Exhibit 10.5
TRADEMARK SECURITY AGREEMENT
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, the undersigned ______________________ ("Debtor"), a ____________
corporation, hereby conveys a security interest to PNC BANK, NATIONAL
ASSOCIATION (the "Agent"), a national banking association, as agent for the
Banks, as such term is defined in the Amended and Restated Credit Agreement of
even date herewith among, INTER ALIA, the Debtor, the Banks and the Agent, as
the same may be amended and modified from time to time (the "Credit Agreement"),
in all of the Debtor's right, title and interest in and to (i) the trademarks
and any applications therefor listed on EXHIBIT A hereto and (ii) any United
States federally registered other trademarks and applications therefor which
Debtor shall hereafter acquire, in each case including without limitation all
proceeds thereof, (all of the aforesaid property being hereinafter referred to
as the "Collateral") as security for the payment when due whether by
declaration, acceleration or otherwise of the principal of and interest on each
and every loan of the Banks to the Debtor and each and every other liability of
Debtor to the Agent and the Banks, including (i) all "Obligations", as such term
is defined in the Credit Agreement, (ii) liabilities now in existence, (iii)
liabilities incurred or arising contemporaneously herewith, and (iv) liabilities
that shall hereafter be incurred or arise (collectively, the "Liabilities").
Capitalized terms not otherwise defined herein shall have the meanings given to
them in the Credit Agreement unless the context clearly indicates otherwise.
1. Debtor covenants and warrants that as of the date hereof and to the
best of its knowledge:
(a) Each of the trademarks constituting a part of the Collateral is
subsisting and has not been adjudged invalid or unenforceable;
(b) All of the trademarks constituting a part of the Collateral are
valid and enforceable;
(c) No claim has been made that the use of any of the trademarks
constituting a part of the Collateral does or may violate the rights of any
third person;
(d) With the exception of licenses of the Collateral, the Debtor is
the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to all of the trademarks constituting a part of the Collateral,
free and clear of any liens, charges and encumbrances other than Permitted Liens
(as defined in the Credit Agreement);
(e) Debtor has the unqualified right to enter into this Agreement and
perform its terms;
(f) Debtor has used, and shall continue to use for the duration of
this Agreement, consistent standards of quality in its services sold under any
trademarks constituting part of the Collateral.
2. Debtor agrees that, until such time as all of the Liabilities shall
have been satisfied in full, it shall not enter into any agreement which is
inconsistent with Debtor's obligations under this Agreement, without Agent's
prior written consent;.
3. If, during the term of this Agreement, Debtor shall at any time or
from time to time acquire any additional material United States federally
registered trademarks and/or applications
therefor not then listed on Exhibit A, the Debtor shall give to Agent prompt
notice thereof in writing and the provisions hereof shall automatically apply
thereto.
4. In any case mentioned in Section 3 hereof, Debtor authorizes the Agent
to modify this Agreement by amending Exhibit A to include any material United
States federally registered trademarks and/or applications therefor so acquired
by Debtor.
5. In addition to the rights and remedies available to Agent and the
Banks hereunder, Agent and the Banks shall have such rights and remedies as are
set forth in the Credit Agreement. At such time as Debtor shall have satisfied
in full all of the Liabilities and the Commitments are terminated, this
Agreement shall terminate and Agent shall execute and deliver to Debtor all
documents, instruments, agreement or any combination thereof as may be necessary
or proper as the Debtors shall reasonably request to evidence such termination.
6. To the extent set forth in, and subject to, the Credit Agreement, any
and all reasonable fees, costs and expenses of whatever kind or nature incurred
by Agent and the Banks in connection with the filing or recording of any
documents, and the payment or discharge of reasonable counsel fees, maintenance
fees or other costs of protecting, maintaining or preserving of any of the
Collateral, or of defending or prosecuting any actions or proceedings arising
out of or related to any of the Collateral, shall be borne and paid by Debtor on
demand by Agent and until so paid shall be added to the principal amount of the
Liabilities and shall bear interest at default rate prescribed in the instrument
or instruments evidencing such Liabilities.
7. Debtor shall have the duty to prosecute diligently any application
with respect to any material trademarks constituting a part of the Collateral
pending as of the date of this Agreement or thereafter until the Liabilities
shall have been paid in full, to make any necessary
federal application with respect thereto, to file and prosecute opposition and
cancellation proceedings, and to do any and all acts which are necessary to
preserve and maintain all rights in all of the material trademarks constituting
a part of the Collateral. Any expenses incurred in connection with the
Collateral shall be borne by Debtor. Debtor shall not abandon any of the
material trademarks constituting a part of the Collateral, without the consent
of Required Banks, which consent shall not be unreasonably withheld.
8. If Debtor fails to comply with any of its obligations hereunder, Agent
may after the occurrence and during the continuance of an Event of Default do so
in Debtor's name or in Agent's name, but at Debtor's expense, and Debtor hereby
agrees to in accordance with, and subject to the Credit Agreement, reimburse
Agent in full for all expenses, including reasonable attorneys' fees, incurred
by Agent in protecting, defending and maintaining any of the trademarks
constituting a part of the Collateral.
9. No course of dealing between Debtor and Agent or the Banks, nor any
failure to exercise, nor any delay in exercising, on the part of Agent and the
Banks, any right, power or privilege hereunder or under any note or instrument
evidencing any of the Liabilities or any agreement pursuant to which they were
incurred 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.
10. All of Agent's and the Banks' rights and remedies with respect to any
of the trademarks constituting a part of the Collateral, whether established
hereby or by any instrument or instruments evidencing any of the Liabilities or
by any other agreements or by law, shall be cumulative and may be exercised
singularly or concurrently.
11. If any provision of this Agreement is hereafter determined to be
unlawful, and if the unlawful provision can be deleted without altering the
essence of this Agreement, the unlawful provision and only that provision shall
be severed from this Agreement and the remaining provisions shall remain in full
force and effect.
12. This Agreement is subject to modification only by a writing signed by
the parties, except as provided in Section 4 hereof.
13. The benefits and burdens of this Agreement shall inure to the benefit
of and be binding upon the respective successors and permitted assigns of the
parties.
14. This Trademark Security Agreement and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all purposes be governed by and construed and enforced in
accordance with the substantive law of the Commonwealth of Pennsylvania without
giving effect to the principles of conflict of laws.
15. This Trademark Security Agreement amends and restates that certain
Trademark Security Agreement dated March 13, 1997, of the Debtor in favor of PNC
Bank, National Association. This Trademark Security Agreement is not intended
as a novation, and shall not be a novation, of the obligations of the parties
thereto and hereto.
[SIGNATURES APPEAR ON NEXT PAGE]
[SIGNATURE PAGE 1 OF 1 TO TRADEMARK SECURITY AGREEMENT]
WITNESS the due execution hereof this 26th day of January, 1998.
XXXXX & XXXXX COMPANY
By /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Senior Vice President and Chief
Financial Officer
