTHILL CAPITAL
CORPORATION, a California corporation ("Secured Party").
RECITALS
--------
A. Debtor and Secured Party have entered into that certain
Loan and Security Agreement, dated as of even date herewith (as
amended, restated, modified, renewed or extended from time to time,
the "Loan Agreement"), pursuant to which Secured Party has agreed
to make certain financial accommodations to Debtor, and Debtor has
granted to Secured Party a security interest in (among other
things) certain of Debtor's general intangibles.
B. Pursuant to the Loan Agreement and as one of the
conditions precedent to the obligations of Secured Party under the
Loan Agreement, Debtor has agreed to execute and deliver this
Agreement to Secured Party for filing with the United States Patent
and Trademark Office and with any other relevant recording systems
in any domestic or foreign jurisdiction, and as further evidence of
and to effectuate Secured Party's existing security interests in
the trademarks and other general intangibles described herein.
ASSIGNMENT
----------
NOW, THEREFORE, for valuable consideration, the receipt
and adequacy of which is hereby acknowledged, Debtor hereby agrees
in favor of Secured Party as follows:
II. Definitions; Interpretation.
A. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Event of Default" shall have the meaning ascribed
thereto in the Loan Agreement.
"Lien" means any pledge, security interest, assignment,
charge or encumbrance, lien (statutory or other), or other preferential
arrangement (including any agreement to give any security interest).
"Proceeds" means whatever is receivable or received from
or upon the sale, lease, license, collection, use, exchange or
other disposition, whether voluntary or involuntary, of any
Trademark Collateral, including "proceeds" as defined at California
UCC Section 9306, all insurance proceeds and all proceeds of
proceeds. Proceeds shall include (i) any and all accounts, chattel
paper, instruments, general intangibles, cash and other proceeds,
payable to or for the account of Debtor, from time to time in
respect of any of the Trademark Collateral, (ii) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable
to or for the account of Debtor from time to time with respect to
any of the Trademark Collateral, (iii) any and all claims and
payments (in any form whatsoever) made or due and payable to Debtor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Trademark Collateral by any Person acting under color of
governmental authority, and (iv) any and all other amounts from
time to time paid or payable under or in connection with any of the
Trademark Collateral or for or on account of any damage or injury
to or conversion of any Trademark Collateral by any Person.
"PTO" means the United States Patent and Trademark Office
and any successor thereto.
"Secured Obligations" means all liabilities, obligations,
or undertakings owing by Debtor to Secured Party of any kind or
description arising out of or outstanding under, advanced or issued
pursuant to, or evidenced by the Loan Agreement, the other Loan
Documents, or this Agreement, irrespective of whether for the
payment of money, whether direct or indirect, absolute or
contingent, due or to become due, voluntary or involuntary, whether
now existing or hereafter arising, and including all interest
(including interest that accrues after the filing of a case under
the Bankruptcy Code) and any and all costs, fees (including
attorneys fees), and expenses which Debtor is required to pay
pursuant to any of the foregoing, by law, or otherwise.
"Trademark Collateral" has the meaning set forth in Section 2.
"Trademarks" has the meaning set forth in Section 2.
"UCC" means the Uniform Commercial Code as in effect from
time to time in the State of California.
"United States" and "U.S." each mean the United States of
America.
B. Terms Defined in UCC. Where applicable and except as
otherwise defined herein, terms used in this Agreement shall have
the meanings assigned to them in the UCC.
C. Interpretation. In this Agreement, except to the extent
the context otherwise requires:
(i) Any reference to a Section or a Schedule
is a reference to a section hereof, or a schedule hereto,
respectively, and to a subsection or a clause is, unless
otherwise stated, a reference to a subsection or a clause of
the Section or subsection in which the reference appears.
(ii) The words "hereof," "herein," "hereto,"
"hereunder" and the like mean and refer to this Agreement as a
whole and not merely to the specific Section, subsection,
paragraph or clause in which the respective word appears.
(iii) The meaning of defined terms shall be
equally applicable to both the singular and plural forms of
the terms defined.
(iv) The words "including," "includes" and
"include" shall be deemed to be followed by the words "without
limitation."
(v) References to agreements and other
contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto.
(vi) References to statutes or regulations are
to be construed as including all statutory and regulatory
provisions consolidating, amending or replacing the statute or
regulation referred to.
(vii) Any captions and headings are for convenience
of reference only and shall not affect the construction of this
Agreement.
(viii) Capitalized words not otherwise
defined herein shall have the respective meanings assigned to
them in the Loan Agreement.
(ix) In the event of a direct conflict between
the terms and provisions of this Agreement and the Loan Agreement,
it is the intention of the parties hereto that both such documents
shall be read together and construed, to the fullest extent
possible, to be in concert with each other. In the event of any
actual, irreconcilable conflict that cannot be resolved as
aforesaid, the terms and provisions of the Loan Agreement shall
control and govern; provided, however, that the inclusion herein of
additional obligations on the part of Debtor and supplemental
rights and remedies in favor of Secured Party (whether under
California law or applicable federal law), in each case in respect
of the Trademark Collateral, shall not be deemed a conflict in the
Loan Agreement.
III. Security Interest.
-----------------
A. Assignment and Grant of Security Interest. To secure the
Secured Obligations, Debtor hereby grants, assigns, transfers and
conveys to Secured Party a continuing security interest in all of
Debtor's right, title and interest in and to the following
property, whether now existing or hereafter acquired or arising and
whether registered or unregistered (collectively, the "Trademark
Collateral"):
(i) all state (including common law), federal and foreign
trademarks, service marks and trade names, corporate names, company
names, business names, fictitious business names, trade styles,
trade dress, logos, other source or business identifiers, designs
and general intangibles of like nature, now existing or hereafter
adopted or acquired, together with and including all licenses
therefor held by Debtor, and all registrations and recordings
thereof, and all applications filed or to be filed in connection
therewith, including registrations and applications in the PTO, any
State of the United States or any other country or any political
subdivision thereof, and all extensions or renewals thereof,
including without limitation any of the foregoing identified on
Schedule A hereto (as the same may be amended, modified or
supplemented from time to time), and the right (but not the
obligation) to register claims under any state or federal trademark
law or regulation or any trademark law or regulation of any foreign
country and to apply for, renew and extend any of the same, to sue
or bring opposition or cancellation proceedings in the name of
Debtor or in the name of Secured Party for past, present or future
infringement or unconsented use thereof, and all rights arising
therefrom throughout the world (collectively, the "Trademarks");
(ii) all claims, causes of action and rights to sue for past,
present or future infringement or unconsented use of any Trademarks
and all rights arising therefrom and pertaining thereto;
(iii) all general intangibles related to or arising out of
any of the Trademarks and all the goodwill of Debtor's business
symbolized by the Trademarks or associated therewith; and
(iv) all products and Proceeds of any and all of the foregoing.
B. Certain Exclusions from Grant of Security Interest.
Anything in this Agreement and the other Loan Documents to the
contrary notwithstanding, the foregoing grant, assignment,
transfer, and conveyance of a security interest shall not extend
to, and the term "Trademark Collateral" shall not include, any item
of Trademark Collateral described in Section 2(a) above that is now
or hereafter held by Debtor as licensee or otherwise, solely in the
event and to the extent that: (i) as the proximate result of the
foregoing grant, assignment, transfer, or conveyance of a security
interest, Debtor's rights in or with respect to such item of
Trademark Collateral would be forfeited or would become void,
voidable, terminable, or revocable, or if Debtor would be deemed to
have breached, violated, or defaulted the underlying license or
other agreement that governs such item of Trademark Collateral
pursuant to the restrictions in the underlying license or other
agreement that governs such item of Trademark Collateral; (ii) any
such restriction shall be effective and enforceable under
applicable law, including Section 9318(4) of the Code; and (iii)
any such forfeiture, voidness, voidability, terminability,
revocability, breach, violation, or default cannot be remedied by
Debtor using its best efforts (but without any obligation to make
any material expenditures of money or to commence legal
proceedings); provided, however, that the foregoing grant,
assignment, transfer, and conveyance of security interest shall
extend to, and the term "Trademark Collateral" shall include, (y)
any and all Proceeds of such item of Trademark Collateral to the
extent that the assignment or encumbering of such Proceeds is not
so restricted, and (z) upon any such licensor or other applicable
party's consent with respect to any such otherwise excluded item of
Trademark Collateral being obtained, thereafter such item of
Trademark Collateral as well as any Proceeds thereof that might
theretofore have been excluded from such grant, assignment,
transfer, and conveyance of a security interest and the term
"Trademark Collateral."
C. Continuing Security Interest. Debtor agrees that this
Agreement shall create a continuing security interest in the
Trademark Collateral which shall remain in effect until terminated
in accordance with Section 17.
D. Incorporation into Loan Agreement. This Agreement shall
be fully incorporated into the Loan Agreement and all
understandings, agreements and provisions contained in the Loan
Agreement shall be fully incorporated into this Agreement. Without
limiting the foregoing, the Trademark Collateral described in this
Agreement shall constitute part of the Collateral in the Loan
Agreement.
E. Licenses. Anything in the Loan Agreement or this
Agreement to the contrary notwithstanding, Debtor may grant non-
exclusive licenses of the Trademark Collateral (subject to the
security interest (if any) of Secured Party therein) in the
ordinary course of business consistent with past practice.
IV. Further Assurances; Appointment of Secured Party as Attorney-
in-Fact. Debtor at its expense shall execute and deliver, or cause
to be executed and delivered, to Secured Party any and all
documents and instruments, in form and substance satisfactory to
Secured Party, and take any and all action, which Secured Party may
reasonably request from time to time, to perfect and continue
perfected, maintain the priority of or provide notice of Secured
Party's security interest in the Trademark Collateral and to
accomplish the purposes of this Agreement. Secured Party shall
have the right, in the name of Debtor, or in the name of Secured
Party or otherwise, without notice to or assent by Debtor, and
Debtor hereby irrevocably constitutes and appoints Secured Party
(and any of Secured Party's officers or employees or agents
designated by Secured Party) as Debtor's true and lawful attorney-
in-fact with full power and authority, if Debtor refuses or fails
to do so timely, (i) to sign the name of Debtor on all or any of
such documents or instruments and perform all other acts that
Secured Party deems necessary or advisable in order to perfect or
continue perfected, maintain the priority or enforceability of or
provide notice of Secured Party's security interest in, the
Trademark Collateral, and (ii) to execute any and all other
documents and instruments, and to perform any and all acts and
things, for and on behalf of Debtor, which Secured Party reasonably
may deem necessary or advisable to maintain, preserve and protect
the Trademark Collateral and to accomplish the purposes of this
Agreement, including (A) after the occurrence and during the
continuance of any Event of Default, to defend, settle, adjust or
institute any action, suit or proceeding with respect to the
Trademark Collateral, (B) during a Triggering Event, to assert or
retain any rights under any license agreement for any of the
Trademark Collateral, and (C) after the occurrence and during the
continuance of any Event of Default, to execute any and all
applications, documents, papers and instruments for Secured Party
to use the Trademark Collateral, to grant or issue any exclusive or
non-exclusive license with respect to any Trademark Collateral, and
to assign, convey or otherwise transfer title in or dispose of the
Trademark Collateral. The power of attorney set forth in this
Section 3, being coupled with an interest, is irrevocable so long
as this Agreement shall not have terminated in accordance with
Section 17.
V. Representations and Warranties. Debtor represents and
warrants to Secured Party as follows:
A. No Other Trademarks. Schedule A sets forth, as of the
Closing Date, a true and correct list of all of the existing
Trademarks that are registered, or for which any application for
registration has been filed with the PTO or any corresponding or
similar trademark office of any other U.S. or foreign jurisdiction,
and that are owned or held (whether pursuant to a license or
otherwise) and used by Debtor.
B. Trademarks Subsisting. Each of the Trademarks listed in
Schedule A is subsisting and has not been adjudged invalid or
unenforceable, in whole or in part, and, to the best of Debtor's
knowledge, each of the Trademarks is valid and enforceable.
C. Ownership of Trademark Collateral; No Violation. (i)
Debtor has rights in and good and defensible title to the existing
Trademark Collateral, (ii) with respect to the Trademark Collateral
shown on Schedule A hereto as owned by it, Debtor is the sole and
exclusive owner thereof, free and clear of any Liens and rights of
others (other than the security interest created hereunder),
including licenses, registered user agreements and covenants by
Debtor not to sue third persons, and (iii) with respect to any
Trademarks for which Debtor is either a licensor or a licensee
pursuant to a license or licensee agreement regarding such
Trademark, each such license or licensing agreement is in full
force and effect, Debtor is not in default of any of its
obligations thereunder and, other than the parties to such licenses
or licensing agreements, no other Person has any rights in or to
any of the Trademark Collateral. To the best of Debtor's
knowledge, the past, present and contemplated future use of the
Trademark Collateral by Debtor has not, does not and will not
infringe upon or violate any right, privilege or license agreement
of or with any other Person.
D. No Infringement. To the best of Debtor's knowledge, no
material infringement or unauthorized use presently is being made
of any of the Trademark Collateral by any Person.
E. Powers. Debtor has the unqualified right, power and
authority to pledge and to grant to Secured Party a security
interest in all of the Trademark Collateral pursuant to this
Agreement, and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or
approval of any other Person except as already obtained.
VI. Covenants. So long as any of the Secured Obligations remain
unsatisfied, Debtor agrees that it will comply with all of the
covenants, terms and provisions of this Agreement, the Loan
Agreement and the other Loan Documents, and Debtor will promptly
give Secured Party written notice of the occurrence of any event
that could have a material adverse effect on any of the Trademarks
or the Trademark Collateral, including any petition under the
Bankruptcy Code filed by or against any licensor of any of the
Trademarks for which Debtor is a licensee.
VII. Future Rights. For so long as any of the Secured
Obligations shall remain outstanding, or, if earlier, until Secured
Party shall have released or terminated, in whole but not in part,
its interest in the Trademark Collateral, if and when Debtor shall
obtain rights to any new Trademarks, or any reissue, renewal or
extension of any Trademarks, the provisions of Section 2 shall
automatically apply thereto and Debtor shall give to Secured Party
prompt notice thereof. Debtor shall do all things deemed necessary
or advisable by Secured Party to ensure the validity, perfection,
priority and enforceability of the security interests of Secured
Party in such future acquired Trademark Collateral. In accordance
with Section 3 hereof, Debtor hereby authorizes Secured Party to
modify, amend or supplement the Schedules hereto and to re-execute
this Agreement from time to time on Debtor's behalf and as its
attorney-in-fact to include any future Trademarks which are or
become Trademark Collateral and to cause such re-executed Agreement
or such modified, amended or supplemented Schedules to be filed
with the PTO.
VIII. Secured Party's Duties. Notwithstanding any provision
contained in this Agreement, Secured Party shall have no duty to
exercise any of the rights, privileges or powers afforded to it and
shall not be responsible to Debtor or any other Person for any
failure to do so or delay in doing so. Except for the accounting
for moneys actually received by Secured Party hereunder or in
connection herewith, Secured Party shall have no duty or liability
to exercise or preserve any rights, privileges or powers pertaining
to the Trademark Collateral.
IX. Remedies. From and after the occurrence and during the
continuation of an Event of Default, Secured Party shall have all
rights and remedies available to it under the Loan Agreement and
applicable law (which rights and remedies are cumulative) with
respect to the security interests in any of the Trademark
Collateral or any other Collateral. Debtor agrees that such rights
and remedies include the right of Secured Party as a secured party
to sell or otherwise dispose of its Collateral after default,
pursuant to UCC Section 9504. Debtor agrees that Secured Party
shall at all times have such royalty-free licenses, to the extent
permitted by law, for any Trademark Collateral that is reasonably
necessary to permit the exercise of any of Secured Party's rights
or remedies upon or after the occurrence of (and during the
continuance of) an Event of Default with respect to (among other
things) any tangible asset of Debtor in which Secured Party has a
security interest, including Secured Party's rights to sell
inventory, tooling or packaging which is acquired by Debtor (or its
successor, assignee or trustee in bankruptcy). In addition to and
without limiting any of the foregoing, upon the occurrence and
during the continuance of an Event of Default, Secured Party shall
have the right but shall in no way be obligated to bring suit, or
to take such other action as Secured Party deems necessary or
advisable, in the name of Debtor or Secured Party, to enforce or
protect any of the Trademark Collateral, in which event Debtor
shall, at the request of Secured Party, do any and all lawful acts
and execute any and all documents required by Secured Party in aid
of such enforcement. To the extent that Secured Party shall elect
not to bring suit to enforce such Trademark Collateral, Debtor
agrees to use all reasonable measures and its diligent efforts,
whether by action, suit, proceeding or otherwise, to prevent the
infringement, misappropriation or violation thereof by others and
for that purpose agrees diligently to maintain any action, suit or
proceeding against any Person necessary to prevent such
infringement, misappropriation or violation.
X. Binding Effect. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by Debtor and Secured Party
and their respective successors and assigns.
XI. Notices. All notices and other communications hereunder
shall be in writing and shall be mailed, sent or delivered in
accordance with the Loan Agreement.
XII. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California, except to the extent that the validity or perfection of
the assignment and security interests hereunder in respect of any
Trademark Collateral are governed by federal law, in which case
such choice of California law shall not be deemed to deprive
Secured Party of such rights and remedies as may be available under
federal law.
XIII. Entire Agreement; Amendment. This Agreement, together
with the Schedules hereto, contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes
all prior drafts and communications relating to such subject
matter. Neither this Agreement nor any provision hereof may be
modified, amended or waived except by the written agreement of the
parties as provided in the Loan Agreement. Notwithstanding the
foregoing, Secured Party may re-execute this Agreement or modify,
amend or supplement the Schedules hereto as provided in Section 6
hereof.
XIV. Severability. If one or more provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect
in any jurisdiction or with respect to any party, such invalidity,
illegality or unenforceability in such jurisdiction or with respect
to such party shall, to the fullest extent permitted by applicable
law, not invalidate or render illegal or unenforceable any such
provision in any other jurisdiction or with respect to any other
party, or any other provisions of this Agreement.
XV. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute but one and the same agreement.
XVI. Loan Agreement. Debtor acknowledges that the rights and
remedies of Secured Party with respect to the security interest in
the Trademark Collateral granted hereby are more fully set forth in
the Loan Agreement and all such rights and remedies are cumulative.
XVII. No Inconsistent Requirements. Debtor acknowledges that
this Agreement and the other Loan Documents may contain covenants
and other terms and provisions variously stated regarding the same
or similar matters, and Debtor agrees that all such covenants,
terms and provisions are cumulative and all shall be performed and
satisfied in accordance with their respective terms. To the extent
of any conflict between the provisions of this Agreement and the
Loan Agreement, however, the provisions of the Loan Agreement shall
govern.
XVIII. Termination. Upon the indefeasible payment in full of
the Secured Obligations, including the cash collateralization,
expiration, or cancellation of all Secured Obligations, if any,
consisting of letters of credit, and the full and final termination
of any commitment to extend any financial accommodations under the
Loan Agreement, this Agreement shall terminate, and Secured Party
shall execute and deliver such documents and instruments and take
such further action reasonably requested by Debtor, at Debtor's
expense, as shall be necessary to evidence termination of the
security interest granted by Debtor to Secured Party hereunder,
including cancellation of this Agreement by written notice from
Secured Party to the PTO.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement, as of the date first above written.
INTERGRAPH CORPORATION,
a Delaware corporation
By:
-----------------------------
Title:
-----------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
------------------------------
Title:
------------------------------
STATE OF CALIFORNIA )
)ss
COUNTY OF LOS ANGELES )
On January ___, 1997, before me, ____________________________,
Notary Public, personally appeared ____________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------------
Signature
[SEAL]
STATE OF CALIFORNIA )
)ss
COUNTY OF LOS ANGELES)
On January ___, 1997, before me, ____________________________,
Notary Public, personally appeared ____________________________,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature
[SEAL]
As of December 20, 1996
Foothill Partners II, L.P.
Foothill Partners III, L.P.
11111 Santa Monica Boulevard
Suite 1500
Los Angeles, California 90025
Ladies and Gentlemen:
This letter will confirm the agreement of Intergraph
Corporation, a Delaware corporation ("Borrower") that each of
Foothill Partners II, L.P. and Foothill Partners III, L.P. (the
"Funds"), in connection with their acquisition of participation
interests in debt of the Borrower, will be entitled to the
following contractual rights, in addition to the specified rights
to certain non-public financial information, inspection rights,
and other rights specifically provided to Foothill Capital
Corporation ("FCC") and/or its participants under the Loan and
Security Agreement, dated as of December 20, 1996 (the "Loan
Agreement"):
(1) The Funds each shall be permitted to select one
representative ("Representatives") to consult with and advise
management of Borrower on significant business issues, including
such management's proposed annual operating plans, and management
of Borrower will make itself available to meet with those
Representatives regularly during each year by telephone and/or at
Borrower's facility at mutually agreeable times, on reasonable
prior written notice, for such consultation and advice and to
review progress in achieving such plans.
(2) In the event of any material development to or
affecting Borrower's business (a) that could reasonably be
expected to materially impair Borrower's ability to perform its
obligations under the Loan Agreement or of Foothill to enforce
the Obligations (as defined in the Loan Agreement) or to realize
upon the Collateral (as defined in the Loan Agreement), or (b)
that could reasonably be expected to have a material adverse
effect on the value of the Collateral or the amount that FCC
would be likely to receive (after giving consideration to delays
in payment and costs of enforcement) in the liquidation of such
Collateral, Borrower shall notify the Representatives and provide
the Representatives with the opportunity, on reasonable prior
written notice, to consult with and advise Borrower's management
of its views with respect thereto.
(3) The Representatives may examine the books and records
of Borrower and visit and inspect its facilities and may
reasonably request information at reasonable times and intervals
concerning the general status of Borrower's financial conditions
and operations.
Foothill Partners II, L.P.
Foothill Partners III, L.P.
As of December 20, 1996
Page 2
(4) On reasonable prior written notice, the Representatives
may discuss the business operations, properties and financial and
other conditions of Borrower with Borrower's officers, employees
and directors and with Borrower's independent certified
accountants and investment bankers.
(5) The Funds shall be entitled to request that Borrower
provide them when available, with copies of (i) all financial
statements, forecasts and projections provided to or approved by
its Board of Directors; (ii) all notices, minutes, proxy
materials, consents and correspondence and other material that it
provides to its Directors and shareholders; (iii) any letter
issued to Borrower by its accountants with respect to Borrower's
internal controls; (iv) any documents filed by Borrower with the
Securities and Exchange Commission; (v) copies of all
information, statements and reports provided to FCC under the
Loan Agreements; and/or (vi) such other business and financial
data as the Representatives reasonably may request in writing
from time to time; other than, in each case, any such materials
provided by Borrower to its Directors to the extent protected by
applicable attorney work-product doctrine and/or attorney-client
privilege.
The Funds agree that they will not disclose to any
third party any information provided to them by Borrower
hereunder which is not generally available to the public or which
is specifically designated by Borrower as confidential, except
with the prior express approval of Borrower or as may otherwise
by required by applicable law.
The rights described herein shall apply and continue
for so long as the Funds continue to hold any amount of
indebtedness (or a participation interest therein) of Borrower
owned by the Fund as of the closing date under the Loan
Agreement.
Very truly yours,
INTERGRAPH CORPORATION
By:
-------------------------------
Title:
----------------------------
Foothill Partners II, L.P.
Foothill Partners III, L.P.
As of December 20, 1996
Page 3
AGREED AND ACCEPTED AS OF THIS
20th DAY OF DECEMBER, 1996.
FOOTHILL PARTNERS II, L.P.
By:
---------------------------
Managing General Partner
FOOTHILL PARTNERS III, L.P.
By:
---------------------------
Managing General Partner