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Exhibit 10.4
TRADEMARK SECURITY AGREEMENT
This TRADEMARK
SECURITY AGREEMENT (this "TRADEMARK SECURITY AGREEMENT")
is made this 7th day of April, 2009, among Ivivi Technologies, Inc.
(the
"BORROWER"), and Emigrant Capital Corp. (together with its
successors and
assigns, if any, the "SECURED PARTY").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant
to that certain Loan Agreement, dated as of April 7,
2009 (as amended, restated, supplemented or otherwise modified from
time to
time, the "LOAN AGREEMENT"), among the Borrower, as borrower, and
the Secured
Party, as lender, the Secured Party is willing to make certain
financial
accommodations available to the Borrower pursuant to the terms and
conditions
thereof;
WHEREAS, the
Lender is willing to make the financial accommodations to
the Borrower as provided for in the Loan Agreement, but only upon
the condition,
among others, that the Borrower shall have executed and delivered
to the Secured
Party that certain Security Agreement, dated as of April 7, 2009
(including all
annexes, exhibits or schedules thereto, as from time to time
amended, restated,
supplemented or otherwise modified, the "SECURITY AGREEMENT");
and
WHEREAS, pursuant
to the Security Agreement, the Borrower is required
to execute and deliver to the Secured Party this Trademark Security
Agreement.
NOW, THEREFORE, in
consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the Borrower hereby
agrees as
follows:
1. DEFINED TERMS.
All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or
the Loan
Agreement.
2. GRANT OF
SECURITY INTEREST IN TRADEMARK COLLATERAL. The Borrower
hereby grants to the Secured Party a continuing first priority
security interest
(subject to Permitted Liens) in all of the Borrower's right, title
and interest
in, to and under the following, whether presently existing or
hereafter created
or acquired (collectively, the "TRADEMARK COLLATERAL"):
(a) all of its Trademarks and Trademark Intellectual Property
Licenses to which it is a party including those referred to on
SCHEDULE I
hereto;
(b) all goodwill, trade secrets, proprietary or confidential
information, technical information, procedures, formulae, quality
control
standards, designs, operating and training manuals, customer lists,
and other
General Intangibles with respect to the foregoing;
(c) all reissues, continuations or extensions of the
foregoing;
(d) all goodwill of the business connected with the use of,
and symbolized by, each Trademark and each Trademark Intellectual
Property
License; and
(e) all products and proceeds of the foregoing, including any
claim by the Borrower against third parties for past, present or
future (i)
infringement or dilution of any Trademark or any Trademark licensed
under any
Intellectual Property License, (ii) injury to the goodwill
associated with any
Trademark or any Trademark licensed under any Intellectual Property
License, or
(iii) right to receive license fees, royalties, and other
compensation under any
Intellectual Property License.
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3. SECURITY FOR
OBLIGATIONS. This Trademark Security Agreement and the
Security Interest created hereby secures t
