INTELLECTUAL PROPERTY SECURITY AGREEMENT

 

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                                                                     EXHIBIT 4.3

 

                    INTELLECTUAL PROPERTY SECURITY AGREEMENT

 

     INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement") is made as of

this 9th day of November, 2005, 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

 

          BANK OF AMERICA, N.A., a national banking association, 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, (iv) Bank of

America, N.A., as Administrative Agent and Collateral Agent for the Lenders and

as Swingline Lender, and (v) Bank of America, N.A, as Issuing Bank.

 

     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 Loans to the Borrowers, and the Issuing

Bank has agreed to issue Letters of Credit for the account of 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

 

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                                   Definitions

 

     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.

 

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          (i) "Obligations" shall have the meaning assigned to such term in the

     Security Agreement.

 

          (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

 

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all products, proceeds, substitutions, and accessions of or to any of the

following property (collectively, the "IP Collateral"):

 

          (a) All Copyrights and Copyright Licenses.

 

          (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.

 

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     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.

 

     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 affect the validity of such

replacement Intellectual Property and so long as such replacement Intellectual

Property is subject to the lien created by this Agreement.

 

                                    SECTION 4

 

                    Grantors' Representations and Warranties

 

     Each Grantors hereby represents and warrants that:

 

     4.1 Exhibit A is a true, correct and complete list of all Copyrights and

Copyright Licenses owned by the Grantors as of the date hereof.

 

     4.2 Exhibit B is a true, correct and complete list of all Patents and

Patent Licenses owned by the Grantors as of the date hereof.

 

     4.3 Exhibit C is a true, correct and complete list of all Trademarks and

Trademark Licenses owned by the Grantors as of the date hereof.

 

     4.4 Except as set forth in Exhibits A, B and C, none of the Intellectual

Property is the subject of any licensing or franchise agreement pursuant to

which any Grantor is the licensor or franchisor.

 

     4.5 All IP Collateral is, and shall remain, free and clear of all Liens,

encumbrances, or security interests in favor of any Person, other than Permitted

Encumbrances, Liens in favor of the Collateral Agent and Liens permitted by

Section 6.02 of the Credit Agreement.

 

     4.6 Each Grantor owns, or is licensed to use, all Intellectual Property

necessary for the conduct of its business as currently conducted. No material

claim has been asserted and is pending by any Person challenging or questioning

the use by any Grantor of any of the Intellectual Property owned by any Grantor

or the validity of any of the Intellectual Property owned by any Grantor, nor

does any Grantor know of any valid basis for any such claim, except as otherwise

set forth in the Credit Agreement. To the knowledge of the Grantors, the use by

the Grantors of the Intellectual Property does not infringe the rights of any

Person in any material respect. No holding, decision or judgment has been

rendered by any Governmental Authority which would limit, cancel or question the

validity of, or any Grantor's rights in, any Intellectual Property in any

respect that could reasonably be expected to have a Material Adverse Effect on

the business or the property of any Grantor.

 

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     4.7 The Grantors shall give the Collateral Agent written notice (with

reasonable detail) within ten (10) Business Days following the occurrence of any

of the following:

 

          (a) The Grantors' obtaining rights to, and filing applications for

     registration of, any new Intellectual Property, or otherwise acquiring

     ownership of any newly registered Intellectual Property (other than the

     Grantors' right to sell products containing the trademarks of others in the

     ordinary course of the Grantors' business).

 

          (b) The Grantors' becoming entitled to the benefit of any registered