EXHIBIT 10.61
AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
WHEREAS, R.P.M. ENGINEERING, INC., a Louisiana corporation ("Grantor"),
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owns the trademarks, trademark registrations, and trademark applications listed
on Schedule 1 annexed hereto, and is a party to, or has been assigned the
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rights by the party to, the trademark licenses listed on Schedule 1 annexed
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hereto; and
WHEREAS, Grantor, IDS Engineering, Inc., Thermaire, Inc., Constant Power
Manufacturing, Inc, IDS Engineering Management, LC, Industrial Data Systems,
Inc., Petrocon Engineering, Inc., Triangle Engineers and Constructors, Inc.,
Petrocon Systems, Inc., Petrocon Technologies, Inc, Petrocon Engineering of
Louisiana, Inc., Alliance Engineering Associates, Inc. and Petrocon
Construction Resources, Inc. (collectively, "Borrowers"), have entered into
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that certain Second Amended and Restated Loan and Security Agreement dated as
of the date hereof (as amended, modified and in effect from time to time, the
"Loan Agreement") with Fleet Capital Corporation, a Rhode Island corporation,
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as Agent (in such capacity, "Agent"), for itself and the other financial
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institution(s) from time to time a party thereto (collectively, together with
their respective successors and assigns, the "Lenders"), providing for
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extensions of credit to be made by Lenders to Borrowers; and
WHEREAS, pursuant to the terms of the Loan Agreement, Grantor has granted
to Agent, for the benefit of Lenders, a security interest in all of the assets
of Grantor including all right, title and interest of Grantor in, to and under
all now owned and hereafter acquired trademarks, together with the goodwill of
the business symbolized by Grantor's trademarks, and all proceeds thereof, to
secure the payment of all amounts owing by Grantor under the Loan Agreement
including, without limitation, the Obligations (as defined in the Loan
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby grant to
Agent, for the benefit of Lenders, a continuing security interest in all of
Grantor's right, title and interest in, to and under the following (all of the
following items or types of property being herein collectively referred to as
the "Trademark Collateral"), whether presently existing or hereafter created or
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acquired:
(1) each trademark, trademark registration and trademark
application, including, without limitation, the trademarks,
trademark registrations (together with any reissues, continuations
or extensions thereof) and trademark applications referred to in
Schedule 1 annexed hereto, and all of the goodwill of the business
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connected with the use of, and symbolized by, each trademark,
trademark registration and trademark application;
(2) each trademark license and all of the goodwill of the
business connected with the use of, and symbolized by, each
trademark license; and
(3) all products and proceeds of the foregoing, including,
without limitation, any claim by Grantor against third parties for
past, present or future (a) infringement or
Trademark Security Agreement 1 009111.183:179757.03
dilution of any trademark or trademark registration including, without
limitation, the trademarks and trademark registrations referred to in
Schedule 1 annexed hereto, the trademark registrations issued with
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respect to the trademark applications referred in Schedule 1 and the
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trademarks licensed under any trademark license, or (b) injury to the
goodwill associated with any trademark, trademark registration or
trademark licensed under any trademark license.
This security interest is granted in conjunction with the security interests
granted to Agent, for the benefit of Lenders, pursuant to the Loan Agreement.
Grantor hereby acknowledges and affirms that the rights and remedies of Agent
and/or Lenders with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Loan
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
This Amended and Restated Trademark Security Agreement is given in renewal,
extension, modification and amendment (and not in extinguishment or novation)
of that certain Trademark Security Agreement, dated June 15, 1999, executed by
Grantor in favor of Agent.
[Remainder of Page Intentionally Left Blank]
Trademark Security Agreement 2 009111.183:179757.03
IN WITNESS WHEREOF, Grantor, through its duty authorized officer, has
caused this Trademark Security Agreement to be executed as of the _____ day of
December, 2001.
GRANTOR:
R.P.M. ENGINEERING, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
Acknowledged, agreed and accepted as
of the date hereof:
AGENT:
FLEET CAPITAL CORPORATION, as Agent
By:________________________________
Xxx X. Xxxxxx
Vice President
Trademark Security Agreement
ACKNOWLEDGMENT
STATE OF TEXAS (S)
(S) ss.
COUNTY OF DALLAS (S)
On the _____ day of December, 2001 before me personally appeared _________,
to me personally known or proved to me on the basis of satisfactory evidence to
be the person described in and who executed the foregoing instrument as the
____________ of R.P.M. Engineering, Inc., a Louisiana corporation, who being by
me duly sworn, did depose and say that he is the ___________________ of R.P.M.
Engineering, Inc., the corporation described in and which executed the
foregoing instrument; that he signed the said instrument on behalf of said
corporation by order of its Board of Directors; and that he acknowledged said
instrument to be the free act and deed of said corporation.
__________________________
Notary Public
(Seal)
My commission expires:
__________________________________
Trademark Security Agreement
ACKNOWLEDGMENT
STATE OF TEXAS (S)
(S) ss.
COUNTY OF DALLAS (S)
On the day of December, 2001 before me personally appeared Xxx X.
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Xxxxxx to me personally known or proved to me on the basis of satisfactory
evidence to be the person described in and who executed the foregoing
instrument as the Vice President of Fleet Capital Corporation, who being by me
duly sworn, did depose and say that he is the Vice President of Fleet Capital
Corporation, the corporation described in and which executed the foregoing
instrument; that he signed the said instrument on behalf of said corporation by
order of its Board of Directors; and that he acknowledged said instrument to be
the free act and deed of said corporation.
__________________________
Notary Public
(Seal)
My commission expires:
__________________________________
Trademark Security Agreement
SCHEDULE 1
TO
TRADEMARK SECURITY AGREEMENT
Trademark Registrations
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XXXX REG. NO. DATE
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Trademark Applications
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Trademark Licenses
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Name of Agreement Parties Date of Agreement
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Trademark Security Agreement
