TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT (this "Agreement"), dated October 3,
2003, is by and among MJS ACQUISITION COMPANY, a North Carolina corporation
("MJS"), with its chief executive office at Xxx Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, DELTA APPAREL, INC., a Georgia corporation ("Delta"; together
with MJS, each a "Debtor" and collectively, the "Debtors"), with its chief
executive office at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000, and
CONGRESS FINANCIAL CORPORATION (SOUTHERN), a Georgia corporation, as agent for
Delta Lenders (as defined below) and as agent for Soffe Lenders (as defined
below) (in either or both capacities, "Secured Party"), having an office at 000
Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each 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 set forth
opposite the name of such Debtor;
WHEREAS, Secured Party, the financial institutions party thereto as
lenders (collectively, "Soffe Lenders") and MJS are parties to that certain Loan
and Security Agreement, dated the date hereof (as the same now exists and may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced from time to time, the "Soffe 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, the Financing Agreements (as defined in the Soffe Loan Agreement) and this
Agreement (all of the foregoing, together with the Soffe Loan Agreement, as the
same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced from time to time, being collectively referred to
herein as the "Soffe Financing Agreements") pursuant to which Soffe Lenders may
make loans and advances and provide other financial accommodations to MJS as set
forth therein; and
WHEREAS, as an inducement to Secured Party and Soffe Lenders to enter
into the Soffe Loan Agreement and to make the loans thereunder, Delta has agreed
to guarantee the obligations of MJS to Secured Party and Soffe Lenders pursuant
to that certain Guarantee dated the date hereof (as amended, modified,
supplemented, extended or restated from time to time, the "Soffe Loan Agreement
Guarantee"), by Delta and SAIM, LLC in favor of Secured Party, on behalf of
Secured Party and Soffe Lenders, and has agreed to secure its obligations under
the Soffe Loan Agreement Guarantee as provided herein; and
WHEREAS, Secured Party, the financial institutions party thereto as
lenders (collectively, "Delta Lenders"; together with Soffe Lenders,
collectively, "Lenders") and Delta are parties to that certain Amended and
Restated Loan and Security Agreement, dated the date hereof (as the same now
exists and may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced from time to time, the "Delta Loan Agreement"; together
with the Soffe Loan Agreement, each a "Loan Agreement" and collectively, the
"Loan Agreements"), 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, the Financing Agreements (as
defined in the Delta Loan Agreement) and this Agreement (all of the foregoing,
together with the Delta Loan Agreement, as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced from
time to time, being collectively referred to herein as the "Delta Financing
Agreements"; together with the Soffe Financing Agreements, each a "Financing
Agreement" and collectively, the "Financing Agreements") pursuant to which Delta
Lenders may make loans and advances and provide other financial accommodations
to Delta as set forth therein; and
WHEREAS, as an inducement to Secured Party and Delta Lenders to enter
into the Delta Loan Agreement and to make the loans thereunder, MJS has agreed
to guarantee the obligations of Delta to Secured Party and Delta Lenders
pursuant to that certain Guarantee dated the date hereof (as amended, modified,
supplemented, extended or restated from time to time, the "Delta Loan Agreement
Guarantee"; together with the Soffe Loan Agreement Guarantee, each a "Guarantee"
and collectively, the "Guarantees"), by MJS and SAIM, LLC in favor of Secured
Party, on behalf of Secured Party and Delta Lenders, and has agreed to secure
its obligations under the Delta Loan Agreement Guarantee as provided herein; and
WHEREAS, MJS is a Subsidiary of Delta, and each Debtor has determined
that it will realize substantial direct and indirect benefits as a result of the
loans and other financial accommodations extended to the other Debtor pursuant
to the Loan Agreements, and such Debtor's execution, delivery and performance of
this Agreement are within such Debtor's corporate or other purposes and are in
the best interests of such Debtor; and
WHEREAS, it is a condition precedent to the execution and delivery of
the Soffe Loan Agreement by Secured Party and Soffe Lenders and the execution
and delivery of the Delta Loan Agreement by Secured Party and Delta Lenders and
the extension of the loans and other financial accommodations to the Debtors
under the Loan Agreements that each Debtor agree to pledge to Secured Party, for
the benefit of Secured Party and Lenders, 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, the parties hereto 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 Secured Obligations (as hereinafter
defined), each Debtor hereby grants to Secured Party, for the benefit of Secured
Party and Lenders, a continuing security interest in and a general lien upon the
following (being collectively referred to herein as the "Collateral"): (a) all
of such Debtor's now existing or hereafter acquired right, title, and interest
in and to: (i) all of such Debtor's trademarks, tradenames, trade styles,
service marks and domain names 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
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applications described in Exhibit A hereto, together with all rights and
privileges arising under applicable law with respect to such Debtor's use of any
trademarks, tradenames, 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, tradenames, tradestyles 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 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; (d) the right to xxx for past,
present and future infringements thereof; (e) all rights corresponding thereto
throughout the world; and (f) any and all other proceeds of any of the
foregoing, including, without limitation, damages and payments or claims by such
Debtor against third parties for past or future infringement of the Trademarks.
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to Secured
Party pursuant to this Agreement shall secure the full and prompt payment and
performance of the Obligations (as defined in the Loan Agreements), the
Guaranteed Obligations (as defined in the Guarantees) and the other covenants,
agreements and liabilities of the Debtors under the Loan Agreements and all of
the obligations of each Debtor and the Obligors to Secured Party under (i) this
Agreement, (ii) the Delta Loan Agreement Guarantee, (iii) the Soffe Loan
Agreement Guarantee, and (iv) other Financing Agreements and any extensions,
renewals or amendments to any of the foregoing, however created, acquired,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, whether arising before, during or
after the initial or any renewal term of the Soffe Loan Agreement or the Delta
Loan Agreement or after the commencement of any case with respect to any Debtor
under the United States Bankruptcy Code or any similar statute (including,
without limitation, the payment of interest and other amounts which would accrue
and become due but for the commencement of such case), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and however
acquired by Secured Party or Lenders (all of the foregoing now existing or
hereafter arising obligations being referred to, collectively, as the "Secured
Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Debtor hereby represents, warrants and covenants with and to
Secured Party and Lenders the following (all of such representations, warranties
and covenants being continuing so long as any of the Secured Obligations are
outstanding and the Financing Agreements and the Guarantees have not been
terminated in writing):
(a) Such Debtor shall pay and perform all of the Secured Obligations
according to their terms.
(b) All of the existing Collateral is valid and subsisting in full
force and effect, and such Debtor has the right and power to grant the security
interest granted hereunder. Such Debtor shall, at such Debtor's expense, perform
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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 Agreements, (ii) (A) with respect to MJS, the security interests
permitted under the Soffe Loan Agreement, and (B) with respect to Delta, the
security interests permitted under the Delta Loan Agreement, and (iii) the
licenses permitted under Section 3(e) below.
(c) Such 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 Secured Party, except as otherwise permitted herein or (i) with respect to
Soffe, in the Soffe Loan Agreement, and (ii) with respect to Delta, in the Delta
Loan Agreement. Nothing in this Agreement shall be deemed a consent by Secured
Party to any such action, except as such action is expressly permitted
hereunder.
(d) Such Debtor shall, at such Debtor's expense, promptly perform all
acts and execute all documents reasonably requested at any time by Secured Party
to evidence, perfect, maintain, record or enforce the security interest in the
Collateral granted hereunder or to otherwise further the provisions of this
Agreement. Such Debtor hereby authorizes Secured Party to execute and file one
or more financing statements (or similar documents) with respect to the
Collateral, signed only by Secured Party or as otherwise determined by Secured
Party. Such Debtor further authorizes Secured Party 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, such 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) Such Debtor shall, concurrently with the execution and delivery of
this Agreement, execute and deliver to Secured Party five (5) originals of a
Special Power of Attorney in the form of Exhibit C hereto for the
implementation, following the occurrence of an Event of Default, of the
assignment, sale or other disposition of the Collateral and the taking of any
other action Secured Party, in its discretion, deems necessary or advisable
pursuant to Secured Party's exercise of the rights and remedies granted to
Secured Party hereunder.
(g) Secured Party may, in its discretion, pay any amount or do any act
which such Debtor fails to pay or do as required hereunder or as requested by
Secured Party to preserve, defend, protect, maintain, record or enforce the
Secured Obligations, the Collateral, or the security interest granted hereunder,
including, without limitation, all filing or recording fees, court costs,
collection charges, reasonable attorneys' fees actually incurred and legal
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expenses. Such Debtor shall be liable to Secured Party for any such payment,
which payment shall be deemed an advance by Secured Party to such Debtor, shall
be payable on demand together with interest at the rate then applicable to the
Obligations set forth in the Delta Loan Agreement and shall be part of the
Secured Obligations secured hereby.
(h) Such 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, unless such Debtor has given Secured
Party thirty (30) days' prior written notice of such action. If, after the date
hereof, such Debtor shall (i) obtain any registered trademark, tradename, trade
style, service xxxx and domain 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, tradename, trade
style, service xxxx or domain name registrations or applications for trademark,
tradename, trade style, service xxxx or domain name 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 Secured Party, such Debtor shall promptly execute
and deliver to Secured Party any and all assignments, agreements, instruments,
documents and such other papers as may be requested by Secured Party to evidence
the security interest in such Trademark in favor of Secured Party.
(i) Such Debtor has not abandoned any of the Trademarks and such Debtor
will not do any act, nor omit to do any act, whereby the Trademarks may become
abandoned, invalidated, unenforceable, avoided, or avoidable. Such Debtor shall
notify Secured Party 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) Such Debtor shall render any assistance, as Secured Party shall
determine is necessary, to Secured Party 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 such Debtor's exclusive property and to
protect Secured Party's interest therein, including, without limitation, filing
of renewals, affidavits of use, affidavits of incontestability and opposition,
interference, and cancellation proceedings.
(k) To the best of such Debtor's knowledge, 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 Secured Party, including, without
limitation, the validity, priority or perfection of the security interest
granted herein or the remedies of Secured Party hereunder. Such Debtor shall
promptly notify Secured Party if such 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 Secured Party, such Debtor, at such Debtor's expense, shall join
with Secured Party in such action as Secured Party, in Secured Party's
discretion, may deem advisable for the protection of Secured Party's interest in
and to the Trademarks.
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(l) Such Debtor assumes all responsibility and liability arising from
the use of the Trademarks and such Debtor hereby indemnifies and holds Secured
Party harmless from and against any claim, suit, loss, damage, or expense
(including reasonable attorneys' fees actually incurred and legal expenses)
arising out of any alleged defect in any product manufactured, promoted, or sold
by such Debtor (or any affiliate or subsidiary thereof) in connection with any
Trademark or out of the manufacture, promotion, labelling, sale or advertisement
of any such product by such Debtor (or any affiliate or subsidiary thereof),
except for losses, claims, damages, liabilities, costs or expenses resulting
from the gross negligence or willful misconduct of Secured Party as determined
pursuant to a final non-appealable order of a court of competent jurisdiction.
The foregoing indemnity shall survive the payment of the Secured Obligations,
the termination of this Agreement and the termination or non-renewal of the Loan
Agreements.
(m) Such Debtor shall promptly pay Secured Party for any and all
expenditures made by Secured Party pursuant to the provisions of this Agreement
or for the defense, protection or enforcement of the Secured Obligations, the
Collateral, or the security interests granted hereunder, including, without
limitation, all filing or recording fees, court costs, collection charges,
travel expenses, and reasonable attorneys' fees actually incurred and legal
expenses. Such expenditures shall be payable on demand, together with interest
at the rate then the Obligations set forth in the Delta Loan Agreement and shall
be part of the Secured Obligations secured hereby.
4. EVENTS OF DEFAULT
All Secured Obligations shall become immediately due and payable,
without notice or demand, at the option of Secured Party, upon the occurrence of
any Event of Default, as such term is defined in the Loan Agreements (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 Secured Party,
whether provided under this Agreement, the Soffe Loan Agreement, the Delta Loan
Agreement, the other Financing Agreements, applicable law or otherwise, Secured
Party shall have the following rights and remedies which may be exercised
without notice to, or consent by, any Debtor except as such notice or consent is
expressly provided for hereunder:
(a) Secured Party may require that Debtors and their respective
Affiliates or Subsidiaries not make any use of the Trademarks or any marks
similar thereto for any purpose whatsoever. Secured Party may make use of any
Trademarks for the sale of goods, completion of work-in-process or rendering of
services in connection with enforcing any other security interest granted to
Secured Party by any Debtor or any Subsidiary or Affiliate of any Debtor or for
such other reason as Secured Party may determine.
(b) Secured Party may grant such license or licenses relating to the
Collateral for such term or terms, on such conditions, and in such manner, as
Secured Party shall in its discretion deem appropriate. Such license or licenses
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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) Secured Party 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 Debtors of intended disposition of
Collateral is required by law, the giving of five (5) days' prior written notice
to Debtors of any proposed disposition shall be deemed reasonable notice thereof
and Debtors waives any other notice with respect thereto. Secured Party shall
have the power to buy the Collateral or any part thereof, and Secured Party
shall also have the power to execute assurances and perform all other acts which
Secured Party may, in its discretion, deem appropriate or proper to complete
such assignment, sale, or disposition. In any such event, Debtors 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, Secured Party may at any time execute and deliver on behalf of any
Debtor, pursuant to the authority granted in the Special Power 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. Each Debtor agrees to pay
Secured Party on demand all costs incurred in any such transfer of the
Collateral, including, but not limited to, any taxes, fees, and reasonable
attorneys' fees actually incurred and legal expenses. Each Debtor agrees that
Secured Party has no obligation to preserve rights to the Trademarks against any
other parties.
(e) Secured Party may first apply the proceeds actually received from
any such license, assignment, sale, other disposition or handling of any of the
Collateral to the costs and expenses of Secured Party relating to such license,
assignment, sale, other disposition or handling, including, without limitation,
reasonable attorneys' fees actually incurred and all legal, travel and other
expenses which may be incurred by Secured Party. Thereafter, Secured Party shall
apply any remaining proceeds to such of the Secured Obligations in the order of
application set forth in the Loan Agreements, subject to the provisions of the
Intercreditor Agreement. Debtors shall remain liable to Secured Party for any of
the Secured Obligations remaining unpaid after the application of such proceeds,
and Debtors shall pay Secured Party on demand any such unpaid amount, together
with interest at the rate then the Obligations set forth in the Delta Loan
Agreement and shall be part of the Secured Obligations secured hereby.
(f) Each Debtor shall use commercially reasonable efforts to supply to
Secured Party or to Secured Party's designee such Debtor's knowledge and
expertise relating to the manufacture and sale of the products and services
bearing the Trademarks and such Debtor's customer lists and other records
relating to the Trademarks and the distribution thereof.
(g) Nothing contained herein shall be construed as requiring Secured
Party to take any such action at any time. All of Secured Party'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.
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6. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
(a) The validity, interpretation and enforcement of this Agreement 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 Georgia without giving effect to principles of conflicts of law
or other rule of law that would result in the application of the law of any
jurisdiction other than the State of Georgia.
(b) Each Debtor and Secured Party irrevocably consent and submit to the
non-exclusive jurisdiction of a Georgia State court or Superior court located in
Xxxxxx County, Georgia and the United States District Court for the Northern
District of Georgia and waive any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this
Agreement or in any way connected or related or incidental to the dealings of
Debtors and Secured Party in respect of this Agreement or the transactions
related hereto, in each case whether now existing or thereafter 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 Secured Party shall have the right to bring any action or
proceeding against such Debtor or its property in the courts of any other
jurisdiction which Secured Party deems necessary or appropriate in order to
realize on the Collateral or to otherwise enforce its rights against such Debtor
or its property).
(c) Each Debtor hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by certified
mail (return receipt requested) directed to (i) with respect to Soffe, its
address set forth in the Soffe Loan Agreement, and (ii) with respect to Delta,
its address set forth in the Delta Loan Agreement, and service so made shall be
deemed to be completed five (5) days after the same shall have been so deposited
in the U.S. mails, or, at Secured Party's option, by service upon any Debtor in
any other manner provided under the rules of any such courts. Within thirty (30)
days after such service, any Debtor so served shall appear in answer to such
process, failing which such Debtor shall be deemed in default and judgment may
be entered by Secured Party against such Debtor for the amount of the claim and
other relief requested.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH DEBTOR AND SECURED
PARTY EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF SUCH DEBTOR AND SECURED PARTY
IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY
OR OTHERWISE. EACH DEBTOR AND SECURED PARTY 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 SUCH DEBTOR OR SECURED PARTY MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF SUCH DEBTOR AND SECURED PARTY TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
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(e) Secured Party shall not have any liability to Debtors (whether in
tort, contract, equity or otherwise) for losses suffered by Debtors 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 Secured Party that the losses
were the result of acts or omissions constituting gross negligence or willful
misconduct. In any such litigation, Secured Party 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. Except as prohibited by law, each Debtor waives any right which it
may have to claim or recover in any litigation with Secured Party or any Lender
any special, exemplary, punitive or consequential damages or any damages other
than, or in addition to, actual damages. Each Debtor: (i) certifies that neither
Secured Party, any Lender nor any representative, agent or attorney acting for
or on behalf of Secured Party or any Lender has represented, expressly or
otherwise, that Secured Party and Lenders would not, in the event of litigation,
seek to enforce any of the waivers provided for in this Agreement and (ii)
acknowledges that in entering into this Agreement, Secured Party and Lenders are
relying upon, among other things, the waivers and certifications set forth in
this Section 6(e) and elsewhere herein and therein.
7. MISCELLANEOUS
(a) All notices, requests and demands hereunder shall be given in the
form and manner and to the addresses set forth (i) with respect to Delta and
Secured Party, in the Delta Loan Agreement and (ii) with respect to MJS, in the
Delta Loan Agreement Guarantee; provided, however, that upon termination of the
Delta Loan Agreement, all notices, requests and demands hereunder shall be given
in the form and manner and to the addresses set forth set forth (i) with respect
to MJS and Secured Party, in the Soffe Loan Agreement and (ii) with respect to
Delta, in the Soffe Loan Agreement Guarantee.
(b) Upon the termination of the Delta Loan Agreement, all references
herein to the Delta Loan Agreement shall mean and be a reference to the Soffe
Loan Agreement.
(c) All references to the plural herein shall also mean the singular
and to the singular shall also mean the plural unless the context otherwise
requires. All references to Debtors and Secured Party 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(f) hereof.
(d) This Agreement and any other document referred to herein shall be
binding upon Debtors and their respective successors and assigns and inure to
the benefit of and be enforceable by Secured Party, Lenders and their successors
and assigns, except that no Debtor may assign its rights under this Agreement
and any other Financing Agreement without the prior written consent of Secured
Party.
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(e) 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.
(f) 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 each Debtor and Secured
Party. Secured Party 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 Secured Party. Any such waiver shall be enforceable only to the
extent specifically set forth therein. A waiver by Secured Party 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 Secured Party would
otherwise have on any future occasion, whether similar in kind or otherwise.
(g) 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. Delivery of an executed counterpart of this
Agreement by telefacsimile 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 any such agreement by telefacsimile shall also deliver
an original executed counterpart, but the failure to do so shall not affect the
validity, enforceability or binding effect of such agreement.
(h) Capitalized terms used herein shall have the meanings ascribed to
such terms in the Delta Loan Agreement to the extent not otherwise defined or
limited herein.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Debtors and Secured Party have executed this
Agreement as of the day and year first above written.
MJS ACQUISITION COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President
DELTA APPAREL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Vice President and CFO
CONGRESS FINANCIAL CORPORATION
(SOUTHERN), as agent
By: /s/ Xxxxx X. Xxxxxx
Title: First Vice President
EXHIBIT A
TO
TRADEMARK SECURITY AGREEMENT
LIST OF TRADEMARKS AND TRADEMARK APPLICATIONS
EXHIBIT B
TO
TRADEMARK SECURITY AGREEMENT
LIST OF LICENSES
EXHIBIT C
TO
TRADEMARK SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF GEORGIA )
ss.:
COUNTY OF XXXXXX )
KNOW ALL MEN BY THESE PRESENTS, that [NAME OF DEBTOR] ("Debtor"),
having an office at [ADDRESS OF DEBTOR] hereby appoints and constitutes,
severally, CONGRESS FINANCIAL CORPORATION (SOUTHERN), as agent for the Delta
Lenders (as defined in the hereinafter defined Trademark Security Agreement) and
as agent for the Soffe Lenders (as defined in the hereinafter defined Trademark
Security Agreement) ("Secured Party"), 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,
instruments of assignment or other papers and the taking of any and all other
action which Secured Party, in its discretion, deems necessary or advisable for
the purpose of (a) assigning, selling, or otherwise disposing or handling of all
right, title, and interest of Debtor in and to any Collateral (as defined in the
Trademark Security Agreement) following the occurrence of an Event of Default
under the Trademark Security Agreement, (b) recording, registering and filing
of, or accomplishing any other formality with respect to the foregoing or (c)
exercising the rights and remedies granted to Secured Party under the Trademark
Security Agreement.
2. Execution and delivery of any and all documents, statements,
certificates or other papers and the taking of any and all other action which
Secured Party, 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 Security
Agreement, dated of even date herewith, among Debtor, [NAME OF OTHER DEBTOR] and
Secured Party (the "Trademark Security Agreement") and is subject to the terms
and provisions thereof. This Power of Attorney, being coupled with an interest,
is irrevocable until all "Secured Obligations", as such term is defined in the
Trademark Security Agreement, are paid in full and the Trademark Security
Agreement is terminated in writing by Secured Party.
Dated: October ___, 2003
[NAME OF DEBTOR]
By:
----------------------------------------
Title:
-------------------------------------
STATE OF GEORGIA )
ss.:
COUNTY OF XXXXXX )
On this ____ day of October, 2003, before me personally came , to me
known, who being duly sworn, did depose and say, that he is the
_________________ of [NAME OF DEBTOR], 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.
___________________________
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___________________________ Notary Public
