CONFORMED COPY
SECURITY AGREEMENT dated as of March 10, 1995, among ETHAN
XXXXX INC., a Delaware corporation (the "Borrower"); the
subsidiaries of the Borrower listed on Schedule I hereto
(collectively, the "Subsidiary Grantors"; the Borrower and the
Subsidiary Grantors being collectively called the "Grantors");
and CHEMICAL BANK, a New York banking corporation, as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties, as defined herein.
Reference is made to the Credit Agreement dated as of March 10, 1995 (as
amended or modified from time to time, the "Credit Agreement"), among the
Borrower, Ethan Xxxxx Interiors Inc. ("Holdings"), the financial institutions
party thereto, as lenders (the "Lenders") and Chemical Bank, as administrative
agent (in such capacity, the "Administrative Agent").
The Lenders have agreed to extend credit to, and the Issuing Bank has
agreed to issue Letters of Credit for the account of, the Borrower pursuant to,
and subject to the terms and conditions specified in, the Credit Agreement. Each
of Holdings and the Subsidiary Grantors has agreed to guarantee, among other
things, all the obligations of the Borrower under the Credit Agreement. The
obligations of the Lenders to extend credit and of the Issuing Bank to issue
Letters of Credit under the Credit Agreement are conditioned upon, among other
things, the execution and delivery by the Grantors of a security agreement in
the form hereof to secure (a) the due and punctual payment by the Borrower of
(i) 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, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter or Letters of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all other monetary
obligations of the Borrower to the Secured Parties under the Credit Agreement
and the other Loan Documents to which the Borrower is or is to be a party, (b)
the due and punctual performance of all other obligations of the Borrower under
the Credit Agreement and the other Loan Documents to which the Borrower is or is
to be a party, (c) the due and punctual payment and performance of all
obligations of the Borrower under each Rate Protection Agreement entered into
with any counterparty that was a Lender at the time such Rate Protection
Agreement was entered into and (d) the due and punctual payment and performance
of all obligations of each of Holdings and the Subsidiary Grantors under the
Loan Documents to which it is or is to be a party (all of the foregoing
obligations being collectively called the "Obligations").
Accordingly, the Grantors and the Collateral Agent hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Terms Defined in the Credit Agreement. Terms used herein and
not otherwise defined herein shall have the meanings set forth in the Credit
Agreement.
SECTION 1.02. Definitions of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become obligated
to a Grantor under, with respect to or on account of an Account.
"Accounts" shall mean any and all rights of any Grantor to payment for
goods or services sold or leased, including any such right evidenced by chattel
paper, whether due or to become due, whether or not earned by performance and
whether now existing or arising in the future, including accounts receivable
from Affiliates of the Grantors, but excluding Dealer Notes.
"Accounts Receivable" shall mean all Accounts and all rights in any
returned goods, together with all rights, titles, securities and guarantees with
respect thereto, including any rights to stoppage in transit, replevin,
reclamation and resales, and all related security interests, liens and pledges,
whether voluntary or involuntary.
"Collateral" shall mean (i) Accounts Receivable, (ii) Documents, (iii)
General Intangibles, (iv) Intercompany Claims, (v) Inventory, (vi) Proceeds and
(vii) Collection Deposit Accounts; provided that Excluded Assets shall not
constitute
Collateral.
"Collection Deposit Account" shall mean a lockbox account of a Grantor
maintained for the benefit of the Secured Parties with the Collateral Agent
pursuant to Article V or with a Sub-Agent pursuant to a Lockbox Agreement.
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"Copyright License" shall mean any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Grantor: (i) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (ii) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule II.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Documents" shall mean all instruments, files, records, ledger sheets and
documents covering or relating to any of the Collateral.
"Excluded Assets" shall mean fixtures, equipment, motor vehicles, any
other tangible personal property (except Inventory), Dealer Notes and rights
(whether as lessor or lessee) under leases.
"General Intangibles" shall mean all choses in action and causes of action
and all other assignable intangible personal property of any Grantor of every
kind and nature (other than Accounts Receivable) now owned or hereafter acquired
by any Grantor, including corporate or other business records, contract rights
(including rights under Rate Protection Agreements and other agreements, but
excluding rights under leases, whether entered into as lessor or lessee),
Intellectual Property, goodwill, registrations, franchises, tax refund claims
and any letter of credit, guarantee, claim, security interest or other security
held by or granted to any Grantor to secure payment by an account debtor of any
of the Accounts Receivable.
"Intellectual Property" shall mean all intellectual and similar property
of any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof
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and related documentation, registrations and franchises, and all additions,
improvements and accessions to, and books and records describing or used in
connection with, any of the foregoing.
"Intercompany Claims" shall mean any and all rights of any Grantor in
respect of loans, advances or other claims owed to such Grantor by any of
Holdings, the Borrower or any Subsidiary, other than Accounts and other than
loans, advances or other claims evidenced by an instrument pledged pursuant to
the Pledge Agreement.
"Inventory" shall mean all goods of a Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished by a
Grantor under contracts of service, or consumed in a Grantor's business,
including raw materials, intermediates, work in progress, packaging materials,
finished goods, semi-finished inventory, scrap inventory, manufacturing supplies
and spare parts, and all such goods that have been returned to or repossessed by
or on behalf of any Grantor.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements in
existence as of the date hereof and listed on Schedule III and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"Lockbox Agreement" shall mean a Lockbox Agreement substantially in the
form of Annex 1 hereto among a Grantor, the Collateral Agent and a Sub-Agent.
"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any inventory
on which a Patent, now or hereafter owned by any Grantor or which such Grantor
otherwise has the right to license, is in existence, or granting to such Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of such Grantor under
any such agreement.
"Patents" shall mean all of the following now owned or hereafter acquired
by any Grantor: (i) all letters Patent of the United States or any other
country, all registrations and recordings thereof, and all applications for
letters Patent of the United States or any other country, including
registrations,
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recordings and pending applications in the United States Patent and Trademark
Office or any similar offices in any other country, including those listed on
Schedule IV, and (ii) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claims therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" means a certificate substantially in the form of
Annex 2 hereto, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Financial Officer and the chief
legal officer of the Borrower.
"Proceeds" shall mean any consideration received from the sale, exchange,
license, lease or other disposition of any asset or property which constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property which constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
or held on behalf of the Collateral Agent pursuant to the Lockbox Agreements or
any other lockbox or similar arrangement relating to the payment of Accounts
Receivable and Inventory and (b) any claim of any Grantor against any third
party for (and the right to xxx and recover for and the rights to damages or
profits due or accrued arising out of or in connection with) (i) past, present
or future infringement of any Patent now or hereafter owned by any Grantor or
licensed under a Patent License, (ii) past, present or future infringement or
dilution of any Trademark now or hereafter owned by any Grantor or licensed
under a Trademark License or injury to the goodwill associated with or
symbolized by any Trademark now or hereafter owned by any Grantor, (iii) past,
present or future breach of any License, (iv) past, present or future
infringement of any Copyright now or hereafter owned by any Grantor or licensed
under a Copyright License, and (v) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Secured Parties" shall mean (a) the Lenders party to the Credit
Agreement, (b) each counterparty to a Rate Protection Agreement entered into
with the Borrower, if such counterparty was a Lender at the time such Rate
Protection Agreement was entered into, (c) the Administrative Agent, the
Collateral Agent and the Issuing Bank, in their capacities as such under each
Loan Document, (d) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document, and (e) the successors and
assigns of the foregoing.
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"Security Interest" shall have the meaning assigned to such term in Section
2.01.
"Sub-Agent" shall mean a financial institution which shall have delivered
to the Collateral Agent an executed Lockbox Agreement.
"Trademark License" shall mean any written instrument, now or hereafter in
effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting to such Grantor any right to use any Trademark now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (i) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office,
any State of the United States or any similar offices in any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule V, (ii) all goodwill associated therewith or
symbolized thereby, and (iii) all other assets, rights and interests that
uniquely reflect or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
SECURITY INTEREST
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, of the Obligations, each Grantor hereby
bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates
and transfers to the Collateral Agent, its successors and its assigns, for the
benefit of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all of such Grantor's right, title and interest in, to and under
the Collateral (the "Security Interest"). Without limiting the foregoing, the
Collateral Agent
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is hereby authorized to file one or more financing statements, continuation
statements, filings with the United States Patent and Trademark Office or United
States Copyright Office (or any successor office or any similar office in any
other country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
The Grantors agree at all times to keep accurate and complete accounting
records with respect to the Collateral, including a record of all payments and
Proceeds received.
SECTION 2.02. No Assumption of Liability. The Security Interest is granted
as security only and shall not subject the Collateral Agent or any Secured Party
to, or in any way alter or modify, any obligation or liability of any Grantor
with respect to or arising out of any of the Collateral.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantors jointly and severally represent and warrant to the Collateral
Agent and the Lenders that:
SECTION 3.01. Title and Authority. Each of the Grantors has good and valid
rights in and title to the Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms
of this Agreement, without the consent or approval of any other person other
than any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete. Fully executed Uniform Commercial Code financing
statements or other appropriate filings, recordings or registrations containing
a description of the Collateral have been delivered to the Collateral Agent for
filing in each governmental, municipal or other office specified in Schedule 6
to the Perfection Certificate, which are all the filings, recordings and
registrations (other than filings required to be made in the United States
Patent and Trademark Office and the United States Copyright Office in order to
perfect the Security Interest in Collateral consisting of United States Patents,
registered trademarks and registered copyrights) that
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are necessary to publish notice of and protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral Agent
(for the benefit of the Secured Parties) in respect of all Collateral in which
the Security Interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements.
(b) Each Grantor shall ensure and warrants that fully executed security
agreements in the form hereof and containing a description of all Collateral
consisting of Intellectual Property shall have been received and recorded within
three months after the execution of this Agreement with respect to United States
Patents and United States registered Trademarks (and Trademarks for which United
States registration applications are pending) and within three months after the
execution of this Agreement with respect to United States registered Copyrights
by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205
and the regulations thereunder, as applicable, and otherwise as may be required
pursuant to the laws of any jurisdiction outside the United States where any
Trademarks, Copyrights or Patents are registered (a "Foreign Registration
Jurisdiction") to protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent (for the benefit of
the Secured Parties) in respect of all Collateral consisting of Patents,
Trademarks and Copyrights in which a security interest may be perfected by
filing, recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions or in any Foreign
Registration Jurisdiction and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary (other than
such actions as are necessary to perfect the Security Interest with respect to
any Collateral consisting of Patents, Trademarks and Copyrights (or registration
or application for registration thereof) acquired or developed after the date
hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial
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Code or other applicable law in such jurisdictions or in any Foreign
Registration Jurisdiction and (c) a security interest that shall be perfected in
all Collateral in which a security interest may be perfected upon the receipt
and recording of this Agreement with the United States Patent and Trademark
Office and the United States Copyright Office, as applicable, within the
three-month period (commencing as of the date hereof) pursuant to 35 U.S.C. ss.
261 or 15 U.S.C. ss. 1060 or the three-month period (commencing as of the date
hereof) pursuant to 17 U.S.C. ss. 205 and otherwise as may be required pursuant
to the laws of any Foreign Registration Jurisdiction. The Security Interest is
and shall be prior to any other Lien on any of the Collateral.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted by the
Credit Agreement. Other than as contemplated hereby and except for filings
expressly permitted by the Credit Agreement, none of the Grantors has filed or
consented to the filing of (a) any financing statement or analogous document
under the Uniform Commercial Code or any other applicable laws covering any
Collateral, (b) any assignment in which any Grantor assigns any Collateral or
any security agreement or similar instrument covering any Collateral with the
United States Patent and Trademark Office or the United States Copyright Office
or (c) any assignment in which any Grantor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any
foreign governmental, municipal or other office.
SECTION 3.05. Intellectual Property. Schedules II, III, IV
and V hereto set forth accurate and complete descriptions of all
Copyrights, Licenses, Patents and Trademarks of each Grantor.
ARTICLE IV
COVENANTS
SECTION 4.01. Change of Name; Location of Collateral; Records; Place of
Business. (a) Each of the Grantors agrees promptly to notify the Collateral
Agent of any change (i) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility) or
(iii) in its identity or corporate structure. Each of the Grantors agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform
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Commercial Code or otherwise which are required in order for the Collateral
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. Each of the Grantors agrees
promptly to notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each of the Grantors agrees to maintain complete and accurate records
with respect to the Collateral owned by it and, at such time or times as the
Collateral Agent may request, promptly to prepare and deliver to the Collateral
Agent a duly certified schedule or schedules in form and detail satisfactory to
the Collateral Agent showing the identity, amount and location of any and all
Collateral.
SECTION 4.02. Post-Closing Certification. Within three months after the
Closing Date, the Borrower shall deliver to the Collateral Agent a certificate
executed by a Financial Officer and the chief legal officer of the Borrower
setting forth, with respect to each filing, recording or registration
contemplated by Section 3.02(b), the filing office, date and file number thereof
and attaching true, correct and complete acknowledgement copies of each such
filing, recording or registration.
SECTION 4.03. Protection of Security. Each of the Grantors shall, at its
own cost and expense, take any and all actions necessary to defend title to the
Collateral against all persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Liens
not expressly permitted under the Credit Agreement.
SECTION 4.04. Further Assurances. Each of the Grantors agrees, at its
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
Agent may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection with
the execution and delivery of this Agreement, the granting of the Security
Interest and the filing of any financing statements or other documents in
connection herewith. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory note or other
instrument, such note or instrument shall be immediately pledged and delivered
to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule II, III, IV or V hereto or
adding
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additional schedules hereto to specifically identify any asset or item that may
constitute Copyrights, Licenses, Patents or Trademarks; provided, however, that
any Grantor shall have the right, exercisable within 10 days after it has been
notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect to
such Collateral. Each Grantor agrees that it will use its best efforts to take
such action as shall be necessary in order that all representations and
warranties hereunder shall be true and correct with respect to such Collateral
within 30 days after the date it has been notified by the Collateral Agent of
the specific identification of such Collateral.
SECTION 4.05. Intercompany Claims. If at any time any Intercompany Claim
is evidenced by any promissory note or other instrument, the applicable Grantor
shall promptly pledge such note or other instrument pursuant to the Pledge
Agreement.
SECTION 4.06. Taxes; Encumbrances. At its option, the Collateral Agent may
discharge past due taxes, assessments, charges, fees, liens, security interests
or other encumbrances at any time levied or placed on the Collateral and not
permitted under the Credit Agreement, and may pay for the maintenance and
preservation of the Collateral to the extent any of the Grantors fails to do so
as required by the Credit Agreement or this Agreement, and each of the Grantors
jointly and severally agrees to reimburse the Collateral Agent on demand for any
payment made or any expense incurred by the Collateral Agent pursuant to the
foregoing authorization; provided, however, that nothing in this Section shall
be interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Collateral Agent or any Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances and maintenance
as set forth herein or in the Credit Agreement.
SECTION 4.07. Assignment of Security Interest. If at any time any of the
Grantors shall take and perfect a security interest in any property of an
Account Debtor or any other person to secure payment and performance of an
Account, such Grantor shall promptly assign such security interest to the
Collateral Agent. Such assignment need not be filed of public record unless
necessary to continue the perfected status of the security interest against
creditors of and transferees from the Account Debtor or other person granting
the security interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each of the Grantors
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it
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under each contract, agreement or instrument relating to the Collateral, all in
accordance with the terms and conditions thereof, and the Grantors jointly and
severally agree to indemnify and hold harmless the Collateral Agent and the
Secured Parties from and against any and all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral except as
expressly permitted by the Credit Agreement. None of the Grantors shall make or
permit to be made any transfer of the Collateral and each Grantor shall remain
at all times in possession of the Collateral owned by it, except that (a)
Inventory may be sold in the ordinary course of business and (b) unless and
until the Collateral Agent shall notify the Grantors that an Event of Default
shall have occurred and be continuing and that during the continuance thereof
the Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Collateral (which notice may be given by telephone if promptly
confirmed in writing), the Grantors may use and dispose of the Collateral in any
lawful manner not inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document. Without limiting the generality of the
foregoing, each Grantor agrees that (i) it shall not permit any Inventory to be
in the possession or control of any warehouseman, bailee, agent or processor at
any time unless such possession or control will not effect the perfection and
priority of the Security Interest in such Inventory or arrangements are made so
that such perfection and priority will not be affected and (ii) if any warehouse
receipt (or other receipt in the nature of a warehouse receipt) is issued with
respect to any Inventory, such receipt shall be delivered to the Collateral
Agent.
SECTION 4.10. Limitation on Modification of Accounts. None of the Grantors
will, without the Collateral Agent's prior written consent, grant any extension
of the time of payment of any of the Accounts Receivable, compromise, compound
or settle the same for less than the full amount thereof, release, wholly or
partly, any person liable for the payment thereof or allow any credit or
discount whatsoever thereon, other than extensions, credits, discounts,
compromises or settlements granted or made in the ordinary course of business or
otherwise in accordance with prudent and reasonable business practices.
SECTION 4.11. Insurance. (a) The Borrower, at its own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Inventory in accordance with the provisions of the Credit Agreement. All
such policies of insurance shall be endorsed or otherwise amended to include a
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lender's loss payable endorsement, in form and substance satisfactory to the
Collateral Agent, which shall provide that from and after the date, if any, on
which the insurance carrier receives written notice from the Collateral Agent
that an Event of Default has occurred, all proceeds otherwise payable to the
Borrower or any other Grantor under such policies shall be payable directly to
the Collateral Agent. Such endorsement or an independent instrument furnished to
the Collateral Agent shall provide that the insurance carriers will give the
Collateral Agent at least 30 days' prior written notice before any such policy
or policies of insurance shall be altered or canceled and that no act or default
of any Grantor or any other person shall affect the right of the Collateral
Agent to recover under such policy or policies of insurance in case of loss or
damage.
(b) Each Grantor irremovably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby to pay any premium in whole or part
relating thereto, the Collateral Agent may, without waiving or releasing any
obligation or liability of the Grantors hereunder or any Event of Default, in
its sole discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral Agent
deems advisable. All sums disbursed by the Collateral Agent in connection with
this Section, including reasonable attorneys' fees, court costs, expenses and
other charges relating thereto, shall be payable, upon demand, by the Grantors
to the Collateral Agent and shall be additional Obligations secured hereby.
SECTION 4.12. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, nor will it permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to xxxx any products
covered by a Patent with the relevant Patent number as necessary and sufficient
to establish and preserve its maximum rights under applicable Patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the
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conduct of such Grantor's business, (i) maintain such Trademark in full force
free from any claim of abandonment or invalidity for non-use, (ii) maintain the
quality of products and services offered under such Trademark, (iii) display
such Trademark with notice of federal or foreign registration to the extent
necessary and sufficient to establish and preserve its maximum rights under
applicable law and (iv) not knowingly use or knowingly permit the use of such
Trademark in violation of any third party rights.
(c) Each Grantor (either itself or through licensees) will, for each work
covered by a material Copyright, continue to publish, reproduce, display, adopt
and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately if it knows
or has reason to know that any Patent, Trademark or Copyright material to the
conduct of its business may become abandoned, lost or dedicated to the public,
or of any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United States
Patent and Trademark Office, United States Copyright Office or any court or
similar office of any country) regarding such Grantor's ownership of any Patent,
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly informs
the Collateral Agent, and, upon request of the Collateral Agent, executes and
delivers any and all agreements, instruments, documents and papers as the
Collateral Agent may reasonably request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright, and each Grantor
hereby appoints the Collateral Agent as its attorney-in-fact to execute and file
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.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material
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application relating to the Patents, Trademarks and/or Copyrights (and to obtain
the relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights which is material to the conduct
of any Grantor's business, including timely filings of applications for renewal,
affidavits of use, affidavits of incontestability and payment of maintenance
fees, and, if consistent with good business judgment, to initiate opposition,
interference and cancellation proceedings against third parties.
(g) In the event that any Collateral consisting of a Patent, Trademark or
Copyright material to the conduct of any Grantor's business is believe
infringed, misappropriated or diluted by a third party, such Grantor promptly
shall notify the Collateral Agent after it obtains knowledge thereof and shall,
if consistent with good business judgment, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and take such other actions as are
appropriate under the circumstances to protect such Collateral.
(h) Upon and during the continuance of an Event of Default, each Grantor
shall use its best efforts to obtain all requisite consents or approvals by the
licensor of each Copyright License, Patent License or Trademark License to
effect the assignment of all the Grantors' right, title and interest thereunder
to the Collateral Agent or its designee.
ARTICLE V
COLLECTIONS
SECTION 5.01. Collection Deposit Accounts. (a) At any time that an Event
of Default has occurred and is continuing, upon the written request of the
Collateral Agent, each Grantor agrees to establish and maintain one or more
Collection Deposit Accounts with the Collateral Agent or with any financial
institution that is satisfactory to the Collateral Agent and enters into a
Lockbox Agreement.
(b) Upon and after the establishment of any Collection Deposit Accounts as
provided above, each Grantor shall use all reasonable efforts to prevent any
funds which are not payments on Accounts Receivable or Inventory from being
deposited into, or otherwise commingled with, the funds held in the Collection
Deposit Accounts. Unless and until the Collection Deposit Accounts are converted
to closed lockbox accounts pursuant to paragraph (c) below, each Grantor may at
any time withdraw any of the funds contained in a Collection Deposit Account of
such
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Grantor for use, subject to the provisions of the Loan Documents, for general
corporate purposes.
(c) Effective upon notice to the Grantors from the Collateral Agent after
the occurrence and during the continuance of an Event of Default (which notice
may be given by telephone if promptly confirmed in writing), each Collection
Deposit Account will, without any further action on the part of any Grantor, the
Collateral Agent or any Sub-Agent, convert into a closed lockbox account under
the exclusive dominion and control of the Collateral Agent in which funds are
held subject to the rights of the Collateral Agent hereunder. No Grantor shall
thereafter have any right or power to withdraw any funds from any Collection
Deposit Account without the prior written consent of Collateral Agent until all
Events of Default are cured or waived. The Grantors irrevocably authorize the
Collateral Agent to notify each Sub-Agent (i) of the occurrence of an Event of
Default and (ii) of the matters referred to in this paragraph (c). Following the
occurrence of an Event of Default, the Collateral Agent may instruct each
Sub-Agent to transfer immediately all funds held in each Collection Deposit
Account to an account maintained with the Collateral Agent.
SECTION 5.02. Collections. So long as no Event of Default shall have
occurred and be continuing, the Grantors shall have the right to collect all
Accounts Receivable and other payments in respect of Inventory in the ordinary
course of their businesses; provided, however, that the Grantors agree, if an
Event of Default shall occur and be continuing and if the Collateral Agent shall
by notice to the Grantors so request (which notice may be given by telephone if
promptly confirmed in writing), (i) to arrange for remittances on any Accounts
Receivable and Inventory to be made directly to Collection Deposit Accounts
established in accordance with Section 5.01, and (ii) promptly to deposit all
payments received by the Grantors on account of Accounts Receivable and
Inventory, whether in the form of cash, checks, notes, drafts, bills of
exchange, money orders or otherwise, in such Collection Deposit Accounts in
precisely the form in which received (but with any endorsements of the Grantors
necessary for deposit or collection), and until they are so deposited such
payments shall be held in trust by the Grantors for and as the property of the
Collateral Agent and shall not be commingled with the Grantors' other funds.
SECTION 5.03. Power of Attorney. The Collateral Agent shall have the
right, as the true and lawful agent and attorney-in-fact of each of the
Grantors, with power of substitution for the Grantors and in each Grantor's name
or otherwise, for the use and benefit of the Collateral Agent and the Secured
Parties, upon the occurrence and during the continuance of an Event of Default
(a) to receive, endorse, assign and/or deliver any and all notes,
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acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to sign the name of any Grantor on any invoice or xxxx of lading
relating to any of the Collateral; (d) to send verifications of Accounts
Receivable to any Account Debtor; (e) to commence and prosecute any and all
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect of any Collateral; (f) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or
any of the Collateral; (g) to notify, or to require the Grantors to notify,
Account Debtors to make payment directly to the Collateral Agent; and (h) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and
things necessary to carry out the purposes of this Agreement, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Collateral Agent or any
Secured Party to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent or any Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby, and no action taken or
omitted to be taken by the Collateral Agent or any Secured Party with respect to
the Collateral or any part thereof shall give rise to any defense, counterclaim
or offset in favor of any Grantor or to any claim or action against the
Collateral Agent or any Secured Party. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of the
Grantors for the purposes set forth above is coupled with an interest and is
irrevocable. The provisions of this Section shall in no event relieve any of the
Grantors of any of its obligations hereunder or under the Credit Agreement with
respect to the Collateral or any part thereof or impose any obligation on the
Collateral Agent or any Secured Party to proceed in any particular manner with
respect to the Collateral or any part thereof, or in any way limit the exercise
by the Collateral Agent or any Secured Party of any other or further right which
it may have on the date of this Agreement or hereafter, whether hereunder, under
any other Loan Document, by law or otherwise.
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ARTICLE VI
REMEDIES
SECTION 6.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each of the Grantors agrees to deliver each
item of Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right (subject to applicable law) to take any of
or all the following actions at the same or different times: (a) with respect to
any Collateral consisting of Intellectual Property, on demand, to cause the
Security Interest to become an assignment, transfer and conveyance of any of or
all such Collateral by the applicable Grantors to the Collateral Agent, or to
license or, to the extent permitted by applicable law, sublicense, whether
general, special or otherwise, and whether on an exclusive or nonexclusive
basis, any such Collateral throughout the world on such terms and conditions and
in such manner as the Collateral Agent shall determine (other than in violation
of any then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without previous
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the Collateral may be
located for the purpose of taking possession of or removing the Collateral and,
generally, to exercise any and all rights afforded to a secured party under the
Uniform Commercial Code or other applicable law. Without limiting the generality
of the foregoing, each of the Grantors agrees that the Collateral Agent shall
have the right, subject to the mandatory requirements of current law, to sell or
otherwise dispose of all or any part of the Collateral, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery as the Collateral Agent shall deem appropriate.
The Collateral Agent shall be authorized at any such sale (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Collateral Agent shall have
the right to assign, transfer and deliver to the purchaser or purchasers thereof
the Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on the part of any of the
Grantors, and each of the Grantors hereby waives (to the extent permitted by
law) all rights of redemption, stay and appraisal which such Grantor now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted.
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The Collateral Agent shall give the Grantors 10 days' written notice
(which each of the Grantors agrees is reasonable notice within the meaning of
Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions) of the Collateral Agent's
intention to make any sale of Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
Notice (if any) of such sale. At any such sale, the Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is paid by
the purchaser or purchasers thereof, but the Collateral Agent shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. At any public sale made pursuant to this
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any of the Grantors (all said rights being also hereby waived and
released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to such Secured Party from any of the Grantors as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to any of the Grantors therefor. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and none of the Grantors shall be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all
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Events of Default shall have been remedied and the Obligations paid in full. As
an alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
this Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver.
SECTION 6.02. Application of Proceeds. The Collateral Agent shall apply the
proceeds of any collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement or any
of the Obligations, including all court costs and the fees and expenses of
its agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Loan Document on behalf of
any of the Grantors and any other costs or expenses incurred in connection
with the exercise of any right or remedy hereunder or under any other Loan
Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution);
THIRD, to the extent and so long as any Letter or Letters of Credit
remain outstanding and entrain, to be held and retained by the Collateral
Agent and applied to reimburse the Issuing Bank for any L/C Disbursement
thereafter made; and
FOURTH, to the Grantors, their successors or assigns, or as a court
of competent jurisdictions may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchase or purchasers shall not be
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obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in anyway for the
misapplication thereof.
SECTION 6.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article VI at such time as the Collateral Agent shall be lawfully entitled
to exercise such rights and remedies, each Grantor hereby grants to the
Collateral Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Grantors) to use, license or
sublicense any of the Collateral consisting of Intellectual Property now owned
or hereafter acquired by such Grantor, and wherever the same may be located, and
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof. The use of such license
by the Collateral Agent shall be exercised, at the option of the Collateral
Agent, upon the occurrence and during the continuation of an Event of Default;
provided that any license, sublicense or other transaction entered into by the
Collateral Agent in accordance herewith shall be binding upon the Grantors
notwithstanding any subsequent cure of an Event of Default.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Grantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Borrower.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement or any other Loan Document,
any agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or instrument,
(c) any exchange, release or non- perfection of any Lien on other collateral, or
any release or
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amendment or waiver of or consent under or departure from any guarantee,
securing or guaranteeing all or any of the Obligations, or (d) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, any Grantor, in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, and the issuance by the Issuing Bank of any Letters of Credit,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign
its rights hereunder or any interest herein or in the Collateral except as
expressly contemplated by this Agreement or the Credit Agreement. This Agreement
shall be construed as a separate agreement with respect to each Grantor and may
be amended, modified, supplemented, waived or released with respect to any
Grantor without the approval of any other Grantor and without affecting the
obligations of any other Grantor hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.06. Collateral Agent Appointed Attorney-in-Fact. Each of the
Grantors hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument which the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest.
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SECTION 7.07. Collateral Agent's Expenses; Indemnification. (a) Each of
the Grantors jointly and severally agrees to pay upon demand to the Collateral
Agent 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
Collateral Agent may incur in connection with (i) the administration of this
Agreement (including the customary fees of the Collateral Agent for any audits
conducted by it with respect to the Accounts Receivable or Inventory ), (ii) the
custody or preservation of, or the sale of, collection from or other realization
upon any of the Collateral, (iii) the exercise, enforcement or protection of any
of the rights of the Collateral Agent hereunder or (iv) the failure of the
Grantors to perform or observe any of the provisions hereof.
(b) Without limitation of their indemnification obligations under the
other Loan Documents, each of the Grantors jointly and severally agrees to
indemnify the Collateral Agent and the other Secured Parties against, and hold
each of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any of them arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto or to the
Collateral, whether or not any Secured Party is a party thereto; provided that
such indemnity shall not, as to any Secured Party, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Secured Party.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Collateral Agent or
any Lender. All amounts due under this Section shall be payable on written
demand therefor.
SECTION 7.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay of the Collateral
Agent in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single
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or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Collateral Agent hereunder and of the Collateral Agent, the
Administrative Agent and the Lenders under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provisions of this Agreement or consent to any
departure by any Grantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Grantor in any case shall entitle such Grantor
or any other Grantor to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Collateral Agent and the Grantor or Grantors with respect to which
such waiver, amendment or modification is to apply, with (and subject to) the
prior written consent of the Required Lenders or, if the effect of such
agreement is to release all or any substantial part of the Collateral other than
in accordance with Section 7.15, each Lender.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.11. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
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SECTION 7.12. 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 contract (subject to Section 7.04), and
shall become effective as provided in Section 7.04.
SECTION 7.13. Headlines. Article and Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.14. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Grantor or its properties in the courts of any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.15. Termination. This Agreement and the Security Interest shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further
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commitment to extend credit and the Issuing Bank has no further commitment to
issue Letters of Credit under the Credit Agreement and all outstanding Letters
of Credit have been cancelled (or at such earlier time as such termination
occurs pursuant to and in accordance with Section 9.17 of the Credit Agreement),
at which time the Collateral Agent shall execute and deliver to the Grantors, at
the Grantors' expense, all Uniform Commercial Code termination statements and
similar documents which the Grantors shall reasonably request to evidence such
termination. Any execution and delivery of termination statements or documents
pursuant to this Section 7.15 shall be without recourse to or warranty by the
Collateral Agent. Each Subsidiary Grantor shall automatically be released from
its obligations hereunder and the Security Interest in the Collateral owned by
such Subsidiary Grantor shall be automatically released in the event that all
the capital stock of such Subsidiary Grantor shall be sold, transferred or
otherwise disposed of to a person that is not an Affiliate of the Borrower in
accordance with the terms of the Credit Agreement; provided that the Required
lenders shall have consented to such sale, transfer or other disposition and the
terms of such consent did not provide otherwise.
SECTION 7.16. Additional Grantors. Upon execution and delivery by the
Collateral Agent and a Subsidiary of an instrument in the form of Annex 3
hereto, such Subsidiary shall become a Subsidiary Grantor and Grantor hereunder
with the same force and effect as if originally named as a Subsidiary Grantor
and Grantor herein. The execution and delivery of any such instrument shall not
require the consent of any Grantor hereunder. The rights and obligations of each
Grantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Grantor as a party to this Agreement.
-26-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
ETHAN XXXXX INC.
By /s/ X. Xxxxxx Kathwari
Name: X. Xxxxxx Kathwari
Title: President
ANDOVER WOOD PRODUCTS, INC.
By /s/ X. Xxxxxx Kathwari
Name: X. Xxxxxx Kathwari
Title: President
ETHAN XXXXX MANUFACTURING
CORPORATION
By /s/ X. Xxxxxx Kathwari
Name: X. Xxxxxx Kathwari
Title: President
ETHAN XXXXX FINANCE
CORPORATION
By /s/ X. Xxxxxx Kathwari
Name: X. Xxxxxx Kathwari
Title: President
CHEMICAL BANK, as Collateral
Agent
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
-27-
SCHEDULE I
to the Security Agreement
SUBSIDIARY GRANTORS
1. Andover Wood Products, Inc.
2. Ethan Xxxxx Manufacturing Corporation
3. Ethan Xxxxx Finance Corporation
SCHEDULE II
to the Security Agreement
SCHEDULE OF U.S. COPYRIGHTS AND COPYRIGHT APPLICATIONS
============================================================================
Registration Registration
Copyright Number Date
----------------------------------------------------------------------------
Customer follow-up card PA-217-001 04/05/84
system--securing the in-home
call
The Ethan Xxxxx philosophy PA-217-002 04/05/84
Expanding horizons PA-217-003 04/05/84
Selling the Ethan Xxxxx way PA-217-004 04/05/84
Increase your sales, the in- PA-217-005 04/05/84
home calls
How to sell Xxxxx Xxxxx xxxx PA-217-006 04/05/84
furniture
Ethan Xxxxx summer sale '83 PA-217-007 04/05/84
How to sell Ethan Xxxxx PA-217-008 04/05/84
upholstered furniture
Presenting the Treasury PA-217-009 04/05/84
Recruitment and selection: PA-217-010 04/05/84
in search of the perfect
designer salesperson
Ethan Xxxxx lighting, value PA-217-011 04/05/84
plus
Winter sales '84 PA-217-012 04/05/84
Basic window treatments PA-217-013 04/05/84
Ethan Xxxxx floorcovering: PA-225-565 04/05/84
broadloom & oriental rugs
Ethan Xxxxx summer sale '84 PA-228-339 09/12/84
Ethan Xxxxx recliners PA-228-340 09/12/84
Spring decorating sale '84 PA-228-341 09/12/84
Xxxxx Xxxxx'x spring PA-234-586 11/08/84
collections, 1984
Your first home PA-234-587 11/08/84
Christmas mailer promotion PA-234-588 11/08/84
'84
Xxxxx Xxxxx xxxxxx sale '85 PA-240-557 01/22/85
Ethan Xxxxx spring sale '85 PA-252-484 04/24/85
The Ethan Xxxxx consumer PA-273-941 10/25/85
finance plan
Ethan Xxxxx broadlooms TX-1-319-747 04/05/84
Xxxxx Xxxxx xxxx furniture TX-1-319-748 04/05/84
construction
Ethan Xxxxx bedspreads TX-1-319-749 04/05/84
Ethan Xxxxx glossary of TX-1-319-750 04/05/84
furniture terms
Ethan Xxxxx product reference TX-1-319-751 04/05/84
guide: Heirloom
Ethan Xxxxx broadloom: TX-1-319-752 04/05/84
estimating and measuring
American traditional: a TX-1-505-415 01/31/85
comprehensive guide to home
decorating the Ethan Xxxxx
way
Creating organized analytical TX-523-061 08/07/80
coaching habits
-2-
SCHEDULE III
to the Security Agreement
SERVICEMARK LICENSES
Name Location Date Marks
Concord House of Lubbock, Inc. 0000 X. Xxxx 000 0/00/00 0
Xxxxxxx, XX 00000 5/5/92
Wayside Furniture Shops, Inc. Derby 5/20/93 0
Xxxxxxx
Xxxxxxx
Xxxxxxxxxxx
Xxxxxxx Heirloom House Limited 0000 Xxxxx Xx. XX 0/0/00 0
Xxxxxxx, Xxxxxxx, CN
Chalmor Furniture 0000 Xxxxxxxx Xxxxxx -- 0
Xxxx Xxxxx, XX 00000
Hubbards Home Furnishings, Inc. 00 X. Xxxxxxx Xxxxxx 6/12/92 1
Batavia, IN
3685 Investment Ltd. 00 Xxxx Xxxxxx Xxxxxx --/93 1
Coquitlan, B.C.
Montclair Interiors Inc. 5001-5003 Xxxxxxxxx Xxxxx 0/0 0
Xxxxx
Xxxxxxxxx, XX 00000
Fischers Associates Rainbow 0000 X. Xxxxxxx Xxxx. 10/26/94 2
Corporation Xxx Xxxxx, XX 00000
Cooke, Rider, and Xxxxxxx 0000 Xxxxx Xxxxxx North 10/7/94 2
C.R.F., Inc. Xxxxxxxx, XX 00000
Xxxxxxx Brothers, Incorporated 000-000 Xxxx Xxxx Xxxxxx 00/00/00 0
Xxxxxxxxx, XX
Fredeens Interiors Inc. 00 Xxxxxxxx Xxxx 0/00/00 0
Xxxxxx, Xxxxxxx
Xxxxxx X0X 0XX
X.X. Xxxxxxx, Inc. 000 X. Xxxxx 00 0/0/00 0
Xxxxxx, XX 00000
Whippany Manor 000 Xxxxx 00 0/0/00 0
Xxxxxxxx, XX 00000
Xxxxxx'x Carriage House Inc. Santa Rosa, CA 6/10/92 1
W&B Furniture Inc. 0000 Xxxx Xxxxxx Xxxxxx 0/0/00 0
Xxxxx, XX 00000
Village Carriage House, Inc. 0000 Xxxxxxxxxx Xxxxxxx 0/00/00 0
Xxxxxx, XX 00000
Village Shops Inc. 000 X. Xx Xxxxxx Xxxx 0/0/00 0
Xx. Xxxx, XX 00000
Valley Manor South Inc. 00000 Xxxxx Xxxxx Xxxxxxx 0/00/00 0
Xxxxx, XX 00000
Valley Manor 0000 Xxxxx Xxxxxx 0/0/00 0
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 0000 Xxxxx X. Xxxxxx 0/0/00 0
Xxx Xxxxxxxxxx, XX 00000
0000 Xxxxxxx Xxx 6/1/92 1
Corona, CA
United Home Furnishings, Inc. 000 X. 0xx Xxxxxx 0/00/00 0
Xxxxxxx, XX 00000
Traditional Interiors, Inc. 000 Xxxxxxxxx Xxxx 5/15/92 1
82B
Xxxxx, XX 00000
Xxxxx & DBA Sacramento, CA 5/5/93 1
Tradition House, Inc. 0000 X. Xxxxxxx 0/0/00 0
Xxxxxxx, XX 00000
Xxxxxxxx'x Carriage House, Inc. 0000 X. Xxxxx Xxxxxx Xxxxx 1/23/93 X/X
Xxxxxx Xxxxxxx, XX 00000 (11/11/92)
Xxxxxx Furniture Co. 000 Xxxx X.X. Xxxx 000 0/0/00 0
Xxxxx, XX 00000
-2-
000 Xxxx Xxx
Xxxxxx, XX 00000
Xxxxx'x Carriage House Inc. 0000 X. Xxxxxx Xxxxxx 0/0/00 X/X
Xxxxxxxxxxx, XX 00000
TWT, Inc. 000 XXX Xxxx 000 00/00/00 X/X
Xxxxx, XX 00000
________ Carriage House 0000 X. Xxxxxxx 00 4/27/92 1
St. Xxxx, MN
Star Furniture 000 X. Xxxxxxxx Xxxx. 0/00/00 0
Xxxxxxxx, XX 00000
Stacy's Enterprises, Inc. 00000 X.X. 00 S. 5/28/92 1
Ft. Xxxxx, XX 00000
Simon's Home Furnishings, Inc. 0000 Xxxxxxx Xxxx 0/0/00 0
Xxxx, XX 00000
Shipley's Inc. 0000 Xxxxxxx Xxxx 0/0/00 0
Xxxxxxxxx, XX 00000
Xxxxxxx Furniture Co. Inc. 000 Xxxxx Xx. 5/29/92 1
No. Plymouth, MA
Xxxxxx X. Xxxxx, Inc. Colorado Springs, CO 4/27/92 1
Xxxxxxxx Furniture 000000 Xxxx Xxxx Xxxxxx 7/22/92 1
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxx Inc. 0000 Xxxxxxxx Xxxxx Xxxx 4/28/92 1
Fayetteville, NC
Xxxx Carriage House, Inc. 0000 X. Xxxxxx Xxxx 0/0/00 0
Xxxxxx, XX 00000
R&G Furniture Corp. Xxxxxxxx Xxxx 0/0/00 0
Xxxxxx, XX 00000
Greece Xxxxx Xxxx 0/0/00 0
Xxxxxxxxx, XX 00000
-3-
Restful Furniture Corp. 000 Xxxxxxx Xxxxxxx 0/00/00 0
Xxxxxxxx, XX 00000
Xxx X. Xxxxxxxx & Sons Inc. Austin, TX 5/5/93 1
Abilene, TX
Odessa, TX
National Retail Corporation 0000 Xxxxx Xxxxxxxxx 0/00/00 0
Xxxxxxxxxxxx, XX
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX
(Orlando, FL)
Xxxxxxx'x Galleries, Inc. 0000 Xxxxxxxx Xx. 0/0/00 0
Xxxxxxxxxx, XX 00000
Nassau's Canton, CT 5/30/92 0
Xxxxxxx, XX
N&K Furniture Corporation 0000 Xxxxxxxxxx Xxxxxxx 0/0/00 0
Xxxxxxxxxx, XX 00000
Xxxxxxxx Furniture Inc. 00000 Xxxxxxxxx Xxxxxxx 0/0/00 0
Xxxxxxx Xxxxxx, XX 00000
Orlando Park, IL
The Manor House Inc. 0000 Xxxxx 00xx Xxxxxx 0/00/00 0
Xxxxxxx, XX 00000
Xxxx Xxxxx & Sons 4545 So. ___ Xxxx 0/0/00 0
Xxxx Xxxx Xxxx, XX 00000
Manor House Richmond, VA 6/29/92 1
Mak Inc. 0000 Xxxxxxxxx Xx. 0/0/00 0
Xxxx Xxxx, XX 00000
McFarlands Carriage House 000 X. Xxxxx Xx. 6/23/92 1
Xxxxxx Xxxxx, XX 00000
-4-
X.X. Xxxxxx'x Xxxxxxxx Xxxxx Xxxxx Xxxx, XX 00000 5/5/93 1
Hartsdale, NY
Kweller's Georgetown Manor, 0000 Xxxxxxxx Xxxx. 6/1/92 1
Inc. Xxxxxxxxx, XX 00000
Xxxxxx Home Furnishings Center 0000 Xxxxxxxxxxxx Xxxx 6/25/92 1
Inc. Xxxxxxxxxxxx, XX 00000
Mirons 0000 Xxxxx 00 0/00/00 0
Xxxxxxxx, XX 00000
East Brunswick, NJ 4/28/91 1
Kitslaar's Carriage House Inc. 2350 So. Oneida St. 5/5/93 1
Xxxxx Xxx, XX 00000
Kineads Ethan Xxxxx 0000 Xxxxxxx Xxxxxx 0/0/00 0
Xxxxxxxxxx, XX 00000
Jonsey Inc. 000 Xxxxxx Xxxxxx 0/00/00 0
Xxxxxxxx, XX
Home Furniture
Home Furniture & Appliance 000 X. Xxxx 0/0/00 0
Xxxxx, XX
Home Environments Inc. 000 Xx 000 Xxxx 4/27/92 1
Bedford, NH
Xxxxxx'x Furniture Co., Inc. 00 Xxxx Xxxxx Xxxxxx 10/13/92 1
Xxxxxxxxxxxx, XX 00000
Grand Gallery of Shreveport, 8824 Xxxxxx Drive 5/5/93 1
Inc. Shreveport, LA
Grand Gallery, Inc. 0000 Xxxxxxx Xxxx. 0/00/00 0
Xxxxx Xxxxx, XX 00000
Gesman's Ethan Xxxxx 0000 Xxxxxxx Xxx. 0/0/00 X/X
Xxxxxxxxxxx, XX
-5-
Xxxxx Furniture Co. 0000 Xxxxx Xxxx 0/0/00 0
Xxxxxx, XX 00000
Georgetown Manor Inc. Portland, OR 6/1/92 1
Clackamas, OR
Georgetown Manor 0000 X. Xxxxxx Xx. 0/0/00 0
Xxxxx Xxx, XX 00000
Xxxxx'x Furniture Co. Inc. 0000 Xxxx Xxxxx Xxxx. 0/0/00 0
Xxxxxxxxx, XX 00000
(3 locations)
Fratco Inc. 000 Xxxxxxxx Xxxx. 0/0/00 0
Xxxxxx Xxxxxx, XX 00000
Xxxxxx'x Carriage House 305 So. Central Expwy 5/5/93 1
Xxxxxxxxxx, XX 00000
Xxxxxx'x Carriage House 0000 X. Xxxxx Xx. 0/0/00 0
Xxxxxxxx, XX 00000
Xxxxxxx Corporation 0000 X. Xxxxxxx Xxx. 5/4/92 1
Xxx Xxxxx, XX 00000
Xxxxx Xxxxx Xxxxxx Xxxx, XX 0/0/00 0
Xxxxxxxxxxxx, XX
Xxxxxxx'x Inc. 000 Xxxxx Xxxx Xxxx 0/0/00 0
Xxxxxxx, XX 00000
Xxxx'x Inc. Main St. 8/11/92 1
Xxxxxxxxx, XX 00000
Xxxxxxx Furniture Co. 0000 00xx Xx. XX 0/00/00 0
Xxxxx Xxxxxx, XX 00000
Davidsons Furniture Co. 0000 X. Xxxxx Xx. 0/0/00 0
Xxxxx, XX 00000
70th & Xxx Xxxx 5/5/93 1
Xxxxxxx, XX 00000
X. X. Xxxxxxxx & Sons, Inc. 000 X. Xxxxxxxx Xxxx. 0/0/00 0
Xxxxxxx, XX
-6-
0000-0 Xxxxxxxx Xx. 0/0/00 0
Xxxxxxxxxxxx, XX
Country Manor 000 X. Xxxx Xx. 0/0/00 0
Xxxxxxxx, XX 00000
Concord House 0000 Xxxxxxx Xxx. 0/0/00 0
Xxxxxxxxxxx, XX 00000
Xxxxx Furniture Company 0000 Xxxx Xxxxxx 0/0/00 0
Xxxxxxxxxxx, XX 00000
Classic Imports, S.A. 1618 Xxxxxxxxxxx Xx. 0/0/00 0
XX X.X. Xxxxxx Xxxx, Xxxxxx
Xxxxxx Furniture Co. 0000 X. Xxxx Xx. 0/0/00 0
Xxxxxxxxxxx, XX 00000
Carriage Trade Inc. Xxxxxxxxx, XX 00000 1/9/05 0
Xxxxxxxx Xxxxx Xxxxxxxxx, 0000 X. Xxxx Xxxxx 5/3/92 1
Inc. Xxxxx, XX 00000
00000 Xxxxx Xxxxx 0/0/00 0
Xxxxx, XX 00000
Carriage House of 0000 X. Xxxxxxxxxxxx Xx. 5/5/93 1
Greenville Xxxxxxxxxx, XX 00000
Carriage House Gallery, Inc. 0000 Xxxxxx Xxxx 0/00/00 0
Xxxxxxx, XX 00000
Carriage House Inc. 0000 Xxxxxx Xxx. 5/12/92 1
Memphis, TN
Xxxxxxx Xxxxxx 0/00/00 0
Xxxxxxx, XX
Carriage House Inc. 0000 Xxxxxxx Xxxx 0/0/00 0
Xxx Xxxxxx, XX 00000
Carriage House Furniture 0000 Xxxxxxxxx Xx 5/4/92 1
Shop Inc. Xxxxxxxxx, XX 00000
-7-
Carriage House Furniture 00000 Xxxxxxxxxx Xxx. 6/8/92 1
Inc. S. Xxxxxxx, XX 00000
(3 locations)
Carriage House Furniture 0000 Xxxx Xxxxxxx Xxxx 10/20/92 1
Inc. Louisville, KY
Carriage House of Columbus 0000 Xxxxx Xx. 6/3/92 1
Inc. Xxxxxxxx, XX 00000
Carriage House 000 X. Xxxxxxx 00/00/00 X/X
Xxxxxx, XX 00000
Carriage House 00000 Xxxxxxxx Xxxx 0/00/00 0
Xxxxxxxxx, XX 00000
Carriage House 00000 Xxxxxxx Xxxxxx 0/0/00 0
Xxxxx, XX 00000
Xxxxx Xxxxx Xxxxxx, XX 00/0/00 0
Xxxxxxxx, XX
Xxxxxxx Carriage House Pinellas Park, FL 10/14/92 0
Xxxx Xxxxxx, XX
Xxxxxxxx, XX
Xxxxxxxx, XX
Xxxxxx Corp. 0000 X. Xxxxxxx 0/00/00 0
Xxxxxx, XX 00000
Brenners Furn. Co., Inc. 000 X. Xxxxx Xxxx 0/00/00 0
Xxxxxxx, XX 00000
Xxxxxxxx'x Xxxxx Xxxxx 2330 I-H 30 5/5/92 1
Xxxxxxxx, XX 00000
Xxxxxxx X. Company 000-000 X. Xxxxxxxx Xxxxxx / /92 1
Xxxxxxxx, XX 00000
Xxx & Sons, Inc. 000 Xxxxx Xxxxx 0/00/00 0
Xxxxxxxx Xxxxxxx, XX 00000
Xx X. Xxxxxxxxxx Inc. 0000 Xxxxxxxx Xxxx 0/0/00 0
Xxx Xxxx, XX
(2 Locations)
-8-
Xxxxx House of Trevose, Inc. 0000 Xxxxxx Xxxx 0/0/00 0
Xxxxxxx, XX 00000
Xxxxx House Inc. 0000 Xxxxxxxxx Xxxx / /92 1
Xxxxxxxxxxxxx, XX 00000
Xxxxx House of Pa. Inc. 000 Xxxxxxxxx Xxxx / /92 1
Xxxxxxxxxxxxxxx, XX 00000
Xxxxx House of Cherry 000 Xxxxx 00 / /92 1
Hill, Inc. Xxxxx Xxxxx, XX 00000
Xxxxxx'x Carriage House 0000 Xxxxx Xxxxx Xxxx 5/5/93 1
Inc. Xxxxxxxxxx, XX 00000 5/24/94 2
B&R Furniture Xxxxx Ave. & X. Xxxxxx Stre6/1/92 1
XxXxxx, NY 13066
Xxxx Enterprises Concord, CA 5/5/93 1
Americana Furniture Barn 000 Xxxx Xxxx Xxxx 5/13/93 1
Inc. Xxxxxx, XX 00000
Xxxxx Furniture Inc. 000 Xxxx Xxxx Xxxxxx 0/00/00 0
Xxxxxx, XX 00000
Abbey Coordinated Interiors 0000 Xxxxxxxx Xxxxx 0/0/00 0
Xxxxxxx, XX 00000
Carriage House Interiors 6 Locations - 5/5/93 1
Inc. Colorado & Corporation
Kwellers' Manor House 4118 Electric Road 12/18/92 1
Xxxxxxx, XX 00000
Xxxxx'x Xxxxx Xxxxx 0000 Xxxxx Xxxxxxx 0/00/00 0
Xxxxxxxxxx, XX 00000
Carriage House, Inc. 0000 X.X. Xxxxx 00 5/5/93 0
Xxxx Xxxxxxxxxx, XX 00000
Georgetown Interiors Inc. 00000 Xxxxxxxxxx Xxxx, XX 0/0/00 0
Xxxxxxxxxxx, XX 00000
-9-
Mared Furniture Inc. McMurray, PA 11/23/93 0
Xxxxxxxxxxx, XX
Xxxxxxx, XX
Andover Interiors Inc. 000 Xxxxxxx Xxxxxx 0/0/00 X/X
Xxxxx Xxxxxxx, XX 00000
Salvesen's Furniture 0000 Xxxxxxxx Xxxxxx 9/12/94 0
Xxxxxxxxx Xxxx Xxxxxx Xxxx, XX 00000
The Xxxxx Corporation Route 132 9/12/94 2
Xxxxxxx, XX 00000
Kalo Ltd. 0000 Xxxx 00xx Xxxxxx 7/14/94 2
Sioux Falls, SD
Xxxxxx & Xxxxx Inc. 0000 Xxxx Xxxxxxx 0/0/00 0
Xxxxxxxx, XX 00000
AJ Gallery of Boise Inc. 000 Xxxxx Xxxx Xxxx 0/00/00 0
Xxxxx, XX 00000
Servco Distributing Inc. 0000-X Xxxxxxxxxx 0/0/00 X/X
Xxxxxxx, XX 00000
Canterbury House Holiday Mall 9/15/92 N/A
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Inc. 0000 Xxxx Xxxx Xxxx 0/00/00 X/X
Xxxxxxx, XX 00000
(Amendment Only)
Xxxxxxx Furniture Inc. 000 Xxxx Xxxxxx 00/0/00 X/X
Xxxxxx, XX 00000
Notes
1 = Servicemarks include "Ethan Xxxxx", EA Logo & Design SM.
2 = Covers same marks as in Note 1 plus Ethan Xxxxx Trade Name.
3 = Above is subject to review for updating. May also need to include; Japan,
Jordan, Korea, Saudi Arabia.
-10-
SCHEDULE IV
to the Security Agreement
SCHEDULE OF U.S. PATENTS AND PATENT APPLICATIONS
I. PATENTS
---------------------------------------------------------------------
Inventor(s) Title Serial Number Filing Date
---------------------------------------------------------------------
Store Front 346,451 04/26/94
---------------------------------------------------------------------
Store Front 349,413 08/09/94
---------------------------------------------------------------------
Arm Chair 340,197 08/02/94
---------------------------------------------------------------------
Curio China 343,743 02/01/94
---------------------------------------------------------------------
Bed 336,797 06/29/93
---------------------------------------------------------------------
Div. of 005 345,264 03/22/94
---------------------------------------------------------------------
Xxxxxx Xxxx Furniture Knob 5,255,413 10/26/94
---------------------------------------------------------------------
Store Front II 346,664 05/03/94
---------------------------------------------------------------------
II. DESIGN PATENT APPLICATIONS
---------------------------------------------------------------------
Inventor(s) Title Serial Number Filing Date
---------------------------------------------------------------------
Xxxx Brand Store Front II 000,495 10/15/92
---------------------------------------------------------------------
Xxxxxx Xxxxx etSide Chair 877,018 05/01/92
---------------------------------------------------------------------
Xxxxxx Xxxxx etArm.Chair 877,019 05/01/92
---------------------------------------------------------------------
Xxxxxx Xxxxx etBed. 877,020 05/01/92
---------------------------------------------------------------------
Xxxxxx Xxxxx etCurio China 882,629 05/13/92
---------------------------------------------------------------------
Xxxx Brand Store Front 892,512 06/01/92
---------------------------------------------------------------------
Div. of 001 18,596 02/10/94
---------------------------------------------------------------------
Accent Chair 32,400 12/19/94
---------------------------------------------------------------------
Poster Bed 32,407 12/19/93
---------------------------------------------------------------------
Sofa/Cons. Table 32,406 12/19/93
---------------------------------------------------------------------
Ell. Coffee Table 32,405 12/19/94
---------------------------------------------------------------------
Disp. Coffee Table 32,404 12/19/94
---------------------------------------------------------------------
Curio Cabinet 32,403 12/19/94
---------------------------------------------------------------------
Entertainment Unit 32,402 12/19/94
---------------------------------------------------------------------
Armoire 32,401 12/19/94
---------------------------------------------------------------------
III. UTILITY PATENT APPLICATIONS
None.
SCHEDULE V
to the Security Agreement
U.S. TRADEMARKS AND TRADEMARK APPLICATIONS
I. Schedule of U.S. Trademark Registrations
=============================================================================
Trademark Registration Number Registration Date
-----------------------------------------------------------------------------
Ethan Xxxxx (Script Form) 381,746 10/01/40
-----------------------------------------------------------------------------
Ethan Xxxxx 697,295 05/10/60
-----------------------------------------------------------------------------
Ethan Xxxxx 737,146 09/04/62
-----------------------------------------------------------------------------
Xxxxx 851,020 06/18/68
-----------------------------------------------------------------------------
Ethan Xxxxx 903,549 12/01/70
-----------------------------------------------------------------------------
Ethan Xxxxx 903,855 12/08/70
-----------------------------------------------------------------------------
Ethan Xxxxx 904,124 12/15/70
-----------------------------------------------------------------------------
Ethan Xxxxx 905,053 12/29/70
-----------------------------------------------------------------------------
Ethan Xxxxx 906,171 01/19/71
-----------------------------------------------------------------------------
Ethan Xxxxx 907,552 02/09/71
-----------------------------------------------------------------------------
Ethan Xxxxx 907,567 02/10/71
-----------------------------------------------------------------------------
Ethan Xxxxx 910,034 03/16/71
-----------------------------------------------------------------------------
Ethan Xxxxx 911,916 06/08/71
-----------------------------------------------------------------------------
Ethan Xxxxx 922,385 10/19/71
-----------------------------------------------------------------------------
Ethan Xxxxx 929,420 02/22/72
-----------------------------------------------------------------------------
Ethan Xxxxx 930,136 02/28/72
-----------------------------------------------------------------------------
Ethan Xxxxx 942,357 03/05/72
-----------------------------------------------------------------------------
Ethan Xxxxx 972,404 11/06/73
-----------------------------------------------------------------------------
Ethan Xxxxx 998,857 11/19/74
-----------------------------------------------------------------------------
Knob Creek 1,000,742 12/31/74
-----------------------------------------------------------------------------
Ethan Xxxxx 1,003,506 01/28/75
-----------------------------------------------------------------------------
Ethan Xxxxx 1,003,584 01/28/75
-----------------------------------------------------------------------------
Ethan Xxxxx 1,003,604 01/28/75
-----------------------------------------------------------------------------
Ethan Xxxxx 1,003,617 01/28/75
-2-
-----------------------------------------------------------------------------
Ethan Xxxxx 1,003,605 01/28/75
-----------------------------------------------------------------------------
Ethan Xxxxx Inn (Script Form) 1,012,476 06/03/75
-----------------------------------------------------------------------------
Ethan Xxxxx 1,127,735 12/11/79
-----------------------------------------------------------------------------
Ethan Xxxxx in Colonial House 1,247,706 08/09/83
-----------------------------------------------------------------------------
Knob Creek and Design 1,337,963 05/28/85
-----------------------------------------------------------------------------
We Care About Your Home 1,510,514 10/25/88
-----------------------------------------------------------------------------
Newport Cherry 1,524,041 02/07/89
-----------------------------------------------------------------------------
Ethan Xxxxx In Colonial House 1,688,646 05/26/92
-----------------------------------------------------------------------------
Ethan Xxxxx 1,741,943 12/22/92
-----------------------------------------------------------------------------
American Expressions 1,801,558 10/26/93
-----------------------------------------------------------------------------
EA 1,801,318 10/20/93
-----------------------------------------------------------------------------
Ethan Xxxxx 1,741,943 12/22/92
-----------------------------------------------------------------------------
Ethan Xxxxx & Store Design #4 1,837,311 05/17/94
-----------------------------------------------------------------------------
II.Schedule of U.S. Trademark Applications
=============================================================================
Registration Registration
Trademark Number Date
-----------------------------------------------------------------------------
Ethan Xxxxx & Store Design #2 270,416 04/28/92
-----------------------------------------------------------------------------
Ethan Xxxxx & Store Design #1 272,475 04/28/92
-----------------------------------------------------------------------------
Ethan Xxxxx & Store Design #3 324,577 00/21/92
-----------------------------------------------------------------------------
Ethan Xxxxx in Colonial House 622,456 08/09/83
=============================================================================
-3-
III. Schedule of Trade, Fictitious and Other Names
================================================================================
Trade Names Used By: Jurisdictions
--------------------------------------------------------------------------------
Ethan Xxxxx Xxxxx Xxxxx Inc. Connecticut and in each
other state where Ethan
Xxxxx Inc. is qualified
to do business.
--------------------------------------------------------------------------------
Ethan Xxxxx Gallery Ethan Xxxxx Inc.
--------------------------------------------------------------------------------
Ethan Xxxxx Home Interiors Ethan Xxxxx Inc.
================================================================================
