TRADEMARK SECURITY AGREEMENT
This Trademark Security Agreement (this "Agreement") is made as of November
21, 2003 by and between Xxxxxx Electronics, Inc., a New York corporation
("Grantor"), and Whitehall Retail Finance, a division of Whitehall Business
Credit Corporation, a New York corporation (the "Lender").
Introduction
The Grantor and the Lender have entered into the Loan and Security
Agreement dated as of the date hereof (as amended, restated, supplemented and/or
modified from time to time, the "Loan Agreement") pursuant to which the Lender
has agreed, subject to the terms and conditions set forth therein, to make
revolving credit loans and provide other financial accommodations to the
Grantor. To secure the Grantor's obligations to the Lender under the Loan
Agreement, the Grantor has granted the Lender a security interest in and to all
of the Grantor's personal property. It is a condition precedent to the
effectiveness of the Loan Agreement that the Grantor execute and deliver this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor and the Lender herby
agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined in
this Agreement shall have the respective meanings given to such terms in the
Loan Agreement.
Section 2. Grant of Security Interest. To secure the prompt performance of
the Obligations, the Grantor hereby assigns, pledges, hypothecates, charges,
mortgages, delivers, and transfers to the Lender a continuing security interest
in all of the following property, whether now or hereafter existing or acquired
by the Grantor (collectively, the "Trademark Collateral"):
(a) (i) all of its trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos and other source or business
identifiers, patents, and all goodwill of the business associated therewith, now
existing or hereafter adopted or acquired including those referred to in
Schedule A attached hereto under such Grantor's name, whether currently in use
or not, all registrations and recordings thereof and all applications in
connection therewith, whether pending or in preparation for filing, including
registrations, recordings and applications in the United States Patent and
Trademark Office or in any office or agency of the United States of America or
any State thereof or any other country or political subdivision thereof or
otherwise, and all common-law rights relating to the foregoing, and (ii) the
right to obtain all reissues, extensions or renewals of the foregoing (each, a
"Trademark");
(b) all Trademark licenses and any right to use any Trademark, including
each Trademark license referred to in Schedule A attached hereto; and
(c) all proceeds of, and rights associated with, the foregoing, including
any claim by the Grantor against third parties for past, present or future
infringement or dilution of any Trademark, Trademark registration or Trademark
license.
Section 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the Lender's security
interest in the Trademark Collateral with the United States Patent and Trademark
Office and corresponding offices in other countries of the world, as applicable.
The security interest granted hereby has been granted as a supplement to, and
not in limitation of, the security interest granted to the Lender under the Loan
Agreement. The Loan Agreement (and all rights and remedies of the Lender
thereunder) shall remain in full force and effect in accordance with its terms,
such terms being incorporated herein by reference as if more fully set forth
herein.
Section 4. Release of Liens. Upon (a) the disposition of Trademark
Collateral in accordance with the Loan Agreement or (b) the full and final
discharge of the Obligations and the termination of the Lender's obligation to
provide additional credit under the Loan Agreement, the security interests
granted herein shall automatically terminate with respect to (i) such Trademark
Collateral (in the case of clause (a)) or (ii) all Trademark Collateral (in the
case of clause (b)). Upon any such disposition or termination, the Lender will,
at the Grantor's sole expense, deliver to the Grantor, without any
representations, warranties or recourse of any kind whatsoever, all Trademark
Collateral held by the Lender hereunder, and execute and deliver to the Grantor
such documents as the Grantor shall reasonably request to evidence such
termination.
Section 5. Loan Document. This Agreement is a Loan Document executed
pursuant to the Loan Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
Section 6. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
Section 7. Governing Law. This Agreement shall be construed under and
governed by the laws of The Commonwealth of Massachusetts without giving effect
to conflicts of laws principals.
[Signature page follows.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
GRANTOR:
XXXXXX ELECTRONICS, INC.
By:______________________________
Xxxxxx X. Xxxxxxxxx
Executive Vice President and Chief
Financial Officer
LENDER:
WHITEHALL RETAIL FINANCE, a division of
Whitehall Business Credit Corporation
By:______________________________
Xxxxx X. Xxxxxxx
Vice President
SCHEDULE A
to Trademark Security Agreement
Trademarks
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Title: Registration No.: Registration Date:
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The Temple of Home Theater 2,061,476 May 13, 1997
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Xxxxxx 1,529,043 March 7, 1989
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Xxxxxx Electronics 1,199,123 June 22, 1982
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Not Your Ordinary Electronics Store 2,668,874 December 31, 2002
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