INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "IP Security
Agreement") is made and entered into as of April [24], 2002 by ALLTRISTA
CORPORATION, a Delaware corporation (herein referred to as a "Grantor" and the
"Borrower"), and EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE BORROWER AND EACH
OTHER PERSON WHO SHALL BECOME A PARTY HERETO BY EXECUTION OF AN IP SECURITY
JOINDER AGREEMENT (each a "Guarantor" and a "Grantor", and collectively with the
Borrower, the "Grantors"), and BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent (the "Administrative Agent") for each of
the lenders (the "Lenders", and together with the Administrative Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement (as defined
below). All capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned thereto in the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Credit Agreement dated as of April
[24], 2002 by and among the Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent and the Lenders (as from time to time
amended, revised, modified, supplemented, amended and restated or replaced,
renewed, refunded or refinanced, the "Credit Agreement"), the lenders have made
available to the Borrower a term loan facility and a revolving credit facility
with a letter of credit sublimit and a swing line facility; and
WHEREAS, as collateral security for payment and performance of the
Borrower's Obligations, the Borrower is willing to grant to the Administrative
Agent for the benefit of the Secured Parties a security interest in the
Collateral (as defined below) pursuant to the terms of this IP Security
Agreement; and
WHEREAS, each Guarantor will materially benefit from the Loans to be
made, and the Letters of Credit to be issued, under the Credit Agreement and
each Guarantor is a party (as signatory or by joinder) to a Guaranty pursuant to
which each Guarantor guarantees the Obligations of the Borrower; and
WHEREAS, as collateral security for payment and performance by each
Guarantor of its Guarantor's Obligations (as defined in the Guaranty to which
such Guarantor is a party) and for payment and performance of its obligations
and liabilities (whether now existing or hereafter arising) hereunder or under
any of the other Loan Documents to which it is now or hereafter becomes a party,
each Guarantor is willing to grant to the Administrative Agent for the benefit
of the Secured Parties a security interest in the Collateral pursuant to the
terms of this IP Security Agreement; and
WHEREAS, the Secured Parties are unwilling to enter into the Loan
Documents unless the Borrower and the Guarantors enter into this IP Security
Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and to make Loans and issue Letters of Credit, and in further
consideration of the premises and the mutual covenants contained herein, the
parties hereto agree as follows:
1. GRANT OF SECURITY INTEREST. The Borrower hereby grants as collateral
security for the payment, performance and satisfaction of all of the Borrower's
Obligations, and each Guarantor hereby grants as collateral security for the
payment, performance and satisfaction of all of its Guarantor's Obligations (as
defined in the Guaranty), and each of them hereby grants as collateral security
for the payment and performance of its obligations and liabilities (whether now
existing or hereafter arising) hereunder or under any of the other Loan
Documents to which it is now or hereafter becomes a party (such Borrower's
Obligations, Guarantor's Obligations and all other obligations and liabilities
of the Borrower and the other Grantors referred to collectively as the "Secured
Obligations"), to the Administrative Agent for the benefit of the Secured
Parties a continuing first priority security interest in and to, and
collaterally assigns to the Administrative Agent for the benefit of the Secured
Parties, the following property of such Grantor or in which such Grantor has or
may have or acquire an interest or the power to transfer rights therein, whether
now owned or existing or hereafter created, acquired or arising and wheresoever
located:
(a) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign patents and patent applications (including without limitation
the patents and patent applications identified on Schedule I attached
hereto and incorporated herein by reference) and including the right to
recover for all past, present and future infringements thereof and 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");
(b) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign trademarks, trade names, domain names, trade dress, service
marks, trademark and service mark registrations, and applications for
trademark or service mark registration and any renewals thereof
(including without limitation each trademark, trade name, domain name
and service mark registration and application identified in Schedule II
attached hereto and incorporated herein by reference) and including all
income, royalties, damages and payments now and hereafter due and/or
payable with respect thereto (including without limitation damages for
past or future infringements thereof), the right to sue or otherwise
recover for all past, present and future infringements thereof, all
rights corresponding thereto throughout the world (but only such rights
as now exist or may come to exist under applicable local law) and all
other rights of any kind whatsoever of each 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 such
trademark and service mark (collectively, the "Trademarks");
(c) all of such Grantor's right, title and interest, whether
now owned or hereafter acquired, in and to all United States and
foreign copyrights and copyright
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applications (including without limitation the copyright registrations
identified on Schedule III attached hereto and incorporated herein by
reference) and including the right to recover for all past, present
and future infringements thereof and all supplemental registrations,
renewals, and extensions thereof, and all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto
(collectively, the "Copyrights"); and
(d) all proceeds of any of the foregoing.
All of the property and interests in property described in clauses (a)
through (d) are herein collectively referred to as the "Collateral". The
security interests granted under this IP Security Agreement are herein referred
to as the "Security Interests."
2. PERFECTION. As of the date of execution of this IP Security
Agreement or an IP Security Joinder Agreement by each Grantor, as applicable
(with respect to each Grantor, its "Applicable Date"), such Grantor shall have
furnished the Administrative Agent with properly executed financing statements
in form, number and substance suitable for filing, sufficient under applicable
law, and satisfactory to the Administrative Agent in order that upon the filing
of the same the Administrative Agent, for the benefit of the Secured Parties,
shall have a duly perfected security interest in all Collateral in which a
security interest can be perfected by the filing of financing statements,
subject only to Liens allowed to exist and have priority under Section 7.01 of
the Credit Agreement ("Permitted Liens") with the effect that the Liens
conferred in favor of the Administrative Agent shall be and remain duly
perfected and of first priority. All financing statements (including all
amendments thereto and continuations thereof), certificates, acknowledgments,
instruments and other documents furnished in connection with the creation,
enforcement, protection, perfection or priority of the Administrative Agent's
security interest in or collateral assignment of Collateral, including such
items as are described above in this Section 2 or in Sections 3 and 4 below, are
sometimes referred to herein as "Perfection Documents". The delivery of
possession of items of or evidencing Collateral, causing other Persons to
execute and deliver Perfection Documents as appropriate, the filing or
recordation of Perfection Documents, the establishment of control over items of
Collateral, and the taking of such other actions as may be necessary or
advisable in the determination of the Administrative Agent to create, enforce,
protect, perfect, or establish or maintain the priority of, the security
interest of or collateral assignment to, the Administrative Agent for the
benefit of the Secured Parties in the Collateral is sometimes referred to herein
as "Perfection Action".
3. SECURITY FOR OBLIGATIONS. The Security Interests granted under this
IP Security Agreement by (a) the Borrower secure the payment, performance and
satisfaction of all of the Secured Obligations now or hereafter owing by the
Borrower and (b) each Guarantor to secure the payment, performance and
satisfaction of all of the Secured Obligations now or hereafter owing by such
Guarantor.
The Security Interests granted by this IP Security Agreement are
granted in conjunction with the security interests granted to the Administrative
Agent, for the benefit of the Secured Parties, in other assets of each Grantor
pursuant to the other Loan Documents.
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4. COLLATERAL ASSIGNMENT. In addition to, and not in limitation of, the
grant of the Security Interests in the Patents, Trademarks and Copyrights in
Section 1 above, each Grantor hereby grants, assigns, transfers, conveys and
sets over to the Administrative Agent, for the benefit of the Secured Parties,
the Grantor's entire right, title and interest in and to the Patents, Trademarks
and Copyrights; provided, that such grant, assignment, transfer, conveyance and
set over shall become effective only at the election of the Administrative Agent
following the occurrence of an Event of Default that is continuing at the time
of such election. Each Grantor hereby agrees that after the effectiveness of
such grant, assignment, transfer, conveyance and set over of any of the Patents,
Trademarks and Copyrights, the use by the Administrative Agent of any of such
Patents, Trademarks and Copyrights shall be without any liability for royalties
or other related charges from the Administrative Agent to any Grantor. In
furtherance of the foregoing, each Grantor has executed in blank and delivered
to the Administrative Agent an assignment of federally registered patents,
trademarks and copyrights (the "IP Assignment") owned by it in the form of
Exhibit A hereto, such blank assignments to be filed and/or otherwise used by
the Administrative Agent only upon the occurrence and during the continuance of
an Event of Default. Each Grantor hereby authorizes the Administrative Agent to
complete as assignee, execute, and record with the United States Patent and
Trademark Office (the "Patent and Trademark Office") and the United States
Copyright Office (the "Copyright Office") and with other applicable state and
federal agencies and authorities, each IP Assignment upon the occurrence of an
Event of Default that is continuing at the time of filing.
5. FURTHER ASSURANCES.
(a) Each Grantor agrees that from time to time, at the expense
of such Grantor, such Grantor will promptly execute and deliver all
further instruments and documents, including such other Perfection
Documents and take all further action and such other or additional
Perfection Action, as may be required by the terms of the Loan
Documents or as the Administrative Agent may reasonably request, in
order to (i) continue, perfect and protect any Security Interest or
collateral assignment granted or purported to be granted hereby, and
(ii) enable the Administrative Agent, for the benefit of the Secured
Parties, to exercise and enforce its rights and remedies hereunder with
respect to any part of the Collateral. Without limiting the generality
of the foregoing, each Grantor will execute and file (with the
appropriate governmental offices, authorities, agencies and regulatory
bodies) such joinders or supplements to this IP Security Agreement and
such financing or continuation statements, or amendments thereto, and
such other instruments or notices, including executed IP Assignments
(but the filing of such IP Assignments shall be effected only in
accordance with Section 4 above), with the Patent and Trademark Office
and the Copyright Office, as may be necessary or desirable, or as the
Administrative Agent, on behalf of the Secured Parties, may reasonably
request, in order to perfect and preserve the Security Interests and
collateral assignments granted hereby.
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(b) Each Grantor hereby authorizes the Administrative Agent,
on behalf of the Secured Parties, to file, where permitted by law, one
or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of
such Grantor. A carbon, photographic or other reproduction of this IP
Security Agreement or any financing statement covering the Collateral
or any part thereof shall be sufficient as a financing statement where
permitted by law.
(c) Each Grantor will furnish to the Administrative Agent, on
behalf of the Secured Parties, from time to time statements and
schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Administrative
Agent, on behalf of the Secured Parties, may reasonably request, all in
reasonable detail.
(d) Each Grantor agrees to maintain among its books and
records appropriate notations or evidence of, and to make or cause to
be made appropriate disclosure upon its financial statements or, the
Security Interests granted hereunder to the Administrative Agent for
the benefit of the Secured Parties.
(e) Each Grantor agrees that, should it have or obtain an
ownership interest in any material United States patent or patent
application that is not now identified on Schedule I, any material
trademark or trademark application that is not now identified on
Schedule II or any material copyright registration or copyright
application that is not now identified on Schedule III: (i) the
provisions of this IP Security Agreement shall automatically apply to
such item, and such item shall automatically become part of the
Collateral; (ii) such Grantor shall, within one month after acquiring
or becoming aware of such ownership interest, (A) give written notice
thereof to the Administrative Agent, (B) take all commercially
reasonable and appropriate steps to protect such material Patents,
Trademarks and Copyrights, as, for example, by filing applications for
their registration with the Patent and Trademark Office or the
Copyright Office, as applicable, and (C) with respect to such material
Patents, Trademarks and Copyrights, prepare, execute and file in the
Patent and Trademark Office or the Copyright Office, as applicable,
within the requisite time period, all documents that are known by such
Grantor to be necessary or that the Administrative Agent, on behalf of
the Secured Parties, reasonably requests in order to perfect the
Security Interest of the Administrative Agent, on behalf of the Secured
Parties, therein, including delivery to the Administrative Agent of an
executed IP Assignment. Each Grantor authorizes the Administrative
Agent, on behalf of the Secured Parties, to execute and file (subject
in the case of the filing of IP Assignments, to the limitation
contained in Section 4 above) such a document in the name of such
Grantor if such Grantor fails to do so.
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(f) Without limiting Article IIA or Section 6.14 of the Credit
Agreement, each Grantor agrees that should any of its Domestic
Subsidiaries (other than a Subsidiary which is a party hereto and
whether now or hereafter existing) obtain any ownership interest in any
intellectual property of a nature that would be Collateral hereunder if
owned by such Grantor, such Grantor shall either cause such Subsidiary
(i) to become a party hereto by executing an IP Security Joinder
Agreement and a party to the Guaranty by executing a Guaranty Joinder
Agreement and other Security Instruments in accordance with Section
6.14 of the Credit Agreement, or (ii) to transfer and assign, all such
Subsidiary's ownership interests therein to such Grantor, whereupon the
provisions of subsection (e) of this Section 5 shall be applicable
thereto.
(g) Each Grantor agrees: (i) to take all commercially
reasonable steps in any proceeding before the Patent and Trademark
Office, the Copyright Office or any similar office or agency in any
other country or any political subdivision thereof or in any court, to
maintain and pursue each patent application now or hereafter included
in the Collateral which the Grantor determines to be material to the
conduct of its business, and to maintain each such Patent, and each
Trademark or Copyright now or hereafter included in the Collateral that
such Grantor determines to be material to the conduct of its business,
including the filing of divisional, continuation, continuation-in-part
and substitute applications, the filing of applications for reissue,
renewal or extensions, the payment of fees, and the participation in
interference, reexamination, opposition and infringement proceedings,
to the extent commercially reasonable; (ii) to take corresponding steps
with respect to unpatented inventions which the Grantor determines to
be material to the conduct of its business and on which such Grantor is
now or hereafter becomes entitled to seek protection, including
maintaining the confidentiality of such inventions if filing a patent
application is not justified in the commercially reasonable judgment of
such Grantor; and (iii) to bear any expenses incurred in connection
with such activities.
(h) No Grantor shall do any act or omit to do any act whereby
any of the Collateral may become dedicated or abandoned, except where
such dedication or abandonment (i) will not cause, create or give rise
to a Material Adverse Effect, and (ii) is in the ordinary course of
such Grantor's business.
(i) Each Grantor agrees that in the event that any of the
Collateral which is material to the operation of its business and as to
which it has granted the Security Interests is infringed or
misappropriated by a third party, such Grantor shall take all
commercially reasonable steps to terminate the infringement or
misappropriation, and take such other commercially reasonable actions
as such Grantor shall deem appropriate under the circumstances to
protect such Collateral. Any expense incurred in connection with such
activities shall be borne by such Grantor.
6. GENERAL REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants as follows:
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(a) It has full power, legal right and lawful authority to
enter into this IP Security Agreement (and any IP Security Joinder
Agreement applicable to it) and to perform its terms, including the
grant of the Security Interests herein provided for.
(b) No authorization, consent, approval or other action by,
and no notice to or filing with, any Governmental Authority or other
regulatory body or any other Person is required either (i) for the
grant by such Grantor of the Security Interests granted hereby, or the
collateral assignment hereunder, or for the execution, delivery or
performance of this IP Security Agreement (or any IP Security Joinder
Agreement applicable to it) by such Grantor, or (ii) for the perfection
of or the exercise by the Administrative Agent, on behalf of the
Secured Parties, of its rights and remedies hereunder, except (x) with
respect to the Security Interests, the filing of this IP Security
Agreement with the Patent and Trademark Office and the Copyright
Office, as applicable, and the filings required by the Uniform
Commercial Code of the State in which such Grantor is formed, (y) with
respect to the consummation of assignment pursuant to Section 4 above,
the filing in the Patent and Trademark Office or the Copyright
Office, as applicable, of the IP Assignments, and (z) to the
extent that the exercise of rights and remedies may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors rights generally or by general
principles of equity.
(c) No action or proceeding is pending or, to such Grantor's
knowledge, threatened seeking to limit, cancel or question the validity
of any part of the Collateral, which such action or proceeding, if
determined adversely to such Grantor, could reasonably be expected to
have a Material Adverse Effect.
(d) It has not granted any release, covenant not to sue, or
non-assertion assurance to any third person with respect to any
material part of the Collateral.
(e) The actions contemplated under or in connection with the
Loan Documents will not impair the legal right of such Grantor to use
any of the Collateral.
(f) Except as set forth on Schedule 6(f) hereto, such Grantor
has no knowledge of the existence of any right under any patent,
trademark, license agreement, trade name, trade secret, know-how,
confidential research, development and commercial information, or other
proprietary information held by any other Person that would materially
interfere with the ability of such Grantor to carry on its business as
currently carried on, and such Grantor has no knowledge of any claim to
the contrary.
(g) None of such Grantor's Domestic Subsidiaries (except to
the extent that such Subsidiaries are also Grantors hereunder or
grantors under any other Security Instrument relating to such property)
has an ownership interest in any patents, patent applications,
copyrights, copyright applications, trademark, trade name, trade dress,
service marks, trademark or service mark registrations or any
applications for trademark or service mark registration or any other
intellectual property of a nature that would be Collateral hereunder if
owned by such Grantor.
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(h) No claim has been made, and such Grantor has no knowledge
of any claim, that the use by such Grantor of any Collateral does or
may violate the rights of any Person, to the extent that such claim
could reasonably be expected to have a Material Adverse Effect.
7. PATENT REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants as follows:
(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the material Patents purported to
be granted by it hereunder, free and clear of any Lien, security
interest, option, charge, pledge, registered user agreement, assignment
(whether conditional or not), or covenant, or any other encumbrance,
except for non-exclusive licenses as to which such Grantor is the
licensor, Permitted Liens, and the Security Interests created by this
IP Security Agreement. Upon and after the filing of certain UCC
termination statements and related releases obtained on or about the
date hereof in connection with (i) the closing of the Transaction
(including the payoff of Union Bank of California's credit facility
with the Seller) and (ii) the termination of the Existing Credit
Agreement, and the acceptance and filing of such UCC termination
statements and related releases by the appropriate jurisdictions and
Governmental Authorities, no financing statement or other instrument
similar in effect covering all or any part of the Patents purported to
be granted by such Grantor hereunder shall be on file in any recording
office, including, without limitation, the Patent and Trademark Office,
except such as may have been filed in favor of the Administrative
Agent, for the benefit of the Secured Parties.
(b) Set forth on Schedule I is a list of all of the Patents
owned by such Grantor and utilized in the conduct of its business as
currently conducted and material in such Grantor's operations or in the
selling or marketing of such Grantor's products or services.
(c) Each Patent of such Grantor identified on Schedule I
hereto is validly subsisting and has not been adjudged unpatentable,
invalid or unenforceable, in whole or in part, and to the knowledge of
such Grantor is patentable, valid and enforceable, and each of such
Patent applications has been filed in conformity with applicable rules
and procedures of the Patent and Trademark Office in all material
respects and will be prosecuted in conformity therewith so as not to
become improperly abandoned.
8. TRADEMARK REPRESENTATIONS AND WARRANTIES. Each Grantor represents
and warrants as follows:
(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the material Trademarks purported
to be granted by it hereunder, free and clear of any Lien, security
interest, option, charge, pledge, registered user agreement, assignment
(whether conditional or not), or covenant, or any other encumbrance,
except for non-exclusive licenses as to which such Grantor is the
licensor, Permitted Liens, and the Security Interests created by this
IP Security Agreement. Upon and after the filing of certain UCC
termination statements and related releases obtained on or about the
date
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hereof in connection with (i) the closing of the Transaction
(including the payoff of Union Bank of California's credit facility
with the Seller) and (ii) the termination of the Existing Credit
Agreement, and the acceptance and filing of such UCC termination
statements and related releases by the appropriate jurisdictions and
Governmental Authorities, no financing statement or other instrument
similar in effect covering all or any part of the Trademarks purported
to be granted by such Grantor hereunder shall be on file in any
recording office, including, without limitation, the Patent and
Trademark Office, except such as may have been filed in favor of the
Administrative Agent, for the benefit of the Secured Parties.
(b) Set forth on Schedule II is a list of all of the
Trademarks owned by such Grantor and utilized in the conduct of its
business as currently conducted and material in such Grantor's
operations or in the selling or marketing of such Grantor's products or
services.
(c) Except as expressly described on Schedule II, each
Trademark of such Grantor identified on Schedule II is validly
subsisting and has not been abandoned or adjudged invalid,
unregistrable or unenforceable, in whole or in part, and is, to such
Grantor's knowledge, valid, registrable and enforceable, and each
application for registration of any such Trademark has been filed in
conformity with applicable rules and procedures of the Patent and
Trademark Office in all material respects and will be prosecuted in
conformity therewith.
9. COPYRIGHT REPRESENTATIONS AND WARRANTIES. Each Grantor represents
and warrants as follows:
(a) It is the sole, legal and beneficial owner of the entire
right, title and interest in and to the material Copyrights purported
to be granted by it hereunder, free and clear of any Lien, security
interest, option, charge, pledge, registered user agreement, assignment
(whether conditional or not), or covenant, or any other encumbrance,
except for the Permitted Liens, Security Interests created or permitted
by this IP Security Agreement or the Credit Agreement. Upon and after
the filing of certain UCC termination statements and related releases
hereof in connection with (i) the closing of the Transaction (including
the payoff of Union Bank of California's credit facility with the
Seller) and (ii) the termination of the Existing Credit Agreement, and
the acceptance and filing of such UCC termination statements and
related releases by the appropriate jurisdictions and Governmental
Authorities, no financing statement or other instrument similar in
effect covering all or any part of the Copyrights purported to be
granted by such Grantor hereunder shall be on file in any recording
office, including, without limitation, the Copyright Office, except
such as may have been filed in favor of the Administrative Agent, for
the benefit of the Secured Parties.
(b) Set forth on Schedule III is a list of all of the
federally registered Copyrights owned by such Grantor and utilized in
the conduct of its business as currently
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conducted and material in such Grantor's operations or used in the
selling or marketing of such Grantor's products or services.
(c) Each Copyright of such Grantor identified on Schedule III
is validly subsisting and has not been abandoned or adjudged invalid,
unregistrable or unenforceable, in whole or in part, and is, to such
Grantor's knowledge, valid, registrable and enforceable, and each of
such Copyright applications has been filed in conformity with
applicable rules and procedures of the Copyright Office in all material
respects and will be prosecuted in conformity therewith so as not to
become improperly abandoned.
10. TRANSFERS AND OTHER LIENS. No Grantor shall:
(a) sell, assign (by operation of law or otherwise) or
otherwise dispose of any of, or grant any option with respect to, the
Collateral, except as permitted by the Credit Agreement or, with
respect to such Collateral as is not material to the business of such
Grantor, which may be transferred in the ordinary course of business,
except that any Grantor may license the Collateral either on an
exclusive or a non-exclusive basis (i) in the ordinary course of such
Grantor's business, provided that such license is necessary or
desirable in the conduct of such Grantor's business, or (ii) in
connection with a sale of assets in compliance with Section 7.05 of the
Credit Agreement. The Administrative Agent, for the benefit of the
Secured Parties, shall execute any documents that such Grantor may
reasonably request in order to permit the Grantor to exercise its right
hereunder to license the Collateral, provided that the Administrative
Agent shall not be required to do anything that may, in the sole
judgment of the Administrative Agent, adversely affect the validity of
the Security Interests;
(b) create or suffer to exist any Lien, security interest or
other charge or encumbrance upon or with respect to any of the
Collateral except for Permitted Liens or the Security Interests created
by this IP Security Agreement; or
(c) take any other action in connection with any of the
Collateral that would impair the value of the interest or rights of
such Grantor in the Collateral taken as a whole or that would impair
the interest or rights of the Administrative Agent for the benefit of
the Secured Parties.
11. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. Each Grantor
hereby appoints the Administrative Agent as the Grantor's attorney-in-fact for
the purposes of carrying out the provisions of this IP Security Agreement and
taking any action and executing any instrument which the Administrative Agent
may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest; provided, that the
Administrative Agent shall have and may exercise rights under this power of
attorney only upon the occurrence and during the continuance of an Event of
Default. Without limiting the generality of the foregoing, upon the occurrence
and during the continuance of an Event of Default, the Administrative Agent
shall have the right and power
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(a) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with clause (a)
above;
(c) to endorse such Grantor's name on any checks, notes,
drafts or any other payment relating to or constituting proceeds of the
Collateral which comes into the Administrative Agent's possession or
the Administrative Agent's control, and deposit the same to the account
of the Administrative Agent, for the benefit of the Secured Parties, on
account and for payment of the Secured Obligations.
(d) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent, for the benefit of the
Secured Parties, with respect to any of the Collateral; and
(e) to execute, in connection with any sale or other
disposition of Collateral provided for herein, any endorsement,
assignments, or other instruments of conveyance or transfer with
respect thereto.
12. ADMINISTRATIVE AGENT MAY PERFORM. If any Grantor fails to perform
any agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Grantor under
Section 16 hereof to the fullest extent permitted by applicable law. The
Administrative Agent agrees that, upon its performing or causing the performance
of any agreement contained herein, it will promptly provide notice thereof to
the Borrower, provided that the failure so to provide notice shall not affect
the obligation of the Borrower to pay amounts incurred in connection therewith
pursuant to this Section 12.
13. THE ADMINISTRATIVE AGENT'S DUTIES.
(a) The Administrative Agent shall be under no duty or
liability with respect to the collection, protection or preservation of
the Collateral, or otherwise, beyond the use of reasonable care in the
custody and preservation thereof while in its possession.
(b) Each Grantor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP and evidenced to the
satisfaction of the Administrative Agent and provided that all
enforcement proceedings in the nature of levy or foreclosure are
effectively stayed. Upon the failure of any Grantor to so pay or
contest such taxes, charges, Liens or assessments, or upon the failure
of any Grantor to pay any amount pursuant to this IP Security
Agreement, the Administrative
11
Agent at its option may pay or contest any of them (the Administrative
Agent having the sole right to determine the legality or validity and
the amount necessary to discharge such taxes, charges, Liens or
assessments) but shall not have any obligation to make any such
payment or contest. All sums so disbursed by the Administrative Agent,
including reasonable Attorneys' Costs, court costs, expenses and other
charges related thereto, shall be payable on demand by the applicable
Grantor to the Administrative Agent and shall be additional Secured
Obligations secured by the Collateral, and any amounts not so paid on
demand (in addition to other rights and remedies resulting from such
nonpayment) shall bear interest from the date of demand until paid in
full at the Default Rate.
(c) Each Grantor hereby irrevocably authorizes the
Administrative Agent to file (with, or to the extent permitted by
applicable law, without the signature of the Grantor appearing thereon)
financing statements (including amendments thereto and continuations
and copies thereof) showing such Grantor as "debtor" at such time or
times and in all filing offices as the Administrative Agent may from
time to time determine to be necessary or advisable to perfect or
protect the rights of the Administrative Agent and the Secured Parties
hereunder, or otherwise to give effect to the transactions herein
contemplated.
14. REINSTATEMENT. The granting of a security interest in the
Collateral and the other provisions hereof shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Secured
Obligations is rescinded or must otherwise be returned by any Secured Party or
is repaid by any Secured Party in whole or in part in good faith settlement of a
pending or threatened avoidance claim, whether upon the insolvency, bankruptcy
or reorganization of any Grantor or any other Loan Party or otherwise, all as
though such payment had not been made. The provisions of this Section 14 shall
survive repayment of all of the Secured Obligations and the termination or
expiration of this IP Security Agreement in any manner, including but not
limited to termination upon occurrence of the Facility Termination Date.
15. REMEDIES UPON AN EVENT OF DEFAULT. If an Event of Default shall
have occurred and be continuing:
(a) The Administrative Agent, for the benefit of the Secured
Parties, may exercise in respect of the Collateral of any defaulting
Grantor, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party upon default under the Uniform Commercial Code as in effect in
the State of New York (the "UCC") and also may (i) exercise any and all
rights and remedies of such Grantor under, in connection with, or
otherwise in respect of, such Collateral, including the completion and
filing of the IP Assignment, (ii) require such Grantor to, and each
Grantor hereby agrees that it will at its expense and upon request of
the Administrative Agent forthwith, assemble all or part of the
documents embodying such Collateral as directed by the Administrative
Agent and make it available to the Administrative Agent, for the
benefit of the Secured Parties, at a place to be designated by the
Administrative Agent that is reasonably convenient to both the
Administrative Agent and such Grantor, (iii) occupy any premises owned
or leased by such Grantor
12
where documents embodying such Collateral or any part thereof are
assembled for a reasonable period in order to effectuate the
Administrative Agent's rights and remedies hereunder or under
applicable law, without obligation to such Grantor in respect of such
occupation, (iv) license such Collateral or any part thereof, and (v)
without notice except as specified below, sell such Collateral or any
part thereof at public or private sale, at any of the Administrative
Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may
deem commercially reasonable. Each Grantor agrees that at least ten
days' notice to such Grantor of the time and place of any public sale
or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not
be obligated to make any sale of the Collateral regardless of notice
of sale having been given. The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) All payments received by any defaulting Grantor under or
in connection with any of such Collateral shall be received in trust
for the benefit of the Secured Parties, shall be segregated from other
funds of such Grantor and shall be immediately paid over to the
Administrative Agent, for the benefit of the Secured Parties, in the
same form as so received (with any necessary endorsement).
(c) The net cash proceeds resulting from the collection,
liquidation, sale, or other disposition of the Collateral of any
defaulting Grantor shall be applied first to the expenses (including
all Attorneys' Costs) owing pursuant to Section 16 hereof, of retaking,
holding, storing, processing and preparing for sale, selling,
collecting, liquidating and the like, and then to the satisfaction of
all Secured Obligations in accordance with the terms of Section 2.13
and, as applicable, Section 2.06(e)(iii) of the Credit Agreement. Each
Grantor shall be liable to the Administrative Agent, for the benefit of
the Secured Parties, and shall pay to the Administrative Agent, for the
benefit of the Secured Parties, on demand any deficiency which may
remain after such sale, disposition, collection or liquidation of the
Collateral.
16. EXPENSES. Each Grantor will upon demand pay to the Administrative
Agent the amount of any and all reasonable expenses, including Attorneys' Costs
and the reasonable fees and disbursements of any experts and agents, that the
Administrative Agent, for the benefit of the Secured Parties, may incur in
connection with (i) the custody, preservation, use or operation of, or the sale
of, collection from or other realization upon, any of the Collateral, (ii) the
exercise or enforcement of any of the rights of the Secured Parties, or (iii)
the failure by any Grantor to perform or observe any of the provisions hereof.
17. WAIVER. Each Grantor waives to the extent permitted by applicable
law (a) any right to require any Secured Party or any other obligee of the
Secured Obligations to (x) proceed against any Person or entity, including
without limitation any Loan Party, (y) proceed against or exhaust any Collateral
or other collateral for the Secured Obligations, or (z) pursue any other remedy
in its power; (b) any defense arising by reason of any disability or other
defense of any other Person, or by reason of the cessation from any cause
whatsoever of the liability of any
13
other Person or entity, (c) any right of subrogation, or (d) any right to
participate in any collateral or security whatsoever now or hereafter held by
the Administrative Agent for the benefit of the Secured Parties. Each Grantor
authorizes each Secured Party and each other obligee of the Secured Obligations
without notice (except notice required by applicable law) or demand and without
affecting its liability hereunder or under the Loan Documents from time to time
to: (i) take and hold security that may be granted to it, other than the
Collateral herein described, for the payment of such Secured Obligations or any
part thereof, and exchange, enforce, waive and release the Collateral herein
described or any part thereof or any such other security; and (ii) after the
occurrence and during the continuance of an Event of Default, apply such
Collateral or other security and direct the order or manner of sale thereof as
such Secured Party or obligee in its discretion may determine. Nothing in this
Section 17 is intended as a waiver of any Grantor's right to proceed against any
Secured Party in connection with any duty to protect the Collateral as provided
in Section 13(a) hereof or otherwise.
18. AMENDMENTS. No amendment, modification, or termination or waiver of
any provision of this IP Security Agreement nor consent to any departure by any
Grantor therefrom shall in any event be effective unless effected in accordance
with Section 10.01 of the Credit Agreement, then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
19. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT
(a) This IP Security Agreement shall create a continuing
Security Interest in the Collateral and shall remain in full force and
effect until terminated in accordance with the provisions of Section 29
hereof.
(b) Except as permitted by this IP Security Agreement or the
Credit Agreement, no Grantor shall sell, lease, transfer or otherwise
dispose of any item of Collateral during the term of this IP Security
Agreement without the prior written consent of the Required Lenders to
such sale, lease, transfer or other disposition.
(c) Upon the termination of this IP Security Agreement in
accordance with Section 29 hereof, the Collateral shall be
automatically released from the Liens created hereby, all rights to the
Collateral shall automatically revert to the Grantors, and this IP
Security Agreement and all obligations of the Grantors hereunder shall
terminate without delivery of any instrument or performance of any act
by any party. Upon such termination of this IP Security Agreement, the
Administrative Agent shall reassign and redeliver such Collateral then
held by or for the Secured Parties and execute and deliver to each
Grantor such documents as it shall reasonably request to evidence such
termination.
20. ADDITIONAL COLLATERAL. If any Grantor shall acquire or hold any
additional material Patents, Trademarks or Copyrights not listed on Schedules I,
II, or III hereto (any such Patents, Trademarks or Copyrights being referred to
herein as the "Additional Collateral"), such Grantor shall promptly deliver to
the Administrative Agent for the benefit of the Secured Parties a revised
Schedule I, II, or III hereto, as applicable, reflecting the ownership and
pledge of such
14
Additional Collateral. Each Grantor shall comply with the requirements of this
Section 20 concurrently with the acquisition of any such Additional Collateral.
21. JOINDER. Each Person who shall at any time execute and deliver to
the Administrative Agent an IP Security Joinder Agreement substantially in the
form attached as Exhibit A hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Grantor and
shall have thereupon pursuant to Section 1 hereof granted a security interest in
and collaterally assigned to the Administrative Agent for the benefit of the
Secured Parties all Collateral in which it has at its Applicable Date or
thereafter acquires any interest or the power to transfer, and all references
herein and in the other Loan Documents to the Grantors or to the parties to this
IP Security Agreement shall be deemed to include such Person as a Grantor
hereunder. Each IP Security Joinder Agreement shall be accompanied by the
Supplemental Schedules referred to therein, appropriately completed with
information relating to the Grantor executing such IP Security Joinder Agreement
and its property. Each of the applicable Schedules attached hereto shall be
deemed amended and supplemented without further action by such information
reflected on the Supplemental Schedules.
22. DEFINITIONS. All terms used herein unless otherwise defined herein
or in the Credit Agreement shall be defined in accordance with the appropriate
definitions appearing in the Uniform Commercial Code in effect in New York, and
such definitions are hereby incorporated herein by reference and made a part
hereof.
23. ENTIRE AGREEMENT. This IP Security Agreement and each IP Security
Joinder Agreement, together with the Credit Agreement and the other Loan
Documents, constitutes and expresses the entire understanding between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, inducements, commitments or conditions,
express or implied, oral or written, except as contained in the Loan Documents.
The express terms hereof and of the IP Security Joinder Agreements control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof or thereof. Neither this IP Security Agreement or any IP
Security Joinder Agreement nor any portion or provision hereof or thereof may be
changed, altered, modified, supplemented, discharged, canceled, terminated, or
amended orally or in any manner other than as provided in the Credit Agreement.
24. EVIDENCE OF LIEN. Each Grantor hereby consents and agrees that the
issuers of or obligors in respect of the Collateral shall be entitled to accept
the provisions hereof and of the IP Security Joinder Agreements as conclusive
evidence of the right of the Administrative Agent, on behalf of the Secured
Parties, to exercise its rights hereunder or thereunder with respect to the
Collateral, notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by any Grantor or any other Person to any of such
issuers or obligors.
25. BINDING AGREEMENT; ASSIGNMENT. This IP Security Agreement and each
IP Security Joinder Agreement, and the terms, covenants, conditions, rights and
remedies hereof, shall be binding upon and inure to the benefit of the parties
hereto, and to their respective successors and assigns; provided, however, that
no Grantor shall be permitted to assign this IP
15
Security Agreement, any IP Security Joinder Agreement or any interest herein or
therein or in the Collateral. Without limiting the generality of the foregoing
sentence of this Section 25, any Lender may assign to one or more Persons, or
grant to one or more Persons participations in or to, all or any part of its
rights and obligations under the Credit Agreement (to the extent permitted by
the Credit Agreement); and to the extent of any such assignment or participation
such other Person shall, to the fullest extent permitted by law, thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, subject however, to the provisions of the Credit Agreement,
including Article IX thereof (concerning the Administrative Agent) and Section
10.7 thereof (concerning assignments and participations.) All references herein
to the Administrative Agent and to the Secured Parties shall include any
successor thereof or permitted assignee, and any other obligees from time to
time of the Secured Obligations.
26. RELATED SWAP CONTRACTS. All obligations of each Grantor under or in
respect of Related Swap Contracts (which are not prohibited under the terms of
the Credit Agreement) to which any Lender or any Affiliate of any Lender is a
party, shall be deemed to be Secured Obligations secured hereby, and each Lender
or Affiliate of a Lender party to any such Related Swap Contract shall be deemed
to be a Secured Party hereunder with respect to such Secured Obligations;
provided, however, that such obligations shall cease to be Secured Obligations
at such time as such Person (or Affiliate of such Person) shall cease to be a
"Lender" under the Credit Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and only to
the extent expressly provided in the Loan Documents.
27. SEVERABILITY. The provisions of this IP Security Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this IP Security Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
28. COUNTERPARTS. This IP Security Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
29. TERMINATION. Subject to the provisions of Section 14, this IP
Security Agreement and each IP Security Joinder Agreement, and all obligations
of the Grantors hereunder (excluding those obligations and liabilities that
expressly survive such termination) shall terminate without delivery of any
instrument or performance of any act by any party on the Facility Termination
Date. For purposes of this IP Security Agreement, "Facility Termination Date"
means the date as of which all of the following shall have occurred: (a) the
Borrower shall have permanently terminated the credit facilities under the Loan
Documents by final payment in
16
full of all Outstanding Amounts, together with all accrued and unpaid interest
and fees thereon, other than (i) the undrawn portion of Letters of Credit and
(ii) all letter of credit fees relating thereto accruing after such date (which
fees shall be payable solely for the account of the Issuing Bank and shall be
computed (based on interest rates then in effect) on such undrawn amounts to the
respective expiry dates of the Letters of Credit), in each case as have been
fully Cash Collateralized or as to which other arrangements with respect thereto
satisfactory to the Administrative Agent and the L/C Issuer shall have been
made; (b) all Related Swap Contracts shall have been terminated, expired or Cash
Collateralized; (c) all Commitments shall have terminated or expired; and (d)
the Borrower shall have fully, finally and irrevocably paid and satisfied in
full all other Obligations (except for Obligations consisting of continuing
indemnities and other contingent Obligations of the Borrower or any Loan Party
that may be owing to any Agent-Related Person or any Lender pursuant to the Loan
Documents and expressly survive termination of this IP Security Agreement). Upon
such termination of this IP Security Agreement, the Administrative Agent shall,
at the request and sole expense of the Grantors, promptly deliver to the
Grantors such termination statements and IP Assignments and take such further
actions as the Grantors may reasonably request to terminate of record, or
otherwise to give appropriate notice of the termination of, any Lien conferred
hereunder.
30. NOTICES. Any notice required or permitted hereunder shall be given
(a) with respect to the Borrower, at the address for the giving of notice then
in effect under the Credit Agreement, (b) with respect to any Grantor, at the
address then in effect for the giving of notices to such Grantor under the
Guaranty to which it is a party, and (c) with respect to the Administrative
Agent or a Lender, at the Administrative Agent's address for the giving of
notice then in effect under the Credit Agreement. All such addresses may be
modified, and all such notices shall be given and shall be effective, as
provided in Section 10.02 of the Credit Agreement for the giving and
effectiveness of notices and modifications of addresses thereunder
31. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this IP
Security Agreement and each IP Security Joinder Agreement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any Credit Extensions referred to
herein or secured hereby.
17
32. GOVERNING LAW; WAIVERS.
(A) THIS IP SECURITY AGREEMENT AND EACH IP SECURITY JOINDER
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE (I) WITH RESPECT TO THOSE INSTANCES
IN WHICH THE APPLICABLE CHOICE OF LAWS RULES OF SUCH STATE, INCLUDING
SECTION 9-301 OF THE UCC, REQUIRE THAT THE MANNER OF CREATION OF A
SECURITY INTEREST IN SPECIFIC COLLATERAL OR THE MANNER OR EFFECT OF
PERFECTION OR NONPERFECTION OR THE RULES GOVERNING PRIORITY OR SECURITY
INTERESTS ARE TO BE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION, THEN
THE LAWS OF SUCH OTHER JURISDICTION SHALL GOVERN SUCH MATTERS, AND (II)
IN THOSE INSTANCES IN WHICH THE LAWS OF THE JURISDICTION IN WHICH
COLLATERAL IS LOCATED GOVERN MATTERS PERTAINING TO THE METHODS AND
EFFECT OF REALIZING ON COLLATERAL, SUCH LAWS SHALL BE GIVEN EFFECT WITH
RESPECT TO SUCH MATTERS.
(B) EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS IP SECURITY AGREEMENT OR ANY IP SECURITY JOINDER AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF
NEW YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY
OF THIS IP SECURITY AGREEMENT OR AN IP SECURITY JOINDER AGREEMENT,
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE
LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR
PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(C) EACH GRANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 30 OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
18
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS IP SECURITY AGREEMENT OR
ANY IP SECURITY JOINDER AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH GRANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE
JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE UNDER APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS IP SECURITY AGREEMENT OR
ANY IP SECURITY JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED
IN CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
EXPRESSLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING.
(F) EACH GRANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW]
19
IN WITNESS WHEREOF, the parties have duly executed this Intellectual
Property Security Agreement on the day and year first written above.
GRANTORS:
ALLTRISTA CORPORATION, a Delaware
corporation
By: /s/ Desiree DeStefano
-----------------------------------
Name: Desiree DeStefano
Title: Vice President
HEARTHMARK, INC., an Indiana corporation
By: /s/ Desiree DeStefano
-----------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA PLASTICS CORPORATION, an
Indiana corporation
By: /s/ Desiree DeStefano
-----------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ZINC PRODUCTS, L.P., an
Indiana limited partnership
By: Alltrista Newco Corporation, a Indiana
corporation, its general partner
By: /s/ Desiree DeStefano
--------------------------------
Name: Desiree DeStefano
Title: Vice President
Intellectual Property Security Agreement
Signature Page 1
QUOIN CORPORATION, a Delaware
corporation
By: /s/ Ian G. H. Asken
-------------------------------------
Name: Ian G. H. Asken
Title: Treasurer
ALLTRISTA NEWCO CORPORATION, an
Indiana corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
PENN VIDEO, INC., an Indiana corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
LAFAYETTE STEEL & ALUMINUM
CORPORATION, an Illinois corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
Intellectual Property Security Agreement
Signature Page 2
CASPERS TIN PLATE COMPANY, An Illinois
corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
UNIMARK PLASTICS, INC., a Pennsylvania
corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
LUMENX CORPORATION, an Ohio corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA UNIMARK, INC., an Indiana
corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
Intellectual Property Security Agreement
Signature Page 3
TRIENDA CORPORATION (F/K/A TRIENDA
NEWCO, INC.), a Indiana corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ACQUISITION I, INC., a
Delaware corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ACQUISITION II, INC., a
Delaware corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA ACQUISITION III, INC., a
Delaware corporation
By: /s/ Desiree DeStefano
-------------------------------------
Name: Desiree DeStefano
Title: Vice President
Intellectual Property Security Agreement
Signature Page 4
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Igor Suica
------------------------------------
Name: Igor Suica
Title: Vice President
Intellectual Property Security Agreement
Signature Page 5
EXHIBIT A
ASSIGNMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS
THIS ASSIGNMENT OF PATENTS, TRADEMARKS AND COPYRIGHTS (this
"Agreement") is made as of ______________ ___, 2002 by ALLTRISTA CORPORATION, a
Delaware corporation (herein referred to the "Borrower" and a "Grantor"), and
EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE BORROWER (each a "Guarantor" and a
"Grantor", and collectively with the Borrower, the "Grantors") in favor of BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States, as Administrative Agent (the "Administrative
Agent") for each of the lenders now or hereafter party to the Credit Agreement
(as defined below) (the "Secured Parties"). All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to that certain Credit Agreement dated as of April
[24], 2002 by and among the Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent and the Lenders (as from time to time
amended, revised, modified, supplemented, amended and restated, or replaced,
renewed, refunded or refinanced, the "Credit Agreement"), the lenders have made
available to the Borrower a term loan facility and a revolving credit facility
with a letter of credit sublimit and a swing line facility; and
WHEREAS, the Borrower and each Guarantor will materially benefit from
the Loans to be made, and the Letters of Credit to be issued, under the Credit
Agreement and each Guarantor is a party to a Guaranty pursuant to which each
Guarantor guarantees the Obligations of the Borrower; and
WHEREAS, each Grantor has entered into that certain Intellectual
Property Security Agreement (by joinder or otherwise) (the "IP Security
Agreement") dated as of April [24], 2002 pursuant to which each Grantor has
granted to the Administrative Agent for the benefit of the Secured Parties a
security interest in the Trademarks, Copyrights, and Patents defined below in
order to secure the Secured Obligations (as defined in the IP Security
Agreement).
WHEREAS, each Grantor (a) has adopted, registered and used and is using
the trademarks and service marks (the "Trademarks") identified on Annex I
hereto, and is the owner of the registrations of and pending registration
applications for such Trademarks in the United States Patent and Trademark
Office identified on Annex I hereto, (b) is the owner of and uses the copyright
registrations set forth on Annex II hereto (the "Copyrights"), and (c) is the
owner of and uses the patents, patent registrations and pending registration
applications set forth on Annex III hereto (the "Patents" and together with the
Trademarks and the Copyrights, the "Collateral"); and
A-1
WHEREAS, the Administrative Agent for the benefit of the Secured
Parties desires to acquire the Trademarks, the Copyrights, and the Patents and
the registrations thereof and applications therefor, as applicable, in
connection with the exercise of its remedies after the occurrence of an Event of
Default and pursuant to the terms of the IP Security Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, each Grantor does hereby assign, sell and transfer unto
the Administrative Agent all right, title and interest in and to the Trademarks,
Copyrights, and Patents, together with (i) the registrations of and applications
therefor, as applicable, (ii) 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, (iii) the goodwill of the
business symbolized by and associated with the Trademarks and the registrations
thereof, and (iv) the right to sue and recover for, and the right to profits or
damages due or accrued arising out of or in connection with, any and all past,
present or future infringements or dilution of or damage or injury to the
Trademarks, Copyrights, Patents or the registrations thereof or such associated
goodwill.
Each Grantor hereby grants to the Administrative Agent, for the benefit
of the Secured Parties, and notice is hereby given that each Grantor has granted
to the Administrative Agent, for the benefit of the Secured Parties, a first
priority security interest in the Collateral to secure the payment and
performance in full of all Secured Obligations (as defined in the IP Security
Agreement) and all obligations of each Grantor under its respective Guaranty (if
applicable) and any other Loan Documents to which it is a party.
This Agreement is intended to and shall take effect as a sealed
instrument at such time as the Administrative Agent shall complete this
instrument by signing its acceptance of this IP Security Agreement below.
IN WITNESS WHEREOF, the parties have duly executed this Assignment of
Patents, Trademarks and Copyrights on the day and year first written above.
GRANTORS:
________________________________________________
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
________________________________________________
By: ____________________________________________
Name: __________________________________________
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Title: _________________________________________
________________________________________________
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
The foregoing Assignment of the Patents, Trademarks and Copyrights and
the registrations thereof and registration applications therefor by the Grantors
is hereby accepted as of the ___ day of ____________, 20__.
BANK OF AMERICA, N.A.,
as Administrative Agent
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
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