EXECUTION COPY
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of December
15, 2005 (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 Bear Xxxxxxx Corporate Lending
Inc., as administrative agent (in such capacity, the "Administrative Agent") for
the Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS, Xxxxxx American Corp., a Delaware corporation and CA
Acquisition Holdings, Inc., a Delaware corporation, have entered into a Credit
Agreement, dated as of December 15, 2005 (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,
JPMorgan Chase Bank, N.A., as syndication agent, the Administrative Agent, and
Amegy Bank N.A. and Natexis Banques Populaires, as co-documentation agents.
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 December 15, 2005, 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 agree as follows:
SECTION 1. Grant of Security. Each Grantor 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, trade names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers, and all goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country or any political subdivision
thereof, or otherwise, and all common-law rights related thereto, including,
without limitation, any of the foregoing referred to in Schedule 1, and (ii) the
right to obtain all renewals thereof, (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 letters patent of the United States, any other country or any
political subdivision thereof and all reissues and extensions thereof,
including, without limitation, any of the foregoing referred to in Schedule 1,
(ii) all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in Schedule 1,
(iii) the right to xxx or otherwise recover for any and all past, present and
future infringements and misappropriations thereof and (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) (collectively, the "Patents");
(c) (i) all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished (including, without
limitation, those listed in Schedule 1), all registrations and recordings
thereof, and all applications in connection therewith, including, without
limitation, all registrations, recordings and applications in the United States
Copyright Office, (ii) the right to obtain all renewals thereof, (iii) 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, (v) 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 (vi) 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, 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 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 (collectively, the "Trade
Secrets");
(e) (i) all licenses or agreements registered in the United States Patent
and Trademark Office 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 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.
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.
XXXXXX AMERICAN CORP.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
CA ACQUISITION HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
CHECKS IN THE MAIL, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
B(2) DIRECT, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
[INTELLECTUAL PROPERTY SECURITY AGREEMENT]
CORE SKILLS INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
XXXXXX AMERICAN CHECKS, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
[INTELLECTUAL PROPERTY SECURITY AGREEMENT]
