Exhibit 10.27
ACKNOWLEDGEMENT OF
INTELLECTUAL PROPERTY COLLATERAL LIEN
This Acknowledgement of Intellectual Property Collateral Lien (this
"Acknowledgement") is dated as of October 29, 2003, by EASY GARDENER PRODUCTS,
LTD., a Texas limited partnership (the "Borrower"), EYAS INTERNATIONAL, INC., a
Texas corporation, EG, L.L.C., a Nevada limited liability company, E G PRODUCT
MANAGEMENT, L.L.C., a Texas limited liability company, XXXXXXXXX CONSUMER
PRODUCTS GROUP, INC., a Delaware corporation, XXXXXXXXX CONSUMER PRODUCTS, INC.,
a Delaware corporation, and NBU GROUP, LLC, a Texas limited liability company
(each a "Guarantor", and collectively with the Borrower, the "Grantors"), in
favor of CapitalSource Finance LLC, a Delaware limited liability company, as
administrative agent and collateral agent under the Loan Agreement (in such
capacities, "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Term Loan and Security Agreement
dated as of the date hereof among Grantors, Secured Party and the Lenders (as
the same exists and may be amended, restated, supplemented, extended, renewed,
replaced or otherwise modified from time to time, the "Loan Agreement"), the
Lenders have agreed to provide Loans to the Grantors upon the terms and subject
to the conditions set forth therein; and
WHEREAS, the Grantors granted to Secured Party, for itself and the
benefit of the Lenders, certain liens on the Collateral to secure their
Obligations under the Loan Agreement; and
WHEREAS, pursuant to the terms of the Loan Agreement the Grantors
are required to execute and deliver this Acknowledgment in favor of Secured
Party, for itself and the benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Secured Party and Lenders to enter into the Loan
Documents and to make Loans to the Grantors thereunder, each Grantor hereby
agrees with Secured Party as follows:
Section 1. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Loan
Agreement or, to the extent the same are used or defined therein, the meanings
provided in Article 9 of the UCC in effect on the date hereof. Whenever the
context so requires, each reference to gender includes the masculine and
feminine, the singular number includes the plural and vice versa. This
Acknowledgement shall mean such agreement as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, from time to time. Unless otherwise specified, all accounting terms
not defined in the Loan Documents shall have the meanings given to such terms in
and shall be interpreted in accordance with GAAP. References in this
Acknowledgement to any Person shall include such Person and its successors and
permitted assigns.
Section 2. Reaffirmation of Grant of Security Interest in
Intellectual Property Collateral. Each Grantor, as collateral security for the
full, prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor,
hereby reaffirms its grant to Secured Party, for itself and the
benefit of the Lenders, of a first priority security interest in the Collateral
(subject to Priority Permitted Liens), and further collaterally assigns,
conveys, mortgages, pledges, hypothecates and transfers to Secured Party, for
itself and the benefit of the Lenders, and grants to Secured Party, for itself
and the benefit of the Lenders, a lien on and security interest in all of its
right, title and interest in, to and under the following Collateral of such
Grantor (herein referred to as "Intellectual Property Collateral"):
(a) all of its owned Trademarks and Trademark Licenses to which it is a
party, including those referred to on Schedule I hereto;
all renewals, reissues, continuations or extensions of the foregoing;
all goodwill of the business connected with the use of, and symbolized by,
each Trademark and each Trademark License;
all Proceeds of the foregoing, including any claim by Grantor against
third parties for past, present, future (i) infringement or dilution of any
Trademark or Trademark licensed under any Trademark License or (ii) injury to
the goodwill associated with any Trademark or any Trademark licensed under any
Trademark License;
(b) all of its Copyrights and Copyright Licenses to which it is a party,
including those referred to on Schedule II hereto;
all renewals, reissues, continuations or extensions of the foregoing; and
all Proceeds of the foregoing, including any claim by Grantor against
third parties for past, present, future infringement or dilution of any
Copyright or Copyright licensed under any Copyright License; and
(c) all of its Patents and Patent Licenses to which it is a party,
including those referred to on Schedule III hereto;
all renewals, reissues, continuations or extensions of the foregoing; and
all Proceeds of the foregoing, including any claim by Grantor against
third parties for past, present or future infringement or dilution of any Patent
or any Patent licensed under any Patent License.
Section 3. Acknowledgement. The security interests reaffirmed herein
are granted in conjunction with the security interest granted to Secured Party,
for itself and the benefit of the Lenders, pursuant to the Loan Agreement and
each Grantor hereby acknowledges and affirms that the rights and remedies of
Secured Party and Lenders with respect to the security interest in the
Intellectual Property Collateral made and granted hereby are more fully set
forth in the Loan Agreement, the terms and provisions of which are incorporated
by reference herein as if fully set forth herein. Notwithstanding anything
herein to the contrary, this Acknowledgement is subject to the terms and
conditions of the Intercreditor Agreement in all respects. To the extent that
there is any conflict or inconsistency between this Acknowledgement and the Loan
Agreement, the terms and conditions of the Loan Agreement shall govern.
[Signature page follows]
2
IN WITNESS WHEREOF, each Grantor has caused this Acknowledgment of
Intellectual Property Collateral Lien to be executed and delivered by its duly
authorized officer as of the date first set forth above.
EASY GARDENER PRODUCTS, LTD, a Texas limited
Partnership
By: E G Product Management, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
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Title: Manger
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EYAS INTERNATIONAL, INC., a Texas corporation
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
--------------
Title: President
---------
EG, L.L.C., a Nevada limited liability company
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
--------------
Title: Manager
-------
E G PRODUCT MANAGEMENT, L.L.C., a Texas limited
liability company
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
--------------
Title: Manager
-------
XXXXXXXXX CONSUMER PRODUCTS GROUP, INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
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Title: President
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XXXXXXXXX CONSUMER PRODUCTS, INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
--------------
Title: President
---------
NBU GROUP, LLC, a Texas limited liability company
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
--------------
Title: President
---------
Accepted and Agreed:
CAPITALSOURCE FINANCE LLC, as Secured Party
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
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Title: Associate General Counsel
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SCHEDULE I
to
ACKNOWLEDGEMENT OF INTELLECTUAL PROPERTY LIEN
TRADEMARK REGISTRATIONS
A. REGISTERED TRADEMARKS
Including Xxxx Reg. No. and Date
B. TRADEMARK APPLICATIONS
C. TRADEMARK LICENSES
Including Name of Agreement, Parties and Date of Agreement
SEE ATTACHED
SCHEDULE II
to
ACKNOWLEDGEMENT OF INTELLECTUAL PROPERTY LIEN
COPYRIGHT REGISTRATIONS
A. REGISTERED COPYRIGHTS
Including Copyright Reg. No. and Date
B. COPYRIGHT APPLICATIONS
C. COPYRIGHT LICENSES
Including Name of Agreement, Parties and Date of Agreement
NONE
SCHEDULE III
to
ACKNOWLEDGEMENT OF INTELLECTUAL PROPERTY LIEN
PATENT REGISTRATIONS
A. REGISTERED PATENT
Including Patent Reg. No. and Date
B. PATENT APPLICATIONS
C. PATENT LICENSES
Including Name of Agreement, Parties and Date of Agreement
SEE ATTACHED
