EXHIBIT 10.33(b)
SECURITY AGREEMENT
Dated as of July 5, 1995
between
IOMEGA CORPORATION
and
▇▇▇▇▇ FARGO BANK, N.A.,
COMMERCIAL FINANCE DIVISION
TABLE OF CONTENTS
Page
Section 1. Definitions and Interpretation . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . 1
1.2 Interpretation. . . . . . . . . . . . . . . . . 4
Section 2. Collateral . . . . . . . . . . . . . . . 5
2.1 Grant . . . . . . . . . . . . . . . . . . . . . 5
2.2 Intellectual Property . . . . . . . . . . . . . 6
2.3 Perfection. . . . . . . . . . . . . . . . . . . 7
2.4 Preservation and Protection of Security
Interests. . . . . . . . . . . . . . . . 7
2.5 Attorney-in-Fact. . . . . . . . . . . . . . . . 8
2.6 Use of Intellectual Property. . . . . . . . . . 9
2.7 Instruments . . . . . . . . . . . . . . . . . . 9
2.8 Use or Sale of Collateral . . . . . . . . . . . 9
2.9 Rights and Obligations. . . . . . . . . . . . . 10
2.10 Termination. . . . . . . . . . . . . . . . . . 10
Section 3. Cash Proceeds of Collateral. . . . . . . 11
3.1 Cash Collateral Account . . . . . . . . . . . . 11
3.2 Certain Proceeds. . . . . . . . . . . . . . . . 11
Section 4. Representations and Warranties . . . . . 11
4.1 Title . . . . . . . . . . . . . . . . . . . . . 11
4.2 Intellectual Property . . . . . . . . . . . . . 12
Section 5. Covenants. . . . . . . . . . . . . . . . 12
5.1 Books and Records . . . . . . . . . . . . . . . 12
5.2 Removals, Etc.. . . . . . . . . . . . . . . . . 13
5.3 Sales and Other Liens . . . . . . . . . . . . . 13
5.4 Intellectual Property . . . . . . . . . . . . . 13
5.5 Further Assurances. . . . . . . . . . . . . . . 15
Section 6. Remedies . . . . . . . . . . . . . . . . 15
6.1 Events of Default, Etc. . . . . . . . . . . . . 15
6.2 Deficiency. . . . . . . . . . . . . . . . . . . 16
6.3 Manner of Disposition . . . . . . . . . . . . . 16
6.4 Application of Proceeds . . . . . . . . . . . . 16
Section 7. Miscellaneous. . . . . . . . . . . . . . 17
7.1 Waiver. . . . . . . . . . . . . . . . . . . . . 17
7.2 Notices . . . . . . . . . . . . . . . . . . . . 17
7.3 Expenses, Etc.. . . . . . . . . . . . . . . . . 18
7.4 Amendments, Etc.. . . . . . . . . . . . . . . . 19
7.5 Successors and Assigns. . . . . . . . . . . . . 19
7.6 Survival. . . . . . . . . . . . . . . . . . . . 19
7.7 Agreements Superseded . . . . . . . . . . . . . 19
7.8 Severability. . . . . . . . . . . . . . . . . . 19
7.9 Captions. . . . . . . . . . . . . . . . . . . . 19
7.10 Counterparts . . . . . . . . . . . . . . . . . 19
7.11 GOVERNING LAW; SUBMISSION TO
JURISDICTION . . . . . . . . . . . . . . 19
7.12 WAIVER OF JURY TRIAL . . . . . . . . . . . . . 20
ANNEX 1 LIST OF NON-FOREIGN COPYRIGHTS, COPYRIGHT
REGISTRATIONS AND APPLICATIONS FOR COPYRIGHT
REGISTRATIONS
ANNEX 2 LIST OF NON-FOREIGN PATENTS AND PATENT
APPLICATIONS
ANNEX 3 LIST OF NON-FOREIGN TRADE NAMES, TRADEMARKS,
SERVICES MARKS, TRADEMARK AND SERVICE ▇▇▇▇
REGISTRATIONS AND APPLICATIONS FOR TRADEMARK AND
SERVICE ▇▇▇▇ REGISTRATIONS
ANNEX 4 LIST OF LOCATIONS
ANNEX 5 ASSIGNMENT FOR SECURITY (PATENTS)
ANNEX 6 ASSIGNMENT FOR SECURITY (TRADEMARKS)
SECURITY AGREEMENT
This SECURITY AGREEMENT (this "Agreement") dated as of
July 5, 1995 is made between IOMEGA CORPORATION, a Delaware
corporation (the "Company") and ▇▇▇▇▇ FARGO BANK, N.A. (the
"Bank").
The Loan Agreement (Line of Credit) dated as of July 5,
1995 (the "Loan Agreement") between the Company and the Bank
provides, subject to its terms and conditions, for certain
extensions of credit by the Bank to the Company. It is a
condition to the obligations of the Bank under the Loan Agreement
that the Company shall have executed and delivered, and granted
the Liens provided for in this Agreement.
To induce the Bank to enter into, and to extend credit
under, the Loan Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company has agreed to pledge and grant a
security interest in the Collateral as security for the Secured
Obligations. Accordingly, the Company agrees with the Bank as
follows:
Section 1. Definitions and Interpretation.
1.1 Certain Defined Terms. Unless otherwise defined,
all capitalized terms used in this Agreement that are defined in
the Loan Agreement (including those terms incorporated by
reference) shall have the respective meanings assigned to them in
the Loan Agreement. In addition, the following terms shall have
the following meanings under this Agreement:
"Account" shall have the meaning assigned to that term
in Section 9106 of the Uniform Commercial Code as in effect on
the date of this Agreement, without regard to any subsequent
amendments.
"Chattel Paper" shall have the meaning assigned to that
term in Section 9105 of the Uniform Commercial Code, as in effect
on the date of this Agreement, without regard to any subsequent
amendments.
"Collateral" shall have the meaning assigned to that
term in Section 2.1.
"Copyright Collateral" shall mean all Copyrights,
whether now owned or hereafter acquired by the Company, including
each Copyright identified in Annex 1.
"Copyrights" shall mean, collectively, (a) all non-foreign copyrights,
copyright registrations and applications for
copyright registrations, (b) all renewals and extensions of all
non-foreign copyrights, copyright registrations and applications
for copyright registration and (c) all rights, now existing or
hereafter coming into existence, (i) to all income, royalties,
damages and other payments (including in respect of all past,
present or future infringements) now or hereafter due or payable
under or with respect to any of the foregoing, (ii) to ▇▇▇ for
all past, present and future infringements with respect to any of
the foregoing and (iii) otherwise accruing under or pertaining to
any of the foregoing.
"Deposit Account" shall have the meaning assigned to
that term in Section 9105 of the Uniform Commercial Code as in
effect on the date of this Agreement, without regard to any
subsequent amendments.
"Document" shall have the meaning assigned to that term
in Section 9105 of the Uniform Commercial Code as in effect on
the date of this Agreement, without regard to any subsequent
amendments.
"Equipment" shall have the meaning assigned to that
term in Section 9109 of the Uniform Commercial Code as in effect
on the date of this Agreement, without regard to any subsequent
amendments.
"General Intangibles" shall have the meaning assigned
to that term in Section 9106 of the Uniform Commercial Code as in
effect on the date of this Agreement, without regard to any
subsequent amendments.
"Instrument" shall have the meaning assigned to that
term in Section 9105 of the Uniform Commercial Code as in effect
on the date of this Agreement, without regard to any subsequent
amendments.
"Intellectual Property" shall mean all Copyright
Collateral, all Patent Collateral and all Trademark Collateral,
together with (a) all inventions, processes, production methods,
proprietary information, know-how and trade secrets; (b) all
licenses or user or other agreements granted to the Company with
respect to any of the foregoing, in each case whether now or
hereafter owned or used; (c) all information, customer lists,
identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer
and automatic machinery software and programs; (d) all accounting
information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all
computer programs used for the compilation or printout of such
information, knowledge, records or data; (e) all governmental
approvals now held or hereafter obtained by the Company in
respect of any of the foregoing; and (f) all causes of action,
claims and warranties now owned or hereafter acquired by the
Company in respect of any of the foregoing. It is understood
that Intellectual Property shall include all of the foregoing
owned or acquired by the Company on a worldwide basis.
"Inventory" shall have the meaning assigned to that
term in Section 9109 of the Uniform Commercial Code as in effect
on the date of this Agreement, without regard to any subsequent
amendments.
"Lien" shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on common law,
statute or contract. The term "Lien" shall also include
reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting Property. For
the purpose of the Agreement, the Company shall be deemed to be
the owner of any Property which it has acquired or holds subject
to a conditional sale agreement or other arrangement pursuant to
which title to the Property has been retained by or vested in
some other Person for security purposes.
"Motor Vehicles" shall mean motor vehicles, tractors,
trailers and other like property, whether or not the title to
such property is governed by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now
owned or hereafter acquired by the Company, including each Patent
identified in Annex 2.
"Patents" shall mean, collectively, (a) all non-foreign
patents and patent applications, (b) all reissues, divisions,
continuations, renewals, extensions and continuations-in-part of
all patents or patent applications and (c) all rights, now
existing or hereafter coming into existence, (i) to all income,
royalties, damages, and other payments (including in respect of
all past, present and future infringements) now or hereafter due
or payable under or with respect to any of the foregoing, (ii) to
▇▇▇ for all past, present and future infringements with respect
to any of the foregoing and (iii) otherwise accruing under or
pertaining to any of the foregoing, including all inventions and
improvements described or discussed in all such patents and
patent applications.
"Person" means any individual, corporation, company,
voluntary association, partnership, joint venture, trust,
unincorporated organization, limited liability company or
governmental entity.
"Proceeds" shall have the meaning assigned to that term
in Section 9306 of the Uniform Commercial Code.
"Property" shall mean any interest in any kind of
property or asset, whether real, personal or mixed, or tangible
or intangible.
"Secured Obligations" shall mean (a) any and all
Obligations, and (b) any and all other obligations of the Company
for the performance of its agreements, covenants and undertakings
under or in respect of the Loan Documents.
"Security" shall have the meaning assigned to that term
in Section 8102(c) of the Uniform Commercial Code.
"Trademark Collateral" shall mean all Trademarks,
whether now owned or hereafter acquired by the Company, including
each Trademark identified in Annex 3. Notwithstanding the
foregoing, the Trademark Collateral shall not include any
Trademark which would be rendered invalid, abandoned, void or
unenforceable by reason of its being included as part of the
Trademark Collateral.
"Trademarks" shall mean, collectively, (a) all non-foreign trade
names, trademarks and service marks, logos,
trademark and service ▇▇▇▇ registrations and applications for
trademark and service ▇▇▇▇ registrations, (b) all renewals and
extensions of any of the foregoing and (c) all rights, now
existing or hereafter coming into existence, (i) to all income,
royalties, damages and other payments (including in respect of
all past, present and future infringements) now or hereafter due
or payable under or with respect to any of the foregoing, (ii) to
▇▇▇ for all past, present and future infringements with respect
to any of the foregoing and (iii) otherwise accruing under or
pertaining to any of the foregoing, together, in each case, with
the product lines and goodwill of the business connected with the
use of, or otherwise symbolized by, each such trade name,
trademark and service ▇▇▇▇.
"Uniform Commercial Code" shall mean the Uniform
Commercial Code as in effect in the State of California from time
to time, except as otherwise specified herein.
Section 1.2 Interpretation. In this Agreement, unless
otherwise indicated: the singular includes the plural and plural
the singular; words importing either gender include the other
gender; references to statutes or regulations are to be construed
as including all statutory or regulatory provisions
consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing,
lithography and other means of reproducing words in a tangible
visible form; the words "including," "includes" and "include"
shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections),
exhibits, annexes or schedules are to this Agreement; references
to agreements and other contractual instruments shall be deemed
to include all subsequent amendments, extensions and other
modifications to such instruments (without, however, limiting any
prohibition on any such amendments, extensions and other
modifications by the terms of any Loan Document); and references
to Persons include their respective permitted successors and
assigns and, in the case of governmental entities, Persons
succeeding to their respective functions and capacities.
Section 2. Collateral.
2.1 Grant. As collateral security for the prompt
payment in full when due (whether at stated maturity, by
acceleration or otherwise) and performance of the Secured
Obligations, the Company hereby pledges and grants to the Bank a
security interest in all of the Company's right, title and
interest in and to the following property, whether now owned or
hereafter acquired by the Company and whether now existing or
hereafter coming into existence (collectively, the "Collateral"):
(a) all Accounts and General Intangibles, including
all rights to the payment of money, whether or not earned by
performance, including all moneys due and to become due to the
Company in repayment of any loans or advances, in payment for
goods (including Inventory and Equipment) sold or leased or for
services rendered, in payment of tax refunds and in payment of
any guarantee of any of the foregoing;
(b) all Documents, Instruments, and Chattel Paper and,
without limiting the generality of the foregoing, letters of
credit, including any such writing evidencing, representing,
arising from or existing in respect of, relating to, covering,
evidencing, securing or supporting the payment of, any of the
Accounts, General Intangibles, Equipment or Inventory;
(c) all Inventory, including all goods of the Company
that are held by the Company for sale, lease or furnishing under
a contract of service that are so leased or furnished, and
including all spare parts and related supplies, all goods
obtained by the Company in exchange for any such goods, all
products made or processed from any such goods and all
substances, if any, commingled with or added to any such goods;
(d) all Equipment, including all goods (excluding
Motor Vehicles) of the Company that are used or bought for use
primarily in its business, including all spare parts and related
supplies, all goods obtained by the Company in exchange for any
such goods, all substances, if any, commingled with or added to
such goods and all upgrades and other improvements to such goods;
(e) all money and Deposit Accounts and the balances
thereof from time to time, including the Cash Collateral Account
and the balance thereof from time to time;
(f) without limiting the generality of the foregoing,
all Intellectual Property;
(g) without limiting the generality of the foregoing,
all contracts and other agreements relating to the sale or other
disposition of all or any part of the Collateral and all rights,
warranties, claims and benefits against any Person arising out
of, relating to or in connection with all or any part of the
Collateral;
(h) without limiting the generality of the foregoing,
to the extent related to all or any part of the other Collateral,
all books, correspondence, credit files, records, invoices,
tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Company or any computer
bureau or service company from time to time acting for the
Company;
(i) without limiting the generality of the foregoing,
all Securities;
(j) without limiting the generality of the foregoing,
all property that is or may become fixtures under applicable law;
(k) all other tangible and intangible property of the
Company; and
(l) all Proceeds in whatever form of all or any part
of the other Collateral including all insurance payments in
respect of the Collateral and all condemnation awards and all
other compensation for any casualty event with respect to all or
any part of the other Collateral, together with all rights to
recover and proceed with respect to the same, and all accessions
to, substitutions for and replacements of all or any part of the
Collateral.
2.2 Intellectual Property. For the purpose of
enabling the Bank to exercise its rights, remedies, powers and
privileges under Section 6 at such time or times as the Bank
shall be lawfully entitled to exercise such rights, remedies,
powers and privileges, and for no other purpose, the Company
hereby grants to the Bank, to the extent assignable, an
irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to the Company) to use, assign,
license or sublicense any of the Intellectual Property, together
with reasonable access to all media in which any of the licensed
items may be recorded or stored and to all computer programs used
for the compilation or printout of such items.
2.3 Perfection. Concurrently with the execution and
delivery of this Agreement, the Company shall (i) execute such
financing statements and other documents as the Bank may request
with respect to the Liens granted hereby, (ii) deliver and pledge
to the Bank any and all Instruments, endorsed or accompanied by
such instruments of assignment and transfer in such form and
substance as the Bank may request, (iii) give appropriate notice
to the relevant depository institution or financial intermediary
with respect to all Deposit Accounts or uncertificated
Securities, and (iv) take all such other actions as the Bank may
request to perfect or establish the priority of the Liens granted
by this Agreement.
2.4 Preservation and Protection of Security Interests.
The Company shall:
(a) upon the acquisition after the Closing Date, by
the Company of any Instrument (so long as no Event of Default
shall have occurred and be continuing, excluding any checks
received by the Company for the payment of goods or services in
the ordinary course of business), promptly deliver and pledge to
the Bank all such Instruments, endorsed or accompanied by such
instruments of assignment and transfer in such form and substance
as the Bank may request;
(b) upon the acquisition after the Closing Date by the
Company of any Equipment (other than Motor Vehicles) covered by a
certificate of title or ownership issued by a jurisdiction whose
laws permit the notation of liens on such certificate, promptly
cause the Bank to be listed as the lienholder on such certificate
of title and within 120 days of the acquisition of such Equipment
deliver evidence of the same to the Bank;
(c) upon the Company's acquiring, or otherwise
becoming entitled to the benefits of, any Copyright (or
copyrightable material), Patent (or patentable invention),
Trademark (or associated goodwill) or other Intellectual Property
or upon or prior to the Company's filing, either directly or
through any agent, licensee or other designee, of any application
with any governmental entity for any Copyright, Patent,
Trademark, or other Intellectual Property, in each case after the
Closing Date, amend Annex 1, 2 or 3 (as the case may be) to
reflect the inclusion of any such Intellectual Property as part
of the Collateral (it being understood that the failure to amend
any such Annex shall not affect the Liens granted by this
Agreement on any such Intellectual Property); and
(d) give, execute, deliver, file or record any and all
financing statements, notices, contracts, agreements or other
instruments, obtain any and all governmental approvals and take
any and all steps that may be necessary or as the Bank may
request to create, perfect, establish the priority of, or to
preserve the validity, perfection or priority of, the Liens
granted by this Agreement or to enable the Bank to exercise and
enforce its rights, remedies, powers and privileges under this
Agreement with respect to such Liens, provided that notices to
account debtors or other Persons obligated in respect of any
Accounts, General Intangibles, Instruments or Securities shall be
governed by the provisions of Section 3.2.
2.5 Attorney-in-Fact.
(a) Subject to the rights of the Company under
Sections 2.6, 2.7, 2.8 and 2.9, the Bank is hereby appointed the
attorney-in-fact of the Company for the purpose of carrying out
the provisions of this Agreement and taking any action and
executing any instruments which the Bank may deem necessary or
advisable to accomplish the purposes of this Agreement, to
preserve the validity, perfection or priority of the Liens
granted by this Agreement, including the execution and filing of
financing statements, continuation statements and the like, and
to exercise its rights, remedies, powers and privileges under
this Agreement. This appointment as attorney-in-fact is
irrevocable and coupled with an interest. The Bank shall be
entitled under this Agreement upon the occurrence and during the
continuance of any Event of Default, (i) to ask, demand, collect,
▇▇▇ for, recover, receive and give receipt and discharge for
amounts due and to become due under and in respect of all or any
part of the Collateral; (ii) to receive, endorse and collect any
Instruments or other drafts, instruments, documents and chattel
paper in connection with clause (i) above (including any draft or
check representing the proceeds of insurance or the return of
unearned premiums); (iii) to file any claims or take any action
or proceeding that the Bank may deem necessary or advisable for
the collection of all or any part of the Collateral, including
the collection of any compensation due and to become due under
any contract or agreement with respect to all or any part of the
Collateral; (iv) to execute, in connection with any sale or
disposition of the Collateral under Section 6, any endorsements,
assignments, bills of sale or other instruments of conveyance or
transfer with respect to all or any part of the Collateral; and
(v) to execute such documents and instruments on behalf of, and
to take such action in the name of, the Company as the Bank may
deem necessary or advisable to accomplish the purpose of this
Agreement.
(b) Without limiting the rights and powers of the Bank
under Section 2.5(a), the Company hereby appoints the Bank as its
attorney-in-fact, effective as of the Closing Date and
terminating upon the termination of this Agreement and upon
satisfaction in full of the Secured Obligations, for the purpose
of executing and filing all such contracts, agreements and other
documents as are contemplated by Section 2.4(c) but subject to
the limitations of Section 5.5. This appointment as
attorney-in-fact is irrevocable and coupled with an interest.
2.6 Use of Intellectual Property. So long as no Event
of Default shall have occurred and be continuing, the Company
will be permitted to exploit, use, enjoy, protect, license,
sublicense, assign, sell, dispose of or take other actions with
respect to the Intellectual Property in the ordinary course of
the business of the Company. In furtherance of the foregoing, so
long as no Event of Default shall have occurred and be
continuing, the Bank shall from time to time, upon the request of
the Company, execute and deliver any instruments, certificates or
other documents, in the form so requested, which the Company
shall have certified are appropriate (in its judgment) to allow
it to take any action permitted above (including relinquishment
of the license provided pursuant to Section 2.2 as to any
specific Intellectual Property). The exercise of rights,
remedies, powers and privileges under Section 6 by the Bank shall
not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by the Company in accordance with
the first sentence of this Section 2.6.
2.7 Instruments. So long as no Event of Default shall
have occurred and be continuing, the Company may retain for
collection in the ordinary course of business any checks received
by the Company for the payment of goods and services in the
ordinary course of business, and the Bank shall, promptly upon
the request, and at the expense, of the Company, make appropriate
arrangements for making any other Instruments pledged by the
Company available to the Company for purposes of presentation,
collection or renewal. Any such arrangement shall be effected,
to the extent deemed appropriate by the Bank, against trust
receipt or like document.
2.8 Use or Sale of Collateral. So long as no Event
of Default shall have occurred and be continuing, the Company
shall, in addition to its rights under Sections 2.6 and 2.7 in
respect of the Collateral contemplated in those sections, be
entitled to use and possess the other Collateral and to exercise
its rights, title and interest in all contracts, agreements,
licenses and governmental approvals, subject to the rights,
remedies, powers and privileges of the Bank under Sections 3 and
6 and to such use, possession or exercise not otherwise
constituting an Event of Default.
2.9 Rights and Obligations.
(a) The Company shall remain liable to perform its
duties and obligations under the contracts and agreements
included in the Collateral in accordance with their respective
terms to the same extent as if this Agreement had not been
executed and delivered. The exercise by the Bank of any right,
remedy, power or privilege in respect of this Agreement shall not
release the Company from any of its duties and obligations under
such contracts and agreements. The Bank shall not have any duty,
obligation or liability under such contracts and agreements or in
respect to any governmental approval included in the Collateral
by reason of this Agreement or any other Loan Document, nor shall
the Bank be obligated to perform any of the duties or obligations
of the Company under any such contract or agreement or any such
governmental approval or to take any action to collect or enforce
any claim (for payment) under any such contract or agreement or
governmental approval.
(b) No Lien granted by this Agreement in the Company's
right, title and interest in any contract, agreement or
governmental approval shall be deemed to be a consent by the Bank
to any such contract, agreement or governmental approval.
(c) No reference in this Agreement to Proceeds or to
the sale or other disposition of Collateral shall authorize the
Company to sell or otherwise dispose of any Collateral except to
the extent otherwise expressly permitted by the terms of any Loan
Document.
(d) The Bank shall not be required to take steps
necessary to preserve any rights against prior parties to any
part of the Collateral.
2.10 Termination. When all Secured Obligations shall
have been fully paid or otherwise fully performed and the
commitments thereunder and all Letter of Credit Obligations shall
have expired or been terminated, this Agreement shall terminate,
and the Bank shall, on the Company's written demand and at no
cost to the Bank, forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money
received in respect of the Collateral, to or on the order of the
Company and to be released, canceled and granted back all
licenses and rights referred to in Section 2.2. The Bank shall
also execute and deliver to the Company upon such termination
such Uniform Commercial Code termination statements and such
other documentation as shall be reasonably requested by the
Company to effect the termination and release of the Liens
granted by this Agreement on the Collateral.
Section 3. Cash Proceeds of Collateral.
3.1 Cash Collateral Account. The balance from time to
time in the Cash Collateral Account shall constitute part of the
Collateral and shall not constitute payment of the Secured
Obligations until applied as provided in the Loan Agreement.
3.2 Certain Proceeds.
(a) If any Event of Default shall have occurred and be
continuing, the Company shall, upon request of the Bank, instruct
(and the Company hereby authorizes the Bank so to notify) each
account debtor and other Person obligated in respect of any
Accounts and General Intangibles to make all payments in respect
of the Accounts, General Intangibles directly to the Bank (by
instructing that such payments shall be made to the Bank for
deposit into the Cash Collateral Account) or to such other
Persons or under other arrangements in form and substance
satisfactory to the Bank.
(b) If any Event of Default shall have occurred and be
continuing, the Company shall, upon request of the Bank, promptly
notify (and the Company hereby authorizes the Bank so to notify)
each account debtor in respect of any Instruments or Securities
that such Collateral has been assigned to the Bank under this
Agreement and that any payments due or to become due in respect
of such Collateral are to be made directly to the Bank. All such
payments made to the Bank shall be immediately deposited in the
Cash Collateral Account.
(c) The Company agrees that if the Proceeds of any
Collateral required to be deposited in the Cash Collateral
Account shall be received by the Company, the Company shall
promptly deposit such Proceeds into the Cash Collateral Account
or, if the Proceeds are of a type that cannot be so deposited,
deliver such Proceeds to the Bank in kind. Until so deposited or
delivered, all such Proceeds shall be held in trust by the
Company for the Bank and shall not be commingled with any other
funds or property of the Company.
Section 4. Representations and Warranties. As of the
Closing Date and as of the date of each extension of credit by
the Bank under the Loan Agreement, the Company represents and
warrants to the Bank as follows:
4.1 Title. The Company is the sole beneficial owner
of the Collateral in which it purports to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant
to this Agreement, and such Collateral is free and clear of all
Liens, except for Liens expressly permitted in the Loan
Documents. The Liens granted by this Agreement in favor of the
Bank for the benefit of the Bank have attached and constitute a
perfected security interest in all of such Collateral prior to
all other Liens (except such permitted Liens or Liens disclosed
in the Schedule to the Loan Agreement). Notwithstanding the
foregoing, nothing contained in this Section 4.1 shall derogate
the grant of a security interest under Section 2.1 with respect
to any property not owned by the Company but with respect to
which the Company has sufficient rights to confer a security
interest.
4.2 Intellectual Property.
(a) Annexes 1, 2 and 3 set forth completely and
correctly all Copyrights, Patents and Trademarks owned by the
Company on the Closing Date; except pursuant to licenses and
other user agreements entered into by the Company in the ordinary
course of business, the Company owns and possesses the right to
use, and has done nothing to authorize or enable any other Person
to use, any Copyright, Patent or Trademark listed in Annex 1, 2
or 3; all registrations listed in Annexes 1, 2 and 3 are valid
and in full force and effect; and, except as limited by certain
licensing agreements, the Company owns and possesses the right to
use all Copyrights, Patents and Trademarks listed in Annexes 1, 2
and 3.
(b) To the Company's knowledge, (i) there is no
violation by others of any right of the Company with respect to
any Copyright, Patent or Trademark listed in Annex 1, 2 or 3 and
(ii) the Company is not infringing in any respect upon any
Copyright, Patent or Trademark of any other Person; and no
proceedings have been instituted, are pending against the Company
or, to the Company's knowledge, have been threatened against, and
no claim has been received by, the Company, alleging any such
violation.
(c) The Company does not own any Trademarks registered
in the United States of America to which the last sentence of the
definition of Trademark Collateral applies.
Section 5. Covenants.
5.1 Books and Records. The Company shall:
(a) keep full and accurate books and records relating
to the Collateral and stamp or otherwise ▇▇▇▇ such books and
records in such manner as the Bank may reasonably require in
order to reflect the Liens granted by this Agreement; and
(b) permit representatives of the Bank, upon
reasonable notice, at any time during normal business hours, to
inspect and make abstracts from its books and records pertaining
to the Collateral, permit representatives of the Bank to be
present at the Company's place of business to receive copies of
all communications and remittances relating to the Collateral and
forward copies of any notices or communications received by the
Company with respect to the Collateral, all in such manner as the
Bank may reasonably request.
5.2 Removals, Etc. Without at least 30 days' prior
written notice to the Bank, the Company shall not (i) maintain
any of its books and records with respect to the Collateral at
any office or maintain its principal place of business at any
place, other than at the address initially indicated for notices
to it under Section 7.2 or at one of the locations identified in
Annex 4 or in transit from one of such locations to another,
(ii) without also obtaining the prior written consent of the
Bank, maintain any Collateral (other than "3UP" Servo Writers,
any Servo Writers hereafter acquired and any newly acquired
Equipment which is (a) financed with a third party to the extent
permitted under Section 2.2(d) of the Loan Agreement and (b)
which is shipped immediately out of the United States) at any
place other than at the address initially indicated for notices
to it under Section 7.2 or at one of the locations identified in
Annex 4 or in transit from one of such locations to another, or
(iii) change its corporate name, or the name under which it does
business, from the name shown on the signature pages to this
Agreement.
5.3 Sales and Other Liens. Except as otherwise
permitted under the Loan Agreement, without the prior written
consent of the Bank, the Company shall not dispose of any
Collateral, create, incur, assume or suffer to exist any Lien
upon any Collateral or file or suffer to be on file or authorize
to be filed, in any jurisdiction, any financing statement or like
instrument with respect to all or any part of the Collateral in
which the Bank is not named as the sole secured party for the
benefit of the Bank.
5.4 Intellectual Property.
(a) The Company (either itself or through licensees)
will, for each Trademark, (i) to the extent consistent with past
practice and good business judgment, continue to use such
Trademark on each and every trademark class of goods in order to
maintain such Trademark in full force and effect free from any
claim of abandonment for nonuse, (ii) maintain as in the past the
quality of products and services offered under such Trademark,
(iii) employ such Trademark with the appropriate notice of
registration and (iv) not (and not permit any licensee or
sublicensee to) do any act or knowingly omit to do any act
whereby any Trademark material to the conduct of its business may
become invalidated.
(b) The Company will not do or omit to do and will use
its best efforts to prevent any licensee from doing or knowingly
omitting to do any act whereby any Patent material to the conduct
of the Company's business may become abandoned or dedicated.
(c) The Company shall notify the Bank promptly if it
knows or has reason to know that any Intellectual Property
material to the conduct of its business may become abandoned or
dedicated, or of any adverse determination or development
(including the institution of, or any such determination or
development in, any proceeding before any governmental entity)
regarding the Company's ownership of any Intellectual Property
material to the conduct of its business, its right to copyright,
patent or register the same (as the case may be), or its right to
keep, use and maintain the same.
(d) The Company will take all necessary steps that are
consistent with good business practices in any proceeding before
any appropriate governmental entity to maintain and pursue each
application relating to any Intellectual Property (and to obtain
the relevant registrations) and to maintain each registration
material to the conduct of its business, including payment of
maintenance fees, filing of applications for renewal, affidavits
of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.
(e) In the event that any Intellectual Property
material to the conduct of its business is infringed,
misappropriated or diluted by a third party, the Company shall
notify the Bank within thirty (30) days after it learns of such
event and shall, if consistent with good business practice,
promptly ▇▇▇ for infringement, misappropriation or dilution, seek
temporary restraints and preliminary injunctive relief to the
extent practicable, seek to recover any and all damages for such
infringement, misappropriation or dilution and take such other
actions as are appropriate under the circumstances to protect
such Collateral.
(f) The Company shall, through counsel acceptable to
the Bank, prosecute diligently any application for any
Intellectual Property pending as of the date of this Agreement or
thereafter made until the termination of this Agreement, make
application on uncopyrighted but copyrightable material,
unpatented but patentable inventions and unregistered but
registerable Trademarks and preserve and maintain all rights in
applications for any Intellectual Property; provided, however,
that the Company shall have no obligation to make any such
application if making such application would be unnecessary or
imprudent in the good faith business judgment of the Company.
Any expenses incurred in connection with such an application
shall be borne by the Company. The Company shall not abandon any
right to file an application for any Intellectual Property or any
pending such application in the United States without the consent
of the Bank, which consent shall not be unreasonably withheld.
(g) The Bank shall have the right but shall in no way
be obligated to bring suit in its own name to enforce the
Copyrights, Patents and Trademarks and any license under such
Intellectual Property, in which event the Company shall, at the
request of the Bank, do any and all lawful acts and execute and
deliver any and all proper documents required by the Bank in aid
of such enforcement action.
5.5 Further Assurances. The Company agrees that, from
time to time upon the request of the Bank, the Company will
execute and deliver such further writings and do such other acts
and things as the Bank may reasonably request in order fully to
effect the purposes of this Agreement. After the occurrence of
an Event of Default under the Loan Agreement, at the Bank's
request, Borrower shall execute and deliver to the Bank, and file
with each relevant governmental entity, each of the assignments
in the form of Annex 5 (in the case of any Patent Collateral) and
Annex 6 (in the case of any Trademark Collateral). Prior to the
occurrence of an Event of Default under the Loan Agreement, the
Bank will not record or file any matter with the United States
Patent and Trademark Office or any other federal agency to
evidence or perfect the Bank's security interest in the
Intellectual Property.
Section 6. Remedies.
6.1 Events of Default, Etc. If any Event of Default
shall have occurred and be continuing:
(a) the Bank in its discretion may require the Company
to, and the Company shall, assemble the Collateral owned by it at
such place or places, reasonably convenient to both the Bank and
the Company, designated in the Bank's request.
(b) the Bank in its discretion may make any reasonable
compromise or settlement it deems desirable with respect to any
of the Collateral and may extend the time of payment, arrange for
payment in installments, or otherwise modify the terms of, all or
any part of the Collateral.
(c) the Bank in its discretion may, in its name or in
the name of the Company or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable
on account of or in exchange for all or any part of the
Collateral, but shall be under no obligation to do so.
(d) in the event of any sale, license or other
disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject
to such disposition shall be included, and the Company shall
supply to the Bank or its designee, for inclusion in such sale,
assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral.
(e) in addition to any rights conferred by this
Agreement, the Bank shall have, and in its discretion may
exercise, all of the rights, remedies, powers and privileges with
respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not a version of the Official Text of
the Uniform Commercial Code is in effect in the jurisdiction
where such rights, remedies, powers and privileges are asserted)
and such additional rights, remedies, powers and privileges to
which a secured party is entitled under the laws in effect in any
jurisdiction where any rights, remedies, powers and privileges in
respect of this Agreement or the Collateral may be asserted,
including the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of ownership
pertaining to the Collateral (and the Company agrees to take all
such action as may be appropriate to give effect to such right).
The Proceeds of, and other realization upon, the Collateral by
virtue of the exercise of remedies under this Section 6.1 and of
the exercise of the license granted to the Bank in Section 2.2
shall be applied in accordance with Section 6.4.
6.2 Deficiency. If the Proceeds of, or other
realization upon, the Collateral by virtue of the exercise of
remedies under Section 6.1 and of the exercise of the license
granted by the Bank in Section 2.2 are insufficient to cover the
costs and expenses of such exercise and the payment in full of
the other Secured Obligations, the Company shall remain liable
for any deficiency.
6.3 Manner of Disposition. The Bank shall incur no
liability as a result of the sale, lease or other disposition of
all or any part of the Collateral conducted in any commercially
reasonable manner. The Company hereby waives any claims against
the Bank arising by reason of the fact that the price at which
the Collateral may have been sold, leased, or otherwise disposed
of was less than the price which might have been obtained by some
other manner of sale, lease or other disposition or was less than
the aggregate amount of the Secured Obligations, even if, in
connection with a private sale or other non-public disposition,
the Bank accepts the first offer received and does not offer the
Collateral to more than one offeree, so long as the Bank has
acted in a commercially reasonable manner.
6.4 Application of Proceeds. Except as otherwise
expressly provided in this Agreement and except as provided below
in this Section 6.4, the Proceeds of, or other realization upon,
all or any part of the Collateral by virtue of the exercise of
remedies under Section 6.1 or of the exercise of the license
granted in Section 2.2, and any other cash at the time held by
the Bank under Section 3 or this Section 6, shall be applied by
the Bank:
First, to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, or leasing or other
disposition of the Collateral, including reasonable out-of-pocket
costs and expenses of the Bank, and the reasonable fees and
expenses of its agents, as well as reasonable attorneys' fees and
legal expenses incurred by the Bank in that connection;
Next, to satisfaction of the Secured Obligations in
such order as the Bank in its discretion may choose; and
Finally, to the Persons legally entitled thereto, or as
a court of competent jurisdiction may direct, with respect to any
surplus then remaining.
Section 7. Miscellaneous.
7.1 Waiver. No failure on the part of the Bank to
exercise and no delay in exercising, and no course of dealing
with respect to, any right, remedy, power or privilege under this
Agreement shall operate as a waiver of such right, remedy, power
or privilege, nor shall any single or partial exercise of any
right, remedy, power or privilege under this Agreement preclude
any other or further exercise of any such right, remedy, power or
privilege or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided
in this Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
7.2 Notices. All notices and communications to be
given under this Agreement shall be given or made in writing to
the intended recipient at the address specified below or, as to
any party, at such other address as shall be designated by such
party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telex or
telecopier, or personally delivered or, in the case of a mailed
notice, upon receipt, in each case, given or addressed as
provided in this Section 7.2:
To the Company:
Iomega Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer, with a copy to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Bank:
▇▇▇▇▇ Fargo Bank, N.A.
Commercial Finance Division
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notwithstanding the foregoing, if a notice is
transmitted by telex, telecopier or personal delivery or, in the
case of a mailed notice, is received on a day that is not a
business day, then such notice shall be deemed to have been duly
given on the first business day after such transmission or, in
the case of a mailed notice, receipt.
7.3 Expenses, Etc. The Company agrees to pay or to
reimburse the Bank for all reasonable costs and expenses
(including reasonable attorneys' fees and expenses) that may be
incurred by the Bank in any effort to enforce any of the
provisions of Section 6 or any of the obligations of the Company
in respect of the Collateral or in connection with (a) the
preservation of the Lien of, or the rights of the Bank under this
Agreement, (b) any actual or attempted sale, lease, disposition,
exchange, collection, compromise, settlement or other realization
in respect of, or care of, the Collateral, or (c) all such
reasonable costs and expenses and any other reasonable costs and
expenses, including reasonable attorneys' fees and expenses
incurred in any bankruptcy, reorganization, workout,
restructuring or other similar process or proceeding, including
reasonable costs, expenses and reasonable attorneys' fees and
expenses relating to any proceeding concerning relief from stay,
cash collateral, appointment of a trustee, disclosure statement
approval, or plan confirmation. Notwithstanding the foregoing,
the Company's obligation to reimburse the Bank for legal fees and
expenses incurred in connection with the initial documentation of
this Agreement and the other Loan Documents shall be governed by
Section 11.4 of the Loan Agreement, and in connection with any
modification of the terms of this Agreement that is not in
connection with any bankruptcy, reorganization, workout,
restructuring or other similar process or proceeding, the Company
shall be obligated to reimburse the Bank for its reasonable costs
and expenses (including reasonable attorneys' fees and costs).
7.4 Amendments, Etc. Any provision of this Agreement
may be modified, supplemented or waived only by an instrument in
writing duly executed by the Company and the Bank. Any such
modification, supplement or waiver shall be for such period and
subject to such conditions as shall be specified in the
instrument effecting the same and shall be binding upon the Bank
and the Company, and any such waiver shall be effective only in
the specific instance and for the purposes for which given.
7.5 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Company and the
Bank, and their respective successors and permitted assigns. The
Company shall not assign or transfer its rights under this
Agreement without the prior written consent of the Bank.
7.6 Survival. All representations and warranties made
in this Agreement or in any certificate or other document
delivered pursuant to or in connection with this Agreement shall
survive the execution and delivery of this Agreement or such
certificate or other document (as the case may be) or any deemed
repetition of any such representation or warranty.
7.7 Agreements Superseded. This Agreement supersedes
all prior agreements and understandings (including any and all
commitment letters and term sheets), written or oral, between the
Company and the Bank with respect to the subject matter of this
Agreement.
7.8 Severability. Any provision of this Agreement
that 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 of this Agreement, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.9 Captions. The table of contents and captions and
section headings appearing in this Agreement are included solely
for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
7.10 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties to
this Agreement may execute this Agreement by signing any such
counterpart.
7.11 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF CALIFORNIA. THE COMPANY HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND OF ANY STATE
COURT SITTING IN THE COUNTY OF LOS ANGELES, CALIFORNIA FOR THE
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
7.12 WAIVER OF JURY TRIAL. THE COMPANY AND THE BANK
HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
IOMEGA CORPORATION
By:/s/▇▇▇▇▇▇▇ ▇. Purkis_________________
Title:Chief Financial Officer
▇▇▇▇▇ FARGO BANK, N.A.
By:/s/▇▇▇▇▇▇▇ ▇. Baranowski_____________
Title: Vice President / RM
ANNEX 1
LIST OF NON-FOREIGN COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
IOMEGA CORPORATION
Title Date Filed Registration No. Closing Date
ANNEX 2
LIST OF NON-FOREIGN PATENTS AND PATENT APPLICATIONS
IOMEGA CORPORATION
File Patent Country Registration No. Date
ANNEX 3
LIST OF NON-FOREIGN TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE ▇▇▇▇ REGISTRATIONS
U.S. Trademarks
IOMEGA CORPORATION
Application (A)
Registration (R) Registration
▇▇▇▇ or Series No. (S) or Filing Date
ANNEX 4
LIST OF LOCATIONS
IOMEGA CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇▇
ANNEX 5
ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, Iomega Corporation, a Delaware corporation
(herein referred to as "Assignor"), owns the letters patent,
and/or applications for letters patent, of the United States,
more particularly described on Schedule 1 annexed hereto as part
hereof (the "Patents");
WHEREAS, Assignor has executed and delivered to ▇▇▇▇▇
Fargo Bank, N.A. (herein referred to as "Assignee") for the
benefit of Assignee under the Loan Agreement dated as of July 5,
1995 (as amended, supplemented, restated or otherwise modified
from time to time, the "Loan Agreement"), a Security Agreement of
even date herewith (the "Agreement", terms defined therein and
not otherwise defined herein being used herein as therein
defined) in favor of Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has
assigned to Assignee, and granted to Assignee a security interest
in, and mortgage on, all right, title and interest of Assignor in
and to the Patents, together with any reissue, continuation,
continuation-in-part or extension thereof, and all proceeds
thereof, including, without limitation, any and all causes of
action which may exist by reason of infringement thereof for the
full term of the Patents (the "Intellectual Property
Collateral"), to secure the prompt payment, performance and
observance of the Secured Obligations;
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, Assignor does hereby
further assign unto Assignee and grant to Assignee a security
interest in, and mortgage on, the Intellectual Property
Collateral to secure the prompt payment, performance and
observance of the Secured Obligations.
Assignor does hereby further acknowledge and affirm
that the rights and remedies of Assignee with respect to the
assignment of, security interest in and mortgage on the
Intellectual Property 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.
Assignee's address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇▇
▇▇▇▇▇.
IN WITNESS WHEREOF, Assignor has caused this Assignment
to be duly executed by its officer thereunto duly authorized as
of the 5th day of July, 1995.
IOMEGA CORPORATION
By: _______________________________
Name: _________________________
Title: ________________________
SCHEDULE 1 TO ASSIGNMENT FOR SECURITY
PATENTS
Title Date Issued Patent No.
ANNEX 6
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, Iomega Corporation, a Delaware corporation
(herein referred to as "Assignor"), has adopted, used and is
using the trademarks listed on the annexed Schedule 1, which
trademarks are registered in the United States Patent and
Trademark Office (the "Trademarks");
WHEREAS, Assignor has executed and delivered to ▇▇▇▇▇
Fargo Bank, N.A. (herein referred to as "Assignee") for the
benefit of Assignee under the Loan Agreement dated as of July 5,
1995 (as amended, supplemented, restated or otherwise modified
from time to time, the "Loan Agreement"), a Security Agreement of
even date herewith (the "Agreement", terms defined therein and
not otherwise defined herein being used herein as therein
defined) in favor of Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has
assigned to Assignee and granted to Assignee a security interest
in, and mortgage on, all right, title and interest of Assignor in
and to the Trademarks, together with the goodwill of the business
symbolized by the Trademarks and the applications and
registrations thereof, and all proceeds thereof, including,
without limitation, any and all causes of action which may exist
by reason of infringement thereof (the "Intellectual Property
Collateral"), to secure the payment, performance and observance
of the Secured Obligations;
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, Assignor does hereby
further assign unto Assignee and grant to Assignee a security
interest in, and mortgage on, the Intellectual Property
Collateral to secure the prompt payment, performance and
observance of the Secured Obligations.
Assignor does hereby further acknowledge and affirm
that the rights and remedies of Assignee with respect to the
assignment of, security interest in and mortgage on the
Intellectual Property 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.
Assignee's address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇▇
▇▇▇▇▇.
IN WITNESS WHEREOF, Assignor has caused this Assignment
to be duly executed by its officer thereunto duly authorized as
of the 5th day of July, 1995.
IOMEGA CORPORATION
By: _______________________________
Name: _________________________
Title: ________________________
SCHEDULE 1 TO ASSIGNMENT FOR SECURITY
TRADEMARKS
Trademark Reg. Date Reg. No.