EXHIBIT 4(b)(10)
AMENDED AND RESTATED TRADEMARK COLLATERAL
ASSIGNMENT AND SECURITY AGREEMENT
---------------------------------
AGREEMENT made this 10th day of December, 2001 by and between TII NETWORK
TECHNOLOGIES, INC., formerly known as TII INDUSTRIES, INC., a Delaware
corporation ("DEBTOR"), with its chief executive office at 0000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 and GMAC COMMERCIAL CREDIT LLC, formerly known as BNY
FACTORING LLC, as successor by merger to BNY FINANCIAL CORPORATION, ("SECURED
PARTY"), having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
--------------------
WHEREAS, Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, trade names, terms,
designs and applications therefor described in Schedule A annexed hereto and
made a part hereof; and
WHEREAS, Secured Party and Debtor have heretofore entered into financing
arrangements pursuant to which Secured Party has made and may continue to make
loans and advances and provide other financial accommodations to Debtor as set
forth in the Revolving Credit, Term Loan and Security Agreement, dated April 30,
1998, by and among Secured Party and Debtor and TII Corporation (the "CREDIT
AGREEMENT"), the Trademark Collateral Assignment and Security Agreement dated
April 30, 1998 by and between Debtor and Secured Party (the "Existing Trademark
Security Agreement"), together with various other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, this
Agreement (all of the foregoing, together with the Credit Agreement and the
Existing Trademark Security Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "FINANCING AGREEMENTS"); and
WHEREAS, pursuant to the terms of this Amended and Restated Trademark
Collateral Assignment and Security Agreement, the Secured Party and Debtor have
agreed to amend and restate the terms of the Existing Trademark Security
Agreement to update and modify certain information contained therein; and
WHEREAS, as an inducement to the Secured Party to continue to make loans
and advances and provide other financial accommodations pursuant to the
Financing Agreements, Debtor has agreed to grant to Secured Party certain
collateral security as set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
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1. GRANT OF SECURITY INTEREST
--------------------------
(a) As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Debtor hereby grants to Secured Party a continuing security interest in and a
general lien upon, and hereby conditionally assigns to Secured Party: all of
Debtor's now existing or hereafter acquired right, title, and interest in and
to: all of Debtor's trademarks, trade names, tradestyles and service marks; all
prints and labels on which said trademarks, trade names, tradestyles and service
marks appear, have appeared or will appear, and all designs and general
intangibles of a like nature; all applications, registrations and recordings
relating to the foregoing in the United States Patent and Trademark Office or in
any similar office or agency of the United States, any State thereof, any
political subdivision thereof or in any other countries, and all reissues,
extensions and renewals thereof including those trademarks, terms, designs and
applications described in Schedule A hereto (the "TRADEMARKS"); the goodwill of
the business symbolized by each of the Trademarks, including, without
limitation, all customer lists and other records relating to the distribution of
products or services bearing the Trademarks; and (c) any and all proceeds of any
of the foregoing, including, without limitation, any claims by Debtor against
third parties for infringement of the Trademarks or any licenses with respect
thereto (all of the foregoing are collectively referred to herein as the
"COLLATERAL").
2. OBLIGATIONS SECURED
-------------------
The security interest, lien and other interests granted to Secured Party
pursuant to this Agreement shall secure the prompt performance, observance and
indefeasible payment in full of any and all loans, indebtedness, liabilities and
obligations of any kind owing by Debtor to Secured Party, however evidenced,
whether as principal, guarantor or otherwise, whether arising under the Credit
Agreement, the other Financing Agreements or otherwise, whether now existing or
hereafter arising, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, original, renewed or extended and whether arising directly
or acquired from others (including, without limitation, Secured Party's
participations or interests in Debtor's obligations to others) and including,
without limitation, Secured Party's charges, commissions, interest, expenses,
costs and attorneys' fees chargeable to Debtor under this agreement, the
Financing Agreements or in connection with any of the foregoing (all hereinafter
referred to as "OBLIGATIONS").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Debtor hereby represents, warrants and covenants to Secured Party the
following (which shall survive the execution and delivery of this Agreement),
the truth and accuracy of which, or compliance with, being a continuing
condition of the making of loans by Secured Party to Debtor under the Financing
Agreements:
(a) Debtor will pay and perform all of the Obligations according to
their terms.
(b) All of the existing Collateral is valid and subsisting in full
force and effect, and Debtor owns the sole, full, and clear title thereto, and
the right and power to grant the
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security interests granted hereunder. Debtor will, at Debtor's expense, perform
all acts and execute all documents necessary to maintain the existence of the
Collateral as valid, subsisting and registered trademarks, including, without
limitation, the filing of any renewal affidavits and applications. The
Collateral is not subject to any liens, claims, mortgages, assignments,
licenses, security interests, or encumbrances of any nature whatsoever, except
the security interests granted hereunder and the licenses permitted under
Section 3(e) below.
(c) 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 relating thereto, except as permitted herein,
in the Financing Agreements, or otherwise dispose of any of the Collateral
without the prior written consent of Secured Party. Nothing in this agreement
shall be deemed a consent by Secured Party to any such action, except as such
action is expressly permitted hereunder.
(d) Debtor will, at Debtor's expense, perform all acts and execute all
documents requested at any time by Secured Party to evidence, perfect, maintain,
record, or enforce the security interest in the Collateral granted hereunder or
to otherwise further the provisions of this agreement. Debtor hereby authorizes
Secured Party to execute and file one or more financing statements (or similar
documents) with respect to the Collateral, signed only by Secured Party or as
otherwise determined by Secured Party. Debtor further authorizes Secured Party
to have this or any other similar security agreement filed with the Commissioner
of Patents and Trademarks or other appropriate federal, state or government
office.
(e) As of the date hereof, Debtor does not have any Trademarks
registered, or subject to pending applications, in the United States Patent and
Trademark Office or any similar office or agency in the United States other than
those described in Schedule A annexed hereto and has not granted any licenses
with respect thereto other than as set forth in Schedule B hereto.
(f) Debtor will, concurrently with the execution and delivery of this
agreement, execute and deliver to Secured Party five (5) originals of a Power of
Attorney in the form of Exhibit I annexed hereto for the implementation of the
assignment, sale or other disposition of the Collateral pursuant to Secured
Party's exercise of the rights and remedies granted to Secured Party hereunder.
(g) Secured Party may, in its discretion, pay any amount or do any act
which Debtor fails to pay or do as required hereunder or as requested by Secured
Party to preserve, defend, protect, maintain, record, amend or enforce the
Obligations, the Collateral, or the security interest granted hereunder
including but not limited to all filing or recording fees, court costs,
collection charges and reasonable attorneys' fees. Debtor will be liable to
Secured Party for any such payment, which payment shall be deemed an advance by
Secured Party to Debtor, shall be payable on demand together with interest at
the then applicable rate set forth in the Financing Agreements and shall be part
of the Obligations secured hereby.
(h) Debtor shall not file any application for the registration of a
Trademark with the United States Patent and Trademark Office or any similar
office or agency in the United States, any state therein, or any other country,
unless Debtor has by thirty (30) days prior written notice informed Secured
Party of such action. Upon request of Secured Party, Debtor shall
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execute and deliver to Secured Party any and all assignments, agreements,
instruments, documents and such other papers as may be requested by Secured
Party to evidence the security interests of Secured Party in such Trademark.
(i) Debtor has not abandoned any of the Trademarks and Debtor will not
do any act, nor omit to do any act, whereby the Trademarks may become abandoned,
invalidated, unenforceable, avoided or avoidable. Debtor shall notify Secured
Party immediately if it knows or has reason to know of any reason why any
application, registration, or recording may become abandoned, canceled,
invalidated, avoided or avoidable.
(j) Debtor will render any assistance necessary to Secured Party in
any proceeding before the United States Patent and Trademark Office, any federal
or state court, or any similar office or agency in the United States or any
state therein or any other country to maintain such application and registration
of the Trademarks as Debtor's exclusive property and to protect Secured Party's
interest therein, including, without limitation, filing of renewals, affidavits
of use, affidavits of incontestability and opposition, interference, and
cancellation proceedings.
(k) Debtor will promptly notify Secured Party if Debtor (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. If requested by Secured
Party, Debtor, at Debtor's expense, shall join with Secured Party in such action
as Secured Party, in its discretion, may deem advisable for the protection of
Secured Party's interest in and to the Trademarks.
(l) 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
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, labelling,
sale or advertisement of any such product by Debtor (or any affiliate or
subsidiary thereof).
(m) Debtor will promptly pay Secured Party for any and all costs and
reasonable expenditures incurred by Secured Party, pursuant to the provisions of
this agreement or for the defense, protection, or enforcement of the
Obligations, the Collateral, or the security interests granted hereunder,
including, but not limited to, all filing or recording fees, court costs,
collection charges, travel expenses, and reasonable attorneys' fees and
reasonable legal expenses. Such costs and reasonable expenditures shall be
payable on demand, together with interest at the then applicable rate set forth
in the Financing Agreements and shall be part of the Obligations secured hereby.
4. EVENTS OF DEFAULT
-----------------
All Obligations shall become immediately due and payable, without notice or
demand, at the option of Secured Party, upon the occurrence of any one or more
defaults or events of default hereunder or under any of the Financing Agreements
(each an "EVENT OF DEFAULT" hereunder).
-4-
5. RIGHTS AND REMEDIES
-------------------
Upon the occurrence of any such Event of Default and during the continuance
thereof, in addition to all other rights and remedies of Secured Party, whether
provided under law, the Financing Agreements or otherwise, Secured Party shall
have the following rights and remedies which may be exercised without notice to,
or consent by, Debtor except as such notice or consent is expressly provided for
hereunder:
(a) Secured Party may require that neither Debtor nor any affiliate or
subsidiary of Debtor make any use of the Trademarks or any marks similar thereto
for any purpose whatsoever. Secured Party may make use of any Trademarks for the
sale of goods, completion of work in process or rendering of services in
connection with enforcing any other security interest granted to Secured Party
by Debtor or any subsidiary of Debtor.
(b) Secured Party may grant such license or licenses relating to the
Collateral for such term or terms, on such conditions, and in such manner, as
Secured Party shall in its discretion deem appropriate. Such license or licenses
may be general, special, or otherwise, and may be granted on an exclusive or
non-exclusive basis throughout all or any part of the United States of America,
its territories and possessions, and all foreign countries.
(c) Secured Party may assign, sell or otherwise dispose of the
Collateral or any part thereof, either with or without special conditions or
stipulations except that if notice to Debtor of intended disposition of
Collateral is required by law, the giving of five (5) business days notice in
the manner set forth in subparagraph 6(b) hereof shall be deemed reasonable
notice thereof and Debtor waives any other notice with respect thereto. Secured
Party shall have the power to buy the Collateral or any part thereof, and
Secured Party shall also have the power to execute assurances and perform all
other acts which Secured Party may, in its discretion, deem appropriate or
proper to complete such assignment, sale, or disposition.
(d) In addition to the foregoing, in order to implement the
assignment, sale, or other disposition of any of the Collateral pursuant to
Subparagraph 5(c) hereof, Secured Party may at any time execute and deliver on
behalf of Debtor, pursuant to the authority granted in the Powers of Attorney
described in Subparagraph 3(f) hereof, one or more instruments of assignment of
the Trademarks (or any application, registration, or recording relating
thereto), in form suitable for filing, recording, or registration. Debtor agrees
to pay Secured Party on demand all costs incurred in any such transfer of the
Collateral, including, but not limited to, any taxes, fees, legal expenses and
reasonable attorneys' fees and legal expenses.
(e) Secured Party may first apply the proceeds actually received from
any such license, assignment, sale, or other disposition of Collateral to the
costs and expenses thereof, including, without limitation, attorneys' fees and
all legal, travel and other expenses which may be incurred by Secured Party.
Thereafter, Secured Party may apply any remaining proceeds to such of the
Obligations as Secured Party may in its discretion determine. Debtor shall
remain liable to Secured Party for any expenses or obligations remaining unpaid
after the application of such proceeds, and Debtor will pay Secured Party on
demand any such unpaid amount, together with interest at a rate equal to the
highest rate then payable on the Obligations.
-5-
(f) Debtor shall supply to Secured Party or its designee, Debtor's
knowledge and expertise relating to the manufacture and sale of the products and
services bearing the Trademarks and Debtor's customer lists and other records
relating to the Trademarks and the distribution thereof.
(g) Nothing contained herein shall be construed as requiring Secured
Party to take any such action at any time. All of Secured Party's rights and
remedies, whether provided under law, the Financing Agreements, this agreement,
or otherwise, shall be cumulative and none is exclusive. Such rights and
remedies may be enforced alternatively, successively, or concurrently.
6. MISCELLANEOUS
-------------
(a) Any failure or delay by Secured Party to require strict
performance by Debtor of any of the provisions, warranties, terms, and
conditions contained herein or in any other agreement, document, or instrument,
shall not affect Secured Party or Secured Party's right to demand strict
compliance and performance therewith, and any waiver of any default shall not
waive or affect any other default, whether prior or subsequent thereto, and
whether of the same or of a different type. None of the warranties, conditions,
provisions, and terms contained herein or in any other agreement, document, or
instrument shall be deemed to have been waived by any act or knowledge of
Secured Party, its agents, officers, or employees, but only by an instrument in
writing, signed by an officer of Secured Party and directed to Debtor,
specifying such waiver.
(b) All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been given or made: if by hand, telex,
telegram or facsimile immediately upon sending; if by Federal Express, Express
Mail or any other overnight delivery service, one (1) day after dispatch; and if
mailed by certified mail, return receipt requested, five (5) business days after
mailing. All notices, requests and demands are to be given to the respective
parties at the following addresses (or to such other addresses as either party
may designate by notice in accordance with the provisions of this paragraph) set
forth herein:
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If to Debtor: TII NETWORK TECHNOLOGIES, INC.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Secured Party: GMAC COMMERCIAL CREDIT LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Loan Administration Department
Xx. Xxxxx Xxxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) In the event that any provision hereof shall be deemed to be
invalid by any court, such invalidity shall not affect the remainder of this
agreement.
(d) All references to Debtor and Secured Party herein shall include
their respective successors and assigns. All references to the term "person" or
"Person" herein shall mean any individual, sole proprietorship, limited
partnership, general partnership, corporation (including a business trust),
unincorporated association, joint stock corporation, trust, joint venture,
association, organization or other entity or government or any agency or
instrumentality or political subdivision thereof.
(e) This agreement shall be binding upon and for the benefit of the
parties hereto and their respective successors and assigns. No provision hereof
shall be modified, altered or limited except by a written instrument expressly
referring to this agreement signed by the party to be charged thereby.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICT OF
LAWS RULES). ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST THE DEBTOR WITH
RESPECT TO ANY OF THE OBLIGATIONS, THIS AGREEMENT OR ANY RELATED AGREEMENT MAY
BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK,
UNITED STATES OF AMERICA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
DEBTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE SECURED PARTY TO
BRING PROCEEDINGS AGAINST THE DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION.
THE DEBTOR WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
INSTITUTED HEREUNDER AND
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SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED
UPON FORUM NON CONVENIENS. ANY JUDICIAL PROCEEDINGS BY THE DEBTOR AGAINST THE
SECURED PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR ANY RELATED
AGREEMENT, SHALL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT LOCATED IN XXX XXXX
XX XXX XXXX, XXXXX XX XXX XXXX.
(g) EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE, AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(h) In the event of any conflict of any of the terms or provisions of
this Agreement with any of the terms or provisions of the Credit Agreement, the
terms or provisions of the Credit Agreement shall control.
(i) This agreement amends, restates, replaces and supercedes in its
entirety, without a breach in continuity, the Existing Trademark Security
Agreement, as the Existing Trademark Security Agreement has heretofore been
amended, restated, renewed, replaced, substituted, extended or otherwise
modified.
-8-
IN WITNESS WHEREOF, Debtor and Secured Party have executed this agreement
as of the day and year first above written.
TII NETWORK TECHNOLOGIES, INC.,
FORMERLY KNOWN AS TII INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: President
GMAC COMMERCIAL CREDIT LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Title: Senior Vice President
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SUFFOLK )
As of this 10th day of January, 2002, before me personally came Xxxxxxx X.
Xxxxx, to me known, who being duly sworn, did depose and say, that he is the
President of TII NETWORK TECHNOLOGIES, INC., the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
As of this 10th day of January, 2002, before me personally came Xxxxx
Xxxxxxxx, to me known, who, being duly sworn, did depose and say, that he is a
Senior Vice President of GMAC COMMERCIAL CREDIT LLC, the limited liability
company described in and which executed the foregoing instrument; and that he
signed his name thereto with the consent of the members thereof.
/s/ Xxxxx X. Xxxxx
------------------------------------
Notary Public
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SCHEDULE A
LIST OF TRADEMARKS AND APPLICATIONS
--------------------------------------------------------------------------------------------------------------------
Trademark Registration/ Registration/
Application Number Application Date
--------------------------------------------------------------------------------------------------------------------
TII 912,671 06/08/71
--------------------------------------------------------------------------------------------------------------------
THOR 1,111,268 01/16/79
--------------------------------------------------------------------------------------------------------------------
TII 1,112,170 01/30/71
--------------------------------------------------------------------------------------------------------------------
TFS 1,114,427 03/06/79
--------------------------------------------------------------------------------------------------------------------
TOTEL FAILSAFE 1,122,720 07/24/79
--------------------------------------------------------------------------------------------------------------------
AdvanceMan 1,131,674 03/11/80
--------------------------------------------------------------------------------------------------------------------
PARTYLINE PAK 1,131,675 03/11/80
--------------------------------------------------------------------------------------------------------------------
TII 1,155,357 05/26/81
--------------------------------------------------------------------------------------------------------------------
BIG MAC 1,267,817 02/21/84
--------------------------------------------------------------------------------------------------------------------
TII (Electronics) 1,304,795 11/13/84
--------------------------------------------------------------------------------------------------------------------
TII (Fiber Optics) 1,925,136 10/10/95
--------------------------------------------------------------------------------------------------------------------
LIGHTRAX 2,074,184 06/24/97
--------------------------------------------------------------------------------------------------------------------
AUTO-XXXX 2,074,236 06/24/97
--------------------------------------------------------------------------------------------------------------------
PRO-TRACTOR 75/187,089 PENDING
--------------------------------------------------------------------------------------------------------------------
TII 6672-95 PENDING
(Venezuela)
--------------------------------------------------------------------------------------------------------------------
TOTEL 75/477600 05/01/98
--------------------------------------------------------------------------------------------------------------------
TOTEL LIGHTING SHIELD 75/624509 01/21/99
--------------------------------------------------------------------------------------------------------------------
TII LIGHTNING SHIELD 75/625670 01/25/99
(STYLIZED)
--------------------------------------------------------------------------------------------------------------------
ANGLE DRIVER 75/000000 12/17/99
--------------------------------------------------------------------------------------------------------------------
TOTEL LIGHTING SURGE
SHIELD 76/102653 08/03/00
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--------------------------------------------------------------------------------------------------------------------
Trademark Registration/ Registration/
Application Number Application Date
--------------------------------------------------------------------------------------------------------------------
TII LIGHTING SURGE 76/102366 08/03/00
SHIELD
--------------------------------------------------------------------------------------------------------------------
M2 76/195632 01/17/01
--------------------------------------------------------------------------------------------------------------------
TII LIGHTING AND
POWER SURGE SHIELD 76/271011 06/13/01
--------------------------------------------------------------------------------------------------------------------
SCHEDULE B
PERMITTED LIENS AND LICENSES
----------------------------
None
-12-
EXHIBIT I
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
KNOW ALL MEN BY THESE PRESENTS, that TII NETWORK TECHNOLOGIES, INC.
("DEBTOR"), having an office at 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
hereby appoints and constitutes, severally, GMAC COMMERCIAL CREDIT LLC ("SECURED
PARTY"), and each of its officers, its true and lawful attorney, with full power
of substitution and with full power and authority to perform the following acts
on behalf of Debtor at any time after the occurrence and during the continuance
of an Event of Default under the Security Agreement (as hereinafter defined):
1. Execution and delivery of any and all agreements, documents, instrument
of assignment, or other papers which Secured Party, in its discretion, deems
necessary or advisable for the purpose of assigning, selling, or otherwise
disposing of all right, title, and interest of Debtor in and to any trademarks
and all registrations, recordings, reissues, extensions, and renewals thereof,
or for the purpose of recording, registering and filing of, or accomplishing any
other formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements,
certificates or other papers which Secured Party, in its discretion, deems
necessary or advisable to further the purposes described in Subparagraph 1
hereof.
This Power of Attorney, being a power coupled with an interest, is made
pursuant to an Amended and Restated Trademark Collateral Assignment and Security
Agreement between Debtor and Secured Party, of even date herewith (the "SECURITY
AGREEMENT") and may not be revoked until indefeasible payment in full of all
Debtor's "Obligations", as such term is defined in the Security Agreement and is
subject to the terms and provisions thereof.
December 10, 2001
TII NETWORK TECHNOLOGIES, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SUFFOLK )
As of this 10th day of January, 2002, before me personally came Xxxxxxx X.
Xxxxx, to me known, who being duly sworn, did depose and say, that he is the
President of TII NETWORK TECHNOLOGIES, INC., the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
------------------------------------
Notary Public
