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EXHIBIT 10.3
SECURITY AGREEMENT AND MORTGAGE -
TRADEMARKS AND PATENTS
AGREEMENT made this 22nd day of August, 1996 (this "Agreement")
among Recreation Vehicle Products, Inc., a Delaware corporation (the
"Borrower"), having an office at 0000 X. Xx. Xxxxxxx, Xxxxxxx, Xxxxxx 00000, and
each subsidiary of the Borrower which enters into this Agreement after the date
hereof pursuant to Section 6.12 of the Credit Agreement referred to below (the
"Subsidiary Debtors"; the Subsidiary Debtors and the Borrower are each sometimes
referred to herein as a "Debtor" and collectively as the "Debtors"), and The
Chase Manhattan Bank, a New York banking corporation, having an office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent (referred to herein as the
"Secured Party") for (i) the lenders (the "Lenders") named in Schedules 2.01(a)
and 2.01(b) of the Credit Agreement dated as of August 22, 1996 among the
Borrower, the Guarantors at any time party thereto, the Lenders and the Secured
Party (as amended, modified or supplemented from time to time in accordance with
its terms, the "Credit Agreement") and (ii) for itself as issuer of the Letters
of Credit and party to the Rate Agreements.
A. On the date hereof, each of the Debtors has adopted or been
assigned the respective Trademarks (as hereinafter defined), described directly
below its name in Schedule A annexed hereto and made a part hereof.
B. On the date hereof, each of the Debtors is the owner and holder
or assignee of the respective Patents (as hereinafter defined) set forth
directly below its name listed on Schedule B hereto.
C. The Secured Party and the Lenders have agreed to extend Loans and
certain other financial accommodations including, without limitation, the
issuance of Letters of Credit to the Borrower pursuant to, and subject to the
terms and conditions of, the Credit Agreement. In addition, The Chase Manhattan
Bank has agreed to extend certain financial accommodations to the Borrower
pursuant to the Rate Agreements. The obligation of the Lenders to extend such
Loans and of the Secured Party to issue Letters of Credit under the Credit
Agreement and of The Chase Manhattan Bank to extend such financial
accommodations under the Rate Agreements is conditioned on the execution and
delivery by the Debtor of a security agreement in the form hereof to secure the
following (the "Secured Obligations"): (i) all Obligations (such Obligations to
include, without limitation, the due and punctual payment and performance of (a)
all obligations at any time and from time to time under the Rate Agreements, (b)
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, (c) Indebtedness at any time and from time to time under the Letters
of Credit, (d) all obligations of the Debtors at any time and from time to time
under this Agreement and (e) all other obligations of the Borrower and the
Debtors at any time and from time to time under the Credit Agreement and the
other Loan Documents) and (ii) all obligations of Holdings at any time and from
time to time under the Holdings Guarantee.
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NOW, THEREFORE, IT IS AGREED that, as security for the full and
prompt payment and performance of the Secured Obligations, the Debtors hereby
mortgage to the Secured Party for its own benefit and the benefit of the
Lenders, and grant to the Secured Party a security interest in, all of its
right, title and interest in and to (i) each of its Trademarks (as hereinafter
defined), and the goodwill of the business symbolized by each of its Trademarks,
all of its customer lists and other records relating to the distribution of
products bearing its Trademarks; (ii) each of its Patents (as herein after
defined); and (iii) any and all proceeds of the foregoing, including, without
limitation, any of its claims against third parties for infringement of the
Trademarks or the Patents (collectively, the "Collateral").
1. Definitions of Terms Used Herein. Terms defined in the Credit
Agreement and not otherwise defined herein, shall have the meaning set forth in
the Credit Agreement. As used in this Agreement, unless the context otherwise
requires:
"Patents" shall mean (i) all letters patent of the United
States or Canada 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, the Canadian Patent Office or in any similar office
or agency of the United States or Canada, any State or Province thereof, as
applicable, or any other country or any political subdivision thereof, all
whether now owned or hereafter acquired by the Debtors, including, but not
limited to, those described in Schedule B annexed hereto and made a part hereof,
(ii) all reissues, continuations, continuations-in-part, extensions or
divisionals thereof and (iii) all licenses thereof; in each case, excluding (x)
any such property and/or rights in countries other than the United States or
Canada in which the grant of a security interest or mortgage would invalidate
such property or rights and (y) Canadian Patent No. 4,146,250 (Stabilizer Unit
for Parked Vehicle).
"Trademarks" shall mean (i) all trademarks, trade names, trade
styles, service marks, prints and labels on which said trademarks, trade names,
trade styles and service marks have appeared or appear, designs and general
intangibles of like nature, 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, the Canadian
Trade-marks Office or in any similar office or agency of the United States or
Canada, any State or Province thereof, as applicable, or any other country or
any political subdivision thereof, all whether now owned or hereafter acquired
by the Debtors, including, but not limited to, those described in Schedule A
annexed hereto and made a part hereof, together with the goodwill of the
business relating thereto, (ii) all reissues, extensions or renewals thereof and
(iii) all licenses thereof; in each case, excluding any such property and/or
rights in countries other than the United States or Canada in which the grant of
a security interest or mortgage would invalidate such property or rights.
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2. Representations, Warranties and Covenants. Each Debtor hereby
represents, warrants, covenants and agrees as follows:
(a) It owns in its own name, or is the assignee of, each of its
respective Trademarks shown under its name on Schedule A hereto (except with
respect to those Trademarks for which it has delivered documents evidencing a
name change to its current name to the Secured Party, such documents to be in
form and substance satisfactory to the Secured Party) for the goods and services
covered by the registrations thereof and such registrations are subsisting and
in full force and effect.
(b) It will perform all acts and execute all documents, including,
except 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, or such other form as may reasonably
be required by the Secured Party at any time to evidence, perfect, maintain,
record and enforce the Secured Party's interest in the Collateral in the United
States and Canada or otherwise in furtherance of the provisions of this
Agreement, and it 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 in the United States and
Canada signed only by the Secured Party.
(c) Except to the extent that the Secured Party, upon prior written
notice by such Debtor, shall consent, it (either itself or through licensees)
will continue to use the Trademarks material to its business on each and every
trademark class of goods applicable to its current line as reflected in its
current catalogs, brochures and price lists in order to maintain such Trademarks
in full force free from any claim of abandonment for nonuse and it will not (and
will not permit any licensee thereof to) do any act or knowingly omit to do any
act whereby any Trademark could reasonably be expected to become invalidated.
(d) It owns in its own name, or is the assignee of, each of its
respective Patents shown under its name on Schedule B hereto (except with
respect to those Patents for which it has delivered documents evidencing a name
change to its current name to the Secured Party, such documents to be in form
and substance satisfactory to the Secured Party) and the registrations thereof
are subsisting and in full force and effect. None of the Patents has been
abandoned, and, except to the extent that the Secured Party, upon prior written
notice by such Debtor, shall consent, it will not do any act, or knowingly omit
to do any act, whereby the Patents may become abandoned and shall notify the
Secured Party promptly if it knows of any reason or has reason to know that any
application or registration may become abandoned.
(e) It shall be obligated to, upon demand, pay to the Secured Party
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts or agents which the Secured Party may
incur in connection with (i) the administration of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the
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Collateral, (iii) the exercise or enforcement of any of the rights of the
Secured Party hereunder, or (iv) the failure of any representation or warranty
of such Debtor hereunder to be true and correct in all material respects or the
failure by such Debtor to perform or observe any of the provisions hereof. In
addition, it indemnifies and holds the Secured Party and the Lenders harmless
from and against any and all liability incurred by the Secured Party or the
Lenders hereunder or in connection herewith, unless such liability shall be due
to the gross negligence or willful misconduct of the Secured Party or the
Lenders, as the case may be. Any such amounts payable as provided hereunder or
thereunder shall be additional Secured Obligations secured hereby and by the
other Security Documents.
(f) In no event shall any 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, the Canadian Patent Office, the Canadian Trade-marks Office or
any similar office or agency of the United States or Canada, any State or
Province thereof, as applicable, any other country or any political subdivision
thereof or (ii) file any assignment of any patent or trademark, which such
Debtor may acquire from a third party, with the United States Patent and
Trademark Office, the Canadian Patent Office, the Canadian Trade-marks Office or
any similar office or agency of the United States, any State or Province
thereof, as applicable, any other country or any political subdivision thereof,
unless such Debtor shall, promptly upon such filing, notify the Secured Party
thereof, and, upon request of the Secured Party, execute and deliver any and all
agreements, instruments, documents and papers as the Secured Party may
reasonably request to evidence the Secured Party's security interest in such
Patent or Trademark and the goodwill and general intangibles of such Debtor
relating thereto or represented thereby (provided, that nothing in this
Agreement shall require any Debtor to file or record any documents, agreements
or instruments in any jurisdiction outside the United States or Canada), and
each 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 Secured Obligations are paid in full.
(g) It 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 en cumbrances of any nature whatsoever, except in favor of
the Secured Party or with respect to which a release in form and substance
satisfactory to the Secured Party has been delivered to the Secured Party, and
to its best knowledge, none of the Collateral is subject to any other claim.
(h) Except to the extent permitted under the Credit Agreement, it
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.
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(i) As of the date hereof, none of the Debtors 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, the Canadian Patent Office, the Canadian
Trade-marks Office or any similar office or agency of the United States or
Canada, any State or Province thereof, as applicable, any other country or any
political subdivision thereof, other than those described in Schedules A and B
hereto.
(j) It will take all necessary steps in any proceeding before the
United States Patent and Trademark Office, the Canadian Patent Office, the
Canadian Trademarks Office or any similar office or agency of the United States
or Canada, any State or Province thereof, any other country or any political
subdivision thereof, to maintain each application and registration of the
Trademarks and Patents material to its business, including, without limitation,
filing of renewals, affidavits of use, affidavits of incontestability and
opposition, interference and cancellation proceedings (except to the extent that
dedication, abandonment or invalidation is permitted under paragraphs 2(c) and
2(d) hereof).
(k) It assumes all responsibility and liability arising from its use
of its Trademarks, and it hereby indemnifies and holds the 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 it (or any affiliate or subsidiary thereof) in
connection with any of its Trademark or out of the manufacture, promotion,
labeling, sale or advertisement of any such product by it (or any affiliate or
subsidiary thereof). It agrees that the 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 it, and it hereby agrees to indemnify and hold the Secured Party
harmless with respect to any and all claims by any person relating thereto.
(l) The Secured Party may, in its sole discretion, pay any amount or
do any act either required of any Debtor hereunder or reasonably requested by
the Secured Party hereunder to preserve, defend, protect, maintain, record or
enforce such Debtor's obligations contained herein, the Secured Obligations, the
Collateral, or the right, title and interest granted Secured Party herein, and
which such Debtor fails to do or pay, and any such payment shall be deemed an
advance by the Secured Party to such Debtor and shall be payable on demand
together with interest at the highest rate then payable on the Secured
Obligations.
(m) It agrees that if it, learns of any use by any person of any
term or design as a trademark or a trade name likely to cause confusion with any
Trademark, it shall promptly notify Secured Party of such use and, shall take
such actions, at its own expense, as are necessary, in its commercially
reasonable business judgment exercised in good faith, for the protection of such
Trademarks and the Secured Party's interest in and to such Trademarks.
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(n) All licenses of its Trademarks and Patents which it has granted
to third parties are set forth in Schedule C hereto.
3. Remedies Upon Default. Upon the occurrence and during the
continuance of an Event of Default, in addition to all other rights and remedies
of the Secured Party, whether under law, the Credit 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, any Debtor, the Secured Party shall have the following
rights and remedies: (a) no Debtor shall 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 the
applicable 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 the applicable 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 each 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 (other than any claims to
the extent that they result from the gross negligence or willful misconduct of
the Secured Party); (d) the Secured Party may, at any time and from time to
time, upon 10 days' prior notice to the applicable 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 hereinabove provided of an Event of
Default), execute and deliver on behalf of the applicable 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. Each Debtor agrees to pay when due all reasonable costs incurred in
any such transfer of its Patents or Trademarks, including any taxes, fees and
reasonable attorneys' fees, and all such costs shall be added to the Secured
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 Secured Obligations, in such order as to principal or interest
as the Secured Party may desire; and the applicable Debtor shall remain liable
and will pay the Secured Party on demand any deficiency remaining,
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together with interest thereon at a rate equal to the highest rate then payable
on the Secured Obligations and the balance of any expenses unpaid. Nothing
herein contain ed 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, the applicable
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 reimburse the Secured Party for that
portion of the payments, if any, made by it with respect to Letters of Credit
for which a Lender, as a participant in such Letter of Credit pursuant to
Section 2.18 of the Credit Agreement, failed to pay its pro rata share thereof
as required pursuant to such Section 2.18;
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 Secured Obligations, including, but not
limited to, all court costs and the reasonable fees and expenses of its agents
and legal counsel, the repayment of all advances made by the Secured Party
hereunder on behalf of the Debtors and any other reasonable costs or expenses
incurred in connection with the exercise of any right or remedy hereunder;
THIRD, to the Secured Party to be held as cash collateral to the
extent of the undrawn amount, if any, or outstanding Letters of Credit;
FOURTH, pro rata to the payment in full of (i) principal and
interest in respect of any Loans outstanding (pro rata as among the Lenders in
accordance with the amounts of the Loans made by them pursuant to the Credit
Agreement) and (ii) all unpaid monetary obligations of any Debtor to The Chase
Manhattan Bank under the Rate Agreements;
FIFTH, pro rata to the payment in full of all Secured Obligations
(other than those referred to above) owed to the Lenders (pro rata as among the
Lenders in accordance with their respective Commitments); and
SIXTH, to the Debtors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
4. Powers of Attorney. Concurrently with the execution and delivery
hereof, each Debtor is executing and delivering to the Secured Party, in the
form of
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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 as
permitted by paragraphs 3(d) and (e) hereof and each 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. Security Interest Absolute. All rights of the Secured Party
hereunder, the security interest granted to the Secured Party hereunder, and all
obligations of the Debtors hereunder, shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any other agreement with respect to any of
the Secured Obligations or any other agreement or instrument relating to any of
the foregoing, (ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other amendment
or waiver of or consent to any departure from the Credit Agreement, any other
Loan Document or any other agreement or instrument, (iii) any exchange, release
or nonperfection of any other Collateral, or any release or amendment or waiver
of or consent to or departure from any guarantee, for all or any of the Secured
Obligations, or (iv) any other circumstance which might otherwise constitute a
defense available to, or discharge of, the Debtors, any of the Guarantors or any
other obligor in respect of the Secured Obligations or in respect of this
Agreement.
6. No Waiver. No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy by the Secured Party preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law. The Secured Party and the Lenders shall not be deemed to have
waived any rights hereunder or under any other agreement or instrument unless
such waiver shall be in writing and signed by such parties.
7. Binding Agreement; Assignments. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
the Debtors shall not be permitted to assign this Agreement or any interest
herein or in the Collateral, or any part thereof, or any cash or property held
by the Secured Party as Collateral under this Agreement, except as contemplated
by this Agreement or the Credit Agreement.
8. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
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JURISDICTION OTHER THAN THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. EACH DEBTOR HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES PERTAINING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT
EACH DEBTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD
BY X XXXXX XXXXXXX XXXXXXX XX XXX XXXX XXXXXX, XXX XXXX; AND FURTHER PROVIDED,
THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
SECURED PARTY OR ANY LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN
ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF THE SECURED PARTY OR ANY LENDER. EACH DEBTOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH DEBTOR HEREBY WAIVES ANY OBJECTION WHICH
SUCH PERSON MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH DEBTOR HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
PERSON AT THE ADDRESS SET FORTH IN THE CREDIT AGREEMENT AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON SUCH PERSON'S ACTUAL RECEIPT THEREOF.
9. Notices. All communications and notices hereunder shall be in
writing and given as provided in the Credit Agreement.
10. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable the
remaining provisions contained herein shall not in any way be affected or
impaired.
11. Section Headings. Section headings used herein are for
convenience only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Agreement shall be
effective when a
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counterpart which bears the signature of the Debtors shall have been delivered
to the Secured Party.
13. Termination. This Agreement and the security interest granted
hereunder shall terminate when (a) all the Secured Obligations have been fully
paid in cash, (b) the Lenders have no further commitment to make any Loans under
the Credit Agreement, (c) the Secured Party shall have no further obligation to
issue any Letters of Credit, and (d) The Chase Manhattan Bank has no further
obligation to extend financial accommodations under any Rate Agreement, at which
time the Secured Party shall execute and deliver to the Debtors all Uniform
Commercial Code termination statements, terminations of assignment and similar
documents which the Debtors shall reasonably request to evidence such
termination; provided, however, that all indemnities of the Debtors contained in
this Agreement shall survive, and remain operative and in full force and effect
regardless of, the termination of this Agreement.
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IN WITNESS WHEREOF, the Debtors 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.
RECREATION VEHICLE PRODUCTS, INC.
By
------------------------------------
Name:
-------------------------------
Title:
----------------------- ------------------------------
Witness
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Schedule A to Security Agreement
UNITED STATES TRADEMARKS
Trademark Reg. Date Reg. No.
--------- --------- --------
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CANADA
REGISTERED TRADE-MARKS
Application Registration
Trade-xxxx Number Number Registration Date
---------- ----------- ------------ -----------------
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Schedule B to Security Agreement
UNITED STATES PATENTS
Title Date Issued Patent No.
----- ----------- ----------
CANADIAN PATENTS
Title Date Issued Patent No.
----- ----------- ----------
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Schedule C to Security Agreement
LICENSES
NONE
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Exhibit 1 to
Security Agreement
CONDITIONAL ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, [Name of Debtor], a Delaware corporation (herein referred
to as "Debtor"), 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, Debtor is obligated to The Chase Manhattan Bank, a New York
banking corporation, as agent (referred to herein as the "Secured Party") for
(i) the lenders (the "Lenders") named in Schedules 2.01(a) and 2.01(b) of the
Credit Agreement dated as of August 22, 1996 among Recreation Vehicle Products,
Inc., the Guarantors at any time party thereto, the Lenders and the Secured
Party (as amended, modified or supplemented from time to time in accordance with
its terms, the "Credit Agreement"; capitalized terms used herein and undefined
shall have the respective meanings assigned to such terms in the Credit
Agreement) and (ii) for itself as issuer of the Letters of Credit and party to
the Rate Agreements, and Debtor has entered into a Security Agreement and
Mortgage-Trademarks and Patents dated the date hereof (the "Agreement") in favor
of Secured Party; and
WHEREAS, pursuant to the Agreement, Debtor has granted to Secured
Party, a security interest in, mortgage on, and conditional assignment of, all
right, title and interest of Debtor 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 Secured Obligations, as defined in the Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, Debtor does hereby further grant to Secured Party
a security interest in, and mortgage on, the Collateral and effective upon the
occurrence and during the continuance of an Event of Default, to secure the
prompt payment, performance and observance of the Secured Obligations.
Debtor does hereby further acknowledge and affirm that the rights
and remedies of Secured Party with respect to the security interest in, mortgage
on, and conditional assignment of, 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.
17
Secured Party's address is 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
IN WITNESS WHEREOF, Debtor has caused this Conditional Assignment to
be duly executed by its officer thereunto duly authorized as of the ____ day of
________, 199_.
[Name of Debtor]
By
------------------------------------
Name:
------------------------------
Title:
------------------------------
2
18
SCHEDULE 1-A TO CONDITIONAL ASSIGNMENT FOR SECURITY
PATENTS
Title Date Issued Patent No.
----- ----------- ----------
19
Exhibit 2 to
Security Agreement
CONDITIONAL ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, [Name of Debtor], a Delaware corporation (herein referred
to as "Debtor"), 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 (the "Trademarks");
WHEREAS, Debtor is obligated to The Chase Manhattan Bank, a New York
banking corporation, as agent (referred to herein as the "Secured Party") for
(i) the lenders (the "Lenders") named in Schedules 2.01(a) and 2.01(b) of the
Credit Agreement dated as of August 22, 1996 among Recreation Vehicle Products,
Inc., the Guarantors at any time party thereto, the Lenders and the Secured
Party (as amended, modified or supplemented from time to time in accordance with
its terms, the "Credit Agreement"; capitalized terms used herein and undefined
shall have the respective meanings assigned to such terms in the Credit
Agreement) and (ii) for itself as issuer of the Letters of Credit and party to
the Rate Agreements, and Debtor has entered into a Security Agreement and
Mortgage-Trademarks and Patents dated the date hereof (the "Agreement") in favor
of Secured Party; and
WHEREAS, pursuant to the Agreement, Debtor has granted to Secured
Party a security interest in, mortgage on, and conditional assignment of, all
right, title and interest of Debtor in and to the Trademarks, together with the
goodwill of the busi ness 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
Secured Obligations, as defined in the Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, Debtor does hereby further assign unto Secured
Party and grant to Secured Party a security interest in, and mortgage on, the
Collateral and effective upon the occurrence and during the continuance of an
Event of Default, to secure the prompt payment, performance and observance of
the Secured Obligations.
Debtor does hereby further acknowledge and affirm that the rights
and remedies of Secured Party with respect to security interest in, mortgage on,
and conditional assignment of, 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.
20
Secured Party's address is 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
IN WITNESS WHEREOF, Debtor has caused this Conditional Assignment to
be duly executed by its officer thereunto duly authorized as of the ____ day of
_______, 199_.
[Name of Debtor]
By
------------------------------------
Name:
------------------------------
Title:
------------------------------
2
21
SCHEDULE 2-A TO CONDITIONAL ASSIGNMENT FOR SECURITY
TRADEMARKS
Trademark Reg. Date Reg. No.
--------- --------- --------
22
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 [Name of Debtor], a
Delaware corporation with its principal office at [ ] (hereinafter called
"Debtor") hereby appoints and constitutes The Chase Manhattan Bank, a New York
banking corporation, as agent (referred to herein as the "Secured Party") for
(i) the lenders (the "Lenders") named in Schedules 2.01(a) and 2.01(b) of the
Credit Agreement dated as of August 22, 1996 among Recreation Vehicle Products,
Inc., the Guarantors at any time party thereto, the Lenders and the Secured
Party (as amended, modified or supplemented from time to time in accordance with
its terms, the "Credit Agreement"; capitalized terms used herein and undefined
shall have the respective meanings assigned to such terms in the Credit
Agreement) and (ii) for itself as issuer of the Letters of Credit and party to
the Rate Agreements, its true and lawful attorney, with full power of
substitution, and with full power and authority to perform the following acts on
behalf of Debtor and upon the occurrence and during the continuance of an Event
of Default:
1. For the purpose of assigning, selling, licensing or
otherwise disposing of all right, title and interest of Debtor in
and to any letters patent of the United States or Canada, any State
or Province thereof, as applicable, 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 agree ments, 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 Debtor 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 there- for, 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
23
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 Secured Party may in its sole discretion
determine.
This power of attorney is made pursuant to a Security Agreement and
Mortgage - Trademarks and Patents, dated as of August 22, 1996, between Debtor
and Secured Party and takes effect solely for the purposes of paragraphs 3(d)
and (e) thereof and is subject to the conditions thereof and may not be revoked
until the payment in full of all "Secured Obligations" as defined in such
Security Agreement and Mortgage.
Dated: __________, 199_
[Corporate Seal] [Name of Debtor]
By
------------------------------------
Name:
------------------------------
Title:
------------------------------
2
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of ________, 199_, before me personally appeared ,
to me known, who, being by me duly sworn, did depose and say that he resides at
and that he is of [Name of Debtor], 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
[Seal]
3
