EXHIBIT 10.5
ASSIGNMENT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which
are hereby acknowledged, XXXX XXXXXX & SONS, INC., a Tennessee corporation (the
"Assignor"), with principal offices at 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000-0000, hereby collaterally assigns and grants to BANK ONE, NA,
with an office and place of business at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000, as Agent Bank (defined below) (the "Assignee"), a first
priority security interest in (i) all of the Assignor's right, title and
interest in and to the United States trademarks, trademark registrations and
trademark applications (the "Marks") set forth on Schedule A attached hereto,
together with (ii) all Proceeds (as such term is defined in the Security
Agreement referred to below) and products of the Marks, (iii) the goodwill of
the businesses with which the Marks are associated and (iv) all causes of action
arising prior to or after the date hereof for infringement of any of the Marks
or unfair competition regarding the same.
THIS ASSIGNMENT OF SECURITY INTEREST (this "Assignment") is made to
secure the satisfactory performance and payment of all "Secured Obligations", as
such term is defined in a Security Agreement dated as of December 29, 2000, as
amended, between NORTH ATLANTIC TRADING COMPANY, INC., NATIONAL TOBACCO COMPANY,
L.P., NORTH ATLANTIC OPERATING COMPANY, INC., NATIONAL TOBACCO FINANCE
CORPORATION, XXXXXX, INC., RBJ SALES, INC., and XXXX XXXXXX & SONS, INC. and
BANK ONE, NA, successor to Bank One, Kentucky, NA, a national banking
association, acting as Agent Bank (hereafter referred to as the "Agent Bank")
(as amended, the "Security Agreement"). Upon the occurrence of the Termination
Date (as defined in the Security Agreement), the Assignee shall, upon such
satisfaction, execute, acknowledge, and deliver to the Assignor an instrument in
writing releasing the security interest in the Marks acquired under this
Assignment. Terms not otherwise defined herein shall have the meaning set forth
in the Security Agreement.
This Assignment has been granted in conjunction with the security
interest granted to the Assignee under the Security Agreement. The rights and
remedies of the Assignee with respect to the security interest granted herein
are without prejudice to, and are in addition to those set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by
reference. In the event that any provisions of this Assignment are deemed to
conflict with the Security Agreement, the provisions of the Security Agreement
shall govern.
* * *
IN WITNESS WHEREOF, the undersigned have executed this Assignment as
of the 17th day of November, 2003.
XXXX XXXXXX & SONS, INC.
As Assignor
By /s Xxxxx X. Xxxxxxx
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Title: Executive Vice President
BANK ONE, NA, as Agent Bank and as Assignee
By /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Senior Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 17th day of November, 2003 before me personally came Xxxxx X.
Xxxxxxx who, being by me duly sworn, did state as follows: that she/he is the
Executive Vice President of Xxxx Xxxxxx & Sons, Inc., that she/he is authorized
to execute the foregoing Assignment on behalf of said corporation and that
she/he did so by authority of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxx
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Notary Public
My commission expires: 08/30/05.
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COMMONWEALTH OF KENTUCKY )
) ss.:
COUNTY OF JEFFERSON )
On this 13th day of November, 2003 before me personally came Xxxxxx
Xxxxxxx, who, being by me duly sworn, did state as follows: that she/he is the
Senior Vice President of BANK ONE, NA, that she/he is authorized to execute the
foregoing Assignment on behalf of said bank and that she/he did so by authority
of the Board of Directors of said bank.
/s/ Xxxx X. Xxxx
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Notary Public
My commission expires: 03/21/06
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SCHEDULE A
Schedule of Trademarks
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REGISTRATION NO. and
TRADEMARK CURRENT OWNER DATE ISSUED
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TEQULLA SUNRISE Xxxx Xxxxxx & Sons, Inc. 2,381,424
August 29, 2000
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XXXX'S CHOICE Xxxx Xxxxxx & Sons, Inc. 2,740,903
July 29, 2003
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XXXXXX'X CLASSIC Xxxx Xxxxxx & Sons, Inc. 2,359,709
June 20, 2000
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OLD HILL SIDE Xxxx Xxxxxx & Sons, Inc. 2,397,017
October 24, 2000
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