EXHIBIT 10.35
TO BE RECORDED WITH
U.S. PATENT AND TRADEMARK OFFICE
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT (this "AGREEMENT") is made as of November
8, 2006, by XXXXX & WESSON CORP., a Delaware corporation (the "DEBTOR"), to and
with TD BANKNORTH, N.A. (as successor-by-merger to Banknorth, N.A.), a national
banking association (the "SECURED PARTY").
RECITALS
A. Debtor and Xxxxx & Wesson Holding Corporation have executed and
delivered to Secured Party a certain Amended and Restated Loan and Security
Agreement of even date herewith, as the same may be amended, renewed, restated
or extended from time to time (the "GENERAL SECURITY AGREEMENT"). Capitalized
terms used herein without definition shall have the meanings set forth in the
General Security Agreement.
B. Debtor has agreed to enter into this Agreement in furtherance of the
rights granted to Secured Party under the General Security Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto,
Debtor hereby agrees as follows:
1. SECURITY INTEREST.
1.1 Debtor hereby grants to Secured Party a continuing security
interest in the following: all trademarks, and all applications therefor, now or
hereafter owned by Debtor, whether registered or unregistered, including, but
not limited to, those trademarks and trademark applications of Debtor listed on
Schedule A attached hereto and made a part hereof (collectively, the
"TRADEMARKS"), together with the goodwill of the business associated with and
symbolized by such Trademarks (collectively, the "COLLATERAL"), as security for
the Obligations (as defined in the General Security Agreement).
1.2 Debtor hereby requests that the U.S. Commissioner of Patents and
Trademarks record this Agreement.
1.3 For the purpose of enabling Secured Party, during the continuance
of an Event of Default, to exercise rights and remedies under Article IX of the
General Security Agreement at such time as Secured Party shall be lawfully
entitled to exercise such rights and remedies, and for no other purpose, Debtor
hereby grants to Secured Party, to the extent assignable, an irrevocable,
non-exclusive license to use, assign, license or sublicense any trademarks,
service marks, trade names, trade styles, logos, goodwill, copyrights, trade
secrets, franchises, licenses and patents or other Collateral now owned or
hereafter acquired by Debtor (collectively, the "LICENSED COLLATERAL"), wherever
the same may be located, including, without limitation, the following rights:
(a) the rights in said Licensed Collateral acquired by the common law of
the United States or any state thereof or under the law of any foreign
nation, organization, or subdivision thereof;
(b) the rights acquired under the statute of any foreign country, or the
United States, or any state or subdivision thereof, whether by
registrations of said Licensed Collateral or otherwise;
(c) the rights acquired in each and every form of said Licensed Collateral
as used by Debtor notwithstanding that less than all of such forms would be
registered and not withstanding the form of said Licensed Collateral;
(d) the right to use or license any party to the use of all or any of said
Licensed Collateral in connection with the sale of goods and/or the
rendering of services in the conduct of services advertising, promotion and
the like anywhere in the world;
(e) the right to use said Licensed Collateral either in connection with or
entirely independent from the other collateral securing the Obligations;
(f) the right to assign, transfer and convey a partial interest or the
entire interest in any one or more parts of said Licensed Collateral;
(g) the right to seek registration, foreign or domestic, of any of such
Licensed Collateral which was not registered as of the date hereof or
registered subsequently;
(h) the right to prosecute pending applications (if applicable) for foreign
or domestic registration (federal or state) of any of such Licensed
Collateral; and
(i) the right to access to all media in which any of the Licensed
Collateral may be recorded or stored and to all computer programs used for
the compilation or printout hereof.
1.4 Acquired Property. If Debtor shall at any time after the date
hereof (a) obtain any rights to any additional Collateral or (b) become entitled
to the benefit of any additional Collateral or any renewal or extension thereof,
including any reissue, division, continuation, or continuation-in-part of any
Collateral, or any improvement on any Collateral, the provisions hereof shall
automatically apply thereto and any such item enumerated in the preceding clause
(a) or (b) shall automatically constitute Collateral as if such would have
constituted Collateral at the time of execution hereof and be subject to the
lien and security interest created by this Agreement without further action by
any party. Debtor shall promptly provide to Secured Party written notice of any
of the foregoing and confirm the attachment of the lien and security interest
created by this Agreement to any rights described in clauses (a) and (b) above
by execution of an instrument in form reasonably acceptable to Secured Party and
the filing of any instruments or statements as shall be reasonably necessary to
create, preserve, protect or perfect Secured Party's security interest in such
Collateral. Further, Debtor authorizes Secured Party to modify this Agreement by
amending Schedule A hereto to include any Collateral of Debtor acquired or
arising after the date hereof.
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2. REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
2.1. Schedule A sets forth as of the date hereof all United States and
foreign trademark registrations and trademark applications owned by Debtor.
2.2. As of the date hereof, the Collateral set forth on Schedule A is
subsisting and has not been adjudged invalid or unenforceable.
2.3. Debtor has the full power and authority to enter into this
Agreement and perform its terms.
2.4. Debtor has used proper statutory notice in connection with its
use of the Collateral to the extent commercially practicable and customary
within the relevant industry.
3. COVENANTS. Debtor covenants and agrees as follows:
3.1. If Debtor shall purchase, register or otherwise acquire rights to
any new registrable or registered trademark, the provisions of Section 1 shall
automatically apply thereto and annually by the end of the first calendar
quarter following the previous calendar year, Debtor shall provide written
notice to the Secured Party of all applications for registration of Trademarks,
to the extent such applications exist, made during the preceding calendar year,
and shall execute an amendment to Schedule A, as applicable, including such
registrations and applications and shall take any other action reasonably
necessary to record Secured Party's interest in such trademarks with the U.S.
Commissioner of Patents and Trademarks.
3.2. Debtor will continue to use proper statutory notice in connection
with its registration of any of the Collateral to the extent commercially
practicable and customary within the relevant industry.
3.3. Debtor shall execute, or use its reasonable efforts at its
reasonable expense to cause to be executed, such further documents as may be
reasonably requested by Secured Party in order to effectuate fully the grant of
security interest set forth in Section 1 hereof.
3.4 Debtor shall (a) promptly notify Secured Party of any adverse
determination in any proceeding or the institution of any proceeding in any
federal, state or local court or administrative body or in the United States
Patent and Trademark Office regarding any Collateral (as defined in the General
Security Agreement), Debtor's right to register such Collateral or its right to
keep and maintain such registration in full force and effect, (b) maintain all
Collateral as presently used and operated, except, so long as no Event of
Default shall have occurred and be continuing, as shall be consistent with
commercially reasonable business judgment, (c) not permit to lapse or become
abandoned or become dedicated to the public any Collateral, and not settle or
compromise any pending or future litigation or administrative proceeding with
respect to any such Collateral, in either case except, so long as no Event of
Default shall have occurred and be continuing, as shall be consistent with
commercially reasonable business judgment, (d) promptly notify Secured Party in
writing of any event which
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may be reasonably expected to materially and adversely affect the value or
utility of any Collateral or the rights and remedies of Secured Party in
relation thereto including a levy or threat of levy or any legal process against
any Collateral, (e) not license any Collateral or amend or permit the amendment
of any of the licenses in any manner that would materially impair the lien on
and security interest in the Collateral created therein hereby, without the
consent of Secured Party, (f) keep complete, accurate and adequate records
respecting all Collateral consistent with past business practice and (g) furnish
to Secured Party, from time to time upon Secured Party's reasonable request
therefor, reasonably detailed statements and amended schedules further
identifying and describing the Collateral and such other materials evidencing or
reports pertaining to any Collateral as Secured Party may from time to time
reasonably request.
3.5 (a) Subject to subsection (b) below, unless there shall occur and
be continuing any Event of Default, Debtor shall have the right to commence and
prosecute in its own name, as the party in interest, for its own benefit and at
the sole cost and expense of Debtor, such applications for protection of the
Collateral and suits, proceedings or other actions to prevent the infringement,
counterfeiting, unfair competition, dilution, diminution in value or other
damage as are necessary to protect the Collateral. Upon the occurrence and
during the continuance of any Event of Default, Secured Party shall have the
right but shall in no way be obligated to file applications for protection of
the Collateral and/or bring suit in the name of Debtor or the Secured Party to
enforce the Collateral and any license thereunder. In the event of such suit,
Debtor shall, at the reasonable request of Secured Party, do any and all lawful
acts and execute any and all documents requested by Secured Party in aid of such
enforcement and Debtor shall promptly reimburse and indemnify Secured Party for
all costs and expenses incurred by Secured Party in the exercise of its rights
under this Section 3.5 in accordance with the General Security Agreement. In the
event that Secured Party shall elect not to bring suit to enforce the
Collateral, Debtor agrees, at the reasonable request of Secured Party, to take
all commercially reasonable actions necessary, whether by suit, proceeding or
other action, to prevent the infringement, counterfeiting, unfair competition,
dilution, diminution in value of or other damage to any of the Collateral by any
person.
(b) In the event that any Collateral is infringed, misappropriated or
diluted by a third party, Debtor shall (i) take such actions as Debtor shall
reasonably deem appropriate under the circumstances to protect such Collateral
and (ii) if such Collateral is of material economic value, promptly notify
Secured Party after it learns thereof and xxx for infringement, misappropriation
or dilution, to seek injunctive relief where appropriate and to recover any and
all damages for such infringement, misappropriation or dilution.
4. REMEDIES. After the occurrence and during the continuance of any Event
of Default (as defined in the General Security Agreement), Secured Party may
declare all Obligations secured hereby immediately due and payable and shall
have the remedies set forth in the General Security Agreement and the remedies
of a secured party under the Uniform Commercial Code.
5. ATTORNEY-IN-FACT. Debtor hereby appoints Secured Party, as Debtor's
attorney-in-fact (with full power of substitution and resubstitution) with the
power and authority, after the
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occurrence of any Event of Default, to execute and deliver, in the name of and
on behalf of Debtor, and to cause the recording of all such further assignments
and other instruments as Secured Party deems necessary in order to protect its
interest in the Collateral. Debtor agrees that all third parties may
conclusively rely on any such further assignment or other instrument so
executed, delivered and recorded by Secured Party (or Secured Party's designee
in accordance with the terms hereof) and on the statements made therein.
6. RELEASE OF CERTAIN COLLATERAL. Notwithstanding anything herein to the
contrary, and without limiting the rights of the Secured Party under Section
8.06 of the General Security Agreement, the Secured Party shall release its lien
on and security interest in the Collateral upon satisfaction of both of the
following conditions: (i) all Acquisition Loans (as defined in the General
Security Agreement) shall have been paid and satisfied in full and the
Acquisition Loan Commitment (as defined in the General Security Agreement) shall
have been terminated and (ii) no Default or Event of Default shall have occurred
and be continuing.
7. GENERAL.
7.1. No course of dealing between Debtor and Secured Party, nor any
failure to exercise, nor any delay in exercising on the part of Secured Party,
any right, power or privilege hereunder or under the General Security 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 right, power or privilege. No
waiver by Secured Party of any default shall operate as a waiver of any other
default or of the same default on a future occasion.
7.2. All of Secured Party's rights and remedies with respect to the
Collateral, whether established hereby or by the General Security Agreement, or
by any other agreement or by law shall be cumulative and may be exercised
singularly or concurrently. This Agreement is in addition to, and is not limited
by nor in limitation of, the provisions of the General Security Agreement or any
other security agreement or other agreement now or hereafter existing between
Debtor and Secured Party.
7.3. If any clause or provision of this Agreement 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.
7.4. This Agreement is subject to modification only by a writing
signed by the parties, except as otherwise provided in Section 3.1 hereof.
7.5. The benefits and obligations of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assignees of the
parties.
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7.6. The validity and interpretation of this Agreement and the rights
and obligations of the parties shall be governed by the laws (other than the
conflict of laws rules) of the Commonwealth of Massachusetts.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as an instrument under seal by their duly authorized
representatives all as of the day and year first above written.
XXXXX & WESSON CORP.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Vice President and Chief
Financial Officer
TD BANKNORTH, N.A. (as
successor-by-merger to Banknorth, N.A.)
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Senior Vice President
[ACKNOWLEDGEMENTS ON NEXT PAGE]
COMMONWEALTH OF MASSACHUSETTS
Hampden County, ss.
On this 8th day of November, 2006, before me, the undersigned Notary
Public, personally appeared the above-named Xxxx X. Xxxxx, proved to me by
satisfactory evidence of identification, being (check whichever applies): [ ]
driver's license or other state or federal governmental document bearing a
photographic image, [ ] oath or affirmation of a credible witness known to me
who knows the above signatory, or [X] my own personal knowledge of the identity
of the signatory, to be the person whose name is signed above, and acknowledged
the foregoing to be signed by him voluntarily for its stated purpose, as the
duly-authorized Vice President and Chief Financial Officer of Xxxxx & Wesson
Corp.
/s/ Xxxxxxx X. Xxx
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(Print Name of Notary Public): Xxxxxxx X. Xxx
My commission expires: 03/27/09
Qualified in the Commonwealth of Massachusetts
COMMONWEALTH OF MASSACHUSETTS
Hampden County, ss.
On this 6 day of November, 2006, before me, the undersigned Notary Public,
personally appeared the above-named Xxxxx X. Xxxxxxxxx, proved to me by
satisfactory evidence of identification, being (check whichever applies): [ ]
driver's license or other state or federal governmental document bearing a
photographic image, [ ] oath or affirmation of a credible witness known to me
who knows the above signatory, or [X] my own personal knowledge of the identity
of the signatory, to be the person whose name is signed above, and acknowledged
the foregoing to be signed by her voluntarily for its stated purpose, as the
duly-authorized Senior Vice President of TD Banknorth, N.A. (as
successor-by-merger to Banknorth, N.A.).
/s/ Xxxx Xxxxx
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(Print Name of Notary Public): Xxxx Xxxxx
My commission expires: Dec 22, 2006
Qualified in the Commonwealth of Massachusetts
