AMENDED AND RESTATED
SECURITY AGREEMENT AND MORTGAGE - TRADEMARKS AND PATENTS
AMENDED AND RESTATED AGREEMENT made as of this 12th day of May, 1997
between Andover Togs, Inc., a Delaware corporation (the "Debtor"), having an
office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, and The CIT Group/Commercial
Services, Inc., a Delaware corporation ("CIT") having an office at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent (referred to herein as the
"Secured Party") for (i) the lender (the "Lender") named in the Amended and
Restated and Security Agreement, dated of even date herewith, among Debtor, the
Lender and the Secured Party (the "Financing Agreement"), and (ii) for itself as
facilitator of the issuance of the Letters of Credit.
WHEREAS, Debtor and certain affiliates filed a voluntary petition for
relief under chapter 11, title 11, of the United States Code (the "Bankruptcy
Code") with the United States Bankruptcy Court for the Southern District of New
York (the "Court").
WHEREAS, the Debtor has heretofore executed and delivered to Lender that
certain Security Agreement and Mortgage-Trademarks and Patents (the "Original
Security Agreement") under which Debtor has granted, to CIT, liens on and
security interests in the properties, rights, interests, and privileges therein
described.
WHEREAS, the Debtor and CIT have heretofore entered into that certain
Replacement DIP Financing and Security Agreement dated as of September 19, 1996
(as amended, the "Original Financing Agreement").
WHEREAS, pursuant to the Plan of Reorganization of Andover Togs, Inc.
("Plan of Reorganization") and under chapter 11 of the Bankruptcy Code, the
Debtor will reorganize its businesses and operations, which Plan of
Reorganization was confirmed by order of the Court entered on April 10, 1997.
WHEREAS, in conjunction with the consummation of the Plan of
Reorganization, the Debtor and CIT have entered into that certain Amended and
Restated Financing and Security Agreement (as amended, modified or supplemented
from time to time, the "Financing Agreement") dated as of the date hereof,
amending and restating, in its entirety, the Original Financing Agreement.
WHEREAS, pursuant to the Financing Agreement, CIT has agreed to renew,
modify and extend the loan facilities provided in the Original Financing
Agreement (the maximum amount of the loans has been lowered as specified in the
Financing Agreement) subject to the conditions and provisions set out in the
Financing Agreement.
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Financing Agreement that the Debtor confirm and
assure by its execution and delivery of this Amended and Restated Security
Agreement and Mortgage-Trademarks and Patents that the Collateral (as
hereinafter defined) is and remains collateral security for the Obligations (as
such term is defined in the Financing Agreement).
A. Debtor has adopted the terms and designs described in Schedule A
annexed hereto and made a part hereof.
B. Debtor is the owner and holder of the patents listed on Schedule B
hereto.
C. The Secured Party and the Lender have agreed to extend Loans and
certain other financial accommodations including, without limitation, assisting
in the issuance of Letters of Credit to the Debtor pursuant to, and subject to
the terms and conditions of, the Financing Agreement. The obligation of the
Lender under the Financing Agreement to extend such Loans and to assist in the
issuance of the Letters of Credit is conditioned on the execution and delivery
by the Debtor of a security agreement in the form hereof to secure the
Obligations (such Obligations to include, without limitation, the due and
punctual payment and performance of (a) the principal of and interest on the
Loans, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (b) Indebtedness at any time and from
time to time under
2
the Letters of Credit, (c) all obligations of the Debtor at any time and from
time to time under this security agreement and (d) all obligations of the Debtor
at any time and from time to time under the Financing Agreement and the other
Loan Documents.
NOW, THEREFORE, IT IS AGREED that, for and in consideration of the Loans
and other financial accommodations to be made under the Financing Agreement, and
other good and valuable consideration, the receipt of which is hereby
acknowledged, and as collateral security for the full and prompt payment and
performance of all Obligations, as hereinafter defined, Debtor does hereby
mortgage to and pledge with the Secured Party, and grant to the Secured Party a
security interest in, all of its right, title and interest in and to (i) each of
the Trademarks (as hereinafter defined), and the goodwill of the business
symbolized by each of the Trademarks, all customer lists and other records of
Debtor relating to the distribution of products bearing the Trademarks and each
of the registrations described in Schedule A; (ii) each of the Patents (as
hereinafter defined) and each of the registrations listed on Schedule B hereto;
and (iii) any and all proceeds of the foregoing, including, without limitation,
any claims by Debtor against third parties for infringement of the Trademarks or
the Patents (collectively, the "Collateral").
1. Terms defined in the Financing Agreement and not otherwise defined
herein, shall have the meaning set forth in the Financing Agreement. As used in
this Agreement, unless the context otherwise requires:
"Patents" shall mean (i) all letters patent of the United States or any
other country, all right, title and interest therein and thereto, and all
registrations and recordings thereof, including, without limitation,
applications, registrations and recordings in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, all
whether now owned or hereafter acquired by Debtor, including, but not limited
to, those described in Schedule B annexed hereto and made a part hereof, and
(ii) all reissues, continuations, continuations-in-part, extensions or
divisionals thereof and all licenses thereof.
3
"Trademarks" shall mean (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other sources of business identifiers, and the goodwill
associated therewith, now existing or hereafter adopted or acquired, all right,
title and interest therein and thereto, and all registrations and recordings
thereof, including, without limitation, applications, registrations and
recordings in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof, or any other country
or any political subdivision thereof, all whether now owned or hereafter
acquired by Debtor, including, but not limited to, those described in Schedule A
annexed hereto and made a part hereof, and (ii) all reissues, extensions or
renewals thereof and all licenses thereof.
2. Debtor hereby represents, warrants, covenants and agrees as follows:
(a) Debtor has the sole, full and clear title to the registered U.S.
Trademarks for the goods and services covered by the registrations thereof and
such registrations are valid and subsisting and in full force and effect.
(b) Debtor will perform all acts and execute all documents, including,
without limitation, assignments for security in form suitable for filing with
the United States Patent and Trademark Office, substantially in the forms of
Exhibits 1 and 2 hereof, respectively, requested by the Secured Party at any
time to evidence, perfect, maintain, record and enforce the Secured Party's
interest in the Collateral or otherwise in furtherance of the provisions of this
Agreement, and Debtor hereby authorizes the Secured Party to execute and file
one or more financing statements (and similar documents) or copies thereof or of
this Security Agreement with respect to the Collateral signed only by the
Secured Party.
(c) Except to the extent that (i) the Secured Party, upon prior written
notice of Debtor, shall consent, or (ii) Debtor shall not have used a Trademark
within the previous twelve months, Debtor (either itself or through licensees)
will continue to maintain the Trademarks on each and every trademark class of
4
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain the Trademarks in full force free
from any claim of abandonment for nonuse and Debtor will not (and will not
permit any licensee thereof to) do any act or knowingly omit to do any act
whereby any Trademark may become invalidated.
(d) Debtor has the sole, full and clear title to each of the Patents shown
on Schedule B hereto and the registrations thereof are valid and subsisting and
in full force and effect. None of the Patents has been abandoned or dedicated,
and, except to the extent that the Secured Party, upon prior written notice by
Debtor, shall consent, Debtor will not do any act, or omit to do any act,
whereby the Patents may become abandoned or dedicated and shall notify the
Secured Party immediately if it knows of any reason or has reason to know that
any application or registration may become abandoned or dedicated.
(e) Debtor will promptly pay the Secured Party for any and all sums, costs,
and expenses which the Secured Party may pay or incur pursuant to the provisions
of this Agreement or in enforcing the Obligations, the Collateral or the
security interest granted hereunder, including, but not limited to, all filing
or recording fees, court costs, collection charges, travel, and reasonable
attorneys' fees, all of which together with interest at the highest rate then
payable on the Obligations shall be part of the Obligations and be payable on
demand.
(f) In no event shall Debtor, either itself or through any agent,
employee, licensee or designee, (i) 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 of the United States, any State thereof, any other
country or any political subdivision thereof or (ii) file any assignment of any
patent or trademark, which Debtor may acquire from a third party, with the
United States Patent and Trademark Office or any similar office or agency of the
United States, any State thereof, any other country or any political subdivision
thereof, unless Debtor shall, on or prior to the date of such filing, notify the
Secured Party thereof, and, upon request of the Secured Party, execute and
deliver any and all assignments, agreements, instruments, documents and papers
as the Secured
5
Party may request to evidence the Secured Party's interest in such Patent or
Trademark and the goodwill and general intangibles of Debtor relating thereto or
represented thereby, and Debtor hereby constitutes the Secured Party its
attorney-in-fact to execute and file all such writings for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; such
power being coupled with an interest is irrevocable until the Obligations are
paid in full.
(g) Debtor has the right and power to make the assignment and to grant the
security interest herein granted; and the Collateral is not now, and at all
times hereafter will not be, subject to any liens, mortgages, assignments,
security interests or encumbrances of any nature whatsoever, except in favor of
the Secured Party, and to the best knowledge of Debtor none of the Collateral is
subject to any claim.
(h) Except to the extent that Secured Party, upon prior written notice
from Debtor, shall consent, Debtor will not assign, sell, mortgage, lease,
transfer, pledge, hypothecate, grant a security interest in or lien upon,
encumber, grant an exclusive or non-exclusive license, or otherwise dispose of
any of the Collateral, and nothing in this Agreement shall be deemed a consent
by the Secured Party to any such action except as expressly permitted herein.
(i) As of the date hereof neither Debtor nor any affiliate or subsidiary
thereof owns any Patents or Trademarks or has any Patents or Trademarks
registered in, or the subject of pending applications in, the United States
Patent and Trademark Office or any similar office or agency of the United
States, any State thereof, any other country or any political subdivision
thereof, other than those described in Schedules A and B hereto.
(j) Debtor will take all necessary steps in any proceeding before the
United States Patent and Trademark Office or any similar office or agency of the
United States, any State thereof, any other country or any political subdivision
thereof, to maintain each application and registration of the Trademarks and
Patents, including, without limitation, filing of renewals, affidavits of use,
affidavits of incontestability and opposition, interference and cancellation
proceedings (except to the extent
6
that dedication, abandonment or invalidation is permitted under paragraphs 2(c)
and 2(d) hereof).
(k) Debtor assumes all responsibility and liability arising from the use
of the Trademarks, and Debtor hereby indemnifies and holds Secured Party
harmless from and against any claim, suit, loss, damage or expense (including
reasonable attorneys' fees) arising out of any alleged defect in any product
manufactured, promoted or sold by Debtor (or any affiliate or subsidiary
thereof) in connection with any Trademark or out of the manufacture, promotion,
labeling, sale or advertisement of any such product by Debtor (or any affiliate
or subsidiary thereof). Debtor agrees that Secured Party does not assume, and
shall have no responsibility for, the payment of any sums due or to become due
under any agreement or contract included in the Collateral or the performance of
any obligations to be performed under or with respect to any such agreement or
contract by Debtor, and Debtor hereby agrees to indemnify and hold the Secured
Party harmless with respect to any and all claims by any person relating
thereto.
(l) Secured Party may, in its sole discretion, pay any amount or do any
act required of Debtor hereunder or requested by Secured Party to preserve,
defend, protect, maintain, record or enforce Debtor's obligations contained
herein, the Obligations, the Collateral, or the right, title and interest
granted Secured Party herein, and which Debtor fails to do or pay, and any such
payment shall be deemed an advance by Secured Party to Debtor and shall be
payable on demand together with interest at the highest rate then payable on the
Obligations.
(m) Debtor agrees that if it, or any affiliate or subsidiary thereof,
learns of any use by any person of any term or design likely to cause confusion
with any Trademark, it shall promptly notify Secured Party of such use and, if
requested by Secured Party, shall join with Secured Party, at its expense, in
such action as Secured Party, in its reasonable discretion, may deem advisable
for the protection of Secured Party's interest in and to such Trademarks.
7
(n) All licenses of its Trademarks and Patents which Debtor has granted to
third parties are set forth in Schedule C hereto.
3. Upon the occurrence of an Event of Default, in addition to all other
rights and remedies of the Secured Party, whether under law, the Financing
Agreement or otherwise, all such rights and remedies being cumulative, not
exclusive and enforceable alternatively, successively or concurrently, without
(except as provided herein) notice to, or consent by, Debtor, the Secured Party
shall have the following rights and remedies: (a) Debtor shall not make any
further use of the Patents or the Trademarks or any xxxx similar thereto for any
purpose; (b) the Secured Party may, at any time and from time to time, upon 10
days' prior notice to Debtor, license, whether general, special or otherwise,
and whether on an exclusive or nonexclusive basis, any of the Patents or
Trademarks, throughout the world for such term or terms, on such conditions, and
in such manner, as the Secured Party shall in its sole discretion determine; (c)
the Secured Party may (without assuming any obligations or liability
thereunder), at any time, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of Debtor
in, to and under any one or more license agreements with respect to the
Collateral, and take or refrain from taking any action under any thereof, and
Debtor hereby releases the Secured Party from, and agrees to hold the Secured
Party free and harmless from and against any claims arising out of, any action
taken or omitted to be taken with respect to any such license agreement; (d) the
Secured Party may, at any time and from time to time, upon 10 days' prior notice
to Debtor, assign, sell, or otherwise dispose of, the Collateral or any of it,
either with or without special or other conditions or stipulations, with power
to buy the Collateral or any part of it, and with power also to execute
assurances, and do all other acts and things for completing the assignment, sale
or disposition which the Secured Party shall, in its sole discretion, deem
appropriate or proper; and (e) in addition to the foregoing, in order to
implement the assignment, sale or other disposal of any of the Collateral
pursuant to subparagraph 3(d) hereof, the Secured Party may, at any time,
pursuant to the authority granted in the Powers of Attorney described in
paragraph 4 hereof (such authority becoming effective on the occurrence or
continuation as
8
hereinabove provided of an Event of Default), execute and deliver on behalf of
Debtor, one or more instruments of assignment of the Patents or Trademarks (or
any application or registration thereof), in form suitable for filing, recording
or registration in any country. Debtor agrees to pay when due all reasonable
costs incurred in any such transfer of the Patents or Trademarks, including any
taxes, fees and reasonable attorneys' fees, and all such costs shall be added to
the Obligations. The Secured Party may apply the proceeds actually received from
any such license, assignment, sale or other disposition to the reasonable costs
and expenses thereof, including, without limitation, reasonable attorneys' fees
and all legal, travel and other expenses which may be incurred by the Secured
Party, and then to the Obligations, in such order as to principal or interest
as the Secured Party may desire; and Debtor shall remain liable and will pay the
Secured Party on demand any deficiency remaining, together with interest thereon
at a rate equal to the highest rate then payable on the Obligations and the
balance of any expenses unpaid. Nothing herein contained shall be construed as
requiring the Secured Party to take any such action at any time. In the event of
any such license, assignment, sale or other disposition of the Collateral, or
any of it, after the occurrence or continuation as hereinabove provided of an
Event of Default, Debtor shall supply its know-how and expertise relating to the
manufacture and sale of the products bearing or in connection with the
Trademarks or Patents, and its customer lists and other records relating to the
Trademarks or Patents and to the distribution of said products, to the Secured
Party or its designee.
The proceeds of any sale of Collateral, as well as any Collateral
consisting of cash, shall be applied by the Secured Party as follows:
FIRST, to the Secured Party to be held as cash collateral to the extent of
the undrawn amount, if any, of outstanding Letters of Credit;
SECOND, to the payment of all reasonable costs and expenses incurred by the
Secured Party in connection with such sale or otherwise in connection with this
Agreement or any of the Obligations, including, but not limited to, all court
costs and the reasonable fees and expenses of its agents and legal counsel,
9
the repayment of all advances made by the Secured Party hereunder on behalf of
the Debtor and any other reasonable costs or expenses incurred in connection
with the exercise of any right or remedy hereunder;
THIRD, pro rata to the payment in full of principal and interest in respect
of any Loans outstanding (pro rata as among the Lender(s) in accordance with the
amounts of the Loans made by them pursuant to the Financing Agreement);
FOURTH, pro rata to the payment in full of all Obligations (other than
those referred to above) owed to the Lender(s) (pro rata as among the Lender(s)
in accordance with the amount of Obligations owing to them); and
FIFTH, to the Debtor, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
4. Concurrently with the execution and delivery hereof, Debtor is
executing and delivering to the Secured Party, in the form of Exhibit 3 hereto,
five originals of a Power of Attorney for the implementation of the assignment,
sale or other disposal of the Trademarks and Patents pursuant to paragraphs
3(d) and (e) hereof and Debtor hereby releases the Secured Party from any
claims, causes of action and demands at any time arising out of or with respect
to any actions taken or omitted to be taken by the Secured Party under the
powers of attorney granted herein, other than actions taken or omitted to be
taken through the gross negligence or willful misconduct of the Secured Party.
5. No provision hereof shall be modified, altered or limited except by a
written instrument expressly referring to this Agreement and executed by the
party to be charged. The execution and delivery of this Agreement has been
authorized by the Board of Directors of Debtor and by any necessary vote or
consent of stockholders thereof. This Agreement shall be binding upon the
successors, assigns or other legal representatives of Debtor, and shall,
together with the rights and remedies of the Secured Party hereunder, inure to
the benefit of the Secured Party, its successors, assigns or other legal
representatives. THIS AGREEMENT, THE OBLIGATIONS AND THE COLLATERAL SHALL BE
GOVERNED
10
IN ALL RESPECTS BY THE LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Debtor hereby submits to the nonexclusive jurisdiction of the Supreme Court of
the State of New York and the federal courts of the United States of America
located in such State in any action or proceeding arising under this Agreement.
If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby.
6. The Debtor hereby confirms and assures that the terms of the Original
Security Agreement are hereby superseded and restated in their entirety by this
Agreement without thereby cancelling, releasing or discharging the security
interests created thereby.
11
IN WITNESS WHEREOF, Debtor and the Secured Party have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
ANDOVER TOGS, INC.
By
-----------------------------------
Name:
----------------------------
Title:
----------------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
12
IN WITNESS WHEREOF, Debtor and the Secured Party have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
ANDOVER TOGS, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: President
----------------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC.
By
-----------------------------------
Name:
----------------------------
Title:
----------------------------
12
Schedule A to Security Agreement
TRADEMARKS
I. Registrations
Title Registration Date Registration No.
----- ----------------- ----------------
American Expressions 09/15/87 1,457,541
American Gold and
Design 10/09/84 1,200,725
American Style Force 04/21/87 1,437,373
Animal Pals 01/21/86 1,379,252
Any Moment 04/12/84 1,830,833
Any Moment 07/30/91 1,652,757
Baby Beepers 09/02/93 1,909,342
Beepers 09/02/93 1,893,663
Big Al 11/17/87 1,465,577
Bragabouts 05/12/87 1,439,259
Bronx Garage 02/04/87 1,430,312
Brooklyn Export Co. 02/25/86 1,384,402
Crepe Xxxxxxx 03/05/91 1,765,289
Dobie and Design 04/04/89 1,533,189
Flip Overs 05/09/89 1,538,267
Get Togethers 12/19/89 1,572,004
13
Title Registration Date Registration No.
----- ----------------- ----------------
Have (Universal
Prohibition Sign)
Fear 12/15/89 1,569,586
Have a Heart 02/11/86 1,382,447
Hey Kids 07/04/89 1,546,515
Hook & Ladder 02/11/86 1,382,446
Hot Pursuit and Design 09/29/81 1,171,402
Kid America and Design 07/16/85 1,349,497
Nu Art 07/02/85 1,346,311
Outburst 04/10/90 1,531,024
Starting Gate 02/17/87 1,429,345
Style Force 08/28/86 1,415,075
Supertex 2000 12/01/87 1,467,461
Sweet Knits 12/21/83 1,813,000
Sweet Knits 09/29/92 1,721,121
Tortoni 02/11/86 1,382,448
U.S. Style Force 08/19/86 1,405,910
14
II. Pending Applications
Title Filing Date Application No.
----- ----------- ---------------
None
15
Schedule B to Security Agreement
PATENTS
I. Registrations
Title Date Issued Patent No.
----- ----------- ----------
II. Pending Applications
Title Date Filed Application No.
----- ---------- ---------------
16
Schedule C to Security Agreement
LICENSES
Licensor Trade Name/Term of License
-------- --------------------------
17
Exhibit 1 to
Security Agreement
ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, Andover Togs, Inc., a Delaware corporation (herein referred to as
"Assignor"), owns the letters patent, and/or applications for letters patent, of
the United States, more particularly described on Schedule 1-A annexed hereto as
part hereof (the "Patents");
WHEREAS, Assignor is obligated to The CIT Group/Commercial Services, Inc.,
a Delaware corporation, as agent (referred to herein as the "Assignee") for (i)
the lender (the "Lender") named in the Amended and Restated Financing and
Security Agreement, dated of even date herewith, among the Assignor, the Lender
and the Assignee (the "Financing Agreement"), and (ii) itself as issuer of the
Letters of Credit, and Assignor has entered into an Amended and Restated
Security Agreement and Mortgage-Trademarks and Patents dated the date hereof
(the "Agreement") in favor of Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to Assignee, and
granted to Assignee a security interest in, and mortgage on, all right, title
and interest of Assignor in and to the Patents, together with any reissue,
continuation, continuation-in-part or extension thereof, and all proceeds
thereof, including, without limitation, any and all causes of action which may
exist by reason of infringement thereof for the full term of the Patents (the
"Collateral"), to secure the prompt payment, performance and observance of the
Obligations, as defined in the Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Assignor does hereby further assign unto Assignee and grant
to Assignee a security interest in, and mortgage on, the Collateral to secure
the prompt payment, performance and observance of the Obligations.
Assignor does hereby further acknowledge and affirm that the rights and
remedies of Assignee with respect to the assignment of, security interest in and
mortgage on the Collateral made and granted hereby are more fully set forth in
the Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein.
Assignee's address is 1211 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly executed
by its officer thereunto duly authorized as of the ____ day of May, 1997.
ANDOVER TOGS, INC.
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
2
SCHEDULE 1-A TO ASSIGNMENT FOR SECURITY
PATENTS
I. Registrations
Title Date Issued Patent No.
----- ----------- ----------
II. Pending Applications
Title Date Filed Application No.
----- ---------- ---------------
3
Exhibit 2 to
Security Agreement
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, Andover Togs, Inc., a Delaware corporation (herein referred to as
"Assignor"), has adopted, used and is using the trademarks listed on the annexed
Schedule 2-A, which trademarks are registered in the United States Patent and
Trademark Office or applications therefore have been filed (the "Trademarks");
WHEREAS, Assignor is obligated to the CIT Group/Commercial Services, Inc.,
a Delaware corporation, as agent (referred to herein as the "Assignee") for (i)
the lender (the "Lender") named in the Amended and Restated Financing and
Security Agreement, dated of even date herewith, among the Assignor, the Lender
and the Assignee (the "Financing Agreement"), and (ii) itself as issuer of the
Letters of Credit, and Assignor has entered into an Amended and Restated
Security Agreement and Mortgage-Trademarks and Patents dated the date hereof
(the "Agreement") in favor of Assignee; and
WHEREAS, pursuant to the Agreement, Assignor has assigned to Assignee and
granted to Assignee a security interest in, and mortgage on, all right, title
and interest of Assignor in and to the Trademarks, together with the goodwill of
the business symbolized by the Trademarks and the applications and registrations
thereof, and all proceeds thereof, including, without limitation, any and all
causes of action which may exist by reason of infringement thereof (the
"Collateral"), to secure the payment, performance and observance of the
Obligations, as defined in the Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Assignor does hereby further assign unto Assignee and grant
to Assignee a security
interest in, and mortgage on, the Collateral to secure the prompt payment,
performance and observance of the Obligations.
Assignor does hereby further acknowledge and affirm that the rights and
remedies of Assignee with respect to the assignment of, security interest in and
mortgage on the Collateral made and granted hereby are more fully set forth in
the Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein.
Assignee's address is 1211 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly executed
by its officer thereunto duly authorized as of the ____ day of May, 1997.
ANDOVER TOGS, INC.
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
2
SCHEDULE 2-A TO ASSIGNMENT FOR SECURITY
TRADEMARKS
I. Registrations
Title Registration Date Registration No.
----- ----------------- ----------------
American Expressions 09/15/87 1,457,541
American Gold and
Design 10/09/84 1,200,725
American Style Force 04/21/87 1,437,373
Animal Pals 01/21/86 1,379,252
Any Moment 04/12/84 1,830,833
Any Moment 07/30/91 1,652,757
Baby Beepers 09/02/93 1,909,342
Beepers 09/02/93 1,893,663
Big Al 11/17/87 1,465,577
Bragabouts 05/12/87 1,439,259
Bronx Garage 02/04/87 1,430,312
Brooklyn Export Co. 02/25/86 1,384,402
Crepe Xxxxxxx 03/05/91 1,765,289
Dobie and Design 04/04/89 1,533,189
Flip Overs 05/09/89 1,538,267
Get Togethers 12/19/89 1,572,004
Title Registration Date Registration No.
----- ----------------- ----------------
Have (Universal
Prohibition Sign)
Fear 12/15/89 1,569,586
Have a Heart 02/11/86 1,382,447
Hey Kids 07/04/89 1,546,515
Hook & Ladder 02/11/86 1,382,446
Hot Pursuit and Design 09/29/81 1,171,402
Kid America and Design 07/16/85 1,349,497
Nu Art 07/02/85 1,346,311
Outburst 04/10/90 1,531,024
Starting Gate 02/17/87 1,429,345
Style Force 08/28/86 1,415,075
Supertex 2000 12/01/87 1,467,461
Sweet Knits 12/21/83 1,813,000
Sweet Knits 09/29/92 1,721,121
Tortoni 02/11/86 1,382,448
U.S. Style Force 08/19/86 1,405,910
2
II. Pending Applications
Trademark Filing Date
--------- -----------
Application No.
---------------
None
3
Exhibit 3 to
Security Agreement
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, THAT Andover Togs, Inc. a Delaware
corporation (hereinafter called "Assignor"), hereby appoints and constitutes The
CIT Group/Commercial Services, Inc., a Delaware corporation, as agent (referred
to herein as the "Assignee") for (i) the lender (the "Lender") named in the
Amended and Restated Financing and Security Agreement, dated of even date
herewith, among the Assignor, the Lender and the Assignee (the "Financing
Agreement"), and (ii) itself as issuer of the Letters of Credit (hereinafter
called "Assignee"), its true and lawful attorney, with full power of
substitution, and with full power and authority to perform the following acts on
behalf of Assignor:
1. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any
letters patent of the United States or any other country or political
subdivision thereof, and all registrations, recordings, reissues,
continuations, continuations-in-part and extensions thereof, and all
pending applications therefor, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable
to effect such purpose;
2. For the purpose of assigning, selling, licensing or otherwise
disposing of all right, title and interest of Assignor in and to any
trademarks, trade names, trade styles and service marks, and all
registrations, recordings, reissues, extensions and renewals thereof, and
all pending applications therefor, and for the purpose of the recording,
registering and filing of, or accomplishing any other formality with
respect to, the foregoing, to execute and deliver any and all agreements,
documents, instruments of assignment or other papers necessary or advisable
to effect such purpose;
3. To execute any and all documents, statements, certificates or
other papers necessary or advisable in order to obtain the purposes
described above as Assignee may in its sole discretion determine.
This power of attorney is made pursuant to an Amended and Restated Security
Agreement and Mortgage - Trademarks and Patents, dated the date hereof, between
Assignor and Assignee and takes effect solely for the purposes of paragraph 3
thereof and is subject to the conditions thereof and may not be revoked until
the payment in full of all "Obligations" as defined in such Security Agreement
and Mortgage.
Dated: May __, 1997
[Corporate Seal] ANDOVER TOGS, INC.
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of May, 1997, before me personally appeared Xxxxxxx Xxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides at
00 Xxxxxx Xxxx, Xxxx Xxxxxxx, X.X., and that he is President of Andover Togs,
Inc., the Delaware corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was affixed pursuant to
authority of the Board of Directors of said corporation, and that he signed his
name thereto pursuant to such authority.
---------------------------
Notary Public
3
