Exhibit 10.28
TRADEMARK SECURITY AGREEMENT
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This Trademark Security Agreement ("Agreement") is made as of the
26th day of December, 2001 by RADNOR DELAWARE, INC. ("Grantor"), a Delaware
corporation having a mailing address at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 ("Grantor") and delivered to PNC BANK, NATIONAL
ASSOCIATION ("Agent") having a mailing address at 0000 Xxxxxx Xxxxxx,
X0-X000-00-0, Xxxxxxxxxxxx, XX 00000, Attn: Xxxxxxx Ferhle.
BACKGROUND
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A. This Agreement is being executed in connection with that certain
Fourth Amended and Restated Revolving Credit and Security Agreement among
Agent, the financial institutions which are now or which hereafter become a
party thereto as Lenders, the Grantor named therein, and the other Borrowers
named as Borrower therein, of even date herewith (as it may hereafter be
amended, modified, restated or replaced from time to time, the "Credit
Agreement"), under which, inter alia, Grantor is (i) granting Agent for the
benefit of Lenders a lien on and security interest in the registered trademarks
of Grantor and certain applications of Grantor for the registration thereof and
in certain assets of Grantor associated with or relating to products leased or
sold or services provided under the trademarks of Grantor and the goodwill
associated therewith and represented thereby as security for the payment and
performance of the Obligations (as defined in the Credit Agreement) of Grantor
under the Credit Agreement, and under which Agent is entitled to foreclose or
otherwise deal with such assets, trademarks, service marks and trade names and
applications for the registration of trademarks under the terms and conditions
set forth therein and (ii) granting to Agent a license to use or dispose of
(conditioned upon the occurrence and continuance of an Event of Default) such
trademarks. Capitalized terms not defined herein shall have the meanings given
to such terms in the Credit Agreement.
B. Grantor owns, has adopted, used and is using (or has filed
applications for the registration of) the trademarks, service marks and trade
names listed on Schedule "A" (with respect to trademarks, etc. adopted and used
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in the United States) and on Schedule "B" (with respect to trademarks, etc.
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adopted and used outside of the United States) attached hereto and made part
hereof (all such marks or names hereinafter referred to as the "Trademarks")
C. Grantor and Agent desire to have the security interest of Agent
in such Trademarks confirmed by a document identifying same and in such form
that it may be recorded in the United States Patent and Trademark Office or
other appropriate trademark office.
NOW THEREFORE, with the foregoing Background hereinafter deemed
incorporated by reference and made a part hereof, and in consideration of the
premises and mutual promises herein contained, the parties hereto, intending to
be legally bound hereby, covenant and agree as follows:
1. In consideration of and pursuant to the terms of the Credit
Agreement and Other Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
payment and performance of all of the Obligations of Grantor under the Credit
Agreement, Grantor grants a lien and security interest to Agent for the benefit
of Lenders in all of its present and future right, title and interest in and to
the Trademarks, together with all the goodwill of Grantor associated with and
represented by the Trademarks, and the registration thereof and the right (but
not the obligation) to xxx for past, present and future infringements, and the
proceeds thereof, including, without limitation, license royalties and proceeds
of infringement suits (collectively the "Collateral").
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2. Grantor hereby covenants and agrees to maintain the Trademarks in
full force and effect, provided, however, that Grantor may, in its reasonable
business judgment, abandon any application among the Trademarks or permit any
registration among the Trademarks to be cancelled, and otherwise perform all of
its obligations and undertakings under this Agreement until all of the
Obligations of Grantor are indefeasibly paid and satisfied in full and the
Credit Agreement and the commitments of the Lenders to make Advances under the
Credit Agreement ("Revolving Credit Commitments") have been terminated.
3. Grantor represents, warrants and covenants to Agent that:
(a) The Trademarks are subsisting and have not been adjudged
invalid or unenforceable;
(b) Each of the Trademarks is registered (or in the process
of application for registration);
(c) Except for any Permitted Encumbrances, Grantor is the
sole and exclusive owner of the entire and unencumbered right, title and
interest in and to each of the Trademarks, and each of the Trademarks is free
and clear of any liens, claims, charges, encumbrances and licenses (excluding
licenses to affiliates of Grantor), including, without limitation, pledges,
assignments, options, and covenants by Grantor not to xxx third persons, except
as set forth on Schedule C;
(d) Grantor has the full right, power and authority to enter
into this Agreement and perform its terms;
(e) To Grantor's knowledge, Grantor has complied with, and
will continue for the duration of this Agreement to comply with, the
requirements set forth in 15 U.S.C. [double sect] 1051-1127 and any other
applicable statutes, rules and regulations in connection with its use of the
Trademarks; and
(f) Grantor has no notice of any suits or actions commenced
or threatened against it, or notice of claims asserted or threatened against
it, with reference to the Trademarks, except as set forth of Schedule D.
4. Grantor further covenants that:
(a) Until all of the Obligations of Grantor have been
indefeasibly paid and satisfied in full and the Credit Agreement and Revolving
Credit Commitments have been terminated (other than Indemnification Obligations
which survive the Credit Agreement), Grantor will not enter into any agreement
which is inconsistent with the obligations of Grantor under this Agreement, the
Obligations of Grantor under the Credit Agreement or which may restrict or
impair the rights or priorities of Agent hereunder.
(b) If Grantor acquires rights of ownership to any new
trademarks, excluding applications for U.S. Federal registration of marks filed
under 15 U.S.C. 1051(b) and in which no amendment to allege use under 15
U.S.C. 1051(c) or statement of use under 15 U.S.C. 1051(d) has been filed, not
listed on Schedule A/Schedule B attached hereto ("Additional Trademarks"), then
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(i) the provisions of this Agreement shall be deemed to automatically apply
thereto and such Additional Trademarks shall be deemed part of the Trademarks,
(ii) Grantor shall give Agent written notice promptly upon application
therefor, and (iii) Grantor shall promptly deliver to Agent with respect to
such Additional Trademarks a Supplement to Trademark Security Agreement in the
form attached hereto as Exhibit II, duly completed and executed by Grantor and
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accompanied by a fully completed Schedule A-
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1/Schedule B-1 with respect to such Additional Trademarks. Each such Schedule
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A-1/Schedule B-1 attached to each such Supplement to Trademark Security
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Agreement shall be incorporated and become a part of Schedule A/Schedule B
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attached hereto and all references to Schedule A contained in this Agreement
shall be deemed, for all purposes, to also include each such Schedule
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A-1/Schedule B-1.
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5. So long as this Agreement is in effect and so long as Grantor
has not received notice from Agent that an Event of Default has occurred and is
continuing under the Credit Agreement and that Agent has elected to exercise
its rights hereunder, (i) Grantor shall continue to have the right to use the
Trademarks and (ii) Agent shall have no right to use the Trademarks or issue
any exclusive or non-exclusive license with respect thereto, or assign, pledge
or otherwise transfer title in the Trademarks to anyone else.
6. Grantor agrees not to sell, grant any license except to an
affiliate of Grantor, grant any option, assign or further encumber its rights
and interest in the Trademarks without prior written consent of Agent or as may
be expressly permitted under the Credit Agreement.
7. Following the occurrence and during the continuance of an Event
of Default under the Credit Agreement (including without limitation an Event of
Default arising from any failure of Grantor to comply with any covenant or
undertaking under this Agreement), Agent, as the holder of a security interest,
under the Uniform Commercial Code, as now or hereafter in effect in the
jurisdiction whose law governs the interpretation of the Credit Agreement, may
take such action permitted under the Credit Agreement and Other Documents,
hereunder or under any law, in its exclusive discretion, to record, foreclose
upon or otherwise exercise its rights against the Trademarks covered hereby.
For such purposes, and only upon the occurrence and during the continuance of
an Event of Default, Grantor hereby authorizes, appoints and empowers Agent,
its successors and assigns, and any officer or agent of Agent as Agent may
select, in its exclusive discretion, as the true and lawful attorney-in-fact of
Grantor, with the power to endorse the name of Grantor on all applications,
assignments, documents, papers and instruments necessary for Agent to record
its interest in any Trademarks or Additional Trademarks in the United States
Patent and Trademark Office or other appropriate trademark office including,
without limitation, the power to execute on behalf of Grantor a Supplement to
Trademark Security Agreement, to use the Trademarks or to grant or issue any
exclusive or non-exclusive license under the Trademarks to anyone else, or
necessary for Agent to assign, pledge, convey or otherwise transfer title in or
dispose of the Trademarks to anyone else including, without limitation, the
power to execute on behalf of Grantor a trademark assignment in the form
attached hereto as Exhibit I. Grantor hereby ratifies all that such attorney
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shall lawfully do or cause to be done by virtue hereof and in accordance with
the terms hereof, except for the gross negligence or willful misconduct of such
attorney. This power of attorney shall be irrevocable for the life of this
Agreement, the Credit Agreement, Other Documents, and until all of the
Obligations of Grantor are indefeasibly paid and satisfied in full and the
Credit Agreement and the Revolving Credit Commitments are terminated. Agent
covenants that no action taken pursuant to the rights granted in this Section 7
will colorably constitute an assignment of any of the Trademarks without its
associated goodwill.
8. This Agreement shall be subject to the terms, conditions and
provisions set forth in the Credit Agreement and may not be modified without
the written consent of the parties hereto.
9. All rights and remedies herein granted to Agent shall be in
addition to any rights and remedies granted to Agent under the Credit Agreement
and Other Documents and shall be cumulative. In the event of an inconsistency
between this Agreement and the Credit Agreement, the language of the Credit
Agreement shall control. All obligations of the Grantor under this Agreement
that are addressed in the Credit Agreement shall be satisfied by compliance by
the Grantor with the Credit Agreement.
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10. Upon full and unconditional satisfaction and performance of all
of the Obligations of Grantor and termination of the Credit Agreement and the
Revolving Credit Commitments, Agent shall execute and deliver to Grantor all
documents reasonably necessary to terminate the security interest of Agent in
the Trademarks.
11. Any and all reasonable fees, costs and expenses, of whatever kind
or nature, including the attorneys' fees and legal expenses incurred by Agent
in connection with the preparation and execution 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 costs otherwise incurred in protecting,
maintaining, or preserving the Trademarks, or in defending or prosecuting any
actions or proceedings arising out of or related to the Trademarks, or
defending, protecting , enforcing or terminating the rights of Agent hereunder,
in each case in accordance with the terms of this Agreement and the Credit
Agreement and Other Documents, shall be borne and paid by Grantor on demand by
Agent and until so paid shall be added to the principal amount of the
Obligations of Grantor and shall bear interest at the highest rate applicable
to Revolving Loans from time to time under the Credit Agreement.
12. Subject to any applicable terms of the Credit Agreement, Grantor
shall have the duty to prosecute diligently any trademark application with
respect to the Trademarks pending as of the date of this Agreement or
thereafter to preserve and maintain all rights in the Trademarks, provided,
however, that Grantor may, in its reasonable business judgment, abandon any
application among the Trademarks or permit any registration among the
Trademarks to be cancelled, and upon the request of Agent, Grantor shall make
federal or other appropriate application on registrable but unregistered
trademarks belonging to Grantor. Any expenses incurred in connection with such
applications with such applications shall be borne exclusively by Grantor.
13. Grantor shall have the right to bring suit in its own name to
enforce the Trademarks, in which event Agent may, if Grantor reasonably deems
it necessary, be joined as a nominal party to such suit if Agent shall have
been satisfied, in its sole discretion, that it is not thereby incurring any
risk of liability because of such joinder. Grantor shall promptly, upon demand,
reimburse and indemnify Agent for all damages, costs and expenses, including
reasonable attorneys' fees, and costs, incurred by Agent in the fulfillment of
the provisions of this paragraph.
14. If an Event of Default has occurred and is continuing under the
Credit Agreement, Agent may, without any obligation to do so, complete any
obligation of Grantor hereunder, in the name of Grantor or in the name, of
Agent, but at the expense of Grantor, and Grantor hereby agrees to reimburse
Agent in full for all costs and expenses, including without limitation all
reasonable attorneys' fees, incurred by Agent in protecting, defending and
maintaining the Trademarks.
15. No course of dealing between Grantor and Agent nor any failure to
exercise, nor any delay in exercising, on the part of Agent, any right, power
or privilege hereunder, shall operate as a waiver thereof, and all of the
rights and remedies of Agent with respect to the Trademarks whether established
hereby or by the Credit Agreement and Other Documents, or by any other future
agreements between Grantor and Agent or by law, shall be cumulative and may be
exercised singularly or concurrently.
16. The provisions of this Agreement are severable and the invalidity
or unenforceability of any provision herein shall not affect the remaining
provisions which shall continue unimpaired and in full force and effect.
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17. This Agreement shall inure to the benefit of and be binding
upon the respective successors and permitted assigns of the parties.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS RULES. Any judicial proceeding brought by or against any
Grantor with respect to this Agreement or any related agreement may be brought
in any court of competent jurisdiction located in the Commonwealth of
Pennsylvania, and, by execution and delivery of this Agreement, Grantor accepts
for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this Agreement.
Grantor hereby waives personal service of any and all process upon it and
consents that all such service of process may be made by internationally
recognized overnight courier directed to Grantor at its address set forth in
Section 15.6 of the Credit Agreement and service so made shall be deemed
completed one (1) day after the same shall have been so delivered to such
overnight courier. Nothing herein shall affect the right to serve process in any
manner permitted by law or shall limit the right of Agent or any Lender to bring
proceedings against Grantor in the courts of any other jurisdiction. Grantor
waives any objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of jurisdiction or
venue or based upon forum non conveniens. Any judicial proceeding by Grantor
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against Agent or any Lender involving, directly or indirectly, any matter or
claim in any way arising out of, related to or connected with this Agreement or
any related agreement, shall be brought only in a federal or state court located
in the Counties of Philadelphia or Xxxxxxxxxx, Commonwealth of Pennsylvania.
19. GRANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF GRANTOR, LENDERS AND/OR AGENT OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE AND GRANTOR HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT GRANTOR, AGENT AND/OR LENDERS MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GRANTOR TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
5
IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto have executed this Trademark Security Agreement the day and year first
above written.
RADNOR DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Hastings, Sr.
-----------------------------------
X. Xxxxxxxxx Xxxxxxxx, Sr. VP, Treasurer
Acknowledged and accepted:
PNC BANK, NATIONAL ASSOCIATION,
As Agent under the Credit Agreement
By: /s/ Xxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxx, Xx., Vice President
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CORPORATE ACKNOWLEDGMENT
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UNITED STATES OF AMERICA :
COMMONWEALTH OF PENNSYLVANIA : SS
COUNTY OF PHILADELPHIA :
On this 26th day of December, 2001 before me personally appeared
X. Xxxxxxxxx Hastings, to me known and being duly sworn, deposes and says that
s/he is authorized to sign on behalf of Radnor Delaware, Inc.; that s/he signed
the Agreement attached hereto pursuant to the authority vested in him by law;
that the within Agreement is the voluntary act of such corporation; and s/he
desires the same to be recorded as such.
/s/ Xxxxxxx Xxxxxxx
--------------------------------
Notary Public
My Commission Expires:
Exhibit I
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TRADEMARK ASSIGNMENT
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WHEREAS, RADNOR DELAWARE, INC. ("Grantor") is the registered owner of
the United States trademarks, tradenames and registrations listed on Schedule
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"A"/Schedule "B" attached hereto and made a part hereof (the "Trademarks"),
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which are registered in the United States Patent and Trademark Office (with
respect to Schedule A) or the trademark office of another jurisdiction or
trademark authority (with respect to Schedule B); and
WHEREAS, _____________________________ ("Grantee"), having a place of
business at ___________________________________________________, is desirous of
acquiring said Trademarks;
NOW THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound hereby, Grantor, its
successors and assigns, does hereby transfer, assign and set over unto Grantee,
its successors, transferees and assigns, all of its present and future right,
title and interest in and to the Trademarks and all proceeds thereof and all
goodwill associated therewith.
IN WITNESS WHEREOF, the undersigned has caused this Trademark
Assignment to be executed as of the ___ day of _______________, ________.
RADNOR DELAWARE, INC.
By: _________________________________
Attorney-in-fact
COMMONWEALTH OF PENNSYLVANIA :
: S.S.
COUNTY OF :
On this ____ day of _______, ____ before me, a Notary Public for the
said County and Commonwealth, personally appeared known to me or satisfactorily
proven to me to be attorney-in-fact on behalf of RADNOR DELAWARE,
INC.("Grantor") and s/he acknowledged to me that s/he executed the foregoing
Trademark Assignment on behalf of Grantor, and as the act and deed of Grantor
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_____________________________
Notary Public
My Commission Expires:
------------------------------
POWER OF ATTORNEY
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RADNOR DELAWARE, INC. ("Grantor"), hereby authorizes PNC BANK,
NATIONAL ASSOCIATION, its successors and assigns, and any officer or agent
thereof (collectively, "Agent"), as agent for the Lenders under the Fourth
Amended and Restated Revolving Credit and Security Agreement among Agent, the
financial institutions which are now or which hereafter become a party thereto
as Lenders, the Guarantor named therein, and the other Borrowers named as
Borrowers therein, of even date herewith (as it may hereafter be amended,
modified, restated or replaced from time to time, the "Credit Agreement"), as
the true and lawful attorney-in-fact of Grantor, with the following powers
exercisable only following the occurrence and during the continuance of an
Event of Default under the Credit Agreement (including without limitation an
Event of Default arising from any failure of Grantor to comply with any
covenant or undertaking under the Trademark Security Agreement referenced
below), with the power to endorse the name of Grantor on all applications,
assignments, documents, papers and instruments necessary for Agent to enforce
and effectuate its rights under a certain Trademark Security Agreement between
Grantor and Agent dated the date hereof (as it may hereafter be supplemented,
restated, superseded, amended or replaced, the "Trademark Agreement"),
including, without limitation, the power to record its interest in any
Trademarks (as defined in the Trademark Agreement) or Additional Trademarks (as
defined in the Trademark Agreement) in the United States Patent and Trademark
Office or other appropriate trademark office including, without limitation, the
power to execute on behalf of Grantor a supplement to Trademark Security
Agreement, to use the Trademarks or to grant or issue any exclusive or
non-exclusive license under the Trademarks to anyone else, or to assign,
pledge, convey or otherwise transfer title in or dispose of the Trademarks to
anyone else including, without limitation, the power to execute on behalf of
Grantor a trademark assignment, in each case subject to the terms of the
Trademark Agreement. Nothing herein contained shall obligate Agent to use or
exercise any rights granted herein.
This Power of Attorney is given and any action taken pursuant hereto
is intended to be so given or taken pursuant to and subject to the provisions
of the Credit Agreement.
Grantor hereby unconditionally ratifies all that such attorney shall
lawfully do or cause to be done by virtue hereof and in accordance with the
terms of the Trademark Agreement, the Credit Agreement and the Other Documents.
This Power of Attorney shall be irrevocable for the life of the
Trademark Agreement.
IN WITNESS WHEREOF, the Grantor has executed this Power of Attorney,
this 26th day of December, 2001.
RADNOR DELAWARE, INC.
By: /s/ X. Xxxxxxxxx Xxxxxxxx, Sr.
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X. Xxxxxxxxx Hastings, Sr. VP, Treasurer
CORPORATE ACKNOWLEDGMENT
------------------------
UNITED STATES OF AMERICA :
COMMONWEALTH OF PENNSYLVANIA :SS
COUNTY OF PHILADELPHIA :
On this 26th of December, 2001 personally appeared X. Xxxxxxxxx
Xxxxxxxx, to me known and being duly sworn, deposes and says that authorized to
sign on behalf of Radnor Delaware, Inc., the Grantor corporation described in
the foregoing Power of Attorney; that s/he signed the Power of Attorney
pursuant to the authority vested in her/him by law; that the within Power of
Attorney is the voluntary act of such corporation; and s/he desires the same to
be recorded as such.
/s/ Xxxxxxx Xxxxxxx
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Notary Public
My Commission Expires:
SCHEDULE "A"
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UNITED STATES TRADEMARKS
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Name/Title Country Registration Number Date of Registration/
----------- ------- ------------------- ---------------------
(Application No.) Date of Application
--------------- -------------------
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THE BIG COOL USA 1,540,541
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Miscellaneous Design USA 1,400,358
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STYROCUP USA 1,340,796
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STYROWARE USA 951,103
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STYROCONTAINERS USA 926,058
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STYROLID USA 881,374
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Miscellaneous Design USA 951,619
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SUNDANCE USA 2,513,872
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I AMERICA and Design USA 2,321,795
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FIESTA and Design USA 2,324,378
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FRESH GOURMET USA 2,312,051
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Miscellaneous Design USA 2,513,873
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COOL QUENCHERS USA 2,336,355
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CAFE ULTIMA USA 2,454,020
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SCHEDULE "B"
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FOREIGN TRADEMARKS
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Name/Title Country Registration Number/ Date of Registration/Date
---------- ------- --------------------- -------------------------
Application No . of Application
---------------- --------------
EXHIBIT II
SUPPLEMENT TO TRADEMARK SECURITY AGREEMENT
------------------------------------------
This Supplement to Trademark Security Agreement ("Supplement"), dated
[__________ ___, ________], is entered into by RADNOR DELAWARE, INC., a
Pennsylvania corporation having a mailing address at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("Grantor") and delivered to PNC BANK,
NATIONAL ASSOCIATION having a mailing address at 0000 Xxxxxx Xxxxxx,
X0-X000-00-0, Xxxxxxxxxxxx, XX 00000, Attn: Xxxxxxx Ferhle ("Agent") as agent
for the Lenders under the Credit Agreement (as defined below).
BACKGROUND
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A. This Supplement is being delivered in connection with that
certain Fourth Amended and Restated Revolving Credit and Security Agreement
among Agent, the financial institutions which are now or which hereafter become
a party thereto as Lenders, the Grantor named therein, and the other Borrowers
named as Borrowers therein, dated December 26, 2001 (as it may hereafter be
amended, modified, restated or replaced from time to time, the "Credit
Agreement"), and that certain Trademark Security Agreement, dated as of the
date of the Credit Agreement, by and between Grantor and Agent (as it may have
been and hereafter be amended, supplemented, restated, replaced, or otherwise
modified from time to time, the "Trademark Security Agreement"). Capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in, or by reference in, the Trademark Security Agreement.
B. Pursuant to the Credit Agreement and the Trademark Security
Agreement, Grantor granted to Agent for the benefit of Lenders a lien on and
security interest in all of the Trademarks of Grantor (as defined therein).
C. Grantor has acquired certain additional trademarks, servicemarks
and tradenames as set forth on Schedule A-1/Schedule B-1 attached hereto and
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made part hereof (collectively, "Additional Trademarks"). Grantor and Agent
desire to execute this Supplement for the purpose of, inter alia, granting,
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ratifying and confirming the lien and security interest of Agent on and in the
Additional Trademarks, as more fully set forth in the Trademark Security
Agreement, and for recording in the United States Patent and Trademark Office
or other appropriate trademark office.
NOW THEREFORE, with the foregoing Background hereinafter deemed
incorporated by reference and made a part hereof, and for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Grantor, intending to be legally bound hereby, covenants and agrees as follows:
1. In consideration of and pursuant to the terms of the Credit
Agreement and Other Documents, and for other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, and to secure the
Obligations, Grantor grants a lien and security interest to Agent, for the
benefit of Lenders, in all of its present and future right, title and interest
in and to the Additional Trademarks, together with all the goodwill of Grantor
associated with and represented by the Additional Trademarks, and the
registration thereof and the right (but not the obligation) to xxx for past,
present and future infringements, and the proceeds thereof, including, without
limitation, license royalties and proceeds of infringement suits.
2. Grantor acknowledges and confirms that the rights and remedies of
Agent with respect to the security interest in the Additional Trademarks
granted hereby are more fully set forth in the Credit Agreement and the
Trademark Security Agreement, the terms and provisions of which are
incorporated herein by reference. All references to the Trademark Security
Agreement contained in the Credit Agreement or Other Documents shall be deemed,
for all purposes, to also refer to and include this Supplement.
3. Schedule A/Schedule B to the Trademark Agreement is hereby
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supplemented by the information contained on Schedule A-1/Schedule B-1 attached
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hereto. All references to Schedule A/Schedule B contained in the Credit
---------------------
Agreement, Trademark Security Agreement or Other Documents shall be deemed, for
all purposes, to also refer to and include Schedule A-1/Schedule B-1.
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4. Except as expressly amended by this Supplement, all of the terms,
conditions and provisions of the Credit Agreement and the Trademark Security
Agreement are hereby ratified and continue unchanged and remain in full force
and effect.
5. This Supplement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature by
facsimile shall also bind the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Supplement
on the day and year first above written.
RADNOR DELAWARE, INC.
By: __________________________
Name:
Title:
Approved and accepted:
PNC BANK, NATIONAL ASSOCIATION
As Agent under the Credit Agreement
By: __________________________
Name: __________________________
Title: __________________________
CORPORATE ACKNOWLEDGMENT
------------------------
UNITED STATES OF AMERICA :
STATE OF ___________________ : SS
COUNTY OF ________________ :
On this [___ day of ______________, 200__], before me personally
appeared ____________________, who being duly sworn, deposes and says that
he/she is authorized to sign on behalf of Radnor Delaware, Inc., the
corporation described in the foregoing document, that he/she in such capacity
is authorized to execute on behalf of the said corporation the foregoing
document for the purposes contained therein, and that he/she is the person
whose name and signature is subscribed to the foregoing document.
_________________________________
Notary Public
My commission expires: __________
