EXHIBIT 3
SECURITY AGREEMENT
This Security Agreement (this "Agreement") is entered into as of August
12, 2002, by and between iPrint Technologies, Inc., a Delaware corporation
("Borrower"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
and XxxxXxXxxxx.xxx, Inc., a Delaware corporation ("Lender"), whose address is
000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000.
Recitals
A. Borrower has executed that certain Subordinated Secured Promissory
Note, dated August 12, 2002 (as amended, modified and supplemented from time to
time, the "Promissory Note"), in the original principal amount of $1,000,000,
payable to Lender.
B. Borrower and Lender have entered into the Letter Agreement dated
August 12, 2002, relating to sale to Lender by Borrower of certain of the assets
of Borrower and assumption by Lender of certain of the liabilities of Borrower
("Letter Agreement").
C. Certain of Borrower's stockholders (the "Majority Stockholders")
have entered into a Stockholders Agreement and Irrevocable Proxy (the
"Stockholders Agreement") in support of the transactions described in the Letter
Agreement. This Agreement, the Promissory Note, the Letter Agreement, and the
Stockholders Agreement, together, are the "Operative Documents".
D. Borrower has outstanding certain obligations to Comerica Bank -
California ("Comerica") pursuant to the Revolving Loan and Security Agreement,
dated November 1, 2001, by and between Borrower and Comerica (as amended,
modified and supplemented from time to time, the "Senior Debt").
E. As a condition precedent to advancing funds under the Promissory
Note, Lender has required Borrower to execute and deliver this Agreement.
Agreement
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Creation of Security Interest. In order to secure the payment and
performance of the Secured Obligations (as defined below), Borrower hereby
assigns, pledges and grants to Lender, a security interest in all of Borrower's
right, title and interest in and to the following property of Borrower
(collectively, the "Collateral"), in each case whether now owned or hereafter at
any time acquired by Borrower and wherever located: accounts, chattel paper,
inventory, equipment, instruments, investment property, documents, deposit
accounts, letter-of-credit rights, general intangibles, supporting obligations,
money, Intellectual Property Collateral (as defined below) and all proceeds and
products of the foregoing. Borrower shall not be deemed to have granted a
security interest in any of Borrower's rights and interests in any license or
agreement to which it is a party or any of its right thereunder to the extent,
but only to the
extent that, (A) such grant is prohibited by law, provided, however, that
immediately upon such legal prohibition terminating, the Collateral shall
include, and Borrower shall be deemed to have granted a security interest in,
all such rights and provisions as if such prohibition had never been in effect,
or (B) such grant would, under the terms of such license or agreement or
otherwise, result in a breach of the terms of, or constitute a default under
such license or agreement (other than to the extent that such term would be
rendered ineffective pursuant to the UCC (as defined below) or any other
applicable law), provided, however, that immediately upon the ineffectiveness,
lapse or termination of such provision, the Collateral shall include, and such
Borrower shall be deemed to have granted a security interest in, all such rights
and provisions as if such term had never been in effect.
For purposes of the foregoing, "Intellectual Property Collateral" shall
mean: (i) all rights, title and interest (including rights acquired pursuant to
a license or otherwise but only to the extent permitted by agreements governing
such license or other use) in and to all trademarks, service marks, designs,
logos, indicia, tradenames, trade dress, corporate names, company names,
business names, fictitious business names, trade styles and/or other source
and/or business identifiers and applications pertaining thereto, owned by
Borrower, or hereafter adopted and used, in its business (including, without
limitation, the trademarks specifically identified in Schedule 1(a), as the same
may be amended pursuant hereto from time to time) (collectively, the
"Trademarks"), all registrations that have been or may hereafter be issued or
applied for thereon in the United States and any state thereof and in foreign
countries (including, without limitation, the registrations and applications
specifically identified in Schedule 1(a), as the same may be amended pursuant
hereto from time to time) (the "Trademark Registrations"), all common law and
other rights (but in no event any of the obligations) in and to the Trademarks
in the United States and any state thereof and in foreign countries (the
"Trademark Rights"), and all goodwill of Borrower's business symbolized by the
Trademarks and associated therewith (the "Associated Goodwill"); (ii) all
rights, title and interest (including rights acquired pursuant to a license or
otherwise but only to the extent permitted by agreements governing such license
or other use) in and to all patents and patent applications and rights and
interests in patents and patent applications under any domestic or foreign law
that are presently, or in the future may be, owned or held by Borrower and all
patents and patent applications and rights, title and interests in patents and
patent applications under any domestic or foreign law that are presently, or in
the future may be, owned by Borrower in whole or in part (including, without
limitation, the patents and patent applications listed in Schedule 1(b), as the
same may be amended pursuant hereto from time to time), all rights (but not
obligations) corresponding thereto (including, without limitation, the right
(but not the obligation), exercisable only upon the occurrence and during the
continuation of an Event of Default, to xxx for past, present and future
infringements in the name of Borrower or in the name of Lender), and all
re-issues, divisions, continuations, renewals, extensions and
continuations-in-part thereof (all of the foregoing being collectively referred
to as the "Patents"); and all rights, title and interest (including rights
acquired pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) under copyright in various
published and unpublished works of authorship including, without limitation,
computer programs, computer data bases, other computer software, layouts, trade
dress, drawings, designs, writings, and formulas owned by Borrower (including,
without limitation, the works listed on Schedule 1(c), as the same may be
amended pursuant hereto from time to time) (collectively, the "Copyrights"), all
copyright registrations issued to Borrower and applications for copyright
registration that have been or may
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hereafter be issued or applied for thereon by Borrower in the United States and
any state thereof and in foreign countries (including, without limitation, the
registrations listed on Schedule 1(c), as the same may be amended pursuant
hereto from time to time) (collectively, the "Copyright Registrations"), all
common law and other rights in and to the Copyrights in the United States and
any state thereof and in foreign countries including all copyright licenses (but
with respect to such copyright licenses, only to the extent permitted by such
licensing arrangements) (the "Copyright Rights"), including, without limitation,
each of the Copyrights, rights, titles and interests in and to the Copyrights
and works protectable by copyright, which are presently, or in the future may
be, owned, created (as a work for hire for the benefit of Borrower), authored
(as a work for hire for the benefit of Borrower), or acquired by Borrower, in
whole or in part, and all Copyright Rights with respect thereto and all
Copyright Registrations therefor, heretofore or hereafter granted or applied
for, and all renewals and extensions thereof, throughout the world, including
all proceeds thereof (such as, by way of example and not by limitation, license
royalties and proceeds of infringement suits), the right (but not the
obligation) to renew and extend such Copyright Registrations and Copyright
Rights and to register works protectable by copyright and the right (but not the
obligation) to xxx for past, present and future infringements of the Copyrights
and Copyright Rights; it being understood that the rights and interests included
in the Intellectual Property Collateral hereby shall include, without
limitation, all rights and interests pursuant to licensing or other contracts in
favor of Borrower pertaining to applications related to Intellectual Property
Collateral and Intellectual Property Collateral presently or in the future owned
or used by third parties but, in the case of third parties which are not
affiliates of Borrower, only to the extent permitted by such licensing or other
contracts and, if not so permitted, only with the consent of such third parties.
2. Secured Obligations. For purposes of this Agreement, "Secured
Obligations" shall mean any and all indebtedness, obligations and liabilities of
Borrower to Lender, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, under any of the Operative Documents.
This Agreement does not secure any obligation described above which is secured
by a consensual lien on real property.
3. Perfection of Security Interests.
(a) Filing of Financing Statement. Borrower authorizes Lender to
file financing statements describing the Collateral.
(b) Possession. Borrower shall have possession of the Collateral,
except (i) where expressly otherwise provided in this Agreement or (ii)
where Lender chooses to perfect it security interest by possession in
addition to the filing of a financing statement. If any Collateral is in
the possession of a third party, Borrower will join with Lender in
notifying such third party of Lender's security interest and obtaining an
acknowledgement from such third party that it is holding the Collateral for
the benefit of Lender.
(c) Control. Borrower will cooperate with Lender in obtaining
control with respect to Collateral consisting of deposit accounts,
investment property, letter-of-credit rights and electronic chattel paper.
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(d) Marking of Chattel Paper. Borrower will not create any chattel
paper without placing a legend on the chattel paper acceptable to Lender
indicating that Lender has a security interest in the chattel paper.
4. Representation and Warranties. Borrower represents and warrants as
follows:
(a) Title to Collateral. Borrower has right in or the power to
transfer the Collateral and its title to the Collateral is free of all
adverse claims, liens, security interests and restrictions on transfer or
pledge except (i) as created by this Agreement, (ii) as granted to Comerica
to secure the Senior Debt and (iii) Permitted Liens. For purposes of this
Agreement, Permitted Liens shall mean the following: (a) liens for taxes,
fees, assessments or other governmental charges or levies, either not
delinquent or being contested in good faith by appropriate proceedings, (b)
liens (i) upon or in any equipment acquired or held by Borrower to secure
the purchase price (to include for this purpose, shipping, tax and
installation charges financed by the person holding the security interest)
of such equipment and software of such equipment or indebtedness incurred
solely for the purpose of financing the acquisition and installation of
such equipment and related software, or (ii) existing on such equipment at
the time of its acquisition, provided that the lien is confined solely to
the property so acquired and improvements thereon, and the proceeds of such
equipment; (c) liens consisting of leases or subleases and licenses or
sublicenses or licenses; (d) liens securing claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like persons imposed
without action of such parties, either not delinquent or being contested in
good faith by appropriate proceedings, (e) liens incurred or deposits made
in the ordinary course of the Borrowers' business in connection with
worker's compensation, unemployment insurance, social security and other
like laws, and (f) a lien on a certain mobile storage trailor granted in
favor of Xxxxxxxx Scottsman, Inc.
(b) Location of Collateral. All of the Collateral, including without
limitation the books and records related thereto, are located at the
addresses set forth in Schedule 2 hereto.
(c) Location of Borrower. Borrower is a corporation with the exact
legal name set forth in the first paragraph hereof, is organized and
registered under the law of the state of Delaware, and has an
organizational number of 00-0000000.
(d) No Conflict. The execution, delivery and performance of this
Agreement by Borrower and the consummation of the transactions contemplated
hereby will not: (i) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which with
the giving of notice or the lapse of time or both would constitute a
default) under, any agreement, indenture, mortgage, deed of trust,
equipment lease, instrument or other document to which Borrower is a party;
or (ii) conflict with any law, order, rule or regulation of any court or
any federal or state government, regulatory body or administrative agency,
or any other governmental body having jurisdiction over Borrower or its
properties.
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(e) Intellectual Property Collateral. A true and complete list (i)
of all Trademark Registrations and Trademark Applications owned, held
(whether pursuant to a license or otherwise) or used by Borrower, in whole
or in part, is set forth on Schedule 1(a); (ii) a true and complete list of
all Patents held (whether pursuant to a license or otherwise) or used by
Borrower, in whole or in part, is set forth on Schedule 1(b); and (iii) a
true and complete list of all Copyright Registrations and applications for
Copyright Registrations held (whether pursuant to a license or otherwise)
by Borrower, in whole or in part, is set forth on Schedule 1(c).
(f) Perfection. The security interests in the Collateral granted to
Lender hereunder constitute valid security interests in the Collateral
securing payment of the Secured Obligations. Upon the filing of UCC
financing statements naming Borrower as "debtor" and Lender as "secured
party" with the Secretary of State of the State of Delaware, and in the
case of the Intellectual Property Collateral, in addition the filing of a
Grant of Trademark Security Interest, substantially in the form of Exhibit
I, and a Grant of Patent Security Interest, substantially in the form of
Exhibit II, with the United States Patent and Trademark Office, and the
filing of a Grant of Copyright Security Interest, substantially in the form
of Exhibit III, with the United States Copyright Office, the security
interests in the Collateral granted to Lender will, to the extent a
security interest in the Collateral may be perfected by filing UCC
financing statements and, in the case of the Intellectual Property
Collateral, in addition to the filing of such UCC financing statements, by
the due filing of a Grant of Trademark Security Interest and Grant of
Patent Security Interest with the United States Patent and Trademark Office
and a Grant of Copyright Security Interest with the United States Copyright
Office, constitute perfected security interests therein.
5. Covenants. Borrower covenants and agrees as follows:
(a) Change in Name or Corporate Structure. Borrower shall not change
its name, the state of its organization or it organizational structure
without providing Lender with 30 days' prior written notice.
(b) Location of Collateral. Borrower shall keep all of the
Collateral, including without limitation the books and records related
thereto, at the locations set forth in Schedule 2 hereto; provided that
Borrower may keep Collateral at any new location so long as Borrower
provides Lender with 30 days' prior written notice of any such location.
(c) Collection Rights. Subject to the terms of the Promissory Note
regarding the subordination of the Secured Obligations (the "Subordination
Provisions"), Lender shall have the right at any time to enforce Borrower's
rights against account debtors and obligors.
(d) No Transfer. Except for sales of inventory in the ordinary
course of Borrower's business, Lender does not authorize and Borrower
agrees not to (i) make any sales or leases of any of the Collateral; (ii)
exclusively license any of the Collateral;
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or (iii) grant a security interest or lien in any of the Collateral, other
than to secure the Senior Debt.
6. Right to Enter. Lender shall have, during normal business hours and
upon reasonable notice, the right to enter into and upon any premises where any
of the Collateral or records with respect thereto are located for the purpose of
inspecting the same, performing an audit, making copies of records, observing
the use of any part of the Collateral, protecting Lender's security interest in
the Collateral, or otherwise determining whether Borrower is in compliance with
the terms of this Agreement.
7. Further Assurances. Borrower shall promptly execute and deliver any
further instrument, document or notice as may be necessary, desirable or which
Lender may reasonably require in order to create, perfect and preserve the
perfection and the priority of the security interests granted or purported to be
granted under this Agreement. Without limiting the generality of the foregoing,
if Borrower shall hereafter obtain rights to any new Intellectual Property
Collateral or become entitled to the benefit of (i) any patent application or
patent or any reissue, division, continuation, renewal, extension or
continuation-in-part of any Patent or any improvement of any Patent; or (ii) any
Copyright Registration, application for Registration or renewals or extension of
any Copyright, then in any such case, the provisions of this Agreement shall
automatically apply thereto. Borrower shall promptly notify Lender in writing of
any of the foregoing rights acquired by Borrower after the date hereof and of
(a) any Trademark Registrations issued or application for a Trademark
Registration or application for a Patent made, and (b) any Copyright
Registrations issued or applications for Copyright Registration made, in any
such case, after the date hereof promptly after the filing of an application for
any (1) Trademark Registration; (2) Patent; and (3) Copyright Registration,
Borrower shall execute and deliver to Lender and Lender may record in all places
where this Agreement is recorded a Security Agreement Supplement, substantially
in the form of Exhibit IV, pursuant to which Borrower shall grant to Lender a
security interest to the extent of its interest in such Intellectual Property
Collateral; provided, if, in the reasonable judgment of Borrower, after due
inquiry, granting such interest would result in the grant of a Trademark
Registration or Copyright Registration in the name of Lender, Borrower shall
give written notice to Lender as soon as reasonably practicable and the filing
shall instead be undertaken as soon as practicable but in no case later than
immediately following the grant of the applicable Trademark Registration or
Copyright Registration, as the case may be.
8. Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" hereunder:
(a) Payments. Borrower shall fail to make any payment required under
this Agreement or the Promissory Note when such payment is due;
(b) Representations and Warranties. Any representation or warranty
made by Borrower in this Agreement or the Promissory Note or which is
contained in any certificate, document or financial or other written
statement furnished at any time pursuant hereto or thereto shall prove to
have been untrue, incorrect or misleading in any material respect when
made;
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(c) Other Covenants. Borrower or any of the Majority Stockholders
shall fail to duly observe or perform any material covenant or agreement
contained in any Operative Document;
(d) Collateral. Any judgment or levy of any attachment, execution or
other process against any all or any portion of the Collateral shall be
entered and such judgment shall not be satisfied, or such levy, execution
or other process shall not be removed within 20 calendar days after the
entry or levy thereof, or at least three calendar days prior to the time of
any proposed sale under any such judgment or levy; or
(e) Insolvency. Borrower commences any bankruptcy, reorganization,
arrangement or adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar proceeding under any federal, state or
other law for the relief of debtors (an "Insolvency Proceeding"); Borrower
fails to obtain the dismissal, within 30 days after the commencement
thereof, of any Insolvency Proceeding instituted by one or more third
parties, fails actively to oppose any such Insolvency Proceeding, or, in
any such Insolvency Proceeding, defaults or files an answer admitting the
material allegations upon which such Insolvency Proceeding was based or
alleges its willingness to have an order for relief entered; or any
receiver, trustee or custodian is appointed to take possession of all or
any substantial portion of the assets of Borrower.
During the continuance of an Event of Default, subject to the Subordination
Provisions, Lender may declare all Secured Obligations to be immediately due and
payable; provided that upon the occurrence of an Event of Default under clause
(d) above, all Secured Obligations shall become immediately due and payable
without presentment, demand, protest of notice of any kind in connection with
this Agreement. Lender shall also have, subject to the Subordination Provisions,
all other rights and remedies available at law or in equity, including, without
limitation those available to a secured party under the Uniform Commercial Code
as in effect in the state of California (the "UCC").
9. Foreclosure Procedures.
(a) Delay; Waiver. No delay in enforcing or failing to enforce any
right under this Agreement by Lender shall constitute a waiver by Lender of
such right. No waiver by Lender of any default hereunder shall be effective
unless in writing, nor shall any waiver operate as a waiver of any other
default or of the same default on a future occasion.
(b) Notices. Lender shall give Borrower such notice of any private
or public sales as may be required by the UCC.
(c) No Obligation to Pursue Others. Lender has no obligation to
attempt to satisfy the Secured Obligations by collecting them from any
third party liable for them and Lender may release, modify or waive any
collateral provided by any third party to secure any of the Secured
Obligations, all without affecting Lender's right against Borrower.
Borrower waives any right it may have to require Lender to pursue any third
party for any of the Secured Obligations.
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(d) Warranties. Lender may sell the Collateral without giving any
warranties as to the Collateral. Lender may specifically disclaim any
warranties of title or the like. This procedure will not be considered
adversely to affect the commercial reasonableness of any sale of the
Collateral.
(e) No Marshaling. Lender has no obligation to marshal any asset in
favor of Borrower, or against or in payment of any of the Security
Obligations or any other obligation owed by Borrower to Lender.
10. Costs and Expenses. Borrower agrees to pay on demand all costs and
expenses, including legal fees, incurred or paid by Lender in exercising its
rights and remedies or protecting its interests hereunder.
11. Right of Set Off. In addition to and not in limitation of any other
right or remedy hereunder, but subject to the Subordination Provisions, Lender
shall have, at any time, the right to set off any indebtedness or obligation of
Borrower against any indebtedness or obligation of Lender to Borrower, without
notice to or demand upon Borrower, any guarantor of any such indebtedness or
obligation or any other person, whether or not such obligation or indebtedness
is liquidated, contingent or mature at the time of such offset and however such
indebtedness or obligations were created or incurred.
12. Notices. All notices, requests and other communications required or
permitted to be made hereunder shall, except as otherwise provided, be in
writing and may be delivered personally or sent by telecopy, overnight courier
or certified mail, postage prepaid, to the parties addressed as set forth in the
first paragraph hereof. Such notices, requests and other communications sent
shall be effective upon receipt, unless sent by (i) overnight courier, in which
case they shall be effective exactly one business day after deposit with such
overnight courier, or (ii) mail, in which case they shall be effective three
business days after deposit in the United States mail. Either party may change
its address or other information by giving notice thereof to the other party
hereto in conformity with this section.
13. Termination of Security Agreement. This Security Agreement and the
security interest hereunder shall terminate upon the full and final payment in
cash and performance of all the Secured Obligations. Notwithstanding anything to
the contrary herein, this Security Agreement (including all representations,
warranties and covenants contained herein) shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by Lender in
respect of the Secured Obligations is rescinded or must otherwise be restored or
returned by Lender upon or in connection with an Insolvency Proceeding of
Borrower or otherwise, all as though such payment had not been made.
14. Headings. The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
15. Amendments. This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the party against
which such
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change, waiver or termination is sought to be enforced, and then any such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
16. Entire Agreement. This Agreement and the Promissory Note are
intended by the parties as a final expression of their agreement and is intended
as a complete and exclusive statement of the terms and conditions thereof.
Acceptance of or acquiescence in a course of performance rendered under this
Agreement shall not be relevant to determine the meaning of this Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
17. Severability. If any provision or obligation of this Agreement
should be found to be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions and
obligations or any other agreement executed in connection herewith, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby and shall nonetheless remain in full force and
effect to the maximum extent permitted by law.
18. Successors and Assigns. All rights of Lender hereunder shall inure
to the benefit of its successor and assigns. Borrower shall not assign any of
its interest under this Agreement without the prior written consent of Lender.
Any purported assignment inconsistent with this provision shall, at the option
of Lender, be null and void.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, except to the extent that
the UCC provides for the application of a law of another state as it relates to
perfection of security interests.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which shall together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered by their respective officers as of
the date first above written.
IPRINT TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: President and CEO
XXXXXXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman
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EXHIBIT I
TO SECURITY AGREEMENT
[FORM OF GRANT OF TRADEMARK SECURITY INTEREST]
GRANT OF TRADEMARK SECURITY INTEREST
WHEREAS, iPrint Technologies, Inc., a Delaware corporation
("Borrower"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Trademark Collateral (as defined
below); and
WHEREAS, Borrower, has entered into a Secured Promissory Note, dated as
of August 12, 2002, with XxxxXxXxxxx.xxx, Inc., a Delaware corporation
("Lender"); and
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August 12, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Security Agreement"), among Borrower and Lender, Borrower has agreed
to create in favor of Lender a secured and protected interest in, and Lender has
agreed to become a secured creditor with respect to, the Trademark Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Borrower hereby grants to Lender a security interest
in all of Borrower's right, title and interest in and to the following, in each
case whether now or hereafter existing or in which Borrower now has or hereafter
acquires an interest and wherever the same may be located (the "Trademark
Collateral"):
(i) all rights, title and interest (including rights acquired
pursuant to a license or otherwise but only to the extent permitted by
agreements governing such license or other use) in and to all trademarks,
service marks, designs, logos, indicia, tradenames, trade dress, corporate
names, company names, business names, fictitious business names, trade
styles and/or other source and/or business identifiers and applications
pertaining thereto, owned by Borrower, or hereafter adopted and used, in
its business (including, without limitation, the trademarks specifically
identified in Schedule A (collectively, the "Trademarks"), all
registrations that have been or may hereafter be issued or applied for
thereon in the United States and any state thereof and in foreign countries
(including, without limitation, the registrations and applications
specifically identified in Schedule A (the "Trademark Registrations"), all
common law and other rights (but in no event any of the obligations) in and
to the Trademarks in the United States and any state thereof and in foreign
countries (the "Trademark Rights"), and all goodwill of Borrower's business
symbolized by the Trademarks and associated therewith (the "Associated
Goodwill"); and
(ii) all proceeds, products, rents and profits of or from any and
all of the foregoing Trademark Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not Lender is the loss
payee thereof), or any indemnity, warranty or guaranty, payable by reason
of loss or damage to or otherwise
with respect to any of the foregoing Trademark Collateral. For purposes of
this Grant of Trademark Security Interest, the term "proceeds" includes
whatever is receivable or received when Trademark Collateral or proceeds
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary.
Notwithstanding anything herein to the contrary, in no event shall the
Trademark Collateral include, and Borrower shall be not deemed to have granted a
security interest in, any of Borrower's rights or interests in any license,
contract or agreement to which Borrower is a party or any of its rights or
interests thereunder to the extent, but only to the extent, that such a grant
would, under applicable law or the terms of such license, contract or agreement
or otherwise, result in a violation of such law or a breach of the terms of, or
constitute a default under any license, contract or agreement to which Borrower
is a party; provided, that immediately upon the ineffectiveness, lapse or
termination of any such law or provision, the Trademark Collateral shall
include, and Borrower shall be deemed to have granted a security interest in,
all such rights and interests as if such law or provision had never been in
effect.
Borrower does hereby further acknowledge and affirm that the rights and
remedies of Lender with respect to the security interest in the Trademark
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
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2
IN WITNESS WHEREOF, Borrower has caused this Grant of Trademark
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the 12th day of August, 2002.
IPRINT TECHNOLOGIES, INC.,
a Delaware corporation
By: _________________________________
Name:
Title:
SCHEDULE A
TO
GRANT OF TRADEMARK SECURITY INTEREST
United States
Trademark Registration Registration
Registered Owner Description Number Date
---------------- ----------- ------ ----
EXHIBIT II
TO SECURITY AGREEMENT
[FORM OF GRANT OF PATENT SECURITY INTEREST]
GRANT OF PATENT SECURITY INTEREST
WHEREAS, iPrint Technologies, Inc., a Delaware corporation
("Borrower"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Patent Collateral (as defined
below); and
WHEREAS, Borrower, has entered into a Secured Promissory Note, dated
as of August 12, 2002, with XxxxXxXxxxx.xxx, Inc., a Delaware corporation
("Lender"); and
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August 12, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Security Agreement"), among Borrower and Lender, Borrower has agreed
to create in favor of Lender a secured and protected interest in, and Lender has
agreed to become a secured creditor with respect to, the Patent Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Borrower hereby grants to Lender a security interest
in all of Borrower's right, title and interest in and to the following, in each
case whether now or hereafter existing or in which Borrower now has or hereafter
acquires an interest and wherever the same may be located (the "Patent
Collateral"):
(i) all rights, title and interest (including rights acquired pursuant to
a license or otherwise but only to the extent permitted by agreements
governing such license or other use) in and to all patents and patent
applications and rights and interests in patents and patent applications
under any domestic or foreign law that are presently, or in the future may
be, owned or held by Borrower and all patents and patent applications and
rights, title and interests in patents and patent applications under any
domestic or foreign law that are presently, or in the future may be, owned
by Borrower in whole or in part (including, without limitation, the patents
and patent applications listed in Schedule A), all rights (but not
obligations) corresponding thereto to xxx for past, present and future
infringements and all re-issues, divisions, continuations, renewals,
extensions and continuations-in-part thereof (all of the foregoing being
collectively referred to as the "Patents"); and
(ii) all proceeds, products, rents and profits of or from any and all of
the foregoing Patent Collateral and, to the extent not otherwise included,
all payments under insurance (whether or not Lender is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss
or damage to or otherwise with respect to any of the foregoing Patent
Collateral. For purposes of this Grant of Patent Security Interest, the
term "proceeds" includes whatever is receivable or received when Patent
Collateral or
proceeds are sold, exchanged, collected or otherwise disposed of, whether
such disposition is voluntary or involuntary.
Notwithstanding anything herein to the contrary, in no event shall the
Patent Collateral include, and Borrower shall be not deemed to have granted a
security interest in, any of Borrower's rights or interests in any license,
contract or agreement to which Borrower is a party or any of its rights or
interests thereunder to the extent, but only to the extent, that such a grant
would, under applicable law or the terms of such license, contract or agreement
or otherwise, result in a violation of such law or a breach of the terms of, or
constitute a default under any license, contract or agreement to which Borrower
is a party; provided, that immediately upon the ineffectiveness, lapse or
termination of any such law or provision, the Patent Collateral shall include,
and Borrower shall be deemed to have granted a security interest in, all such
rights and interests as if such law or provision had never been in effect.
Borrower does hereby further acknowledge and affirm that the rights and
remedies of Lender with respect to the security interest in the Patent
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are incorporated by reference herein as if
fully set forth herein.
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2
IN WITNESS WHEREOF, Borrower has caused this Grant of Patent Security
Interest to be duly executed and delivered by its officer thereunto duly
authorized as of the 12th day of August, 2002.
IPRINT TECHNOLOGIES, INC.,
a Delaware corporation
By: _____________________________
Name:
Title:
SCHEDULE A
TO
GRANT OF PATENT SECURITY INTEREST
Patents Issued:
---------------
Patent No. Issue Date Invention Inventor
---------- ---------- --------- --------
Patents Pending:
----------------
Applicant's Date Application
Name Filed Number Invention Inventor
---- ----- ------ --------- --------
EXHIBIT III
TO SECURITY AGREEMENT
[FORM OF GRANT OF COPYRIGHT SECURITY INTEREST]
GRANT OF COPYRIGHT SECURITY INTEREST
WHEREAS, iPrint Technologies, Inc., a Delaware corporation
("Borrower"), owns and uses in its business, and will in the future adopt and so
use, various intangible assets, including the Copyright Collateral (as defined
below); and
WHEREAS, Borrower, has entered into a Secured Promissory Note, dated as
of August 12, 2002, with XxxxXxXxxxx.xxx, Inc., a Delaware corporation
("Lender"); and
WHEREAS, pursuant to the terms of a Security Agreement dated as of
August 12, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Security Agreement"), among Borrower and Lender, Borrower has agreed
to create in favor of Lender a secured and protected interest in, and Lender has
agreed to become a secured creditor with respect to, the Copyright Collateral;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, subject to the terms and conditions
of the Security Agreement, Borrower hereby grants to Lender a security interest
in all of Borrower's right, title and interest in and to the following, in each
case whether now or hereafter existing or in which Borrower now has or hereafter
acquires an interest and wherever the same may be located (the "Copyright
Collateral"):
(i) all rights, title and interest (including rights acquired pursuant to a
license or otherwise but only to the extent permitted by agreements
governing such license or other use) under copyright in various published
and unpublished works of authorship including, without limitation, computer
programs, computer data bases, other computer software layouts, trade
dress, drawings, designs, writings, and formulas (including, without
limitation, the works listed on Schedule A, as the same may be amended
pursuant hereto from time to time) (collectively, the "Copyrights"), all
copyright registrations issued to Borrower and applications for copyright
registration that have been or may hereafter be issued or applied for
thereon in the United States and any state thereof and in foreign countries
(including, without limitation, the registrations listed on Schedule A, as
the same may be amended pursuant hereto from time to time) (collectively,
the "Copyright Registrations"), all common law and other rights in and to
the Copyrights in the United States and any state thereof and in foreign
countries including all copyright licenses (but with respect to such
copyright licenses, only to the extent permitted by such licensing
arrangements) (the "Copyright Rights"), including, without limitation, each
of the Copyrights, rights, titles and interests in and to the Copyrights
and works protectable by copyright, which are presently, or in the future
may be, owned, created (as a work for hire for the benefit of Borrower),
authored (as a work for hire for the benefit of Borrower), or acquired by
Borrower, in whole or in part, and all Copyright Rights with respect
thereto and all Copyright Registrations therefor, heretofore or hereafter
granted or applied for,
and all renewals and extensions thereof, throughout the world,
including all proceeds thereof (such as, by way of example and not by
limitation, license royalties and proceeds of infringement suits), the
right (but not the obligation) to renew and extend such Copyright
Registrations and Copyright Rights and to register works protectable by
copyright and the right (but not the obligation) to xxx in the name of
Borrower or in the name of Lender for past, present and future
infringements of the Copyrights and Copyright Rights; and
(ii) all proceeds, products, rents and profits of or from any and all
of the foregoing Copyright Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not Lender is the
loss payee thereof), or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing Copyright Collateral. For purposes of this Grant of Copyright
Security Interest, the term "proceeds" includes whatever is receivable
or received when Copyright Collateral or proceeds are sold, exchanged,
collected or otherwise disposed of, whether such disposition is
voluntary or involuntary.
Notwithstanding anything herein to the contrary, in no event shall
the Copyright Collateral include, and Borrower shall be not deemed to have
granted a security interest in, any of Borrower's rights or interests in any
license, contract or agreement to which Borrower is a party or any of its rights
or interests thereunder to the extent, but only to the extent, that such a grant
would, under the terms of applicable law or such license, contract or agreement
or otherwise, result in a violation of such law or a breach of the terms of, or
constitute a default under any license, contract or agreement to which Borrower
is a party; provided, that immediately upon the ineffectiveness, lapse or
termination of any such law or provision, the Copyright Collateral shall
include, and Borrower shall be deemed to have granted a security interest in,
all such rights and interests as if such law or provision had never been in
effect.
Borrower does hereby further acknowledge and affirm that the
rights and remedies of Lender with respect to the security interest in the
Copyright Collateral granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
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IN WITNESS WHEREOF, Borrower has caused this Grant of Copyright
Security Interest to be duly executed and delivered by its officer thereunto
duly authorized as of the 12/th/ day of August, 2002.
IPRINT TECHNOLOGIES, INC.,
a Delaware corporation
By:_________________________
Name:
Title:
SCHEDULE A
TO
GRANT OF COPYRIGHT SECURITY INTEREST
U.S. Copyrights:
----------------
Title Registration No. Date of Issue Registered Owner
----- ---------------- ------------- ----------------
Pending U.S. Copyright Registrations & Applications:
----------------------------------------------------
Title Reference No. Date of Application Copyright Claimant
----- ------------- ------------------- ------------------
EXHIBIT IV
TO SECURITY AGREEMENT
SECURITY AGREEMENT SUPPLEMENT
This SECURITY AGREEMENT SUPPLEMENT, dated ___________, is delivered
pursuant to the Security Agreement, dated as of August 12, 2002 (as it may be
from time to time amended, modified or supplemented, the "Security Agreement"),
by and between iPrint Technologies, Inc., a Delaware corporation ("Borrower"),
and XxxxXxXxxxx.xxx, Inc., a Delaware corporation ("Lender"). Capitalized terms
used herein not otherwise defined herein shall have the meanings ascribed
thereto in the Security Agreement.
Subject to the terms and conditions of the Security Agreement, Borrower
hereby grants to Lender a security interest in all of Borrower's right, title
and interest in and to the Intellectual Property Collateral listed on
Supplemental Schedule [l(a)] [1(b)] [l.(c)] attached hereto, wherever the same
may be located. All such Intellectual Property Collateral shall be deemed to be
part of the Collateral and hereafter subject to each of the terms and conditions
of the Security Agreement.
IN WITNESS WHEREOF, Borrower has caused this Supplement to be duly
executed and delivered by its duly authorized officer as of the date first above
written.
IPRINT TECHNOLOGIES, INC.,
a Delaware corporation
By:_______________________________
Name:
Title: