TRADEMARK SECURITY AGREEMENT
This
TRADEMARK SECURITY AGREEMENT (this "Trademark
Security Agreement")
is
made this 17th day of September, 2007, between APPALACHIAN
OIL COMPANY, INC.,
a
Tennessee corporation
(the
"Assignor"),
in
favor of GREYSTONE BUSINESS CREDIT II, L.L.C., a Delaware limited liability
company, as agent for the benefit of the Lenders as defined in the Loan
Agreement defined below (the "Agent").
W
I T N E
S S E T H:
WHEREAS,
pursuant to that certain Loan and Security Agreement of even date herewith
(as
amended, restated, supplemented or otherwise modified from time to time, the
"Loan
and Security Agreement")
among
Assignor (the "Borrower"),
Agent
and
the Lenders parties thereto,
Agent
and Lenders are willing to make certain financial accommodations available
to
the Borrower pursuant to the terms and conditions thereof; and
WHEREAS,
pursuant to Section 4.3 of Loan and Security Agreement, Borrower is required
to
execute and deliver to Agent this Trademark Security Agreement;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby agrees as
follows:
1. DEFINED
TERMS.
All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Loan and Security Agreement.
2. GRANT
OF SECURITY INTEREST IN TRADEMARK COLLATERAL.
To
secure the full payment and performance of all of the Obligations, Assignor
hereby grants to Agent a continuing first priority security interest in all
of
such Assignor's right, title and interest in, to and under the following,
whether presently existing or hereafter created or acquired (collectively,
the
"Trademark
Collateral"):
(a) (i)
all
of its trademarks, trade names, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
throughout the world and (A) all renewals thereof, (B) all income, royalties,
damages and payments now and hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered
into
in connection therewith and damages and payments for past or future
infringements or dilutions thereof, (C) the right to xxx for past, present
and
future infringements and dilutions thereof, (D) the goodwill of Assignor's
business symbolized by the foregoing and connected therewith, and (E) all of
Assignor's rights corresponding thereto (the "Trademarks"),
including, without limitation, those Trademarks filed with the United States
Patent and Trademark Office, as set forth on Schedule
A
hereto, and
(ii)
any rights under or interest in any Trademark, and the right to use the
foregoing in connection with the enforcement of Agent's and/or Lenders' rights
under the Loan Documents, including, without limitation, the right to prepare
for sale and sell any and all Inventory and Equipment now or hereafter owned
by
Assignor and now or hereafter covered by such licenses (the "Trademark
Licenses") to
which
it is a party, including those referred to on Schedule
A
hereto;
(b) all
reissues, continuations or extensions of the foregoing;
(c) all
goodwill of the business connected with the use of, and symbolized by, each
Trademark and each Trademark licensed under any Trademark License;
and
(d) all
products and proceeds of the foregoing, including, without limitation, any
claim
by Assignor against third parties for past, present or future
(i) infringement or dilution of any Trademark or any Trademark licensed
under any Trademark License or (ii) injury to the goodwill associated with
any
Trademark or any Trademark licensed under any Trademark License.
3. SECURITY
AGREEMENT.
The
security interests granted pursuant to this Trademark Security Agreement are
granted in conjunction with the security interests granted to Agent and Lenders
pursuant to the Loan and Security Agreement. Assignor hereby acknowledges and
affirms that the rights and remedies of Agent and the Lenders with respect
to
the security interest in the Trademark Collateral made and granted hereby are
more fully set forth in the Loan and Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
4. AUTHORIZATION
TO SUPPLEMENT.
If
Assignor shall obtain rights to any new trademarks, the provisions of this
Trademark Security Agreement shall automatically apply thereto. Assignor shall
give prompt notice in writing to Agent with respect to any such new trademarks
or renewal or extension of any trademark registration. Without limiting
Assignor's obligations under this Section
4,
Assignor hereby authorizes Agent unilaterally to modify this Trademark Security
Agreement by amending Schedule
A
to
include any such new trademark rights of Assignor. Notwithstanding the
foregoing, no failure to so modify this Agreement or amend Schedule
A
shall in
any way affect, invalidate or detract from Agent's and the Lenders' continuing
security interest in all Collateral, whether or not listed on Schedule
A.
5. COUNTERPARTS.
This
Trademark Security Agreement may be executed in any number of counterparts,
each
of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. In proving this
Trademark Security Agreement or any other Loan Document in any judicial
proceedings, it shall not be necessary to produce or account for more than
one
such counterpart signed by the party against whom such enforcement is sought.
Any signatures delivered by a party by facsimile transmission or by e-mail
transmission shall be deemed an original signature hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, Assignor has caused this Trademark Security Agreement to be
executed and delivered by its duly authorized officer as of the date first
set
forth above.
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APPALACHIAN
OIL COMPANY, INC.,
as
Assignor
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By:
/s/
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Name:
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Title:
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ACCEPTED
AND ACKNOWLEDGED BY:
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GREYSTONE
BUSINESS CREDIT II, L.L.C.,
as
Agent for the Lenders
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By:
/s/
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Name:
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Title:
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SCHEDULE
A
to
TRADEMARK
SECURITY AGREEMENT
Trademark
Registrations/Applications
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Grantor
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Country
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Xxxx
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Application/
Registration No.
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App/Reg
Date
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Appalachian
Oil Company, Inc.
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USA
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Stylized
"A"
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1508577
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10/11/1988
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Appalachian
Oil Company, Inc.
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USA
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Appco
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2758664
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09/02/2003
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||||
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Appalachian
Oil Company, Inc.
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USA
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Pizza-Rena's
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2759067
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09/02/2003
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Appalachian
Oil Company, Inc.
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USA
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Appco
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1456944
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09/08/1987
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Trade
Names
Common
Law Trademarks
Trademarks
Not Currently In Use
Trademark
Licenses
Schedule
A
