Exhibit 10.2.8
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (the "Agreement") made as of this
15th day of May 2006, by PLAYBOY.COM, INC., a Delaware corporation ("Grantor")
in favor of Bank of America, N.A., in its capacity as Agent for the Lenders
party to the Credit Agreement (defined below) ("Grantee"):
W I T N E S S E T H
WHEREAS, PEI Holdings, Inc. ("PEI"), Grantee and Lenders are parties
to that certain Amended and Restated Credit Agreement dated as of April 1, 2005
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), providing for extensions of credit to be
made to or for the benefit of PEI by Lenders;
WHEREAS, pursuant to that certain Joinder to Master Corporate
Guaranty of even date herewith pursuant to which Grantor has become a party to
that certain Master Corporate Guaranty dated as of March 11, 2003 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Guaranty") among Playboy Enterprises, Inc. ("Playboy"), certain direct and
indirect subsidiaries of PEI (collectively, the "Other Grantors") and Grantee,
Grantor has guaranteed the Borrower's Obligations (as defined in the Guaranty);
and
WHEREAS, pursuant to the terms of a certain Joinder to Security
Agreement of even date herewith pursuant to which Grantor has become a party to
that certain Security Agreement dated as of March 11, 2003 among the Other
Grantors and Grantee (as the same may be amended or otherwise modified from time
to time, the "Security Agreement"), Grantor has granted to Grantee, for the
benefit of Lenders, a lien on, and security interest in, any and all right,
title and interest in, and to the Trademarks (as defined in the Security
Agreement), whether now owned or hereafter created, acquired or arising, to
secure the payment of all obligations of and amounts owing by PEI under the
Credit Agreement and Grantor's obligations under the Guaranty;
NOW, THEREFORE, in consideration of the premises set forth herein
and for other good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, Grantor agrees as follows:
1. Incorporation of Credit Agreement and Security Agreement. The
Credit Agreement and Security Agreement and the terms and provisions thereof are
hereby incorporated herein in their entirety by this reference thereto. All
terms capitalized but not otherwise defined herein shall have the same meanings
herein as in the Security Agreement.
2. Grant and Reaffirmation of Grant of Security Interests. To secure
the payment and performance of the Obligations and Grantor's obligations under
the Guaranty, Grantor hereby grants to Grantee, for its benefit and the benefit
of Lenders, and hereby affirms its grant pursuant to the Security Agreement
(which grant shall be deemed to have been made simultaneously herewith) of, a
lien on, and security interest in, any and all 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"; provided that Trademark
Collateral will not include "intent to use" trademark applications unless
Grantor has used such trademarks and has filed a statement of use or amendment
to allege use with respect to such application), whether now owned or hereafter
created, acquired or arising:
(i) any trademarks, trademark registrations, and trademark
applications, trade names and trade styles, service marks, service
registrations and service mark applications, including without
limitation, the United States federal trademark registrations and
applications set forth on Schedule A hereto, all renewals and
extensions of any of the foregoing and all goodwill symbolized by any
of the foregoing;
(ii) all income, damages and payments now and hereafter due or
payable with respect thereto, including without limitation, damages
and payments for past or future infringements, unfair competition,
dilution, or for injury to the goodwill associated with any of the
Trademarks;
(iii) licenses of any of the foregoing to or from third parties
and the royalties and other payments, if any, receivable thereunder;
(iv) the right to sue for past, present and future
infringements thereof;
(v) all rights corresponding thereto throughout the world; and
(vi) Proceeds and products of the foregoing and all insurance
payments pertaining to the foregoing and proceeds thereof.
Notwithstanding the foregoing, the Trademark Collateral shall not
include any General Intangibles or other rights arising under any contracts,
instruments, licenses or other documents to the extent that the grant of a Lien
or security interest therein would (a) result in a breach of the terms of, or
constitute a default under, such contract, instrument, license, agreement or
other document (other than to the extent that any such term would be rendered
ineffective pursuant to Sections 9-406, 9-407 or 9-408 of the Uniform Commercial
Code or any successor provision of the Uniform Commercial Code of any relevant
jurisdiction or other applicable law) or (b) give any other party to such
contract, instrument, license or other document the right to terminate its
obligations thereunder pursuant to a valid and enforceable provision (including
without limitation in connection with the operation of Section 9-406, 9-407 or
9-408 of the Uniform Commercial Code or any other applicable law).
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IN WITNESS WHEREOF, Grantor has duly executed this Agreement as of
the date first written above.
PLAYBOY.COM, INC.
By
Name: Robert Campbell
Title:Treasurer
Agreed and Accepted
As of the Date First Written Above
BANK OF AMERICA, N.A.
as Agent
By David A Johanson
Its Vice President
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ACKNOWLEDGMENT
STATE OF Illinois )
) SS
COUNTY OF Cook )
I, Sue Ann Dickey, a Notary Public in and for and residing in said
County and State, DO HEREBY CERTIFY THAT Robert Campbell, of Playboy.com, Inc.,
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument appeared before me this day in person and acknowledged that
they signed and delivered said instrument as their own free and voluntary act
and as the free and voluntary act of the corporations set forth on the signature
page of the foregoing instrument for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 5th day of May 2006.
Sue Ann Dickey
Notary Public
My Commission Expires:
September 2, 2007
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ACKNOWLEDGMENT
STATE OF Illinois )
) SS
COUNTY OF Cook )
I, Maria Paggao, a Notary Public in and for and residing in said
County and State, DO HEREBY CERTIFY THAT David A. Johanson of Bank of America,
N.A., personally known to me to be the same person whose name is subscribed to
the foregoing instrument appeared before me this day in person and acknowledged
that ___he signed and delivered said instrument as his own free and voluntary
act and as the free and voluntary act of said __________ for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this 1st day of May 2006.
Maria Paggao
Notary Public
My Commission Expires:
2/1/09
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SCHEDULE A
TRADEMARK REGISTRATIONS
Trademark Title U.S. Registration No. Registration Date
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TRADEMARK APPLICATIONS
Trademark Application U.S. Application No. Registration Date
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