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”):
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(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
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[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.
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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]
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.
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TWISTBOX
ENTERTAINMENT, INC.
as
Grantor
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By:
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/s/
Ian Aaron
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Name:
IAN AARON
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Title:
PRES. / CEO
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Sworn
to and subscribed before me this
31
day of July, 2007.
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/s/
Lisa B. Cayanan
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Notary
Public
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[Signature
Page to Trademark Security Agreement]
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:
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VALUEACT
SMALLCAP MASTER FUND, L.P.
as
Collateral Agent
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By
Its General Partner,
VA
SmallCap Partners, LLC
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By:
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/s/
David Lockwood
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Name:
DAVID LOCKWOOD
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Title: MANAGING
MEMBER
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Sworn
to and subscribed before me this
1st
day of AUGUST, 2007.
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STATE
OF CALIFORNIA
COUNTY
OF SAN FRANCISCO
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/s/
Sylvia N. Acacio
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Notary
Public
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[Signature
Page to Trademark Security Agreement]
SCHEDULE
1
to
TRADEMARK
SECURITY AGREEMENT
TRADEMARK
REGISTRATIONS AND APPLICATIONS
United
States Trademarks
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Jurisdiction
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Trademark
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Registration
No.
(App.
No.)
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Registration
Date
(App.
Date)
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Record
Owner
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Status/
Comments
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United
States
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COMPETITION
GOES MOBILE
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3076001
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April
4, 2006
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Twistbox
Entertainment,
Inc.
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Registered
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United
States
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PRIZE-21
FOR PRIZES
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3040851
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January
10, 2006
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Twistbox
Entertainment,
Inc.
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Registered
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United
States
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TWISTBOX
ENTERTAINMENT and Design
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(78-958,901)
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(August
23, 2006)
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Twistbox
Entertainment,
Inc.
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Pending
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Foreign
Trademarks
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Jurisdiction
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Trademark
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Registration
No.
(App.
No.)
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Registration
Date
(App.
Date)
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Record
Owner
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Status/
Comments
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Canada
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TWISTBOX
ENTERTAINMENT
and
Design
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(1321869)
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October
27, 2006
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Twistbox
Entertainment, Inc.
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Pending
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CTM
(EU)
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CHARISMATIX
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4022844
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January
25, 2006
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Charismatix
Ltd. & Co. KG
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Registered
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CTM
(EU)
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DELIGHT
ENTERTAINMENT
and
design
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4022745
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March
29, 2006
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Charismatix
Ltd. & Co. KG
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Registered
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CTM
(EU)
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TWISTBOX
ENTERTAINMENT
and
Design
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005303581
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July
4, 2007
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Twistbox
Entertainment, Inc.
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Registered
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Germany
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BABESHUFFLE
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30452899
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December
16, 2004
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Charismatix
Ltd. & Co. KG
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Registered
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Germany
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BABETRIS
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30452903
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December
16, 2004
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Charismatix
Ltd. & Co. KG
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Registered
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Germany
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BOMBS’N
BOOBS
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30452900
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December
16, 2004
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Charismatix
Ltd. & Co. KG
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Registered
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Germany
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EROTRIX
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30452902
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December
16, 2004
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Charismatix
Ltd. & Co. KG
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Registered
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International
Register
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TWISTBOX
ENTERTAINMENT
and
design
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901928
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September
19, 2006
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Twistbox
Entertainment, Inc.
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Pending
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Jurisdiction
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Trademark
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Registration
No.
(App.
No.)
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Registration
Date
(App.
Date)
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Record
Owner
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Status/
Comments
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Brazil
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TWISTBOX
ENTERTAINMENT
and
Design
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(828805202)
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(October
23, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Brazil
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TWISTBOX
ENTERTAINMENT
and
Design
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(828805180)
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(October
23, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Brazil
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TWISTBOX
ENTERTAINMENT
and
Design
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(828805199)
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(October
23, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Argentina
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TWISTBOX
ENTERTAINMENT
and
Design
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(2711266)
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(November
1, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Argentina
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TWISTBOX
ENTERTAINMENT
and
Design
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(2711267)
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(November
1, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Argentina
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TWISTBOX
ENTERTAINMENT
and
Design
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(2711268)
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(November
1, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Chile
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TWISTBOX
ENTERTAINMENT
and
Design
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782585
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(March
20, 2007)
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Twistbox
Entertainment, Inc.
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Registered
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Chile
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TWISTBOX
ENTERTAINMENT
and
Design
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(748959)
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(October
24, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Chile
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TWISTBOX
ENTERTAINMENT
and
Design
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782536
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March
20, 2007
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Twistbox
Entertainment, Inc.
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Registered
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Colombia
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TWISTBOX
ENTERTAINMENT
and
Design
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332601
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May
16, 2007
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Twistbox
Entertainment, Inc.
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Registered
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Colombia
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TWISTBOX
ENTERTAINMENT
and
Design
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332600
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May
16, 2007
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Twistbox
Entertainment, Inc.
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Registered
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Colombia
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TWISTBOX
ENTERTAINMENT
and
Design
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332602
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May
16, 2007
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Twistbox
Entertainment, Inc.
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Registered
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Venezuela
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TWISTBOX
ENTERTAINMENT
and
Design
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(26866-06)
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(November
15, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Venezuela
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TWISTBOX
ENTERTAINMENT
and
Design
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(26867-06)
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(November
15, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Venezuela
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TWISTBOX
ENTERTAINMENT
and
Design
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(26868-06)
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(November
15, 2006)
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Twistbox
Entertainment, Inc.
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Pending
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Jurisdiction
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Trademark
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Registration
No.
(App.
No.)
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Registration
Date
(App.
Date)
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Record
Owner
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Status/
Comments
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Mexico
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TWISTBOX
ENTERTAINMENT
and
Design
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977723
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March
22, 2007
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Twistbox
Entertainment,
Inc.
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Registered
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Mexico
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TWISTBOX
ENTERTAINMENT
and
Design
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982555
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April
26, 2007
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Twistbox
Entertainment,
Inc.
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Registered
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Mexico
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TWISTBOX
ENTERTAINMENT
and
Design
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977724
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March
22, 2007
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Twistbox
Entertainment,
Inc.
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Registered
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