exv10w3



 







Exhibit 10.3




INTELLECTUAL PROPERTY SECURITY AGREEMENT




     This Intellectual Property Security Agreement (this “Agreement”) is made as of June 30, 2006,
by PROLINK SOLUTIONS, LLC, a Delaware limited liability company (“Debtor”), in favor of COMERICA
BANK (“Secured Party”).



RECITALS




     A. Secured Party has lent to Debtor certain amounts (the “Loan”), as more fully described in
that certain Loan and Security Agreement by and among Debtor, PROLINK HOLDINGS CORP., a Delaware
corporation and Secured Party, dated as of June 30, 2006 (as amended from time to time, the “Loan
Agreement”).



     B. One of the conditions to Secured Party’s obligations to make the Loan was Debtor’s grant to
Secured Party of a security interest in the “Intellectual Property Collateral,” as defined in
Section 2, to secure Debtor’s obligations to Secured Party.



     C. To induce Secured Party to continue to advance the Loan pursuant to the terms of the Loan
Agreement, Debtor has agreed to enter into this Agreement.



AGREEMENTS




     I. Definitions. The following terms not otherwise defined herein will have the
meanings indicated:



     a. “Copyrights” means copyrights, registrations and applications therefor, and any and
all (i) renewals and extensions thereof, (ii) income, royalties, damages and payments now and
hereafter due or payable with respect thereto, including damages and payments for past or future
infringements thereof, (iii) rights to sue for past, present and future infringements thereof, and
(iv) all other rights corresponding thereto throughout the world.



     b. “Licenses” means license agreements in which a party grants or receives a grant of
any interest in Copyrights, Trademarks, Patents and Trade Secrets and other intellectual property
and any and all (i) renewals, extensions, supplements, amendments and continuations thereof, (ii)
income, royalties, damages and payments now and hereafter due or payable to the party with respect
thereto, including damages and payments for past or future violations or infringements or
misappropriations thereof, and (iii) rights to sue for past, present and future violations or
infringements thereof.



     c. “Patents” means patents and patent applications along with any and all (i)
inventions and improvements described and claimed therein, (ii) reissues, reexaminations,
divisions, continuations, renewals, extensions and continuations-in-part thereof, (iii) income,
royalties, damages and payments now and hereafter due and/or payable to the holder with respect
thereto, including damages and payments for past or future infringements thereof, (iv) rights to
sue for past, present and future infringements thereof, and (v) all other rights corresponding
thereto throughout the world.



 









 





     d. “Trademarks” means trademarks (including service marks and trade names, whether
registered or at common law), registrations and applications therefor, and the entire product lines
and goodwill of the owner’s business connected therewith and symbolized thereby, together with any
and all (i) renewals thereof, (ii) income, royalties, damages and payments now and hereafter due or
payable with respect thereto, including damages and payments for past or future infringements
thereof, (iii) rights to sue for past, present and future infringements or misappropriations
thereof, and (iv) all other rights corresponding thereto throughout the world.



     e. “Trade Secrets” means trade secrets, along with any and all (i) income, royalties,
damages and payments now and hereafter due and/or payable to the owner with respect thereto,
including damages and payments for past or future infringements or misappropriations thereof, (ii)
rights to sue for past, present and future infringements or misappropriations thereof, and (iii)
all other rights corresponding thereto throughout the world.



     2. Grant of Security Interest. Debtor hereby grants to Secured Party a security
interest in the following described intellectual property (collectively, the “Intellectual Property
Collateral”):



     a. All Trademarks of Debtor now owned or hereafter acquired, including those Trademarks listed
on Exhibit A hereto.



     b. All Copyrights of Debtor, now owned or hereafter acquired, including those registered
Copyrights listed on Exhibit B hereto.



     c. All Patents of Debtor, now owned or hereafter acquired, including those Patents listed on
Exhibit C hereto.



     d. All Trade Secrets of Debtor, now owned or hereafter acquired.



     e. All Licenses of Debtor, now owned or hereafter acquired.



     f. All files and records of Debtor or in which Debtor has any interest and supporting evidence
and documents relating to the Intellectual Property Collateral, including computer programs, disks,
tapes and related electronic data processing media, all rights of Debtor to retrieval from third
parties of electronically processed and recorded information, and all payment records,
correspondence, license agreements and the like, together with all Debtor’s books of account
ledgers, cabinets and equipment in which the same are reflected or maintained, now owned or
hereafter acquired.



     g. All proceeds of the foregoing.



     3. Secured Indebtedness. The Intellectual Property Collateral secures and will secure
all Indebtedness of Debtor to Secured Party related to the Loan. For purposes of this Agreement,
“Indebtedness” will mean all loans and advances made by Secured Party to Debtor pursuant to the
Loan Agreement, including related interest, loan fees, charges, attorneys’ fees and other expenses
for which Debtor is obligated, all guaranties by Debtor in favor of Secured Party related to the
Loan, whether now existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, or whether



- 2 -









 







incurred directly or acquired by Secured Party by assignment or otherwise. Without limiting
the generality of the foregoing, “Indebtedness” includes all obligations of Debtor to Secured Party
under the Note (as defined in the Loan Agreement), including all renewals and modifications
thereof.



     4. Representations and Warranties of Debtor. Debtor represents and warrants that:



     a. Debtor is the sole owner of the Intellectual Property Collateral, except for licenses
granted by Debtor to its customers in the ordinary course of business. To the best of Debtor’s
knowledge, each of the Patents, if any, is valid and enforceable, and no part of the Intellectual
Property Collateral has been adjudged invalid or unenforceable, in whole or in part, and no claim
has been made that any part of the Intellectual Property Collateral violates the rights of any
third party.



     b. Debtor is and will be and remain the sole and exclusive owner of the Intellectual Property
Collateral, except for licenses granted by Debtor to its customers in the ordinary course of
business, all of which is and will be free and clear of any liens, charges and encumbrances, except
those in favor of Secured Party or to which Secured Party has consented in writing.



     c. To the best of Debtor’s knowledge, Debtor’s use of the Tradenames, Trademarks,
Copyrights, Patents, and Licenses does not conflict with the rights of others.



     d. Except as disclosed to Secured Party in connection with the Loan Agreement, there are no
material claims, judgments or settlements to be paid by Debtor or pending claims or litigation
relating to the Intellectual Property Collateral.



     e. No effective security agreement, financing statement, equivalent security or lien
instrument or continuation statement covering all or any part of the Intellectual Property
Collateral is on file or of record in any public office, except such as may have been filed by
Debtor in favor of Secured Party.



     5. Covenants of Debtor. Debtor agrees that:



     a. Debtor will take such actions as shall be commercially reasonable to protect the marks,
inventions and works of authorship identified on Exhibits A, B and C, as well as any subsequent
marks, inventions and works of authorship which are security for the Loan and the failure to do so
would have a material adverse effect on the financial condition or operations of Debtor.



     b. Debtor shall execute and deliver such additional instruments and documents from time to
time as Secured Party shall reasonably request to perfect Secured Party’s security interest in any
Intellectual Property Collateral issued and/or registered after the date of this Agreement.



     c. Debtor shall use commercially reasonable efforts to prosecute and maintain the validity and
enforceability of the Trademarks, Patents and Copyrights and use commercially reasonable efforts to
detect infringements of the Trademarks, Patents and Copyrights and promptly advise Secured Party in
writing of material infringements detected. Debtor shall not



- 3 -









 







allow any Trademarks, Patents or Copyrights to be abandoned, forfeited or dedicated to the public
without the written acknowledgment of Secured Party unless such Trademarks, Patents or Copyrights
are no longer necessary for the operation of Debtor’s business.



     d. Secured Party may audit Debtor’s Intellectual Property Collateral to confirm compliance
with this Section 5, provided such audit may not occur more often than once per
year, unless an Event of Default has occurred and is continuing.



     6. Further Understandings. Debtor’s rights as to the Intellectual Property Collateral
are subject to the following further understandings:



     a. Prior to the occurrence of an Event of Default hereunder Debtor may continue to exploit,
license, franchise, use, enjoy and protect (whether in the United States of America or any foreign
jurisdiction) the Intellectual Property Collateral in the ordinary course of business and in a
manner consistent with the preservation of Secured Party’s rights hereunder, and Secured Party will
execute and deliver, at Debtor’s sole cost and expense, any and all instruments, certificates or
other documents reasonably requested by Debtor to enable Debtor to do so.



     b. This Agreement, and the security interest created hereunder, will terminate when all
Indebtedness has been fully paid and satisfied. Secured Party (without recourse upon, or any
warranty whatsoever by, Secured Party) will then execute and deliver to Debtor such documents and
instruments evidencing the termination of the security interest hereunder as Debtor may reasonably
request.



     c. Debtor hereby irrevocably appoints Secured Party as Debtor’s attorney-in-fact, with full
authority in the place and stead of Debtor and in the name of Debtor, from time to time in Secured
party’s discretion, to take any action and to execute any instrument which Secured party may deem
necessary or advisable to accomplish the purposes of this Agreement, including (i) to modify, in
its sole discretion, this Agreement without first obtaining Debtor’s approval of or signature to
such modification by amending any Exhibit hereto to include reference to any Intellectual Property
Collateral acquired by Debtor after the execution thereof or to delete any reference to any
Intellectual Property Collateral in which Secured Party no longer has or claims any interest and
(ii) to file, in its sole discretion, one or more financing or continuation statements and
amendments thereto relative to any of the Intellectual Property Collateral without the signature of
Debtor, where permitted by law.



     7. Default. The occurrence of an “Event of Default” under the Loan Agreement shall be
an Event of Default hereunder.



     8. Secured Party’s Remedies After Default. Upon the occurrence of an Event of Default
and subject to the notice and cure rights provided in the Loan Agreement, Secured Party may take
any one or more of the following actions, all without notice (except as provided in the Loan
Agreement), demand, legal process, protest or presentment of any kind:



     a. Declare any or all Indebtedness immediately due and payable, without notice or demand.



- 4 -









 





     b. Exercise any and all rights and powers of the Debtor respecting the Intellectual Property
Collateral.



     c. Sell or assign or grant a license or franchise to use, or cause to be sold or assigned or
granted a license or franchise to use, any or all of the Intellectual Property Collateral, in each
case, free of all rights and claims of Debtor therein and thereto (but subject, in each case, to
the rights of others heretofore granted or created by Debtor as contemplated herein).



     d. Exercise the rights and remedies of a secured party under the Arizona Commercial Code or
any other applicable law, including selling the Intellectual Property Collateral at public or
private sale, for cash or on credit, in whole or in part and on such terms as Secured Party may
determine.



     e. Require Debtor to assemble any tangible Intellectual Property Collateral and make such
Intellectual Property Collateral available to Secured Party at a place designated by Secured Party
or to deliver a copy to Secured Party of any such Intellectual Property Collateral consisting of
books, records, computer disks, tapes and the like.



     f. Enter the premises of Debtor or third parties in order to take possession of any tangible
Intellectual Property Collateral.



     g. Require Debtor to segregate all collections and proceeds of the Intellectual Property
Collateral so that they are capable of identification and deliver daily such collections and
proceeds to Secured Party in kind.



     h. Notify any obligated persons of Secured Party’s interest in the Intellectual Property
Collateral and the proceeds thereof and require any such persons to forward all remittances,
payments and proceeds respecting the Intellectual Property Collateral to Secured Party or a post
office box under Secured Party’s exclusive control.



     i. Demand and collect any proceeds of the Intellectual Property Collateral.



     j. Bring suit in its own or Debtor’s name to protect or enforce Debtor’s rights respecting any
Intellectual Property Collateral, in which case Debtor will do any and all lawful acts and execute
any and all proper documents requested by Secured Party in connection with such action.



     k. Grant extensions of time for payment of amounts due respecting any Intellectual Property
Collateral and compromise or settle claims or disputes of any customer of Debtor or any third party
relating to any Intellectual Property Collateral, including compromises and settlements that are
for less than the full amount due or involve discounts, credits or allowances other than in the
ordinary course of business, all as Secured Party in good faith deems advisable or appropriate and
without prior notice to or consent of Debtor.



     l. Use any Intellectual Property Collateral in connection with any assembly, use or
disposition of other collateral in which Debtor has granted a security interest to Secured Party
under the Loan Agreement.



- 5 -









 





     m. Take such measures as Secured Party may deem reasonably necessary or advisable to preserve,
maintain, protect or develop the Intellectual Property Collateral or any portion thereof or to
perform such obligations hereunder as Debtor may have failed to perform without curing Debtor’s
default arising from such failure.



     n. Apply to any court of competent jurisdiction for appointment of a receiver to enforce any
of Secured Party’s remedies with respect to the Intellectual Property Collateral to which
appointment Debtor hereby consents.



     o. Apply all recoveries received by Secured Party pursuant to the exercise of Secured party’s
rights hereunder, net of all Secured Party’s related cots and expenses, to the Indebtedness with
Debtor remaining liable for any deficiency.



     p. Demand Debtor’s payment of all Secured Party’s costs and expenses incurred in connection
with the exercise by Secured Party of its rights hereunder not offset against recoveries as
provided in paragraph 8. hereinabove.



     q. Institute proceedings to enforce Secured Party’s rights to any amounts owed by Debtor
hereunder.



     r. Exercise such further remedies as Secured Party may have at law or in equity.



     9. Miscellaneous.



     a. Except for the gross negligence or willful misconduct of Secured Party, Secured Party will
have no liability for any handling or mishandling of any check, note, acceptance or other
instrument which the maker thereof tenders to Debtor or Secured Party in connection with the
Intellectual Property Collateral.



     b. All representations, warranties, covenants, agreements, terms and conditions made herein
will survive the execution, delivery and closing of this Agreement and all transactions
contemplated hereby.



     c. No failure or delay on the part of Secured Party in the exercise of any power, right or
privilege hereunder or to insist on strict compliance or performance of the representations,
warranties, covenants, agreements, terms and conditions of this Agreement will operate as a waiver
thereof.



     d. Time and exactitude of each of the terms, obligations, covenants and conditions are hereby
declared to be of the essence hereof



     e. This Agreement will be governed by and construed according to the laws of the State of
Arizona.



     f. All rights and remedies herein provided are cumulative and not exclusive of any rights or
remedies otherwise provided by law. Such rights and remedies may be exercised singularly or
collectively from time to time, and thus any single or partial exercise of any right or remedy will
not preclude the further exercise thereof or the exercise of any other right or remedy.



- 6 -









 





     g. The defined terms in this Agreement will apply equally to both the singular and the plural
forms of the terms defined. Whenever the context may require, any pronoun will include the
corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” when used in this Agreement will be deemed to be followed by the phrase “without
limitation.”



     h. In the event of any action or proceeding that involves the protection, preservation or
enforcement of Secured Party’s rights or Debtor’s obligations relating to this Agreement or the
Indebtedness, Secured Party will be entitled to reimbursement from Debtor of all costs and expenses
associated with said action or proceeding, including reasonable attorneys’ fees and litigation
expenses. Debtor will reimburse Secured Party for all reasonable attorneys’ fees and expenses
incurred in the representation of Secured Party in any aspect of any bankruptcy or insolvency
proceeding initiated by or on behalf of Debtor that concerns any of Debtor’s obligations to Secured
Party under this Agreement, the Indebtedness or otherwise. In the event of a judgment against one
party concerning any aspect of this Agreement or the Indebtedness, the right to recover
post-judgment attorneys’ fees incurred in enforcing the judgment will not be merged into and
extinguished by any money judgment. The provisions of this paragraph constitute a distinct and
severable agreement from the other contractual rights created by this Agreement or the
Indebtedness.



     i. Debtor hereby waives diligence, presentment, protest and demand and notice of every kind
(except for such notice provided for under the Loan Agreement) and, to the extent permitted by law,
the right to plead any statute of limitations as a defense to any demand hereunder. Debtor further
waives any right to require Secured Party to proceed against any person for payment of the
Indebtedness or against any other security Secured Party may have for the Indebtedness as a
condition to realizing upon any Intellectual Property Collateral hereunder.



     j. If any provisions of this Security Agreement are held to be invalid, illegal, unenforceable
or against public policy in any respect, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.



     k. Debtor will indemnify, defend and hold Secured Party harmless from and against any claims,
losses, damages, suits, costs and expenses incurred by or asserted against Secured Party arising
out of this Agreement, including Secured Party’s enforcement of its rights hereunder, except where
the covered matter results from Secured Party’s gross negligence or willful misconduct.



     10. This Agreement will inure to the benefit of Secured Party and its successors and assigns.
Debtor will not assign any of Debtor’s rights, duties or obligations hereunder. Any such assignment
by Debtor will be void and of no effect as to Secured Party and its successors or assigns.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




- 7 -









 








     Executed as of June 30, 2006, at Phoenix, Arizona.



	 	 	 	 	 	 	 	 	 
	 	 	PROLINK SOLUTIONS, LLC, a Delaware limited liability
company	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By: /s/ Barry
Sullivan                                                 	 	 
	 	 	Name: Barry Sullivan	 	 
	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Address:
	 	 
	 	410 S. Benson Lane

Chandler, Arizona 85224	 	 






     Sworn
and subscribed before me this 29th day of June, 2006.



	 	 	 	 	 
	 

	 	/s/
Betty Lunik                                                 
Notary Public

	 	 






	 	 	 
	My
Commission expires on:
September 4, 2009
	 	 
	 
	 	 
	 


	 	 






- 8 -