Exhibit 10.15
TRADEMARK SECURITY AGREEMENT
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THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is dated as of January 23,
1997, by and between THE ANTIGUA GROUP, INC., a Nevada corporation ("Borrower"),
with its mailing address at 9314 N. 94th Way, Scottsdale, Maricopa County,
Arizona 85258, and LASALLE BUSINESS CREDIT, INC., a Delaware corporation
("LaSalle"), with its principal place of business at 120 E. Baltimore Street,
Suite 1800, Baltimore, Maryland 21202.
RECITALS
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The Borrower has applied to LaSalle for certain credit accommodations.
LaSalle has agreed to extend the credit accommodations to the Borrower, under
the terms and conditions set forth in a Loan And Security Agreement of even date
herewith ("Loan Agreement") by and between the Borrower and LaSalle, and various
other documents, instruments and agreements executed by or on behalf of the
Borrower in connection with the above-described credit accommodations (together
with the Loan Agreement, collectively, "Loan Documents").
In order to induce LaSalle to enter into the above-described credit
accommodations, the Borrower, pursuant to the terms and conditions of the Loan
Agreement, has agreed to grant to LaSalle a lien and security interest in all
trademark and service mark rights owned by the Borrower, and also has granted to
LaSalle a lien on and security interest in all of the Borrower's assets,
including but not limited to those assets relating to products sold under the
trademarks and services rendered under the service marks, whereby LaSalle, upon
the occurrence of an Event of Default (as such term is defined in the Loan
Agreement), shall have the right to foreclose on the trademarks, service marks
and other assets of the Borrower, in order that LaSalle or its assignee may
continue the sale of products sold and services rendered under the trademarks
and service marks.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
adequacy of which are hereby acknowledged, the Borrower agrees with LaSalle as
follows:
Section 1. Grant Of Security Interest. The Borrower, as additional security
for the complete and timely payment, performance and satisfaction of all of the
Obligations (as hereafter defined), hereby grants unto LaSalle, its successors
and assigns, upon the following terms and conditions, a continuing lien and
security interest in those certain trademarks and service marks registered with
the United States Patent and Trademark Office in the name of the Borrower, and
described on Exhibit A attached hereto and made a part hereof, together with any
renewals thereof,
and the entire goodwill of the business in connection with which such trademarks
and service marks are used, and all claims for damages by reason of past
infringement of such trademarks and service marks with the right to sue for and
collect the same, to LaSalle (collectively, "Trademarks") and all license rights
in the Trademarks. As used herein, the term "Obligations" shall mean all duties
of payment and performance, whether direct or indirect, both now existing and
arising from time to time, owed by the Borrower to LaSalle under the Loan
Agreement and the other Loan Documents. This Agreement is delivered pursuant to
and in confirmation of the terms and conditions of the Loan Agreement, which
terms and conditions are incorporated by reference into this Agreement and made
a part hereof as if fully set out herein.
Section 2. Additional Trademarks Or Service Mark. If, before the
Obligations shall have been satisfied in full, the Borrower shall obtain rights
to any new trademarks or service marks, the provisions of Section 1 shall
automatically apply thereto and the Borrower shall give prompt written notice
thereof to LaSalle. The Borrower irrevocably and unconditionally authorizes
LaSalle to modify this Agreement by amending Exhibit A to include any additional
or future trademarks, service marks and applications therefor owned or acquired
by the Borrower without any further assent or signature of the Borrower.
Section 3. Purpose. This Agreement has been executed and delivered by the
Borrower for the purpose of recording the grant of security interest herein with
the United States Patent and Trademark Office. The security interest granted
hereby has been granted as a supplement to, and not in limitation of, the
security interest granted to LaSalle under the Loan Agreement. The terms and
conditions of the Loan Agreement shall remain in full force and effect in
accordance with its terms, notwithstanding the execution, delivery and
recordation of this Agreement.
Section 4. Representations And Warranties. The Borrower represents and
warrants that:
a. The Trademarks are subsisting and have not been adjudged invalid or
unenforceable in whole or in part;
b. Each of the Trademarks is valid and enforceable;
c. No claim has been made that the use of any of the Trademarks does
or may violate the rights of any third person;
d. The Borrower is the sole and exclusive owner of the entire
unencumbered right, title and interest in and to each of the Trademarks, free
and clear of any liens, charges and encumbrances, including without limitation
pledges, assignments, licenses, registered user agreements and covenants by the
Borrower not to sue third persons, except for the liens and security interests
permitted pursuant to the terms of the Loan Agreement;
e. The Borrower has the unqualified right to enter into this Agreement
and to perform its terms;
f. The Borrower has used, and will continue to use for the duration of
this Agreement, proper statutory notice in connection with its use of the
Trademarks; and
g. The Borrower has used or required the use of, and will continue to
use or require the use of for the duration of this Agreement, consistent
standards of quality in the manufacture of products sold and services rendered
under the Trademarks.
Section 5. Maintenance of Trademarks; Prosecution Of Applications And
Proceedings. The Borrower shall: (a) maintain the registration of the
Trademarks; (b) take all actions necessary to maintain, preserve and continue
the validity and enforceability of the Trademarks, including but not limited to
the filing of applications for renewal, affidavits of use, affidavits of
incontestability and opposition, interference and cancellation proceedings, and
the payment of any and all application, renewal, extension or other fees; and
(c) through counsel acceptable to LaSalle, (i) prosecute diligently any
trademark applications of the Trademarks pending as of the date of this
Agreement or thereafter, (ii) make federal application on registrable but
unregistered Trademarks, (iii) file and prosecute opposition and cancellation
proceedings, and (iv) do any and all acts which are necessary or desirable to
preserve and maintain all rights in the Trademarks. The Borrower shall not,
without the prior written consent of LaSalle: (a) abandon any of the Trademarks,
or (b) bring any cancellation proceedings in connection with the Trademarks. Any
expenses incurred in connection with the Trademarks shall be borne by the
Borrower. In the event of any litigation involving the Trademarks, LaSalle may,
if necessary, be joined as a nominal party to such suit if LaSalle shall have
been satisfied that it is not thereby incurring any risk of liability because of
such joinder. The Borrower hereby agrees to reimburse and indemnify LaSalle for
all damages, costs and expenses, including attorney's fees, incurred by LaSalle
in the fulfillment of the provisions of this Section.
Section 6. Agreement to Assign Interest. Upon the occurrence of an Event of
Default, in addition to all other rights and remedies available to LaSalle under
the Loan Agreement or applicable law, the Borrower hereby agrees to execute any
and all documents, agreements and instruments considered necessary, appropriate
or convenient by LaSalle or its counsel to effectuate the assignment, transfer
and conveyance of the Trademarks to LaSalle or its assignee. The Borrower hereby
irrevocably and unconditionally authorizes and empowers LaSalle to make,
constitute and appoint any officer or agent of LaSalle as LaSalle may select, in
its exclusive discretion, as the Borrower's true and lawful attorney-in-fact,
with the power to endorse the Borrower's name on all such documents, agreements
and instruments, including without limitation assignments. The Borrower hereby
ratifies all that such
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney shall be irrevocable for the life of this Agreement, and constitutes a
power of attorney coupled with an interest. All of LaSalle's rights and remedies
with respect to the Trademarks, whether established by this Agreement, by the
Loan Agreement, by any other Loan Document, or by law shall be cumulative and
may be exercised singularly or concurrently.
Section 7. Patent And Trademark Office May Rely Upon This Agreement. If
LaSalle shall elect to exercise any of the rights hereunder, the United States
Patent and Trademark Office shall have the right to rely upon LaSalle's written
statement of LaSalle's right to sell, assign and transfer the Trademarks and the
Borrower hereby irrevocably and unconditionally authorizes the United States
Patent and Trademark Office to recognize such sale by LaSalle either in the
Borrower's name or in LaSalle's name without the necessity or obligation of the
United States Patent and Trademark Office to ascertain the existence of any
default by the Borrower under the Loan Agreement.
Section 8. Costs And Expenses. Any and all fees, costs and expenses, of
whatever kind or nature, including the reasonable attorney's fees and legal
expenses incurred by LaSalle in connection with the preparation of this
Agreement and all other documents relating hereto and the consummation of this
transaction, the filing or recording of any documents (including all taxes in
connection therewith) in public offices, the payment or discharge of any taxes,
counsel fees, maintenance fees, encumbrances or otherwise protecting,
maintaining or preserving the Trademarks, or in defending or prosecuting any
actions or proceedings arising out of or related to the Trademarks, shall be
borne and paid by the Borrower on demand by LaSalle and until so paid shall be
added to the principal amount of the Obligations and shall bear interest at the
highest rate prescribed in the Loan Agreement.
Section 9. Notices. Notices that are required or permitted to be delivered
hereunder shall be sufficient if in writing and sent to the addresses set forth
in the Loan Agreement, in the manner and within the time specified in the Loan
Agreement.
Section 10. No Assignment Or Further Lien. The Borrower shall not assign,
transfer or convey its interests in the Trademarks, nor shall the Borrower grant
any further lien or security interest in all or any of the Trademarks except as
permitted pursuant to the terms of the Loan Agreement.
Section 11. Further Assurances. The Borrower shall execute any further or
additional documents considered necessary, appropriate or proper by LaSalle to
effectuate the purposes and intent of this Agreement.
Section 12. Amendment. The terms and conditions of this Agreement may be
modified, altered, waived, or amended only by a writing executed by LaSalle
consenting to the modification,
alteration, waiver, or amendment.
Section 13. Severability. If any of the provisions of this Agreement are
judicially determined to be in conflict with any law of the State of Maryland or
otherwise judicially determined to be unenforceable for any reason whatsoever,
such provision shall be deemed null and void to the extent of such
unenforceability but shall be deemed separable from and shall not invalidate any
other provision of this Agreement.
Section 14. Successors And Assigns. The terms, covenants and conditions
contained in this Agreement shall inure to the benefit of LaSalle and its
successors and assigns, and shall be binding upon the Borrower and its
successors and assigns.
Section 15. Choice Of Law. The laws of the State of Maryland (excluding,
however, conflict of law principles) shall govern and be applied to determine
all issues relating to this Agreement and the rights and obligations of the
parties hereto, including the validity, construction, interpretation, and
enforceability of this Agreement and its various provisions and the consequences
and legal effect of all transactions and events which resulted in the execution
of this Agreement or which occurred or were to occur as a direct or indirect
result of this Agreement having been executed.
Section 16. Consent To Jurisdiction; Agreement As To Venue. The Borrower
irrevocably consents to the non-exclusive jurisdiction of the courts of the
State of Maryland and of the United States District Court For The District Of
Maryland, if a basis for federal jurisdiction exists. The Borrower agrees that
venue shall be proper in any circuit court of the State of Maryland selected by
LaSalle or in the United States District Court For The District Of Maryland if a
basis for federal jurisdiction exists and waives any right to object to the
maintenance of a suit in any of the state or federal courts of the State of
Maryland on the basis of improper venue or of inconvenience of forum.
Section 17. Waiver Of Jury Trial. The Borrower (by its execution hereof)
and LaSalle (by its acceptance of this Agreement) agree that any suit, action,
or proceeding, whether claim or counterclaim, brought or instituted by any party
hereto or any successor or assign of any party hereto, with respect to this
Agreement, the Loan Documents, or any other document or agreement which in any
way relates, directly or indirectly, to this Agreement, the Loan Documents, the
Obligations or any event, transaction or occurrence arising out of or in any way
connected with this Agreement, the Loan Documents, any of the Obligations, or
the dealings of the parties with respect thereto, shall be tried only by a
court, and not by a jury. THE BORROWER AND LASALLE HEREBY EXPRESSLY WAIVE ANY
AND ALL RIGHTS TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING. The
Borrower acknowledges and agrees that this provision is a specific and material
aspect of the agreement between the parties hereto and that LaSalle would not
enter into the subject transactions if this provision were not part of this
Agreement.
IN WITNESS WHEREOF, the Borrower has executed this Agreement as of the date
first above written with the specific intention of creating an instrument under
seal.
ATTEST: THE ANTIGUA GROUP, INC.,
A Nevada Corporation
/s/ illegible By: /s/ T. E. Dooley (SEAL)
Name: T. E. Dooley
Title: CEO
ACKNOWLEDGMENT
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STATE OF Maryland, CITY of Baltimore, TO WIT:
I HEREBY CERTIFY that on this 23rd day of January, 1997, before me, the
undersigned Notary Public of the State aforesaid, in and for the County of
Howard, personally appeared T. E. Dooley, and acknowledged himself to be the CEO
of THE ANTIGUA GROUP, INC., a Nevada corporation, and that he, as the CEO being
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of THE ANTIGUA GROUP, INC., by himself as CEO.
IN WITNESS MY Hand and Notarial Seal.
/s/ Cynthia L. Woods (SEAL)
NOTARY PUBLIC
My Commission Expires:
9/1/97
EXHIBIT A
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TO TRADEMARK SECURITY AGREEMENT
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Schedule of Trademarks
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Trademark Reg. No. Reg. Date
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ANTIGUA 1,242,152 06/14/83
ANTIGUA 1,480,871 03/15/88
miscellaneous design 1,561,053 10/17/89
ANTECH 1,683,030 04/14/92
A II APPAREL 1,809,289 12/07/93
ANTIGUA SPORT AND DESIGN 1,940,578 12/12/95