EXHIBIT 10.3
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of
December 5, 2003 (as amended, supplemented, replaced 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 Lehman
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, General Nutrition Centers Holding Company, a Delaware
corporation, and General Nutrition Centers, Inc., a Delaware corporation, have
entered into a Credit Agreement, dated as of December 5, 2003 (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, Lehman Commercial Paper, Inc., as administrative
agent, Lehman Brothers, Inc. and J.P. Morgan Securities Inc., as joint lead
arrangers and joint book runners and JPMorgan Chase Bank 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 December 5, 2003, 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 assigned and transferred to the Administrative
Agent, and granted to the Administrative Agent, for the ratable benefit of the
Secured Parties, a security interest in all of the Grantor's right, title, and
interest in and to certain Property, including, without limitation, certain
Intellectual Property of the Grantors, and have agreed as a condition thereof to
execute this Intellectual Property Security Agreement with respect to certain of
its Intellectual Property in order to record the security interests granted
therein with the United States Patent and Trademark Office, the United States
Copyright Office, and any other applicable Governmental Authorities.
NOW, THEREFORE, in consideration of the premises and to induce
the Arrangers (as defined in the Guarantee and Collateral Agreement), the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, the Grantors hereby agree with the Administrative Agent, for the
ratable benefit of the Secured Parties, as follows:
SECTION 1. Grant of Security. Each Grantor hereby assigns and
transfers to the Administrative Agent, and grants to the Administrative Agent,
for the ratable benefit of the Secured Parties, a security interest in 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 United States, state and foreign trademarks,
service marks, trade names, corporate names, company names, business names,
trade dress, trade styles, logos, or other indicia of origin or source
identification, Internet domain names, trademark and service mark registrations,
and applications for trademark or service mark registrations and any new
renewals thereof, including, without limitation, each registration and
application identified in Schedule 1, (ii) the right to sue 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 United States and foreign patents, patent
applications and patentable inventions, including, without limitation, each
issued patent and patent application identified in Schedule 1, and all
certificates of invention or similar property rights (ii) all inventions and
improvements described and claimed therein, (iii) the right to sue 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 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 of such Grantor accruing thereunder or pertaining thereto
(collectively, the "Patents");
(c) (i) all United States and foreign copyrights, whether
or not the underlying works of authorship have been published, including but not
limited to copyrights in software and databases, all Mask Works (as defined in
17 U.S.C. 901 of the Copyright Act), and all works of authorship and other
intellectual property rights therein, 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, mask
works registrations and mask works 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 sue 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 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, (ii) the right to sue 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 and (iv) all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (collectively, the "Trade
Secrets"); and
(e) (i) all Trademark Licenses (as defined in the
Guarantee and Collateral Agreement), Trade Secret Licenses (as defined in the
Guaranty and Collateral Agreement), Patent Licenses (as defined in the Guaranty
and Collateral Agreement), and Copyright Licenses (as defined in the Guaranty
and Collateral Agreement), in each case, to the extent Grantor is not the
granting party, including, without limitation, any of the foregoing identified
in Schedule 1, and (ii) all rights to sue at law or in equity for any past,
present and future infringement or impairment thereof, including the right to
receive all proceeds and damages therefrom.
SECTION 2. Excluded Assets. Notwithstanding anything to the
contrary in this Intellectual Property Security Agreement, none of the Excluded
Assets (as defined in the Guarantee and Collateral Agreement) shall constitute
Intellectual Property Collateral.
SECTION 3. 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 4. Execution in Counterparts. This Intellectual
Property Security 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 5. 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 6. 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.
[NAME OF GRANTOR]
By: _____________________________________
Name:
Title: