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EXHIBIT 4.4
INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement") is made
as of
this 6 day of January, 2006, by and among:
MARSH SUPERMARKETS, INC., a corporation organized under the laws
of
the State
of Indiana having a place of business at 9800 Crosspoint Blvd.,
Indianapolis, Indiana 46256-3350, and TRADEMARK HOLDINGS, INC.,
a
corporation organized
under the laws of the State of Delaware having a
place of
business at 9800 Crosspoint Blvd., Indianapolis, Indiana
46256-3350
(individually, each an "Grantor" and collectively, the
"Grantors"); and
BACK BAY CAPITAL FUNDING LLC, a Delaware limited liability
company,
as
collateral agent (in such capacity, the "Collateral Agent") for
the
Secured
Parties (as defined the Credit Agreement defined below).
In consideration of the mutual covenants contained herein and
benefits
to be derived herefrom, the parties hereto agree as follows:
WITNESSETH:
Reference
is hereby made to a certain Credit Agreement dated as of even
date herewith (as the same may be amended, modified, supplemented
or restated
hereafter, the "Credit Agreement") by, among others, (i) Marsh
Supermarkets, LLC
(the "Lead Borrower"), (ii) the other Borrowers named therein
(together with the
Lead Borrower, the "Borrowers"), (iii) the Lenders named therein,
and (iv) Back
Bay Capital Funding LLC, as Administrative Agent and Collateral
Agent for the
Lenders.
Reference
is further made to a certain Security Agreement of even date
herewith in favor of the Collateral Agent and the Secured Parties
(as such may
be amended, modified, supplemented or restated hereafter, the
"Security
Agreement"), pursuant to which Security Agreement each Grantor,
among others,
has granted to the Collateral Agent, for the benefit of the Secured
Parties, a
security interest in the Collateral (as defined in the Security
Agreement).
The
Lenders have agreed to make a Term Loan to the Borrowers pursuant
to,
and upon the terms and subject to the conditions specified in, the
Credit
Agreement, including a covenant requiring the execution and
delivery by the
Grantors of this Agreement to secure the Borrowers' prompt payment
and
performance of the Obligations.
Accordingly, the Grantors and the Collateral Agent, on behalf of
itself
and each other Secured Party (and each of their respective
successors and
assigns) hereby agree as follows:
SECTION 1
Definitions
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1.1
Generally. Unless the context otherwise requires, all
capitalized
terms used but not defined herein shall have the meanings set forth
in the
Credit Agreement or the Security Agreement, as applicable, and all
references to
the UCC shall mean the Uniform Commercial Code as in effect from
time to time in
the State of New York; provided, however, that if a term is defined
in Article 9
of the UCC differently than in another Article thereof, the term
shall have the
meaning set forth in Article 9, and provided further that if by
reason of
mandatory provisions of law, perfection, or the effect of
perfection or
non-perfection, of the security interest in any IP Collateral or
the
availability of any remedy hereunder is governed by the Uniform
Commercial Code
as in effect in a jurisdiction other than New York, "UCC" means the
Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the
provisions hereof relating to such perfection or effect of
perfection or
non-perfection or availability of such remedy, as the case may
be.
1.2
Definition of Certain Terms Used Herein. As used herein, the
following
terms shall have the following meanings:
(a) "Copyrights" shall mean all copyrights or derivative work
thereof of
each Grantor, whether registered or unregistered and whether
published
or unpublished, including, without limitation, the copyrights
listed on
Exhibit A annexed hereto and made a part hereof, together with
all
registrations and recordings thereof and all applications in
connection
therewith.
(b)
"Copyright Licenses" shall mean all agreements, whether written
or oral,
providing for the grant by or to any Grantor of any right to
use
any
Copyright, including, without limitation, the agreements listed
on
Exhibit A
annexed hereto and made a part hereof.
(c) "Copyright Office" shall mean the United States Copyright
Office
or any
other federal governmental agency which may hereafter perform
its
functions.
(d) "Credit Agreement" shall have the meaning assigned to such
term
in the
preliminary statement of this Agreement.
(e) "Intellectual Property" shall have the meaning assigned to
such
term in
Section 3 hereof.
(f) "IP Collateral" shall have the meaning assigned to such term
in
Section 2
hereof.
(g) "Licenses" shall mean, collectively, the Copyright Licenses,
the
Patent
Licenses and the Trademark Licenses.
(h) "Necessary Intellectual Property" shall mean any and all
Intellectual Property
that is necessary, in the reasonable business
judgment
of the Loan Parties, for the conduct of the business of the
Loan
Parties
from time to time.
(i) "Obligations" shall have the meaning assigned to such term
in
the
Security Agreement.
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(j) "Patents" shall mean all letters patent and applications
for
letters
patent of each Grantor, and the inventions and improvements
therein
disclosed, and any and all divisions, reissues and
continuations
of said
letters patent including, without limitation the patents listed
on
Exhibit B
annexed hereto and made a part hereof.
(k) "Patent Licenses" shall mean all agreements, whether written
or
oral,
providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered by a Patent,
including,
without
limitation, the agreements listed on Exhibit B annexed hereto
and
made a part
hereof.
(l) "PTO" shall mean the United States Patent and Trademark
Office
or any
other federal governmental agency which may hereafter perform
its
functions.
(m) "Security Agreement" shall have the meaning assigned to
such
term in
the preliminary statement of this Agreement.
(n) "Trademarks" shall mean all trademarks, trade names,
corporate
names,
company names, business names, fictitious business names, trade
dress,
trade styles, service marks, designs, logos and other source or
business
identifiers of each Grantor, whether registered or
unregistered,
including,
without limitation, the trademarks listed on Exhibit C annexed
hereto and
made a part hereof, together with all registrations and
recordings
thereof, all applications in connection therewith, and any
goodwill
of the business connected with, and symbolized by, any of the
foregoing.
(o) "Trademark Licenses" shall mean all agreements, whether
written
or oral,
providing for the grant by or to any Grantor of any right to
use
any
Trademark, including, without limitation, the agreements listed
on
Exhibit C
annexed hereto and made a part hereof.
1.3 Rules
of Interpretation. The rules of interpretation specified in
Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 2
Security Interest
In
furtherance and as confirmation of the Security Interest granted by
the
Grantors to the Collateral Agent (for the benefit of the Secured
Parties) under
the Security Agreement, and as further security for the payment or
performance,
as the case may be, in full of the Obligations, each Grantor hereby
ratifies
such Security Interest and grants to the Collateral Agent (for the
benefit of
the Secured Parties) a continuing security interest, with a power
of sale (which
power of sale shall be exercisable only following the occurrence of
an Event of
Default), in all of the present and future right, title and
interest of the
Grantors in and to the following property, and each item thereof,
whether now
owned or existing or hereafter acquired or arising, together with
all products,
proceeds, substitutions, and accessions of or to any of the
following property
(collectively, the "IP Collateral"):
(a) All
Copyrights and Copyright Licenses.
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(b) All Patents
and Patent Licenses.
(c) All
Trademarks and Trademark Licenses.
(d) All renewals
of any of the foregoing.
(e) All General Intangibles connected with the use of, or
related
to, any
and all Intellectual Property (including, without limitation,
all
goodwill
of the Grantors and their business, products and services
appurtenant to, associated with, or symbolized by, any and all
Intellectual Property and the use thereof).
(f) All income, royalties, damages and payments now and
hereafter
due and/or
payable under and with respect to any of the foregoing,
including,
without limitation, payments under all Licenses entered into in
connection
therewith and damages and payments for past or future
infringements or dilutions thereof.
(g) The right to sue for past, present and future infringements
and
dilutions
of any of the foregoing.
(h) All of the Grantors' rights corresponding to any of the
foregoing
throughout the world.
SECTION 3
Protection of Intellectual Property By Grantors
Except as
set forth below in this Section 3, the Grantors shall undertake
the following with respect to each of the items respectively
described in
Sections 2(a), (b), (c), (d) and (e) (collectively, the
"Intellectual
Property"):
3.1 Pay
all renewal fees and other fees and costs associated with
maintaining the Necessary Intellectual Property and with the
processing of the
Intellectual Property and take all other reasonable and necessary
steps to
maintain each registration of the Intellectual Property.
3.2 Take
all actions reasonably necessary to prevent any of the
Necessary
Intellectual Property from becoming forfeited, abandoned, dedicated
to the
public, invalidated or impaired in any way.
3.3 At the
Grantors' sole cost, expense, and risk, diligently pursue the
processing of each application for registration which is the
subject of the
security interest created herein and not abandon or delay any such
efforts.
3.4 At the
Grantors' sole cost and expense, take any and all action which
the Grantors reasonably deem appropriate under the circumstances to
protect the
Necessary Intellectual Property from infringement, misappropriation
or dilution,
including, without limitation, the prosecution and defense of
infringement
actions.
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Notwithstanding the foregoing, so long as no Event of Default has
occurred
and is continuing, and no Material Adverse Effect would result
therefrom, no
Grantor shall have an obligation to use or to maintain any
Intellectual Property
(i) that relates solely to any product that has been discontinued,
abandoned or
terminated, and (ii) that has been replaced with Intellectual
Property
substantially similar to the Intellectual Property that may be
abandoned or
otherwise become invalid, so long as the failure to use or maintain
such
Intellectual Property does not materially adversely aff
