Trademark Security Agreement

Trademark Security Agreement

This Security Agreement is made this day of , 20,

by , a corporation organized under the laws of

, having its principal office at ,

referred to herein as the Grantor, in favor of , a national banking

association, having its principal office at , referred to herein as the Bank.

Whereas, the Grantor owns the trademarks and trademark applications listed in Schedule A annexed to this Security Agreement; and

Whereas, the Grantor, certain of its affiliates and the Bank are parties to a certain Loan and Security Agreement dated on or about the date of this Security Agreement (as amended, amended and restated or otherwise modified from time to time, the Loan Agreement) and other related loan documents of the same date (collectively, with the Loan Agreement, and as each may be amended or otherwise modified from time to time, the Loan Documents), which Loan Documents provide for, among other things: (i) the Bank from time to time to extend credit to or for the account of the Grantor; and (ii) the grant by the Grantor to the Bank of a security interest in certain of the Grantor's assets, including but not limited to its trademarks and trademark applications.

Now, therefore, for and in consideration of the premises set forth in this Security Agreement and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Grantor agrees as follows:

I. Incorporation of Loan Documents. The Loan Documents and the terms and provisions of the Loan Documents are incorporated in this Security Agreement in their entirety by this reference. All terms capitalized but not otherwise defined in this Security Agreement shall have the same meanings in this Security Agreement as in the Loan Agreement.

II. Grant and Reaffirmation of Grant of Security Interests. To secure the complete and timely payment and satisfaction of the Obligations, the Grantor by this Security Agreement grants to the Bank, and reaffirms its prior grant pursuant to the Loan Documents of, a continuing security interest in the Grantor's entire right, title, and interest in and to: (i) all domain names, together with all contracts, agreements, licenses, and registrations relating to such domain names; and (ii) all of its now owned or existing and later acquired or arising trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, other business identifiers, prints and labels on which any of the foregoing have appeared or appear, all registrations and recordings of the same, and all applications (other than intent to use applications until a verified statement of use is filed with respect to such applications) in connection with the same, including but not limited to the trademarks and applications listed in Schedule A attached to and by this reference made a part of this Security Agreement, and the trademarks, and renewals of the trademarks, and all income, royalties, damages and payments now or later due or payable under or with respect to any of the foregoing, including but not limited to damages and payments for past, present, and future infringements of any of the foregoing and the right to sue for past, present, and future infringements of any of the foregoing (all of the foregoing individually or collectively referred to in this Security Agreement as the Trademarks); all rights corresponding to any of the foregoing throughout the world and the goodwill of the Grantor's business connected with the use of and symbolized by the Trademarks.

III. Warranties and Representations. To induce the Bank to enter into the Loan Agreement and to extend the loans and other financial accommodations provided for in the Loan Agreement, the Grantor warrants and represents that:

A. No registered Trademark has been adjudged invalid or unenforceable by a court of competent jurisdiction nor has any such Trademark been cancelled, in whole or in part and each such Trademark is presently subsisting;

B. The Grantor is the sole and exclusive owner of the entire and unencumbered right, title, and interest in and to each Trademark, free and clear of any liens, charges and encumbrances, including but not limited to shop rights and covenants by the Grantor not to sue third persons except for Permitted Liens;

C. The Grantor has no notice of any suits or actions commenced or threatened with reference to any Trademark except as disclosed in the Loan Agreement and its related schedules; and

D. The Grantor has the unqualified right to execute and deliver this Security Agreement and perform its terms.

IV. Restrictions on Future Agreements. The Grantor agrees that until the Obligations shall have been satisfied in full and the Loan Documents shall have been terminated, the Grantor shall not, without the prior written consent of the Bank, sell or assign its interest in any Trademark or enter into any other agreement with respect to any Trademark which would affect the validity or enforcement of the rights transferred to the Bank under this Security Agreement.

V. New Trademarks. The Grantor represents and warrants that, based on a diligent investigation by the Grantor, the Trademarks listed in Schedule A constitute all of the federally registered Trademarks, and federal applications for registration of Trademarks (other than intent to use applications until a verified statement of use is filed with respect to such applications) now owned by the Grantor. If, before the Obligations shall have been satisfied in full or before the Loan Documents have been terminated, the Grantor shall: (i) become aware of any existing registered Trademarks of which the Grantor has not previously informed the Bank; or (ii) become entitled to the benefit of any registered Trademarks, which benefit is not in existence on the date of this Security Agreement, the above provisions of this Security Agreement shall automatically apply to such Trademarks and the Grantor shall give to the Bank prompt written notice of the same. The Grantor authorizes the Bank to modify this Security Agreement by amending Schedule A to include any such Trademarks.

VI. Term. The term of this Security Agreement shall extend until the payment in full of all Obligations and the termination of the Loan Documents. The Grantor agrees that following the occurrence and during the continuance of an Event of Default under the Loan Agreement, the use by the Bank of all Trademarks shall be without any liability for royalties or other related charges from the Bank to the Grantor.

VII. Release of Security Interest. This Security Agreement is made for collateral purposes only and affects no present transfer of title as to any Trademarks. Upon payment in full of all Obligations and termination of the Loan Documents, the Bank shall take execute and deliver such documents and take such actions as may be reasonably necessary or proper to terminate the security interests created by this Security Agreement and pursuant to the Loan Documents.

VIII. Expenses. All reasonable expenses incurred in connection with the performance of any of the agreements set forth in this Security Agreement shall be borne by the Grantor. All reasonable fees, costs and expenses, of whatever kind or nature, including reasonable attorney's fees and legal expenses, incurred by the Bank in connection with the filing or recording of any documents (including all taxes in connection with such filing or recording) in public offices, the payment or discharge of any taxes, reasonable counsel fees, maintenance fees, encumbrances or otherwise in protecting, maintaining or preserving the Trademarks or in defending or prosecuting any actions or proceedings arising out of or related to the Trademarks, shall be borne by and paid by the Grantor and until paid shall constitute Obligations.

IX. Duties of Grantor. The Grantor shall have the duty: (a) to file and prosecute diligently any trademark applications pending as of the date of this Security Agreement or subsequently until the Obligations shall have been paid in full and the Loan Documents have been terminated; (b) to preserve and maintain all rights in the Trademarks, as commercially reasonable; and (c) to ensure that the Trademarks are and remain enforceable, as commercially reasonable. Any expenses incurred in connection with the Obligations under this Section IX shall be borne by the Grantor.

X. Bank’s Right to Sue. After the occurrence of an Event of Default that is continuing, the Bank shall have the right, but shall in no way be obligated, to bring suit in its own name, or in the name of the Grantor, to enforce the Trademarks and, if the Bank shall commence any such suit, the Grantor shall, at the request of the Bank, do any and all lawful acts and execute any and all proper documents required by the Bank in aid of such enforcement and the Grantor shall promptly, upon demand, reimburse and indemnify the Bank for all costs and expenses incurred by the Bank in the exercise of its rights under this Section X.

XI. Waivers. No course of dealing between the Grantor and the Bank, nor any failure to exercise, nor any delay in exercising, on the part of the Bank, any right, power or privilege under this Security Agreement or under the Loan Documents shall operate as a waiver of such right, power or privilege; nor shall any single or partial exercise of any right, power or privilege under this Security Agreement or under the Loan Documents preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.

XII. Severability. The provisions of this Security Agreement are severable, and if any clause or provision shall be held invalid and unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part of the same, in such jurisdiction, and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Security Agreement in any jurisdiction.

XIII. Modification. This Security Agreement cannot be altered, amended or modified in any way, except as specifically provided in Section V of this Security Agreement or by a writing signed by the parties to this Security Agreement.

XIV. Cumulative Remedies; Power of Attorney; Effect on Loan Documents. All of the Bank's rights and remedies with respect to the Trademarks, whether established by this Security Agreement or by the Loan Documents, or by any other agreements or by law shall be cumulative and may be exercised singularly or concurrently. The Grantor authorizes the Bank after the occurrence of an Event of Default that is continuing, to make, constitute and appoint any officer or agent of the Bank as the Bank may select, in its sole discretion, as the Grantor's true and lawful attorney-in-fact, with power to: (a) endorse the Grantor's name on all applications, documents, papers and instruments necessary or desirable for the Bank in the use of the Trademarks; (b) grant or issue any exclusive or nonexclusive license under the Trademarks to anyone; or (c) assign, pledge, convey or otherwise transfer title in or dispose of the Trademarks to anyone. The Grantor ratifies all that such attorney shall lawfully do or cause to be done in accordance with the terms of this Security Agreement, except for the gross negligence or willful misconduct of such attorney. This power of attorney shall be irrevocable until the Obligations shall have been paid in full and the Loan Documents have been terminated. The Grantor acknowledges and agrees that this Security Agreement is not intended to limit or restrict in any way the rights and remedies of the Bank under the Loan Documents but rather is intended to facilitate the exercise of such rights and remedies. The Bank shall have, in addition to all other rights and remedies given it by the terms of this Security Agreement and the Loan Documents, all rights and remedies allowed by law and the rights and remedies of a secured party under the Uniform Commercial Code as enacted in .

XV. Binding Effect; Benefits. This Security Agreement shall be binding upon be binding upon and shall inure to the benefit of the Grantor and the Bank, and their respective successors, nominees and assigns.

XVI. Governing Law. This Security Agreement shall be governed by and construed in accordance with the laws of and applicable federal law.

XVII. Further Assurances. The Grantor agrees to execute and deliver such further agreements, instruments and documents, and to perform such further acts, as the Bank shall reasonably request from time to time in order to carry out the purpose of this Security Agreement and agreements set forth in this Security Agreement. The Bank may record this Security Agreement, an abstract of it, or any other document describing the Bank's interest in the Trademarks with the U.S. Patent and Trademark Office, at the expense of the Grantor. In addition, the Grantor authorizes the Bank to file financing statements describing the Trademarks in any U.C.C. filing office deemed appropriate by the Bank. If the Grantor shall at anytime hold or acquire a commercial tort claim arising with respect to any one or more of the Trademarks, the Grantor shall immediately notify the Bank in a writing signed by the Grantor of the brief details of such claim and grant to the Bank in such writing a security interest in such claim and in the proceeds of the claim, all upon the terms of this Security Agreement, with such writing to be in form and substance satisfactory to the Bank.

XVIII. Survival of Representations. All representations and warranties of the Grantor contained in this Security Agreement shall survive the execution and delivery of this Security Agreement and shall be remade on the date of each borrowing under the Loan Documents.

The Grantor has executed this Security Agreement as of the date first written above.