EXHIBIT 2.9
[Execution Version]
TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
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THIS TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT ("Agreement"),
dated April 19, 2002, is by and between XXXXXX AIRPLANE COMPANY, INC., a
Delaware corporation ("Debtor"), with its chief executive xxxxxx xx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx 00000, and CONGRESS FINANCIAL CORPORATION
(SOUTHWEST), a Texas corporation ("Secured Party"), having an office at 0000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Debtor has adopted, will use, 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 Exhibit A hereto and made a part hereof;
and
WHEREAS, Secured Party and Advanced Aerodynamics & Structures, Inc.
("AASI") entered into the Assignment and Assumption Agreement, dated January 29,
2002, between Congress and AASI, as amended by Amendment No. 1 to Assignment
Agreements, dated April 9, 2002, between AASI and Congress and Amendment No. 2
to Assignment Agreements, dated of even date herewith, among AASI, Debtor and
Secured Party (the "Assignment and Assumption Agreement"); and
WHEREAS, AASI and Debtor have agreed to amend the Assignment Agreements to
include Debtor as a party obligated to Secured Party under the Assignment
Agreements for the payment and performance of the Deferred Purchase Price
Obligations (as hereinafter defined) and to provide for the grant by Debtor in
favor of Congress of a security interest in and lien on the Collateral (as
hereinafter defined) to secure the Deferred Purchase Price Obligations 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:
1. DEFINITIONS
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For purposes of this Agreement, the following terms shall have the
respective meanings given to them below:
(a) "AASI Secured Notes" shall mean, collectively (as the same now exist or may
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hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced), the following: the Amended and Restated Secured Tranche A Promissory
Note, dated of even date herewith, made by Debtor payable to the order of
Secured Party in the original principal amount of $500,000, the Amended and
Restated Secured Tranche B Promissory Note, dated of even date herewith, made by
Debtor payable to the order of Secured Party in the original principal amount of
$2,500,000, the Second Amended and Restated Secured Tranche C Promissory Note,
dated of even date herewith, made by Debtor payable to the order of Secured
Party in the original principal amount of $1,500,000, and the Amended and
Restated Limited Recourse Secured Tranche D Promissory Note, dated of even date
herewith, made by Debtor payable to the order
of the Secured Party in the original principal amount of $5,714,408.71; each
sometimes being referred to herein individually as an "AASI Secured Note".
(b) "Assignment Agreements" shall mean, collectively, the following (as the
same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced): the Assignment and Assumption Agreement, the
Transfer Notice (as defined in the Assignment and Assumption Agreement), the
Collateral Assignment of Secured Debt, the AASI Secured Notes and the other AASI
Security Agreements, this Agreement, and all other agreements, documents and
instruments executed or delivered in connection with any of the foregoing.
(c) "Collateral" shall have the meaning set forth in Section 2 hereto.
(d) "Deferred Purchase Price Obligations" shall mean all obligations,
liabilities and indebtedness of every kind, nature and description owing by
Debtor to Secured Party or its affiliates, including, without limitation,
principal, interest, charges, fees, costs and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, whether arising
under, evidenced by or related to any of the AASI Secured Notes, this Agreement,
the Assignment Agreements or otherwise, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of this Agreement or after the commencement of any case with respect to Debtor
under the United States Bankruptcy Code or any similar statute (including,
without limitation, the payment of interest and other amounts which would accrue
and become due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in such case), whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Secured Party.
(e) "Trademarks" shall have the meaning set forth in Section 2 hereto.
2. GRANT OF SECURITY INTEREST
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(a) As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Deferred Purchase Price Obligations
(as hereinafter defined), Debtor hereby grants to Secured Party a continuing
security interest in and a general lien upon, and a conditional assignment of,
the following (being collectively referred to herein as the "Collateral"): all
of Debtor's now existing or hereafter acquired right, title, and interest in and
to: all of Debtor's trademarks, tradenames, trade styles and service marks and
all applications, registrations and recordings relating to the foregoing as may
at any time be filed 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 country, including, without limitation, the
trademarks, terms, designs and applications described in Exhibit A hereto,
together with all rights and privileges arising under applicable law with
respect to Debtor's use of any trademarks, tradenames, trade styles and service
marks, and all reissues, extensions, continuation and renewals thereof (all of
the foregoing being collectively referred to herein as the "Trademarks"); and
all prints and labels on which such trademarks, tradenames, tradestyles and
service marks appear, have appeared or will appear, and all designs and general
intangibles of a like nature; 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; all income, fees, royalties and other payments at any time due or
payable with respect thereto, including, without limitation, payments under all
licenses at any time entered into in connection therewith; the right to xxx for
past, present and future infringements thereof; all rights corresponding thereto
throughout the world; and any and all other proceeds of any of the foregoing,
including, without limitation, damages and payments or claims by Debtor against
third parties for past or future infringement of the Trademarks.
3. OBLIGATIONS SECURED
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The security interest, lien and other interests granted to Secured Party
pursuant to this Agreement shall secure the prompt performance, observance and
payment in full of the Deferred Purchase Price Obligations.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
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Debtor hereby represents, warrants and covenants with and to Secured Party
the following (all of such representations, warranties and covenants being
continuing so long as any of the Deferred Purchase Price Obligations are
outstanding):
(a) Debtor shall pay and perform all of the Deferred Purchase Price 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 security interest and conditional assignment granted
hereunder. Debtor shall, at Debtor's expense, perform all acts and execute all
documents necessary to maintain the existence of the Collateral consisting of
registered Trademarks as registered trademarks and to maintain the existence of
all of the Collateral as valid and subsisting, 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 pursuant to the Assignment Agreements, the
security interests permitted under the Assignment Agreements, and the licenses
permitted under Section 4(e) hereof.
(c) Debtor shall 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 to the Collateral, or otherwise
dispose of any of the Collateral, in each case without the prior written consent
of Secured Party, except as otherwise permitted herein or in the Assignment
Agreements. 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 shall, at Debtor's expense, promptly 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 and conditional assignment
of 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 Agreement or any
other similar security agreement filed with the Commissioner of Patents and
Trademarks or any 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, any State thereof,
any political subdivision thereof or in any other country, other than those
described in Exhibit A hereto and has not granted any licenses with respect
thereto other than as set forth in Exhibit B hereto.
(f) Debtor shall, concurrently with the execution and delivery of this
Agreement, execute and deliver to Secured Party five (5) originals of a Special
Power of Attorney in the form of Exhibit C 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 or enforce the Deferred Purchase
Price Obligations, the Collateral, or the security interest and conditional
assignment granted hereunder, including, but not limited to, all filing or
recording fees, court costs, collection charges, attorneys' fees and legal
expenses. Debtor shall 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 rate then applicable to the Deferred
Purchase Price Obligations set forth in the Assignment and Assumption Agreement
and shall be part of the Deferred Purchase Price 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, unless Debtor has given Secured Party thirty (30)
days prior written notice of such action. If, after the date hereof, Debtor
shall (i) obtain any registered trademark or tradename, or apply for any such
registration in the United States Patent and Trademark Office or in any similar
office or agency in the United States, any State thereof, any political
subdivision thereof or in any other country, or (ii) become the owner of any
trademark registrations or applications for trademark registration used in the
United States or any State thereof, political subdivision thereof or in any
other country, the provisions of Section 2 hereof shall automatically apply
thereto. Upon the request of Secured Party, Debtor shall promptly 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 interest in and conditional assignment of such Trademark in favor
of Secured Party.
(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 with respect to the Trademarks may
become abandoned, canceled, invalidated, avoided, or avoidable.
(j) Debtor shall render any assistance, as Secured Party shall determine is
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, any State thereof, any political subdivision
thereof or in 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) No material infringement or unauthorized use presently is being made of any
of the Trademarks that would adversely affect in any material respect the fair
market value of the Collateral or the benefits of this Agreement granted to
Secured Party, including, without limitation, the validity, priority or
perfection of the security interest granted herein or the remedies of Secured
Party hereunder. Debtor shall promptly notify Secured Party if Debtor (or any
affiliate or subsidiary thereof) learns of any use by any person of any term or
design which infringes on any Trademark or is 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 Secured Party's
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
and legal expenses) 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). The foregoing indemnity shall survive the payment of the
Deferred Purchase Price Obligations, the termination of this Agreement and the
termination or non-renewal of the Assignment Agreements.
(m) Debtor shall promptly pay Secured Party for any and all expenditures made
by Secured Party pursuant to the provisions of this Agreement or for the
defense, protection or enforcement of the Deferred Purchase Price Obligations,
the Collateral, or the security interests and conditional assignment granted
hereunder, including, but not limited to, all filing or recording fees, court
costs, collection charges, travel expenses, and attorneys' fees and legal
expenses. Such expenditures shall be payable on demand, together with interest
at the rate then applicable to the Deferred Purchase Price Obligations set forth
in the Assignment Agreements and shall be part of the Deferred Purchase Price
Obligations secured hereby.
5. EVENTS OF DEFAULT
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All Deferred Purchase Price Obligations shall become immediately due and
payable, without notice or demand, at the option of Secured Party, upon the
occurrence of any Event of Default, as such term is defined in the Assignment
Agreements (each an "Event of Default" hereunder).
6. RIGHTS AND REMEDIES
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At any time an Event of Default exists or has occurred and is continuing,
in addition to all other rights and remedies of Secured Party, whether provided
under this Agreement, the Assignment and Assumption Agreement, the other
Assignment Agreements, applicable law 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 or affiliate of Debtor or for such other reason as
Secured Party may determine.
(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) days prior written notice to Debtor of
any proposed disposition 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. In any such event, Debtor shall be liable for any deficiency.
(d) In addition to the foregoing, in order to implement the assignment, sale, or
other disposition of any of the Collateral pursuant to the terms 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 Section 4(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, and attorneys' fees and legal expenses. Debtor
agrees that Secured Party has no obligation to preserve rights to the Trademarks
against any other parties.
(e) Secured Party may first apply the proceeds actually received from any such
license, assignment, sale or other disposition of any of the 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
Deferred Purchase Price Obligations as Secured Party may in its discretion
determine. Debtor shall remain liable to Secured Party for any of the Deferred
Purchase Price Obligations remaining unpaid after the application of such
proceeds, and Debtor shall pay Secured Party on demand any such unpaid amount,
together with interest at the rate then applicable to the Deferred Purchase
Price Obligations set forth in the Assignment and Assumption Agreement.
(f) Debtor shall supply to Secured Party or to Secured Party's 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 this Agreement, the other Assignment Agreements,
applicable law, or otherwise, shall be cumulative and none is exclusive. Such
rights and remedies may be enforced alternatively, successively, or
concurrently.
7. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
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(a) The validity, interpretation and enforcement of this Agreement and the other
Assignment Agreements and any dispute arising out of the relationship between
the parties hereto, whether in contract, tort, equity or otherwise, shall be
governed by the internal laws of the State of Texas (without giving effect to
principles of conflict of laws).
(b) Debtor and Secured Party irrevocably consent and submit to the non-exclusive
jurisdiction of the District Court of the State of Texas and the United States
District Court for the Northern District of Texas and waive any objection based
on venue or forum non conveniens with respect to any action instituted therein
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arising under this Agreement or any of the other Assignment Agreements or in any
way connected or related or incidental to the dealings of Debtor and Secured
Party in respect of this Agreement or the other Assignment Agreements or the
transactions related hereto or thereto, in each case whether now existing or
thereafter arising, and whether in contract, tort, equity or otherwise, and
agree that any dispute with respect to any such matters shall be heard only in
the courts described above (except that Secured Party shall have the right to
bring any action or proceeding against Debtor or its property in the courts of
any other jurisdiction which Secured Party deems necessary or appropriate in
order to realize on the Collateral or to otherwise enforce its rights against
Debtor or its property).
(c) Debtor hereby waives personal service of any and all process upon it and
consents that all such service of process may be made by certified mail (return
receipt requested) directed to its address set forth herein and service so made
shall be deemed to be completed five (5) days after the same shall have been so
deposited in the U.S. mails, or, at Secured Party's option, by service upon
Debtor in any other manner provided under the rules of any such courts. Within
thirty (30) days after such service, Debtor shall appear in answer to such
process, failing which Debtor shall be deemed in default and judgment may be
entered by Secured Party against Debtor for the amount of the claim and other
relief requested.
(d) DEBTOR AND SECURED PARTY EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR
ANY OF THE OTHER ASSIGNMENT AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF DEBTOR AND SECURED PARTY IN RESPECT OF
THIS AGREEMENT OR ANY OF THE OTHER ASSIGNMENT AGREEMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO IN EACH CASE WHETHER NO EXISTING OR HEREAFTER ARISING,
AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR AND SECURED PARTY
EACH HEREBY AGREES AN CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT DEBTOR OR SECURED
PARTY MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF DEBTOR AND SECURED PARTY TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Secured Party shall not have any liability to Debtor (whether in tort,
contract, equity or otherwise) for losses suffered by Debtor in connection with,
arising out of, or in any way related to the transactions or relationships
contemplated by this Agreement, or any act, omission or event occurring in
connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Secured Party that the losses were the result
of acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Secured Party shall be entitled to the benefit of the
rebuttable presumption that it acted in good faith and with the exercise of
ordinary care in the performance by it of the terms of this Agreement and the
other Assignment Agreements.
8. MISCELLANEOUS
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(a) All notices, requests and demands hereunder shall be in writing and deemed
to have been given or made: if delivered in person, immediately upon delivery;
if by telex, telegram or facsimile transmission, immediately upon sending and
upon confirmation of receipt; if by nationally recognized overnight courier
service with instructions to deliver the next business day, one (1) business day
after sending; and if by certified mail, return receipt requested, five (5) days
after mailing. All notices, requests and demands upon the parties are to be
given to the following addresses (or to such other address as any party may
designate by notice in accordance with this Section):
If to Debtor: Xxxxxx Airplane Company, Inc.
Xxxxx Xxxxxxxxx Field
Xxxxxxxxx, Xxxxx 00000
Attention: Xx. X. Xxxxxx Happy, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
If to Secured Party: Congress Financial Corporation (Southwest)
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Regional Portfolio Manager
Telecopy No.: (000) 000-0000
with a copy to: Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Telecopy No. (000) 000-0000
with an additional
copy to: Otterbourg, Steindler, Houston & Xxxxx, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No. (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
(b) All references to the plural herein shall also mean the singular and to the
singular shall also mean the plural. All references to Debtor and Secured Party
pursuant to the definitions set forth in the recitals hereto, or to any other
person herein, shall include their respective successors and assigns. The words
"hereof," "herein," "hereunder," "this Agreement" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not any
particular provision of this Agreement and as this Agreement now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced. An Event of Default shall exist or continue or be continuing until
such Event of Default is waived in accordance with Section 8(e) hereof. All
references to the term "Person" or "person" herein shall mean any individual,
sole proprietorship, partnership, corporation (including, without limitation,
any corporation which elects subchapter S status under the Internal Revenue Code
of 1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock company, trust, joint
venture or other entity or any government or any agency or instrumentality or
political subdivision thereof.
(c) This Agreement, the other Assignment Agreements and any other document
referred to herein or therein shall be binding upon Debtor and its successors
and assigns and inure to the benefit of and be enforceable by Secured Party and
its successors and assigns.
(d) If any provision of this Agreement is held to be invalid or unenforceable,
such invalidity or unenforceability shall not invalidate this Agreement as a
whole, but this Agreement shall be construed as though it did not contain the
particular provision held to be invalid or unenforceable and the rights and
obligations of the parties shall be construed and enforced only to such extent
as shall be permitted by applicable law.
(e) Neither this Agreement nor any provision hereof shall be amended, modified,
waived or discharged orally or by course of conduct, but only by a written
agreement signed by an authorized officer of Secured Party. Secured Party shall
not, by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of Secured Party. Any
such waiver shall be enforceable only to the extent specifically set forth
therein. A waiver by Secured Party of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy which Secured Party would otherwise have on any future occasion,
whether similar in kind or otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Agreement
as of the day and year first above written.
XXXXXX AIRPLANE COMPANY, INC.
By:___________________________________
Title:________________________________
CONGRESS FINANCIAL CORPORATION
(SOUTHWEST)
By:___________________________________
Title:________________________________
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this ____ day of April, 2002, before me personally came
______________________, to me known, who being duly sworn, did depose and say,
that he is the __________________ of XXXXXX AIRPLANE COMPANY, 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
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of April, 2002, before me personally came Xxxx Xxxxxxx, to
me known, who, being duly sworn, did depose and say, that he is the Executive
Vice President of CONGRESS FINANCIAL CORPORATION (SOUTHWEST), 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
EXHIBIT A
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF TRADEMARKS AND TRADEMARK APPLICATIONS
---------------------------------------------
====================================================================================================================
Registration Registration Expiration
Trademark Number Date Date
--------- ------ ---- ----
====================================================================================================================
ENCORE 2191118 September 22, 1998 To be furnished.
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XXXXXX 935574 June 13, 1972 June 13, 2002
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XXXXXX 944950 October 10, 1972 October 10, 2002
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Misc. Design [bird] 2526818 January 8, 2002 To be furnished.
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Misc. Design [older bird] 1972925 May 7, 1996 To be furnished.
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ABSOLUTELY FLY 2524283 January 1, 2002 To be furnished.
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ALLEGRO 2202039 November 3, 1998 To be furnished.
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ENCORE 2191118 September 22, 1998 To be furnished.
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OVATION 2 and design 1904347 April 20, 2001 To be furnished.
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OVATION 1904347 April 18, 1995 To be furnished.
====================================================================================================================
====================================================================================================================
Trademark Application/Serial Application
Application Number Date
----------- ------ ----
====================================================================================================================
XXXXXX FLIGHT SUPPORT 75847501 November 12, 1999
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EXHIBIT B
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF LICENSES
----------------
NONE
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EXHIBIT C
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
-------------------------
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX AIRPLANE COMPANY, INC.
("Debtor"), having an xxxxxx xx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx 00000
hereby appoints and constitutes, severally, CONGRESS FINANCIAL CORPORATION
(SOUTHWEST) ("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:
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 is made pursuant to a Trademark Collateral
Assignment and Security Agreement, dated of even date herewith, between Debtor
and Secured Party (the "Security Agreement") and is subject to the terms and
provisions thereof. This Power of Attorney, being coupled with an interest, is
irrevocable until all "Deferred Purchase Price Obligations", as such term is
defined in the Security Agreement, are paid in full and the Security Agreement
is terminated in writing by Secured Party.
Dated: April 18, 2002
XXXXXX AIRPLANE COMPANY, INC.
By: _____________________________
Title: ___________________________
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this ____ day of April 2002, before me personally came
_______________________, to me known, who being duly sworn, did depose and say,
that he is the __________________ of XXXXXX AIRPLANE COMPANY, INC., the
corporation described in and which executed the
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foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of said corporation.
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Notary Public
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