Intellectual Property Security Agreement - Silicon Valley Bank and Odimo Inc.
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT is entered into as of July
31, 2004 by and between SILICON VALLEY BANK ("Bank") and ODIMO INCORPORATED
("Grantor").
RECITALS
A. Bank has agreed to make certain advances of money and to extend certain
financial accommodation to Odimo Incorporated, D.I.A. Marketing, Inc. and
Grantor (the "Loans") in the amounts and manner set forth in that certain Loan
and Security Agreement by and between Bank, Odimo Incorporated, D.I.A.
Marketing, Inc. and Grantor of even date herewith (as the same may be amended,
modified or supplemented from time to time, the "Loan Agreement"; capitalized
terms used herein are used as defined in the Loan Agreement). Bank is willing to
make the Loans to Grantor, but only upon the condition, among others, that
Grantor shall grant to Bank a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor under
the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted to
Bank a security interest in all of Grantor's right, title and interest, whether
presently existing or hereafter acquired, in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, as collateral security
for the prompt and complete payment when due of its obligations under the Loan
Agreement, Grantor hereby represents, warrants, covenants and agrees as follows:
AGREEMENT
To secure its obligations under the Loan Agreement, Grantor grants and
pledges to Bank a security interest in all of Grantor's right, title and
interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents, and Trademarks listed on Exhibits
A, B, and C hereto), and including without limitation all proceeds thereof (such
as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to sue for past, present and future
infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part thereof.
This security interest is granted in conjunction with the security
interest granted to Bank under the Loan Agreement. The rights and remedies of
Bank with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Bank as a matter of law or equity. Each
right, power and remedy of Bank provided for herein or in the Loan Agreement or
any of the Loan Documents, or now or hereafter existing at law or in equity
shall be cumulative and
<PAGE>
concurrent and shall be in addition to every right, power or remedy provided for
herein and the exercise by Bank of any one or more of the rights, powers or
remedies provided for in this Intellectual Property Security Agreement, the Loan
Agreement or any of the other Loan Documents, or now or hereafter existing at
law or in equity, shall not preclude the simultaneous or later exercise by any
person, including Bank, of any or all other rights, powers or remedies.
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: ODIMO INCORPORATED
--------------------------------
-------------------------------- By: /s/ Alan Lipton
Name: Alan Lipton
Title: President
BANK:
Address of Bank: SILICON VALLEY BANK
--------------------------------
--------------------------------
-------------------------------- By: /s/ Dale Kirkland
Name: Dale Kirkland
Title: Senior VP
<PAGE>
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT is entered into as of July
31, 2004 by and between SILICON VALLEY BANK ("Bank") and ASHFORD.COM, INC.
("Grantor").
RECITALS
A. Bank has agreed to make certain advances of money and to extend certain
financial accommodation to Odimo Incorporated, D.I.A. Marketing, Inc. and
Grantor (the "Loans") in the amounts and manner set forth in that certain Loan
and Security Agreement by and between Bank, Odimo Incorporated, D.I.A.
Marketing, Inc. and Grantor of even date herewith (as the same may be amended,
modified or supplemented from time to time, the "Loan Agreement"; capitalized
terms used herein are used as defined in the Loan Agreement). Bank is willing to
make the Loans to Grantor, but only upon the condition, among others, that
Grantor shall grant to Bank a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor under
the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has granted to
Bank a security interest in all of Grantor's right, title and interest, whether
presently existing or hereafter acquired, in, to and under all of the
Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, as collateral security
for the prompt and complete payment when due of its obligations under the Loan
Agreement, Grantor hereby represents, warrants, covenants and agrees as follows:
AGREEMENT
To secure its obligations under the Loan Agreement, Grantor grants and
pledges to Bank a security interest in all of Grantor's right, title and
interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents, and Trademarks listed on Exhibits
A, B, and C hereto), and including without limitation all proceeds thereof (such
as, by way of example but not by way of limitation, license royalties and
proceeds of infringement suits), the right to sue for past, present and future
infringements, all rights corresponding thereto throughout the world and all
re-issues, divisions continuations, renewals, extensions and
continuations-in-part thereof.
This security interest is granted in conjunction with the security
interest granted to Bank under the Loan Agreement. The rights and remedies of
Bank with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Bank as a matter of law or equity. Each
right, power and remedy of Bank provided for herein or in the Loan Agreement or
any of the Loan Documents, or now or hereafter existing at law or in equity
shall be cumulative and concurrent and shall be in addition to every right,
power or remedy provided for herein and the exercise by Bank of any one or more
of the rights, powers or remedies provided for in this
<PAGE>
Intellectual Property Security Agreement, the Loan Agreement or any of the other
Loan Documents, or now or hereafter existing at law or in equity, shall not
preclude the simultaneous or later exercise by any person, including Bank, of
any or all other rights, powers or remedies.
IN WITNESS WHEREOF, the parties have caused this Intellectual Property
Security Agreement to be duly executed by its officers thereunto duly authorized
as of the first date written above.
GRANTOR:
Address of Grantor: ASHFORD.COM, INC.
--------------------------------
-------------------------------- By: /s/ Alan Lipton
Name: Alan Lipton
Title: President
BANK:
Address of Bank: SILICON VALLEY BANK
--------------------------------
--------------------------------
-------------------------------- By: /s/ Dale Kirkland
Name: Dale Kirkland
Title: Senior VP