SECURITY AGREEMENT
Exhibit 4.4
EXECUTION VERSION
THIS SECURITY AGREEMENT (this “Security Agreement”) is entered into as of May 26, 2006, by and among UNIFI, INC., a New York corporation (the “Parent”), each of the Domestic Subsidiaries of the Parent from time to time party hereto (each a “Guarantor” and collectively, the “Guarantors”) ((hereinafter the Parent and Guarantors are collectively referred to as the “Obligors” and individually, as an “Obligor”), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as indenture trustee under the Indenture referred to below for the holders of notes issued pursuant to the Indenture (individually a “Holder” and collectively, the “Holders”) as pledgee, assignee and secured party (in such capacities and together with any successors in such capacity, the “Collateral Agent”).
RECITALS
WHEREAS, pursuant to the Indenture (as amended, modified or supplemented from time to time, the “Indenture”), dated as of May 26, 2006, among the Obligors and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to which the Parent has issued to the Holders its 11 1/2% Senior Secured Notes due 2014, and may issue from time to time additional notes in connection with the provisions of the Indenture (as the same may be amended, restated, replaced, supplemented, substituted, or otherwise modified from time to time, collectively, the “Notes”); and
WHEREAS, it is a condition precedent to the purchase by the Holders of the Notes that that the Obligors shall have executed and delivered this Security Agreement to the Collateral Agent for the ratable benefit of the Holders and the Trustee.
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Indenture, and the following terms which are defined in the Uniform Commercial Code from time to time in effect in the State of New York (the “UCC”) are used herein as so defined: Accessions, Accounts, As-Extracted Collateral, Certificate of Title, Chattel Paper, Commercial Tort Claims, Commodities Intermediary, Consumer Goods, Control, Deposit Accounts, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment Property, Letter-of-Credit Rights, Manufactured Homes, Proceeds, Commodities Intermediary, Securities Intermediary, Software, Supporting Obligations and Tangible Chattel Paper.
(b) In addition, the following terms shall have the following meanings:
“Account Control Agreement” means an agreement among one or more of the Obligors, the Collateral Agent and a Clearing Bank, in form and substance reasonably satisfactory to the Collateral Agent, concerning the collection of payments which represent the proceeds of Accounts or of any other Collateral and which agreement establishes “control” over such payments under the UCC.
“Account Debtor” means each Person obligated in any way on or in connection with an Account, Chattel Paper or General Intangibles (including a payment intangible).
“Assigned Contracts” shall have the meaning set forth in the Credit Agreement.
“Clearing Bank” means any banking institution with whom a Payment Account has been established pursuant to an Account Control Agreement.
“Copyright Licenses” means any written agreement, naming any Obligor as licensor, granting any right under any Copyright including, without limitation, any thereof referred to in Schedule 1(b) hereto.
“Copyrights” means (a) all United States copyrights in all Works, now existing or hereafter created or acquired, whether registered or unregistered, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Copyright Office including, without limitation, any thereof referred to in Schedule 1(b) hereto, and (b) all renewals thereof including, without limitation, any thereof referred to in Schedule Kb) hereto.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
“Intellectual Property” means all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and all other intellectual property of the Obligors.
“Obligations” means any principal, premium, if any, interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization, whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations, damages, guarantees, and other liabilities or amounts payable under the documentation governing any Indebtedness of the Obligors under the Indenture, the Notes and the Collateral Documents or in respect thereto.
“Patent License” means all agreements, whether written or oral, providing for the grant by or to an Obligor of any right to manufacture, use or sell any invention covered by a Patent, including, without limitation, any thereof referred to in Schedule 1(b) hereto.
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“Patents” means (a) all letters patent of the United States or any other country and all reissues and extensions thereof and all goodwill associated therewith, including, without limitation, any thereof referred to in Schedule 1(b) hereto, (b) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, including, without limitation, any thereof referred to in Schedule 1(b) hereto, and (c) all rights to obtain any reissues or extensions of the foregoing.
“Payment Account” means each bank account established pursuant to the Security Agreement, to which the proceeds of Accounts and other Collateral are deposited or credited, and which is maintained in the name of the Collateral Agent, on terms acceptable to the Collateral Agent.
“Secured Obligations” means (a) all Obligations, howsoever evidenced, created, incurred or acquired, whether primary, secondary, direct or indirect, absolute or contingent, or joint and several and (b) all expenses and charges, legal and otherwise, incurred by the Collateral Agent in collecting or enforcing any Obligations or in realizing on or protecting any security therefor, including without limitation the security afforded hereunder.
“Trademark License” means any agreement, written or oral, providing for the grant by or to an Obligor of any right to use any Trademark, including, without limitation, any thereof referred to in Schedule 1(b) hereto.
“Trademarks” means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether 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, or otherwise, including, without limitation, any thereof referred to in Schedule 1(b) hereto, and (b) all renewals thereof.
“Work” means any work which is subject to copyright protection pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral.
(a) To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations, each Obligor hereby grants to the Collateral Agent, for the benefit of the Collateral Agent, the Trustee and the Holders (collectively, the “Secured Parties”‘), a continuing security interest in, and a right to set off against, any and all right, title and interest of such Obligor in and to the following, whether now owned or existing or owned, acquired, or arising hereafter (collectively, the “Collateral”):
(i) all Accounts;
(ii) all cash and cash equivalents;
(iii) all Chattel Paper;
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(iv) those certain Commercial Tort Claims of the Obligors in which an Obligor is the claimant or plaintiff set forth on Schedule 2(a)(iv) attached hereto (as such Schedule may be updated from time to time by the Obligors);
(v) all Copyrights;
(vi) all Copyright Licenses;
(vii) all Deposit Accounts, all Lockbox Accounts, all Payment Accounts and any replacement or successor accounts relating thereto;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all General Intangibles;
(xii) all Goods;
(xiii) all Instruments;
(xiv) all Inventory;
(xv) all Investment Property;
(xvi) all Letter-of-Credit Rights;
(xvii) all Assigned Contracts, as such agreements may be amended, replaced, supplemented or otherwise modified from time to time;
(xviii) all Patents;
(xix) all Patent Licenses;
(xx) all Trademarks;
(xxi) all Trademark Licenses;
(xxii) all Software;
(xxiii) all Supporting Obligations;
(xxiv) all books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and related data processing software (owned by such Obligor or in which it has an interest) that at any time evidence or contain information relating to any Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon;
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(xxv) all other personal property of any kind or type whatsoever owned by such Obligor; and
(xxvi) to the extent not otherwise included, all Accessions, Proceeds and products of any and all of the foregoing.
(b) Each of the Obligors and the Collateral Agent, on behalf of the Secured Parties, hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the Secured Obligations, whether now existing or hereafter arising and (ii) is not to be construed as a present assignment of any Intellectual Property.
(c) Any of the foregoing clauses (a) and (b) of this Section 2 to the contrary notwithstanding, the “Collateral” shall not include, and the security interest granted herein shall not attach to, the Excluded Assets.
3. Provisions Relating to Accounts, Chattel Paper, Contracts and Agreements.
(a) Anything herein to the contrary notwithstanding, each of the Obligors shall remain liable under each of its Accounts, Chattel Paper, contracts and agreements to observe and perform all the conditions and obligations to be observed and performed by it thereunder. Neither the Collateral Agent nor any Secured Party shall have any obligation or liability under any Account (or any agreement giving rise thereto), Chattel Paper, contract or agreement by reason of or arising out of this Security Agreement or the receipt by the Collateral Agent or any Secured Party of any payment relating to such Account, Chattel Paper, contract or agreement pursuant hereto, nor shall the Collateral Agent or any Secured Party be obligated in any manner to perform any of the obligations of an Obligor under or pursuant to any Account (or any agreement giving rise thereto), Chattel Paper, contract or agreement, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), Chattel Paper, contract or agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
(b) At any time and from time to time, the Collateral Agent shall have the right, but not the obligation, to make test verifications of the Accounts and the Chattel Paper in any manner and through any medium that it considers advisable, and the Obligors shall furnish all such assistance and information as the Collateral Agent may reasonably require in connection with such test verifications, to the extent and as provided in the Indenture. Upon the Collateral Agent’s request and at the expense of the Obligors, the Obligors shall cause independent public accountants or others reasonably satisfactory to the Collateral Agent to furnish to the Collateral Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Accounts. The Collateral Agent in its own name or in the name of others may communicate with Account Debtors on the Accounts and the Chattel Paper to verify with them to the Collateral Agent’s satisfaction the existence, amount and terms of any Accounts and
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Chattel Paper (so long as no Event of Default has occurred and is continuing, the Collateral Agent shall notify the Parent concurrently of any such verifications).
4. Representations and Warranties. Each Obligor hereby represents and warrants to the Collateral Agent, for the benefit of the Secured Parties, that so long as any of the Secured Obligations remain outstanding and the Indenture or any Collateral Document is in effect:
(a) Chief Executive Office; Books & Records; Legal Name; State of Formation. Such Obligor’s chief executive office and chief place of business are (and for the prior four months has been) located at the locations set forth on Schedule 4(a)(i) hereto (as updated from time to time), and such Obligor keeps its books and records at such locations. Such Obligor’s exact legal name as registered in its state of formation is as shown in the introductory paragraphs of this Security Agreement, its state of formation is (and for the prior four months has been) the state set forth on Schedule 4(a)(ii) hereto, and its organizational number, if any, assigned by such state is set forth on Schedule 4(a)(ii) hereto. Such Obligor has not, in the past four months, changed its name, been party to a merger, consolidation or other change in structure or used any tradename not disclosed on Schedule 4(a)(ii) attached hereto (as updated from time to time).
(b) Location of Tangible Collateral. The location of all tangible Collateral owned by such Obligor (other than rolling stock, goods out for repair, aircraft and goods in transit) is as shown on Schedule 4(b) (as updated from time to time).
(c) Ownership. Such Obligor is the legal and beneficial owner of its Collateral and has the right to pledge, sell, assign or transfer the same.
(d) Security Interest/Priority. This Security Agreement creates a valid security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, in the Collateral of such Obligor, and, when properly perfected by filing, obtaining possession, the granting of Control to the Collateral Agent or upon compliance with any applicable motor vehicle Certificate of Title statute or act (or similar law providing for the perfection of a security interest in the goods covered by a Certificate of Title) or otherwise under the UCC or by filing an appropriate notice with the United States Patent and Trademark Office or the United States Copyright Office, shall constitute a valid first priority, perfected security interest in such Collateral, to the extent such security interest can be perfected by filing, the granting of Control, or by complying with the provisions of a motor vehicle Certificate of Title statute or act (or similar law) or otherwise under the UCC or by filing an appropriate notice with the United States Patent and Trademark Office or the United States Copyright Office, free and clear of all Liens except for Permitted Liens.
(e) Consents. Except for the filing or recording of UCC financing statements or obtaining Control to perfect the Liens created by this Security Agreement that may be perfected through the filing of a UCC financing statement or obtaining Control, except for complying with the requirements of any applicable motor vehicle Certificate of Title statutes or acts (or similar law providing for the perfection of a security interest in goods covered by a Certificate of Title) and except, in the case of the pledge of Capital Stock of the Foreign Subsidiaries, any consents or authorizations required under applicable foreign
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laws, no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority and no consent of any other Person (including, without limitation, any stockholder, member or creditor of such Obligor), is required (except as such have been duly obtained, made or given and are in full force and effect) (i) for the grant by such Obligor of the security interest in the Collateral granted hereby or for the execution, delivery or performance of this Security Agreement by such Obligor or (ii) for the perfection of such security interest or the exercise by the Collateral Agent of the rights and remedies provided for in this Security Agreement.
(f) Types of Collateral. None of the Collateral consists of, or is the Proceeds of, As-Extracted Collateral, Consumer Goods, Farm Products, Manufactured Homes or standing timber (as such term is used in the UCC).
(g) Accounts. With respect to such Obligor’s Accounts: (i) the goods sold, rented or leased, licensed, or assigned and/or services furnished giving rise to each Account and the Chattel Paper are not subject to any security interest or Lien except the first priority, perfected security interest granted to the Collateral Agent herein and except for Permitted Liens; (ii) each Account and the papers and documents of the applicable Obligor relating thereto are, and all Chattel Paper is, genuine and in all material respects what they purport to be; (iii) each Account and all Chattel Paper arises out of a bona fide transaction for goods sold and delivered (or in the process of being delivered), leased, licensed, or assigned by such Obligor or for services actually rendered by such Obligor, which transaction was conducted in the ordinary course of the Obligor’s business and was completed in accordance with the terms of any documents pertaining thereto; (iv) no Account of such Obligor in excess of $100,000 is evidenced by any Instrument or Chattel Paper unless such Instrument or Chattel Paper has been endorsed over and delivered to, or submitted to the control of, the Collateral Agent; (v) the amount of each Account as shown on the applicable Obligor’s books and records, and on all invoices and statements which may be delivered to the Collateral Agent with respect thereto, is due and payable to such Obligor; (vi) to such Obligors’ knowledge, the account debtor with respect to each Account and the obligor with respect to all Chattel Paper has the capacity to contract; (vii) to such Obligor’s knowledge, there are no proceedings or actions which are threatened or pending against any Account Debtor whose business is material to the Obligors and their Subsidiaries taken as a whole which are reasonably likely to have a material adverse change in such Account Debtor’s financial condition or the collectibility of Accounts owing by it to the Obligors, (viii) no payment will be received with respect to any Account, and no credit, discount, or extension, or agreement therefor will be granted on any Account, except as reported in Borrowing Base Certificates, as defined in, and as delivered pursuant to the Credit Agreement to the administrative agent and the lenders thereunder; and (ix) no surety bond was required or given in connection with any Account or any Chattel Paper of such Obligor or the contracts or purchase orders out of which they arose.
(h) Inventory. None of such Obligor’s Inventory is held by a third party (other than another Obligor) pursuant to consignment, sale or return, sale on approval or similar arrangement. All of each Obligor’s Inventory has been produced in compliance in all material respects with all requirements of the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder.
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(i) Intellectual Property.
(i) Schedule 1(b) hereto includes all registrations or issuances for all Copyrights, Patents, and Trademarks, and all applications therefor, which are owned by such Obligor as of the date hereof and to the extent material to any legitimate business purpose of such Obligor, all Trademark Licenses, Copyright Licenses and Patent Licenses to which such Obligor is a party. Schedule 1(b) shows the place, if any, in which each such Copyright, Patent and Trademark is registered.
(ii) Except as set forth on Schedule 1(b) hereto, to the knowledge of such Obligor, all Intellectual Property of such Obligor is valid, subsisting, unexpired, enforceable and has not been abandoned, and such Obligor is legally entitled to use each of its Trademarks.
(iii) Except as set forth on Schedule 1(b) hereto, none of such Obligor’s Intellectual Property is the subject of any licensing or franchise agreement that is material to any legitimate business purpose of such Obligor.
(iv) To the knowledge of such Obligor, no holding, decision or judgment has been rendered by any Governmental Authority which would materially limit, cancel or question the validity of any Intellectual Property of such Obligor.
(v) To the knowledge of such Obligor, no action or proceeding is pending seeking to limit, cancel or question the validity of any Intellectual Property of such Obligor in any material respect, or which, if adversely determined, would have a material adverse effect on the value of any such Intellectual Property.
(vi) To the knowledge of such Obligor, all applications pertaining to such Obligor’s Intellectual Property that is material to any legitimate business purpose of such Obligor have been duly and properly filed, and all registrations or letters pertaining to such Intellectual Property have been duly and properly filed and issued, and all such Intellectual Property is valid and enforceable.
(vii) Such Obligor has not made any assignment or agreement respecting any of its Intellectual Property which would conflict with the security interest of the Collateral Agent in such Intellectual Property granted hereunder, except as permitted by the Indenture or the Collateral Documents.
(j) Documents, Instruments and Chattel Paper. All Documents, Instruments and Chattel Paper describing, evidencing or constituting Collateral are, to such Obligor’s knowledge, complete, valid, and genuine in all material respects.
(k) Equipment. With respect to such Obligor’s Equipment: (i) such Obligor has good and marketable title thereto; and (ii) all such Equipment is in normal operating condition and repair, subject to normal wear and tear, and is suitable for the uses to which it is customarily put in the conduct of such Obligor’s business.
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(l) Restrictions on Security Interest. Except for restrictions under the Intercreditor Agreement, the Collateral Documents and the security agreements and collateral documents relating to the Credit Agreement, such Obligor is not party to any license or other agreements which would materially limit the Collateral Agent’s (or any of the Collateral Agent’s transferees) right to sell, lease, or otherwise use any Inventory or Equipment upon the Collateral Agent’s proper exercise of its remedies hereunder and under the other Collateral Documents.
(m) Purchase of Collateral. Within the 12-month period preceding the Issue Date, none of the Obligors has purchased any of the Collateral consisting of goods in a bulk transfer or in a transaction which was outside the ordinary course of the business of such Obligor’s seller.
(n) Commercial Tort Claims. On the date hereof, except to the extent listed on Schedule 2(a)(iv) hereto, no Obligor has rights in any Commercial Tort Claim with potential value in excess of $100,000.
Upon the filing of a financing statement covering any Commercial Tort Claim and describing such Commercial Tort Claim with specificity referred to in Section 5(n) hereof against such Obligor in the jurisdiction specified in Schedule 4(a)(ii) hereto, the security interest granted in such Commercial Tort Claim will constitute a valid perfected security interest in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, as collateral security for such Obligor’s Secured Obligations, enforceable in accordance with the terms hereof against all creditors of such Obligor and any Persons purporting to purchase such Collateral from Obligor, which security interest shall be prior to all other Liens on such Collateral except for unrecorded liens permitted by the Indenture which have priority over the Liens on such Collateral by operation of law.
5. Covenants. Each Obligor covenants that, so long as any of the Secured Obligations remain outstanding and the Indenture or any Collateral Document is in effect, such Obligor shall:
(a) Payment of Obligations. Such Obligor will pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including, without limitation, claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Obligor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein.
(b) Other Liens. Defend the Collateral against the claims and demands of all other parties claiming an interest therein, and keep the Collateral free from all Liens, except for Permitted Liens. Such Obligor shall not sell, exchange, transfer, assign, lease or otherwise dispose of any of the Collateral or any interest therein, except as permitted under the Indenture or the other Collateral Documents.
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(c) Preservation of Collateral. Keep the Collateral in good order, condition and repair in all material respects, reasonable wear and tear and casualty excepted; not use the Collateral in violation of the provisions of this Security Agreement; not use the Collateral in violation of any other agreement relating to the Collateral or any policy insuring the Collateral or any applicable statute, law, bylaw, rule, regulation or ordinance; not permit any Collateral to be or become a fixture to real property or an accession to other personal property unless the Collateral Agent has a valid, perfected and first priority security interest for the benefit of the Collateral Agent and the Secured Parties in such real or personal property; and not, without the prior written consent of the Collateral Agent, alter or remove any identifying symbol or serial number on its Equipment or, if any, on its Inventory.
(d) Possession or Control of Certain Collateral. If (i) any amount in excess of $100,000 payable under or in connection with any of the Collateral shall be or become evidenced by any Instrument, Tangible Chattel Paper or Supporting Obligation or (ii) if any Collateral shall be stored or shipped subject to a Document or (iii) if any Collateral shall consist of Investment Property in the form of certificated securities, immediately notify the Collateral Agent of the existence of such Collateral and, at the request of the Collateral Agent, deliver such Instrument, Chattel Paper, Supporting Obligation, Document or Investment Property to the Collateral Agent, duly endorsed in a manner satisfactory to the Collateral Agent (or, with respect to certificated securities, provide duly executed blank stock powers in such form as may be reasonably requested by the Collateral Agent), to be held as Collateral pursuant to this Security Agreement. If any Collateral shall consist of Deposit Accounts, Chattel Paper in electronic form, Letter-of- Credit Rights or uncertificated Investment Property, execute and deliver (and, with respect to any Collateral consisting of uncertificated Investment Property, cause the Securities Intermediary or Commodities Intermediary with respect to such Investment Property to execute and deliver) to the Collateral Agent all control agreements, assignments, instruments or other documents as reasonably requested by the Collateral Agent for the purposes of obtaining and maintaining Control of such Collateral.
(e) Changes in Corporate Structure or Location. Except as otherwise permitted in the Indenture, not, without providing thirty (30) days prior written notice to the Collateral Agent and without filing (or confirming that the Collateral Agent has filed) such amendments to any previously filed financing statements as the Collateral Agent may reasonably require, (i) alter its corporate existence or, in one transaction or a series of transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets, (ii) change its state of incorporation or formation, (iii) change its registered corporate name, (iv) change the location of its chief executive office and chief place of business (as well as its books and records) from the locations set forth on Schedule 4(a)(i) hereto or (v) change the location of its Collateral from the locations set forth for such Obligor on Schedule 4(b) hereto.
(f) Inspections, Field Audits, Appraisals, Etc. Allow the Collateral Agent to conduct inspections, field audits and appraisals to the extent permitted under the terms of the Indenture.
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(g) Perfection of Security Interest. Such Obligor hereby authorizes the Collateral Agent to prepare and file such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto or other instruments as the Collateral Agent may from time to time reasonably deem necessary or appropriate to perfect and maintain the security interests granted hereunder in accordance with the UCC and, subject to Permitted Liens, to ensure the first priority of such security interests. Any financing statement filed by the Collateral Agent may contain a general description of the collateral covered thereby, as permitted by the UCC, which states that the security interest attaches to all personal property or to all assets of the debtor. Such Obligor shall from time to time upon request by the Collateral Agent also execute and deliver to the Collateral Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Collateral Agent may reasonably request) and do all such other things as the Collateral Agent may reasonably deem necessary or appropriate (i) to assure the Collateral Agent that its security interests hereunder are perfected and, subject to Permitted Liens, of the first priority, including, without limitation, (A) such financing statements (including renewal statements and in lieu statements) or amendments thereof or supplements thereto or other instruments as the Collateral Agent may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder and to ensure the first priority (subject to Permitted Liens) thereof in accordance with the UCC, (B) with regard to Copyrights, a Grant of Security Interest in Copyright Rights for filing with the United States Copyright Office in the form of Schedule 5(f)(i) attached hereto, (C) with regard to Patents, a Grant of Security Interest in Patent Rights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(ii) attached hereto and (D) with regard to Trademarks, a Grant of Security Interest in Trademark Rights for filing with the United States Patent and Trademark Office in the form of Schedule 5(f)(iii) attached hereto, (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure the Collateral Agent of its rights and interests hereunder. In the event for any reason the law of any jurisdiction other than New York becomes or is applicable to the Collateral of any Obligor or any part thereof, or to any of the Secured Obligations, such Obligor agrees from time to time upon request of the Collateral Agent to execute and deliver all such instruments and to do all such other things as the Collateral Agent reasonably deems necessary or appropriate to preserve, protect and enforce the security interests of the Collateral Agent and the first priority thereof (subject to Permitted Liens) under the law of such other jurisdiction (and, if such Obligor shall fail to do so promptly upon the request of the Collateral Agent, then the Collateral Agent may execute any and all such requested documents on behalf of such Obligor pursuant to the power of attorney granted hereinabove). Such Obligor agrees to xxxx its books and records to reflect the security interest of the Collateral Agent in the Collateral.
(h) Collateral Held by Warehouseman, Bailee, etc. If any Collateral in excess of $100,000 is at any time in the possession or control of a warehouseman, bailee or any agent or processor of such Obligor, (i) notify the Collateral Agent of such possession, (ii) notify such Person of the Collateral Agent’s security interest for the benefit of the Collateral Agent and the Secured Parties in such Collateral, (iii) instruct such Person to hold all such Collateral for the Collateral Agent’s account subject to the Collateral
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Agent’s instructions and (iv) use commercially reasonable efforts to obtain a signed acknowledgment of the Collateral Agent’s Liens from such Person.
(i) Treatment of Accounts.
(i) Comply with all reporting requirements set forth in the Indenture with respect to Accounts.
(ii) Not grant or extend the time for payment of any Account, or compromise or settle any Account for less than the full amount thereof, or release any person or property, in whole or in part, from payment thereof, or allow any credit or discount thereon, other than as normal and customary in the ordinary course of such Obligor’s business.
(iii) Maintain at its principal place of business a record of Accounts consistent with its customary business practices.
(iv) (A) So long as no Event of Default shall have occurred and be continuing, if an Account Debtor returns any Inventory to such Obligor, promptly determine the reason for such return and issue a credit memorandum to the Account Debtor in the appropriate amount, and (B) upon the occurrence of any Event of Default and during the continuation thereof, upon the request of the Collateral Agent, (1) hold as trustee for the Collateral Agent any merchandise which is returned by a customer or Account Debtor or otherwise recovered, (2) segregate all returned Inventory from all of its other property, (3) dispose of the returned Inventory solely according to the Collateral Agent’s written instructions and (4) not issue any credits or allowances with respect thereto without the Collateral Agent’s prior written consent. All returned Inventory shall be subject to the Collateral Agent’s Liens thereon. Whenever any Inventory is returned, the related Account shall be deemed ineligible to the extent of the amount owing by the Account Debtor with respect to such returned Inventory.
(v) With respect to any disputes and claims in excess of $250,000 with any Account Debtor, settle, contest, or adjust such dispute or claim at no expense to the Collateral Agent. No discount, credit or allowance shall be granted to any such Account Debtor without the Collateral Agent’s prior written consent, except for discounts, credits and allowances made or given in the ordinary course of such Obligor’s business so long as no Event of Default shall exist or be continuing. At all times upon the occurrence of any Event of Default and during the continuation thereof, the Collateral Agent may (but shall not be required to) settle or adjust disputes and claims directly with Account Debtors for amounts and upon terms which the Collateral Agent shall consider advisable.
(j) [Intentionally Omitted]
(k) Covenants Relating to Inventory.
(i) Maintain, keep and preserve its Inventory in good salable condition at its own cost and expense, in accordance with the provisions of the Indenture.
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(ii) Comply with all reporting requirements set forth in the Indenture with respect to Inventory.
(iii) If any Inventory is at any time evidenced by a Document, promptly upon request by the Collateral Agent, deliver such document of title to the Collateral Agent.
(iv) Conduct a physical or cycle count of the Inventory at least once per fiscal year, and after the occurrence of an Event of Default and the continuation thereof, at such other times as the Collateral Agent requests.
(v) Maintain a perpetual inventory reporting system at all times.
(vi) Not sell any inventory on a xxxx-a-hold, guaranteed sale, sale and return, sale on approval, consignment or other repurchase return basis without the consent of the Collateral Agent.
(l) Covenants Relating to Copyrights.
(i) Employ the Copyright for each Work with such notice of copyright as may be required by law to secure copyright protection.
(ii) Except as permitted under Section 12.07 of the Indenture, not do any act or knowingly omit to do any act (either by itself or through a licensee) whereby any material Copyright may become invalidated or otherwise impaired and (A) not do any act, or knowingly omit to do any act, whereby any material Copyright may become injected into the public domain; (B) notify the Collateral Agent immediately if it knows, or has reason to know, that any material Copyright may become forfeited, abandoned or injected into the public domain or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any court or tribunal in the United States or any other country) regarding such Obligor’s ownership of any such Copyright or its validity; (C) take all necessary steps as it shall deem appropriate under the circumstances, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of each material Copyright owned by such Obligor including, without limitation, filing of applications for renewal where necessary; and (D) promptly notify the Collateral Agent of any material infringement of any material Copyright of such Obligor of which it becomes aware and take such actions as it shall reasonably deem appropriate under the circumstances to protect such Copyright, including, where appropriate, the bringing of suit for infringement, seeking injunctive relief and seeking to recover any and all damages for such infringement.
(iii) Not make any assignment or agreement in conflict with the security interest in the Copyrights of such Obligor hereunder.
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(m) Covenants Relating to Patents and Trademarks.
(i) (A) Continue to use each Trademark material to any legitimate purpose of such Obligor’s business in such a manner as to maintain such Trademark in full force free from any claim of abandonment for non-use, (B) maintain as in the past the quality of products and services offered under such Trademark, (C) employ such Trademark with the appropriate notice of registration as required by law, (D) not adopt or use any xxxx which is confusingly similar or a colorable imitation of such Trademark unless the Collateral Agent, for the benefit of the Secured Parties, shall obtain a perfected security interest in such xxxx pursuant to this Security Agreement, and (E) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any Trademark may become invalidated.
(ii) Except as permitted under Section 12.07 of the Indenture, not do any act, or omit to do any act, whereby any Patent may become abandoned or dedicated to the public domain.
(iii) Promptly notify the Collateral Agent if it knows, or has reason to know, that any application or registration relating to any Patent or Trademark material to any legitimate purpose of such Obligor’s business may become abandoned or dedicated to the public domain, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or any court or tribunal in any country but not including routine office actions issued by the United States Patent and Trademark Office) regarding such Obligor’s ownership of any such Patent or Trademark or its right to register the same or to keep, maintain and use the same.
(iv) Whenever such Obligor, either by itself or through an agent, employee, licensee or designee, shall file an application for the registration of any Patent or Trademark with the United States Patent and Trademark Office or any similar office or agency in any other country or any political subdivision thereof, such Obligor shall report such filing to the Collateral Agent within five (5) Business Days after the last day of the fiscal quarter in which such filing occurs. Upon request of the Collateral Agent, such Obligor shall execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Collateral Agent’s and the Security Parties’ security interest in any Patent or Trademark and the goodwill and general intangibles of such Obligor relating thereto or represented thereby.
(v) Take all reasonable and necessary steps, including, without limitation, 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 and pursue each application (and to obtain the relevant registration) and to maintain each registration of the Patents and Trademarks material to any legitimate purpose of such Obligor’s business, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.
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(vi) Promptly notify the Collateral Agent after it learns that any Patent or Trademark material to any legitimate purpose of such Obligor’s business included in the Collateral is infringed, misappropriated or diluted by a third party and, if such Obligor deems it necessary in its reasonable business judgment, promptly 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, or take such other actions as it shall reasonably deem appropriate under the circumstances to protect such Patent or Trademark.
(vii) Not make any assignment or agreement in conflict with the security interest in the Patents or Trademarks of such Obligor created hereunder or under the Indenture or any other Collateral Document.
(viii) Not (either itself or through a licensee) do any act that knowingly uses any material Patent or Trademark to infringe the intellectual rights of any other Person.
(n) New Patents, Copyrights and Trademarks. Promptly provide the Collateral Agent with (i) a listing of all applications, if any, for new U.S. federal Copyrights, Patents or Trademarks (together with a listing of the issuance of registrations or letters on present applications), which new applications and issued registrations or letters shall be subject to the terms and conditions hereunder, and (ii) (A) with respect to Copyrights, a duly executed Grant of Security Interest in Copyright Rights, (B) with respect to Patents, a duly executed Grant of Security Interest in Patent Rights, (C) with respect to Trademarks, a duly executed Grant of Security Interest in Trademark Rights or (D) such other duly executed documents as the Collateral Agent may request in a form acceptable to the Collateral Agent and suitable for recording to evidence the security interest in the Copyright, Patent or Trademark which is the subject of such new application.
(o) Commercial Tort Claims; Notice of Litigation. (i) Promptly forward to the Collateral Agent written notification of any and all Commercial Tort Claims in excess of $100,000, including, but not limited to, any and all actions, suits, and proceedings before any court or Governmental Authority by or affecting such Obligor and (ii) execute and deliver such statements, documents and notices and do and cause to be done all such things as may be required by the Collateral Agent, or required by law, including all things which may from time to time be necessary under the UCC to fully create, preserve, perfect and protect the priority of the Collateral Agent’s security interest in any Commercial Tort Claims.
(p) Bank Accounts. At all times, maintain the Payment Accounts and any replacement or successor accounts relating thereto in accordance with the terms hereof and of the Account Control Agreements and to be applied as set forth herein and in the applicable Account Control Agreement, as appropriate. All amounts on deposit in the Payment Accounts and any replacement or successor account relating thereto shall be subject to the Lien of the Collateral Agent hereunder.
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(q) Insurance. Insure, repair and replace the Collateral of such Obligor as set forth in the Indenture. All insurance proceeds shall be subject to the security interest of the Collateral Agent hereunder.
(r) Covenants Relating to Assigned Contracts. Fully perform all of such Obligor’s obligations under each of the Assigned Contracts, and enforce all of its rights and remedies thereunder, in each case, as it deems appropriate in its business judgment; provided, however, that such Obligor shall not take any action or fail to take any action with respect to its Assigned Contracts which would cause the termination of a material Assigned Contract. Without limiting the generality of the foregoing, such Obligor shall take all action necessary or appropriate to permit, and shall not take any action which would have any materially adverse effect upon, the full enforcement of all indemnification rights under its Assigned Contracts. If such Obligor shall fail after the Collateral Agent’s demand to pursue diligently any right under its Assigned Contracts, or if an Event of Default has occurred and is continuing, the Collateral Agent may directly enforce such right in its own or such Obligor’s name and may enter into such settlements or other agreements with respect thereto as the Collateral Agent shall determine. In any suit, proceeding or action brought by the Collateral Agent, for the benefit of the Secured Parties, under any Assigned Contract for any sum owing thereunder or to enforce any provision thereof, such Obligor shall indemnify and hold the Collateral Agent and Secured Parties harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaims, recoupment, or reduction of liability whatsoever of the obligor thereunder arising out of a breach by such Obligor of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing from such Obligor to or in favor of such obligor or its successors. All such obligations of such Obligor shall be and remain enforceable only against such Obligor and shall not be enforceable against the Collateral Agent or the Secured Parties. Notwithstanding any provision hereof to the contrary, such Obligor shall at all times remain liable to observe and perform all of its duties and obligations under its Assigned Contracts, and the Collateral Agent’s exercise of any of its rights with respect to the Collateral shall not release such Obligor from any of such duties and obligations. Neither the Collateral Agent nor any Secured Party shall be obligated to perform or fulfill any of the Obligors’ duties or obligations under the Assigned Contracts or to make any payment thereunder, or to make any inquiry as to the nature or sufficiency of any payment or property received by it thereunder or the sufficiency of performance by any party thereunder, or to present or file any claim, or to take any action to collect or enforce any performance, any payment of any amounts, or any delivery of any property.
6. Special Provisions Relating to Accounts. Anything herein to the contrary notwithstanding, each of the Obligors shall remain liable under each of the Accounts to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise to each such Account. Neither the Collateral Agent nor any Secured Party shall have any obligation or liability under any Account (or any agreement giving rise thereto) by reason of or arising out of this Security Agreement or the receipt by the Collateral Agent or any Secured Party of any payment relating to such Account pursuant hereto, nor shall the Collateral Agent or any Secured Party be obligated in any manner to perform any of the obligations of an Obligor under or pursuant to any Account (or any agreement giving rise thereto), to make any payment, to make any inquiry as to the nature or the
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sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Account (or any agreement giving rise thereto), to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
7. Special Provisions Regarding Inventory.
(a) Notwithstanding anything to the contrary contained in this Security Agreement, each Obligor may, unless and until an Event of Default occurs and is continuing and the Collateral Agent instructs such Obligor otherwise, without further consent or approval of the Collateral Agent, use, consume, sell, rent, lease and exchange the Inventory in the ordinary course of its business as presently conducted or otherwise as permitted by Section 12.07 of the Indenture, whereupon, in the case of such a sale or exchange, the security interest created hereby in the Inventory so sold or exchanged (but not in any proceeds arising from such sale or exchange) shall cease immediately without any further action on the part of the Collateral Agent.
(b) Upon the issuance of Notes under the Indenture, each Obligor shall be deemed to have warranted that all warranties of such Obligor set forth in this Security Agreement with respect to its Inventory are true and correct in all material respects with respect to such Inventory, including without limitation that such Inventory is located at a location set forth on Schedule 4(b) hereto (as such Schedule may be updated from time to time to reflect new locations).
8. Performance of Obligations; Advances by Collateral Agent. On failure of any Obligor to perform any of the covenants and agreements contained herein, the Collateral Agent may, at its sole option and in its sole discretion, perform or cause to be performed the same and in so doing may (but shall have no obligation to do so) expend such sums as the Collateral Agent may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien (other than a Permitted Lien), expenditures made in defending against any adverse claim (other than a Permitted Lien) and all other expenditures which the Collateral Agent may make for the protection of the security interest hereof or may be compelled to make by operation of law. All such sums and amounts so expended shall be repayable by the Obligors on a joint and several basis promptly upon timely notice thereof and demand therefor, shall constitute additional Secured Obligations and shall bear interest from the date said amounts are expended at the interest rate provided in Section 4.01 of the Indenture. No such performance of any covenant or agreement by the Collateral Agent on behalf of any Obligor, and no such advance or expenditure therefor, shall relieve the Obligors of any default under the terms of this Security Agreement, the Indenture or the other Collateral Documents. The Collateral Agent may make any payment hereby authorized in accordance with any xxxx, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such xxxx, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the extent such payment is being contested in good faith by an Obligor in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
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9. Events of Default.
An Event of Default under the Indenture shall be an Event of Default hereunder (an “Event of Default”).
10. Remedies.
(a) General Remedies. Upon the occurrence of an Event of Default and during continuation thereof, the Collateral Agent and the Secured Parties shall have, in addition to the rights and remedies provided herein, in the Indenture, in the Collateral Documents, or by law (including, but not limited to, levy of attachment, garnishment and the rights and remedies set forth in the Uniform Commercial Code of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, the Collateral Agent may, with or without judicial process or the aid and assistance of others, (i) enter on any premises on which any of the Collateral may be located and, without resistance or interference by the Obligors, take possession of the Collateral, (ii) dispose of any Collateral on any such premises, (iii) require the Obligors to assemble and make available to the Collateral Agent at the expense of the Obligors any Collateral at any place and time designated by the Collateral Agent which is reasonably convenient to both parties, (iv) remove any Collateral from any such premises for the purpose of effecting sale or other disposition thereof, and/or (v) without demand and without advertisement, notice, hearing or process of law, all of which each of the Obligors hereby waives to the fullest extent permitted by law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale, by one or more contracts, in one or more parcels, for cash, upon credit or otherwise, at such prices and upon such terms as the Collateral Agent deems advisable, in its sole discretion. Neither the Collateral Agent’s compliance with any applicable state or federal law in the conduct of such sale, nor its disclaimer of any warranties relating to the Collateral shall be considered to affect the commercial reasonableness of such sale. In addition to all other sums due the Collateral Agent and the Secured Parties with respect to the Secured Obligations, the Obligors shall pay the Collateral Agent all costs and expenses incurred by the Collateral Agent, including, but not limited to, reasonable attorneys’ fees and court costs, in obtaining or liquidating the Collateral, in enforcing payment of the Secured Obligations, or in the prosecution or defense of any action or proceeding by or against the Collateral Agent or the Secured Parties or the Obligors concerning any matter arising out of or connected with this Security Agreement, any Collateral or the Secured Obligations, including, without limitation, any of the foregoing arising in, arising under or related to a case under any bankruptcy, insolvency or similar law. To the extent the rights of notice cannot be legally waived hereunder, each Obligor agrees that any requirement of reasonable notice shall be met if such notice is personally served on or mailed, postage prepaid, to the Obligors in accordance with the notice provisions of Section 13.02 of the Indenture at least ten (10) days before the time of sale or other event giving rise to the requirement of such notice. The Collateral Agent and the Secured Parties shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by law, the Collateral Agent and any Secured Party may be a purchaser at any such sale. To the extent permitted by applicable law, each of the Obligors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable law, the Collateral Agent may postpone or
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cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by law, be made at the time and place to which the sale was postponed, or the Collateral Agent may further postpone such sale by announcement made at such time and place.
(b) Remedies Relating to Accounts. Upon the occurrence of an Event of Default and during the continuation thereof, whether or not the Collateral Agent has exercised any or all of its rights and remedies hereunder, the Collateral Agent shall have the right to (i) enforce any Obligor’s rights against any Account Debtors and obligors on such Obligor’s Accounts (ii) notify (or cause its designee to notify) any Obligor’s customers and Account Debtors that the Accounts of such Obligor have been assigned to the Collateral Agent or of the Collateral Agent’s security interest therein, (iii) (either in its own name or in the name of an Obligor or both) demand, collect (including, without limitation, through the Payment Accounts), receive, take receipt for, sell, xxx for, compound, settle, compromise and give acquittance for any and all amounts due or to become due on any Account, and (iv) in the Collateral Agent’s discretion, file any claim or take any other action or proceeding to protect and realize upon the security interest of the Secured Parties in the Accounts. Each Obligor acknowledges and agrees that the Proceeds of its Accounts remitted to or on behalf of the Collateral Agent in accordance with the provisions hereof shall be solely for the Collateral Agent’s own convenience and that such Obligor shall not have any right, title or interest in such Proceeds or in any such other amounts except as expressly provided herein. The Collateral Agent and the Secured Parties shall have no liability or responsibility to any Obligor for acceptance of a check, draft or other order for payment of money bearing the legend “payment in full” or words of similar import or any other restrictive legend or endorsement or be responsible for determining the correctness of any remittance. The Collateral Agent shall have no obligation to apply or give credit for any item included in proceeds of Accounts or other Collateral until the applicable Clearing Bank has received final payment therefor at its offices in cash. However, if the Collateral Agent does permit credit to be given for any item prior to a Clearing Bank receiving final payment therefor and such Clearing Bank fails to receive such final payment or an item is charged back to the Collateral Agent or any Clearing Bank for any reason, the Collateral Agent may at its election in either instance charge the amount of such item back against any such Payment Accounts, together with interest thereon at a rate per annum equal to the interest rate provided in Section 4.01 of the Indenture. Each Obligor hereby agrees to indemnify the Collateral Agent and the Secured Parties from and against all liabilities, damages, losses, actions, claims, judgments, costs, expenses, charges and reasonable attorneys’ fees suffered or incurred by the Collateral Agent or the Secured Parties (each, an “Indemnified Party”) because of the maintenance of the foregoing arrangements except as relating to or arising out of the gross negligence or willful misconduct of an Indemnified Party or its officers, employees or agents. In the case of any investigation, litigation or other proceeding, the foregoing indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by an Obligor, its directors, shareholders or creditors or an Indemnified Party or any other Person or any other Indemnified Party is otherwise a party thereto. The Collateral Agent shall have no liability or responsibility to any Obligor for a Clearing Bank accepting any check, draft or other order for payment of money bearing the legend “payment in full” or words of similar import or any other restrictive legend or
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endorsement whatsoever or be responsible for determining the correctness of any remittance (it being understood that this sentence shall in no way affect the liability or responsibility of any such Clearing Bank).
(c) Access. In addition to the rights and remedies hereunder, upon the occurrence of an Event of Default and during the continuation thereof, the Collateral Agent shall have the right to enter and remain upon the various premises of the Obligors without cost or charge to the Collateral Agent, and use the same, together with materials, supplies, books and records of the Obligors for the purpose of collecting and liquidating the Collateral, or for preparing for sale and conducting the sale of the Collateral, whether by foreclosure, auction or otherwise. In addition, the Collateral Agent may remove Collateral, or any part thereof, from such premises and/or any records with respect thereto, in order to effectively collect or liquidate such Collateral. If the Collateral Agent exercises its right to take possession of the Collateral, each Obligor shall also at its expense perform any and all other steps reasonably requested by the Collateral Agent to preserve and protect the security interest hereby granted in the Collateral, such as placing and maintaining signs indicating the security interest of the Collateral Agent, appointing overseers for the Collateral and maintaining inventory records.
(d) Nonexclusive Nature of Remedies. Failure by the Collateral Agent or the Secured Parties to exercise any right, remedy or option under this Security Agreement, the Indenture, any other Collateral Document or as provided by law, or any delay by the Collateral Agent or the Secured Parties in exercising the same, shall not operate as a waiver of any such right, remedy or option. No waiver hereunder shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated, which in the case of the Collateral Agent or the Secured Parties shall only be granted as provided herein. To the extent permitted by law, neither the Collateral Agent, the Secured Parties, nor any party acting as attorney for the Collateral Agent or the Secured Parties, shall be liable hereunder for any acts or omissions or for any error of judgment or mistake of fact or law other than their gross negligence or willful misconduct hereunder. The rights and remedies of the Collateral Agent and the Secured Parties under this Security Agreement shall be cumulative and not exclusive of any other right or remedy which the Collateral Agent or the Secured Parties may have.
(e) Retention of Collateral. The Collateral Agent may, after providing the notices required by Section 9-620 of the UCC or otherwise complying with the requirements of applicable law of the relevant jurisdiction, accept or retain the Collateral in full or partial satisfaction of the Secured Obligations. Unless and until the Collateral Agent shall have provided such notices, however, the Collateral Agent shall not be deemed to have retained any Collateral in satisfaction of any Secured Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any sale, collection or realization are insufficient to pay all amounts to which the Collateral Agent or the Secured Parties are legally entitled, the Obligors shall be jointly and severally liable for the deficiency together with interest thereon at the interest rate provided in Section 4.01 of the Indenture, together with the costs of collection and the reasonable fees of any
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attorneys employed by the Collateral Agent to collect such deficiency. Any surplus remaining after the full payment and satisfaction of the Secured Obligations shall be returned to the Obligors or to whomsoever a court of competent jurisdiction shall determine to be entitled thereto.
(g) Other Security. To the extent that any of the Secured Obligations are now or hereafter secured by property other than the Collateral (including, without limitation, real and personal property owned by an Obligor), or by a guarantee, endorsement or property of any other Person, then the Collateral Agent and the Secured Parties shall have the right to proceed against such other property, guarantee or endorsement upon the occurrence of any Event of Default, and the Collateral Agent and the Secured Parties have the right, in their sole discretion, to determine which rights, security, liens, security interests or remedies the Collateral Agent and the Secured Parties shall at any time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way modifying or affecting any of them or any of the Collateral Agent’s and the Secured Parties’ rights or the Secured Obligations under this Security Agreement, the Indenture or under any other of the Collateral Documents.
Notwithstanding the foregoing provisions of this Section 10, for the purpose of this Section 10, “Collateral” shall include any “intent to use” trademark application only to the extent (i) that the business of the Obligor, or parties thereof, to which that xxxx pertains is also included in the Collateral and (ii) that such business is ongoing and existing.
11. Rights of the Collateral Agent.
(a) Power of Attorney. Each Obligor hereby designates and appoints the Collateral Agent, on behalf of the Secured Parties, and each of its designees or agents, as attorney-in-fact of such Obligor, irrevocably and with power of substitution, with authority to take any or all of the following actions upon the occurrence and during the continuation of an Event of Default:
(i) to demand, collect, settle, compromise, adjust, give discharges and releases, all as the Collateral Agent may reasonably determine;
(ii) to commence and prosecute any actions at any court for the purposes of collecting any Collateral and enforcing any other right in respect thereof;
(iii) to defend, settle, adjust or compromise any action, suit or proceeding brought and, in connection therewith, give such discharge or release as the Collateral Agent may deem reasonably appropriate;
(iv) to receive, open and dispose of mail addressed to an Obligor and endorse checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to the Collateral of such Obligor, or securing or relating to such Collateral, on behalf of and in the name of such Obligor;
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(v) to sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any Collateral or the goods or services which have given rise thereto, as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes;
(vi) to adjust and settle claims under any insurance policy relating thereto;
(vii) to execute and deliver all assignments, conveyances, statements, financing statements, renewal financing statements, security agreements, affidavits, notices and other agreements, instruments and documents that the Collateral Agent may determine necessary in order to perfect and maintain the security interests and liens granted in this Security Agreement and in order to fully consummate all of the transactions contemplated herein;
(viii) to institute any foreclosure proceedings that the Collateral Agent may deem appropriate; and
(ix) to do and perform all such other acts and things as the Collateral Agent may reasonably deem to be necessary, proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be irrevocable so long as any of the Secured Obligations remain outstanding, the Indenture or any Collateral Document is in effect. The Collateral Agent shall be under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to the Collateral Agent in this Security Agreement, and shall not be liable for any failure to do so or any delay in doing so. The Collateral Agent shall not be liable for any act or omission or for any error of judgment or any mistake of fact or law in its individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or willful misconduct. This power of attorney is conferred on the Collateral Agent solely to protect, preserve and realize upon its security interest in the Collateral.
(b) Assignment by the Collateral Agent. Subject to the terms of the Indenture, the Collateral Agent may from time to time assign the Secured Obligations and any portion thereof and/or the Collateral and any portion thereof, and the assignee shall be entitled to all of the rights and remedies of the Collateral Agent under this Security Agreement in relation thereto.
(c) The Collateral Agent’s Duty of Care. Other than the exercise of reasonable care to assure the safe custody of the Collateral while being held by the Collateral Agent hereunder, the Collateral Agent shall not have any duty or liability to preserve rights pertaining thereto, it being understood and agreed that the Obligors shall be responsible for preservation of all rights in the Collateral, and the Collateral Agent shall be relieved of all responsibility for the Collateral upon surrendering it or tendering the surrender of it to the Obligors. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its
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possession if the Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property, which shall be no less than the treatment employed by a reasonable and prudent agent in the industry, it being understood that the Collateral Agent shall have no responsibility for taking any necessary steps to preserve rights against any parties with respect to any of the Collateral. In the event of a public or private sale of Collateral pursuant to Section 10 hereof, the Collateral Agent shall have no obligation to clean-up, repair or otherwise prepare the Collateral for sale.
(d) Grant of License to use Intellectual Property. For the purpose of enabling the Collateral Agent to exercise rights and remedies under Section 10 hereof (including, without limiting the terms of Section 10 hereof, in order to take possession of, hold, preserve, process, assemble, prepare for sale, market for sale, sell or otherwise dispose of Collateral) at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each Obligor hereby grants to the Collateral Agent, for the benefit of itself and the Secured Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to any Grantor) to use, license or sublicense any Intellectual Property now owned or hereafter acquired by any Obligor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof.
12. Application of Proceeds. Any amounts on deposit in the Lockbox Accounts, the Payment Accounts, or any other deposit account over which the Collateral Agent has Control, and any replacement or successor accounts relating thereto, as applicable, shall be applied by the Collateral Agent in accordance with the terms of the Indenture, this Security Agreement and the Lockbox Agreements or Account Control Agreements relating thereto. Upon the occurrence and during the continuation of an Event of Default (a) any payments in respect of the Secured Obligations and any proceeds of the Collateral, when received by the Collateral Agent in cash or its equivalent, will be applied in reduction of the Secured Obligations as set forth in the Indenture and (b) each Obligor irrevocably waives the right to direct the application of such payments and proceeds and acknowledges and agrees that the Collateral Agent shall have the continuing and exclusive right to apply and reapply any and all such payments and proceeds in the Collateral Agent’s sole discretion, notwithstanding any entry to the contrary upon any of its books and records.
13. Costs of Counsel. If at any time hereafter, whether upon the occurrence of an Event of Default or not, the Collateral Agent employs counsel to prepare or consider amendments, waivers or consents with respect to this Security Agreement, or to take action or make a response in or with respect to any legal or arbitral proceeding relating to this Security Agreement or relating to the Collateral, or to protect the Collateral or exercise any rights or remedies under this Security Agreement or with respect to the Collateral, then the Obligors agree to promptly pay upon demand any and all such reasonable out-of-pocket costs and expenses of the Collateral Agent, all of which costs and expenses shall constitute Secured Obligations hereunder.
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14. Continuing Agreement.
(a) This Security Agreement shall be a continuing agreement in every respect and shall remain in full force and effect so long as any of the Secured Obligations remain outstanding and the Indenture or any Collateral Document is in effect. Upon such payment and termination, this Security Agreement shall be automatically terminated and the Collateral Agent shall, upon the request and at the expense of the Obligors, forthwith release all of its liens and security interests hereunder and shall execute, if necessary, and deliver all UCC termination statements and/or other documents reasonably requested by the Obligors evidencing such termination. Notwithstanding the foregoing all releases and indemnities provided hereunder shall survive termination of this Security Agreement. In addition, the Collateral Agent shall be permitted to release (i) Liens on the Collateral as and to the extent permitted or required under the Indenture and the Intercreditor Agreement and (ii) any Obligor that ceases to become an Obligor in accordance with the terms of the Indenture.
(b) This Security Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Collateral Agent as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, all as though such payment had not been made; provided that in the event payment of all or any part of the Secured Obligations is rescinded or must be restored or returned, all reasonable costs and expenses (including without limitation any reasonable legal fees and disbursements) incurred by the Collateral Agent in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations.
15. Amendments; Waivers; Modifications. This Security Agreement and the provisions hereof may not be amended, waived, modified, changed, discharged or terminated except as set forth in Article 9 of the Indenture.
16. Successors in Interest. This Security Agreement shall create a continuing security interest in the Collateral and shall be binding upon each of the parties hereto, and their respective successors and assigns, and shall inure, together with all rights and remedies of each of the parties hereto and their respective permitted successors and assigns; provided that none of the Obligors may assign its rights or delegate its duties hereunder without the prior written consent of the Collateral Agent, as required by the Indenture. To the fullest extent permitted by law, each Obligor hereby releases the Collateral Agent and each Secured Party, each of their respective officers, employees and agents and each of their respective successors and assigns, from any liability for any act or omission relating to this Security Agreement or the Collateral, except for any liability arising from the gross negligence or willful misconduct of the Collateral Agent or such Secured Party or their respective officers, employees and agents.
17. Notices. All notices required or permitted to be given under this Security Agreement shall be in conformance with Section 13.02 of the Indenture.
18. Counterparts. This Security Agreement may be executed in any number of counterparts, each of which where so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Security Agreement to produce or account for more than one such counterpart.
24
19. Headings. The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning, construction or interpretation of any provision of this Security Agreement.
20. Governing Law; Submission to Jurisdiction and Service of Process; Arbitration. THIS SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The terms of Sections 13.07 and 13.08 of the Indenture are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
21. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OBLIGOR AND THE COLLATERAL AGENT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS SECURITY AGREEMENT, THE INDENTURE, THE OTHER COLLATERAL DOCUMENTS OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
22. Severability. If any provision of any of the Security Agreement is determined to be illegal, invalid or unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable provisions.
23. Entirety. This Security Agreement, the Indenture and the other Collateral Documents represent the entire agreement of the parties hereto and thereto with respect to the Collateral other than the Pledged Collateral (as such term is defined in the Pledge Agreement), and supersede all prior agreements and understandings, oral or written, if any, including any commitment letters or correspondence relating to the Indenture, the Collateral Documents or the transactions contemplated herein and therein.
24. Survival. All representations and warranties of the Obligors hereunder shall survive the execution and delivery of this Security Agreement, the Indenture, the other Collateral Documents and the issuance of the Notes under the Indenture.
25. Joint and Several Obligations of Obligors.
(a) Each of the Obligors is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Secured Parties under the Indenture, for the mutual benefit, directly and indirectly, of each of the Obligors and in consideration of the undertakings of each of the Obligors to accept joint and several liability for the obligations of each of them.
(b) Each of the Obligors jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Obligors with respect to the payment and performance of all of the Secured Obligations arising under this Security Agreement, the Indenture and the other Collateral Documents, it being the intention of the parties hereto that all the Secured Obligations shall be the joint and several obligations of each of the Obligors without preferences or distinction among them.
25
(c) Notwithstanding any provision to the contrary contained herein or in the Indenture or any other of the Collateral Documents, to the extent the obligations of an Obligor shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the obligations of such Obligor hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, any bankruptcy, insolvency or similar law).
(d) To the extent permitted by applicable law, each of the Obligors hereby waives any and all suretyship defenses.
26. Pledge Agreement Provision. Notwithstanding anything herein to the contrary, in the event of any conflict between the terms of this Agreement and the Pledge Agreement with respect to Pledged Collateral, the terms of the Pledge Agreement shall govern.
27. Marshalling. Neither the Collateral Agent nor any Secured Party shall be under any obligation to marshal any assets in favor of any Obligor or any other Person or against or in payment of any or all of the Secured Obligations. •
28. Intercreditor Provision. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Collateral Agent pursuant to this Security Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, as the same may be amended, supplemented, modified or replaced from time to time. In the event of any conflict between the terms of the Intercreditor Agreement and this Security Agreement, the terms of the Intercreditor Agreement shall govern.
29. Control Collateral Agent. It is hereby understood and agreed that, pursuant to the Intercreditor Agreement, the Collateral Agent has appointed Bank of America, N.A. as its agent for the limited purpose perfecting the Collateral Agent’s lien on certain Collateral described herein.
[remainder of page intentionally left blank]
26
Each of the parties hereto has caused a counterpart of this Security Agreement to be duly executed and delivered as of the date first above written.
| OBLIGORS: | UNIFI, INC., a New York corporation | |||||||
| UNIFI SALES & DISTRIBUTION, INC., | ||||||||
| UNIFI MANUFACTURING, INC., | ||||||||
| GLENTOUCH YARN COMPANY, LLC, | ||||||||
| UNIFI MANUFACTURING VIRGINIA, LLC, | ||||||||
| UNIFI EXPORT SALES, LLC, | ||||||||
| UNIFI TEXTURED POLYESTER, LLC, | ||||||||
| UNIFI INTERNATIONAL SERVICE, INC., | ||||||||
| UNIFI KINSTON, LLC (formerly Unifi Equipment Leasing, LLC), a North Carolina limited liability company, | ||||||||
| UNIFI TECHNICAL FABRICS, LLC, | ||||||||
| CHARLOTTE TECHNOLOGY GROUP, INC., | ||||||||
| UTG SHARED SERVICES, INC. | ||||||||
| UNIMATRIX AMERICAS, LLC, | ||||||||
| SPANCO INDUSTRIES, INC., | ||||||||
| SPANCO INTERNATIONAL, INC., | ||||||||
| By: | /s/ Xxxxxxx XxXxx | |||||||
| Name: | Xxxxxxx XxXxx | |||||||
| Title: | Vice President | |||||||
Accepted and agreed to as of the date first above written.
| U.S. BANK NATIONAL ASSOCIATION as Collateral Agent | ||||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||||
| Name: | Xxxxxxx Xxxxxxxx | |||||||
| Title: | Vice President | |||||||
SCHEDULE 1(b)
INTELLECTUAL PROPERTY
Patents
| Country |
Patent Title |
Application No. | Filing Date | |||
| Brazil | Continuous Constant Tension Air Covering | PI0502574-5 | 6/30/2005 | |||
| Columbia | Continuous Constant Tension Air Covering | 05.062.898 | 6/27/2005 | |||
| United States | Continuous Constant Tension Air Covering | 11/076,441 | 03/09/2005 | |||
| United States | Method for Forming Polyester Yarns | 11/259,447 | 10/26/2005 | |||
| United States | Securing and Pressuring System for Drafting Rollers for Automated Textile Drafting System* | 5,761,772 | 7/19/1996 |
| * | The interests of this patent is at best partially owned and is listed here for disclosure purposes only, and shall not constitute part of the Collateral. |
Trademarks
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Argentina | X.X.X. | 2.619.932 | 09/26/2005 | Pending | ||||||||
| Argentina | AUGUSTA | 2.619.933 | 09/26/2005 | Pending | ||||||||
| Argentina | CATCH MOVE RELEASE | 2.619.934 | 09/26/2005 | Pending | ||||||||
| Argentina | ECLYPSE | 2.619.935 | 09/26/2005 | Pending | ||||||||
| Argentina | MYNX | 2.619.936 | 09/26/2005 | Pending | ||||||||
| Argentina | NOVVA | 2.619.937 | 09/26/2005 | Pending | ||||||||
| Argentina | REFLEXX | 2.619.938 | 09/26/2005 | Pending | ||||||||
| Argentina | SORBTEK | 2.619.939 | 09/26/2005 | Pending | ||||||||
| Argentina | SULTRA | 2.619.940 | 09/26/2005 | Pending | ||||||||
| Argentina | MICROMATTIQUE | 11859077 | 10/14/1992 | 1597868 | 04/29/1996 | Registered Renewal due 04/29/2006 | ||||||
| Argentina | MICROMATTIQUE | 1859078 | 10/14/1992 | 1597958 | 04/29/1996 | Registered Renewal due 04/29/2006 | ||||||
| Argentina | MICROMATTIQUE | 1859076 | 10/14/1992 | 1597867 | 04/29/1996 | Registered Renewal due 04/29/2006 | ||||||
| Argentina | MICROMATTIQUE | 1859075 | 10/14/1992 | 1597866 | 04/29/1996 | Registered Renewal due 04/29/2006 | ||||||
| Argentina | SHEERTECH | 1,995,425 | 08/15/1995 | 1,605,743 | 07/10/1996 | Registered Renewal due 07/10/2006 | ||||||
| Argentina | UNIFI | 1,853,497 | 08/20/1992 | 1,978,902 | 04/26/2004 | Registered Renewal due 04/26/2014 | ||||||
| Argentina | UNIFI QUALITY THROUGH PRIDE & Design | 2,183,521 | 10/28/1998 | 1,771,922 | 01/25/2000 | Registered Renewal due 01/25/2010 | ||||||
| Australia | SHEERTECH | 667391 | 07/21/1995 | 667391 | Registered | |||||||
| Bangladesh | X.X.X. | 89823 | 01/30/2005 | Pending | ||||||||
| Bangladesh | MYNX | 84824 | 01/30/2005 | Pending | ||||||||
| Bangladesh | REFLEXX | 89825 | 01/30/2005 | Pending | ||||||||
| Bangladesh | SORBTEK | 89822 | 01/30/2005 | Pending | ||||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Brazil | MICROMATTIQUE | 816400300 | 09/20/1991 | 816400300 | 06/01/1993 | Registered (renewal applied for 04/24/2004) | ||||||
| Brazil | MICROMATTIQUE | 816400318 | 09/20/1991 | 816400318 | 06/01/1993 | Registered (renewal applied for 04/24/2004) | ||||||
| Brazil | MICROMATTIQUE | 817170014 | 04/07/1993 | 817170014 | 07/26/1994 | Registered (renewal applied for 11/18/2004) | ||||||
| Brazil | SEDORA | 827784058 | 09/22/2005 | Pending | ||||||||
| Brazil | SHEERTECH | 818741732 | 08/21/1995 | 818741732q | 10/21/1997 | Registered Renewal due 10/21/2007 | ||||||
| Brazil | UNIFI | 816930074 | 10/02/1992 | 816930074 | 10/22/1996 | Registered Renewal due 10/22/2006 | ||||||
| Canada | AIO | 1,273,872 | 09/23/2005 | Pending | ||||||||
| Canada | XXX | 1,273,870 | 09/23/2005 | Pending | ||||||||
| Canada | AUGUSTA | 1,273,869 | 09/23/2005 | Pending | ||||||||
| Canada | CATCH MOVE RELEASE | 1,273,871 | 09/23/2005 | Pending | ||||||||
| Canada | MicroVista | 1,273,868 | 09/23/2005 | Pending | ||||||||
| Canada | MICROMATTIQUE | 0688314 | 08/23/1991 | TMA 407487 |
01/29/1993 | Registered Renewal due 01/29/2008 | ||||||
| Canada | MYNX | 1,273,867 | 09/23/2005 | Pending | ||||||||
| Canada | REFLEXX | 1,273,866 | 09/23/2005 | Pending | ||||||||
| Canada | SATURA & Design | 1,273,863 | 09/23/2005 | Pending | ||||||||
| Canada | SEDORA | 1270831 | 08/29/2005 | Pending | ||||||||
| Canada | SHEERTECH | 788,278 | 07/24/1995 | TMA 501,717 |
10/02/1998 | Registered Renewal due 10/02/2013 | ||||||
| Canada | SORBTEK | 1,273,865 | 09/23/2005 | Pending | ||||||||
| Chile | MICROMATTIQUE | 444895 | 04/01/1999 | 552,446 | 11/08/1999 | Registered Renewal due 11/08/2009 | ||||||
| Chile | UNIFI | 224,741 | 11/09/1992 | 677,112 | 10/29/2003 | Registered Renewal due 10/29/2013 | ||||||
| China | AIO | 4907035 | 09/20/2005 | Pending | ||||||||
| China | X.X.X. | 4461870 | 01/13/2005 | Pending | ||||||||
| China | CATCH MOVE RELEASE | 4741298 | 06/24/2005 | Pending | ||||||||
| China | CATCH MOVE RELEASE & Design | 4741297 | 06/24/2005 | Pending | ||||||||
| China | MicroVista | 4698600 | 06/03/2005 | Pending | ||||||||
| China | MYNX | 4461869 | 01/13/2005 | Pending | ||||||||
| China | REFLEXX | 4461871 | 01/13/2005 | Pending | ||||||||
| China | SEDORA | 4860665 | 08/26/2005 | Pending | ||||||||
| China | SORBTEK | 4461868 | 01/13/2005 | Pending | ||||||||
| China | UNIFI | 4384336 | 11/26/2004 | Pending | ||||||||
| China | UNIFI ASIA LTD. | 4384337 | 11/26/2004 | Pending | ||||||||
| Colombia | X.X.X. | 05-054140 | 06/03/2005 | Pending | ||||||||
| Country |
Xxxx |
Serial No. | Filing Date | Ree. No. | Issue Date | Status | ||||||
| Colombia | AUGUSTA | 05-054145 | 06/03/2005 | 307680 | 12/23/2005 | Registered Renewal due 12/23/2015 | ||||||
| Colombia | CATCH MOVE RELEASE | 05-055955 | 06/09/2005 | 307674 | 12/22/2005 | Registered Renewal due 12/22/2015 | ||||||
| Colombia | CATCH MOVE RELEASE & Design | 05-056478 | 06/10/2005 | 307442 | 12/20/2005 | Registered Renewal due 12/20/2015 | ||||||
| Colombia | ECLYPSE | 05-054149 | 06/03/2005 | Pending | ||||||||
| Colombia | MICROMATTIQUE | 94049194 | 10/28/1994 | 175045 | 03/09/1995 | Registered Renewal due 03/09/2015 | ||||||
| Colombia | MICROMATTIQUE | 94049193 | 10/28/1994 | 175046 | 03/09/1995 | Registered Renewal due 03/09/2015 | ||||||
| Colombia | MICROMATTIQUE | 94049192 | 10/28/1994 | 175047 | 03/09/1995 | Registered Renewal due 03/09/2015 | ||||||
| Colombia | MYNX | 05-054144 | 06/03/2005 | 307679 | 12/23/2005 | Registered Renewal due 12/23/2015 | ||||||
| Colombia | NOVVA | 05-054139 | 06/03/2005 | 307678 | 12/23/2005 | Registered Renewal due 12/23/2015 | ||||||
| Colombia | REFLEXX | 05-054111 | 06/03/2005 | 307677 | 12/23/2005 | Registered Renewal due 12/23/2015 | ||||||
| Colombia | SEDORA | 05-084018 | 08/24/2005 | Pending | ||||||||
| Colombia | SORBTEK | 05-054150 | 06/03/2005 | 307681 | 12/23/2005 | Registered Renewal due 12/23/2015 | ||||||
| Colombia | SULTRA | 05-054146 | 06/03/2005 | Pending | ||||||||
| Colombia | UNIFI | 366,748 | 08/28/1992 | 173,015 | 12/29/1994 | Registered Renewal due 12/29/2014 | ||||||
| Ecuador | MICROMATTIQUE | 51302 | 10/25/1994 | 1-4364-95 | 12/18/1995 | Registered Renewal due 12/18/2005 | ||||||
| Ecuador | MICROMATTIQUE | 51301 | 10/25/1994 | 1-4363-95 | 12/18/1995 | Registered Renewal due 12/18/2005 | ||||||
| Ecuador | MICROMATTQUE | 51297 | 10/25/1994 | 1-4359-95 | 12/18/1995 | Registered Renewal due 12/18/2005 | ||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Ecuador | UNIFI | 34584 | 10/01/1992 | 3135-93 | 11/30/1993 | Registered Renewal due 11/30/2013 | ||||||
| France | FYBERSERV | 013115568 | 08/06/2001 | 013115568 | 01/11/2002 | Registered Renewal due 08/06/2011 | ||||||
| France | FYBERSERV & Design | 013115743 | 08/06/2001 | 013115743 | 01/11/2002 | Registered Renewal due 08/06/2011 | ||||||
| France | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | 013115740 | 08/06/2001 | 013115740 | 01/11/2002 | Registered Renewal due 08/06/2011 | ||||||
| France | STAY CONNECTED, MOVE AHEAD | 013115569 | 08/06/2001 | 013115569 | 01/11/2002 | Registered Renewal due 08/06/2011 | ||||||
| France | UNIFI | 92/435904 | 09/30/1992 | 92435904 | 09/30/1992 | Registered Renewal due 09/30/2012 | ||||||
| European Community | AIO | 4690392 | 10/19/2005 | Pending | ||||||||
| European Community | X.X.X. | 4463675 | 05/31/2005 | Pending | ||||||||
| European Community | AUGUSTA | 4464186 | 05/31/2005 | Pending | ||||||||
| European Community | CATCH MOVE RELEASE | 4493276 | 06/13/2005 | Pending | ||||||||
| European Community | CATCH MOVE RELEASE & Design | 4493251 | 06/13/2005 | Pending | ||||||||
| European Community | ECLYPSE | 4464178 | 05/31/2005 | Pending | ||||||||
| European Community | MYNX | 4463923 | 05/31/2005 | Pending | ||||||||
| European Community | REFLEXX | 4463774 | 05/31/2005 | Pending | ||||||||
| European Community | SORBTEK | 4463758 | 05/31/2005 | Pending | ||||||||
| European Community | UNIFI | 004722161 | 11/03/2005 | Pending | ||||||||
| Germany | FYBERSERV | 30148480.5 | 08/06/2001 | 30148480 | 10/15/2001 | Registered Renewal due 08/31/2011 | ||||||
| Germany | FYBERSERV & Design | 30148529.1 | 08/07/2001 | 30148529 | 02/27/2002 | Registered Renewal due 08/31/2011 | ||||||
| Germany | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | 30148528.3 | 08/07/2001 | 30145828 | 02/27/2002 | Registered Renewal due 08/31/2011 | ||||||
| Germany | STAY CONNECTED, MOVE AHEAD | 30148481.3 | 08/06/2001 | 30148481 | 10/15/2001 | Registered Renewal due 08/31/2011 | ||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Great Britain | FYBERSERV | 2277027 | 08/02/2001 | 2277027 | 06/21/2002 | Registered Renewal due 08/02/2011 | ||||||
| Great Britain | FYBERSERV & Design | 2277233 | 08/06/2001 | 2277233 | 07/05/2002 | Registered Renewal due 08/06/2011 | ||||||
| Great Britain | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | 2277776 | 08/13/2001 | 2277776 | 08/02/2002 | Registered Renewal due 08/13/2011 | ||||||
| Great Britain | STAY CONNECTED, MOVE AHEAD | 2277055 | 08/03/2001 | 2277055 | 08/02/2002 | Registered Renewal due 08/03/2011 | ||||||
| Great Britain | UNIFI | 1509329 | 08/11/1992 | 1509329 | 08/11/1992 | Registered Renewal due 08/11/2009 | ||||||
| Great Britain | UNIFI QUALITY THROUGH PRIDE and design | 1514810 | 10/05/1992 | 1514810 | 12/10/93 | Registered | ||||||
| Hong Kong | AIO | 300496657 | 09/16/2005 | Pending | ||||||||
| Hong Kong | X.X.X. | 300343070 | 12/23/2004 | 300343070 | 12/23/2004 | Registered Renewal due by 12-22-2014 | ||||||
| Hong Kong | MicroVista | 300432053 | 06/02/2005 | Pending | ||||||||
| Hong Kong | MYNX | 300343106 | 12/23/2004 | 300343106 | 12/23/2004 | Registered Renewal due by 12-22-2014 | ||||||
| Hong Kong | REFLEXX | 300343089 | 12/23/2004 | 300343089 | 12/23/2004 | Registered Renewal due by 12-22-2014 | ||||||
| Hong Kong | SEDORA | 300483057 | 08/24/2005 | 300483057 | 08/24/2005 | Registered | ||||||
| Hong Kong | SORBTEK | 300343061 | 12/23/2004 | 300343061 | 12/23/2004 | Registered Renewal due by 12-22-2014 | ||||||
| India | X.X.X. | 1334822 | Published | |||||||||
| India | CATCH MOVE RELEASE | 1369759 | 07/08/2005 | Pending | ||||||||
| India | CATCH MOVE RELEASE & Design | 1381488 | 09/01/2005 | Pending | ||||||||
| India | MicroVista | 1369197 | 07/06/2005 | Published | ||||||||
| India | MYNX | 1334823 | Published | |||||||||
| India | REFLEXX | 1334824 | Pending | |||||||||
| India | SORBTEK | 1334825 | Pending | |||||||||
| Indonesia | X.X.X. | X00 0000 00800 00804 |
01/12/2005 | Pending | ||||||||
| Indonesia | CATCH MOVE RELEASE | D00 2005 010763 |
07/06/2005 | Pending | ||||||||
| Indonesia | CATCH MOVE RELEASE & Design | X00 0000 009788 |
06/28/2005 | Pending | ||||||||
| Xxxxxxxxx | XxxxxXxxxx | X00 0000 010762 |
07/06/2005 | |||||||||
| Indonesia | MYNX | X00 0000 00798 00802 |
01/12/2005 | Pending | ||||||||
| Indonesia | REFLEXX | X00 0000 00799 00803 |
01/12/2005 | Pending | ||||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Indonesia | SORBTEK | X00 0000 00797 00801 |
01/12/2005 | Pending | ||||||||
| Ireland | FYBERSERV | 2001/2411 | 08/02/2001 | 223308 | 11/15/2002 | Registered Renewal due 08/02/2011 | ||||||
| Ireland | FYBERSERV & Design | 2001/02507 | 08/07/2001 | 223310 | 11/15/2002 | Registered Renewal due 08/07/2011 | ||||||
| Ireland | STAY CONNECTED, MOVE AHEAD | 2001/02480 | 08/03/2001 | 223309 | 11/15/2002 | Registered Renewal due 08/03/2011 | ||||||
| Ireland | UNIFI | 4248/92 | 08/10/1992 | 151,080 | 04/02/1992 | Registered Renewal due 04/02/2009 | ||||||
| Ireland | UNIFI QUALITY THROUGH PRIDE & Design | 155291 | 09/29/1992 | 155,291 | 07/29/1992 | Registered Renewal due 07/27/2009 | ||||||
| Italy | FYBERSERV | T02001C002643 | 08/24/2001 | Pending | ||||||||
| Italy | FYBERSERV & Design | T02001C002796 | 08/24/2001 | Pending | ||||||||
| Italy | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | T02001C002797 | 08/24/2001 | Pending | ||||||||
| Italy | STAY CONNECTED, MOVE AHEAD | T02001C002644 | 08/06/2001 | Pending | ||||||||
| Japan | X.X.X. | 2004-118995 | 12/28/2004 | 4872892 | 06/17/2005 | Registered | ||||||
| Japan | CATCH MOVE RELEASE | 2005-052152 | 06/10/2005 | 4918168 | 12/22/2005 | Registered Renewal due by 6/22/2015 | ||||||
| Japan | CATCH MOVE RELEASE & Design | 2005-57243 | 06/10/2005 | 4918178 | 12/22/2005 | Registered Renewal due by 6/22/2015 | ||||||
| Japan | MicroVista | 2005-050087 | 06/06/2005 | Pending | ||||||||
| Japan | MYNX | 2004-118993 | 12/28/2004 | 4872891 | 06/17/2005 | Registered | ||||||
| Japan | SORBTEK | 2004-118992 | 12/28/2004 | 4872890 | 06/17/2005 | Registered | ||||||
| Korea | X.X.X. | 00-0000-00000 | 12/24/2004 | Allowed | ||||||||
| Korea | CATCH MOVE RELEASE | 2005-26536 | 06/10/2005 | Pending | ||||||||
| Korea | CATCH MOVE RELEASE & Design | 2005-26534 | 06/10/2005 | Pending | ||||||||
| Korea | REFLEXX | 00-0000-00000 | 12/24/2004 | Allowed | ||||||||
| Korea | SORBTEK | 00-0000-00000 | 12/24/2004 | 642090 | 12/06/2005 | Registered | ||||||
| Korea | MICROVISTA and design | 4020050025437 | 06/03/2005 | Pending | ||||||||
| Mexico | X.X.X. | 741413 | 09/26/2005 | 904,577 | 10/24/2005 | Registered Renewal due 9/26/2015 | ||||||
| Mexico | AUGUSTA | 741414 | 09/26/2005 | 904,578 | 10/24/2005 | Registered Renewal due 9/26/2015 | ||||||
| Mexico | CATCH MOVE RELEASE | 741415 | 09/26/2005 | Pending | ||||||||
| Xxxxxx | XxxxxXxxxx | 000000 | 09/26/2005 | 904,579 | 10/24/2005 | Registered Renewal due 9/26/2015 | ||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Mexico | MYNX | 741417 | 09/26/2005 | 904,580 | 10/24/2005 | Registered Renewal due 9/26/2015 | ||||||
| Mexico | REFLEXX | 741418 | 09/26/2005 | Pending | ||||||||
| Mexico | SATURA & Design | 741419 | 09/26/2005 | 908479 | 11/18/2005 | Registered Renewal due 9/26/2015 | ||||||
| Mexico | SEDORA | 736469 | 08/26/2005 | 907,973 | 11/16/2005 | Registered Renewal due 8/26/2015 | ||||||
| Mexico | SHEERTECH | 240367 | 08/17/1995 | 536712 | 11/25/96 | Registered | ||||||
| Mexico | SORBTEK | 741420 | 09/26/2005 | 904,856 | 10/25/2005 | Registered Renewal due 9/26/2015 | ||||||
| Mexico | UNIFI | 150,693 | 09/20/1992 | 442,683 | 09/24/1993 | Registered Renewal due 09/20/2012 | ||||||
| Mexico | UNIFI QUALITY THROUGH PRIDE | 151139 | 09/30/1992 | 452154 | 2/11/94 | Registered | ||||||
| Pakistan | X.X.X. | 204668 | 01/07/2005 | Pending | ||||||||
| Pakistan | MYNX | 204667 | 01/07/2005 | Pending | ||||||||
| Pakistan | REFLEXX | 204666 | 01/07/2005 | Pending | ||||||||
| Pakistan | SORBTEK | 204665 | 01/07/2005 | Pending | ||||||||
| Peru | MICROMATTIQUE | 254083 | 11/03/1994 | 13023 | 01/31/1995 | Registered Renewal due 01/31/2015 | ||||||
| Peru | MICROMATTIQUE | 254085 | 11/03/1994 | 12758 | 01/24/1995 | Registered Renewal due 01/24/2015 | ||||||
| Peru | MICROMATTIQUE | 254084 | 11/03/1994 | 13392 | 02/14/1995 | Registered Renewal due 02/14/2015 | ||||||
| Peru | UNIFI | 245,707 | 07/01/1994 | 011676 | 12/02/1994 | Registered Renewal due 12/02/2014 | ||||||
| South Africa | X.X.X. | 2005120285 | 09/26/2005 | Pending | ||||||||
| South Africa | CATCH MOVE RELEASE | 2005120286 | 09/26/2005 | Pending | ||||||||
| South Africa | MYNX | 2005120287 | 09/26/2005 | Pending | ||||||||
| South Africa | REFLEXX | 2005120288 | 09/26/2005 | Pending | ||||||||
| South Africa | SORBTEK | 2005120289 | 09/26/2005 | Pending | ||||||||
| Spain | FYBERSERV | 2573364 | 12/22/2003 | 2573364 | 07/13/2004 | Registered Renewal due 12/22/2013 | ||||||
| Spain | FYBERSERV & Design | 2420948 | 08/13/2001 | 2420948 | 10/07/2002 | Registered Renewal due 08/13/2011 | ||||||
| Spain | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | 2420947 | 08/13/2001 | 2420947 | 10/07/2002 | Registered Renewal due 08/13/2011 | ||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| Spain | STAY CONNECTED, MOVE AHEAD | 2420083 | 08/07/2001 | 2420083 | 09/16/2003 | Registered Renewal due 08/07/2011 | ||||||
| Taiwan | X.X.X. | 93060497 | 12/27/2004 | 1173649 | 09/16/2005 | Granted | ||||||
| Taiwan | CATCH MOVE RELEASE | 94027783 | 06/10/2005 | Pending | ||||||||
| Taiwan | CATCH MOVE RELEASE & Design | 94027784 | 06/10/2005 | Pending | ||||||||
| Xxxxxx | XxxxxXxxxx | 00000000 | 00/00/0000 | Xxxxxxx | ||||||||
| Xxxxxx | MYNX | 93060496 | 12/27/2004 | 1173648 | 09/16/2005 | Granted | ||||||
| Taiwan | SORBTEK | 93060494 | 12/27/2004 | 1173646 | 09/16/2005 | Granted | ||||||
| Taiwan | REFLEXX | 93060495 | 12/24/2004 | 1173647 | 09/16/2005 | Granted | ||||||
| Thailand | X.X.X. & Design | 585908 | 03/29/2005 | Pending | ||||||||
| Thailand | CATCH MOVE RELEASE | 593616 | 06/15/2005 | Pending | ||||||||
| Thailand | CATCH MOVE RELEASE & Design | 593617 | 06/15/2005 | Pending | ||||||||
| Thailand | MicroVista | 592822 | 06/08/2005 | Pending | ||||||||
| Thailand | MYNX | 577955 | 01/05/2005 | Pending | ||||||||
| Thailand | REFLEXX | 577956 | 01/05/2005 | Pending | ||||||||
| Thailand | SORBTEK | 577957 | 01/05/2005 | Pending | ||||||||
| Turkey | X.X.X. | 2005/45693 | 10/21/2005 | Pending | ||||||||
| Turkey | CATCH MOVE RELEASE | 2005/45694 | 10/21/2005 | Pending | ||||||||
| Turkey | MYNX | 2005/45695 | 10/21/2005 | Pending | ||||||||
| Turkey | REFLEXX | 2005/45696 | 10/21/2005 | Pending | ||||||||
| Turkey | SORBTEK | 2005/45697 | 10/21/2005 | Pending | ||||||||
| United States | AIO & Design | 78/666,601 | 07/08/2005 | Xxxxxxx | ||||||||
| Xxxxxx Xxxxxx | XXX | 00/000,000 | 00/00/0000 | Xxxxxxx | ||||||||
| Xxxxxx Xxxxxx | X.X.X. | 76/364,872 | 01/31/2002 | 2,738,677 | 07/15/2003 | Registered 8 &15 Declaration due 07/15/2009 | ||||||
| United States | AUGUSTA | 76/192,695 | 01/11/2001 | 2,737,792 | 07/15/2003 | Registered 8 &15 Declaration due 07/15/2009 | ||||||
| United States | AVADA | 78/310,167 | 10/07/2003 | 2,877,731 | 08/24/2004 | Registered 8 &15 Declaration due 08/24/2010 | ||||||
| United States | CATCH MOVE RELEASE | 78/670,154 | 07/14/2005 | Pending | ||||||||
| United States | CIELO | 78/326,706 | 11/12/2003 | 2,897,488 | 10/26/2004 | Registered 0 &00 Xxxxxxxxxxx xxx 00/00/0000 | ||||||
| Xxxxxx Xxxxxx | DUO-TWIST | 75/342,817 | 08/18/1997 | 2,430,200 | 02/20/2001 | Registered 8 &15 Declaration due 02/20/2007 | ||||||
| United States | ECLYPSE | 76/192,694 | 01/11/2001 | 2,716,285 | 05/13/2003 | Registered 0 &00 Xxxxxxxxxxx xxx 00/00/0000 | ||||||
| Xxxxxx Xxxxxx | FYBERSERV | 76/207,014 | 02/06/2001 | Pending | ||||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| United States | FYBERSERV & Design | 76/215,860 | 02/26/2001 | 2,806,981 | 01/20/2004 | Registered 8 & 15 Declaration due 01/20/2010 | ||||||
| United States | FYBERSERV STAY CONNECTED, MOVE AHEAD & Design | 76/216,640 | 02/06/2001 | 2,936,585 | 03/29/2005 | Registered 8 & 15 Declaration due 03/29/2011 | ||||||
| United States | INHIBIT | 78/310,163 | 10/07/2003 | 2,877,729 | 08/24/2004 | Registered 8 & 15 Declaration due 08/24/2010 | ||||||
| United States | MACTEX | 73/718,497 | 03/24/1988 | 1,511,013 | 11/01/1988 | Registered 8 & 9 Renewal due 11/01/2008 | ||||||
| United States | MERANO | 78/310,166 | 10/07/2003 | 2,877,730 | 08/24/2004 | Registered 8 & 15 Declaration due 08/24/2010 | ||||||
| United States | MICROVISTA (Stylized) | 76/358,700 | 01/14/2002 | 2,757,202 | 08/26/2003 | Registered 8 & 15 Declaration due 08/26/2009 | ||||||
| United States | MYNX | 78/310,162 | 10/07/2003 | 2,947,770 | 05/10/2005 | Registered 8 & 15 Declaration due 05/10/2011 | ||||||
| United States | MYRIAD | 76/192,689 | 01/11/2001 | 2,667,070 | 12/24/2002 | Registered 8 & 15 Declaration due 12/24/2008 | ||||||
| United States | NOVVA | 76/192,696 | 01/11/2001 | 2,595,801 | 07/16/2002 | Registered 8 & 15 Declaration due 07/16/2008 | ||||||
| United States | PROVIDING INNOVATIVE FIBERS AND COMPETITIVE SOLUTIONS | 76/367,131 | 02/04/2002 | 2,744,440 | 07/29/2003 | Registered 8 & 15 Declaration due 07/29/2009 | ||||||
| United States | REFLEXX | 78/310,160 | 10/07/2003 | 2,877,728 | 08/24/2004 | Registered 8 & 15 Declaration due 08/24/2010 | ||||||
| United States | REPREVE | 76/192,693 | 01/11/2001 | 2,691,497 | 02/25/2003 | Registered 8 & 15 Declaration due 02/25/2009 | ||||||
| Country |
Xxxx |
Serial No. | Filing Date | Reg. No. | Issue Date | Status | ||||||
| United States | SATURA & Design | 78/331,625 | 11/21/2003 | 2,897,506 | 10/26/2004 | Registered 8 & 15 Declaration due 10/26/2010 | ||||||
| United States | SEDORA | 78/686,681 | 08/05/2005 | Pending | ||||||||
| United States | SORBTEK | 75/928,744 | 02/25/2000 | 2,777,116 | 10/28/2003 | Registered 8 & 15 Declaration due 10/28/2009 | ||||||
| United States | STAY CONNECTED, MOVE AHEAD | 76/206,638 | 02/07/2001 | 2,802,860 | 01/06/2004 | Registered 8 & 15 declaration due 01/06/2010 | ||||||
| United States | SULTRA | 76/192,692 | 01/11/2001 | 2,716,284 | 05/13/2003 | Registered 0 & 00 Xxxxxxxxxxx xxx 00/00/0000 | ||||||
| Xxxxxx Xxxxxx | TENEX | 78/418,955 | 5/14/2004 | Pending | ||||||||
| United States | TEXTRA | 78/310,157 | 10/07/2003 | 2,877,727 | 08/24/2004 | Registered 8 & 15 Declaration due 08/24/2010 | ||||||
| United States | UNIFI | 74/261,913 | 04/02/1992 | 1,872,523 | 01/10/1995 | Registered 8 & 9 Renewal due 01/10/2005 | ||||||
| United States | UNIFI (Stylized) | 74/261,912 | 04/02/1992 | 2,161,151 | 06/02/1998 | Registered 8 & 9 Renewal due 06/02/2008 | ||||||
| Uruguay | MICROMATTIQUE | 256316 | 08/27/1992 | 256316 | 07/09/1993 | Registered Renewal due 07/09/2013 | ||||||
| Venezuela | MICROMATTIQUE | 16276-94 | 12/06/1994 | P-187904 | 02/09/1996 | Registered Renewal due 02/09/2006 | ||||||
| Venezuela | MICROMATTIQUE | 16325-94 | 12/07/1994 | P-187923 | 02/09/1996 | Registered Renewal due 02/09/2006 | ||||||
| Vietnam | X.X.X. & Design | 0-0000-00000 | 03/04/2005 | Pending | ||||||||
| Vietnam | MYNX | 0-0000-00000 | 03/04/2005 | Pending | ||||||||
| Vietnam | REFLEXX | 0-0000-00000 | 03/04/2005 | Pending | ||||||||
| Vietnam | SORBTEK | 0-0000-00000 | 03/04/2005 | Pending | ||||||||
Licensed Patents, Trademarks and Copyrights
DuPont Licensed Trademarks and Patents as set forth in its Licensed Fiber Processor Agreement with Unifi, Inc., dated May 7, 1999 (for Coolmax, Coolmax Alta and Thermastat), the Technology Cross-License Agreement with Unifi, Inc., effective June 1, 2000, and the Invista S.r.l. POY Intellectual Property License Agreement with Unifi, Inc., effective September 30, 2004 (for Softec, Micromattique and Dacron), as well as other Dupont Technical Information provided the said agreements.
Licensed patents, trademarks and copy rights that the Borrowers have the right to use due to the purchase of products and/or services from their various vendors and suppliers.
SCHEDULE 2(a)(iv)
COMMERCIAL TORT CLAIMS
None.
SCHEDULE 4(a)(i)
CHIEF EXECUTIVE OFFICE/PRINCIPAL PLACE OF BUSINESS/
EXACT LEGAL NAME/STATE OF FORMATION
| Name and Chief Executive Office |
EIN | State Inc/ Organized In |
State Organizational Number |
Date of Inc/ Organization | ||||||
| Domestic Entities: | ||||||||||
| 1 |
Unifi, Inc. 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NY | N/A | 1/8/1969 | |||||
| 2 |
Unifi Manufacturing, Inc. 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0411480 | 11/25/1996 | |||||
| 3 |
Unifi Sales & Distribution, Inc. 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0411509 | 11/25/1996 | |||||
| 4 |
Unifi International Service, Inc. 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0152812 | ||||||
| 5 |
Unifi Kinston, LLC formerly Unifi Equipment Leasing, LLC 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0430407 | 6/23/1997 | |||||
| 6 |
Spanco Industries, Inc. 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0101977 | 12/28/1983 | |||||
| 7 |
Spanco International, Inc. 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0335876 | ||||||
| 8 |
Unifi Export Sales, LLC 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0411505 | 11/25/1996 | |||||
| 9 |
Unifi Manufacturing Virginia, LLC 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0411506 | 11/25/1996 | |||||
| 10 |
Unifi Technical Fabrics, LLC 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0502821 | 8/3/1999 | |||||
| 11 |
Charlotte Technology Group, Inc. (f/k/a Cimtec Automation, Inc.) (f/k/a Unifi Technology Group, Inc.) (f/k/a UTG Acquisition Corp.) (f/k/a Unifi Technology Group, LLC) 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0550275 | 5/22/2000 | |||||
| 12 |
GlenTouch Yarn Company, LLC 0000 X Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0591116 | 5/14/2001 | |||||
| 13 |
UTG Shared Services, Inc. 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0513931 | 12/7/1999 | |||||
| 00 |
XxxXxxxxx Xxxxxxxx, LLC 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0693371 | 10/2/2003 | |||||
| 15 |
Unifi Textured Polyester, LLC 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
00-0000000 | NC | 0457283 | 04/23/1998 | |||||
LOCATION OF BOOKS AND RECORDS
FOR UNIFI, INC. AND ALL SUBSIDIARIES
Name and Corporate Address
Domestic Entities:
ALL BOOKS AND RECORDS ARE MAINTAINED AT THE UNIFI, INC. CORPORATE HEADQUARTERS AT 0000 X. XXXXXXXX XXXXXX,
XXXXXXXXXX, XXXXXXXX XXXXXX, XXXXX XXXXXXXX, 00000, X.X. XXX 00000, XXXXXXXXXX, XX 00000, UNLESS OTHERWISE SET FORTH.
Foreign Entities:
Unifi Textured Yarns Europe
% Xxxxxx Xxxxx, General Mgr.
Xxxxxx, Raphoe, Co. Donegal Ireland
Books & Records kept:
Plant T4
000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Unifi International Service Germany
Xxxxxxxxxxxx 0
00000 Xxx Xxxxxxx
Books & Records kept:
Plant T4
000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Zona Industrial Cuzuca
Xxxxxxx Xxxxx xx xx Xxxxx xx xx Xxxxxx, X.X. Xxxxxxxx
Unifi do Brazil, LTDA
Av. Eng. Xxxx Xxxxxx Xxxxxxx,
716-3.andar
04571-000 Sao Xxxx/SP, Brasil
Unifi Holding 1 X.X.
Xxxxxxxxxxxxx 0, 0000XX
Xxxxxxxxx, Xxxxxxxxxxx
Unifi Holding 2 X.X.
Xxxxxxxxxxxxx 0, 0000XX
Xxxxxxxxx, Xxxxxxxxxxx
Unifi Dyed Yarns Ltd.
Bury Road, Radcliffe
Manchester, England
Books and Records kept:
Plant T4
000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Xxxxx 00, Xxxxx Xxxxxxx Xxxxx
0 Xxxxx’s Road East
Hong Kong, China [Yadkinville]
UNIFI Latin America S.A.
Transversal 5 No 6-67 Zona
Industrial Cazuca
Soacha, Cundinamarca
Colombia
Unifi, Asia, Ltd.
Xxxxx 00, Xxxxx Xxxxxxx Xxxxx
0 Xxxxx’s Road East
Hong Kong, China
Unifi Asia Holding, SRL
Execsec Corporate Secretarial Services Inc.
Xxxxxxxx Xxxxx
Xx. 0xx Xxxxxx & Xxxxxx Street
Belleville, St. Xxxxxxx
Bardados
SCHEDULE 4(a)(ii)
NAME CHANGES/CHANGES IN
CORPORATE STRUCTURE/TRADENAMES
None.
SCHEDULE 4(b)
LOCATIONS OF COLLATERAL
| Inventory/Equipment Owner’s Name |
Owned (“O”) |
or |
Property Address | |||
| Unifi, Inc.; | Y | O | Corporate Offices 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 | |||
| X.X. Xxx 00000 Xxxxxxxxxx, XX 00000 | ||||||
| Y | L | New York Sales office | ||||
| (Lease terminates June 30, 2006) | 0000 Xxxxxxxx Xxxxx 0000 Xxx Xxxx, XX 00000 Former location: 000 X. 00xx Xxxxxx, 0xx Xxxxx | |||||
| X | X | Xxx Xxxx Apartment 000 Xxxx 00xx Xx., Xxx. 00X Xxx Xxxx, XX 00000 | ||||
| N | L | Tennessee Sales office Suite 307, Xxxxx Building 000 Xxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 | ||||
| Y | L | California Warehouse Schenkers Warehouse 000 Xxxx 000xx Xxxxxx Xxxxxx, XX 00000 | ||||
| Unifi Manufacturing, Inc.: | ||||||
| Y | O | Yadkinville –T1, T2 & T4 X.X. Xxx 000 Xxx Xxxxxxx 000 Xxxx Xxxxxxxxxxx, XX 00000 | ||||
| Y | O | Yadkinville –T5 & F1 X.X. Xxx 000 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 | ||||
| Y | O | Topsider Warehouse (Recycling Center) | ||||
| X | X | Xxxxx Property (guest house) Xxxxxxxxxxx, XX 00000 | ||||
| Y | O | Yadkinville–Xxxxx Tract Xxxx Xxxx Xxxxxx Xxxxxxxxxxx, XX 00000 (11.165 Acres, vacant land) (Part of land bridge) | ||||
| Y | O | Yadkinville–Xxxxx Property Xxxx 00 & 00 X.X. Xxxxx Xxx. (Xxxxxx residential lots, part of land bridge) Xxxxxxxxxxx, XX 00000 | ||||
| Y | O | Yadkinville–Xxxx Tract (vacant) Xxxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000 | ||||
| N | O | Reidsville–Texturing Serv., Inc. 0000 Xxxxx Xxxxxx Xxx.*** Xxxxxxxxxxx, XX 00000 (Lease terminates 10/31/06) | ||||
| Y | O | Reidsville – Plants 2 & 4 P.O. Box 1437-Zip 27323 0000 Xxxxx Xxxxxx Xxx. Xxxxxxxxxx, XX 00000 | ||||
| Y | L | Mayodan – Plant 15 X.X. Xxx 000 000 Xxxxxxxx Xxxx Xxxxxxx, XX 00000 | ||||
| Y | O | Mayodan – Plants 1** & 5** X.X. Xxx 000 Xxxxxxx, XX 00000 Street Address: 000 X. Xxxxxxxxxx Xxxx Xxxxxxx, XX 00000 | ||||
| Y | O | Madison – Plant 3 | ||||
| X.X. Xxx 000 000 Xxxxxx Xxxxx Xxxxxxx, XX 00000 | ||||||
| Y | O | Madison – Plant 7** X.X. Xxx 000 000 Xxxxxx Xxxx Xxxxxxx, XX 00000 | ||||
| Y | O | Decatur Street Warehouse Island Drive Warehouse Madison, NC 27025 | ||||
| NA | O | Stoneville – Plant 8* 0000 Xxxxxxx 000 Xxxx X.X. Xxx 000 Xxxxxxxxxx, XX 00000 | ||||
| X | X | Xxxxxxxx Property (73.058 Acres, vacant) Xxxxxxx, XX 00000 | ||||
| Y | O | Central Distribution Center P.O. Box 135, 12.8 acres Xxxxxxx Xxxx Xxxx Xxxx Xxxxx, XX 00000 | ||||
| Unifi Manufacturing Virginia, LLC: | ||||||
| Y | O | Staunton - Plant 22 P.O. Box 0000 Xxxxxx Xxxx Xxxx Xxxxxxxx, XX 00000 | ||||
| Unifi Textured Polyester, LLC: | ||||||
| Y | O | Yadkinville – T3** XX Xxx 000 Xxx Xxxxxxx 000 Xxxx Xxxxxxxxxxx, XX 00000 | ||||
| Unifi Kinston, LLC: | ||||||
| Y | L | Kinston Spinning Plant 0000 Xxxxx Xxxxxxx 00 Xxxxxxx, XX 00000 | ||||
| Y | O | Kentec Pack Cleaning Facility 0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | ||||
| Y | L | Kenta Warehouse 0000 Xxxxx Xxxxxxx 00 Xxxxxxx, XX 00000 | ||||
| * | This Plant is being leased to the Unifi-Sans Technical Fibers, LLC joint venture. |
| ** | These Plants/Properties are vacant and listed for sale with Binswanger under an Exclusive Listing Agreement effective December 12, 2005. |
| *** | This Plant is being leased to Texturing Services, Inc. until October 31, 2006 |
Entities having possession of inventory or equipment
other than the Company or its Subsidiaries
CONSIGNMENT LOCATIONS:
| Unifi Manufacturing, Inc. | Warp Development Corp. 000 Xxxxxx Xxxx X.X. Xxx 000 Xxxxxx, XX 00000 | |
| Unifi Manufacturing, Inc. Unifi Textured Polyester, LLC |
Fibretrade Canada, Inc. 000 XxXxxxxxx Xx Xxxxxxx, Xxxxxx Xxxxxx | |
SCHEDULE 5(f)(i)
GRANT OF SECURITY INTEREST
IN COPYRIGHT RIGHTS
This GRANT OF SECURITY INTEREST IN COPYRIGHT RIGHTS (“Agreement”), effective as of _____________, 20__ is made by [NAME OF OBLIGOR(S)], a ___________, located at ____________________ (the “Obligor[s]”), in favor of BANK OF AMERICA, N.A with an office at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, as administrative agent for the Lenders referred to below (in its capacity as administrative agent, the “Agent”), in connection with the Amended and Restated Credit Agreement, dated as of May 26, 2006 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among [Unifi, Inc., a New York corporation (the “Parent”)] [the Obligor], the subsidiaries of the [Parent (including the Obligor)] [Obligor] from time to time party thereto (together with the [Parent] [Obligor], each, a “Borrower” and collectively, the “Borrowers”), the financial institutions from time to time party thereto (the “Lenders”) and the Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make Loans to the Borrowers and to issue or participate in Letters of Credit upon the terms and subject to the conditions set forth therein; and
WHEREAS, in connection with the Credit Agreement, the Borrowers have executed and delivered a Security Agreement, dated as of May 26, 2006, in favor of the Agent (together with all amendments and modifications, if any, from time to time thereafter made thereto, the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, the Obligor pledged and granted to the Agent for the benefit of the secured parties thereunder (the “Secured Parties”) a continuing security interest in all Intellectual Property, including the Copyrights; and
WHEREAS, the Obligor has duly authorized the execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Obligor agrees, for the benefit of the Agent and the Secured Parties, as follows:
SECTION 1 Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided or provided by reference in the Credit Agreement and the Security Agreement.
SECTION 2 Grant of Security Interest. The Obligor hereby pledges and grants a continuing security interest in, and a right of setoff against, and agrees to assign, transfer and convey, upon demand made upon the occurrence and during the continuance of an Event of Default without requiring further action by either party and to be effective upon such demand, all of the Obligor’s right, title and interest in, to and under the Copyrights (including, without
limitation, those items listed on Schedule A hereto) (collectively, the “Copyright Collateral”), to the Agent for the benefit of the Secured Parties to secure payment, performance and observance of the Secured Obligations.
SECTION 3 Purpose. This Agreement has been executed and delivered by the Obligor for the purpose of recording the grant of security interest herein with the United States Copyright Office. The security interest granted hereby has been granted to the Agent for the benefit of the Secured Parties in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. The Security Agreement (and all rights and remedies of the Agent thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4 Acknowledgment. The Obligor does hereby further acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Copyright Collateral granted hereby are more fully set forth in the Credit Agreement and the Security Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein. In the event of any conflict between the terms of this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 5 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together constitute one and the same original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers on this ___th day of ___________, 20__.
| [___________________] | ||
| as Obligor | ||
| By: | ||
| Name: | ||
| Title: |
||
| BANK OF AMERICA, N.A. as Agent | ||
| By: | ||
| Name: | ||
| Title: |
||
ACKNOWLEDGMENT OF OBLIGOR
| STATE OF | ) | |
| ) ss | ||
| COUNTY OF | ) |
On the _____ day of May, 2006, before me personally came _________________, who is personally known to me to be the _____________________ of [____________]., a [________________]; who, being duly sworn, did depose and say that she/he is the ____________________ in such corporation, the corporation described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such corporation; and that she/he acknowledged said instrument to be the free act and deed of said corporation.
| Notary Public |
| (PLACE STAMP AND SEAL ABOVE) |
ACKNOWLEDGMENT OF AGENT
| STATE OF | ) | |
| ) ss | ||
| COUNTY OF | ) |
On the ____ day of May, 2006, before me personally came ____________________, who is personally known to me to be the ______________________ of BANK OF AMERICA, N.A., a national banking association; who, being duly sworn, did depose and say that she/he is the ____________________________________ in such national banking association, the national banking association described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such national banking association; and that she/he acknowledged said instrument to be the free act and deed of said national banking association.
| Notary Public |
| (PLACE STAMP AND SEAL ABOVE) |
SCHEDULE A
U.S. Copyrights
| Copyright |
Registration Number | |
SCHEDULE 5(f)(ii)
GRANT OF SECURITY INTEREST
IN PATENT RIGHTS
This GRANT OF SECURITY INTEREST IN PATENT RIGHTS (“Agreement”), effective as of _____________, 20__ is made by [NAME OF OBLIGOR(S)], a _________________, located at ___________________ (the “Obligor[s]”), in favor of BANK OF AMERICA, N.A with an office at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, as administrative agent for the Lenders referred to below (in its capacity as administrative agent, the “Agent”), in connection with the Amended and Restated Credit Agreement, dated as of May 26, 2006 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among [Unifi, Inc., a New York corporation (the “Parent”)] [the Obligor], the subsidiaries of the [Parent (including the Obligor)] [Obligor] from time to time party thereto (together with the [Parent] [Obligor], each, a “Borrower” and collectively, the “Borrowers”), the financial institutions from time to time party thereto (the “Lenders”) and the Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make Loans to the Borrowers and to issue or participate in Letters of Credit upon the terms and subject to the conditions set forth therein; and
WHEREAS, in connection with the Credit Agreement, the Borrowers have executed and delivered a Security Agreement, dated as of May 26, 2006, in favor of the Agent (together with all amendments and modifications, if any, from time to time thereafter made thereto, the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, the Obligor pledged and granted to the Agent for the benefit of the secured parties thereunder (the “Secured Parties”) a continuing security interest in all Intellectual Property, including the Patents; and
WHEREAS, the Obligor has duly authorized the execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Obligor agrees, for the benefit of the Agent and the Secured Parties, as follows:
SECTION 1 Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided or provided by reference in the Credit Agreement and the Security Agreement.
SECTION 2 Grant of Security Interest. The Obligor hereby pledges and grants a continuing security interest in, and a right of setoff against, and agrees to assign, transfer and convey, upon demand made upon the occurrence and during the continuance of an Event of Default without requiring further action by either party and to be effective upon such demand, all of the Obligor’s right, title and interest in, to and under the Patents (including, without limitation,
those items listed on Schedule A hereto) (collectively, the “Patent Collateral”), to the Agent for the benefit of the Secured Parties to secure payment, performance and observance of the Secured Obligations.
SECTION 3 Purpose. This Agreement has been executed and delivered by the Obligor for the purpose of recording the grant of security interest herein with the United States Patent and Trademark Office. The security interest granted hereby has been granted to the Agent for the benefit of the Secured Parties in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. The Security Agreement (and all rights and remedies of the Agent thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4 Acknowledgment. The Obligor does hereby further acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Patent Collateral granted hereby are more fully set forth in the Credit Agreement and the Security Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein. In the event of any conflict between the terms of this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 5 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together constitute one and the same original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers on this __th day of __________, 20__ .
| [_______________________] | ||
| as Obligor | ||
| By: | ||
| Name: | ||
| Title: | ||
| BANK OF AMERICA, N.A. as Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
3
ACKNOWLEDGMENT OF OBLIGOR
| STATE OF | ) | |
| ) ss | ||
| COUNTY OF | ) |
On the _____ day of May, 2006, before me personally came _____________________, who is personally known to me to be the ___________________ of [___________]., a [_____________]; who, being duly sworn, did depose and say that she/he is the _______________________ in such corporation, the corporation described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such corporation; and that she/he acknowledged said instrument to be the free act and deed of said corporation.
| Notary Public |
| (PLACE STAMP AND SEAL ABOVE) |
ACKNOWLEDGMENT OF AGENT
| STATE OF | ) | |
| ) ss | ||
| COUNTY OF | ) |
On the ____ day of May, 2006, before me personally came _________________________, who is personally known to me to be the ________________________ of BANK OF AMERICA, N.A., a national banking association; who, being duly sworn, did depose and say that she/he is the _______________________________ in such national banking association, the national banking association described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such national banking association; and that she/he acknowledged said instrument to be the free act and deed of said national banking association.
| Notary Public |
| (PLACE STAMP AND SEAL ABOVE) |
SCHEDULE A
U.S. Patents and Patent Applications
| Patent Title |
Patent or Patent Application Number | |
SCHEDULE 5(f)(iii)
GRANT OF SECURITY INTEREST
IN TRADEMARK RIGHTS
This GRANT OF SECURITY INTEREST IN TRADEMARK RIGHTS (“Agreement”), effective as of , 20 is made by [NAME OF OBLIGOR(S)], a , located at (the “Obligor[s]”), in favor of BANK OF AMERICA, N.A with an office at 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, as administrative agent for the Lenders referred to below (in its capacity as administrative agent, the “Agent”), in connection with the Amended and Restated Credit Agreement, dated as of May 26, 2006 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”), among [Unifi, Inc., a New York corporation (the “Parent”)] [the Obligor], the subsidiaries of the [Parent (including the Obligor)] [Obligor] from time to time party thereto (together with the [Parent] [Obligor], each, a “Borrower” and collectively, the “Borrowers”), the financial institutions from time to time party thereto (the “Lenders”) and the Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make Loans to the Borrowers and to issue or participate in Letters of Credit upon the terms and subject to the conditions set forth therein; and
WHEREAS, in connection with the Credit Agreement, the Borrowers have executed and delivered a Security Agreement, dated as of May 26, 2006, in favor of the Agent (together with all amendments and modifications, if any, from time to time thereafter made thereto, the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, the Obligor pledged and granted to the Agent for the benefit of the secured parties thereunder (the “Secured Parties”) a continuing security interest in all Intellectual Property, including the Trademarks; and
WHEREAS, the Obligor has duly authorized the execution, delivery and performance of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Obligor agrees, for the benefit of the Agent and the Secured Parties, as follows:
SECTION 1 Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided or provided by reference in the Credit Agreement and the Security Agreement.
SECTION 2 Grant of Security Interest. The Obligor hereby pledges and grants a continuing security interest in, and a right of setoff against, and agrees to assign, transfer and convey, upon demand made upon the occurrence and during the continuance of an Event of Default without requiring further action by either party and to be effective upon such demand, all of the Obligor’s right, title and interest in, to and under the Trademarks (including, without
limitation, those items listed on Schedule A hereto) (collectively, the “Trademark Collateral”), to the Agent for the benefit of the Secured Parties to secure payment, performance and observance of the Secured Obligations. Notwithstanding the foregoing provisions of this Section 2, for the purpose of this Section 2, the Obligor agrees to assign, transfer and convey, upon demand made upon the occurrence and during the continuance of Event of Default any “intent to use” trademark application only to the extent (i) that the business of the Obligor, or parties thereof, to which that xxxx pertains is also included in the Collateral (as defined in Section 2 of the Credit Agreement) and (ii) that such business is ongoing and existing.
SECTION 3 Purpose. This Agreement has been executed and delivered by the Obligor for the purpose of recording the grant of security interest herein with the United States Patent and Trademark Office. The security interest granted hereby has been granted to the Agent for the benefit of the Secured Parties in connection with the Security Agreement and is expressly subject to the terms and conditions thereof. The Security Agreement (and all rights and remedies of the Agent thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4 Acknowledgment. The Obligor does hereby further acknowledge and affirm that the rights and remedies of the Agent with respect to the security interest in the Trademark Collateral granted hereby are more fully set forth in the Credit Agreement and the Security Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein. In the event of any conflict between the terms of this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall govern.
SECTION 5 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together constitute one and the same original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers on this th day of , 20 .
| [ ] as Obligor | ||
| By: | ||
| Name: | ||
| Title: | ||
| BANK OF AMERICA, N.A. as Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
3
ACKNOWLEDGMENT OF OBLIGOR
| STATE OF | ) | |||
| ) ss | ||||
| COUNTY OF | ) |
On the day of May, 2006, before me personally came , who is personally known to me to be the of [ ]., a [ ]; who, being duly sworn, did depose and say that she/he is the in such corporation, the corporation described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such corporation; and that she/he acknowledged said instrument to be the free act and deed of said corporation.
_______________________________________________
Notary Public
(PLACE STAMP AND SEAL ABOVE)
ACKNOWLEDGMENT OF AGENT
| STATE OF | ) | |||
| ) ss | ||||
| COUNTY OF | ) |
On the day of May, 2006, before me personally came , who is personally known to me to be the of BANK OF AMERICA, N.A., a national banking association; who, being duly sworn, did depose and say that she/he is the in such national banking association, the national banking association described in and which executed the foregoing instrument; that she/he executed and delivered said instrument pursuant to authority given by the Board of Directors of such national banking association; and that she/he acknowledged said instrument to be the free act and deed of said national banking association.
_______________________________________________
Notary Public
(PLACE STAMP AND SEAL ABOVE)
SCHEDULE A
U.S. Trademark Registrations and Applications
| Trademark |
Registration or Serial Number | |
