TRADEMARK SECURITY AGREEMENT
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EX-10.7 15 v102293_ex10-7.htm
TRADEMARK SECURITY AGREEMENT
This Trademark Security Agreement (this “Trademark Security Agreement”), dated as of July 30, 2007, is made by Twistbox Entertainment, Inc., a Delaware corporation, located at 14242 Ventura Blvd., Sherman Oaks, CA 91423 (the “Grantor”), in favor of ValueAct SmallCap Master Fund, L.P., a British Virgin Islands limited partnership, located at 435 Pacific Avenue, San Francisco, CA 94133, in its capacity as collateral agent for the benefit of the Secured Parties pursuant to the Guarantee and Security Agreement (defined below) dated July 30, 2007 (in such capacity, the “Collateral Agent”).
WITNESSETH:
WHEREAS, reference is made to the Securities Purchase Agreement, dated as of July 30, 2007, among the Grantor, the Subsidiary Guarantors, and the Investor (as amended, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”);
WHEREAS, the Investor has agreed to purchase the Senior Secured Notes from the Grantor pursuant to, and upon the terms and subject to the conditions specified in, the Securities Purchase Agreement;
WHEREAS, as a condition to the obligation of the Investor to purchase the Senior Secured Notes under the Security Purchase Agreement, Grantor, the Subsidiary Guarantors, Investor and the Collateral Agent have entered into a Guarantee and Security Agreement dated July 30, 2007 (the “Security Agreement”) pursuant to which the Grantor is required to execute and deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and as a condition to the obligation of the Investor to purchase the Senior Secured Notes, the Grantor and the Collateral Agent hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein have the meaning given to them in the Security Agreement.
SECTION 2. Grant of Security Interest in Trademark Collateral. As security for the payment or performance, as applicable, in full of the Obligations, the Grantor hereby pledges and grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a lien on and security interest in and to all of its right, title and interest in, to and under all the following property of the Grantor, wherever located, whether now existing or hereafter arising or acquired from time to time (all of which being hereinafter collectively referred to as, the “Trademark Collateral”):
| (a) | all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in the United States or any other country, and all extensions or renewals thereof, including those trademark registrations and applications described on Schedule 1 attached hereto, (ii) all goodwill associated therewith or symbolized by any of the foregoing and (iii) all other assets, rights and interests that uniquely reflect or embody such goodwill; and |
[Signature Page to Trademark Security Agreement]
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| (b) | all Proceeds, products, substitutions, accessions, rents and profits of or in respect of any of the foregoing. |
SECTION 3. Security Agreement. The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interest granted to the Collateral Agent pursuant to the Security Agreement, and the Grantor hereby acknowledges and affirms that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
SECTION 4. Termination. Upon the full payment and performance of the Obligations and termination of the Security Agreement, upon written request of the Grantor, the Collateral Agent shall execute, acknowledge, and deliver to the Grantor an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien on and security interest in the Trademark Collateral under this Trademark Security Agreement.
SECTION 5. Governing Law. THIS TRADEMARK SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Trademark Security Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute but one contract. Delivery of an executed counterpart of this Trademark Security Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Trademark Security Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Grantor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
| TWISTBOX ENTERTAINMENT, INC. as Grantor | |||
| By: | /s/ Ian Aaron | ||
| Name: IAN AARON | |||
| Title: PRES. / CEO | |||
| Sworn to and subscribed before me this 31 day of July, 2007. | |||
| /s/ Lisa B. Cayanan | |||
| Notary Public | |||
 | |||
[Signature Page to Trademark Security Agreement]
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IN WITNESS WHEREOF, the Grantor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Accepted and Agreed:
| VALUEACT SMALLCAP MASTER FUND, L.P. as Collateral Agent | By Its General Partner, VA SmallCap Partners, LLC | ||
| By: | /s/ David Lockwood | ||
| Name: DAVID LOCKWOOD | |||
| Title: MANAGING MEMBER | |||
| Sworn to and subscribed before me this 1st day of AUGUST, 2007. | STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO | ||
| /s/ Sylvia N. Acacio | |||
| Notary Public | |||
 | |||
[Signature Page to Trademark Security Agreement]
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SCHEDULE 1
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND APPLICATIONS
United States Trademarks
| Jurisdiction | Trademark | Registration No. (App. No.) | Registration Date (App. Date) | Record Owner | Status/ Comments | |||||
| United States | COMPETITION GOES MOBILE | 3076001 | April 4, 2006 | Twistbox Entertainment, Inc. | Registered | |||||
| United States | PRIZE-21 FOR PRIZES | 3040851 | January 10, 2006 | Twistbox Entertainment, Inc. | Registered | |||||
| United States | TWISTBOX ENTERTAINMENT and Design | (78-958,901) | (August 23, 2006) | Twistbox Entertainment, Inc. | Pending |
Foreign Trademarks
| Jurisdiction | Trademark | Registration No. (App. No.) | Registration Date (App. Date) | Record Owner | Status/ Comments | |||||
| Canada | TWISTBOX ENTERTAINMENT and Design | (1321869) | October 27, 2006 | Twistbox Entertainment, Inc. | Pending | |||||
| CTM (EU) | CHARISMATIX | 4022844 | January 25, 2006 | Charismatix Ltd. & Co. KG | Registered | |||||
| CTM (EU) | DELIGHT ENTERTAINMENT and design | 4022745 | March 29, 2006 | Charismatix Ltd. & Co. KG | Registered | |||||
| CTM (EU) | TWISTBOX ENTERTAINMENT and Design | 005303581 | July 4, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Germany | BABESHUFFLE | 30452899 | December 16, 2004 | Charismatix Ltd. & Co. KG | Registered | |||||
| Germany | BABETRIS | 30452903 | December 16, 2004 | Charismatix Ltd. & Co. KG | Registered | |||||
| Germany | BOMBS’N BOOBS | 30452900 | December 16, 2004 | Charismatix Ltd. & Co. KG | Registered | |||||
| Germany | EROTRIX | 30452902 | December 16, 2004 | Charismatix Ltd. & Co. KG | Registered | |||||
| International Register | TWISTBOX ENTERTAINMENT and design | 901928 | September 19, 2006 | Twistbox Entertainment, Inc. | Pending |
| Jurisdiction | Trademark | Registration No. (App. No.) | Registration Date (App. Date) | Record Owner | Status/ Comments | |||||
| Brazil | TWISTBOX ENTERTAINMENT and Design | (828805202) | (October 23, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Brazil | TWISTBOX ENTERTAINMENT and Design | (828805180) | (October 23, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Brazil | TWISTBOX ENTERTAINMENT and Design | (828805199) | (October 23, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Argentina | TWISTBOX ENTERTAINMENT and Design | (2711266) | (November 1, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Argentina | TWISTBOX ENTERTAINMENT and Design | (2711267) | (November 1, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Argentina | TWISTBOX ENTERTAINMENT and Design | (2711268) | (November 1, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Chile | TWISTBOX ENTERTAINMENT and Design | 782585 | (March 20, 2007) | Twistbox Entertainment, Inc. | Registered | |||||
| Chile | TWISTBOX ENTERTAINMENT and Design | (748959) | (October 24, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Chile | TWISTBOX ENTERTAINMENT and Design | 782536 | March 20, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Colombia | TWISTBOX ENTERTAINMENT and Design | 332601 | May 16, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Colombia | TWISTBOX ENTERTAINMENT and Design | 332600 | May 16, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Colombia | TWISTBOX ENTERTAINMENT and Design | 332602 | May 16, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Venezuela | TWISTBOX ENTERTAINMENT and Design | (26866-06) | (November 15, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Venezuela | TWISTBOX ENTERTAINMENT and Design | (26867-06) | (November 15, 2006) | Twistbox Entertainment, Inc. | Pending | |||||
| Venezuela | TWISTBOX ENTERTAINMENT and Design | (26868-06) | (November 15, 2006) | Twistbox Entertainment, Inc. | Pending |
| Jurisdiction | Trademark | Registration No. (App. No.) | Registration Date (App. Date) | Record Owner | Status/ Comments | |||||
| Mexico | TWISTBOX ENTERTAINMENT and Design | 977723 | March 22, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Mexico | TWISTBOX ENTERTAINMENT and Design | 982555 | April 26, 2007 | Twistbox Entertainment, Inc. | Registered | |||||
| Mexico | TWISTBOX ENTERTAINMENT and Design | 977724 | March 22, 2007 | Twistbox Entertainment, Inc. | Registered |
