Patent, Trademark, Copyright And License Mortgage

EXHIBIT 10.3.3.c


PATENT, TRADEMARK, COPYRIGHT AND LICENSE MORTGAGE


THIS PATENT, TRADEMARK, COPYRIGHT AND LICENSE MORTGAGE (the "Mortgage") made as of this 26th day of August, 1999, by TELXON CORPORATION, a Delaware corporation, with its principal business and chief executive office at 3330 West Market Street, Akron, Ohio 44333 ("Mortgagor") in favor of FOOTHILL CAPITAL CORPORATION, as agent for the Lenders from time to time party to the Loan and Security Agreement referred to below, with an office at 11111 Santa Monica Boulevard, Suite 1500, Los Angeles, California 90025-3333 ("Mortgagee"):


W I T N E S S E T H:


WHEREAS, Mortgagor, Mortgagee and certain lenders are parties to a certain Loan and Security Agreement of even date herewith (the lenders that are from time to time a party thereto being herein referred to as "Lenders") and other related loan documents of even date herewith (collectively, the "Loan Agreements"), which Loan Agreements provide (i) for Lenders to, from time to time, extend credit to or for the account of Mortgagor and (ii) for the grant by Mortgagor to Mortgagee, for the benefit of Mortgagee and Lenders, of a security interest in certain of Mortgagor's assets, including, without limitation, its patents, patent applications, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, goodwill and licenses;


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


1. Incorporation of Loan Agreements. The Loan Agreements and the terms and provisions thereof are hereby incorporated herein in their entirety by this reference thereto. All terms capitalized but not otherwise defined herein shall have the same meanings herein as in the Loan Agreements.


2. Mortgage of Patents, Trademarks and Licenses. To secure the complete and timely satisfaction of all of Mortgagor's Obligations, Mortgagor hereby grants a security interest in and mortgages to Mortgagee, for the benefit of Mortgagee and each Lender, as and by way of a first mortgage and security interest having priority over all other security interests, with power of sale upon the occurrence and during the continuance of an Event of Default, to the extent permitted by law, in all of Mortgagor's right, title and interest in and to all of its now existing and hereafter created or acquired:


(a) patents and patent applications, including, without limitation, the inventions and improvements described and claimed therein, and those patents listed on Exhibit A attached hereto and hereby made a part hereof, and (i) the reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, (ii) all income, damages and payments


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now and hereafter due or payable under or with respect thereto, including, without limitation, damages and payments for past or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof, and (iv) all rights corresponding thereto throughout the world (all of the foregoing patents and applications, together with the items described in clauses (i)-(iv) of this subsection 2(a), are sometimes hereinafter referred to individually as a "Patent" and, collectively, as the "Patents");


(b) trademarks, trademark registrations, trademark applications, trade names and tradestyles, service marks, service mark registrations, service mark applications and brand names, including, without limitation, the trademarks, trade names, service marks and applications and registrations thereof listed on Exhibit B attached hereto and hereby made a part hereof, and (i) renewals or extensions, thereof, (ii) all income, damages and payments now and hereafter due or payable with respect thereto, including, without limitation, damages and payments for past or future infringements thereof, (iii) the right to sue for past, present and future infringements thereof, and (iv) all rights corresponding thereto throughout the world (all of the foregoing trademarks, trade names, service marks and applications and registrations thereof, together with the items described in clauses (i)-(iv) of this subsection 2(b), are sometimes hereinafter referred individually as a "Trademark" and, collectively, as the "Trademarks");


(c) copyrights, rights and interests in copyrights, works protectable by copyrights, copyright registrations and copyright applications, including, without limitation, the copyright registrations and applications listed on Exhibit C attached hereto and made a part hereof, and all renewals of any of the foregoing, all income, royalties, damages and payments now and hereafter due and/or payable under or with respect to the any of the foregoing, including, without limitation, damages, and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing (all of the foregoing are sometimes hereinafter individually, as a "Copyright" and, collectively as the "Copyrights").


(d) license agreements (to the extent such license agreements may be assigned without violating the terms of any such license agreement) with respect to any of the Patents, Trademarks or Copyrights, or any other patent, trademark, service mark, copyright or any application or registration thereof or any other trade name or tradestyle between Mortgagor and any other party, whether Mortgagor is a licensor or licensee under any such license agreement, including, without limitation, the licenses listed on Exhibit D attached hereto and hereby made a part hereof (all of the foregoing license agreements and Mortgagor's rights thereunder are referred to collectively as the "Licenses"); and


(e) the goodwill of Mortgagor's business connected with and symbolized by the Trademarks.


3. Warranties and Representations. Mortgagor warrants and represents to Mortgagee that, except as set forth on Schedule 5.16 to the Loan Agreement:


(a) no Patent, Trademark, Copyright or License has been adjudged invalid or unenforceable nor has any such Patent, Trademark, Copyright or, to the best of Mortgagor's


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knowledge, no License been cancelled, in whole or in part and each such Patent, Trademark, Copyright and License is presently subsisting;


(b) each Patent, Trademark, Copyright and License is valid and enforceable;


(c) Mortgagor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to each Patent, Trademark, Copyright and License, free and clear of any liens, charges and encumbrances, in ...