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EXHIBIT 4.3
COLLATERAL TRADEMARK SECURITY AGREEMENT
THIS COLLATERAL TRADEMARK SECURITY AGREEMENT ("Security Agreement") made
as of the 5th day of October, 1992, by RAINBOW HOME RENTALS, INC., an Ohio
corporation ("Borrower") and CONTINENTAL BANK N.A., a national banking
association having its principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 ("Lender"):
W I T N E S S E T H:
WHEREAS, Lender and Borrower have entered into a Loan and Security
Agreement of even date herewith (said Loan and Security Agreement, as it may
hereafter be amended or otherwise modified from time to time, being called the
"Loan and Security Agreement"; capitalized terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Loan and Security
Agreement); and
WHEREAS, it is a condition precedent to the making of the initial
Revolving Loan and the issuance of the initial Letter of Credit under the Loan
and Security Agreement by Lender that Borrower shall grant the security interest
and make the collateral assignment contemplated by this Security Agreement;
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to make Loans and issue Letters of Credit under the Loan and Security
Agreement, Borrower hereby agrees with Lender as follows:
1. GRANT OF SECURITY INTEREST. To secure the prompt and complete
payment, observance and performance of all of the Liabilities, Borrower hereby
grants, bargains, assigns, mortgages, pledges and creates a security interest in
and transfers and conveys to Lender as and by way of a first mortgage and
security interest having priority over all other security interests, with power
of sale as hereinafter provided, to the extent permitted by law, with respect to
all of the following property of Borrower, whether now owned or existing or
hereafter acquired or arising (collectively, the "Collateral"):
(a) trademarks, trademark registrations, interests under
trademark license agreements, tradenames and trademark applications,
service marks, service xxxx registrations, service xxxx applications and
brand names, including, without limitation, the trademarks, trade-
names, service marks and registrations and applications thereof listed
on EXHIBIT A attached hereto and made a part hereof and the trademark
license agreements (both as licensee and licensor) listed on EXHIBIT B
attached hereto and made a part hereof and (i) all renewals thereof,
(ii) all income, royalties, damages and payments
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now or hereafter due and/or payable with respect thereto, including,
without limitation, payments under all licenses entered into in
connection therewith and damages and payments for past or future
infringements thereof, but excluding attorneys' fees and court costs
payable to Borrower with respect thereto, (iii) the right to xxx for
past, present and future infringements thereof, and (iv) all rights
corresponding thereto throughout the world (all of the foregoing
trademarks, tradenames, service marks, applications, registrations, and
interests under trademark license agreements, together with the items
described in CLAUSES (i) through (iv) in this SUBSECTION (a), are
sometimes hereinafter individually and/or collectively referred to as
the "Trademarks"); and
(b) the goodwill of Borrower's business associated with or
symbolized by the Trademarks.
2. RESTRICTIONS ON FUTURE AGREEMENTS. Borrower agrees that until all
Liabilities shall have been satisfied in full and the Loan and Security
Agreement shall have been terminated, Borrower will not, without Lender's prior
written consent, abandon any Trademark, the abandonment of which would have a
material adverse affect on Borrower, or enter into any agreement, including,
without limitation, any license agreement, which is inconsistent with Borrower's
obligations under this Security Agreement and Borrower further agrees that it
will not take any action, or permit any action to be taken by others subject to
its control, including licensees, or fail to take any action, which would affect
the validity or enforcement of the rights transferred to Lender under this
Security Agreement and any such agreement or action if it shall take place shall
be null and void and of no effect whatsoever.
3. NEW TRADEMARKS. Borrower represents and warrants that the Trademarks
listed on EXHIBIT A and the license agreements listed on EXHIBIT B constitute
all of the Trademarks and applications now owned by or licensed to or by
Borrower for which registrations have been issued or applied for in the United
States Patent and Trademark Office. If, before the Liabilities have been
satisfied in full and the Loan and Security Agreement terminated, Borrower shall
(i) obtain rights to any new trademarks, trademark registrations or applications
or tradenames used in the United States or any state, territory or possession
thereof or (ii) become entitled to the benefit of any trademark application,
trademark, trademark registration or tradename used in the United States or any
state, territory or possession thereof, the provisions of PARAGRAPH 1 above
shall automatically apply thereto and Borrower shall give to Lender prompt
written notice thereof. Borrower hereby authorizes Lender to modify this
Security Agreement by amending EXHIBIT A and EXHIBIT B to include any future
trademarks, trademark registrations, trademark applications, tradenames and
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license agreements which are Trademarks, as applicable, under PARAGRAPH 1 above
or under this PARAGRAPH 3.
4. ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents, warrants, covenants and agrees that:
(a) It is and will continue to be the owner of all right, title
and interest in the Collateral so long as the Trademarks shall continue
in force, free from any lien or security interest in favor of any Person
except for the security interest granted to Lender and any other
security interests agreed to in writing by Lender.
(b) It has the full right and power to grant the security
interest in the Collateral made hereby.
(c) It has made no previous assignment, transfer or agreements
in conflict herewith or constituting a present or future assignment,
transfer, or encumbrance on any of the Collateral except for license
agreements to use such Collateral granted to licensees described on
EXHIBIT B hereto.
(d) There is no financing statement or other document or
instrument now signed or on file in any public office covering any part
of the Collateral, except those showing Lender as secured party, and so
long as any Liabilities remain outstanding under the Loan and Security
Agreement or the Loan and Security Agreement has not terminated, it will
not execute, and there will not be on file in any public office, any
such financing statement or other document or instruments, except
financing statements on file or to be filed in favor of Lender.
(e) All information furnished to Lender concerning the
Collateral and proceeds thereof, for the purpose of obtaining credit or
an extension of credit, is, or will be at the time the same is
furnished, accurate and correct in all material respects.
(f) Except as otherwise disclosed herein, to the best of
Borrower's knowledge and belief after due inquiry, no infringement or
unauthorized use presently is being made of any of the Trademarks which
would materially adversely affect the fair market value of the
Collateral or the benefits of this Security Agreement granted to Lender
including, without limitation, the priority or perfection of the
security interest granted herein or the remedies of Lender hereunder.
5. ROYALTIES; TERMS. Borrower hereby agrees that any rights granted
hereunder to use by Lender with respect to all
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Collateral as described above shall be worldwide and without any liability for
royalties or other related charges from Lender to Borrower. The term of the
assignments of security interest granted herein shall extend until the earlier
of (i) the expiration or termination of each of the Trademarks assigned
hereunder or (ii) all Liabilities have been paid in full and the Loan and
Security Agreement has been terminated.
6. LENDER'S RIGHT TO INSPECT. Lender shall have the right, at any time
and from time to time, to inspect Borrower's premises and to examine Borrower's
books, records and operations. Borrower agrees not to sell or assign its
interest in, or grant any license under, any of the Collateral without the prior
written consent of Lender.
7. RELEASE OF SECURITY INTEREST. This Security Agreement is made for
collateral purposes only. Upon payment in full of all Liabilities and
termination of the Loan and Security Agreement, Lender shall, at Borrower's sole
cost and expense, execute and deliver to Borrower all termination statements,
assignments and other instruments as may be necessary or proper to re-vest in
Borrower full title to the Collateral granted hereby, subject to any disposition
thereof which may have been made by Lender pursuant hereto or pursuant to the
Loan and Security Agreement.
8. DUTIES OF BORROWER. Borrower shall have the duty (i) to file and
prosecute diligently any trademark or service xxxx application that is part of
the Trademarks pending as of the date hereof or thereafter, (ii) to make
application on Trademarks, as appropriate, and (iii) to preserve and maintain
all rights in the Trademarks. Any expenses incurred in connection with this
PARAGRAPH 8 shall be borne by Borrower. Borrower shall not abandon any right to
file a trademark application or any pending trademark application without the
consent of Lender, if such abandonment could have a material adverse effect on
Borrower's business, operations or financial condition.
If Borrower fails to comply with any of the foregoing duties, Lender may
do so in Borrower's name to the extent permitted by law, but at Borrower's
expense, and Borrower hereby agrees to reimburse Lender in full for all
expenses, including the reasonable fees and disbursements of counsel incurred by
Lender in protecting, defending and maintaining the Collateral.
In the event that Borrower shall fail to pay when due any fees required
to be paid by it hereunder, or shall fail to discharge any lien or security
interest prohibited hereby, or shall fail to comply with any other duty
hereunder, Lender may, but shall not be required to, pay, satisfy, discharge or
bond the same for the account of Borrower, and all moneys so paid out shall be
Liabilities of Borrower repayable on demand, together with interest
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at the rate of interest applicable to Revolving Loans under the Loan and
Security Agreement.
9. RIGHT TO XXX. Upon the occurrence and during the continuance of an
Event of Default, Lender shall have the right, but shall in no way be obligated,
to bring suit in its own name to enforce the Trademarks, and any licenses
thereunder, and, if Lender shall commence any such suit, Borrower shall, at the
request of Lender, do any and all lawful acts and execute any and all proper
documents required by Lender or such other party in aid of such enforcement and
Borrower shall promptly, upon demand, reimburse and indemnify Lender or such
other party for all costs and expenses incurred by Lender or such other party in
the exercise of its or their rights under this PARAGRAPH 9.
10. WAIVERS. No course of dealing among Borrower and Lender, nor any
failure to exercise, nor any delay in exercising, on the part of Lender, any
right, power or privilege hereunder or under the Loan and Security Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
11. SEVERABILITY. The provisions of this Security Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Security
Agreement in any jurisdiction.
12. MODIFICATION. This Security Agreement cannot be altered, amended or
modified in any way, except as specifically provided in PARAGRAPH 3 hereof or by
a writing signed by the parties hereto.
13. CUMULATIVE REMEDIES; POWER OF ATTORNEY; EFFECT ON LOAN AND SECURITY
AGREEMENT. All of the rights and remedies of Lender with respect to the
Collateral, whether established hereby or by the Loan and Security Agreement, or
by any other agreements or by law shall be cumulative and may be exercised
singularly or concurrently. Borrower hereby authorizes Lender to make,
constitute and appoint any officer or agent of Lender as Lender may select, in
its sole discretion, as Borrower's true and lawful attorney-in-fact, with power
at any time after the occurrence and during the continuance of an Event of
Default, (i) to endorse Borrower's name on all applications, documents, papers
and instruments necessary or desirable for Lender in the use of the Collateral,
or to grant or issue any exclusive or non-exclusive license under the Collateral
to anyone, or to assign, pledge, convey or otherwise transfer title in or
dispose of the Collateral
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to anyone free and clear of any encumbrance upon title thereof created after the
date of this Security Agreement, and (ii) to take any other actions with respect
to the Collateral as Lender reasonably deems in its best interests. Lender
hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be
done by virtue hereof. This power of attorney, being coupled with an interest,
shall be irrevocable until all Liabilities shall have been paid in full and the
Loan and Security Agreement has been terminated. Borrower acknowledges and
agrees that this Security Agreement is not intended to limit or restrict in any
way the rights and remedies of Lender or its successors, transferees and assigns
under the Loan and Security Agreement but rather is intended to facilitate the
exercise of such rights and remedies. Lender and such other parties shall have,
in addition to all other rights and remedies given it or them by the terms of
this Security Agreement, all rights and remedies allowed by law and the rights
and remedies of a secured party under the Uniform Commercial Code as enacted in
any jurisdiction in which the Trademarks may be located. Recourse to security
will not be required at any time.
14. CARE OF COLLATERAL. Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral if it takes
such action for that purpose as Borrower shall request in writing, but failure
of Lender to comply with any such request shall not of itself be deemed a
failure to exercise reasonable care, and no failure of Lender to preserve or
protect any rights with respect to the Collateral against prior parties, or to
do any act with respect to preservation of the Collateral not so requested by
Borrower shall be deemed a failure to exercise reasonable care in the custody or
preservation of the Collateral.
15. CERTAIN RIGHTS REGARDING COLLATERAL AND LIABILITIES. Lender may from
time to time, after the occurrence and during the continuance of an Event of
Default, take all or any of the following actions: (a) transfer all or any part
of the Collateral into the name of Lender or its nominee, with or without
disclosing that such Collateral is subject to the lien and security interest
hereunder, (b) notify the parties obligated on any of the Collateral to make
payment to Lender of any amounts due or to become due hereunder and (c) enforce
collection of any of the Collateral by suit or otherwise, and surrender, release
or exchange all or any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any obligations of any
nature of any party with respect thereto. Lender shall give Borrower prompt
notice of any such action taken by Lender. Lender may, furthermore, from time to
time, whether before or after any of the Liabilities shall become due and
payable, without notice to Borrower, take all or any of the following actions:
(a) take control of any proceeds of the Collateral, (b) retain or obtain a
security interest in any property, in addition to the Collateral, to secure any
of the Liabilities, (c) retain or obtain the primary or secondary liability of
any party or parties, in addition to Borrower with respect to any of the
Liabilities, (d) extend or
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renew for any period (whether or not longer than the original period) or
exchange any of the Liabilities or release or compromise any obligation of any
nature of any party with respect thereto, (e) surrender, release or exchange all
or any part of any property, in addition to the Collateral, securing any of the
Liabilities, or compromise or extend or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party with
respect to any such property, and (f) resort to the Collateral for payment of
any of the Liabilities whether or not it shall have resorted to any other
property securing the Liabilities or shall have proceeded against any party
primarily or secondarily liable on any of the Liabilities.
16. BINDING EFFECT; BENEFITS. This Security Agreement shall be binding
upon Borrower and its respective successors and assigns, and shall inure to the
benefit of Lender and its respective successors, transferees and assigns.
17. GOVERNING LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY OF THE TRADEMARKS, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF ILLINOIS. UNLESS OTHERWISE
DEFINED HEREIN OR IN THE LOAN AND SECURITY AGREEMENT, TERMS USED IN ARTICLE 9 OF
THE UNIFORM COMMERCIAL CODE AS ENACTED IN THE STATE OF ILLINOIS ARE USED HEREIN
AS THEREIN DEFINED.
18. NOTICE. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon either of the parties by the other, or whenever either
of the parties desires to give or serve upon the other any communication with
respect to this Security Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall be
delivered in accordance with the Loan and Security Agreement.
19. CONSENT TO JURISDICTION. To induce Lender to accept this Agreement,
Borrower, irrevocably, agrees that, subject to Lender's sole and absolute
election, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT
OF OR FROM OR RELATED TO THIS AGREEMENT, OR THE COLLATERAL SHALL BE LITIGATED IN
COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS. BORROWER
HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL
COURTS LOCATED WITHIN SAID CITY AND STATE AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS STATED ON
THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF
THE LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF THE LENDER TO BRING ANY
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ACTION OR PROCEEDING AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Security Agreement as of the date first above written.
ATTEST: RAINBOW HOME RENTALS, INC.
______________________________ By___________________________
Title___________________________ Title______________________
CONTINENTAL BANK N.A.
By___________________________
Title_______________________
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STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
The foregoing Collateral Trademark Security Agreement was executed and
acknowledged before me this __________ day of __________, 1992, by
___________________ and ___________________, personally known to me to be the
________________________ and ______________________, respectively, of Rainbow
Home Rentals, Inc., an Ohio corporation, on behalf of such corporation.
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Notary Public
My Commission Expires:
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STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
The foregoing Collateral Trademark Security Agreement was executed and
acknowledged before me this ________ day of __________, 1992, by
____________________, personally known to me to be the
________________________ of Continental Bank N.A.
(SEAL)
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Notary Public
My Commission Expires:
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