Exhibit 4.5
Execution
Version
TRADEMARK SECURITY
AGREEMENT
This Trademark Security Agreement
(as amended, amended and restated, supplemented or otherwise
modified from time to time, the “ Trademark Security
Agreement ”), dated as of May 28, 2009, is made by
the Persons listed on the signature pages hereof (collectively, the
“ Grantors ”) in favor of Wells Fargo Bank,
National Association, as collateral agent (the “
Collateral Agent ”) for the Secured Parties (as
defined in the Security Agreement referred to below).
WHEREAS, WMG Acquisition Corp., a
Delaware corporation, has entered into an Security Agreement, dated
as of May 28, 2009, made by the Grantors to the Collateral
Agent (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “ Security Agreement
”). Capitalized terms not otherwise defined herein have the
meanings set forth in the Security Agreement.
WHEREAS, under the terms of the
Security Agreement, the Grantors have granted to the Collateral
Agent, for the ratable benefit of the Secured Parties, a security
interest in, among other property, certain Trademarks (as defined
below) of the Grantors, and have agreed as a condition thereof to
execute this Trademark Security Agreement for recording with the
United States Patent and Trademark Office and any other appropriate
governmental authorities.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Grantor agrees as follows:
SECTION 1. Grant of Security
. Each Grantor hereby grants to the Collateral Agent, for the
ratable benefit of the Secured Parties, a security interest in such
Grantor’s right, title and interest in and to the following
(all of the following items or types of property being herein
collectively referred to as the “ Trademark Collateral
”), whether now owned or existing or hereafter acquired or
arising:
(i) all trademarks, service marks,
domain names, trade dress, logos, designs, slogans, trade names,
business names, corporate names and other source identifiers,
whether registered or unregistered, owned by the Grantor, (provided
that no security interest shall be granted in United States
intent-to-use trademark applications to the extent that, and solely
during the period in which, the grant of a security interest
therein would impair the validity or enforceability of any
registration issuing from such intent-to-use trademark applications
under applicable federal law), including, without limitation, each
Trademark registration and application therefor, referred to in
Schedule 1 hereto, and all of the goodwill of the business
connected with the use of, or symbolized by, each
Trademark;
(ii) each Trademark license to which
the Grantor is a party, including, without limitation, each
Trademark license referred to in Schedule 1 hereto, and all of the
goodwill of the business connected with the use of, or symbolized
by, each Trademark licensed pursuant thereto;
(iii) all registrations and
applications for registration for any Trademark, together with all
extensions and renewals thereof;
(iv) all rights in the foregoing
provided by international treaties or conventions, all rights
corresponding thereto throughout the world and all other rights of
any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto;
(v) any and all claims for damages
and injunctive relief for past, present and future infringement,
dilution, violation, misuse or breach with respect to any of the
foregoing, with the right, but not the obligation, to sue for and
collect, or otherwise recover, such damages; and
(vi) all Proceeds of, collateral
for, income, royalties and other payments now or hereafter due and
payable with respect to, and Supporting Obligations relating to,
any and all of the foregoing.
SECTION 2. No Transfer of
Grantor’s Rights . Except to the extent expressly
permitted in the Secured Agreements, as applicable, each Grantor
agrees not to sell, license, exchange, assign, or otherwise
transfer or dispose of, or grant any rights with respect to, or
mortgage or otherwise encumber, any of the Trademark
Collateral.
SECTION 3. Security for Secured
Obligations . The grant of continuing security interest in the
Trademark Collateral by each Grantor under this Trademark Security
Agreement secures the payment of all Secured Obligations of such
Grantor, now or hereafter existing under or in respect of the
Finance Documents, whether direct or indirect, absolute or
contingent, and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract
causes of action, costs, expenses or otherwise.
SECTION 4. Recordation . Each
Grantor authorizes and requests that the Commissioner for
Trademarks and any other applicable government office record this
Trademark Security Agreement.
SECTION 5. Execution in
Counterparts . This Trademark Security Agreement may be
executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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SECTION 6. Grants, Rights and
Remedies . This Trademark Security Agreement has been executed
and delivered by the Grantors for the purpose of recording the
grant of security interest herein with the U.S. Patent and
Trademark Office. The security interest granted hereby has been
granted to the Collateral Agent in connection with the Security
Agreement and is expressly subject to the terms and conditions
thereof and does not create any additional rights or obligations
for any party hereto. The Security Agreement (and all, rights and
remedies of the Collateral A
