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EXHIBIT 10.5.4
EXHIBIT E TO NOTE AND WARRANT PURCHASE AGREEMENT
(Form of Intellectual Property Security Agreement)
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of
September 23, 1998 (as from time to time amended, modified or supplemented in
accordance with the terms hereof, this "Agreement"), is made and entered into by
and among EACH SIGNATORY HERETO (each individually, together with its successors
and assigns, a "Grantor", and collectively, the "Grantors" ), as debtors, and
NOMURA HOLDING AMERICA INC., a Delaware corporation (together with its
successors, assigns and transferees, the "Purchaser"), as secured party.
W I T N E S S E T H:
WHEREAS, pursuant to the Note and Warrant Purchase Agreement
dated as of the date hereof (as from time to time amended, modified or
supplemented in accordance with the terms thereof, the "Note Purchase
Agreement"), by and among Easyriders, Inc., a Delaware corporation (the
"Parent"), Easyriders Sub II, Inc. (to be merged with and into Paisano
Publications, Inc.), a California corporation (the "Company") and the Purchaser,
the Purchaser has agreed to purchase the Notes of the Company referred to in the
Note Purchase Agreement upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Grantors (other than the Company) have executed and
delivered to the Purchaser a Guarantee dated as of the date hereof (as from time
to time amended, modified or supplemented in accordance with the terms thereof,
the "Guarantee"), pursuant to which such Grantors have guaranteed the
Obligations of the Company under, and as defined in, the Note Purchase
Agreement;
WHEREAS, the Grantors have also executed and delivered to the
Purchaser a Pledge and Security Agreement dated as of the date hereof (as from
time to time amended, modified or supplemented in accordance with the terms
thereof, the "Security Agreement"), pursuant to which the Grantors have pledged
and granted to the Purchaser a security interest in all of their personal
property (other than their intellectual property) as collateral security for the
Secured Obligations (as defined below); and
WHEREAS, it is a condition precedent to the obligations of the
Purchaser to purchase, and to continue to purchase, the Notes and to extend
credit thereunder and under the Note Purchase Agreement that the Grantors shall
have executed and delivered
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this Agreement to pledge and grant to the Purchaser a security interest in all
of the Grantors' intellectual property as collateral security for the Secured
Obligations;
NOW, THEREFORE, in consideration of the premises set forth above
and to induce the Purchaser to purchase, and to continue to purchase, the Notes
and to extend credit thereunder and under the Note Purchase Agreement, the
Grantors hereby agree with the Purchaser as follows:
Section 1. Defined Terms.
1.1. Definitions. Unless otherwise defined herein, terms defined
(or defined by reference) in the Note Purchase Agreement, as applicable, and
used herein shall have the meanings given to them in such other agreement.
1.2. Other Definitions. The following terms shall have the
following meanings:
"Agreement" has the meaning specified in the Preamble.
"Code" means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral" has the meaning specified in Section 2 of this
Agreement.
"Copyrights" has the meaning specified in Section 2.1(c) of this
Agreement.
"License Agreements" means all license agreements entered into by
each Grantor, whether as licensor or licensee, providing for the license of
trademarks, patents, copyrights, technology and related or similar rights, as
the same may be renewed, extended or modified, and all rights of the Grantors in
connection with any of the foregoing and in connection with any agreement
related thereto.
"Patents" has the meaning specified in Section 2.1(b) of this
Agreement.
"Proceeds" means all "proceeds" and "products" as defined in the
Code and includes, without limitation and whether or not the following
constitute proceeds under the Code, (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to each Grantor from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to each Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental Body (or any
Person acting under color of Governmental Body), and (iii) any claims by each
Grantor against third parties for infringement of the trademarks, patents or
copyrights belonging to such Grantor and any royalties from licenses to third
parties thereof, and (iv) any and all other amounts from time to time paid or
payable to each Grantor upon the sale, exchange, collection or other disposition
of, or under or in connection with, any part of the Collateral.
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"Secured Obligations" means, collectively, (i) in the case of the
Company, all of its Obligations under the Note Purchase Agreement and (ii) in
the case of the other Grantors, all of their obligations under the Guarantee.
"Trademarks" has the meaning specified in Section 2.1(a) of this
Agreement.
1.3. Miscellaneous Definitional Provisions. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
1.4. Singular and Plural Form. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms.
1.5. Annexes. All references to Annexes to this Agreement include
such Annexes as amended, modified or supplemented pursuant to the terms of this
Agreement.
Section 2. Grant of Security Interest.
2.1. Collateral. As collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations, the Grantors jointly and
severally hereby grant to the Purchaser, a security interest in all of the
following property now owned or at any time hereafter acquired or created by the
Grantors or in which the Grantors now have or at any time in the future may
acquire or create any right, title or interest (collectively, the "Collateral"):
(a) trademarks, trade names, trade styles, service marks, logos,
emblems, prints and labels, all elements of package or trade dress of goods and
services, and all general intangibles of like nature, together with the goodwill
of each Grantor's business connected with the use thereof and symbolized
thereby, and all applications, registrations and recordings thereof, including,
without limitation, applications, registrations and recordings in the United
States Patent and Trademark Office, or in any similar office or agency of the
United States, or in any office of the Secretary of State (or equivalent) of any
state thereof, or in any similar office or agency of any country or political
subdivision thereof throughout the world, including, but not limited to, those
described in Annex A (as from time to time amended, modified or supplemented in
accordance with the terms hereof) attached hereto and made a part hereof,
together with all extensions, renewals and corrections thereof and all licenses
thereof or pertaining thereto, including, without limitation, the License
Agreements with respect thereto (all of the foregoing assets encompassed by this
subparagraph (a) being hereinafter collectively referred to as the
"Trademarks");
(b) letters patent and applications therefor, and all
registrations and recordings thereof, including, without limitation,
applications, registrations and
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recordings in the United States Patent and Trademark Office, or in any similar
office or agency of the United States, or any state thereof, or in any similar
office or agency of any country or political subdivision thereof throughout the
world, including, but not limited to, those described in Annex B (as from time
to time amended, modified or supplemented in accordance with the terms hereof)
attached hereto and made a part hereof, together with all re-examinations,
reissues, continuations, continuations-in-part, divisions, improvements and
extensions thereof and all licenses and claims for infringement thereof or
pertaining thereto including, without limitation, the License Agreements with
respect thereto, and the rights to make, use and sell, and all other rights with
respect to, the inventions disclosed or claimed therein, all inventions,
designs, proprietary or technical information, know-how, other data or
information, software, databases, all embodiments or fixations thereof and
related documentation, and all other trade secret rights not described above
(all of the foregoing assets encompassed by this subparagraph (b) being
hereinafter collectively referred to as the "Patents");
(c) copyrights in works of authorship of any kind, and all
applications, registrations and recordings thereof in the Office of the United
States Register of Copyrights, Library of Congress, or in any similar office or
agency of any country or political subdivision thereof throughout the world,
together with all extensions, renewals and corrections thereof and all licenses
and claims for infringement thereof or pertaining thereto, including, without
limitation, the License Agreements with respect thereto (all of the foregoing
assets encompassed by this subparagraph (c) hereinafter collectively referred to
as the "Copyrights");
(d) all customer lists and other records of each Grantor relating
to the distribution of products bearing the Trademarks, Patents and Copyrights;
and
(e) to the extent not otherwise included, all Proceeds of any and
all of the foregoing, including, without limitation, the Proceeds from any
claims by each Grantor against third parties for infringement of the Trademarks,
Patents or Copyrights and any royalties from licenses of the Trademarks, Patents
or Copyrights.
Section 3. Perfection. Prior to or concurrently with the delivery and
execution of this Agreement, each Grantor shall file or execute and deliver for
filing such financing statements, assignments for security and other documents
in such offices and take such other actions as may be required by the Purchaser
under Section 5.1 hereof or as the Purchaser may otherwise reasonably request to
perfect the security interests granted by this Agreement. Each Grantor shall
further take such other action (including the timely filing of continuation
statements or other similar documents) in order to continue the perfection of
the security interests granted under this Agreement in such offices as may be
necessary or as the Purchaser shall request to continue the perfection of such
interests, including, without limitation, any such action as may be required or
requested pursuant to Section 5.2 or 5.9 hereof.
Section 4. Representations and Warranties. The Grantors, jointly and
severally, hereby represent and warrant that:
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4.1. Title to Trademarks. Each Grantor has the sole legal and
equitable title and ownership of each of the Trademarks set forth on Annex A
hereto under such Grantor's name for the goods and services with which the
Trademarks are used, and any registrations thereof are valid and subsisting and
in full force and effect.
4.2. Use of Trademarks. Each Grantor (either itself or through
its licensees) will continue to use its Trademarks on each and every trademark
class of goods applicable to its current lines of goods as reflected in its
current catalogs, brochures and price lists in order to maintain its Trademarks
in full force and effect, in the ordinary course of business, free from any
claim of abandonment for nonuse and each Grantor will not (and will not permit
any licensee thereof to) do any act or omit to do any act whereby such Trademark
may become invalidated; provided, however, that any Grantor may choose to
abandon such Trademark or take any action or refuse or omit to take any action
whereby such Trademark may be abandoned if, in such Grantor's reasonable
business judgment, to do so is in the best business interests of such Grantor's
business. Prior to the intentional abandonment of any such Trademark by a
Grantor, such Grantor agrees to notify the Purchaser in writing.
4.3. Title to Patents. Each Grantor has the sole beneficial
ownership of each of the Patents set forth on Annex B hereto under the Grantor's
name and such patents are valid and subsisting and in full force and effect and
have not been claimed or adjudged invalid or unenforceable in whole or in part.
Each Grantor shall diligently prosecute any patent application now pending or
acquired or made by it during the term of this Agreement, shall make
applications on unpatented but patentable inventions, and shall preserve and
maintain all rights of any kind in such Patents, which, in each case, such
Grantor believes in its reasonable business judgment is in the best business
interests of such Grantor. None of such Patents have been abandoned or, to the
knowledge of the Grantors, dedicated, and no Grantor will do any act, or omit to
do any act, nor permit any licensee thereof to do any act, whereby any such
Patent may become abandoned or dedicated and shall notify the Purchaser
immediately if it knows of any reason why or has reason to know that any such
Patent may become abandoned or dedicated; provided, however, that any Grantor
may choose to abandon or dedicate any Patent, if, in the Grantor's reasonable
business judgment, to do so is in the best business interests of such Grantor's
business. Prior to the intentional abandonment or dedication of any such Patent
by a Grantor, such Grantor agrees to notify the Purchaser in writing.
4.4. Title to Copyrights. Each Grantor has the sole, full and
clear title to each of the Copyrights set forth under such Grantor's name on
Annex C hereto and any registrations thereof are valid and subsisting and in
full force and effect. Each Grantor (either itself or through its licensees)
will place appropriate notice of copyright on all copies embodying such
copyrighted works which are hereafter publicly distributed and no Grantor will
(and will not permit any licensee thereof to) do any act or omit to do any act
whereby any such Copyright may become invalidated or dedicated to the public
domain; provided, however, that any Grantor may choose to abandon or dedicate
any such Copyright or permit the same to become abandoned, dedicated or
invalidated if, in such Grantor's reasonable business judgment, to do so is in
the best business interests of such Grantor's business. Prior to the intentional
abandonment, dedication or invalidation of any Copyright by a Grantor, such
Grantor agrees to notify the Purchaser in writing.
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4.5. Perfected First Priority Liens. The security interests granted
by the Grantors pursuant to this Agreement (a) upon completion of the filings
and other actions specified in Section 5 hereof (and any necessary filings under
the Uniform Commercial Code contemplated by the Security Agreement) will
constitute perfected security interests in the Collateral located in the United
States of America in favor of the Purchaser, (b) are prior, to the extent such
Liens in such Collateral can be perfected by filing or possession, to all other
Liens on the Collateral in existence on the date hereof, and (c) are enforceable
as such against all creditors of and purchasers from the Grantors.
4.6. Other Agreements; No Other Liens. The Grantors have not entered
into any oral or written agreements which would prevent the Grantors from
complying with the terms hereof. Except for the security interest granted to the
Purchaser pursuant to this Agreement, and except as contemplated by Section 4.5
hereof, the Grantors own each item of the Collateral free and clear of any and
all Liens. No security agreement, financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Purchaser pursuant
to this Agreement or the other Security Documents.
4.7. No Other Trademarks or Patents. As of the date of this
Agreement the Grantors have no registered Trademarks or Patents other than those
described in Annexes A and B hereto.
Section 5. Covenants. The Grantors, jointly and severally, covenant and
agree with the Purchaser, that from and after the date of this Agreement until
this Agreement is terminated and the security interests created hereby are
released:
5.1. Perfection of Security Interest. Each Grantor will promptly
perform all acts and execute all grants of security in forms suitable for
recording with the United States Patent and Trademark Office and the United
States Register of Copyrights, substantially in the form of Appendices I, II and
III hereto, and make all other filings and registrations requested by the
Purchaser at any time to evidence, perfect, maintain, record or enforce the
Purchaser's interest in Collateral or otherwise in furtherance of the provisions
of this Agreement; provided, however, that no Grantor shall be required to
execute Appendix I with respect to a trademark or service mark application
based on intent-to-use until such time as an amendment to allege use or
statement of use is filed and accepted by the United States Patent and
Trademark Office and such mark is actually used in commerce.
5.2. Acquisition of New Rights to Trademarks, Patents, and
Copyrights. In the event that any Grantor, either itself or through any
Subsidiary, affiliate, agent, employee, licensee or designee, shall adopt,
acquire or obtain rights to or enter into any License Agreement (other than any
License Agreement for the use of computer software or other works of authorship
which are generally available at commercially reasonable prices) in connection
with any Trademark, Patent or Copyright or work for which a trademark, patent or
copyright application has been or is expected to be filed, or become entitled to
the benefit of any Trademark, Patent or Copyright, (a) such Grantor shall inform
the Purchaser of any such event or action in quarterly reports which it shall
deliver to the Purchaser pursuant to Section 7(o) of the Note Purchase Agreement
and (b) such Grantor shall execute and deliver (or cause its Subsidiary to
execute and deliver, as the case may be) such grants of security substantially
in the form of Appendix I, II, or III hereto, as the case may be, or any and all
other assignments,
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registrations, filings, agreements, instruments, documents and papers as are
necessary or appropriate or as the Purchaser may request to evidence the
Purchaser's interest in such Collateral; provided, however, that no Grantor will
adopt, acquire or obtain rights or enter into any such License Agreement in
connection with any Trademark, Patent or Copyright or work for which a
trademark, patent or copyright application has been or is expected to be filed,
which prohibits or restricts the pledge, transfer, assignment or hypothecation
of such rights or such License Agreement without the Purchaser's written
consent; provided further, however, that no Grantor shall be required to execute
Appendix I with respect to a trademark or service mark application based on
intent-to-use until such time as an amendment to allege use or statement of use
is filed and accepted by the United States Patent and Trademark Office and such
mark is actually used in commerce. At the time of each quarterly report pursuant
to this paragraph, the Grantors will also deliver to the Purchaser supplemental
annexes to the Annexes hereto to include any future Trademark, Patent or
Copyright registrations or applications which may be acquired or made by the
Grantors.
5.3. No Conveyance of Rights in Collateral. Except to the extent
that the Purchaser, upon prior written notice from the Grantors, shall consent,
or to the extent permitted by the Note Purchase Agreement, the Grantors will not
assign, sell, lease, transfer, hypothecate, grant, incur, permit or suffer to
exist a Lien upon, grant an exclusive license, or otherwise dispose of any of
the Collateral pledged by the Grantors, and nothing in this Agreement shall be
deemed a consent by the Purchaser to any such action except as expressly
permitted herein. The Grantors shall maintain the security interest created by
the Grantors under this Agreement and will defend the Collateral pledged by the
Grantors against and take such other action as is necessary to remove any Lien
on the Collateral other than a Permitted Lien.
5.4. Maintenance of Rights in Collateral. The Grantors will take all
necessary steps in any proceeding before the United States Patent and Trademark
Office, the United States Register of Copyrights, Library of Congress, or
similar office or agency of the United States or any office of the Secretary of
State (or equivalent) of any state or province thereof, to obtain and maintain
each application and registration of the Collateral pledged by the Grantors,
including, without limitation, filing of renewals, extensions, affidavits of use
and incontestability, and opposition, interference and cancellation proceedings
(except to the extent that dedication, abandonment or invalidation is permitted
under this Agreement). Each Grantor shall notify the Purchaser promptly in
writing if any application or registration relating to any Collateral owned by
it may become abandoned or dedicated or subject to an adverse final
determination in any proceeding in the United States Patent and Trademark
Office, the United States Register of Copyrights, Library of Congress, or in any
similar office or agency of any country or political subdivision thereof
throughout the world or in any court regarding such Grantor's ownership of such
Patent or Trademark, its right to register same, or to keep or maintain the
validity of same.
5.5. Infringement or Misappropriation of Rights in Collateral. In
the event that any Copyright, Patent or Trademark is infringed, misappropriated,
diluted or otherwise being impaired by a third party, Grantor shall notify
Purchaser promptly after it learns thereof and shall, unless Grantor shall
reasonably determine that any such action would be of negligible economic value
or not have a Material Economic Affect, promptly sue for infringement,
misappropriation
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violation of this Agreement, abandon any such Trademark, Patent or Copyright of
such Grantor, and such Grantor shall take such other actions reasonably required
to protect such Trademark, Patent or Copyright as such Grantor shall deem
appropriate in its reasonable business judgment under the circumstances. Upon
and during the continuance of an Event of Default, the Purchaser shall have the
right, but in no way shall be obligated, to bring suit in its own name to
enforce the Trademarks, Patents and Copyrights and any licenses thereunder, in
which event such Grantor shall, at the request of the Purchaser, do any and all
lawful acts reasonably requested by the Purchaser and execute any and all
documents reasonably required by the Purchaser to aid such enforcement, and such
Grantor shall, upon demand, promptly reimburse and indemnify the Purchaser for
all costs and expenses incurred in such enforcement.
5.6. Marking of Records; Inspection. Each Grantor shall maintain at
its own cost and expense complete and accurate records of the Collateral owned
by it, including, without limitation, a record of all payments received and all
credits granted with respect to the Collateral and all other dealings with the
Collateral. Each Grantor will mark its books and records pertaining to the
Collateral to evidence this Agreement and the security interests created hereby.
The Purchaser shall have a security interest in all of the Grantor's books and
records pertaining to the Collateral and, upon the occurrence and during the
continuation of any Event of Default, the Grantors shall deliver and turn over
any such books and records (or true and complete copies thereof to the Purchaser
at any time on demand. Each Grantor shall allow any representative of the
Purchaser to inspect such books and records at any time during reasonable
business hours on reasonable notice and will provide photocopies thereof at such
Grantor's expense to the Purchaser upon request of the Purchaser.
5.7. Payment of Taxes; etc. Each Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral owned by it as and to the extent provided in Section 9.2 of
the Note Purchase Agreement.
5.8. Changes in Locations, Name, etc. Except as provided in Section
10.16 of the Note Purchase Agreement, no Grantor will (a) change the location of
its chief executive offices from that specified in the other Security Documents
to which it is a party; or (b) change its name, identity or corporate structure
to such an extent that any financing statement or other document filed in
connection with this Agreement would become seriously misleading.
5.9. Maintenance of Perfected Security Interest; Further Assurances.
At any time and from time to time, upon the written request of the Purchaser,
and at the sole expense of each Grantor, such Grantor will promptly and duly
execute, deliver, file and record such further instruments and documents
(including, without limitation, any financing statements and amendments thereto,
continuation statements and notices under the Uniform Commercial Code in effect
in any jurisdiction with respect to the security interests created hereby) and
take such further action as the Purchaser may reasonably request for the purpose
of effectuating the transactions contemplated by the Note Purchase Agreement and
obtaining and preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, causing any or all
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of the Collateral to be transferred of record into the name of the Purchaser or
nominee following the occurrence and during the continuance of an Event of
Default; provided that in the absence of such request by the Purchaser, no
Grantor shall be relieved of its obligations under Section 3 of this Agreement.
Section 6. Remedies. At any time after and during the continuation of an
Event of Default, the Purchaser shall have the following rights and remedies,
all such rights and remedies being cumulative, not exclusive and enforceable
alternatively, successively or concurrently, without (except as provided herein)
notice to, or consent by, the Grantors:
6.1. Enforcement of Rights. The Purchaser may (without assuming any
obligations or liability thereunder) enforce (and shall have the exclusive right
to enforce) against any licensee or sublicensee all rights and remedies of the
Grantors in, to and under any one or more License Agreements with respect to the
Collateral, and take or refrain from taking any action under any thereof, and
the Grantors hereby release the Purchaser from, and agree to hold the Purchaser
free and harmless from and against any claims arising out of, any action taken,
or omitted to be taken with respect to any such License Agreement other than
those arising out of the gross negligence or willful misconduct of the
Purchaser.
6.2. Power to Dispose of Collateral. The Purchaser may, upon ten
(10) days' prior notice to the Grantors, (a) assign, sell, or otherwise dispose
of the Collateral or any of it, either with or without special or other
conditions or stipulations, and do all other acts and things for completing the
assignment, sale or disposition which the Purchaser shall, in its sole
discretion, deem appropriate or proper and the Purchaser shall have the power to
buy all or any part of the Collateral and (b) prohibit the Grantors from making
any use of the Trademarks or any mark similar thereto or the Patents or
Copyrights for any purpose.
6.3. Power to License Collateral. The Purchaser may, upon ten (10)
days' prior notice to the Grantors, require the Grantors to license any of the
Trademarks, Patents or Copyrights, which are not subject to an exclusive
license, for such term or terms, on such conditions, and in such manner, as the
Purchaser shall in its sole discretion determine; provided, however, that the
licensee shall be an entity in a business substantially similar to the business
engaged in by the Grantors on the date hereof.
6.4. Execution of Instruments. In addition to the foregoing, in
order to implement the assignment, sale, license or other disposal of any of the
Collateral pursuant to Sections 6.1, 6.2(a) and 6.3 hereof, the Purchaser may
execute and deliver on behalf of the Grantors one or more instruments of
assignment, sale, license or other disposition of the Collateral. Each Grantor
agrees to pay when due all expenses and costs incurred in any such transfer of
the Collateral owned by it, including any taxes and reasonable attorneys' fees.
The Purchaser may apply the proceeds actually received from any such license,
assignment, sale or other disposition in payment of the Secured Obligations.
Nothing herein contained shall be construed as requiring the Purchaser to take
any such action at any time.
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6.5. Proceeds to be Turned Over to the Purchaser. If an Event of
Default shall occur and be continuing, then upon the Purchaser's request all
Proceeds received by any Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Purchaser, segregated from
other funds of such Grantor, and shall, forthwith upon receipt by such Grantor,
be turned over to the Purchaser in the exact form received by such Grantor (duly
endorsed by such Grantor to the Purchaser, if required) and held by the
Purchaser in the Collateral Account maintained by the Purchaser pursuant to the
Security Agreement.
6.6. Application of Proceeds. All Proceeds while held by the
Purchaser in such Collateral Accounts (or by any Grantor in trust for the
Purchaser) shall continue to be held as collateral security for all the Secured
Obligations and shall not constitute payment thereof until applied as provided
in the Security Agreement.
6.7. Code Remedies. (a) If an Event of Default shall occur and be
continuing, the Purchaser may exercise, in addition to all other rights and
remedies granted to it in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Secured Obligations, all
rights and remedies of a secured party under the Code and such additional rights
and remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted to
exercise all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Purchaser was the sole and absolute owner thereof (and the
Grantors, jointly and severally, agree to take all such action as may be
necessary or appropriate to give effect to such right). Without limiting the
generality of the foregoing, after the occurrence and during the continuance of
an Event of Default, the Purchaser, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to the Grantors or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived to the extent allowed by law), may in such circumstances forthwith
collect, receive, appropriate, realize upon, sell, lease, assign, give option or
options to purchase, or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Purchaser or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Purchaser may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the sale may be so adjourned. The Purchaser shall have the
right upon any such public sale or sales, and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Grantors,
which right or equity is hereby waived or released. Each Grantor further agrees,
at the Purchaser's request, to assemble the Collateral and make it available to
the Purchaser at places which the Purchaser shall reasonably select, whether at
such Grantor's premises or elsewhere.
(b) The Purchaser shall apply the net Proceeds of any
collection, recovery, receipt, appropriation, realization or sale of Collateral,
after
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deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Purchaser hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Secured Obligations, in such order as the Purchaser
may elect consistent with the terms of the Note Purchase Agreement, and only
after such application and after the payment by the Purchaser of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Purchaser account for the surplus, if any, to
the Grantors. To the extent permitted by applicable law, the Grantors waive all
claims, damages and demands it may acquire against the Purchaser arising out of
the exercise by it of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition.
6.8. Deficiency. The Grantors shall remain jointly and severally
liable for any deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay the Secured Obligations of the Grantors
and the costs, fees and expenses of disposing of the Collateral of the Grantors.
Section 7. Purchaser's Appointment as Attorney-in-Fact; Purchaser's
Performance of the Grantors' Secured Obligations.
7.1. Powers. Effective upon and during the continuance of an Event
of Default, each Grantor hereby irrevocably constitutes and appoints the
Purchaser and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of such Grantor and in the name of such Grantor or in its
own name, from time to time in the Purchaser's discretion, for the purpose of
carrying out the terms of this Agreement and to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Purchaser the power and right, on behalf of such Grantor, without notice to or
assent by such Grantor, to do the following:
(a) to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral;
(b) to execute, in connection with any sale provided for in Sections
6.2 or 6.7 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral;
(c) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due thereunder
directly to the Purchaser or as the Purchaser shall direct;
(d) to ask or demand for, collect, receive payment of and receipt
for, any and all moneys, cash and non-cash Proceeds, claims and other amounts
due or to become due at any time in respect of or arising out of any Collateral;
-11-
12
(e) to sign and endorse any assignments, verifications, notices and
other documents in connection with any of the Collateral;
(f) to commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction or before any
administrative agency to collect the Collateral or any part thereof and to
enforce any other right in respect of such Collateral;
(g) to defend any suit, action or proceeding brought against any
Grantor with respect to any Collateral;
(h) to settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, to give such discharges or releases as
the Purchaser may deem appropriate;
(i) generally, to sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely
as though the Purchaser were the absolute owner thereof for all purposes, and to
do, at the Purchaser's option and such Grantor's expense, at any time, or from
time to time, all acts and things which the Purchaser deems necessary to
protect, preserve or realize upon the Collateral and the Purchaser's security
interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do;
(j) to release its interest in, make exchanges or substitutions for
and/or surrender, all or any part of such Grantor's interest in all or any part
of the Collateral;
(k) to remove from such Grantor's place(s) of business all books,
records, ledger sheets, correspondence, invoices and documents relating to or
evidencing any of the Collateral (so long as the Purchaser shall supply copies
of all documents removed within a reasonable time after removal), or without
cost or expense to the Purchaser to make such use of such Grantor's place(s) of
business as may be reasonably necessary to administer, control and/or collect
the Collateral;
(l) to endorse the name of such Grantor upon any items of payment
relating to the Collateral or upon any proof of claim in bankruptcy against any
account debtor; and
(m) to file financing statements and continuation statements
covering the Collateral and execute the same on behalf of such Grantor.
7.2. Performance by the Purchaser of the Secured Obligations. If any
Grantor fails to perform or comply with any of its agreements contained herein,
the Purchaser, at its option, but without any obligation so to do, may perform
or comply, or otherwise cause performance or compliance, with such agreement.
7.3. The Grantors' Reimbursement Obligation. The expenses of the
Purchaser incurred in connection with actions undertaken as provided in this
Section 7, together with interest thereon at the interest rate then applicable
to amounts overdue
-12-
13
under the Notes from the date of payment by the Purchaser to the date reimbursed
by the Grantors, shall be jointly and severally payable by the Grantors to the
Purchaser on demand and shall constitute part of the Secured Obligations.
7.4. Ratification; Power Coupled With An Interest. The Grantors
hereby ratify all that said attorneys shall lawfully do or cause to be done by
virtue hereof. All powers, authorizations and agencies contained in or granted
pursuant to this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
7.5. Execution of Power of Attorney. Concurrently with the execution
and delivery hereof, the Grantors are executing and delivering to the Purchaser,
in the form of Appendix IV hereto, three (3) originals of a Power of Attorney
for the implementation of any assignment, sale or other disposition of the
Trademarks, Patents or Copyrights or any of them pursuant to Sections 6.1, 6.2
and 6.3 hereof. All powers of attorney granted hereunder shall be deemed in
addition to any powers of attorney granted under any other Security Document.
Section 8. Duty of the Purchaser. The Purchaser's sole duty with respect
to the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the Code or otherwise, shall be to deal with
it in the same manner as the Purchaser deals with similar property for its own
account.
Neither the Purchaser nor any of its directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Grantor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the
Purchaser hereunder are conferred solely to enable the Purchaser to protect the
Purchaser's interests in the Collateral and shall not impose any duty upon the
Purchaser to exercise any such powers. The Purchaser shall be accountable only
for amounts that it actually receives as a result of the exercise of such
powers, and neither it nor any of its officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
Section 9. Execution of Financing Statements. Pursuant to Section 9-402 of
the Code, the Grantors authorize the Purchaser to file financing statements with
respect to the Collateral without the signature of the Grantors in such form and
in such filing offices as the Purchaser reasonably determines appropriate to
perfect the security interests of the Purchaser under this Agreement. A carbon,
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement for filing in any jurisdiction. The Purchaser will provide
the Grantors with a copy of each such filing filed by the Purchaser pursuant to
this Section 9; provided that the failure to furnish the Grantors with any such
copy shall not relieve the Grantors of any of their obligations hereunder or
subject the Purchaser to any liability.
Section 10. Miscellaneous.
-13-
14
10.1. Notices. All notices, requests and demands to or upon the
Purchaser or the Grantors hereunder shall be made or delivered in the manner
provided in the Guarantee.
10.2. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.3. Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Grantors and the Purchaser; provided that any
provision of this Agreement may be waived by the Purchaser in a letter or
agreement executed by the Purchaser or by facsimile transmission from the
Purchaser.
10.4. No Waiver by Course of Conduct. The Purchaser shall not by any
act (except by a written instrument pursuant to Section 10.3 hereof) delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Purchaser, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Purchaser of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Purchaser would
otherwise have on any future occasion.
10.5. Remedies Cumulative. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
10.6. Integration. This Agreement, together with the Note Purchase
Agreement and the other Note Documents represent the entire agreement of the
parties with respect to the subject matter hereof and there are no promises or
representations by the Purchaser relative to the subject matter hereof not
reflected herein or therein.
10.7. Section Headings. The section and subsection headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
10.8. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of each Grantor and the Purchaser and their respective
successors and assigns; provided, however, that no Grantor shall have the right
to assign its duties hereunder without the prior written consent of the
Purchaser.
10.9. Additional Grantors. The initial Grantors hereunder shall be
the Parent and those Subsidiaries of the Parent as are signatories hereto on the
date hereof.
-14-
15
From time to time subsequent to the date hereof, additional Subsidiaries of the
Parent may become parties hereto, as additional Grantors (each, an "Additional
Grantor"), by executing a counterpart of this Agreement substantially in the
form of Appendix V attached hereto. Upon delivery of any such counterpart to the
Purchaser, notice of which is hereby waived by the Grantors, each Additional
Grantor shall be a Grantor and shall be as fully a party hereto as if such
Additional Grantor were an original signatory hereto. Each Grantor expressly
agrees that its obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Grantor hereunder nor by any
election of the Purchaser not to cause any Subsidiary of the Parent to become an
Additional Grantor hereunder. This Agreement shall be fully effective as to any
Grantor that is or becomes a party hereto regardless of whether any other Person
becomes or fails to become or ceases to be a Grantor hereunder. Each Additional
Grantor shall execute the filings specified in Section 5 hereof and such other
filings, registrations or instruments as the Purchaser may reasonably request,
in order to perfect the security interests granted or purported to granted
hereunder.
10.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall together constitute one and the same instrument.
10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10.12. ACKNOWLEDGMENTS. EACH GRANTOR HEREBY ACKNOWLEDGES THAT:
(a) IT HAS BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT;
(b) THE PURCHASER DOES NOT HAVE ANY FIDUCIARY RELATIONSHIP TO ANY
GRANTOR, AND THE RELATIONSHIP BETWEEN THE PURCHASER, ON THE ONE HAND, AND THE
GRANTORS, ON THE OTHER HAND, IS SOLELY THAT OF SECURED PARTY AND DEBTOR,
RESPECTIVELY; AND
(c) NO JOINT VENTURE EXISTS BETWEEN THE PURCHASER AND THE GRANTORS.
10.13. Dating. Although this Agreement is dated as of the date first
written above for convenience, this Agreement shall be effective on September
[__], 1998.
-15-
16
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered by its authorized officer as of the
date first written above.
NOMURA HOLDING AMERICA INC.
By: /s/ Salvatore Gentile
------------------------------------
Name: Salvatore Gentile
Title: Attorney-in-Fact
EASYRIDERS, INC.
By: /s/ William Prather
------------------------------------
Name:
Title:
PAISANO PUBLICATIONS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS OF COLUMBUS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS FRANCHISING, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
17
TERESI, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
BROS CLUB, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
18
ANNEX A
TRADEMARKS
19
ANNEX B
PATENTS
20
ANNEX C
COPYRIGHTS
21
APPENDIX I
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
THIS ASSIGNMENT FOR SECURITY dated as of September 23, 1998 (this
"Assignment"), is made by EACH SIGNATORY HERETO (each, together with its
successors and assigns, a "Grantor" and collectively, the "Grantors").
W I T N E S S E T H:
WHEREAS, the Grantors have adopted, used, are using or intend to use
the trademarks listed on Annex A to the Agreement referred to below (a copy of
which Annex A is attached hereto), which trademarks are registered or the
subject of pending applications for registration in the United States Patent and
Trademark Office (the "Trademarks"); and
WHEREAS, the Grantors have entered into a Intellectual Property
Security Agreement dated as of September 23, 1998 (as from time to time
amended, modified or supplemented in accordance with the terms thereof, the
"Agreement"; capitalized terms used herein without definition have the meanings
assigned to those terms in the Agreement), in favor of Nomura Holding America
Inc. (the "Purchaser"), in order to secure the prompt and complete payment,
observance and performance of the Secured Obligations (as defined in the
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor does hereby assign
unto the Purchaser and grant to the Purchaser a security interest in, and
mortgage on, all right, title, and interest of such Grantor in and to the
Trademarks, and the applications and registrations thereof, together with the
goodwill of the business connected with the use of and symbolized by the
Trademarks, and all Proceeds (as defined in the Agreement) thereof, including,
without limitation, any and all royalties for any licenses thereof (the
"Trademark Collateral"), to secure the prompt and complete payment, performance
and observance of the Secured Obligations. Each Grantor does hereby further
acknowledge and affirm that the rights and remedies of the Purchaser with
respect to the assignment of and security interest in the Trademark Collateral
made and granted hereby are more fully set forth in the Agreement, the terms and
provisions of which are hereby incorporated herein by reference as if fully set
forth herein.
THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
22
IN WITNESS WHEREOF, each Grantor has caused this Assignment to be
duly executed by its authorized officer as of the date first written above.
EASYRIDERS, INC.
By: /s/ William Prather
------------------------------------
Name:
Title:
PAISANO PUBLICATIONS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS OF COLUMBUS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS FRANCHISING, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-2-
23
TERESI, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
BROS CLUB, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-3-
24
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this __ day of September, 1998 before me personally appeared the
above-named ______, to me known, who being by me duly sworn according to law, on
his/her oath stated that he/she is the ___________ of [NAME OF GRANTOR] and
acknowledged that he/she signed, sealed and delivered the foregoing instrument
as the free and voluntary act and deed of said corporation.
Notary Public
My Commission Expires:
- ---------------------
-4-
25
APPENDIX II
ASSIGNMENT FOR SECURITY
(PATENTS)
THIS ASSIGNMENT FOR SECURITY dated as of September 23, 1998 (this
"Assignment"), is made by EACH SIGNATORY HERETO (each, together with its
successors and assigns, a "Grantor", and collectively, the "Grantors").
W I T N E S S E T H:
WHEREAS, the Grantors own the letters patent, and applications for
letters patent, of the United States more particularly described on Annex B to
the Agreement referred to below, a copy of which Annex B is attached hereto (the
"Patents"); and
WHEREAS, the Grantors have entered into a Intellectual Property
Security Agreement dated as of September 23, 1998 (as from time to time
amended, modified or supplemented in accordance with the terms thereof, the
"Agreement"; capitalized terms used herein without definition have the meanings
assigned to those terms in the Agreement), in favor of Nomura Holding Company
Inc. (the "Purchaser"),in order to secure the prompt and complete payment,
observance and performance of the Secured Obligations (as defined in the
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor does hereby assign
unto the Purchaser and grant to the Purchaser a security interest in, and
mortgage on, all right, title and interest of such Grantor in and to the
Patents, together with any application, issue, re-examination, reissue,
continuation, continuation-in-part, division, improvement or extension thereof,
and all Proceeds (as defined in the Agreement) thereof, including, without
limitation, any and all causes of action for infringement thereof for the full
term of the Patents and any and all royalties for any licenses thereof (the
"Patent Collateral"), to secure the prompt and complete payment, performance and
observance of the Secured Obligations. Each Grantor does hereby further
acknowledge and affirm that the rights and remedies of the Purchaser with
respect to the assignment of and security interest in the Patent Collateral made
and granted hereby are more fully set forth in the Agreement, the terms and
provisions of which are hereby incorporated herein by reference as if fully set
forth herein.
THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
26
IN WITNESS WHEREOF, each Grantor has caused this Assignment to be
duly executed by its authorized officer as of the date first written above.
EASYRIDERS, INC.
By: /s/ William Prather
------------------------------------
Name:
Title:
PAISANO PUBLICATIONS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS OF COLUMBUS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS FRANCHISING, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-2-
27
TERESI, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
BROS CLUB, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-3-
28
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this __ day of September, 1998 before me personally appeared the
above-named __________, to me known, who being by me duly sworn according to
law, on his/her oath stated that he/she is the _________ of [NAME OF GRANTOR]
and acknowledged that he/she signed, sealed and delivered the foregoing
instrument as the free and voluntary act and deed of said corporation.
Notary Public
My Commission Expires:
- ---------------------
-4-
29
APPENDIX III
ASSIGNMENT FOR SECURITY
(COPYRIGHTS)
THIS ASSIGNMENT FOR SECURITY dated as of September [__], 1998 (this
"Assignment"), is made by EACH SIGNATORY HERETO (each, together with its
successors and assigns, a "Grantor", and collectively, the "Grantors").
W I T N E S S E T H:
WHEREAS, the Grantors own those certain works, and their respective
copyrights, listed on Annex C to the Agreement referred to below, a copy of
which Annex C is attached to this Assignment (hereinafter referred to as the
"Works"); and
WHEREAS, the Grantors have entered into a Intellectual Property
Security Agreement dated as of September [__], 1998 (as from time to time
amended, modified or supplemented in accordance with the terms thereof, the
"Agreement"; capitalized terms used herein without definition have the meanings
assigned to those terms in the Agreement), in favor of Nomura Holding America
Inc. (the "Purchaser"), in order to secure the prompt and complete payment,
observance and performance of the Secured Obligations (as defined in the
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Grantor does hereby assign
and grant to the Purchaser a security interest in, and mortgage on, all right,
title and interest of such Grantor in and to the Works, including, without
limitation, all reproduction and allied rights necessary for production,
distribution and exploitation of said Works throughout the world in perpetuity,
and all copyrights therein and all renewals and extensions thereof, and all
translations, adaptations and other versions of the Works now made or hereafter
created. Each Grantor does hereby acknowledge that it has entered into the
Agreement in favor of the Purchaser in order to secure the prompt and complete
payment, observance and performance of the Secured Obligations and does hereby
affirm that the rights and remedies of the Purchaser with respect to the
assignment of and security interest in the Works made and granted hereby are
more fully set forth in the Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
30
IN WITNESS WHEREOF, each Grantor has caused this Agreement to be
duly executed by its authorized officer as of the date first written above.
EASYRIDERS, INC.
By: /s/ William Prather
------------------------------------
Name:
Title:
PAISANO PUBLICATIONS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS OF COLUMBUS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS FRANCHISING, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-2-
31
TERESI, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
BROS CLUB, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-3-
32
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this __ day of September, 1998 before me personally appeared the
above-named _____________, to me known, who being by me duly sworn according to
law, on his/her oath stated that he/she is the of [NAME OF GRANTOR] and
acknowledged that he/she signed, sealed and delivered the foregoing instrument
as the free and voluntary act and deed of said corporation.
Notary Public
My Commission Expires:
- ---------------------
-4-
33
APPENDIX IV
POWER OF ATTORNEY
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that EACH SIGNATORY HERETO (each,
together with its successors and assigns, a "Grantor", and collectively, the
"Grantors"), hereby appoint and constitute Nomura Holding America Inc. (the
"Purchaser"), its true and lawful attorney, with full power of substitution, and
with full power and authority to perform the following acts on behalf of such
Grantor:
1. for the purpose of assigning, selling or otherwise disposing of
all right, title and interest of such Grantor in and to any letters patent or
patent applications of the United States or any other country or political
subdivision thereof throughout the world, and all registrations, recordings,
reissues, continuations, continuations-in-part, divisions, improvements, and
extensions thereof, and all pending applications therefor, and for the purpose
of the recording, registering and filing of, or accomplishing any other
formality with respect to, the foregoing, to execute and deliver any and all
agreements, documents, instruments of assignment or other papers necessary or
advisable to effect such purpose;
2. for the purpose of assigning, selling or otherwise disposing of
all right, title and interest of such Grantor in and to any trademarks, trade
names, trade styles and service marks, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications
therefor, and for the purpose of the recording, registering and filing of, or
accomplishing any other formality with respect to, the foregoing, to execute and
deliver any and all agreements, documents, instruments of assignment or other
papers necessary or advisable to effect such purpose;
3. for the purpose of assigning, selling or otherwise disposing of
all right, title and interest of such Grantor in and to any works of authorship
capable of copyright protection and all copyright registrations, recordings,
extensions and renewals thereof, and all pending applications therefor, and for
the purpose of the recording, registering and filing of, or accomplishing any
other formality with respect to, the foregoing, to execute and deliver any and
all agreements, documents, instruments of assignment or other papers necessary
or advisable to effect such purpose; and
4. to execute any and all documents, statements, certificates or
other papers necessary or advisable in order to obtain the purposes described
above as the Purchaser may in its sole discretion determine.
34
This Power of Attorney is made pursuant to a Intellectual Property
Security Agreement dated as of September 23, 1998 (as from time to time
amended, modified, or supplemented in accordance with the terms hereof, the
"Agreement"; capitalized terms used herein without definition herein have the
meanings assigned to those terms in the Agreement), between the Grantors and the
Purchaser, and takes effect solely for the purposes of Section 7 of the
Agreement and is subject to the conditions thereof and may not be revoked until
the prompt and complete payment, observance and performance of all Secured
Obligations shall have been made, the Agreement has been terminated and all
Collateral has been released pursuant to the terms of the Agreement. This Power
of Attorney is not exercisable by the Purchaser at any time other than after and
during the continuance of an Event of Default (as defined in the Note Purchase
Agreement).
-2-
35
IN WITNESS WHEREOF, this Power of Attorney has been duly executed
and delivered by the Grantors as of this 23rd day of September, 1998.
EASYRIDERS, INC.
By: /s/ William Prather
------------------------------------
Name:
Title:
PAISANO PUBLICATIONS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS OF COLUMBUS, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
EASYRIDERS FRANCHISING, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-3-
36
TERESI, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
BROS CLUB, INC.
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ Joseph Teresi
------------------------------------
Name:
Title:
-4-
37
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On this __ day of September, 1998 before me personally appeared the
above-named _______________, to me known, who being by me duly sworn according
to law, on his/her oath stated that he/she is the of [NAME OF GRANTOR] and
acknowledged that he/she signed, sealed and delivered the foregoing instrument
as the free and voluntary act and deed of said corporation.
Notary Public
My Commission Expires:
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38
APPENDIX V
COUNTERPART TO INTELLECTUAL PROPERTY SECURITY AGREEMENT
This counterpart, dated September 23, 1998, is delivered
pursuant to Section 10.9 of that certain Intellectual Property Security
Agreement dated as of September 23, 1998 (as from time to time amended,
modified or supplemented, the "Intellectual Property Security Agreement"; the
terms defined therein and not otherwise defined herein being used as therein
defined), made by the Easyriders, Inc. and certain of its Subsidiaries signatory
thereto in favor of Nomura Holding America Inc. The undersigned hereby agrees
(i) that this counterpart may be attached to the Intellectual Property Security
Agreement, and (ii) that the undersigned will comply with all the terms and
conditions of the Intellectual Property Security Agreement as if it were an
original signatory thereto.
[NAME OF ADDITIONAL GRANTOR]
By:
------------------------------------
Name:
Title: