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EXHIBIT 10.3
SECURITY AGREEMENT AND MORTGAGE - TRADEMARKS
AGREEMENT, dated as of March 25, 1998, between MACKINTOSH OF NEW
ENGLAND, CO., a Delaware corporation (the "Grantor") having an office at 0000
Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000, and THE CHASE MANHATTAN BANK
having an office at 000 X 00xx Xxxxxx, Xxx Xxxx, X.X. 00000 (the "Agent") as
Agent for the Lenders signatory to the Credit Agreement as hereinafter defined.
RECITALS
A. The Grantor has acquired and is the owner of the terms and designs
described in Schedule A annexed hereto and made a part hereof;
B. As a post closing condition to the continued extension of credit to
the Borrowers pursuant to the Fourth Amendment and Waiver to Second Amended and
Restated Credit Agreement and Guaranty dated as of March 25, 1998 in respect of
that certain Second Amended and Restated Credit Agreement and Guaranty dated as
of March 24, 1997 (as amended, supplemented or restated from time to time, the
"Credit Agreement") among BISCAYNE APPAREL, INC., BISCAYNE APPAREL
INTERNATIONAL, INC., MACKINTOSH OF NEW ENGLAND CO., M & L INTERNATIONAL, INC.
and the Agent and the Lenders signatory thereof, the execution and delivery
hereof by the Grantor is required;
NOW, THEREFORE IT IS AGREED that, for and in consideration of the loans
and advances to be made under the Credit Agreement and other good and valuable
consideration, the receipt of which is hereby acknowledged, and as collateral
security for the full and prompt payment and performance of all Obligations (as
hereinafter defined), the Grantor does hereby mortgage to and pledge with Agent,
and grant to Agent for the ratable benefit of the Lenders, a security interest
in, all of its right, title and interest in and to (i) each of the Trademarks
(as hereinafter defined), and the goodwill of the business symbolized by each of
the Trademarks, all customer lists and other records of the Grantor relating to
the distribution of products bearing the Trademarks described in Schedule A;
(ii) any claims by the Grantor against third parties for infringement of the
Trademarks; and (iii) any and all proceeds of the foregoing, (collectively, the
"Collateral").
1. DEFINITIONS: Terms defined in the Credit Agreement and not otherwise
defined herein, shall have the meaning set forth in the Credit Agreement. As
used in this Agreement, unless the context otherwise requires:
"OBLIGATIONS" shall mean all now existing and future obligations of
Grantor to Agent and the Lenders of every kind and description, direct or
indirect, absolute or contingent, whether arising under the Credit Agreement,
this Agreement or any other Facility Document, as that term is defined in the
Credit Agreement and all extensions, renewals, refundings, replacements and
modifications of the foregoing.
"TRADEMARKS" shall mean (i) all trademarks, trade names, trade styles,
service marks, prints and labels on which said trademarks, trade names, trade
styles and service marks have appeared or
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appear, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all right, title and interest therein and
thereto, and all registrations and recordings thereof, including, without
limitation, applications, registrations and recordings in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof, or any other country or any political subdivision
thereof, all whether now owned or hereafter acquired by the Grantor, including
but not limited to, those described in Schedule A annexed hereto and made a part
hereof, and (ii) all reissues, extensions or renewals thereof and all licenses
thereof.
2. REPRESENTATIONS AND COVENANTS: The Grantor hereby represents,
warrants, covenants and agrees as follows:
(a) The Grantor has good and valid title free and clear of all liens to
the Trademarks registered in the United States for the goods and services
covered by the registrations thereof and such registrations are valid and
subsisting and in full force and effect.
(b) The Grantor will perform all acts and execute all documents,
including, without limitation, assignments for security in form suitable for
filing with the United States Patent and Trademark Office, substantially in the
forms of Exhibit 1 hereof, requested by Agent at any time to evidence, perfect,
maintain, record and enforce Agent's interest in the Collateral or otherwise in
furtherance of the provisions of this Agreement, and the Grantor hereby
authorizes Agent to execute and file one or more financing statements (and
similar documents) or copies thereof or of this Agreement with respect to the
Collateral signed only by Agent.
(c) Except to the extent that Agent, upon prior written notice from the
Grantor, shall consent (which consent shall not unreasonably be withheld), the
Grantor (either itself or through licensees) will continue to use the Trademarks
on each and every trademark class of goods applicable to its current line as
reflected in its current catalogs, brochures and price lists in order to
maintain the Trademarks in full force free from any claim of abandonment for
nonuse and the Grantor will not (and will not permit any licensee thereof to) do
any act or knowingly omit to do any act whereby any Trademark may become
invalidated.
(d) The Grantor will promptly pay Agent for any and all sums, costs,
and expenses which Agent may pay or incur pursuant to the provisions of this
Agreement or in enforcing the Obligations, the Collateral or the security
interest granted hereunder, including, but not limited to, all filing or
recording fees, court costs, collection charges, travel and reasonable
attorneys' fees, all of which together with interest at the highest rate then
payable on the Obligations shall be part of the Obligations and be payable on
demand.
(e) In no event shall the Grantor, either itself or through an agent,
employee, licensee or designee, (i) file an application for the registration of
any Trademark with the United States Patent and Trademark Office or any similar
office or agency in any other country or any political subdivision thereof, or
(ii) file any assignment of any trademark, which the Grantor may acquire from a
third party, with the United States Patent and Trademark Office or any similar
office or agency in any other country or any political subdivision thereof,
unless the Grantor shall, on or prior to the date of such filing, notify Agent
thereof, and, upon request of Agent, execute and deliver any and all
assignments,
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agreements, instruments, documents and papers as Agent may request to evidence
Agent's interest in such trademark and the goodwill and general intangibles of
the Grantor relating thereto or represented thereby, and the Grantor hereby
constitutes Agent its attorney-in-fact to execute and file all such writings for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable until the
Obligations are paid in full. Any Trademark acquired by Grantor whether or not
the Grantor complies with clause (ii) hereof shall be included in the
Collateral.
(f) The Grantor has the right and power to make the assignment and to
grant the security interest herein granted; and the Collateral is not now, and
at all times hereafter will not be, subject to any liens, mortgages,
assignments, security interests or encumbrances of any nature whatsoever, except
in favor of Agent, and to the best knowledge of Grantor none of the Collateral
is subject to any claim.
(g) Except to the extent that Agent, upon prior written notice from the
Grantor, shall consent (which consent shall not unreasonably be withheld), the
Grantor will not assign, sell, mortgage, lease, transfer, pledge, hypothecate,
grant a security interest in or lien upon, grant an exclusive or non-exclusive
license, or otherwise dispose of any of the Collateral, and nothing in this
Agreement shall be deemed a consent by Agent to any such action except as
expressly permitted herein.
(h) As of the date hereof neither the Grantor nor any affiliate or
subsidiary of (collectively the "Affiliates") owns any Trademarks or has any
Trademarks registered in or the subject of pending applications in, the United
States Patent and Trademark Office or any similar office or agency in any other
country or any political subdivision thereof, other than those described in
Schedule A hereto.
(i) The Grantor will take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof, to maintain each
application and registration of the Trademarks including, without limitation,
filing of renewals, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings (except to the extent that
dedication, abandonment or invalidation is permitted under paragraph 2(c)
hereof).
(j) The Grantor assumes all responsibility and liability arising from
the use of the Trademarks and the Grantor hereby indemnifies and holds Agent and
the Lenders harmless from and against any claim, suit, loss, damage or expense
(including reasonable attorneys' fees) arising out of any alleged defect in any
product manufactured, promoted or sold by the Grantor or any Affiliate in
connection with any Trademark or out of the manufacture, promotion, labeling,
sale or advertisement of any such product by the Grantor or any Affiliate. The
Grantor agrees that the Agent and the Lenders do not assume, and shall have no
responsibility for, the payment of any sums due or to become due under any
agreement or contract included in the Collateral or the performance of any
obligations to be performed under or with respect to any such agreement or
contract by the Grantor, and the Grantor hereby agrees to indemnify and hold
Agent and the Lenders harmless with respect to any and all claims by any person
relating thereto. The provisions of this subparagraph (j) shall survive the
termination of this Agreement.
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(k) Agent may, in its sole discretion, pay any amount or do any act
required of the Grantor hereunder or requested by Agent to preserve, defend,
maintain, record or enforce the Grantor's obligations contained herein, the
Obligations, the Collateral, or the right, title and interest granted Agent
herein, and which the Grantor fails to do or pay, and any such payment shall be
deemed an advance by Agent to the Grantor and shall be payable on demand
together with interest at the highest rate then payable on the Obligations and
shall be added to the Obligations.
(l) The Grantor agrees that if it, or any Affiliate, learns of any use
by any person of any term or design likely to cause confusion with the
Trademarks, it shall promptly notify Agent of such use and, if requested by
Agent, shall join with Agent, at the Grantor's expense, in such action as Agent,
in its reasonable discretion, may deem advisable for the protection of Agent's
interest in and on the Trademarks.
(m) All licenses of the Trademarks which the Grantor has granted to
third parties are set forth in Schedule B hereto.
3. EVENTS OF DEFAULT AND REMEDIES: Upon the occurrence of an Event of
Default (as defined in the Credit Agreement), in addition to all other rights
and remedies of Agent, whether under law, the Credit Agreement or otherwise, all
such rights and remedies being cumulative, not exclusive and enforceable
alternatively, successively or concurrently, without (except as provided herein)
notice to, or consent by, the Grantor, Agent shall have the following rights and
remedies: (a) upon seven (7) days' prior notice from Agent, the Grantor shall
not make any further use of the Trademarks or any xxxx similar thereto for any
purpose; (b) Agent may, at any time and from time to time, upon seven (7) days'
prior notice to the Grantor, license, whether general, special or otherwise, and
whether on an exclusive or nonexclusive basis, any of the Trademarks, throughout
the world for such term of terms, on such conditions, and in such manner, as
Agent shall in its sole discretion determine; (c) Agent may (without assuming
any obligations or liability thereunder), at any time, enforce (and shall have
the exclusive right to enforce) against any licensee or sublicensee all rights
and remedies of the Grantor in, to and under any one or more license agreements
with respect to the Collateral, and take or refrain from taking any action under
any thereof, and the Grantor hereby releases Agent from, and agrees to hold
Agent free and harmless from and against any claims arising out of, any action
taken or omitted to be taken with respect to any such license agreement; (d)
Agent may, at any time and from time to time, upon seven (7) days' prior notice
to the Grantor, assign, sell, or otherwise dispose of, the Collateral or any of
it, either with or without special or other conditions or stipulations, with
power to buy the Collateral or any part of it, and with power also to execute
assurances, and do all other acts and things for completing the assignment, sale
or dispos3.ab ition which Agent shall, in its sole discretion, deem appropriate
or proper; and (e) in addition to the foregoing, in order to implement the
assignment, sale or other disposal of any of the Collateral pursuant to
subparagraph 3(d) hereof, Agent may, at any time, pursuant to the authority
granted in the Powers of Attorney described in paragraph 4 hereof (such
authority becoming effective on the occurrence or continuation as hereinabove
provided of an Event of Default), execute and deliver on behalf of the Grantor,
one or more instruments of assignment of the Trademarks (or any application or
registration thereof), in form suitable for filing, recording or registration in
any country. The Grantor agrees to pay when due all reasonable costs incurred in
any such transfer of the Trademarks, including any taxes, fees and reasonable
attorneys' fees, and all such costs shall be added to the Obligations. Agent
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may apply the proceeds actually received from any such license, assignment, sale
or other disposition to the reasonable costs and expenses thereof, including,
without limitation, reasonable attorneys' fees and all legal, travel and other
expenses which may be incurred by Agent, and then to the Obligations, in such
order as provided in the Credit Agreement; and the Grantor shall remain liable
and will pay Agent on demand any deficiency remaining, together with interest
thereon at a rate equal to the highest rate then payable on the Obligations and
the balance of any expenses unpaid. Nothing herein contained shall be construed
as requiring Agent to take any such action at any time. In the event of any such
license, assignment, sale or other disposition of the Collateral, or any of it,
after the occurrence or continuation as hereinabove provided of an Event of
Default, the Grantor shall supply its know-how and expertise relating to the
manufacture and sale of the products bearing or in connection with the
Trademarks are used, and its customer lists and other records relating to the
Trademarks and to the distribution of said products, to Agent or its designee.
4. POWER OF ATTORNEY: Concurrently with the execution and delivery
hereof, the Grantor is executing and delivering to Agent, in the form of Exhibit
2 hereto, five originals of a Power of Attorney for the implementation of the
assignment, sale or other disposal of the Trademarks pursuant to paragraphs 3(d)
and (e) hereof and the Grantor hereby releases Agent from any claims, causes of
action and demands at any time arising out of or with respect to any actions
taken or omitted to be taken by Agent or its representatives under the powers of
attorney granted herein, other than actions taken or omitted to be taken through
the gross negligence or willful misconduct of Agent finally declared by a court
of competent jurisdiction.
5. GOVERNING LAW: JURISDICTION, WAIVER OF JURY, ETC.: No provision
hereof shall be modified, altered or limited except by a written instrument
expressly referring to this Agreement and executed by the party to be charged.
The execution and delivery of this Agreement has been authorized by the Board of
Directors of the Grantor and by any necessary vote or consent of stockholders
thereof. This Agreement shall be binding upon the successors, assigns or other
legal representatives of the Grantor, and shall, together with the rights and
remedies of Agent inure to the benefit of Agent and the Lenders, their
successors, assigns or other legal representatives. This Agreement, the
Obligations and the Collateral shall be governed in all respects by the internal
laws of the United States and the internal laws of the State of New York. The
Grantor hereby submits to the nonexclusive jurisdiction of the Supreme Court of
the State of New York and the federal courts of the United States of America
located in such State in any action or proceeding arising under this Agreement
and each hereby waive trial by jury. If any term of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity of all other terms hereof
shall in no way be affected thereby.
6. MISCELLANEOUS: (a) Any failure or delay by Agent to require strict
performance by Grantor of any of the provisions, warranties terms, and
conditions contained herein or in any other agreement, document, or instrument,
shall not affect Agent's right to demand strict compliance and performance
therewith, and any waiver of any default shall not waive or affect any other
default, whether prior or subsequent thereto, and whether of the same or of a
different type. None of the warranties, conditions, provisions, and terms
contained herein or in any other agreement, document or instrument shall be
deemed to have been waived by any act or knowledge of Agent, its agents,
officers, or employees, but only by an instrument in writing, signed by an
officer of Agent and
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directed to Grantor, specifying such waiver.
(b) All notices requests and demands to or upon the respective parties
hereto shall be deemed to have been duly given or made: if by hand, immediately
upon delivery; if by telecopier, immediately upon sending; if by any overnight
delivery service, one day after dispatch; and if mailed by certified mail,
return receipt requested, two (2) days after mailing. All notices, requests and
demands are to be given or made to the respective parties at the following
addresses (or to such other addresses as either party may designate by notice in
accordance with the provisions of this paragraph):
If to Grantor: Mackintosh of New England, Co.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Xx., President
If to Agent: The Chase Manhattan Bank
000 X 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Textile and Apparel
(c) In the event any term or provision of this Agreement conflicts with
any term or provision of the Credit Agreement, the term or provision of the
Credit Agreement shall control.
(d) In the event that any provision hereof shall be deemed to be
invalid by any court, such invalidity shall not affect the remainder of this
Agreement.
C. IN WITNESS WHEREOF, the Grantor and Agent have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
MACKINTOSH OF NEW ENGLAND, CO.
AS GRANTOR
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
-------------------------------------
Title: President
----------------------------------
THE CHASE MANHATTAN BANK,
AS AGENT
By:
-------------------------------------
Title: Vice President
----------------------------------
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SCHEDULE A TO SECURITY AGREEMENT
MACKINTOSH OF NEW ENGLAND, CO.
TRADEMARKS
----------------------------------------------------------------------------------------------------------------
REGISTRATION NO./
TRADEMARK JURISDICTION FILED/REG. DATE APPLICATION NO.
--------- ------------ --------------- -----------------
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX USPTO 10/24/89 1,562,284
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX USPTO 3/8/77 1,060,825
----------------------------------------------------------------------------------------------------------------
KAOS USPTO 6/15/82 1,197,990
----------------------------------------------------------------------------------------------------------------
KAOS USPTO 5/14/86 1,419,300
----------------------------------------------------------------------------------------------------------------
KAOTIC USPTO 1/13/98 2,128,671
----------------------------------------------------------------------------------------------------------------
THE KIDS XXXX XXXXX (STYLIZED) USPTO 3/11/97 2,045,161
----------------------------------------------------------------------------------------------------------------
ALL OUTDOORS USPTO 9/13/77 1,073,221
----------------------------------------------------------------------------------------------------------------
VESTCOAT & DESIGN USPTO 7/14/87 1,447,591
----------------------------------------------------------------------------------------------------------------
XXXX. MACKINTOSH & CO. LTD. & DESIGN USPTO 5/26/42 395,402
----------------------------------------------------------------------------------------------------------------
THE KIDS XXXX XXXXX (STYLIZED) USPTO 4/4/95 74/656,057
----------------------------------------------------------------------------------------------------------------
MACKINTOSH NEW ENGLAND USPTO 10/16/92 74/322,876
----------------------------------------------------------------------------------------------------------------
MACKINTOSH NEW ENGLAND USPTO 10/16/92 74/322,866
----------------------------------------------------------------------------------------------------------------
MACKINTOSHSPORT USPTO 1/29/97 75/232,744
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX BENELUX 6/27/91 503,769
----------------------------------------------------------------------------------------------------------------
KAOS BENELUX 6/27/91 503,770
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX CANADA 6/8/90 369,160
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX CHINA 8/7/96 861,735
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX FRANCE 6/14/91 1,671,502
----------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------
KAOS FRANCE 6/14/91 1,671,501
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX HONG KONG 8/15/86 2,379
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX ITALY 6/21/91 609,961
----------------------------------------------------------------------------------------------------------------
KAOS ITALY 6/21/91 609,962
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX JAPAN 2/21/89 2,111,988
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX KOREA 12/1/87 147,892
----------------------------------------------------------------------------------------------------------------
KAOS SWEDEN 4/22/94 257,349
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX SWITZERLAND 6/19/91 392,406
----------------------------------------------------------------------------------------------------------------
KAOS SWITZERLAND 6/19/91 392,407
----------------------------------------------------------------------------------------------------------------
XXXX XXXXX UNITED KINGDOM 6/24/94 1,576,324
----------------------------------------------------------------------------------------------------------------
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SCHEDULE B TO SECURITY AGREEMENT
MACKINTOSH OF NEW ENGLAND, CO.
LICENSES
NONE
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EXHIBIT 1
TO SECURITY AGREEMENT
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, MACKINTOSH OF NEW ENGLAND, CO., a Delaware corporation (herein
referred to as "Assignor"), has adopted, used and is using the trademarks listed
on the annexed Schedule A, which trademarks are registered in the United States
Patent and Trademark Office (the "Trademarks");
WHEREAS, Assignor is obligated under the continued extension of credit
to the Borrowers pursuant to the Second Amended and Restated Credit Agreement
and Guaranty dated as of March 24, 1997 (as amended, supplemented or restated
from time to time) among it and the Lenders signatory thereto and THE CHASE
MANHATTAN BANK, as Agent for the Lenders signatory thereto (herein referred to
as "Assignee"), and has entered into a Security Agreement and
Mortgage-Trademarks (the "Agreement") in favor of Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to Assignee
and granted to Assignee a security interest in, and mortgage on, all right,
title and interest of Assignor in and to the Trademarks, together with the
goodwill of the business symbolized by the Trademarks and the applications and
registrations hereof, and all proceeds thereof, including, without limitation,
any and all causes of action which may exist by reason of infringement thereof
(the "Collateral"), to secure the payment, performance and observance of the
Obligations, as defined in the Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Assignor does hereby further assign unto Assignee and
grant to Assignee a security interest in, and mortgage on, the Collateral to
secure the prompt payment, performance and observance of the Obligations.
Assignor does hereby further acknowledge and affirm that the rights and
remedies of Assignee with respect to the assignment of, security interest in and
mortgage on the Collateral made and granted hereby are more fully set forth in
the Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein.
Assignee's address is 000 X 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, XX
00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of the 25th day of March,
1998.
MACKINTOSH OF NEW ENGLAND, CO.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------
Title: President
--------------------------------
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SCHEDULE A TO ASSIGNMENT FOR SECURITY TRADEMARKS
MACKINTOSH OF NEW ENGLAND, CO.
------------------------------------------------------------------------------------------------------------------
XXXX REGISTRATION DATE REGISTRATION NO.
---- ----------------- ----------------
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 10/24/89 1,562,284
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 3/8/77 1,060,825
------------------------------------------------------------------------------------------------------------------
Kaos 6/15/82 1,197,990
------------------------------------------------------------------------------------------------------------------
Kaos 5/14/86 1,419,300
------------------------------------------------------------------------------------------------------------------
Kaotic 1/13/98 2,128,671
------------------------------------------------------------------------------------------------------------------
The Kids Xxxx Xxxxx (Stylized) 3/11/97 2,045,161
------------------------------------------------------------------------------------------------------------------
All Outdoors 9/13/77 1,073,221
------------------------------------------------------------------------------------------------------------------
Vestcoat & Design 7/14/87 1,447,591
------------------------------------------------------------------------------------------------------------------
Xxxx. Mackintosh & Co. Ltd. & Design 5/26/42 395,402
------------------------------------------------------------------------------------------------------------------
The Kids Xxxx Xxxxx (Stylized) 4/4/95 74/656,057
------------------------------------------------------------------------------------------------------------------
AJ Sport 5/22/97 75/296,362
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 12/18/97 75/408,011
------------------------------------------------------------------------------------------------------------------
Mackintosh New England 10/16/92 74/322,876
------------------------------------------------------------------------------------------------------------------
Mackintosh New England 10/16/92 74/322,866
------------------------------------------------------------------------------------------------------------------
Mackintoshsport 1/29/97 75/232,744
------------------------------------------------------------------------------------------------------------------
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00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 28th day of May, 1998, before me personally came Xxxxx
Xxxxxxxxxx, Xx., to me known, who stated that he is the President of MACKINTOSH
OF NEW ENGLAND, CO., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.
/s/ Xxxxxx Xxx Xxxxxxx
---------------------------------
Notary Public
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Exhibit 2 to Security Agreement
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, THAT MACKINTOSH OF NEW ENGLAND, CO., a
Delaware Corporation with its principal office at 0000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "Assignor") hereby appoints and
constitutes THE CHASE MANHATTAN BANK, (hereinafter called "Assignee"), its true
and lawful attorney, with full power of substitution, and with full power and
authority to perform the following acts on behalf of Assignor:
1. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any trademarks,
trade names, trade styles and service marks, and all registrations, recordings,
reissues, extensions and renewals thereof, and all pending applications
therefor, and for the purpose of the recording, registering and filing of, or
accomplishing any other formality with respect to, the foregoing, to execute and
deliver any and all agreements, documents, instruments of assignment or other
papers necessary or advisable to effect such purpose; and
2. To execute any and all documents, statements, certificates or other
papers necessary or advisable in order to obtain the purposes described above as
Assignee may in its sole discretion determine.
This power of attorney is made pursuant to a Security Agreement and
Mortgage-Trademarks, dated the date hereof, between Assignor and Assignee and
takes effect solely for the purposes of paragraphs 3(d) and (e) thereof and is
subject to the conditions thereof and may not be revoked until the payment in
full of all "Obligations" as defined in such Security Agreement and
Mortgage-Trademarks.
Dated: May 28, 1998
------------
[Corporate Seal] MACKINTOSH OF NEW ENGLAND, CO.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------
Title: President
--------------------------------
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00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On this 28th day of May 1998 before me personally appeared Xxxxx
Xxxxxxxxxx, to me known who being by me duly sworn, did depose and say that he
resides at __________ and that he is President of MACKINTOSH OF NEW ENGLAND,
CO., the Delaware corporation described in and which executed the foregoing
instrument; and that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that is was affixed to said
instrument is such corporate seal; that it was affixed pursuant to authority of
the Board of Directors of said corporation, and that he signed his name thereto
pursuant to such authority.
/s/ Xxxxxx Xxx Xxxxxxx
---------------------------------
Notary Public
Xxxxxx Xxx Xxxxxxx
Notary Public of New Jersey
My Commission Expires Oct. 11, 2001
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