TRADEMARK COLLATERAL
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SECURITY AND PLEDGE AGREEMENT
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TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT dated as of
September 29, 1997, between NATIONAL AUTO FINANCE COMPANY, INC., a Delaware
corporation having its principal place of business at 000 X.X. 00xx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Assignor"), and BANKBOSTON, N.A. a
national banking association having an office at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as agent (hereinafter, in such capacity, the "Agent") for
itself and other banking institutions (hereinafter, collectively, the "Banks")
which are, or may in the future become, parties to a Revolving Credit Agreement
dated as of September 29, 1997 (as amended and in effect from time to time, the
"Credit Agreement"), among the Assignor, the Banks and the Agent.
WHEREAS, pursuant to the terms of the Credit Agreement, the Banks have,
upon the terms and subject to the conditions contained therein, agreed to make
loans and otherwise to extend credit to the Borrower;
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Assignor under the Credit Agreement that the
Assignor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a trademark agreement in substantially the form hereof;
WHEREAS, the Assignor has executed and delivered to the Agent, for the
benefit of the Banks and the Agent, the Security Agreement (as defined in the
Credit Agreement), pursuant to which the Assignor has granted to the Agent, for
the benefit of the Banks and the Agent, a security interest in certain of the
Assignor's personal property and fixture assets, including without limitation
the trademarks, service marks, trademark and service xxxx registrations, and
trademark and service xxxx registration applications listed on Schedule A
attached hereto, all to secure the payment and performance of the Obligations
(as defined in the Credit Agreement); and
WHEREAS, this Trademark Agreement is supplemental to the provisions
contained in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
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1. DEFINITIONS.
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Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings provided therefor in the Credit Agreement and the
Security Agreement. In addition, the following terms shall have the meanings set
forth in this ss.1 or elsewhere in this Trademark Agreement referred to below:
Assignment of Marks. See ss.2.1.
Associated Goodwill. All goodwill of the Assignor and its business,
products and services appurtenant to, associated with or symbolized by the
Trademarks and the use thereof.
Pledged Trademarks. All of the Assignor's right, title and interest in
and to all of the Trademarks, the Trademark Registrations, the Trademark License
Rights, the Trademark Rights, the Associated Goodwill, the Related Assets, and
all accessions to, substitutions for, replacements of, and all products and
proceeds of any and all of the foregoing.
PTO. The United States Patent and Trademark Office.
Related Assets. All assets, rights and interests of the Assignor that
uniquely reflect or embody the Associated Goodwill, including the following:
(a) all patents, inventions, copyrights, trade secrets,
confidential information, formulae, methods or processes, compounds,
recipes, know-how, methods and operating systems, drawings,
descriptions, formulations, manufacturing and production and delivery
procedures, quality control procedures, product and service
specifications, catalogs, price lists, and advertising materials,
relating to the manufacture, production, delivery, provision and sale
of goods or services under or in association with any of the
Trademarks; and
(b) the following documents and things in the possession or
under the control of the Assignor, or subject to its demand for
possession or control, related to the production, delivery, provision
and sale by the Assignor, or any affiliate, franchisee, licensee or
contractor, of products or services sold by or under the authority of
the Assignor in connection with the Trademarks or Trademark Rights,
whether prior to, on or subsequent to the date hereof:
(i) all lists, contracts, ancillary documents and
other information that identify, describe or provide
information with respect to any customers, dealers or
distributors of the Assignor, its affiliates or franchisees or
licensees or contractors, for products or services sold under
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or in connection with the Trademarks or Trademark Rights,
including all lists and documents containing information
regarding each customer's, dealer's or distributor's name and
address, credit, payment, discount, delivery and other sale
terms, and history, pattern and total of purchases by brand,
product, style, size and quantity;
(ii) all agreements (including franchise agreements),
product and service specification documents and operating,
production and quality control manuals relating to or used in
the design, manufacture, production, delivery, provision and
sale of products or services under or in connection with the
Trademarks or Trademark Rights;
(iii) all documents and agreements relating to the
identity and locations of all sources of supply, all terms of
purchase and delivery, for all materials, components, raw
materials and other supplies and services used in the
manufacture, production, provision, delivery and sale of
products or services under or in connection with the
Trademarks or Trademark Rights; and
(iv) all agreements and documents constituting or
concerning the present or future, current or proposed
advertising and promotion by the Assignor (or any of its
affiliates, franchisees, licensees or contractors) of products
or services sold under or in connection with the Trademarks or
Trademark Rights.
Trademark Agreement. This Trademark Collateral Security and Pledge
Agreement, as amended and in effect from time to time.
Trademark License Rights. Any and all past, present or future rights
and interests of the Assignor pursuant to any and all past, present and future
franchising or licensing agreements in favor of the Assignor, or to which the
Assignor is a party, pertaining to any Trademarks, Trademark Registrations, or
Trademark Rights owned or used by third parties in the past, present or future,
including the right (but not the obligation) in the name of the Assignor or the
Agent to enforce, and xxx and recover for, any breach or violation of any such
agreement to which the Assignor is a party.
Trademark Registrations. All past, present or future federal, state,
local and foreign registrations of the Trademarks, all past, present and future
applications for any such registrations (and any such registrations thereof upon
approval of such applications), together with the right (but not the obligation)
to apply for such registrations (and prosecute such applications) in the name of
the Assignor or the Agent, and to take any and all actions necessary or
appropriate to maintain such registrations in effect and renew and extend such
registrations.
Trademark Rights. Any and all past, present or future rights in, to and
associated with the Trademarks throughout the world, whether arising under
federal law, state law, common law, foreign law or otherwise, including the
following: all such rights arising out of or associated with the Trademark
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Registrations; the right (but not the obligation) to register claims under any
state, federal or foreign trademark law or regulation; the right (but not the
obligation) to xxx or bring opposition or cancellation proceedings in the name
of the Assignor or the Agent for any and all past, present and future
infringements or dilution of or any other damages or injury to the Trademarks,
the Trademark Rights, or the Associated Goodwill, and the rights to damages or
profits due or accrued arising out of or in connection with any such past,
present or future infringement, dilution, damage or injury; and the Trademark
License Rights.
Trademarks. All of the trademarks, service marks, designs, logos,
indicia, trade names, corporate names, company names, business names, fictitious
business names, trade styles, elements of package or trade dress, and other
source and product or service identifiers, used or associated with or
appurtenant to the products, services and businesses of the Assignor, that (a)
are set forth on Schedule A hereto, or (b) have been adopted, acquired, owned,
held or used by the Assignor or are now owned, held or used by the Assignor, in
the Assignor's business, or with the Assignor's products and services, or in
which the Assignor has any right, title or interest, or (c) are in the future
adopted, acquired, owned, held and used by the Assignor in the Assignor's
business or with the Assignor's products and services, or in which the Assignor
in the future acquires any right, title or interest.
Use. With respect to any Trademark, all uses of such Trademark by, for
or in connection with the Assignor or its business or for the direct or indirect
benefit of the Assignor or its business, including all such uses by the Assignor
itself, by any of the affiliates of the Assignor, or by any franchisee, licensee
or contractor of the Assignor.
Unless otherwise provided herein, the rules of interpretation set forth
in ss.1.2 of the Credit Agreement shall be applicable to this Trademark
Agreement.
2. GRANT OF SECURITY INTEREST.
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2.1. SECURITY INTEREST; ASSIGNMENT OF MARKS. As collateral security for
the payment and performance in full of all of the Obligations, the Assignor
hereby unconditionally grants to the Agent, for the benefit of the Banks and the
Agent, a continuing security interest in and first priority lien on the Pledged
Trademarks, and pledges and mortgages (but does not transfer title to) the
Pledged Trademarks to the Agent for the benefit of the Banks and the Agent. In
addition, the Assignor has executed in blank and delivered to the Agent an
assignment of federally registered trademarks in substantially the form of
Exhibit 1 attached hereto (the "Assignment of Marks"). The Assignor hereby
authorizes the Agent to complete as assignee and record with the PTO the
Assignment of Marks upon the occurrence and during the continuance of an Event
of Default and the proper exercise of the Agent's remedies under this Trademark
Agreement and the Security Agreement.
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2.2. CONDITIONAL ASSIGNMENT. In addition to, and not by way of
limitation of, the grant, pledge and mortgage of the Pledged Trademarks provided
in ss.2.1, the Assignor grants, assigns, transfers, conveys and sets over to the
Agent, for the benefit of the Banks and the Agent, the Assignor's entire right,
title and interest in and to the Pledged Trademarks; provided that such grant,
assignment, transfer and conveyance shall be and become of force and effect only
(a) upon or after the occurrence and during the continuance of an Event of
Default and (b) either (i) upon the written demand of the Agent at any time
during such continuance or (ii) immediately and automatically (without notice or
action of any kind by the Agent) upon an Event of Default for which acceleration
of the Loans is automatic under the Credit Agreement or upon the sale or other
disposition of or foreclosure upon the Collateral pursuant to the Security
Agreement and applicable law (including the transfer or other disposition of the
Collateral by the Assignor to the Agent or its nominee in lieu of foreclosure).
2.3. SUPPLEMENTAL TO SECURITY AGREEMENT. Pursuant to the Security
Agreement the Assignor has granted to the Agent, for the benefit of the Banks
and the Agent, a continuing security interest in and lien on the Collateral
(including the Pledged Trademarks). The Security Agreement, and all rights and
interests of the Agent in and to the Collateral (including the Pledged
Trademarks) thereunder, are hereby ratified and confirmed in all respects. In no
event shall this Trademark Agreement, the grant, assignment, transfer and
conveyance of the Pledged Trademarks hereunder, or the recordation of this
Trademark Agreement (or any document hereunder) with the PTO, adversely affect
or impair, in any way or to any extent, the Security Agreement, the security
interest of the Agent in the Collateral (including the Pledged Trademarks)
pursuant to the Security Agreement and this Trademark Agreement, the attachment
and perfection of such security interest under the Uniform Commercial Code
(including the security interest in the Pledged Marks), or any present or future
rights and interests of the Agent in and to the Collateral under or in
connection with the Security Agreement, this Trademark Agreement or the Uniform
Commercial Code. Any and all rights and interests of the Agent in and to the
Pledged Trademarks (and any and all obligations of the Assignor with respect to
the Pledged Trademarks) provided herein, or arising hereunder or in connection
herewith, shall only supplement and be cumulative and in addition to the rights
and interests of the Agent (and the obligations of the Assignor) in, to or with
respect to the Collateral (including the Pledged Trademarks) provided in or
arising under or in connection with the Security Agreement and shall not be in
derogation thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
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The Assignor represents, warrants and covenants that: (a) Schedule A
sets forth a true and complete list of all Trademarks and Trademark
Registrations now owned, licensed, controlled or used by the Assignor; (b) the
Trademarks and Trademark Registrations are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part, and there is no litigation or
proceeding pending concerning the validity or enforceability of the Trademarks
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or Trademark Registrations; (c) to the best of the Assignor's knowledge, each of
the Trademarks and Trademark Registrations is valid and enforceable; (d) to the
best of the Assignor's knowledge, there is no infringement by others of the
Trademarks, Trademark Registrations or Trademark Rights; (e) no claim has been
made that the use of any of the Trademarks does or may violate the rights of any
third person, and to the best of the Assignor's knowledge, there is no
infringement by the Assignor of the trademark rights of others; (f) the Assignor
is the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to each of the Trademarks (other than ownership and other rights
reserved by third party owners with respect to Trademarks that the Assignor is
licensed to use), free and clear of any liens, charges, encumbrances and adverse
claims, including pledges, assignments, licenses, registered user agreements and
covenants by the Assignor not to xxx third persons, other than the security
interest and assignment created by the Security Agreement and this Trademark
Agreement; (g) the Assignor has the unqualified right to enter into this
Trademark Agreement and to perform its terms and will require each of its
present and future employees, agents, consultants, licensors and licensees to
comply with the covenants herein contained; (h) the Assignor has used, and will
continue to use, proper statutory and other appropriate proprietary notices in
connection with its use of the Trademarks; (i) the Assignor has used, and will
continue to use for the duration of this Trademark Agreement, consistent
standards of quality in its manufacture and provision of products and services
sold or provided under the Trademarks; (j) this Trademark Agreement, together
with the Security Agreement, will create in favor of the Agent a valid and
perfected first priority security interest in the Pledged Trademarks upon making
the filings referred to in clause (k) of this ss.3; and (k) except for the
filing of financing statements under the Uniform Commercial Code and the
recording of this Trademark Agreement with the PTO, no authorization, approval
or other action by, and no notice to or filing with, any governmental or
regulatory authority, agency or office is required either (i) for the grant by
the Assignor or the effectiveness of the security interest and assignment
granted hereby or for the execution, delivery and performance of this Trademark
Agreement by the Assignor, or (ii) for the perfection of or the exercise by the
Agent of any of its rights and remedies hereunder.
4. INSPECTION RIGHTS.
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The Assignor hereby grants to each of the Agent and the Banks and its
employees and agents the right to visit the Assignor's plants and facilities
that manufacture, inspect or store products sold under any of the Trademarks,
and to inspect the products and quality control records relating thereto at
reasonable times during regular business hours.
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5. NO TRANSFER OR INCONSISTENT AGREEMENTS.
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Without the Agent's prior written consent, the Assignor will not (a)
mortgage, pledge, assign, encumber, grant a security interest in, transfer,
license or alienate any of the Pledged Trademarks, or (b) enter into any
agreement (for example, a license agreement) that is inconsistent with the
Assignor's obligations under this Trademark Agreement or the Security Agreement.
6. AFTER-ACQUIRED TRADEMARKS, ETC.
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6.1. AFTER-ACQUIRED TRADEMARKS. If, before the Obligations shall have
been finally paid and satisfied in full, the Assignor shall obtain any right,
title or interest in or to any other or new Trademarks, Trademark Registrations
or Trademark Rights, the provisions of this Trademark Agreement shall
automatically apply thereto and the Assignor shall promptly provide to the Agent
notice thereof in writing and execute and deliver to the Agent such documents or
instruments as the Agent may reasonably request further to implement, preserve
or evidence the Agent's interest therein.
6.2. AMENDMENT TO SCHEDULE. The Assignor authorizes the Agent to modify
this Trademark Agreement and the Assignment of Marks, without the necessity of
the Assignor's further approval or signature, by amending Exhibit A hereto and
the Annex to the Assignment of Marks to include any future or other Trademarks,
Trademark Registrations or Trademark Rights under ss.2 or ss.6.
7. TRADEMARK PROSECUTION.
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7.1. ASSIGNOR RESPONSIBLE. The Assignor shall assume full and complete
responsibility for the prosecution, defense, enforcement or any other necessary
or desirable actions in connection with the Pledged Trademarks, and shall hold
each of the Agent and the Banks harmless from any and all costs, damages,
liabilities and expenses that may be incurred by the Agent or any Bank in
connection with the Agent's interest in the Pledged Trademarks or any other
action or failure to act in connection with this Trademark Agreement or the
transactions contemplated hereby. In respect of such responsibility, the
Assignor shall retain trademark counsel reasonably acceptable to the Agent.
7.2. ASSIGNOR'S DUTIES, ETC. The Assignor shall have the right and the
duty, through trademark counsel reasonably acceptable to the Agent, to prosecute
diligently any trademark registration applications of the Trademarks pending as
of the date of this Trademark Agreement or thereafter, to preserve and maintain
all rights in the Trademarks and Trademark Registrations, including the filing
of appropriate renewal applications and other instruments to maintain in effect
the Trademark Registrations and the payment when due of all registration renewal
fees and other fees, taxes and other expenses that shall be incurred or that
shall accrue with respect to any of the Trademarks or Trademark Registrations.
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Any expenses incurred in connection with such applications and actions shall be
borne by the Assignor. The Assignor shall not abandon any filed trademark
registration application, or any Trademark Registration or Trademark, without
the consent of the Agent, which consent shall not be unreasonably withheld.
7.3. ASSIGNOR'S ENFORCEMENT RIGHTS. The Assignor shall have the right
and the duty to bring suit or other action in the Assignor's own name to
maintain and enforce the Trademarks, the Trademark Registrations and the
Trademark Rights. The Assignor may require the Agent to join in such suit or
action as necessary to assure the Assignor's ability to bring and maintain any
such suit or action in any proper forum if (but only if) the Agent is completely
satisfied that such joinder will not subject the Agent or any Bank to any risk
of liability. The Assignor shall promptly, upon demand, reimburse and indemnify
the Agent for all damages, costs and expenses, including legal fees, incurred by
the Agent pursuant to this ss.7.3.
7.4. PROTECTION OF TRADEMARKS, ETC. In general, the Assignor shall take
any and all such actions (including institution and maintenance of suits,
proceedings or actions) as may be necessary or appropriate to properly maintain,
protect, preserve, care for and enforce the Pledged Trademarks. The Assignor
shall not take or fail to take any action, nor permit any action to be taken or
not taken by others under its control, that would adversely affect the validity,
grant or enforcement of the Pledged Trademarks.
7.5. NOTIFICATION BY ASSIGNOR. Promptly upon obtaining knowledge
thereof, the Assignor will notify the Agent in writing of the institution of, or
any final adverse determination in, any proceeding in the PTO or any similar
office or agency of the United States or any foreign country, or any court,
regarding the validity of any of the Trademarks or Trademark Registrations or
the Assignor's rights, title or interests in and to the Pledged Trademarks, and
of any event that does or reasonably could materially adversely affect the value
of any of the Pledged Trademarks, the ability of the Assignor or the Agent to
dispose of any of the Pledged Trademarks or the rights and remedies of the Agent
in relation thereto (including but not limited to the levy of any legal process
against any of the Pledged Trademarks).
8. REMEDIES.
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Upon the occurrence and during the continuance of an Event of Default,
the Agent shall have, in addition to all other rights and remedies given it by
this Trademark Agreement (including, without limitation, those set forth in
ss.2.2, the Credit Agreement, the Security Agreement and the other Loan
Documents, those allowed by law and the rights and remedies of a secured party
under the Uniform Commercial Code as enacted in the Commonwealth of
Massachusetts, and, without limiting the generality of the foregoing, the Agent
may immediately, without demand of performance and without other notice (except
as set forth next below) or demand whatsoever to the Assignor, all of which are
hereby expressly waived, sell or license at public or private sale or otherwise
realize upon the whole or from time to time any part of the Pledged Trademarks,
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or any interest that the Assignor may have therein, and after deducting from the
proceeds of sale or other disposition of the Pledged Trademarks all expenses
incurred by the Agent in attempting to enforce this Trademark Agreement
(including all reasonable expenses for broker's fees and legal services), shall
apply the residue of such proceeds toward the payment of the Obligations as set
forth in or by reference in the Security Agreement. Notice of any sale, license
or other disposition of the Pledged Trademarks shall be given to the Assignor at
least fifteen (15) days before the time that any intended public sale or other
public disposition of the Pledged Trademarks is to be made or after which any
private sale or other private disposition of the Pledged Trademarks may be made,
which the Assignor hereby agrees shall be reasonable notice of such public or
private sale or other disposition. At any such sale or other disposition, the
Agent may, to the extent permitted under applicable law, purchase or license the
whole or any part of the Pledged Trademarks or interests therein sold, licensed
or otherwise disposed of.
9. COLLATERAL PROTECTION.
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If the Assignor shall fail to do any act that it has covenanted to do
hereunder in the time prescribed herein, or if any representation or warranty of
the Assignor shall be breached, the Agent, in its own name or that of the
Assignor (in the sole discretion of the Agent), may (but shall not be obligated
to) do such act or remedy such breach (or cause such act to be done or such
breach to be remedied), and the Assignor agrees promptly to reimburse the Agent
for any cost or expense incurred by the Agent in so doing.
10. POWER OF ATTORNEY.
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If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Agent (and any officer or
agent of the Agent as the Agent may select in its exclusive discretion) as the
Assignor's true and lawful attorney-in-fact, with full power of substitution and
with the power to endorse the Assignor's name on all applications, documents,
papers and instruments necessary for the Agent to use the Pledged Trademarks, or
to grant or issue any exclusive or nonexclusive license of any of the Pledged
Trademarks to any third person, or to take any and all actions necessary for the
Agent to assign, pledge, convey or otherwise transfer title in or dispose of any
of the Pledged Trademarks or any interest of the Assignor therein to any third
person, and, in general, to execute and deliver any instruments or documents and
do all other acts that the Assignor is obligated to execute and do hereunder.
The Assignor hereby ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof and releases each of the Agent and the Banks from
any claims, liabilities, causes of action or demands arising out of or in
connection with any action taken or omitted to be taken by the Agent under this
power of attorney (except for the Agent's gross negligence or willful
misconduct). This power of attorney is coupled with an interest and shall be
irrevocable for the duration of this Trademark Agreement.
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11. FURTHER ASSURANCES.
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The Assignor shall, at any time and from time to time, and at its
expense, make, execute, acknowledge and deliver, and file and record as
necessary or appropriate with governmental or regulatory authorities, agencies
or offices, such agreements, assignments, documents and instruments, and do such
other and further acts and things (including, without limitation, obtaining
consents of third parties), as the Agent may request or as may be necessary or
appropriate in order to implement and effect fully the intentions, purposes and
provisions of this Trademark Agreement, or to assure and confirm to the Agent
the grant, perfection and priority of the Agent's security interest in the
Pledged Trademarks.
12. TERMINATION.
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At such time as all of the Obligations have been finally paid and
satisfied in full, this Trademark Agreement shall terminate and the Agent shall,
upon the written request and at the expense of the Assignor, execute and deliver
to the Assignor all deeds, assignments and other instruments as may be necessary
or proper to reassign and reconvey to and re-vest in the Assignor the entire
right, title and interest to the Pledged Trademarks previously granted,
assigned, transferred and conveyed to the Agent by the Assignor pursuant to this
Trademark Agreement, as fully as if this Trademark Agreement had not been made,
subject to any disposition of all or any part thereof that may have been made by
the Agent pursuant hereto or the Security Agreement.
13. COURSE OF DEALING.
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No course of dealing between the Assignor and the Agent, nor any
failure to exercise, nor any delay in exercising, on the part of the Agent, any
right, power or privilege hereunder or under the Security Agreement or any other
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.
14. EXPENSES.
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Any and all fees, costs and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and expenses incurred by the Agent in
connection with the preparation of this Trademark Agreement and all other
documents relating hereto, the consummation of the transactions contemplated
hereby or the enforcement hereof, the filing or recording of any documents
(including all taxes in connection therewith) in public offices, the payment or
discharge of any taxes, counsel fees, maintenance or renewal fees, encumbrances,
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or otherwise protecting, maintaining or preserving the Pledged Trademarks, or in
defending or prosecuting any actions or proceedings arising out of or related to
the Pledged Trademarks, shall be borne and paid by the Assignor.
15. OVERDUE AMOUNTS.
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Until paid, all amounts due and payable by the Assignor hereunder shall
be a debt secured by the Pledged Trademarks and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
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NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE
AGENT NOR ANY BANK ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY
CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR
RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PLEDGED TRADEMARKS OR ANY
USE, LICENSE OR SUBLICENSE THEREOF, WHETHER ARISING OUT OF ANY PAST, CURRENT OR
FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL OF SUCH
LIABILITIES SHALL BE EXCLUSIVELY THE RESPONSIBILITY OF THE ASSIGNOR, AND THE
ASSIGNOR SHALL INDEMNIFY THE AGENT AND THE BANKS FOR ANY AND ALL COSTS,
EXPENSES, DAMAGES AND CLAIMS, INCLUDING LEGAL FEES, INCURRED BY THE AGENT OR ANY
BANK WITH RESPECT TO SUCH LIABILITIES.
17. NOTICES.
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All notices and other communications made or required to be given
pursuant to this Trademark Agreement shall be in writing and shall be delivered
in hand, mailed by United States registered or certified first-class mail,
postage prepaid, sent by overnight courier, or sent by telegraph, telecopy,
facsimile or telex and confirmed by delivery via courier or postal service,
addressed as set forth in ss.19 of the Credit Agreement. Any such notice or
demand shall be deemed to have been duly given or made and to have become
effective (a) if delivered by hand to a responsible officer of the party to
which it is directed, at the time of the receipt thereof by such officer, (b) if
sent by registered or certified first-class mail, postage prepaid, two (2)
Business Days after the posting thereof, and (c) if sent by telegraph, telecopy,
or telex, at the time of the dispatch thereof, if in normal business hours in
the country of receipt, or otherwise at the opening of business on the following
Business Day.
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18. AMENDMENT AND WAIVER.
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This Trademark Agreement is subject to modification only by a writing
signed by the Agent (with the consent of the Majority Banks) and the Assignor,
except as provided in ss.6.2. The Agent shall not be deemed to have waived any
right hereunder unless such waiver shall be in writing and signed by the Agent
and the Majority Banks. A waiver on any one occasion shall not be construed as a
bar to or waiver of any right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
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THIS TRADEMARK AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED
INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS. The Assignor agrees that any suit for the
enforcement of this Trademark Agreement may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Assignor by mail at the address specified by
reference in ss.17 hereof. The Assignor hereby waives any objection that it may
now or hereafter have to the venue of any such suit or any such court or that
such suit is brought in an inconvenient court.
20. WAIVER OF JURY TRIAL.
--------------------
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS TRADEMARK
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH
RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Assignor waives any
right which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Assignor (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers, and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this ss.20.
21. MISCELLANEOUS.
-------------
The headings of each section of this Trademark Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Trademark Agreement and all rights and obligations hereunder shall be binding
upon the Assignor and its respective successors and assigns, and shall inure to
the benefit of the Agent, the Banks and their respective successors and assigns.
In the event of any irreconcilable conflict between the provisions of this
13
Trademark Agreement and the Credit Agreement, or between this Trademark
Agreement and the Security Agreement, the provisions of the Credit Agreement or
the Security Agreement, as the case may be, shall control. If any term of this
Trademark Agreement shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby, and this
Trademark Agreement shall be construed and be enforceable as if such invalid,
illegal or unenforceable term had not been included herein. The Assignor
acknowledges receipt of a copy of this Trademark Agreement.
14
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of
the day and year first above written.
NATIONAL AUTO FINANCE
COMPANY, INC.
By:________________________________________________
Name:
Title:
BANKBOSTON, N.A., individually and as Agent
By:________________________________________________
Name:
Title:
CERTIFICATE OF ACKNOWLEDGMENT
STATE OF NEW YORK______________________________________________________)
__________________ ) ss.
COUNTY OF _____________________________________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ____ day of ___________ 1997, personally appeared
________________ to me known personally, and who, being by me duly sworn,
deposes and says that he is the ______________ of National Auto Finance Company,
Inc., and that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors, and said ________________
acknowledged said instrument to be the free act and deed of said corporation.
_________________________
Notary Public
My commission expires:
15
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF _____________________________________________________________)
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ___ day of __________, 1997, personally appeared _________ to
me known personally, and who, being by me duly sworn, deposes and says that he
is a ___________________ of BankBoston, N.A. (the "Agent"), and that said
instrument was signed and sealed on behalf of said Agent by authority of its
Board of Directors, and said ______________________ acknowledged said instrument
to be the free act and deed of said Agent.
________________________
Notary Public
My commission expires:
SCHEDULE A
----------
TRADEMARKS AND TRADEMARK REGISTRATIONS
--------------------------------------
Trademark REGISTRATIONS --
or United States Patent and Trademark Office
Service Xxxx Registration No. Registration Date
------------ --------------- ---------------------
Credit Clinic 1,970,959 April 30, 1996
Your Primary Secondary Source 2,058,984 May 6, 0000
Xxxxxxxxx XXXXXXX XXXXXXXXXXXX --
xx Xxxxxx Xxxxxx Patent and Trademark Office
Service Xxxx Serial No. Filing Date
------------ --------- -----------
ACCH 75-286,843
EXHIBIT 1
---------
ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS
------------------------------------------
WHEREAS, National Auto Finance Company., Inc., a corporation organized
and existing under the laws of the State of Delaware, having a place of business
at 000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (the "Assignor"),
has adopted and used and is using the trademarks and service marks (the "Marks")
identified on the Annex hereto, and is the owner of the registrations of and
pending registration applications for such Marks in the United States Patent and
Trademark Office identified on such Annex; and
WHEREAS, _________________, a ______________ organized and existing
under the laws of the State of _______________, having a place of business at
_______________________ (the "Assignee"), is desirous of acquiring the Marks and
the registrations thereof and registration applications therefor;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign, sell and transfer unto
the Assignee all right, title and interest in and to the Marks, together with
(a) the registrations of and registration applications for the Marks, (b) the
goodwill of the business symbolized by and associated with the Marks and the
registrations thereof, and (c) the right to xxx and recover for, and the right
to profits or damages due or accrued arising out of or in connection with, any
and all past, present or future infringements or dilution of or damage or injury
to the Marks or the registrations thereof or such associated goodwill.
This Assignment of Trademarks and Service Marks is intended to and
shall take effect as a sealed instrument at such time as the Assignee shall
complete this instrument by inserting its name in the second paragraph above and
signing its acceptance of this Assignment of Trademarks and Service Marks below.
IN WITNESS WHEREOF, the Assignor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on this ____ day of
___________, ____________.
NATIONAL AUTO FINANCE COMPANY , INC.
By:________________________________________________
Title:
2
The foregoing assignment of the Marks and the registrations thereof and
registration applications therefor by the Assignor to the Assignee is hereby
accepted as of the ____ day of ____________, 199___.
By:___________________________________
Title:
COMMONWEALTH OR STATE OF ______________________________________________)
) ss.
COUNTY OF _____________________________________________________________)
On this the ___ day of ______, 199__, before me appeared
____________________, the person who signed this instrument, who acknowledged
that (s)he is the _________________________ of ______________________________
and that being duly authorized (s)he signed such instrument as a free act on
behalf of
-----------------------------.
------------------------------
Notary Public
[Seal]
My commission expires:
ANNEX
------
TRADEMARKS AND TRADEMARK REGISTRATION
-------------------------------------
Trademark REGISTRATIONS --
or United States Patent and Trademark Office
Service Xxxx Registration No. Registration Date
------------ ---------------- -----------------
Credit Clinic 1,970,959 April 30, 1996
Your Primary Secondary Source 2,058,984 May 6, 0000
Xxxxxxxxx XXXXXXX XXXXXXXXXXXX --
xx Xxxxxx Xxxxxx Patent and Trademark Office
Service Xxxx Serial No. Filing Date
------------ --------- -----------
ACCH 75-286,843
