INTELLECTUAL PROPERTY SECURITY AGREEMENT
Exhibit 10.3
Execution Version
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of May 19, 2011 (as amended, supplemented or otherwise modified from time to time, the “Intellectual Property Security Agreement”), is made by each of the signatories hereto (collectively, the “Grantors”) in favor of JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the Secured Parties (as defined in the Credit Agreement referred to below).
A. KAR Auction Services, Inc., a Delaware corporation (the “Borrower”), has entered into the Credit Agreement, dated as of even date herewith (as amended, supplemented, or otherwise modified from time to time, the “Credit Agreement”), with the several banks and other financial institutions or entities from time to time party thereto as lenders (the “Lenders”), X.X. Xxxxxx Securities LLC as sole lead arranger, X.X. Xxxxxx Securities LLC, Xxxxxxx Xxxxx Lending Partners LLC, Barclays Capital and Deutsche Bank Securities Inc., as joint bookrunners, Xxxxxxx Sachs lending Partners LLC as syndication agent, Barclays Bank PLC and Deutsche Bank Securities Inc. as co-documentation agents, the Administrative Agent and other parties from time to time signatory thereto.
B. It is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered that certain Guarantee and Collateral Agreement, dated as of even date herewith in favor of the Administrative Agent (as amended, supplemented, replaced or otherwise modified from time to time, the “Guarantee and Collateral Agreement”). Capitalized terms used and not defined herein have the meanings given such terms in the Credit Agreement or the Guarantee and Collateral Agreement, as applicable.
C. Under the terms of the Guarantee and Collateral Agreement, the Grantors have granted a security interest in certain Property, including without limitation certain Intellectual Property of the Grantors to the Administrative Agent, for the benefit of the Secured Parties, and have agreed as a condition thereof to execute this Intellectual Property Security Agreement for recording with the United States Patent and Trademark Office, the United States Copyright Office, and other applicable Governmental Authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantors agree as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest in and to all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantor’s Obligations (as defined in the Guarantee and Collateral Agreement):
(a) (i) all United States trademarks, service marks, trade names, domain names, corporate names, company names, business names, trade dress, trade styles or logos and all registrations of and applications to register the foregoing (except for any applications filed in the United States Patent and Trademark Office on the basis of such Grantor’s “intent-to-use” such trademark, unless and until acceptable evidence of use of the trademark has been filed with the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the Xxxxxx Act (15 U.S.C. 1051, et seq.), to the extent, if any, that, and during the period, if any, in which granting a lien in such trademark application prior to such filing would adversely affect the enforceability or validity of such trademark application or of any
registration that issues therefrom) and any new renewals thereof, including each registration and application identified in Schedule 1, (ii) the right to xxx or otherwise recover for any and all past, present and future infringements, misappropriations, dilutions and other violations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements and dilutions thereof) and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto, together in each case with the goodwill of the business connected with the use of, and symbolized by, each of the above;
(b) (i) all United States patents, patent applications, including, without limitation, each issued patent and patent application identified on Schedule 1, (ii) all inventions and improvements described and claimed therein, (iii) the right to xxx or otherwise recover for any and all past, present and future infringements and other violations thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof) and (v) all reissues, divisions, continuations, continuations-in-part, substitutes, renewals, and extensions thereof, all improvements thereon and all other rights of any kind whatsoever accruing thereunder or pertaining thereto;
(c) (i) all United States copyrights, whether or not the underlying works of authorship have been published, and all copyright registrations and copyright applications, and any renewals or extensions thereof, including each registration identified on Schedule 1, (ii) the right to xxx or otherwise recover for any and all past, present and future infringements and other violations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof) and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto; and
(d) any and all Proceeds of the foregoing.
SECTION 2. Recordation. Each Grantor authorizes and requests that the United States Register of Copyrights or the United States Commissioner of Patents and Trademarks, as applicable, record this Intellectual Property Security Agreement.
SECTION 3. Execution in Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy or electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
SECTION 4. Governing Law. This Intellectual Property Security Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
SECTION 5. Conflict Provision. This Intellectual Property Security Agreement has been entered into in conjunction with the provisions of the Guarantee and Collateral Agreement and the Credit Agreement. The rights and remedies of each party hereto with respect to the security interest granted herein are without prejudice to, and are in addition to those set forth in the Guarantee and Collateral Agreement and the Credit Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Intellectual Property Security Agreement are in conflict with the Guarantee and Collateral Agreement or the Credit Agreement, the provisions of the Guarantee and Collateral Agreement or the Credit Agreement shall govern.
| INTELLECTUAL PROPERTY SECURITY AGREEMENT | 2 |
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
| KAR AUCTION SERVICES, INC. | ||||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| STATE OF INDIANA |
) | |||||
| : | ss.: | |||||
| COUNTY OF XXXXXXXX |
) |
On this 19 day of May, 2011, before me personally appeared Xxxx X. Xxxxxxxxxxx, 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/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the entity upon behalf of which the person acted executed the instrument.
| /s/ Xxxxxxx X. Xxxxxx | ||
| Notary Public | ||
| My commission expires: 10/29/17 | ||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT |
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
| ADESA, INC. | ||||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| STATE OF INDIANA |
) | |||||
| : | ss.: | |||||
| COUNTY OF XXXXXXXX |
) |
On this 19 day of May, 2011, before me personally appeared Xxxx X. Xxxxxxxxxxx, 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/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the entity upon behalf of which the person acted executed the instrument.
| /s/ Xxxxxxx X. Xxxxxx | ||
| Notary Public | ||
| My commission expires: 10/29/17 | ||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT | 4 |
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
| AUTOMOTIVE FINANCE CORPORATION | ||||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Executive Vice President | |||
| STATE OF INDIANA |
) | |||||
| : | ss.: | |||||
| COUNTY OF XXXXXXXX |
) |
On this 19 day of May, 2011, before me personally appeared Xxxx X. Xxxxxxxxxxx, 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/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the entity upon behalf of which the person acted executed the instrument.
| /s/ Xxxxxxx X. Xxxxxx | ||
| Notary Public | ||
| My commission expires: 10/29/17 | ||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT |
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
| AUTOMOTIVE FINANCE CONSUMER DIVISION, LLC | ||||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Executive Vice President | |||
| STATE OF INDIANA |
) | |||||
| : | ss.: | |||||
| COUNTY OF XXXXXXXX |
) |
On this 19 day of May, 2011, before me personally appeared Xxxx X. Xxxxxxxxxxx, 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/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the entity upon behalf of which the person acted executed the instrument.
| /s/ Xxxxxxx X. Xxxxxx | ||
| Notary Public | ||
| My commission expires: 10/29/17 | ||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT |
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
| INSURANCE AUTO AUCTIONS, INC. | ||||
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxxx | |||
| Title: | Authorized Signatory Officer | |||
| STATE OF INDIANA |
) | |||||
| : | ss.: | |||||
| COUNTY OF XXXXXXXX |
) |
On this 19 day of May, 2011, before me personally appeared Xxxx X. Xxxxxxxxxxx, 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/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the entity upon behalf of which the person acted executed the instrument.
| /s/ Xxxxxxx X. Xxxxxx | ||
| Notary Public | ||
| My commission expires: 10/29/17 | ||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT |
| JPMorgan Chase Bank, N.A., as Administrative Agent | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X Xxxxxxxx | |||
| Title: | Vice President | |||
| INTELLECTUAL PROPERTY SECURITY AGREEMENT |
