Exhibit 10.7
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of November 30,
1999 (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 Xxxxxx Commercial Paper Inc.,
as administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS, X'Xxxxxxxx Industries, Inc., a Delaware corporation (the
"BORROWER"), and X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation,
have entered into a Credit Agreement, dated as of November 30, 1999 (as amended,
supplemented, replaced or otherwise modified from time to time, the "CREDIT
AGREEMENT"), with the banks and other financial institutions and entities from
time to time party thereto, Xxxxxx Brothers Inc., as advisor, lead arranger and
book manager and Xxxxxx Commercial Paper Inc., as administrative agent and
Wachovia Bank, N.A., as syndication agent. Capitalized terms used and not
defined herein have the meanings given such terms in the Credit Agreement.
WHEREAS, 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 November 30, 1999, in favor of
the Administrative Agent (as amended, supplemented, replaced or otherwise
modified from time to time, the "GUARANTEE AND COLLATERAL AGREEMENT").
WHEREAS, 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 ratable 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 party hereto agree as
follows:
SECTION 1. GRANT OF SECURITY. Each Grantor party hereto hereby grants
to the Administrative Agent for the ratable benefit of the Secured Parties a
security interest in and to all of such Grantor's right, title and interest in
and to the following (the "INTELLECTUAL PROPERTY COLLATERAL"), 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:
(a) (i) all trademarks, service marks, trade names, corporate names,
company names, business names, trade dress, trade styles, logos, or other
indicia of origin or source
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identification, trademark and service xxxx registrations, and applications for
trademark or service xxxx registrations and any new renewals thereof, including,
without limitation, 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 and misappropriations 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 of such
Grantor 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 (collectively, the "TRADEMARKS");
(b) (i) all patents, patent applications and patentable inventions,
including, without limitation, each patent and patent application identified in
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 misappropriations thereof, (iv) 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 (v) all reissues, divisions, continuations,
continuations-in-art, substitutes, renewals, and extensions thereof, all
improvements thereon and all other rights of any kind whatsoever of such Grantor
accruing thereunder or pertaining thereto (collectively, the "PATENTS");
(c) (i) all copyrights, whether or not the underlying works of
authorship have been published, and all works of authorship and other
intellectual property rights therein, all copyrights of works based on,
incorporated in, derived from or relating to works covered by such copyrights,
all right, title and interest to make and exploit all derivative works based on
or adopted from works covered by such copyrights, and all copyright
registrations and copyright applications, and any renewals or extensions
thereof, including, without limitation, each registration and application
identified in Schedule 1, (ii) the rights to print, publish and distribute any
of the foregoing, (iv) the right to xxx or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) 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 (v) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto
("COPYRIGHTS");
(d) (i) all trade secrets and all confidential and proprietary
information, including know-how, manufacturing and production processes and
techniques, inventions, research and development information, technical data,
financial, marketing and business data, pricing and cost information, business
and marketing plans, and customer and supplier lists and information, including,
without limitation, all material trade secrets identified in Schedule 1, (ii)
the right to xxx or otherwise recover for any and all past, present and future
infringements and misappropriations 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
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future infringements thereof), and (iv) all other rights of any kind whatsoever
of such Grantor accruing thereunder or pertaining thereto (collectively, the
"TRADE SECRETS");
(e) (i) all licenses or agreements, whether written or oral, providing
for the grant by or to any Grantor of: (A) any right to use any Trademark or
Trade Secret, (B) any right to manufacture, use or sell any invention covered in
whole or in part by a Patent, and (C) any right under any Copyright including,
without limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright including, without limitation, any of
the foregoing identified in Schedule 1, (ii) the right to xxx or otherwise
recover for any and all past, present and future infringements and
misappropriations of any of the foregoing, (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 of such
Grantor accruing thereunder or pertaining thereto; and
(f) any and all proceeds of the foregoing.
SECTION 2. RECORDATION. Each Grantor party hereto authorizes and
requests that the Register of Copyrights, the Commissioner of Patents and
Trademarks and any other applicable government officer record this Intellectual
Property Security Agreement.
SECTION 3. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts (including by telecopy), each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
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.
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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.
X'XXXXXXXX INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx:
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Name:
Title:
X'XXXXXXXX INDUSTRIES VIRGINIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name:
Title:
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