EXECUTION VERSION
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of May 1, 2007 (as
may be amended, restated, supplemented, replaced or otherwise modified from time
to time, the "Intellectual Property Security Agreement"), is made by each of the
signatories hereto (collectively, the "Grantors") in favor of Credit Suisse,
Cayman Islands Branch, as administrative agent and collateral agent (in such
capacities and together with its successors, the "Agent") for the Secured
Parties (as defined in the Guarantee and Collateral Agreement referred to
below).
X. Xxxxxx American Corp. (to be renamed Xxxxxxx Xxxxxx Holdings Corp.), a
Delaware corporation (the "Borrower") and the subsidiaries of the Borrower from
time to time party thereto as Subsidiary Co-Borrowers have entered into a Credit
Agreement, dated as of April 4, 2007 (as may be amended, restated, supplemented,
replaced or otherwise modified from time to time, the "Credit Agreement"), with
the banks, financial institutions and other entities (the "Lenders") from time
to time party thereto and the Agent.
B. It is a condition precedent to the obligation of the Lenders to make
their respective extensions of credit to the Borrower under the Credit Agreement
that the Grantors shall have executed and delivered that certain Guarantee and
Collateral Agreement, dated as of May 1, 2007 in favor of the Agent (as may be
amended, restated, supplemented, replaced or otherwise modified from time to
time, the "Guarantee and Collateral Agreement"). Capitalized terms used and not
defined herein have the meanings given such terms in the Credit Agreement or the
Guarantee and Collateral Agreement, as applicable.
C. Under the terms of the Guarantee and Collateral Agreement, the Grantors
have granted a security interest in the Collateral, including, without
limitation, certain Intellectual Property of the Grantors, to the Agent for the
benefit of the Secured Parties, and have agreed as a condition thereof to
execute this Intellectual Property Security Agreement for recording with the
United States Patent and Trademark Office, the United States Copyright Office,
and other applicable Governmental Authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Grantors agree as follows:
SECTION 1. GRANT OF SECURITY.
Each Grantor hereby grants to the Agent, for the ratable benefit of the
Secured Parties, a security interest in all of the following ( the "Intellectual
Property Collateral") of such Grantor, now owned or at any time hereafter
acquired by such Grantor or in which such Grantor now has or at any time in the
future may acquire any right, title or interest, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor's Obligations:
(a) (i) all United States, State and foreign trademarks, service
marks, trade names, corporate names, company names, business names, fictitious
business names, trade styles, trade dress, domain names, logos and other source
or business identifiers, whether
registered or unregistered, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country, union of countries, or any political
subdivision of any of the foregoing, or otherwise, and all common-law rights
related thereto, including the registrations and applications listed on Schedule
A attached hereto, except for "intent-to-use" applications for trademark or
service xxxx registrations filed pursuant to Section 1(b) of the Xxxxxx Act, 15
U.S.C. ss. 1051, unless and until an Amendment to Allege Use or a Statement of
Use under Section 1(c) or Section 1(d) of the Xxxxxx Act has been filed, to the
extent that any assignment of an "intent-to-use" application prior to such
filing would violate the Xxxxxx Act or cause the trademark that is the subject
thereof to be invalidated or abandoned (ii) all renewals thereof and the right
to obtain all renewals thereof, (iii) the right to xxx or otherwise recover for
past, present and future infringements or dilutions of any of the foregoing or
for any injury to goodwill, (iv) all proceeds of the foregoing, including all
royalties, income, payments, claims, damages and proceeds of suit now and
hereafter due and/or payable with respect thereto, including payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements or dilutions thereof, and (v) all other
rights of any kind whatsoever accruing thereunder or pertaining thereto
throughout the world, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each of the above;
(b) (i) all patents of the United States, any other country, or union
of countries or any political subdivision of any of the foregoing, and all
applications in connection therewith, including all patents and patent
applications in the United States Patent and Trademark Office (including those
listed on Schedule B attached hereto), (ii) all reissues, extensions, divisions,
continuations and continuations-in-part thereof, and the right to obtain all
reissues and extensions thereof, (iii) all inventions (whether or not
patentable) and all improvements thereof, (iv) the right to xxx or otherwise
recover for past, present and future infringements of any of the foregoing, (v)
all proceeds of the foregoing, including all royalties, income, payments,
claims, damages and proceeds of suit now and hereafter due and/or payable with
respect thereto (including payments under all licenses entered into in
connection therewith, and damages and payments for past, present or future
infringements thereof), and (vi) all other rights of any kind whatsoever
accruing thereunder or pertaining thereto throughout the world;
(c) (i) all copyrights arising under the laws of the United States,
any other country, or union of countries, or any political subdivision of any of
the foregoing, whether registered or unregistered and whether or not the
underlying works of authorship have been published, all registrations and
recordings thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright Office
(including those registrations and applications listed on Schedule C attached
hereto), (ii) all extensions and renewals thereof, and the right to obtain all
extensions and renewals thereof, (iii) the right to xxx or otherwise recover for
past, present and future infringements of any of the foregoing, (iv) all
proceeds of the foregoing, including all royalties, income, payments, claims,
damages, and proceeds of suit now or hereafter due and/or payable with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith, and damages or payments for past, present or future
infringements thereof, and (v) all other rights of any kind whatsoever accruing
thereunder or pertaining thereto throughout the world; and
(d) solely to the extent that any Grantor has recorded its interest
therein with the United States Copyright Office or the United States Patent and
Trademark Office, exclusive Trademark Licenses, exclusive Patent Licenses and
exclusive Copyright Licenses, including those agreements listed on Schedule D
attached hereto, and all rights to xxx or otherwise recover at law or in equity
for any past, present and future infringement, misappropriation, dilution or
other impairment thereof, including the right to receive all proceeds and
damages therefrom.
SECTION 2. RECORDATION.
Each Grantor authorizes and requests that the United States Commissioner of
Patents and Trademarks, the United States Register of Copyrights or any other
applicable government officer record this Intellectual Property Security
Agreement.
SECTION 3. EXECUTION IN COUNTERPARTS.
This Intellectual Property Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 4. GOVERNING LAW.
This Intellectual Property Security Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to its conflicts of law provisions.
SECTION 5. CONFLICT PROVISION.
This Intellectual Property Security Agreement has been entered into in
conjunction with the Guarantee and Collateral Agreement and the Credit
Agreement. Each Grantor hereby acknowledges and affirms that the rights and
remedies of the Agent with respect to the security interest in the Intellectual
Property Collateral are more fully set forth in the Guarantee and Collateral
Agreement and the Credit Agreement, all terms and provisions of which are
incorporated by reference herein as if fully set forth herein. In the event that
any provisions of this Intellectual Property Security Agreement are in conflict
with the Guarantee and Collateral Agreement or the Credit Agreement, the
provisions of the Guarantee and Collateral or the Credit Agreement, as
applicable, shall govern.
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual
Property Security Agreement to be duly executed and delivered as of the date
first above written.
XXXX X. XXXXXXX COMPANY
By /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Executive Vice President
and Chief Financial Officer
XXXXXXX CHECKS AND SERVICES, INC.
By /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Executive Vice President
and Chief Financial Officer
SCANTRON CORPORATION
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and
Assistant Secretary
XXXXXXX FINANCIAL SOLUTIONS, INC.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and
Assistant Secretary
HFS CORE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and
Assistant Secretary
SCHEDULE A
TRADEMARKS
SCHEDULE B
PATENTS
SCHEDULE C
COPYRIGHTS
SCHEDULE D
TRADEMARK LICENSES, PATENT LICENSES AND COPYRIGHT LICENSES