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Exhibit
10.8
COPYRIGHT SECURITY
AGREEMENT
This Copyright Security
Agreement (the “Agreement”) dated as of June 10,
2008, is made by and between Chambers Belt Company, a Delaware
corporation having a business location at the address set forth
below next to its signature (the “Company”), and Wells
Fargo Bank, National Association (“Wells Fargo”), and
having a business location at the address set forth below next to
its signature.
Recitals
A. The Company is the owner
of all of the copyrighted works, registrations, and applications
for registration described in Schedule A hereto.
B. The Company, certain
affiliates of the Company, and Wells Fargo are parties to a Credit
and Security Agreement (as amended, supplemented or restated from
time to time, the “Credit Agreement”) dated the same
date as this Agreement.
C. As a condition to
extending credit under the Credit Agreement, Wells Fargo has
required that the Company execute this Agreement to evidence the
security interest granted to Wells Fargo in any copyrights or
copyright applications not expressly covered by other security
agreements.
ACCORDINGLY, in consideration
of the agreements of Wells Fargo set forth in the Credit Agreement,
the Company hereby agrees as follows:
1. Definitions . Terms
defined in the Credit Agreement and not otherwise defined herein
shall have the meanings given them in the Credit Agreement. In
addition, the following terms have the meanings set forth
below:
“Copyrights”
means all of the Company’s right, title and interest in and
to all copyrightable works and all copyrights of the Company and
licenses thereunder, whether presently existing or hereafter
arising, including but not limited to the registered copyrights,
applications to register copyrights, and unregistered works (if
any) listed on Schedule A.
“Event of
Default” means (i) an Event of Default, as defined in
the Credit Agreement or any other credit agreement or security
agreement now in existence or hereafter entered into by the
Company, or (ii) any breach by the Company of any of its
obligations under this Agreement.
2. Security Interest .
In order to secure the Indebtedness, the Company hereby confirms
and acknowledges that it has granted and created (and, to the
extent not previously granted under the Credit Agreement, does
hereby irrevocably grant and create) a security interest, with
power of sale to the extent permitted by law, in the Copyrights.
This security interest is in any and all rights of Company that may
exist or hereafter arise under any copyright law now or hereinafter
in effect in the United States of America or in any other
country.
3. Representations and
Warranties . The Company represents and warrants that
(a) the Company owns each of the works and rights listed in
Schedule A, free and clear of any Lien other than Permitted Liens,
and (b) the Copyrights listed in Schedule A include all
copyrightable works owned or controlled by the Company as of the
effective date hereof, excluding immaterial copyrights.
4. Satisfaction . Upon
full payment or satisfaction of the Indebtedness and termination of
any credit facilities extended to the Company by Wells Fargo, this
Agreement, and the rights granted hereunder to Wells Fargo, shall
be terminated upon demand by a written termination statement to the
effect that Wells Fargo no longer claims a security interest under
this Agreement.
5. Administration of
Copyrights . Prior to the occurrence of an Event of Default,
the Company may control and manage the Copyrights, including the
right to make and distribute copies of the works covered thereby,
and may receive and use the income, revenue, profits, and royalties
that arise from the use of the Copyrights and any licenses
thereunder, in the same manner and to the same extent as if this
Agreement had not been entered into. The Company shall give Wells
Fargo prompt notice of any change in the status of said Copyrights
or the Company’s rights thereunder.
6. Protection of
Copyrights . The Company covenants that it will at its own
expense protect, defend and maintain the Copyrights to the extent
reasonably advisable in its business, and if the Company fails to
do so, Wells Fargo may (but shall have no obligation to) do so in
the Company’s name or in Wells Fargo’s name, but at the
Company’s expense, and the Company shall reimburse Wells
Fargo in full for all expenses, including reasonable
attorney’s fees incurred by Wells Fargo in protecting,
defending and maintaining the Copyrights. The Company further
covenants that it will give notice to Wells Fargo sufficient to
allow Wells Fargo to timely carry out the provisions of this
paragraph.
7. Remedies . Upon the
occurrence of an Event of Default and at any time during the
Default Period commenced thereby, Wells Fargo may, at its option,
exercise any one or more of the following remedies:
(a) exercise all rights and remedies available under the UCC,
or under any applicable law; (b) sell, assign, transfer,
pledge, encumber or otherwise dispose of any Copyright;
(c) enforce any Copyright, and any licenses thereunder; and
(d) exercise or enforce any or all other rights or remedies
available to Wells Fargo by law or agreement against the
Copyrights, against the Company or against any other person or
property. Upon the exercise of any remedy by Wells Fargo hereunder,
the Company shall be deemed to have waived all of its rights
provided in 17 U.S.C. § 106A or any other “moral
rights of authors.” If Wells Fargo shall exercise any remedy
under this Agreement, the Company shall, at the request of Wells
Fargo, do any and all lawful acts and execute any and all proper
documents required by Wells Fargo in aid of thereof. For the
purposes of this paragraph, the Company appoints Wells Fargo as its
attorney with the right, but not the duty, at any time after the
occurrence of an Event of Default and continuing during the Default
Period commenced thereby, to endorse such Company’s
name
-2-
Copyright Security
Agreement
WFBC/ Chambers Belt
Company
on all applications, documents, papers
and instruments necessary for Wells Fargo to (i) act in its
own name or enforce or use the Copyrights, (ii) grant or issue
any exclusive or non-exclusive licenses under the Copyrights to any
third party, and/or (iii) sell, assign, transfer, pledge,
encumber or otherwise transfer title in or dispose of any
Copyright. The Company hereby ratifies all that such attorney shall
lawfully do or cause to be done by virtue hereof. This power of
attorney shall be irrevocable until satisfaction of this Agreement
in accordance with paragraph 4. The Company shall reimburse Wells
Fargo for all reasonable attorney’s fees and expenses of all
types incurred by Wells Fargo, or its counsel, in connection with
the exercise of the rights of Wells Fargo under this Agreement,
together with interest thereon from the date or dates the same were
incurred at the Default Rate.
8. Arbitration
.
(a) Arbitration. The
parties hereto agree, upon demand by any party, to submit to
binding arbitration all claims, disputes and controversies between
or among them (and their respective employees, officers, directors,
attorneys, and other agents), whether in tort, contract or
otherwise arising out of or relating to in any way this Agreement
and its negotiation, execution, collateralization, administration,
repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination.
(b) Governing Rules.
Any arbitration proceeding will (i) proceed in a location in
California selected by the American Arbitration Association
(“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of
the documents between the parties; and (iii) be conducted by
the AAA, or such other administrator as the parties shall mutually
agree upon, in accordance with the AAA’s commercial dispute
resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and
costs in which case the arbitration shall be conducted in
accordance with the AAA’s optional procedures for
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