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Exhibit 10.10
[Execution]
TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
THIS TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT, dated February 3, 2005 (as
amended, modified, supplemented, restated or replaced, this
“Trademark Security Agreement”), is by and between
GREGG APPLIANCES, INC., an Indiana corporation
(“Debtor”), with its chief executive office at 4151
East 96 th Street, Indianapolis, Indiana 46240, and
CONGRESS FINANCIAL CORPORATION (CENTRAL), an Illinois corporation,
in its capacity as agent for the Lenders described below (in such
capacity, “Secured Party”), having an office at 150
South Wacker Drive, Chicago, Illinois 60606.
W I T
N E S S E T H
:
WHEREAS, Debtor has adopted,
used and is using, and is the owner of the entire right, title, and
interest in and to the trademarks, trade names, terms, designs and
applications therefor described in Exhibit A hereto and made a part
hereof;
WHEREAS, Secured Party, the
financial institutions which are parties to the Loan Agreement (as
hereinafter defined) as lenders (each individually, a
“Lender” and collectively, “Lenders”) and
Debtor have entered into financing arrangements pursuant to which
Secured Party and Lenders may make loans and advances and provide
other financial accommodations to Debtor as set forth in the Loan
and Security Agreement, dated of even date herewith, by and among
Debtor, HHG Distributing, LLC, Secured Party and Lenders (as the
same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the
“Loan Agreement”) and the other agreements, documents
and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including,
but not limited to, this Trademark Security Agreement (all of the
foregoing, together with the Loan Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to
herein as the “Financing Agreements”); and
WHEREAS, in order to induce
Secured Party and Lenders to enter into the Loan Agreement and the
other Financing Agreements and to make loans and advances and
provide other financial accommodations to Debtor pursuant thereto,
Debtor has agreed to grant to Secured Party certain collateral
security as set forth herein.
NOW, THEREFORE, in
consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
1. GRANT OF SECURITY
INTEREST . As collateral security for the prompt performance,
observance and indefeasible payment in full of all of the
Obligations, Debtor hereby grants to Secured Party a continuing
security interest in and a general lien upon, and a collateral
assignment of, the following (being collectively referred to herein
as the “Collateral”):
(a) all of Debtor’s now existing
or hereafter acquired right, title, and interest in and to: (i) all
of Debtor’s trademarks, trade names, trade styles and service
marks and all applications, registrations and recordings relating
to the foregoing as may at any time be filed in the United States
Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof, any political subdivision
thereof or in any other country, including, without limitation, the
trademarks, terms, designs and applications described in Exhibit A
hereto, together with all rights and privileges arising under
applicable law with respect to Debtor’s use of any
trademarks, trade names, trade styles and service marks, and all
reissues, extensions, continuation and renewals thereof (all of the
foregoing being collectively referred to herein as the
“Trademarks”); and (ii) all prints and labels on which
such trademarks, trade names, trade styles and service marks
appear, have appeared or will appear, and all designs and general
intangibles of a like nature; (b) the goodwill of the business
symbolized by each of the Trademarks, including, without
limitation, all customer lists and other records relating to the
distribution of products or services bearing the Trademarks; (c)
all income, fees, royalties and other payments at any time due or
payable with respect thereto, including, without limitation,
payments under all licenses at any time entered into in connection
therewith; (d) the right to sue for past, present and future
infringements thereof; (e) all rights corresponding thereto
throughout the world; and (f) any and all other proceeds of any of
the foregoing, including, without limitation, all damages and
payments or claims by Debtor against third parties for past or
future infringement of the Trademarks.
2. OBLIGATIONS
SECURED
The security interest, lien
and other interests granted to Secured Party pursuant to this
Trademark Security Agreement shall secure the prompt performance,
observance and payment in full of any and all of the Obligations,
whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Loan
Agreement or after the commencement of any case with respect to
Debtor under the United States Bankruptcy Code or any similar
domestic or foreign statute (including, without limitation, the
payment of interest and other amounts which would accrue and become
due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in such case),
whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, and however acquired by Secured
Party or any Lender.
3. REPRESENTATIONS,
WARRANTIES AND COVENANTS
Debtor hereby represents,
warrants and covenants with and to Secured Party the following (all
of such representations, warranties and covenants being continuing
so long as any of the Obligations are outstanding):
(a) Debtor shall pay and
perform all of the Obligations according to their terms.
(b) All of the existing
Trademarks and all of the other existing Collateral that is
material to the operation of the business of Debtor are valid and
subsisting in full force and effect and Debtor owns the sole, full
and clear title thereto, and the right and power to grant the
security
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interest and collateral assignment
granted hereunder. Debtor shall, at Debtor’s expense, perform
all acts and execute all documents necessary to maintain the
existence of the Collateral consisting of registered Trademarks as
registered trademarks and to maintain the existence of all of the
Collateral as valid and subsisting, including, without limitation,
the filing of any renewal affidavits and applications, in each case
to the extent such Collateral is material to the operation of the
business of Debtor (it being understood for purposes of this
Trademark Security Agreement that the Trademarks set forth on
Exhibit A hereto which are marked with an asterisk are material to
the operation of the business of Debtor as of the date hereof). The
Collateral is not subject to any liens, claims, mortgages,
assignments, licenses, security interests or encumbrances of any
nature whatsoever, except: (i) the security interests granted
hereunder and pursuant to the Loan Agreement, (ii) the security
interests permitted under the Loan Agreement and (iii) the licenses
permitted under Section 3(e) below and other non-exclusive licenses
that Debtor may grant from time to time in the ordinary course of
business as permitted by the Loan Agreement.
(c) Debtor shall not assign,
sell, mortgage, lease, transfer, pledge, hypothecate, grant a
security interest in or lien upon, encumber, grant an exclusive
license relating to the Collateral or a non-exclusive license
relating to the Collateral which is not permitted by the Loan
Agreement, or otherwise dispose of any of the Collateral, in each
case without the prior written consent of Secured Party, except as
otherwise permitted herein or in the Loan Agreement. Nothing in
this Trademark Security Agreement shall be deemed a consent by
Secured Party to any such action, except as such action is
expressly permitted hereunder.
(d) Debtor shall, at
Debtor’s expense, promptly perform all acts and execute all
documents requested at any time by Secured Party in good faith to
evidence, perfect, maintain, record or enforce the security
interest in and collateral assignment of the Collateral granted
hereunder or to otherwise further the provisions of this Trademark
Security Agreement. Debtor hereby authorizes Secured Party to
execute and file one or more financing statements (or similar
documents) with respect to the Collateral, signed only by Secured
Party or as otherwise determined by Secured Party. Debtor further
authorizes Secured Party to have this Trademark Security Agreement
or any other similar security agreement filed with the Commissioner
of Patents and Trademarks or any other appropriate federal, state
or government office.
(e) As of the date hereof,
Debtor does not have any Trademarks registered, or subject to
pending applications, in the United States Patent and Trademark
Office or any similar office or agency in the United States, any
State thereof, any political subdivision thereof or in any other
country, other than those described in Exhibit A hereto, and has
not granted any licenses with respect thereto other than as set
forth in Exhibit B hereto.
(f) Debtor shall,
concurrently with the execution and delivery of this Trademark
Security Agreement, execute and deliver to Secured Party five (5)
originals of a Special Power of Attorney in the form of Exhibit C
annexed hereto for the implementation of the assignment, sale or
other disposition of the Collateral pursuant to Secured
Party’s exercise of the rights and remedies granted to
Secured Party hereunder.
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(g) Secured Party may, in its
discretion, pay any amount or do any act which Debtor fails to pay
or do as required hereunder or as reasonably requested by Secured
Party in good faith to preserve, defend, protect, maintain, record
or enforce the Obligations, the Collateral, or the security
interest and collateral assignment granted hereunder, including,
but not limited to, all filing or recording fees, court costs,
collection charges, attorneys’ fees and legal expenses.
Debtor shall be liable to Secured Party for any such payment, which
payment shall be deemed an advance by Secured Party to Debtor,
shall be payable on demand together with interest at the rate then
applicable to the Obligations set forth in the Loan Agreement and
shall be part of the Obligations secured hereby.
(h) Debtor shall notify
Secured Party in writing within thirty (30) days following the
filing of any application for the registration of a Trademark with
the United States Patent and Trademark Office or any similar office
or agency in the United States, any State thereof, any political
subdivision thereof or in any other country. If, after the date
hereof, Debtor shall (i) obtain any registered trademark or trade
name, or apply for any such registration in the United States
Patent and Trademark Office or in any similar office or agency in
the United States, any State thereof, any political subdivision
thereof or in any other country, or (ii) become the owner of any
trademark registrations or applications for trademark registration
used in the United States, any State thereof, any political
subdivision thereof or in any other country, the provisions of
Section 1 hereof shall automatically apply thereto. Upon the
request of Secured Party, Debtor shall promptly execute and deliver
to Secured Party any and all assignments, agreements, instruments,
documents and such other papers as may be requested by Secured
Party to evidence the security interest in and collateral
assignment of such Trademark in favor of Secured Party.
(i) Debtor has not abandoned
any of the Trademarks and Debtor will not do any act, nor omit to
do any act, whereby the Trademarks may become abandoned,
invalidated, unenforceable, avoided, or avoidable, except that,
with the prior written consent of Secured Party, Debtor may abandon
any Trademark that is no longer material to the operation of its
business. Debtor shall notify Secured Party immediately if it knows
or has reason to know of any reason why any application,
registration, or recording with respect to the Trademarks may
become abandoned, canceled, invalidated, avoided, or
avoidable.
(j) Debtor shall render any
assistance, as Secured Party shall determine is necessary, to
Secured Party in any proceeding before the United States Patent and
Trademark Office, any federal or state court, or any similar office
or agency in the United States, any State thereof, any political
subdivision thereof or in
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