EXHIBIT 10.5
[Execution]
TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
THIS TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT ("Agreement"),
dated as of June __, 2005, is by and between HF ENTERPRISES, INC., a Delaware
corporation ("Debtor") and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, in its capacity as agent pursuant to the Loan Agreement (as
hereinafter defined) acting for and on behalf of the parties thereto as Lenders
(in such capacity "Agent").
W I T N E S S E T H :
WHEREAS, Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, trade names, terms,
designs and applications therefor described in Exhibit A hereto and made a part
hereof; and
WHEREAS, Agent and the parties to the Loan Agreement as lenders (each
individually a "Lender" and collectively, "Lenders") have entered or are about
to enter into financing arrangements pursuant to which Lenders (or Agent on
behalf of Lenders) may make loans and advances and provide other financial
accommodations to Debtor and certain affiliates of Debtor (each a "Borrower" and
collectively, "Borrowers") as set forth in the Loan and Security Agreement,
dated of even date herewith, by and among Borrowers, certain affiliates of
Borrowers, Agent and Lenders (as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement") and other agreements, documents and instruments referred to
therein or at any time executed and/or delivered in connection therewith or
related thereto, including, but not limited to, this Agreement (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements");
and
WHEREAS, in order to induce Agent and Lenders to enter into the Loan
Agreement and the other Financing Agreements and to make loans and advances and
provide other financial accommodations to Borrowers pursuant thereto, Debtor has
agreed to grant to Agent certain collateral security as set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations, Debtor hereby grants to
Agent, for itself and for the benefit of Secured Parties, a continuing security
interest in and a general lien upon, and a collateral assignment of, the
following (being collectively referred to herein as the "Collateral"): (a) all
of Debtor's now existing or hereafter acquired right, title, and interest in and
to: (i) all of Debtor's
trademarks, trade names, trade styles and service marks and all applications,
registrations and recordings relating to the foregoing as may at any time be
filed in the United States Patent and Trademark Office or in any similar office
or agency of the United States, any State thereof, any political subdivision
thereof or in any other country, including, without limitation, the trademarks,
terms, designs and applications described in Exhibit A hereto, together with all
rights and privileges arising under applicable law with respect to Debtor's use
of any trademarks, trade names, trade styles and service marks, and all
reissues, extensions, continuation and renewals thereof (all of the foregoing
being collectively referred to herein as the "Trademarks"); and (ii) all prints
and labels on which such trademarks, trade names, trade styles and service marks
appear, have appeared or will appear, and all designs and general intangibles of
a like nature; (b) the goodwill of the business symbolized by each of the
Trademarks, including, without limitation, all customer lists and other records
relating to the distribution of products or services bearing the Trademarks; (c)
all present and future license and distribution agreements (subject to the
rights of the licensors therein) pertaining to the Trademarks, (d) all income,
fees, royalties and other payments at any time due or payable with respect
thereto, including, without limitation, payments under all licenses at any time
entered into in connection therewith; (e) the right to xxx for past, present and
future infringements thereof; (f) all rights corresponding thereto throughout
the world; and (g) any and all other proceeds of any of the foregoing,
including, without limitation, damages and payments or claims by Debtor against
third parties for past or future infringement of the Trademarks.
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to Agent, for the
benefit of Secured Parties, pursuant to this Agreement shall secure the prompt
performance, observance and payment in full of any and all Obligations.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Debtor hereby represents, warrants and covenants with and to Agent the
following (all of such representations, warranties and covenants being
continuing so long as any of the Obligations are outstanding):
(a) Debtor shall pay and perform all of the Obligations according to their
terms.
(b) All of the existing Collateral is valid and subsisting in full force
and effect, and Debtor owns the sole, full and clear title thereto, and the
right and power to grant the security interest and collateral assignment granted
hereunder. Debtor shall, at Debtor's expense, perform all acts and execute all
documents necessary to maintain the existence of the Collateral consisting of
registered Trademarks as registered trademarks and to maintain the existence of
all of the Collateral as valid and subsisting, including, without limitation,
the filing of any renewal affidavits and applications. The Collateral is not
subject to any liens, claims, mortgages, assignments, licenses, security
interests or encumbrances of any nature whatsoever, except: (i) the security
interests granted hereunder and pursuant to the Loan Agreement, (ii) the
security interests permitted under the Loan Agreement, and (iii) the licenses
permitted under Section 3(e) below.
2
(c) Debtor shall not assign, sell, mortgage, lease, transfer, pledge,
hypothecate, grant a security interest in or lien upon, encumber, grant an
exclusive or non-exclusive license relating to the Collateral, or otherwise
dispose of any of the Collateral, in each case without the prior written consent
of Agent, except as otherwise permitted herein or in the Loan Agreement. Nothing
in this Agreement shall be deemed a consent by Agent or any Lender to any such
action, except as such action is expressly permitted hereunder.
(d) Debtor shall, at Debtor's expense, promptly perform all acts and
execute all documents requested at any time by Agent to evidence, perfect,
maintain, record or enforce the security interest in and collateral assignment
of the Collateral granted hereunder or to otherwise further the provisions of
this Agreement. Debtor hereby authorizes Agent to execute and file one or more
financing statements (or similar documents) with respect to the Collateral.
Debtor further authorizes Agent to have this Agreement or any other similar
security agreement filed with the Commissioner of Patents and Trademarks or any
other appropriate federal, state or government office.
(e) As of the date hereof, Debtor does not have any Trademarks registered,
or subject to pending applications, in the United States Patent and Trademark
Office or any similar office or agency in the United States, any State thereof,
any political subdivision thereof or in any other country, other than those
described in Exhibit A hereto and has not granted any licenses with respect
thereto other than as set forth in Exhibit B hereto.
(f) Debtor shall, concurrently with the execution and delivery of this
Agreement, execute and deliver to Agent five (5) originals of a Special Power of
Attorney in the form of Exhibit C annexed hereto for the implementation of the
assignment, sale or other disposition of the Collateral pursuant to Agent's
exercise of the rights and remedies granted to Agent hereunder.
(g) Agent may, in its discretion, pay any amount or do any act which
Debtor fails to pay or do as required hereunder or as requested by Agent to
preserve, defend, protect, maintain, record or enforce the Obligations, the
Collateral, or the security interest and collateral assignment granted
hereunder, including, but not limited to, all filing or recording fees, court
costs, collection charges, attorneys' fees and legal expenses. Debtor shall be
liable to Agent for any such payment, which payment shall be deemed an advance
by Agent to Debtor, shall be payable on demand together with interest at the
rate then applicable to the indebtedness of Borrowers to Agent set forth in the
Loan Agreement and shall be part of the Obligations secured hereby.
(h) Debtor shall not file any application for the registration of a
Trademark with the United States Patent and Trademark Office or any similar
office or agency in the United States, any State thereof, any political
subdivision thereof or in any other country, unless Debtor has given Agent
prompt written notice of such action. If, after the date hereof, Debtor shall
(i) obtain any registered trademark or trade name, or apply for any such
registration in the United States Patent and Trademark Office or in any similar
office or agency in the United States, any State thereof, any political
subdivision thereof or in any other country, or (ii) become the owner of any
trademark registrations or applications for trademark registration used in the
United States or any State thereof, political subdivision thereof or in any
other country, the provisions of Section 1 hereof shall automatically apply
thereto. Upon the request of Agent, Debtor shall promptly
3
execute and deliver to Agent any and all assignments, agreements, instruments,
documents and such other papers as may be requested by Agent to evidence the
security interest in and collateral assignment of such Trademark in favor of
Agent.
(i) Debtor has not abandoned any of the Trademarks and Debtor will not do
any act, nor omit to do any act, whereby the Trademarks may become abandoned,
invalidated, unenforceable, avoided, or avoidable. Debtor shall notify Agent
immediately if it knows or has reason to know of any reason why any application,
registration, or recording with respect to the Trademarks may become abandoned,
canceled, invalidated, avoided, or avoidable.
(j) Debtor shall render any assistance, as Agent shall determine is
necessary, to Agent in any proceeding before the United States Patent and
Trademark Office, any federal or state court, or any similar office or agency in
the United States, any State thereof, any political subdivision thereof or in
any other country, to maintain such application and registration of the
Trademarks as Debtor's exclusive property and to protect Agent's interest
therein, including, without limitation, filing of renewals, affidavits of use,
affidavits of incontestability and opposition, interference, and cancellation
proceedings.
(k) No material infringement or unauthorized use presently is being made
of any of the Trademarks that would adversely affect in any material respect the
fair market value of the Collateral or the benefits of this Agreement granted to
Agent and Lenders, including, without limitation, the validity, priority or
perfection of the security interest granted herein or the remedies of Agent and
Lenders hereunder. There has been no judgment holding any of the Trademarks
invalid or unenforceable, in whole or part nor is the validity or enforceability
of any of the Trademarks presently being questioned in any litigation or
proceeding to which Debtor is a party. Debtor shall promptly notify Agent if
Debtor (or any affiliate or subsidiary thereof) learns of any use by any person
of any term or design which infringes on any Trademark or is likely to cause
confusion with any Trademark. If requested by Agent, Debtor, at Debtor's
expense, shall join with Agent in such action as Agent, in Agent's discretion,
may deem advisable for the protection of Agent's interest in and to the
Trademarks.
(l) Debtor assumes all responsibility and liability arising from the use
of the Trademarks and Debtor hereby indemnifies and holds Agent and Lenders
harmless from and against any claim, suit, loss, damage, or expense (including
attorneys' fees and legal expenses) arising out of any alleged defect in any
product manufactured, promoted, or sold by Debtor (or any affiliate or
subsidiary thereof) in connection with any Trademark or out of the manufacture,
promotion, labeling, sale or advertisement of any such product by Debtor (or any
affiliate or subsidiary thereof). The foregoing indemnity shall survive the
payment of the Obligations, the termination of this Agreement and the
termination or non-renewal of the Loan Agreement.
(m) Debtor shall promptly pay Agent and Lenders for any and all
expenditures made by Agent pursuant to the provisions of this Agreement or for
the defense, protection or enforcement of the Obligations, the Collateral, or
the security interests and collateral assignment granted hereunder, including,
but not limited to, all filing or recording fees, court costs, collection
charges, travel expenses, and attorneys' fees and legal expenses. Such
expenditures shall be payable on demand, together with interest at the rate then
applicable to the indebtedness of Borrowers to Agent set forth in the Loan
Agreement and shall be part of the Obligations secured hereby.
4
4. EVENTS OF DEFAULT
All Obligations shall become immediately due and payable, without notice
or demand, at the option of Agent, upon the occurrence of any Event of Default,
as such term is defined in the Loan Agreement (each an "Event of Default"
hereunder).
5. RIGHTS AND REMEDIES
At any time an Event of Default exists or has occurred and is continuing,
in addition to all other rights and remedies of Agent or any Lender, whether
provided under this Agreement, the Loan Agreement, the other Financing
Agreements, applicable law or otherwise, Agent shall have the following rights
and remedies which may be exercised without notice to, or consent by, Debtor
except as such notice or consent is expressly provided for hereunder:
(a) Agent may require that neither Debtor nor any affiliate or subsidiary
of Debtor make any use of the Trademarks or any marks similar thereto for any
purpose whatsoever. Agent may make use of any Trademarks for the sale of goods,
completion of work-in-process or rendering of services or otherwise in
connection with enforcing any other security interest granted to Agent by Debtor
or any subsidiary or affiliate of Debtor or for such other reason as Agent may
determine.
(b) Agent may grant such license or licenses relating to the Collateral
for such term or terms, on such conditions, and in such manner, as Agent shall
in its discretion deem appropriate. Such license or licenses may be general,
special or otherwise, and may be granted on an exclusive or non-exclusive basis
throughout all or any part of the United States of America, its territories and
possessions, and all foreign countries.
(c) Agent may assign, sell or otherwise dispose of the Collateral or any
part thereof, either with or without special conditions or stipulations except
that if notice to Debtor of intended disposition of Collateral is required by
law, the giving of ten (10) days prior written notice to Debtor of any proposed
disposition shall be deemed reasonable notice thereof and Debtor waives any
other notice with respect thereto. Agent shall have the power to buy the
Collateral or any part thereof, and Agent shall also have the power to execute
assurances and perform all other acts which Agent may, in its discretion, deem
appropriate or proper to complete such assignment, sale, or disposition. In any
such event, Debtor shall be liable for any deficiency.
(d) In addition to the foregoing, in order to implement the assignment,
sale, or other disposition of any of the Collateral pursuant to the terms
hereof, Agent may at any time execute and deliver on behalf of Debtor, pursuant
to the authority granted in the Powers of Attorney described in Section 3(f)
hereof, one or more instruments of assignment of the Trademarks (or any
application, registration, or recording relating thereto), in form suitable for
filing, recording, or registration. Debtor agrees to pay Agent on demand all
costs incurred in any such transfer of the Collateral, including, but not
limited to, any taxes, fees, and attorneys' fees and legal expenses. Debtor
agrees that Agent and Lenders have no obligation to preserve rights to the
Trademarks against any other parties.
5
(e) Agent may first apply the proceeds actually received from any such
license, assignment, sale or other disposition of any of the Collateral to the
costs and expenses thereof, including, without limitation, attorneys' fees and
all legal, travel and other expenses which may be incurred by Agent. Thereafter,
Agent may apply any remaining proceeds to such of the Obligations as Agent may
in its discretion determine. Debtor shall remain liable to Agent for any of the
Obligations remaining unpaid after the application of such proceeds, and Debtor
shall pay Agent on demand any such unpaid amount, together with interest at the
rate then applicable to the indebtedness of Borrowers to Agent set forth in the
Loan Agreement.
(f) Debtor shall supply to Agent or to Agent's designee, Debtor's
knowledge and expertise relating to the manufacture, sale and distribution of
the products and services bearing the Trademarks and Debtor's customer lists and
other records relating to the Trademarks and the distribution thereof.
(g) Nothing contained herein shall be construed as requiring Agent to take
any such action at any time. All of Agent's rights and remedies, whether
provided under this Agreement, the other Financing Agreements, applicable law,
or otherwise, shall be cumulative and none is exclusive. Such rights and
remedies may be enforced alternatively, successively, or concurrently.
6. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
(a) The validity, interpretation and enforcement of this Agreement and the
other Financing Agreements and any dispute arising out of the relationship
between the parties hereto, whether in contract, tort, equity or otherwise,
shall be governed by the internal laws of the State of New York but excluding
any principles of conflicts of law or other rule of law that would cause the
application of the law of any jurisdiction other than the laws of the State of
New York.
(b) Debtor and Agent irrevocably consent and submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York,
whichever Agent may elect, and waive any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this
Agreement or any of the other Financing Agreements or in any way connected with
or related or incidental to the dealings of Debtor and Agent or any Lender in
respect of this Agreement or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising, and whether in contract, tort, equity or otherwise, and agree
that any dispute with respect to any such matters shall be heard only in the
courts described above (except that Agent shall have the right to bring any
action or proceeding against Debtor or its property in the courts of any other
jurisdiction which Agent deems necessary or appropriate in order to realize on
the Collateral or to otherwise enforce its rights against Debtor or its
property).
(c) Debtor hereby waives personal service of any and all process upon it
and consents that all such service of process may be made by U.S. certified mail
(return receipt requested) directed to its address set forth herein and service
so made shall be deemed to be completed immediately upon receipt thereof by
Debtor, or, at Agent's option, by service upon Debtor in any other manner
provided under the rules of any such courts. Within thirty (30) days after such
6
service, Debtor shall appear in answer to such process, failing which Debtor
shall be deemed in default and judgment may be entered by Agent against Debtor
for the amount of the claim and other relief requested.
(d) DEBTOR AND AGENT EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY
OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF DEBTOR AND AGENT OR ANY LENDER IN RESPECT OF
THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR AND AGENT
EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT DEBTOR OR AGENT
MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF DEBTOR AND AGENT TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
(e) Notwithstanding any other provision contained herein, Agent and
Lenders shall not have any liability to Debtor (whether in tort, contract,
equity or otherwise) for losses suffered by Debtor in connection with, arising
out of, or in any way related to the transactions or relationships contemplated
by this Agreement, or any act, omission or event occurring in connection
herewith, unless it is determined by a final and non-appealable judgment or
court order binding on Agent or such Lender that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Agent and each Lender shall be entitled to the benefit of the
rebuttable presumption that it acted in good faith and with the exercise of
ordinary care in the performance by it of the terms of this Agreement and the
other Financing Agreements.
7. MISCELLANEOUS
(a) All notices, requests and demands hereunder shall be in writing and
deemed to have been given or made: if delivered in person, immediately upon
delivery; if by telex, telegram or facsimile transmission, immediately upon
sending and upon confirmation of receipt; if by nationally recognized overnight
courier service with instructions to deliver the next business day, one (1)
business day after sending; and if by certified mail, return receipt requested,
five (5) days after mailing by deposit (postage prepaid) in the U.S. mail. All
notices, requests and demands upon the parties are to be given to the following
addresses (or to such other address as any party may designate by notice in
accordance with this Section):
If to Debtor: HF Enterprises, Inc.
Xxx Xxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
7
If to Agent: Wachovia Bank, National Association,
as Agent
Heritage Square II
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Portfolio Manager
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
(b) All references to the plural herein shall also mean the singular and
to the singular shall also mean the plural. All references to Debtor, Agent, any
Lender and Borrowers pursuant to the definitions set forth in the recitals
hereto, or to any other person herein, shall include their respective successors
and assigns. The words "hereof," "herein," "hereunder," "this Agreement" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not any particular provision of this Agreement and as
this Agreement now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced. An Event of Default shall exist or
continue or be continuing until such Event of Default is waived in accordance
with Section 7(e) hereof or the provisions of the Loan Agreement. All references
to the term "Person" or "person" herein shall mean any individual, sole
proprietorship, partnership, corporation (including, without limitation, any
corporation which elects subchapter S status under the Internal Revenue Code of
1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock company, trust, joint
venture or other entity or any government or any agency or instrumentality or
political subdivision thereof. Unless otherwise defined herein, capitalized
terms used herein and not defined herein shall have the meaning given to such
term in the Loan Agreement.
(c) This Agreement, the other Financing Agreements and any other document
referred to herein or therein shall be binding upon Debtor and its successors
and assigns and inure to the benefit of and be enforceable by Agent and its
successors and assigns.
(d) If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Agreement as a whole, but this Agreement shall be construed as though it did not
contain the particular provision held to be invalid or unenforceable and the
rights and obligations of the parties shall be construed and enforced only to
such extent as shall be permitted by applicable law.
(e) Neither this Agreement nor any provision hereof shall be amended,
modified, waived or discharged orally or by course of conduct, but only by a
written agreement signed by an authorized officer of Agent. Agent shall not, by
any act, delay, omission or otherwise be deemed to have expressly or impliedly
waived any of its rights, powers and/or remedies unless such waiver shall be in
writing and signed by an authorized officer of Agent. Any such waiver shall be
enforceable only to the extent specifically set forth therein. A waiver by Agent
of any right, power and/or remedy on any one occasion shall not be construed as
a bar to or waiver of any such right, power and/or remedy which Agent would
otherwise have on any future occasion, whether similar in kind or otherwise.
(f) This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which taken together shall constitute one
and the same agreement.
8
Delivery of an executed counterpart of this Agreement by telefacsimile or other
means of electronic transmission shall have the same force and effect as the
delivery of an original executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by telefacsimile or other
means of electronic transmission shall also deliver an original executed
counterpart, but the failure to do so shall not affect the validity,
enforceability or binding effect of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, Debtor and Agent have executed this Agreement as of
the day and year first above written.
HF ENTERPRISES, INC.
By: _____________________________
Title: ____________________________
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent
By: _____________________________
Title: ____________________________
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
On this ___ day of _________, 2005, before me personally came
__________________, to me known, who being duly sworn, did depose and say, that
he/she is the ________________ of HF ENTERPRISES, INC., the corporation
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by order of the Board of Directors of said corporation.
_________________________________
Notary Public
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
On this ____ day of June, 2005, before me personally came
___________________, to me known, who, being duly sworn, did depose and say,
that he/she is the _________________ of WACHOVIA BANK, NATIONAL ASSOCIATION, the
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by order of the Board of Directors of said
corporation.
_________________________________
Notary Public
12
EXHIBIT A
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF TRADEMARKS AND TRADEMARK APPLICATIONS
Registration Registration Expiration
Trademark Number Date Date
--------- ------ ---- ----
America's Fabric Store 2,090,281 08/19/97 08/19/07
Xxxxxxx Fabrics 2,161,840 06/02/98 06/02/08
Xxxxxx Xxxxxxx Collection 2,615,823 09/03/02 09/03/08
Sew Perfect (oil) 1,974,041 05/14/96 05/14/06
Sew Perfect (tools) 1,971,704 04/30/96 04/30/06
Sew Perfect (sewing 1,974,042 05/14/96 05/14/06
gauges/measures)
Sew Perfect (bobbins, 1,971,703 04/30/96 04/30/06
needles, etc.)
The Fabric Card 1,970,555 04/23/96 04/23/06
Xxxxxxx Fabrics - Canada TMA594,330 11/07/03 11/07/18
Trademark Application/Serial Application
Application Number Date
----------- ------ ----
None
A-1
EXHIBIT B
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF LICENSES
None.
B-1
EXHIBIT C
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
KNOW ALL MEN BY THESE PRESENTS, that HF ENTERPRISES, INC. ("Debtor"),
having an office at Xxx Xxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000 hereby
appoints and constitutes, severally, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent ("Agent"), and each of its officers, its true and lawful attorney, with
full power of substitution and with full power and authority to perform the
following acts on behalf of Debtor:
1. Execution and delivery of any and all agreements, documents, instrument
of assignment, or other papers which Agent, in its discretion, deems necessary
or advisable for the purpose of assigning, selling, or otherwise disposing of
all right, title, and interest of Debtor in and to any trademarks and all
registrations, recordings, reissues, extensions, and renewals thereof, or for
the purpose of recording, registering and filing of, or accomplishing any other
formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements,
certificates or other papers which Agent, in its discretion, deems necessary or
advisable to further the purposes described in Subparagraph 1 hereof.
This Power of Attorney is made pursuant to a Trademark Collateral
Assignment and Security Agreement, dated of even date herewith, between Debtor
and Agent (the "Security Agreement") and is subject to the terms and provisions
thereof. This Power of Attorney, being coupled with an interest, is irrevocable
until all "Obligations", as such term is defined in the Security Agreement, are
paid in full and the Security Agreement is terminated in writing by Agent.
Dated: _________, 2005 HF ENTERPRISES,INC.
By:__________________________________
Title: ________________________________
C-1
STATE OF _______________ )
) ss.:
COUNTY OF _____________ )
On this ___ day of _________, 2005, before me personally came
__________________, to me known, who being duly sworn, did depose and say, that
he/she is the ________________ of HF ENTERPRISES, INC., the corporation
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by order of the Board of Directors of said corporation.
________________________________
Notary Public
