EXHIBIT 10.46
TRADEMARK COLLATERAL SECURITY AGREEMENT
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THIS AGREEMENT is made as of the 5th day of December, 1996, by and
between WinCup Holdings, Inc. a corporation organized under the laws of the
State of Delaware, having a mailing address at Three Radnor Corporate Center,
Xxxxx 000, 000 Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000 ("WinCup"), and The Bank of New
York Commercial Corporation as administrative and collateral agent for Lenders
(as hereafter defined), having a mailing address at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (in such capacity, "Agent").
BACKGROUND
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WinCup, WinCup Holdings, L.P., Radnor Holdings Corporation, StyroChem
International, Inc., and SP Acquisition Co., have entered into an Amended and
Restated Revolving Credit and Security Agreement dated as of the date hereof (as
amended and supplemented from time to time, the "Loan Agreement") with The Bank
of New York Commercial Corporation, ("BNYCC"), the various financial
institutions named therein or which hereafter become a party thereto
(collectively, "Lenders") and BNYCC, as administrative and collateral monitoring
(BNYCC, in such capacity, the "Agent"). In order to induce Agent and Lenders to
execute and deliver the Loan Agreement, WinCup agreed to execute and deliver to
Agent for the benefit of Lenders this Trademark Collateral Security Agreement
("Security Agreement"). This Security Agreement, covering Trademarks (as
hereinafter defined), is being executed contemporaneously with the Loan
Agreement under which Agent for the benefit of Lenders is granted a lien on and
security interest in, inter alia, the Trademarks and the machinery, equipment
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formulations, manufacturing procedures, quality control procedures and product
specifications ("Other Assets") relating to products sold under the Trademarks,
whereby Agent on behalf of Lenders shall have the right to foreclose
simultaneously on the Trademarks and the Other Assets in the event of the
occurrence and continuance of a default hereunder or an Event of Default under
the Loan Agreement.
NOW, THEREFORE, in consideration of the premises, WinCup and Agent
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
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the Loan Agreement shall have their defined meanings when used herein and the
following terms shall have the following meanings, unless the context otherwise
requires:
"Code" shall mean the Uniform Commercial Code as the same may
from time to time be in effect in the State of New York.
"Collateral" shall have the meaning assigned to it in Section 2
of this Security Agreement.
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"Licenses" shall mean the trademark license agreements of WinCup
designated on Schedule I hereto, as any of the same may from time to time be
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amended or supplemented.
"Proceeds" shall have the meaning assigned to it under Section 9-306
of the Code, and in any event, shall include, but not be limited to (i) any and
all proceeds of any insurance, indemnity, warranty or guarantee payable to
WinCup from time to time with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to WinCup from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau or agency (or any person acting under color of governmental
authority), and (iii) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.
"Security Agreement" shall mean this Security Agreement, as the
same may from time to time be amended or supplemented.
"Trademarks" shall mean the U.S. registered trademarks and pending
applications shown in the attached Schedule A, and those trademarks which are
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hereafter adopted or acquired by WinCup, and all right, title and interest
therein and thereto, and all registrations, applications, 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, all whether now owned
or hereafter acquired by WinCup.
2. Grant of Security Interest. As collateral security for the
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prompt payment of the Obligations, WinCup hereby grants and conveys to Agent for
the benefit of Lenders a security interest in and to (a) the entire right, title
and interest of WinCup in and to the Trademarks, including the registrations and
applications appurtenant thereto, listed in Schedule A hereto (as the same may
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be amended pursuant hereto from time to time), and in and to any and all
trademarks, and registrations and applications appurtenant thereto, hereafter
acquired or filed by WinCup, including without limitation all renewals thereof,
all proceeds of infringement suits, the rights to xxx for past, present and
future infringements and all rights corresponding thereto in the United States
and the goodwill of the business to which each of the Trademarks relates and (b)
all of WinCup's right, title and interest in, to and under the following:
(i) all Licenses;
(ii) all Receivables, contract rights and General Intangibles
arising under or relating to each and every License (including, without
limitation, (A) all moneys due and to become due under any License, (B) any
damages arising out of or for
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breach or default in respect of any such License, (C) all other amounts from
time to time paid or payable under or in connection with any such License, and
(D) the right of WinCup to terminate any such License or to perform and to
exercise all remedies thereunder); and
(iii) to the extent not otherwise included, all Proceeds and
products of any or all of the foregoing. All of the property referred to in
this paragraph 2 is hereinafter collectively called the "Collateral."
3. Representations and Warranties. WinCup covenants and warrants
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that as of the date of this Security Agreement:
(a) The Trademarks are subsisting and have not been adjudged
invalid or unenforceable;
(b) To the best of WinCup's knowledge, each of the Trademarks
is valid and enforceable;
(c) There is no outstanding claim that the use of any of the
Trademarks violates the rights of any third person;
(d) WinCup is the sole and exclusive owner of the entire and
unencumbered right, title and interest in and to each of the Trademarks, free
and clear of any liens, charges and encumbrances, (including, without
limitation, pledges, assignments, licenses, registered user agreements and
covenants by WinCup not to xxx third persons), except for the Licenses referred
to in Schedule I attached hereto;
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(e) WinCup has the right to enter into this Security Agreement
and perform its terms;
(f) WinCup has used, and will continue to use for the duration
of this Security Agreement, proper statutory notice, where appropriate, in
connection with its use of the Trademarks; and
(g) WinCup has used, and will continue to use for the duration
of this Security Agreement, consistent standards of quality in its manufacture
of products sold under the Trademarks.
4. Right of Inspection. WinCup hereby grants to Agent and its
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employees and agents the right to visit WinCup's plants and facilities which
manufacture, inspect or store products sold under any of the Trademarks, and to
inspect the products and quality control relating thereto at reasonable times
during regular business hours. WinCup shall use its best efforts to do any and
all acts required by Agent to ensure WinCup's compliance with paragraph 3(g)
above.
5. New Trademarks. (a) If, before the Obligations shall have been
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paid in full, WinCup shall obtain rights to any new trademarks, the provisions
of paragraph 2 shall automatically apply thereto and WinCup shall give Agent
prompt written notice
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thereof. (b) WinCup grants Agent a power-of-attorney, irrevocable so long as
the Loan Agreement is in existence, to modify this Security Agreement by
amending Schedule A to include any future trademarks, including trademark
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registrations or applications appurtenant thereto covered by this Security
Agreement.
6. Covenants. WinCup covenants and agrees with Agent that from and
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after the date of this Security Agreement and until the Obligations are fully
satisfied:
(a) Further Documentation; Pledge of Instruments. At any time
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and from time to time, upon the written request of Agent, WinCup will promptly
and duly execute and deliver any and all such further instruments and documents
and take such further action as Agent may reasonably deem desirable in obtaining
the full benefits of this Security Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the Code with respect to the liens and security
interests granted hereby. WinCup also hereby authorizes Agent to file any such
financing or continuation statement without the signature of WinCup to the
extent permitted by applicable law. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged to
Agent hereunder, duly endorsed in a manner satisfactory to Agent.
(b) Maintenance of Trademarks. WinCup will not do any act, or
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omit to do any act, whereby the Trademarks or any registration or application
appurtenant thereto, may become abandoned, invalidated, unenforceable, avoided,
avoidable, or will otherwise diminish in value, and shall notify Agent
immediately if it knows of any reason or has reason to know of any ground under
which this result may occur. WinCup shall take appropriate action at its expense
to halt the infringement of the Trademarks and shall properly exercise its duty
to control the nature and quality of the goods offered by any licensees in
connection with the Licenses set forth in Schedule I.
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(c) Indemnification. (A) WinCup assumes all responsibility and
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liability arising from the use of the Trademarks, and WinCup hereby indemnifies
and holds Agent and Lenders harmless from and against any claim, suit, loss,
damage or expense (including reasonable attorneys' fees) arising out of WinCup's
operations of its business from the use of the Trademarks. (B) In any suit,
proceeding or action brought by Agent or any Lender under any License for any
sum owing thereunder, or to enforce any provisions of such License, WinCup will
indemnify and keep Agent and Lenders harmless from and against all expense, loss
or damage suffered by reason of any defense, set off, counterclaim, recoupment
or reduction or liability whatsoever of the obligee thereunder, arising out of a
breach of WinCup of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
obligee or its successors from WinCup, and
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all such obligations of WinCup shall be and remain enforceable against and only
against WinCup and shall not be enforceable against Agent or any Lender.
(d) Limitation of Liens on Collateral. WinCup will not create,
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permit or suffer to exist, and will defend the Collateral against and take such
other action as is necessary to remove any lien, security interest, encumbrance,
claim or right, in or to the Collateral, and will defend the right, title and
interest of Agent in and to any of WinCup's rights under the Licenses and to the
Proceeds thereof against the claims and demands of all persons whomever.
(e) Limitations on Modifications of Licenses. WinCup will not
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(i) amend, modify, terminate or waive any provision of any License in any manner
which might materially adversely affect the value of such License or the
Trademarks as Collateral, without the written consent of Agent, (ii) fail to
exercise promptly and diligently each and every material right which it may have
under each License (other than any right of termination), without the prior
written consent of Agent, or (iii) fail to deliver to Agent a copy of each
material demand, notice or document sent or received by it relating in any way
to any License or Trademark.
(f) Notices. WinCup will advise Agent promptly, in reasonable
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detail (i) of any lien or claim made or asserted against any of the Collateral,
(ii) of any material change in the composition of the Collateral and (iii) of
the occurrence of any other event which would have a material adverse effect on
the value of any of the Collateral or on the security interests created
hereunder.
(g) Limitation on Further Uses of Trademarks. WinCup will not
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assign, sell, mortgage, lease, transfer, pledge, hypothecate, grant a security
interest in or lien upon, encumber, grant an exclusive or non-exclusive license,
or otherwise dispose of any of the Collateral, without prior written consent of
Agent.
7. Agent's Appointment as Attorney-in-Fact.
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(a) WinCup hereby irrevocably constitutes and appoints Agent
and any officer or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of WinCup and in the name of WinCup or in its own name, from
time to time in Agent's discretion, for the purposes of carrying out the terms
of this Security Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement and, without
limiting the generality of the foregoing, hereby gives Agent the power and
right, on behalf of WinCup, to do the following:
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(i) Upon the occurrence and during the continuance of an Event
of Default, to ask, demand, collect, receive and give acquittances and receipts
for any and all moneys due and to become due under any License and, in the name
of WinCup or its own name or otherwise, to take possession of and endorse and
collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any License and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise deemed
appropriate by Agent for the purpose of collecting any and all such moneys due
under any License whenever payable;
(ii) To pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against the Collateral, to
effect any repairs or any insurance called for by the terms of this Security
Agreement and to pay all or any part of the premiums therefor and the costs
thereof; and
(iii) Upon the occurrence and during the continuance of an Event
of Default (A) to direct any party liable for any payment under any of the
Licenses to make payment of any and all moneys due and to become due thereunder
directly to Agent or as Agent shall direct; (B) to receive payment of and
receipt for any and all moneys, claims and other amounts due and to become due
at any time in respect of or arising out of any Collateral; (C) to commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (D) to defend any suit,
action or proceeding brought against WinCup with respect to any Collateral; (E)
to settle, compromise, or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Agent may
deem appropriate; and (F) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though gent were the absolute owner thereof for all purposes,
and to do, at Agent's option all acts and things which Agent deems necessary to
protect, preserve or realize upon the Collateral and Agent's security interest
therein, in order to effect the intent of this Security Agreement, all as fully
and effectively as WinCup might do.
This power of attorney is a power coupled with an interest and shall
be irrevocable. Notwithstanding the foregoing, WinCup further agrees to execute
any additional documents which Agent may require in order to confirm this power
of attorney, or which Agent may deem necessary to enforce any of its rights
contained in this Security Agreement.
(b) The powers conferred on Agent hereunder are solely to
protect its interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Agent shall be accountable only for amounts that it
actually receives as a
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result of the exercise of such powers and neither it nor any of its officers,
directors, employees or agents shall be responsible to WinCup for any act or
failure to act, except for its own gross (not mere) negligence or willful
misconduct.
(c) WinCup also authorizes Agent to execute, in connection
with the sale provided for in paragraph 10(b) of this Security Agreement, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
8. Execution of Power of Attorney. Concurrently with the execution
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and delivery hereof, WinCup is executing and delivering to Agent, in the form of
Schedule II hereto, ten (10) originals of a Power of Attorney for the
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implementation of the assignment, sale or other disposal of the Trademarks
pursuant to paragraph 7 hereof.
9. Performance by Agent of WinCup's Obligations. If WinCup fails to
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perform or comply with any of its agreements contained herein and Agent, as
provided for by the terms of this Security Agreement, shall itself perform or
comply, or otherwise cause performance or compliance, with such agreement, the
expenses of Agent incurred in connection with such performance or compliance
shall be payable by WinCup to Agent on demand and shall constitute Obligations
secured hereby.
10. Remedies, Rights Upon Event of Default.
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(a) If an Event of Default shall occur and be continuing:
(i) All payments received by WinCup under or in
connection with any of the Collateral shall be held by WinCup in trust for
Lenders, shall be segregated from other funds of WinCup and shall forthwith upon
receipt by WinCup, be turned over to Agent, in the same form as received by
WinCup (duly indorsed by WinCup to Agent, if required); and
(ii) Any and all such payments so received by Agent
(whether from WinCup or otherwise) may, in the sole discretion of Agent, be
held by Agent as collateral security for, and/or then or at any time thereafter
applied in whole or in part by Agent against all or any part of the Obligations
in such order as Agent shall elect. Any balance of such payments held by Agent
and remaining after payment in full of all the Obligations shall be paid over to
WinCup or to whomsoever may be lawfully entitled to receive the same.
(b) If any Event of Default shall occur and be continuing,
Agent and Lenders may exercise in addition to all other rights and remedies
granted to them in this Security Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the Uniform Commercial Code.
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WinCup shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all amounts to which
Lenders are entitled. WinCup shall also be liable for the reasonable fees of
any attorneys employed by Agent and Lenders to collect any such deficiency and
also as to any reasonable attorney's fees incurred by Agent and Lenders with
respect to the collection of any of the Obligations and the enforcement of any
of Agent's and Lenders' respective rights hereunder.
11. Termination. At such time as WinCup shall completely pay in
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full all of the Obligations and the Loan Agreement is terminated, this Security
Agreement shall terminate and Agent shall execute and deliver to WinCup all such
releases, deeds, assignments and other instruments as may be necessary or proper
to re-vest in WinCup full title to the Trademarks, subject to any disposition
thereof which may have been made by Agent pursuant hereto.
12. Notices. Any notice to be given to Agent or WinCup under this
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Agreement shall be given in the manner and to the parties designated in the Loan
Agreement.
13. No Waiver. No course of dealing between WinCup, Agent or any
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Lender, nor any failure to exercise, nor any delay in exercising, on the part of
Agent or any Lender, any right, power or privilege hereunder or under the Loan
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. Cumulative Remedies. All of Agent's and Lenders' rights and
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remedies with respect to the Collateral, whether established hereby or by the
Loan Agreement, or by any other agreements or by law, shall be cumulative and
may be exercised singularly or concurrently.
15. Severability. The provisions of this Security Agreement are
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severable, and if any clause or provision shall be held invalid and
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
16. No Modification Except in Writing. This Security Agreement is
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subject to modification only by a writing signed by the parties, except as
provided in paragraphs 5 and 7.
17. Successors and Assigns. The benefits and burdens of this
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Security Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
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18. Governing Law. The validity and interpretation of this Security
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Agreement and the rights and obligations of the parties shall be governed by the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above written.
WINCUP HOLDINGS, INC.
WITNESS:
[SIGNATURE APPEARS HERE] By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
THE BANK OF NEW YORK COMMERCIAL CORPORATION,
as Agent
WITNESS:
[SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
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Name:
Title:
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XXXXX XX XXXXXXXXXXXX )
: ss.:
COUNTY OF PHILADELPHIA)
On this 5th day of December, 1996, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the President of WinCup Holdings, Inc., and which executed the foregoing
instrument; and that he signed his name thereto by order of the board of
directors of each corporation.
[SIGNATURE APPEARS HERE]
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NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
Before me, the undersigned, on this 5th day of December, 1996,
personally appeared Xxxx X. Peak, to me known personally, and who being by me
duly sworn, deposes and says that he is the Vice President of The Bank of New
York Commercial Corporation, and that said instrument was signed on behalf of
said corporation by authority of its Board of Directors, and he acknowledged
said instrument to be the free act and deed of said corporation.
[SIGNATURE APPEARS HERE]
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Notary Public
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SCHEDULE A
Schedule A to a Trademark Collateral Security Agreement dated as of December
5, 1996, by and between WinCup Holdings, Inc. and THE BANK OF NEW YORK
COMMERCIAL CORPORATION, as Agent.
Reg. No. or Reg. or
Application No. Xxxx Filing Date
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75/187876 ComPac 10/25/96
(serial number)
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SCHEDULE I
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LICENSES
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SCHEDULE II
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SPECIAL POWER OF ATTORNEY
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STATE OF __________ )
: ss.:
COUNTY OF _________ )
KNOW ALL MEN BY THESE PRESENTS, that WinCup HOLDINGS INC, a
corporation organized under the laws of the State of Delaware, with its
principal office at Three Radnor Corporate Center, Xxxxx 000, 000 Xxxxxxxxxx
Xxxx, Xxxxxx, XX 00000, (hereafter called "WinCup"), pursuant to a Trademark
Collateral Security Agreement, dated as of the date hereof, (the "Security
Agreement"), hereby appoints and constitutes THE BANK OF NEW YORK COMMERCIAL
CORPORATION, a New York corporation, with offices at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as administrative and
collateral agent ("Agent") for itself and the various other financial
institutions named in and which hereafter become a party to that certain Amended
and Restated Revolving Credit and Security Agreement dated as of the date hereof
among WinCup, The Bank of New York Commercial Corporation ("BNYCC"), the various
financial institutions named therein and which hereafter become a party thereto
(collectively, "Lenders") and Agent, its true and lawful attorney, with full
power of substitution, and with full power and authority to perform the
following acts on behalf of WinCup:
1. Assigning, selling or otherwise disposing of all right, title and
interest of WinCup in and to the Trademarks listed on Schedule A
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of the Security Agreement, and including those trademarks which
are added to the same subsequent hereto, and all registrations
and recordings 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, and to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or
advisable to effect such purpose;
2. To execute any and all documents, statements, certificates or
other papers necessary or advisable in order to obtain the
purposes described above as Agent may in its sole discretion
determine.
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This power of attorney is made pursuant to the Security Agreement
WinCup and Agent and may not be revoked until the payment in full of all
Obligations as defined in the Security Agreement.
WINCUP HOLDINGS, INC.
By:__________________________________
Xxxxxxx X. Xxxxxxx
President
STATE OF __________ )
: ss.:
COUNTY OF _________ )
On this _____ day of December, 1996, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the President of WinCup Holdings, Inc., and which executed the foregoing
instrument; and that he signed his name thereto by order of the board of
directors of each corporation.
______________________________
NOTARY PUBLIC
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SCHEDULE III
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TRADEMARKS
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"COMPAC", U.S. Trademark Serial No. 75/187876; filed on the Federal Register on
October 25, 1996.
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