Intellectual Property Security Agreement between ZB Company, Inc. and Wells Fargo Retail Finance, LLC
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Summary
ZB Company, Inc. has entered into an agreement with Wells Fargo Retail Finance, LLC, acting as agent for a group of lenders. Under this agreement, ZB Company grants Wells Fargo a security interest in its intellectual property—including patents, trademarks, copyrights, and domain names—as collateral for loans provided under a related loan agreement. If ZB Company defaults, Wells Fargo can take control of the intellectual property. The agreement remains in effect until all loan obligations are fully satisfied and the loan agreement is terminated.
EX-10.2 MATERIAL CO 6 ipagreemt.txt IP AGREEMENT BETWEEN ZB CO. AND WELLS FARGO INTELLECTUAL PROPERTY SECURITY AGREEMENT This Intellectual Property Security Agreement (as amended, supplemented or otherwise modified from time to time, the "Intellectual Property Security Agreement") is made and effective as of September 5, 2001, by ZB Company, Inc., a Delaware corporation (including any successors or permitted assignees thereof, the "Grantor"), in favor of Wells Fargo Retail Finance, LLC, as Agent for each of the Lenders from time to time party to the Loan Agreement referred to below (the "Agent"). Capitalized terms used in this Intellectual Property Security Agreement and not otherwise defined shall have the respective meanings ascribed to such terms in the Loan Agreement. RECITALS WHEREAS, pursuant to the Loan and Security Agreement (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement") dated as of the date hereof by and among the Grantor, the Agent and the Lenders from time to time party thereto (the "Lenders"), the Lenders have agreed, subject to the terms and conditions set forth therein, to make certain advances, cause the issuance of letters of credit and provide other financial accommodations to the Grantor (collectively, the "Loans"); and WHEREAS, it is a condition precedent to the obligation of the Agent and the Lenders to execute and perform under the Loan Agreement that Grantor shall have executed and delivered this Intellectual Property Security Agreement to the Agent, for the ratable benefit of each of the Lenders; NOW, THEREFORE, in consideration of the willingness of the Agent and the Lenders to enter into the Loan Agreement and to agree, subject to the terms and conditions set forth therein, to make the Loans to the Grantor pursuant thereto, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows: 1. Grant of Security Interest. To secure the Grantor's prompt, punctual and faithful performance of all and each of the Obligations, the Grantor hereby grants to Agent, for its benefit and the ratable benefit of each of the Lenders, a continuing first priority security interest in all of the right, title and interest of such Grantor in and to the Intellectual Property Collateral (as defined below), whether now owned or hereafter acquired: (a) The U.S and foreign copyrights, associated copyright registrations and applications for copyright registration, and copyright licenses (to the extent permitted under the terms thereof) set forth on Schedule A attached hereto (collectively, the "Copyrights"); and (b) The U.S. and foreign patents and patent applications, and patent licenses set forth on Schedule B attached hereto, including, without limitation, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same (collectively, the "Patents"); and (c) The U.S., state and foreign trademark and service mark registrations, trademark and service mark applications, and trademark and service mark licenses (to the extent permitted under the terms thereof) set forth on Schedule C attached hereto and all goodwill associated with the foregoing (collectively, the "Trademarks"); and (d) The domain names and registrations set forth on Schedule D attached hereto and all goodwill associated with the foregoing (collectively, the "Domain Names"); and (e) Any and all claims and causes of action for past, present or future infringement of any of the Intellectual Property Collateral, with the right, but not the obligation, to sue for and collect damages for infringement of the Intellectual Property Collateral; and (f) Any and all licenses or rights granted under any of the Intellectual Property Collateral, and all license fees and royalties arising from such licenses or rights, in each case to the extent permitted by such licenses or rights; and (g) Any and all amendments, renewals, extensions, reissuances and replacements of any of the Intellectual Property Collateral; and (h) Any and all products and proceeds of any of the foregoing. 2. Requested Recordation. Grantor authorizes and requests that the Register of Copyrights and the Commissioner of Patents and Trademarks (and any state, foreign or other authorities to which this Intellectual Property Security Agreement is submitted) to file and record this Intellectual Property Security Agreement (and any corresponding or separate application forms of such jurisdiction) in order to publicly reflect the interests of the Agent and the Lenders in the Intellectual Property Collateral. 3. Assignment. Upon the occurrence of and during continuation of an Event of Default, the Grantor shall execute and deliver to Agent an absolute assignment transferring its entire right, title, and interest in and to the Intellectual Property Collateral to the Agent, for its benefit and the ratable benefit of the Lenders. 4. Power of Attorney. The Grantor hereby irrevocably grants the Agent for its benefit and for the ratable benefit of the Lenders a power of attorney, to act as the Grantor's attorney-in-fact, with full authority in the name, place and stead of the Grantor, from time to time in the Agent's discretion, to take any action and to execute any instrument which the Agent may deem reasonably necessary or advisable to accomplish the purposes of this Intellectual Property Security Agreement. This authority includes, without limitation, the following: (a) To modify or amend (in sole discretion of the Agent and the Lenders and without first obtaining the Grantor's approval of or signature thereto) Schedule A, Schedule B, Schedule C, and/or Schedule D hereof, as appropriate, to include references to any registered intellectual property (or application or license therefor) acquired by the Grantor after the 2 execution hereof or to delete any reference to any Intellectual Property Collateral in which the Grantor no longer has or claims any right, title or interest; and (b) To execute, file and pursue (in sole discretion of the Agent and the Lenders and without first obtaining the Grantor's approval of or signature thereto, unless otherwise prohibited by applicable law) any application, form or other document in order to perfect, maintain, continue or otherwise protect the Agent's interest or the Grantor's rights in the Intellectual Property Collateral, including, without limitation, executing and filing (i) any financing statement, any continuation statement or any amendment thereto, and (ii) any document in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or the relevant office of any state or foreign jurisdiction (including, without limitation, the filing of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings) and to pay any fees and taxes in connection therewith or otherwise; and (c) To execute any document required to acknowledge, register or perfect the interest of the Agent and the Lenders in any part of the Intellectual Property Collateral without the signature of the Grantor unless prohibited by applicable law. The foregoing power of attorney is coupled with an interest and is irrevocable. 5. Release. Unless otherwise agreed in writing by the parties, the security interests granted herein will terminate (and all rights to the Intellectual Property Collateral will revert to the Grantor) upon satisfaction of the following conditions: (a) payment and performance in full of all the Obligations secured hereby (unconditionally and indefeasibly) and (b) the termination of the Loan Agreement. Upon any such termination, the Agent (at the Grantor's request and sole expense) will promptly execute and deliver to the Grantor (without any representation, warranty or recourse of any kind whatsoever) such documents as the Grantor may reasonably request and provided to the Agent to evidence such termination. 6. Miscellaneous. (a) This Intellectual Property Security Agreement has been entered into in conjunction with the provisions of and the security interest granted to the Agent, for its benefit and the ratable benefit of the Lenders, under the Loan Agreement. The rights and remedies of the Grantor and the Agent with respect to the security interests granted herein are in addition and without prejudice to those set forth in the Loan Agreement, all terms and provisions of which are hereby incorporated herein by reference. In the event that any provisions of this Intellectual Property Security Agreement are deemed to conflict with the Loan Agreement or the other Loan Documents, the provisions of the Loan Agreement or the other Loan Documents shall govern. (b) This Intellectual Property Security Agreement may be executed in any number of counterparts with the same effect as if all the signatures on such counterparts appeared on one document; each such counterpart will be deemed to be an original but all counterparts together will constitute one and the same instrument. 3 [Signatures appear on following pages.] 4 IN WITNESS WHEREOF, the parties hereto have executed this Intellectual Property Security Agreement, as an instrument under seal, through their duly authorized officers, as of the date first written above. GRANTOR: ZB COMPANY, INC. By: /s/ Raymond P. Springer ------------------------ Name: Raymond P. Springer Title: Chief Financial Officer AGENT: WELLS FARGO RETAIL FINANCE, LLC, as Agent By: /s/ Patrick J. Norton --------------------- Name: Patrick J. Norton Title: Vice President ACKNOWLEDGMENT STATE OF Pennsylvania : : SS COUNTY OF Philadelphia : Before me, the undersigned, a Notary Public, on this 31st day of August, 2001, personally appeared Ray Springer to me known personally, who, being by me duly sworn, did say that he/she is the Vice President of ZB Company, Inc., as Borrower, and that said Intellectual Property Security Agreement was signed on behalf of said ZB Company, Inc., as Borrower, by authority of its board of directors, and the said Ray Springer acknowledged said instrument to be his/her free act and deed. /s/ Loreena Kay Tinneny ------------------------- Notary Public My Commission Expires: Apr. 7, 2003 -------------- SCHEDULE A COPYRIGHT COLLATERAL Registered Copyrights NONE Pending Copyright Applications NONE SCHEDULE B PATENT COLLATERAL Registered Patents NONE Pending Patent Applications NONE SCHEDULE C TRADEMARK COLLATERAL Registered Trademarks
10.12 IP.DOC SCHEDULE D DOMAIN NAMES
