EXHIBIT 10.29
TRADEMARK SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into as of May 23, 2002, by and
between iParty Corp., a Delaware corporation having its principal place of
business at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "BORROWER"), and ▇▇▇▇▇
Fargo Retail Finance, L.L.C., a Delaware limited liability company with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "LENDER").
NOW THEREFORE, in consideration of the premises, Borrower hereby
agrees with Lender as follows:
1. GRANT OF SECURITY INTEREST. Borrower hereby grants to Lender a first
priority security interest in, and conditionally assigns, but does not transfer
title to Lender, all of Borrower's right, title and interest in and to the
following (collectively, the "COLLATERAL") to secure payment and performance of
all obligations of Borrower to Lender whether such obligations are direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, including without limitation, those liabilities of Borrower
to Lender pursuant to a Loan and Security Agreement dated as of August 23, 2000,
as amended by a First Amendment to Loan and Security Agreement of even date
herewith, between Lender and Borrower (the "LOAN AGREEMENT") (collectively, the
"OBLIGATIONS").
The Collateral shall consist of the following:
(a) Each of the trademarks, and rights and interests protectible as
trademarks, which are presently, or in the future may be, owned, created,
acquired or used (whether pursuant to a license or otherwise) by Borrower, in
whole or in part, and all trademark rights with respect thereto throughout the
world, including all proceeds thereof (including license royalties and proceeds
of infringement suits), and rights to renew and extend such trademarks and
trademark rights;
(b) All of Borrower's right, title and interest, in and to the
trademarks, pending trademark applications and registered trademarks listed on
SCHEDULE A attached hereto, as the same may be updated hereafter from time to
time;
(c) All of Borrower's right, title and interest to register trademark
claims under any state or federal trademark law or regulation of any foreign
country, and to apply for, renew and extend the trademark registrations and
trademark rights, the right (without obligation) to ▇▇▇ or bring opposition or
cancellation proceedings in the name of Borrower or in the name of Lender for
past, present and future infringements of the trademarks, registrations or
trademark rights and all rights (but not obligations) corresponding thereto in
the United States and any foreign country, and the associated goodwill;
(d) All general intangibles relating to the Collateral; and
(e) All proceeds of any and all of the foregoing (including, without
limitation, license royalties and proceeds of infringement suits) and, to the
extent not otherwise included, all payments under insurance, or any indemnity,
warranty or guaranty payable by reason of loss or damage to or otherwise with
respect to the Collateral.
2. WARRANTIES AND REPRESENTATIONS. Borrower hereby warrants and
represents to Lender the following:
(a) A true and complete schedule setting forth all federal and state
trademark registrations and pending applications owned or controlled by Borrower
or licensed to Borrower, together with a summary description and full
information in respect of the filing or issuance thereof and expiration dates is
set forth on Schedule A;
(b) Each of the trademark registrations is valid and enforceable, and
Borrower is not presently aware of any past, present or prospective claim by any
third party that any of the trademarks are invalid or unenforceable, or that the
use of any trademarks violates the rights of any third person, or of any basis
for any such claims;
(c) Borrower is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the trademark
registrations. Each of the trademarks and trademark registrations is free and
clear of any liens, charges and encumbrances, including, without limitation,
pledges, assignments, licenses, shop rights and covenants by Borrower not to ▇▇▇
third persons;
(d) Borrower has used and will continue to use proper statutory
notice in connection with its use of each of the trademarks;
(e) Borrower has used and will continue to use consistent standards
of high quality (which may be consistent with Borrower's past practices) in the
manufacture, sale and delivery of products and services sold or delivered under
or in connection with the trademarks, including, to the extent applicable, in
the operation and maintenance of its merchandising operations, and will continue
to maintain the validity of the trademarks;
(f) Except for the filing of financing statements with the Secretary
of State, Delaware, under the Uniform Commercial Code and filings with the
United States Patent and Trademark Office necessary to perfect the security
interests created hereunder, no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required either for the grant by Borrower of the security interest hereunder or
for the execution, delivery or performance of this Agreement by Borrower or for
the perfection of or the exercise by Lender of its rights hereunder to the
Collateral in the United States.
3. AFTER-ACQUIRED TRADEMARK RIGHTS. If Borrower shall obtain rights to
any new trademarks, the provisions of this Agreement shall automatically apply
thereto. Borrower shall give prompt notice in writing to Lender with respect to
any such new trademarks or renewal or extension of any trademark registration.
Borrower shall bear any expenses incurred in connection with future applications
for trademark registration.
4. LITIGATION AND PROCEEDINGS. Borrower shall commence and diligently
prosecute in its own name, as the real party in interest, for its own benefit,
and its own expense, such suits, administrative proceedings or other actions for
infringement or other damages as are in its reasonable business judgment
necessary to protect the Collateral. Borrower shall provide to Lender any
information with respect thereto requested by Lender. Lender shall provide at
Borrower's expense all necessary cooperation in connection with any such suit,
proceeding or action, including, without limitation, joining as a necessary
party. Following Borrower's becoming aware thereof, Borrower shall notify Lender
of the institution of, or any adverse determination in, any proceeding in the
United States Patent and Trademark Office, or any United States, state or
foreign court regarding Borrower's claim
2
of ownership in any of such trademarks, its right to apply for the same, or its
right to keep and maintain such trademark rights.
5. POWER OF ATTORNEY. Borrower grants Lender power of attorney, having
the full authority, and in the place of Borrower and in the name of Borrower,
from time to time in Lender's discretion to take any action and to execute any
instrument which Lender may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, as may be subject to
the provisions of the Loan Agreement:
(a) To endorse Borrower's name on all applications, documents, papers
and instruments necessary for Lender to use or maintain the Collateral;
(b) To ask, demand, collect, ▇▇▇ for, recover, impound, receive and
give acquittance and receipts for money due or to become due under or in respect
of any of the Collateral;
(c) To file any claims or take any action or institute any
proceedings that Lender may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce Lender's rights with respect to
any of the Collateral and to assign, pledge, convey or otherwise transfer title
in or dispose of the Collateral to any person.
6. RIGHT TO INSPECT. Borrower grants to Lender and its employees and
agents the right to visit and/or inspect Borrower's plants and facilities which
manufacture, inspect, store, or facilitate the sale of products sold under any
of the trademarks, and to inspect the products and quality control records
relating thereto at reasonable times during regular business hours.
7. EVENTS OF DEFAULT. Any of the following events shall be an Event of
Default:
(a) Borrower fails to make any payment of principal or interest or
any other payment on any Obligation when due and payable, by acceleration or
otherwise; and
(b) the occurrence of an Event of Default as that term is defined in
the Loan Agreement.
8. SPECIFIC REMEDIES. Upon the occurrence of any Event of Default:
(a) Lender may cease advancing money or extending credit to or for
the benefit of Borrower under the Loan Agreement or under any other agreement
between Borrower and Lender.
(b) Lender may declare all Obligations to be due and payable
immediately, whereupon they shall immediately become due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by Borrower;
(c) Lender may set off against the Obligations all Collateral,
balances, credits, deposits, accounts or moneys of Borrower then or thereafter
held with Lender, including amounts represented by certificates of deposit;
(d) Lender may notify licensees to make royalty payments on license
agreements directly to Lender;
(e) Lender may sell or assign the Collateral and associated goodwill
at public or private sale for such amounts, and at such time or times as Lender
deems advisable. Any requirement of
3
reasonable notice of any disposition of the Collateral shall be satisfied if
such notice is sent to Borrower ten (10) days prior to such disposition.
Borrower shall be credited with the net proceeds of such sale only when they are
actually received by Lender, and Borrower shall continue to be liable for any
deficiency remaining after the Collateral is sold or collected;
(f) If the sale is to be a public sale, Lender shall also give notice
of the time and place by publishing a notice one time at least ten (10) calendar
days before the date of the sale in a newspaper of general circulation in the
county in which the sale is to be held; and
(g) To the maximum extent permitted by applicable law, Lender may be
the purchaser of any or all of the Collateral and associated goodwill at any
public sale and shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Collateral sold at any public sale, to use and apply all or any part of the
Obligations as a credit on account of the purchase price of any Collateral
payable by Lender at such sale.
9. GOVERNING LAW. All acts and transactions hereunder and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the Commonwealth of Massachusetts.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
[SIGNATURE PAGES TO FOLLOW]
4
IN WITNESS WHEREOF, the Borrower and Lender have caused this Agreement
to be executed by their duly authorized officers as of the date first above
written.
LENDER
▇▇▇▇▇ FARGO RETAIL FINANCE, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, Vice President
IN WITNESS WHEREOF, the Borrower and Lender have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
BORROWER
IPARTY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: President
-----------------------------------
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. May 23, 2002
Then personally appeared the above named, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
of iParty Corp., and acknowledged the foregoing instrument to be the free act
and deed of iParty Corp., before me,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public
My commission expires: April 17, 2003
SCHEDULE A
TO A TRADEMARK SECURITY AGREEMENT
BETWEEN IPARTY CORP. (BORROWER)
AND
▇▇▇▇▇ FARGO RETAIL FIANNCE, L.L.C. (LENDER)
DATED: MAY 23rd, 2002
TRADEMARKS (USA)
TRADEMARK APPLICATIONS SERIAL NO. DATE OF FILING
---------------------- ---------- --------------
▇▇▇▇▇▇.▇▇▇ 76/139,874 October 3, 2000
STARGREETINGS 75/777,276 August 17, 1999
▇▇▇▇▇▇.▇▇▇ 75/694,675 May 29, 1999
REGISTERED TRADEMARKS REGISTRATION NO. REGISTRATION DATE
--------------------- ---------------- -----------------
IPARTY 2,541,025 February 19, 2002