Exhibit 10.4
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (this "TRADEMARK SECURITY AGREEMENT")
is made this 7th day of April, 2009, among Ivivi Technologies, Inc. (the
"BORROWER"), and Emigrant Capital Corp. (together with its successors and
assigns, if any, the "SECURED PARTY").
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Loan Agreement, dated as of April 7,
2009 (as amended, restated, supplemented or otherwise modified from time to
time, the "LOAN AGREEMENT"), among the Borrower, as borrower, and the Secured
Party, as lender, the Secured Party is willing to make certain financial
accommodations available to the Borrower pursuant to the terms and conditions
thereof;
WHEREAS, the Lender is willing to make the financial accommodations to
the Borrower as provided for in the Loan Agreement, but only upon the condition,
among others, that the Borrower shall have executed and delivered to the Secured
Party that certain Security Agreement, dated as of April 7, 2009 (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "SECURITY AGREEMENT"); and
WHEREAS, pursuant to the Security Agreement, the Borrower is required
to execute and deliver to the Secured Party 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, the Borrower hereby agrees as
follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or the Loan
Agreement.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. The Borrower
hereby grants to the Secured Party a continuing first priority security interest
(subject to Permitted Liens) in all of the Borrower's right, title and interest
in, to and under the following, whether presently existing or hereafter created
or acquired (collectively, the "TRADEMARK COLLATERAL"):
(a) all of its Trademarks and Trademark Intellectual Property
Licenses to which it is a party including those referred to on SCHEDULE I
hereto;
(b) all goodwill, trade secrets, proprietary or confidential
information, technical information, procedures, formulae, quality control
standards, designs, operating and training manuals, customer lists, and other
General Intangibles with respect to the foregoing;
(c) all reissues, continuations or extensions of the
foregoing;
(d) all goodwill of the business connected with the use of,
and symbolized by, each Trademark and each Trademark Intellectual Property
License; and
(e) all products and proceeds of the foregoing, including any
claim by the Borrower against third parties for past, present or future (i)
infringement or dilution of any Trademark or any Trademark licensed under any
Intellectual Property License, (ii) injury to the goodwill associated with any
Trademark or any Trademark licensed under any Intellectual Property License, or
(iii) right to receive license fees, royalties, and other compensation under any
Intellectual Property License.
3. SECURITY FOR OBLIGATIONS. This Trademark Security Agreement and the
Security Interest created hereby secures the payment and performance of all the
Secured Obligations, whether now existing or arising hereafter. Without limiting
the generality of the foregoing, this Trademark Security Agreement secures the
payment of all amounts which constitute part of the Secured Obligations and
would be owed by the Borrower to the Secured Party whether or not they are
unenforceable or not allowable due to the existence of an Insolvency Proceeding
involving the Borrower.
4. SECURITY AGREEMENT. The security interests granted pursuant to this
Trademark Security Agreement are granted in conjunction with the security
interests granted to the Secured Party pursuant to the Security Agreement. The
Borrower hereby acknowledges and affirms that the rights and remedies of the
Secured Party with respect to the security interest in the Trademark Collateral
made and granted hereby are more fully set forth in the Security Agreement, the
terms and provisions of which are incorporated by reference herein as if fully
set forth herein.
5. AUTHORIZATION TO SUPPLEMENT. If the Borrower shall obtain rights to
any new trademarks, the provisions of this Trademark Security Agreement shall
automatically apply thereto. The Borrower shall give prompt notice in writing to
the Secured Party with respect to any such new trademarks or renewal or
extension of any trademark registration. Without limiting the Borrower's
obligations under this Section, the Borrower hereby authorizes the Secured Party
unilaterally to modify this Agreement by amending SCHEDULE I to include any such
new trademark rights of the Borrower. Notwithstanding the foregoing, no failure
to so modify this Trademark Security Agreement or amend SCHEDULE I shall in any
way affect, invalidate or detract from the Secured Party's continuing security
interest in all Trademark Collateral, whether or not listed on SCHEDULE I.
6. 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.
7. CONSTRUCTION. Unless the context of this Trademark Security
Agreement or any other Loan Document clearly requires otherwise, references to
the plural include the singular, references to the singular include the plural,
the terms "includes" and "including" are not limiting, and the term "or" has,
except where otherwise indicated, the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereby," "hereunder," and
similar terms in this Trademark Security Agreement or any other Loan Document
refer to this Trademark Security Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular provision of this Trademark
Security Agreement or such other Loan Document, as the case may be. Section,
subsection, clause, schedule, and exhibit references herein are to this
Agreement unless otherwise specified. Any reference in this Trademark Security
Agreement or in any other Loan Document to any agreement, instrument, or
document shall include all alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements,
thereto and thereof, as applicable (subject to any restrictions on such
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein or in any other Loan Document to the satisfaction or repayment
in full of the Secured Obligations shall mean the repayment in full in cash (or
cash collateralization in accordance with the terms of the Loan Agreement) of
all Secured Obligations other than unasserted contingent indemnification Secured
Obligations. Any reference herein to any Person shall be construed to include
such Person's successors and assigns. Any requirement of a writing contained
herein or in any other Loan Document shall be satisfied by the transmission of a
Record and any Record so transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained
therein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Borrower has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
BORROWER: IVIVI TECHNOLOGIES, INC., as Borrower
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: CFO
SECURED PARTY: EMIGRANT CAPITAL CORP., as Secured Party
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
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