Exhibit 10.4


 


PATENT
AND TRADEMARK SECURITY AGREEMENT


 


This
Patent and Trademark Security Agreement (this “Agreement”), dated
as of October 25, 2019, is made by and between BLONDER TONGUE LABORATORIES, INC., a Delaware corporation (together with its successors
and permitted assigns, “Parent”), R. L. DRAKE HOLDINGS, LLC, a Delaware limited liability company (together
with its permitted successors and assigns, “Drake”), and MidCap Business Credit LLC, a Texas limited liability
company (the “Secured Party”), having a business location at 433 South Main Street, West Hartford, Connecticut
06110. Each of Parent and Drake are individually and collectively referred to herein as “Debtor”.


 


Recitals


 


The
Debtor, the Secured Party and certain other parties are parties to a Loan and Security Agreement (All Assets) of even date herewith
(as the same may hereafter be amended, supplemented or restated from time to time, the “Loan Agreement”) setting
forth the terms on which the Secured Party may now or hereafter extend credit to or for the account of the Debtor.


 


As
a condition to extending credit to or for the account of the Debtor, the Secured Party has required the execution and delivery
of this Agreement by the Debtor.


 


ACCORDINGLY,
in consideration of the mutual covenants contained in the Loan Documents and herein, the parties hereby agree as follows:


 


1. Definitions.
All terms defined in the Recitals hereto or in the Loan Agreement that are not otherwise defined herein shall have the meanings
given to them therein. In addition, the following terms have the meanings set forth below:


 


“Obligations”
means each and every debt, liability and obligation of every type and description arising under or in connection with any Loan
Document (as defined in the Loan Agreement) which the Debtor may now or at any time hereafter owe to the Secured Party, whether
such debt, liability or obligation now exists or is hereafter created or incurred and whether it is or may be direct or indirect,
due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, independent, joint, several or
joint and several, and including specifically, but not limited to, the Obligations (as defined in the Loan Agreement).


 


“Patents”
means all of the Debtor’s right, title and interest in and to patents or applications for patents, fees or royalties with
respect to each, and including without limitation the right to sue for past infringement and damages therefor, and licenses thereunder,
all as presently existing or hereafter arising or acquired, including without limitation the patents listed on Exhibit A.


 


“Security
Interest” has the meaning given in Section 2.


 






     


     


    

 


“Trademarks”
means all of the Debtor’s right, title and interest in and to: (i) trademarks, service marks, collective membership
marks, registrations and applications for registration for each, and the respective goodwill associated with each, (ii) licenses,
fees or royalties with respect to each, (iii) the right to sue for past, present and future infringement, dilution and damages
therefor, (iv) and licenses thereunder, all as presently existing or hereafter arising or acquired, including, without limitation,
the marks listed on Exhibit B.


 


2. Security
Interest. The Debtor hereby irrevocably pledges and assigns to, and grants the Secured Party a security interest (the “Security
Interest”) with power of sale to the extent permitted by law, in the Patents and in the Trademarks to secure payment of
the Obligations. As set forth in the Loan Agreement, the Security Interest is coupled with a security interest in substantially
all of the personal property of the Debtor. This Agreement grants only the Security Interest herein described, is not intended
to and does not affect any present transfer of title of any trademark registration or application and makes no assignment and
grants no right to assign or perform any other action with respect to any intent to use trademark application, unless such action
is permitted under 15 U.S.C. § 1060.


 


3. Representations,
Warranties and Agreements. The Debtor represents, warrants and agrees as follows:


 


(a) Existence;
Authority. The Debtor is a limited liability company or corporation, as applicable, duly organized, validly existing and in
good standing under the laws of its state of formation or incorporation, and this Agreement has been duly and validly authorized
by all necessary organizational action on the part of the Debtor.


 


(b) Patents.
Exhibit A accurately lists all Patents owned or controlled by the Debtor as of the date hereof, or to which the Debtor
has a right as of the date hereof to have assigned to it, and accurately reflects the existence and status of applications and
letters patent pertaining to the Patents as of the date hereof. If after the date hereof, the Debtor owns, controls or has a right
to have assigned to it any Patents not listed on Exhibit A, or if Exhibit A ceases to accurately reflect the existence
and status of applications and letters patent pertaining to the Patents, then the Debtor shall within 60 days provide written
notice to the Secured Party with a replacement Exhibit A, which upon acceptance by the Secured Party shall become part
of this Agreement.


 


(c) Trademarks.
Exhibit B accurately lists all Trademarks owned or controlled by the Debtor as of the date hereof and accurately reflects
the existence and status of Trademarks and all applications and registrations pertaining thereto as of the date hereof; provided,
however, that Exhibit B need not list common law marks (i.e., Trademarks for which there are no applications or registrations)
which are not material to the business(es) of the Debtor or any affiliate (as such term is defined in the Loan Agreement and hereinafter
referred to as “Affiliate”). If after the date hereof, the Debtor owns or controls any Trademarks not listed
on Exhibit B (other than common law marks which are not material to the Debtor’s or any Affiliate’s business(es)),
or if Exhibit B ceases to accurately reflect the existence and status of applications and registrations pertaining to the
Trademarks, then the Debtor shall promptly provide written notice to the Secured Party with a replacement Exhibit B, which
upon acceptance by the Secured Party shall become part of this Agreement.


 






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(d) Affiliates.
As of the date hereof, no Affiliate owns, controls, or has a right to have assigned to it any items that would, if such item were
owned by the Debtor, constitute Patents or Trademarks. If after the date hereof any Affiliate owns, controls, or has a right to
have assigned to it any such items, then the Debtor shall promptly either: (i) cause such Affiliate to assign all of its
rights in such item(s) to the Debtor; or (ii) notify the Secured Party of such item(s) and cause such Affiliate to execute
and deliver to the Secured Party a patent and trademark security agreement substantially in the form of this Agreement.


 


(e) Title.
The Debtor has absolute title to each Patent and each Trademark listed on Exhibits A and B, free and clear of all Liens except
Permitted Liens. The Debtor (i) will have, at the time the Debtor acquires any rights in Patents or Trademarks hereafter
arising, absolute title to each such Patent or Trademark free and clear of all Liens except Permitted Liens, and (ii) will
keep all Patents and Trademarks free and clear of all Liens except Permitted Liens.


 


(f) No
Sale. Except as permitted in the Loan Agreement, the Debtor will not assign, transfer, encumber or otherwise dispose of the
Patents or Trademarks, or any interest therein, without the Secured Party’s prior written consent.


 


(g) Defense.
The Debtor will at its own expense and using commercially reasonable efforts, protect and defend the Patents and Trademarks
against all claims or demands of all Persons other than those holding Permitted Liens.


 


(h) Maintenance.
The Debtor will at its own expense maintain the Patents and the Trademarks to the extent reasonably advisable in its business
including, but not limited to, filing all applications to obtain letters patent or trademark registrations and all affidavits,
maintenance fees, annuities, and renewals possible with respect to letters patent, trademark registrations and applications therefor.
The Debtor covenants that it will not abandon nor fail to pay any maintenance fee or annuity due and payable on any Patent or
Trademark, nor fail to file any required affidavit or renewal in support thereof, without first providing the Secured Party: (i) sufficient
written notice, of at least 30 days, to allow the Secured Party to timely pay any such maintenance fees or annuities which may
become due on any Patents or Trademarks, or to file any affidavit or renewal with respect thereto, and (ii) a separate written
power of attorney or other authorization to pay such maintenance fees or annuities, or to file such affidavit or renewal, should
such be necessary or desirable.


 






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(i) Secured
Party’s Right to Take Action. If the Debtor fails to perform or observe any of its covenants or agreements set forth
in this Section 3, and if such failure continues for a period of ten (10) calendar days after the Secured Party gives the Debtor
written notice thereof (or, in the case of the agreements contained in subsection (h), immediately upon the occurrence of such
failure, without notice or lapse of time), or if the Debtor notifies the Secured Party that it intends to abandon a Patent or
Trademark, the Secured Party may (but need not) perform or observe such covenant or agreement or take steps to prevent such intended
abandonment on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in the Secured
Party’s own name) and may (but need not) take any and all other actions which the Secured Party may reasonably deem necessary
to cure or correct such failure or prevent such intended abandonment.


 


(j) Costs
and Expenses. Except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious
or otherwise illegal under any applicable law, the Debtor shall pay the Secured Party on demand the amount of all moneys expended
and all costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by the Secured Party in connection
with or as a result of the Secured Party’s taking action under subsection (i) or exercising its rights under Section 6,
together with interest thereon from the date expended or incurred by the Secured Party at the Default Rate.


 


(k) Power
of Attorney. To facilitate the Secured Party’s taking action under subsection (i) and exercising its rights under Section
6, the Debtor hereby irrevocably appoints (which appointment is coupled with an interest) the Secured Party, or its delegate,
as the attorney-in-fact of the Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute,
deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments, documents, applications, financing
statements, and other agreements and writings required to be obtained, executed, delivered or endorsed by the Debtor under this
Section 3, or, necessary for the Secured Party, after an Event of Default, to enforce or use the Patents or Trademarks or to grant
or issue any exclusive or non-exclusive license under the Patents or Trademarks to any third party, or to sell, assign, transfer,
pledge, encumber or otherwise transfer title in or dispose of the Patents or Trademarks to any third party. The Debtor hereby
ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof. The power of attorney granted herein shall
terminate upon the termination of the Loan Agreement as provided therein and the payment and performance of all Obligations.


 


4. Debtor’s
Use of the Patents and Trademarks. The Debtor shall be permitted to control and manage the Patents and Trademarks, including
the right to exclude others from making, using or selling items covered by the Patents and Trademarks and any licenses thereunder,
in the same manner and with the same effect as if this Agreement had not been entered into, so long as no Event of Default exists.


 


5. Events
of Default. Each of the following occurrences shall constitute an event of default under this Agreement (herein called “Event
of Default”): (a) an Event of Default, as defined in the Loan Agreement, shall exist; or (b) the Debtor shall
fail promptly to observe or perform any covenant or agreement herein binding on it; or (c) any of the representations or warranties
contained in Section 3 shall prove to have been incorrect in any material respect when made.


 






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6. Remedies.
While an Event of Default exists, subject to the terms of Section 3(i) to the extent applicable, the Secured Party may, at its
option, take any or all of the following actions:


 


(a) The
Secured Party may exercise any or all remedies available under the Loan Agreement.


 


(b) The
Secured Party may sell, assign, transfer, pledge, encumber or otherwise dispose of the Patents and Trademarks.


 


(c) The
Secured Party may enforce the Patents and Trademarks and any licenses thereunder, and if Secured Party shall commence any suit
for such enforcement, the Debtor shall, at the request of Secured Party, do any and all lawful acts and execute any and all proper
documents required by Secured Party in aid of such enforcement.


 


7. Miscellaneous.
This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly
in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective only in the specific instance
and for the specific purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of the
Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised
singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy
shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to Debtor under this
Agreement shall be given in the manner and with the effect provided in the Loan Agreement. The Secured Party shall not be obligated
to preserve any rights the Debtor may have against prior parties, to realize on the Patents and Trademarks at all or in any particular
manner or order, or to apply any cash proceeds of Patents and Trademarks in any particular order of application. This Agreement
shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their respective participants, successors
and assigns and shall take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of
the Secured Party’s acceptance hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing,
but the failure of the Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this
Agreement. This Agreement or any financing statement signed by the Debtor may be transmitted by facsimile machine or by electronic
mail in portable document format (“pdf”) and signatures appearing on faxed instruments and/or electronic mail instruments
shall be treated as original signatures. Any party delivering an executed counterpart of this Agreement or any financing statement
signed by the Debtor by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart
of this Agreement, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability or
binding effect hereof. This Agreement shall be governed by the internal law of the State of New York without regard to conflicts
of law provisions. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality
or unenforceability shall not affect other provisions or applications which can be given effect and this Agreement shall be construed
as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations
and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation
and payment of the Obligations.


 


[CONTINUED
ON THE FOLLOWING PAGE]


 






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THE
PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT.


 


IN
WITNESS WHEREOF, the parties have executed this Patent and Trademark Security Agreement as of the date written above.


 





	 	DEBTOR:
	 	 	 
	 	BLONDER TONGUE LABORATORIES, INC.
	 	 	 
	 	By:	 
	 	Name:	Eric Skolnik
	 	Title:	Senior Vice President and Chief Financial Officer
	 	 	 
	 	R. L. DRAKE HOLDINGS, LLC
	 	 	 
	 	By:	 
	 	Name:	Eric Skolnik
	 	Title:	Senior Vice President and Chief Financial Officer




 


 


 


 


 


 


[Signature Page to Patent and Trademark Security Agreement]


 






     


     


    

 


	
	MIDCAP
                    BUSINESS CREDIT LLC









	 	 	 
	 	By	 
	 	Name:	Steven
    A. Samson
	 	Title:	President


 


 


 


 


 


 


[Signature Page to Patent and Trademark Security Agreement]


 






     


     


    

 


EXHIBIT
A


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






     


     


    

 


EXHIBIT
B