Exhibit 10.9


 


TRADEMARK
COLLATERAL SECURITY AGREEMENT


 


THIS AGREEMENT is made on
the 20 day of June, 2005, by and between RAFAELLA APPAREL GROUP, INC., a
Delaware corporation having a mailing address at 1411 Broadway, New York, New
York 10018 (“Borrower”) and HSBC BANK USA, NATIONAL ASSOCIATION, as agent for
Lenders (as defined below) having a mailing address at 452 Fifth Avenue, New
York, New York 10018 (“Agent”).


 


BACKGROUND


 


Borrower and one or more
other companies (collectively with Borrower, the “Company”) have entered into a
Financing Agreement of even date herewith (as amended, modified, restated or
supplemented from time to time, the “Financing Agreement”) with the various
financial institutions named therein or which hereafter become a party thereto
(each a “Lender” and collectively, “Lenders”) and Agent providing for financial
accommodations by Agent to Company. In order to induce Agent and Lenders to
execute and deliver the Financing Agreement, Borrower agreed to execute and
deliver to Agent for its benefit and for the ratable benefit of Lenders this
Trademark Collateral Security Agreement (as amended, modified, restated or
supplemented from time to time, this “Agreement”).


 


NOW, THEREFORE, in
consideration of the premises, Borrower and Agent hereby agree as follows:


 


1.         Defined Terms. All
capitalized terms used herein which are not otherwise defined herein shall have
the meanings given to them in the Financing Agreement and the following terms
shall have the following meanings, unless the context otherwise requires:


 


“Code” shall mean the
Uniform Commercial Code as the same may from time to time be in effect in the
State of New York.


 


“Collateral” shall have
the meaning assigned to it in Section 2 of this Security Agreement.


 


“Licenses” shall mean the
written trademark license agreements of Borrower designated on Schedule I
hereto, as any of the same may from time to time be amended, modified or
supplemented.


 


“Proceeds” shall have the
meaning assigned to it under Section 9-306 of the Code, and in any event, shall
include, but not be limited to, (i) any and all proceeds of any insurance,
indemnity, warranty or guarantee payable to Borrower from time to time with
respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to Borrower from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Collateral by any governmental body, authority, bureau or
agency (or any person acting under color of governmental authority), and (iii)
any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.


 

















 


“Trademarks” shall mean
the registered trademarks and pending applications shown in the attached Schedule
A, and those trademarks which are hereafter adopted or acquired by
Borrower, and all right, title and interest therein and thereto, and all
registrations, applications, and recordings thereof, including, without
limitation, applications, registrations and recordings in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof, or any foreign country, all whether now owned or
hereafter acquired by Borrower.


 


2.         Grant of Security
Interest. As collateral security for the prompt payment of the Obligations,
Borrower hereby grants and conveys to Agent for its benefit and for the ratable
benefit of Lenders a security interest in and to (a) the entire right, title
and interest of Borrower in and to the Trademarks, including the registrations
and applications appurtenant thereto, listed in Schedule A hereto (as
the same may be amended pursuant hereto from time to time), and in and to any
and all trademarks, and registrations and applications appurtenant thereto,
hereafter acquired or filed by Borrower, including without limitation all
renewals thereof, all proceeds of infringement suits, the rights to sue for
past, present and future infringements and all rights corresponding thereto and
the goodwill of the business to which each of the Trademarks relates and (b)
all of Borrower’s right, title and interest in, to and under the following:


 


(i)         all Licenses;


 


(ii)        all Receivables, contract
rights and General Intangibles arising under or relating to each and every
License (including, without limitation, (A) all moneys due and to become due
under any License, (B) any damages arising out of or for breach or default in
respect of any such License, (C) all other amounts from time to time paid or
payable under or in connection with any such License, and (D) the right of
Borrower to terminate any such License or to perform and to exercise all
remedies thereunder); and,


 


(iii)       to the extent not otherwise
included, all Proceeds and products of any or all of the foregoing. All of the
property referred to in this paragraph 2 is hereafter collectively called the “Collateral.”


 


3.         Representations and
Warranties. Borrower covenants and warrants that:


 


(a)       The Trademarks are
subsisting and have not been adjudged invalid or unenforceable in whole or in
part;


 


(b)       Except as set forth on Schedule
A, to the best of Borrower’s knowledge, each of the Trademarks is valid and
enforceable;


 


(c)       There is no outstanding
claim that the use of any of the Trademarks violates the rights of any third
person;


 


(d)       To the best of Borrower’s
knowledge, Borrower is the sole and exclusive owner of the entire and
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
Borrower not to sue


 

















 


third persons), except for the Licenses or other agreements disclosed
on Schedule I attached hereto;


 


(e)       Borrower has the right to enter
into this Agreement and perform its terms;


 


(f)        Borrower has used, and
will continue to use for the duration of this Agreement, proper statutory
notice, where appropriate, in connection with its use of the material
Trademarks; and


 


(g)       Borrower has used, and will
continue to use for the duration of this Agreement, consistent standards of
quality in its manufacture of products sold under the Trademarks.


 


4.         New Trademarks.


 


(a)       If, before the Obligations
shall have been irrevocably paid in full, Borrower shall obtain rights to any
new Trademarks, or become entitled to the benefit of any trademark application
or trademark for any renewal or extension of any Trademark, the provisions of
paragraph 2 shall automatically apply thereto and Borrower shall give Agent
prompt written notice thereof.


 


(b)       Borrower grants Agent a
power-of-attorney, irrevocable so long as the Financing Agreement is in
existence, to modify this Agreement by amending Schedule A to include
any future trademarks, including trademark registrations or applications
appurtenant thereto covered by this Agreement.


 


5.         Covenants.
Borrower covenants and agrees with Agent that from and after the date of this
Agreement and until the Obligations are fully satisfied:


 


(a)       Further Documentation;
Pledge of Instruments. Upon the reasonable written request of Agent,
Borrower will promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as Agent may reasonably
deem desirable in obtaining the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Code with respect to the
liens and security interests granted hereby. Borrower also hereby authorizes
Agent to file any such financing or continuation statement without the
signature of Borrower to the extent permitted by applicable law. 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 to Agent hereunder, duly endorsed in a manner
satisfactory to Agent.


 


(b)       Maintenance of
Trademarks. Borrower will not do any act, or omit to do any act, whereby the
Trademarks or any registration or application appurtenant thereto, are
reasonably likely to become abandoned, invalidated, unenforceable, avoided,
avoidable, or will otherwise diminish in value, and shall notify Agent
immediately if it knows of any reason or has reason to know of any ground under
which this result may occur. Borrower shall take commercially appropriate
action at its expense intended to halt the infringement of the


 

















 


Trademarks and shall properly exercise its duty to control the nature and
quality of the goods offered by any licensees in connection with the Licenses. Notwithstanding
anything herein to the contrary, so long as no Event of Default has occurred
and is continuing, the Borrower shall not have an obligation to use or to
maintain any Trademark, (A) that
relates solely to any product, brand or work that has been, or is in the process of being, discontinued, abandoned
or terminated, (B) that is being replaced with a Trademark substantially
similar to the Trademark that may be abandoned or otherwise become invalid, so
long as the failure to use or
maintain such Trademark does not materially adversely affect the validity of
such replacement Trademark, and so long as such replacement Trademark is
subject to the Lien and security interest created by this Agreement, (C) that
is substantially the same as another Trademark that is in full force, so long as the failure to use or maintain
such Trademark does not materially adversely affect the validity of such other
Trademark, and so long as such other Trademark is subject to the Lien and security
interest created by this Agreement or (D) that is or becomes the subject of any
formal or informal dispute and/or any administrative or legal proceeding
(whether ex parte or inter partes)
or other circumstances such that the Borrower, using good faith business
judgment, reasonably determines it to be imprudent to maintain or continue use
of such Trademark.


 


            (c)       Indemnification.
(A) Borrower assumes all responsibility and liability arising from the use of
the Trademarks, and Borrower hereby indemnifies and holds Agent and Lenders harmless from and against any claim,
suit, loss, damage or reasonable expense (including reasonable attorneys' fees)
arising out of Borrower's operations of its business from the use of the
Trademarks, except for Agent's gross negligence and willful misconduct (B) In
any suit, proceeding or action brought by Agent or any Lender under any License
for any sum owing thereunder, or to enforce any provisions of such License,
Borrower will indemnify and keep Agent and Lenders harmless from and against
all reasonable expense, loss or damage suffered by reason of any defense, set
off, counterclaim, recoupment or reduction or liability whatsoever of the
obligee thereunder, arising out of a breach of Borrower of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at any time
owing to or in favor of such obligee or its successors from Borrower, and all
such obligations of Borrower shall be and remain enforceable against and only
against Borrower and shall not be enforceable against Agent or any Lender.


 


(d)       Limitation of Liens on Collateral.
Borrower will not create, permit or suffer to exist, and will defend the
Collateral against and take such
other action as is necessary to remove any lien, security interest,
encumbrance, claim or right, in or to the Collateral, and will defend the right,
title and interest of Agent in and to any of Borrower's rights under any
License and to the Proceeds thereof
against the claims and demands of all persons whomever.


 


(e)       Limitations on Modifications of
Licenses. Borrower will not amend, modify, terminate or waive any material
provision of any License in any manner which would reasonably be expected to
materially adversely affect the value of such License as Collateral without the approval of Agent, not to be
unreasonably withheld or delayed.


 


(f)        Notices. Borrower will advise
Agent promptly, in reasonable detail, (i) of any lien or claim made or asserted
against any of the Collateral, (ii) of any material change in the composition
of the Collateral and (iii) of the occurrence of any other event which would
have a material adverse effect on the value of any of the Collateral or on the
security


 

















 


interests created hereunder.


 


(g)       Limitation on Further Uses of
Trademarks. Borrower will not assign, sell, mortgage, lease, transfer,
pledge, hypothecate, grant a security interest in or lien upon, encumber, grant
an exclusive or non-exclusive license, or otherwise dispose of any of the
Collateral, without prior written consent of Agent not to be unreasonably
withheld or delayed; provided that Borrower can grant an exclusive or
non-exclusive license in the ordinary course of business upon written notice to
Agent.


 


(h)       Exercise of Rights: Delivery of
Notices. Borrower shall (i) exercise promptly and diligently each and every
material right which it may have under each License (other than any right of
termination) and (ii) deliver to Agent a copy of each material demand, notice
or document sent or received by it relating in any way to any License or Trademark.


 


6.         Agent's Appointment as Attorney-in-Fact.


 


(a)       Borrower hereby irrevocably constitutes
and appoints Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Borrower and in the name of Borrower
or in its own name, from time to time in Agent's discretion, for the purposes
of carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives Agent the power
and right, on behalf of Borrower, to do the following:


 


(i)         Upon the occurrence and continuance of
an Event of Default, to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under any License and, in
the name of Borrower or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any License and to file any claim or to take
any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by Agent for the purpose of collecting any and all such
moneys due under any License whenever payable;


 


(ii)        To pay or discharge taxes, liens,
security interests or other encumbrances levied or placed on or threatened
against the Collateral, to effect any repairs or any insurance called for by the terms of this Agreement and to pay all
or any part of the premiums therefore and the costs thereof; and


 


(iii)       Upon the occurrence and continuance of an
Event of Default, (A) to direct any party liable for any payment under any of
the Licenses to make payment of any and all moneys due and to become due
thereunder directly to Agent or as Agent shall direct; (B) to receive payment
of and receipt for any and all money,
claims and other amounts due and to become due at any time in respect of or arising out of any Collateral, (C) to commence
and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any part thereof and to enforce any other right in
respect of any Collateral; (D) to defend any suit, action or proceeding brought
against 


 

















 


Borrower with respect to any Collateral; (E) to settle, compromise, or
adjust any suit, action or proceeding described above and, in connection
therewith, to give such discharges or releases as Agent may deem appropriate;
and (F) generally to sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
Agent were the absolute owner thereof for all purposes, and to do, at Agent’s
option all acts and things which Agent deems necessary to protect, preserve or
realize upon the Collateral and Agent’s security interest therein, in order to
effect the intent of this Agreement, all as fully and effectively as Borrower
might do.


 


(b)       This power of attorney is a
power coupled with an interest and shall be irrevocable. Notwithstanding the
foregoing, Borrower further agrees to execute any additional documents which
Agent may reasonably require in order to confirm this power of attorney, or
which Agent may reasonably deem necessary to enforce any of its rights
contained in this Agreement.


 


(c)       The powers conferred on
Agent hereunder are solely to protect its interests in the Collateral and shall
not impose any duty upon it to exercise any such powers. Agent shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers and neither it nor any of its officers, directors,
employees or agents shall be responsible to Borrower for any act or failure to
act, except for its own gross (not mere) negligence or willful misconduct.


 


(d)       Borrower also authorizes
Agent to execute, in connection with the sale provided for in paragraph 10(b)
of this Agreement, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.


 


7.         Execution of Power of
Attorney. Concurrently with the execution and delivery hereof, Borrower
shall execute and deliver to Agent, in the form of Exhibit I hereto, ten
(10) originals of a Power of Attorney for the implementation of the assignment,
sale or other disposal of the Trademarks pursuant to paragraph 7 hereof.


 


8.         Performance by Agent
of Borrower’s Obligations. If Borrower fails to perform or comply with any
of its agreements contained herein and Agent, as provided for by the terms of
this Agreement, shall itself perform or comply, or otherwise cause performance
or compliance, with such agreement, the reasonable expenses of Agent incurred
in connection with such performance or compliance shall be payable by Borrower
to Agent on demand and shall constitute Obligations secured hereby.


 


9.         Remedies, Rights Upon
Event of Default.


 


(a)       If an Event of Default
shall occur and be continuing:


 


(i)         All payments received by
Borrower under or in connection with any of the Collateral shall be held by
Borrower in trust for Agent and Lenders, shall be segregated from other funds of
Borrower and shall forthwith upon receipt by Borrower, be turned over to Agent,
in the same form as received by Borrower (duly indorsed by Borrower to Agent,
if required); and


 

















 


(ii)        Any and all such payments so received by
Agent (whether from Borrower or otherwise) may, in the sole discretion of
Agent, be held by Agent as collateral security for, and/or then or at any time
thereafter applied in whole or in part by Agent against all or any part of the
Obligations in such order as Agent
shall elect. Any balance of such payments held by Agent and remaining after
payment in full of all the Obligations shall be paid over to Borrower or to
whomsoever may be lawfully entitled to receive the same.


 


(b)       If any Event of Default shall occur and
be continuing, Agent and Lenders may exercise in addition to all other rights
and remedies granted to it in this Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the Code. Borrower shall remain liable for
any deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Agent and Lenders are entitled.
Borrower shall also be liable for the reasonable fees of any attorneys employed
by Agent and Lenders to collect any such deficiency and also as to any reasonable attorney's fees
incurred by Agent and Lenders with respect to the collection of any of the
Obligations and the enforcement of any of Agent's respective rights hereunder.


 


10.       Termination. At such time as the Obligations are irrevocably
satisfied in full and the Financing Agreement is irrevocably terminated, this
Agreement shall terminate and Agent shall execute and deliver to Borrower all such releases, deeds and other
instruments as may be necessary
or proper to re-vest in Borrower full title to the Trademarks, subject to any disposition
thereof which may have been made by Agent pursuant hereto.


 


11.       Notices. Any notice to Agent or
Borrower under this Agreement shall be given in the manner and to the parties
designated in the Financing Agreement.


 


12.       No Waiver. No course of dealing
between Borrower, Agent or any Lender, nor any failure to exercise, nor any
delay in exercising, on the part of Agent or any Lender, any right, power or
privilege hereunder or under the Financing Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.


 


13.       Cumulative Remedies. All of
Agent's and Lenders' rights and remedies with respect to the Collateral,
whether established hereby or by the Financing Agreement, or by any other
agreements or by law, shall be cumulative and may be exercised singularly or
concurrently.


 


14.       Severability. The provisions of
this Agreement are severable, and if any clause or provision shall be held
invalid and unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part
thereof, in such jurisdiction, and shall not in any manner affect such clause
or provision in any other jurisdiction, or any other clause or provision of
this Agreement in any jurisdiction.


 


15.       No Modification Except in Writing.
Except as provided in paragraphs 5 and 7, no amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing executed by the parties hereto.


 

















 


16.       Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of Borrower and
Agent, all future holders of the Obligations and their respective successors
and assigns, except that Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of Agent.


 


17.       Governing Law. This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of New York applicable
to agreements made and wholly performed therein (without giving effect to
principles of conflicts of law).


 


18.       Headings. Section
headings in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.


 

















 


19.       Counterparts; Facsimile.
This Agreement may be executed by the parties hereto in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an
original signature hereto.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement under seal as of the day and year
first above written.


 


	
  WITNESS:

  	
   

  	
  RAFAELLA APPAREL GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Glenn Palmer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Glenn Palmer

  
	
   

  	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Lisa H. Augustus

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Lisa H. Augustus

  
	
   

  	
   

  	
   

  	
  Title: Vice President