Exhibit 10.4

 

TRADEMARK SECURITY AGREEMENT 
 (Mountain Valley Spring Company, LLC)

 

THIS TRADEMARK SECURITY AGREEMENT (“Agreement”), dated as of March 28, 2006, is by and between MOUNTAIN VALLEY SPRING COMPANY, LLC, an Arkansas limited liability company, whose address is 150 Central Avenue, (P.O. Box 1610), Hot Springs National Park, Arkansas 71902, and JPMORGAN CHASE BANK, N.A., a national banking association, whose address is 700 Lavaca, Austin, Texas 78701, Attention: Manager/Commercial Lending Group (“Secured Party”).

 

WHEREAS, Debtor and Secured Party have entered into that certain Credit Agreement (as amended, restated and supplemented from time to time,, the “Credit Agreement”) of even date herewith;

 

WHEREAS, Debtor and Secured Party have entered into a Pledge and Security Agreement of even date hereof (as said Security Agreement may be amended, restated, modified, supplemented and in effect from time to time, the “Security Agreement”), which sets forth in more detail certain terms and conditions relating to the matters agreed to herein;

 

WHEREAS, the Credit Agreement contemplates the execution of this Agreement by the parties hereto and the recordation of this Agreement;

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.                                       Grant of Security Interest.  Debtor does hereby grant to Secured Party a continuing security interest in all of Debtor’s right, title, and interest in and to all of the following (all of the following being herein collectively referred to as the “Trademark Collateral”), whether presently existing or hereafter arising or acquired, to secure the payment of the Obligations (as defined in the Credit Agreement):

 

(a)                                  all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing, including, without limitation, each trademark listed on Schedule 1 attached hereto (and all amendments, supplements, restatements and modifications thereof or thereto from time to time), and all of the goodwill of the business connected with the use of, and symbolized by, each such trademark;

 

(b)                                 all licenses or similar arrangements of any of the foregoing, whether as licensee or licensor;

 

(c)                                  all renewals of any of the foregoing;

 

(d)                                 all income, royalties, damages, claims and payments now or hereafter due or payable with respect of any of the foregoing, including, without limitation, damages, claims, and payments for past and future infringements thereof;

 











 

(e)                                  all rights to sue for past, present, and future infringements of any of the foregoing, including the right to settle suits involving claims and demands for royalties owing;

 

(f)                                    all rights corresponding to any of the foregoing throughout the world; and

 

(g)                                 all products and proceeds of any of the foregoing.

 

2.                                       Miscellaneous. This security interest is granted in conjunction with the Liens granted to Secured Party pursuant to the Security Agreement. Debtor does hereby further acknowledge and affirm that the rights and remedies of Secured Party respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement and the Credit Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  The terms and provisions hereof are in addition to, and not in limitation of or limited by, those of the Security Agreement, the Credit Agreement and the other Credit Documents.  The attached Schedule 1 is incorporated herein by reference for all purposes.  Capitalized terms used herein and not otherwise defined shall have the meaning given to them in the Credit Agreement. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA, INCLUDING WITHOUT LIMITATION, THE UNITED STATES TRADEMARK LAWS.  This Agreement shall be binding upon Debtor, and the trustees, receivers, successors and assigns of Debtor, including all successors in interest of Debtor in and to all or any part of the Trademark Collateral, and shall benefit Secured Party and its successors and assigns.  If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby, and this Agreement shall be liberally construed so as to carry out the intent of the parties to it. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.  The section headings appearing in this Agreement have been inserted for convenience only and shall be given no substantive meaning or significance whatever in construing the terms and provisions of this Agreement.

 

[Remainder of page left intentionally blank]

 











 

IN WITNESS WHEREOF, Debtor and Secured Party have caused this Agreement to be duly executed by their respective officers thereunto as of the date first set forth above.

 

	
 
    	
“Debtor”
    
	
 
    	
 
    	
 
    
	
 
    	
MOUNTAIN VALLEY SPRING COMPANY, LLC, an Arkansas limited liability   company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ J. B. SPEED, III
    
	
 
    	
Name:
    	
J.B. Speed, III
    
	
 
    	
Title:
    	
CEO
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
“Secured Party”
    
	
 
    	
 
    	
 
    
	
 
    	
JPMORGAN CHASE BANK, N.A., 
   a national banking association
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ KI ALLEN
    
	
 
    	
Name:
    	
Ki Allen
    
	
 
    	
Title:
    	
SVP
    


 

Attachment:
  Schedule 1 - Trademarks

 

	
THE STATE   OFARKANSAS
    	
 
    	
§
    
	
 
    	
 
    	
 
    
	
COUNTY OF   GARLAND
    	
 
    	
§
    


 

This instrument is acknowledged before me on March 28, 2006, by James B. Speed, III, Manager of Mountain Valley Spring Company, LLC, an Arkansas limited liability company, on behalf of said limited liability company.

 

	
 
    	
/s/ ROBIN K. CHRISTENSEN
    
	
 
    	
Notary Public in and for the State of Arkansas
    
	
 
    	
 
    
	
 
    	
Printed Name:
    	
Robin K. Christensen
    
	
 
    	
My Commission Expires:
    	
11/23/2015
    
				


 











 

	
THE STATE OF   TEXAS
    	
 
    	
§
    
	
 
    	
 
    	
§
    
	
COUNTY OF TRAVIS
    	
 
    	
§
    


 

This instrument was acknowledged before me on 3/30, 2006, by Ki Allen, Senior Vice President of JPMorgan Chase Bank, N.A., a national banking association, on behalf of said association.

 

	
 
    	
/s/ CYNTHIA C. ALVARADO
    
	
 
    	
Notary Public in and for the State of Texas
    
	
 
    	
Printed Name:
    	
Cynthia C. Alvarado
    
	
 
    	
My Commission Expires:
    	
04-21-2009
    
				


 










 

Schedule 1

 

MOUNTAIN VALLEY

 

STATE AND FEDERAL TRADEMARKS

 

March 28, 2006

 

	
ID
    	
 
    	
FILING
   DATE
    	
 
    	
YEAR
    	
 
    	
SERIAL
   NUMBER
    	
 
    	
REC
   DATE
    	
 
    	
REC
   NUMBER
    	
 
    	
OWNER OF
   MARK
    	
 
    	
STATUS OF MARK
    	
 
    	
DESCRIPTION OF MARK
    
	
15
    	
 
    	
JUNE 19
    	
 
    	
1905
    	
 
    	
71008565
    	
 
    	
04/17/1906
    	
 
    	
0051448
    	
 
    	
MVW
    	
 
    	
LIVE 06/26/2006
    	
 
    	
MOUNTAIN VALLEY-STYLIZED FORM
    
	
6
    	
 
    	
OCT 25
    	
 
    	
1991
    	
 
    	
74215607
    	
 
    	
10/20/1992
    	
 
    	
1726069
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
CONSIDER THE SOURCE
    
	
7
    	
 
    	
OCT 25
    	
 
    	
1991
    	
 
    	
74215606
    	
 
    	
09/01/1992
    	
 
    	
1712284
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
CONSIDER THE SOURCE
    
	
4
    	
 
    	
NOV 4
    	
 
    	
1994
    	
 
    	
74594865
    	
 
    	
04/16/1996
    	
 
    	
1967953
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
MOUNTAIN VALLEY
    
	
13
    	
 
    	
APRIL 7
    	
 
    	
1995
    	
 
    	
74857459
    	
 
    	
01/30/1996
    	
 
    	
1969792
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
“WE BRING THE SPRING TO YOUR DOOR”
    
	
18
    	
 
    	
DEC 22
    	
 
    	
1995
    	
 
    	
ALABAMA
    	
 
    	
12/22/1995
    	
 
    	
106-643
    	
 
    	
CMW
    	
 
    	
LIVE 12/22/2015
    	
 
    	
CLEAR MOUNTAIN NATURAL SPRING WATER
    
	
8
    	
 
    	
FEB 16
    	
 
    	
1996
    	
 
    	
75059339
    	
 
    	
05/13/1997
    	
 
    	
2060830
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
DISCOVER THE DIAMOND DIFFERENCE
    
	
3
    	
 
    	
JAN 4
    	
 
    	
1996
    	
 
    	
75040114
    	
 
    	
04/22/1997
    	
 
    	
2054448
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
MOUNTAIN VALLEY SPRING
    
	
10
    	
 
    	
FEB 1
    	
 
    	
1999
    	
 
    	
75631025
    	
 
    	
01/04/2000
    	
 
    	
2306226
    	
 
    	
MVW
    	
 
    	
RENEWED 01/05/06
    	
 
    	
WOODLAND
    
	
2
    	
 
    	
AUG 10
    	
 
    	
1999
    	
 
    	
75772291
    	
 
    	
06/27/2000
    	
 
    	
2362179
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
QUENCH YOUR INNER THIRST
    
	
9
    	
 
    	
MAY 15
    	
 
    	
2000
    	
 
    	
0
    	
 
    	
05/15/2010
    	
 
    	
TM00290094
    	
 
    	
MVW
    	
 
    	
RENEWED 05/15/05
    	
 
    	
ARKANSAS TRADEMARK - DIAMOND
    
	
5
    	
 
    	
FEB 29
    	
 
    	
2000
    	
 
    	
75931190
    	
 
    	
12/05/2000
    	
 
    	
2508100
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
DO THE SPRING THING
    
	
12
    	
 
    	
SEPT 7
    	
 
    	
2001
    	
 
    	
78083058
    	
 
    	
06/18/2002
    	
 
    	
2582435
    	
 
    	
CMW
    	
 
    	
LIVE
    	
 
    	
CLEAR MOUNTAIN NATURAL SPRING WATER
    
	
16
    	
 
    	
APRIL 10
    	
 
    	
1996
    	
 
    	
75086804
    	
 
    	
03/27/1997
    	
 
    	
2064853
    	
 
    	
MVW
    	
 
    	
LIVE
    	
 
    	
NOTHING COULD BE FINER