TRADEMARK SECURITY AGREEMENT
Exhibit
10.7
This
Agreement is made on the 8th day of November, 2007, by and among Nature Vision,
Inc., a Minnesota corporation, and Nature Vision Operating, Inc., a Minnesota
corporation, each having a mailing address at 0000 Xxxxxxxx Xxxxxxx Xxxx,
Xxxxxxxx, XX 00000 (individually and collectively, the “Assignor”)
and M&I Business Credit, LLC, a Minnesota limited liability company, having
a mailing address at Xxxxx 000, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
55402(“Lender”).
Background. Assignor
has executed and delivered to Lender a Credit and Security Agreement dated
as of
the date hereof evidencing loans made or to be made by Lender to Assignor
(said
Credit and Security Agreement as amended from time to time is referred to
herein
as the “Credit Agreement”). In order to induce the Lender to advance
loans to Assignor pursuant to the Credit Agreement, Assignor has agreed to
grant
Lender a security interest in certain Trademark rights according to the terms
of
this Agreement.
NOW,
THEREFORE, in consideration of the premises, each Assignor hereby agrees
with
lender as follows:
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1.
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To
secure the complete and timely satisfaction of the Obligations
(as defined
in the Credit Agreement), Assignor hereby grants Lender a security
interest in all of its right, title and interest, if any, in and
to the
Trademark applications and Trademarks listed in Schedule A hereto
together
with the goodwill of the business associated therewith and including
without limitation all proceeds thereof (such as, by way of example,
license royalties and proceeds of infringement suits), the right
to xxx
for past, present and future infringements, all rights corresponding
thereto throughout the world (collectively called the
“Trademarks”).
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2.
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Assignor
covenants and warrants that:
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(a)
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The
Trademark applications are subsisting and have not been adjudged
invalid;
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(b)
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To
the best of Assignor’s knowledge, each of the Trademarks is
valid;
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(c)
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Except
as to the rights granted to Lender herein, Assignor, to the best
of its
knowledge, is the sole owner of the entire and unencumbered right,
title
and interest in and to each of the Trademarks, free and clear of
any
liens, charges and encumbrances, including without limitation pledges,
assignments, licenses and covenants by Assignor not to xxx third
persons;
and
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(d)
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Assignor
has the unqualified right to enter into this Agreement and perform
its
terms.
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3.
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Assignor
agrees that, until all of the Obligations shall have been satisfied
in
full, it will not enter into any agreement (for example, a license
agreement) which is inconsistent with Assignor’s Obligations under this
Agreement, without Lender=s
prior written consent.
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4.
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If,
before the Obligations shall have been satisfied in full, Assignor
shall
obtain rights to any new trademark applications or trademark
registrations, the provisions of paragraph 1 shall automatically
apply
thereto and Assignor shall give to Lender prompt written notice
thereof.
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5.
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Assignor
authorizes Lender to modify this Agreement by amending Schedule
A to
include any future Trademark registrations and Trademark applications
which are Trademarks under paragraph 1 or paragraph 4
hereof.
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6.
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Unless
and until there shall have occurred and be continuing an Event
of Default
(as defined under the Credit Agreement) or until Assignor satisfies
its
Obligations under this Agreement, Assignor hereby grants to Lender
the
nontransferable right and license to use the Trademarks. Assignor
agrees
not to sell or assign its interest in, or grant any sublicense
to the
Trademarks without the prior written consent of
Lender.
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7.
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If
any Event of Default shall have occurred and be continuing, Assignor
shall
assign and convey to Lender the entire right, title and interest
in and to
the Trademarks, and execute and deliver all documents necessary
to record
title to the Trademarks in Lender or other transferee authorized
by
Lender. Lender shall have, in addition to all other rights and
remedies
given it by this Agreement, those allowed by law and the rights
and
remedies of a secured party under the Uniform Commercial Code as
enacted
in any jurisdiction in which the Trademarks may be located and,
without
limiting the generality of the foregoing, the Lender may immediately,
without demand of performance and without other notice (except
as set
forth next below) or demand whatsoever to Assignor, all of which
are
hereby expressly waived, and without advertisement, sell at public
or
private sale or otherwise realize upon, in Minneapolis, Minnesota,
or
elsewhere, the whole or from time to time any part of the Trademarks,
or
any interest which the Assignor may have therein, and after deducting
from
the proceeds of sale or other disposition of the Trademarks all
reasonable
expenses (including all reasonable expenses for brokers’ fees and legal
services), shall apply the residue of such proceeds toward the
payment of
the Obligations. Any remainder of the proceeds after payment in
full of the Obligations shall be paid over to the
Assignor. Notice of any sale or other disposition of the
Trademarks shall be given to Assignor at least ten (10) days before
the
time of any intended public or private sale or other disposition
of the
Trademarks is to be made, which Assignor hereby agrees shall be
reasonable
notice of such sale or other disposition. At any such sale or
other disposition, Lender may, to the extent permissible under
applicable
law, purchase the whole or any part of the Trademarks sold, free
from any
right or redemption on the part of Assignor, which right is hereby
waived
and released. Notwithstanding any provision hereof to the
contrary, during the continuance of an Event of Default, Assignor
may sell
any merchandise or services bearing the Trademarks in the ordinary
course
of its business and in a manner consistent with its past practices,
until
it receives written notice from Lender to the
contrary.
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8.
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At
such time as Assignor shall completely satisfy all of the Obligations,
this Agreement shall terminate and title to the Trademarks shall
remain in
Assignor.
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9.
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Any
and all reasonable fees, costs and expenses, of whatever kind or
nature,
including the reasonable attorneys’ fees and legal expenses incurred by
Lender in connection with preparation of this Agreement and all
other
documents relating hereto and the consummation of this transaction,
the
filing or recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes,
counsel fees, maintenance fees, encumbrances, or in otherwise 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 and paid by Assignor on demand by Lender and until
so paid
shall be added to the principal amount of the Obligations and shall
bear
interest at the highest rate prescribed in the Credit
Agreement.
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10.
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Assignor
shall have the duty, through counsel acceptable to Lender, to prosecute
diligently any Trademark applications pending as of the date of
this
Agreement or thereafter until the Obligations shall have been paid
in full
and to preserve and maintain all rights in Trademark applications
and
Trademarks, including without limitation the payment of all maintenance
fees. Any expenses incurred in connection with such an
application shall be borne by Assignor. Lender agrees that it will
use all
reasonable efforts, at Assignor’s expense, to cooperate with Assignor if
Assignor reasonably requests Lender to execute documents reasonably
necessary to carry out Assignor’s duties in connection with this paragraph
10. The Assignor shall not abandon any right to file any
pending Trademark application or Trademark without the consent
of the
Lender, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, if Assignor determines in good faith that it is
not in
Assignor’s best interests to take action with respect to a Trademark or
Trademark application, Assignor shall have no duty or obligation
hereunder
to prosecute, maintain or take other action with respect to such
Trademark
or Trademark application and Assignor shall give Lender written
notice
thereof.
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11.
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Assignor
shall have the right to bring suit in its own name to protect the
Trademarks and any licenses
thereunder.
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12.
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No
course of dealing between Assignor and Lender, nor any failure
to
exercise, nor any delay in exercising, on the part of Lender or
Assignor,
any right, power or privilege hereunder or under the Credit Agreement
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder
preclude
any other or further exercise thereof or the exercise of any other
right,
power or privilege.
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13.
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All
of Lender’s rights and remedies with respect to the Trademarks, whether
established hereby or by the Credit Agreement, or by any other
agreements
or by law shall be cumulative and may be exercised singularly or
concurrently.
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14.
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The
provisions of this 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 of this Agreement in any
jurisdiction.
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15.
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This
Agreement is subject to modification only by a writing signed by
the
parties, except as provided in paragraph
5.
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16.
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The
benefits and burdens of this Agreement shall inure to the benefit
of and
be binding upon the respective successors and permitted assigns
of the
parties.
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17.
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The
validity and interpretation of this Agreement and the rights and
obligations of the parties shall be governed by the laws of the
State of
Minnesota.
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered on the
day
and year first above written.
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NATURE
VISION OPERATING, INC.
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By:
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/S/
Xxxxxxx X. Xxxxxx
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By:
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/S/
Xxxxxxx X. Xxxxxx
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Its:
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President
and CEO
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Its:
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President
and CEO
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M&I
BUSINESS CREDIT, LLC
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By:
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/S/
Xxxxxx X.
Xxxxxxx
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Its:
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Vice
President
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STATE
OF
MINNESOTA
)
)
ss.
COUNTY
OF
HENNEPIN
)
The
foregoing instrument was executed and acknowledged before me on this 8th
day of
November, 2007, by Xxxxxxx X. Xxxxxx, the President and CEO of Nature Vision,
Inc., on behalf of said corporation.
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/S/
Xxxxxx X.
Xxxxxxx
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Notary
Public
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STATE
OF
MINNESOTA )
)
ss.
COUNTY
OF
HENNEPIN )
The
foregoing instrument was executed and acknowledged before me on this 8th
day of
November, 2007, by Xxxxxxx X. Xxxxxx, the President and CEO of Nature Vision
Operating, Inc., on behalf of said corporation.
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/S/
Xxxxxx X.
Xxxxxxx
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Notary
Public
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STATE
OF
MINNESOTA
)
) ss.
COUNTY
OF
HENNEPIN
)
The
foregoing instrument was executed and acknowledged before me on this 8th
day of
November, 2007, by Xxxxxx X. Xxxxxxx, the Vice President of M&I Business
Credit, LLC, on behalf of said limited liability company.
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/S/
Xxxxxx X.
Xxxxxxx
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Notary
Public
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SCHEDULE A
Trademarks
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Xxxx
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Serial
Number
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Registration
Number
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WOODLAND
WHISPER
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76243000
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2561660
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VPG
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76658981
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ICE
PRO
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76643094
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GENZ
STIX
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76643393
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3118947
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76588035
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3025437
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AQUA-VU
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76566343
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2988546
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REINVENTING
THE OUTDOOR EXPERIENCE
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76549261
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2915764
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BUZZ
STIX
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76515514
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2885886
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FISH
HAWK and Design
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73783264
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1571667
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