SUBSIDIARY TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
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THIS AGREEMENT ("Agreement"), dated as of May 12, 1999, is by and between
Unison (NY), Inc., a Delaware corporation ("Debtor"), with its chief executive
office at 229 West 28th Street, New York, New York 10001 and Fleet Bank, N.A., a
national banking association, as Administrative Agent for itself and ratably for
the benefit of the Lender Parties and the Hedge Banks ("Secured Party"), having
an office at 1185 Avenue of the Americas, New York, New York 10036.
W I T N E S S E T H :
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WHEREAS, Debtor has adopted, used and is using, and is the owner of the
entire right, title, and interest in and to the trademarks, trade names, terms,
designs and applications therefor described in Exhibit A hereto and made a part
hereof; and
WHEREAS, Secured Party, the Lender Parties and Unidigital, Inc., a Delaware
corporation ("Borrower") have entered or are about to enter into financing
arrangements pursuant to which the Lender Parties may make loans and advances
and provide other financial accommodations to Borrower as set forth in the
Credit Agreement, dated as of the date hereof, by the Secured Party, the Lender
Parties and Borrower (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, the "Credit
Agreement") and other agreements, documents and instruments referred to therein
or at any time executed and/or delivered in connection therewith or related
thereto, including, but not limited to, this Agreement (all of the foregoing,
together with the Credit Agreement, as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Loan Documents"); and
WHEREAS, due to the close business and financial relationship between
Borrower and Debtor, in consideration of the benefits which will accrue to
Debtor and as inducement for Secured Party and the Lender Parties to enter into
the Credit Agreement and the other Loan Documents and the Lender Parties to make
loans and advances and provide other financial accommodations to Borrower
pursuant thereto, Debtor has agreed to grant to Secured Party certain collateral
security as set forth herein;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
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As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Debtor hereby grants to Secured Party a continuing security interest in and a
general lien upon, and a conditional assignment of, the following (being
collectively referred to herein as the "Collateral"): (a) all of Debtor's now
existing or hereafter acquired right, title, and interest in and to: (i) 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
(ii) 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; (b) 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; (c) 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; (d) the right to
sue for past, present and future infringements thereof; (e) all rights
corresponding thereto throughout the world; (f) 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.
2. 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 any and all obligations, liabilities and indebtedness of
every kind, nature and description owing by Debtor to Secured Party, the Lender
Parties and the Hedge Banks and/or their respective affiliates, including
principal, interest, charges, fees, costs and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, whether arising
under this Agreement, the Credit Agreement, the other Loan Documents or
otherwise, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Credit 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 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
(all of the foregoing being collectively referred to herein as the
"Obligations").
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3. 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 Obligations are outstanding):
(a) Debtor shall pay and perform all of the Obligations according to their
terms.
(b) All of the existing Collateral is valid and subsisting in full force
and effect, and Debtor owns the sole, full and clear title thereto, and the
right and power to grant the 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:
(i) the security interests granted hereunder and pursuant to the Credit
Agreement, (ii) the security interests permitted under the Credit Agreement, and
(iii) the licenses permitted under Section 3(e) below.
(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, which consent shall not be unreasonably withheld, except as
otherwise permitted herein or in the Credit Agreement. 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
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pursuant to Secured Party's exercise of the rights and remedies granted to
Secured Party hereunder following the occurrence and during the continuance of
an Event of Default.
(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 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 Obligations set forth in the Credit
Agreement and shall be part of the Obligations secured hereby.
(h) Contemporaneously with the filing of 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, the Debtor shall give
Secured Party 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 1 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, voided, or voidable. 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, voided, or voidable.
(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) To Debtor's actual knowledge, 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
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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 its use of
the Trademarks (and. prior to the occurrence and continuance of an Event of
Default, the use of the Trademarks by its licensees) 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, labeling, sale or advertisement of any
such product by Debtor (or any affiliate or subsidiary thereof). The foregoing
indemnity shall survive the payment of the Obligations, the termination of this
Agreement and the termination or non-renewal of the Credit Agreement.
(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 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
Obligations set forth in the Credit Agreements and shall be part of the
Obligations secured hereby.
3A. CERTAIN RESPONSIBILITIES OF THE SECURED PARTY
---------------------------------------------
(a) Except in its capacity as a lender or an administrative agent or
otherwise as a financial institution with respect to a financing transaction,
Secured Party shall not apply for the registration of or cause the filing of an
application for the registration of, a trade name, trademark, or service mark
which is identical to or confusingly similar to the Trademarks.
(b) Prior to the time that Secured Party has asserted its rights under
Section 5 hereof, if in Debtor's reasonable opinion Secured Party's management
of the Trademarks has brought or has the reasonable likelihood to bring
discredit to Debtor or to the Trademarks ("Incorrect Management"), Debtor shall
have the unilateral right to notify Secured Party in writing to cease and desist
any such use and/or control over the use of the Trademarks, and within the time
specified (which time shall be reasonable, allowing for reasonable time to
discuss and cure any Incorrect Management, and, if incurable, allowing for
reasonable time to prepare and/or file any necessary and appropriate
documentation) to reassign the Trademark(s) in question to Debtor along with any
licenses granted by Secured Party with respect thereto. It is hereby agreed by
Debtor that if this Agreement were performed as written, there would exist no
Incorrect Management and that no action (or inaction) would need to occur in
order to avoid Incorrect Management.
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(c) At such time as Borrower shall have indefeasibly paid in full all of
the Obligations, this Agreement shall terminate and Secured Party shall execute
and deliver to Debtor all deeds, assignments and other instruments as may be
necessary or proper to re-vest in Debtor the full title to the Trademarks.
4. EVENTS OF DEFAULT
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All 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 Credit Agreement (each an "Event of
Default" hereunder).
5. 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 Credit Agreement, the other Loan Documents, 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
3(f) hereof, one or more instruments of assignment of the Trademarks (or any
application, registration, or recording relating thereto), in form suitable for
filing, recording, or registration. Debtor agrees to pay
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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
Obligations as Secured Party may in its discretion determine. Debtor shall
remain liable to Secured Party for any of the 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 Obligations set forth in the Credit 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 at any
time an Event of Default exists and is continuing.
(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 Loan Documents, applicable law,
or otherwise, shall be cumulative and none is exclusive. Such rights and
remedies may be enforced alternatively, successively, or concurrently.
(h) Except as set forth in this Agreement, Secured Party shall not use the
Trademarks.
6. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW
--------------------------------
(a) The validity, interpretation and enforcement of this Agreement and the
other Loan Documents 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 New York (without giving effect to
principles of conflicts of law).
(b) Debtor and Secured Party irrevocably consent and submit to the
non-exclusive jurisdiction of the State of New York and the United States
District Court for the Southern District of New York and waive any objection
based on venue or forum non conveniens with respect to any action instituted
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therein arising under this Agreement or any of the other Loan Documents 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 Loan Documents 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
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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 THE SECURED PARTY MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE
SECURED PARTY AND THE LENDER PARTIES TO ACCEPT THIS AGREEMENT AND MAKE LOANS
PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.
(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 Loan Documents.
7. 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: Unison (NY), Inc.
229 West 28th Street
New York, New York 10001
Attention: Mr. William E. Dye, Chief Executive Officer
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If to Secured Fleet Bank, N.A., as Administrative Agent
Party: 1185 Avenue of the Americas
New York, New York 10036
Attention: Ms. Beth Goodman, Vice President
(b) All references to the plural herein shall also mean the singular and to
the singular shall also mean the plural. All references to Borrower, 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 7(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) Any term defined in the Credit Agreement and used herein shall have the
respective meanings ascribed to such terms therein, unless specified otherwise
herein.
(d) This Agreement, the other Loan Documents 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.
(e) 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.
(f) 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.
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IN WITNESS WHEREOF, Debtor and Secured Party have executed this Agreement
as of the day and year first above written.
UNISON (NY), INC.
By: /s/ William E. Dye
--------------------------------------
Title: Chief Executive Officer
FLEET BANK, N.A., as Administrative Agent
By: /s/ Beth Goodman
--------------------------------------
Title: Vice President
-----------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF YORK )
On this 11th day of May, 1999, before me personally came William E. Dye, to
me known, who being duly sworn, did depose and say, that he is the Chief
Executive Officer of UNISON (NY), INC., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of said corporation.
/s/ Barbara DiMartino
--------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 12th day of May, 1999, before me personally came Beth Goodman, to
me known, who, being duly sworn, did depose and say, that he/she is the
Vice Pres. of FLEET BANK, N.A., the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto by order of the
Board of Directors of said corporation.
/s/ Barbara DiMartino
--------------------------------------
Notary Public
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EXHIBIT A
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF TRADEMARKS AND TRADEMARK APPLICATIONS
---------------------------------------------
=============================================================================================================
Registration Registration Expiration
Trademark Number Date Date
--------- ------------ ------------ ----------
=============================================================================================================
KWIK MEGAMEDIA 2,102,691 December 10, 1996
(Logo)
- -------------------------------------------------------------------------------------------------------------
KWIK MEGAMEDIA 2,106,958 November 19, 1996
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
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EXHIBIT B
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
LIST OF LICENSES
----------------
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EXHIBIT C
TO
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
-------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that UNISON (NY), INC. ("Debtor"), having
an office at 229 West 28th Street, New York, New York 10001, hereby appoints and
constitutes, severally, FLEET BANK, N.A., as Administrative Agent for itself and
ratably for the benefit of certain parties ("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 "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: as of May 12, 1999
UNISON (NY), INC.
By: /s/ William E. Dye
---------------------------
Title: Chief Executive Officer
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of May, 1999, before me personally came William E. Dye, to
me known, who being duly sworn, did depose and say, that he is the Chief
Executive Officer of UNISON (NY), INC., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of said corporation.
/s/ Barbara DiMartino
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Notary Public
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