Exhibit 10.22
TRADEMARK SECURITY AGREEMENT
----------------------------
This Trademark Security Agreement ("Agreement") is made as of the 8th day
of August, 2001, by Teleservices Technology Company, a Delaware corporation
("Debtor"), having a mailing address at Wilmington DE and delivered to PNC Bank,
National Association, a national banking association ("Lender") with an address
at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx.
BACKGROUND
----------
A. This Agreement is being executed contemporaneously with that certain
Seventh Amendment to Credit Agreement of even date herewith ("Seventh
Amendment") by and among RMH Teleservices, Inc. ("Borrower"), RMH Teleservices
International, Inc. ("Surety") and Lender (which Seventh Amendment amends that
certain letter agreement dated March 21, 1997 among Borrower, Surety and Lender,
as it has been and may hereafter be supplemented, restated, amended, superseded
or replaced from time to time, the "Credit Agreement"), that certain Security
Agreement of even date herewith between Borrower and Lender, ("Security
Agreement"), and that certain Guaranty and Suretyship Agreement ("Guaranty") of
even date herewith executed by Debtor in favor of Lender. The Credit Agreement,
Security Agreement, Guaranty and all related instruments, documents and
agreements are collectively referred to as "Loan Documents". Capitalized terms
not defined herein shall have the meanings given to such terms in the Guaranty.
B. Debtor has adopted, used and is using (or has filed applications for the
registration of) the trademarks, servicemarks and tradenames listed on Schedule
"A" attached hereto and made part hereof (all such marks or names hereinafter
referred to as the "Trademarks").
C. Pursuant to this Agreement, Lender is acquiring a lien on, and security
interest in, the Trademarks and the registration thereof, together with all the
goodwill of Debtor associated therewith and represented thereby, as security for
all of the Obligations, and desires to have its security interest 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.
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 Loan Documents, and
for other good, valuable and sufficient consideration, the receipt of which is
hereby acknowledged, and to secure the Obligations (whether at the stated
maturity, by acceleration or otherwise), Debtor grants a lien and security
interest to Lender in all of its present and future right, title and interest in
and to the Trademarks, together with all the goodwill of Debtor 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.
2. Debtor hereby covenants and agrees to maintain the Trademarks in full
force and effect until all of the Obligations are satisfied in full and the Line
of Credit, as defined in the Credit Agreement ("Line of Credit") has terminated.
3. Debtor represents, warrants and covenants that:
(a) The Trademarks are subsisting and have not been adjudged invalid or
unenforceable;
(b) Each of the Trademarks is valid and enforceable;
(c) Debtor 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 and
encumbrances, including, without limitation, pledges, assignments, licenses and
covenants by Debtor not to xxx third persons, other than a license in favor of
Borrower;
(d) Debtor has the unqualified right, power and authority to enter into
this Agreement and perform its terms;
(e) Debtor has complied with, and will continue for the duration of this
Agreement to comply with, the requirements set forth in 15 U.S.C. (S)1051-1127
and any other applicable statutes, rules and regulations in connection with its
use of the Trademarks, unless, with respect to any particular Trademark the
board of directors of the Debtor has determined in its reasonable business
judgment that any such Trademark has ceased to be of material value; and
(f) Debtor has used, and will continue to use and will direct any
licensor to use for the duration of this Agreement, consistent standards of
quality in products leased or sold or services rendered under the Trademarks.
4. Debtor further covenants that:
(a) Until all of the Obligations have been satisfied in full and the
Line of Credit has been terminated, it will not enter into any agreement,
including without limitation, license agreements or options, which are
inconsistent with Debtor's obligations under this Agreement other than a license
in favor of Borrower.
(b) The Trademarks listed on Schedule "A" constitute all of the
Trademarks, and all applications for any of the foregoing, now owned by Debtor.
If, before all Obligations shall have been satisfied in full and the Line of
Credit shall have been terminated, Debtor shall (i) obtain rights to any new
trademarks, trademark registrations or tradenames, or (ii) become entitled to
the benefit of any trademark application, trademark or trademark registration,
the provisions of this Agreement shall automatically apply thereto and such
trademark application, trademark or trademark registration, shall be deemed part
of the Trademarks. Debtor shall give
2
Lender prompt written notice thereof along with an amended Schedule "A."
5. So long as this Agreement is in effect and so long as Debtor has not
received notice from Lender that an Event of Default has occurred and is
continuing and that Lender has elected to exercise its rights hereunder, Debtor
shall continue to have the exclusive right to use the Trademarks and Lender
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. Except for the existing license in favor of Borrower, Debtor shall not
sell, license, grant any option, assign or further encumber its rights and
interest in the Trademarks.
7. Anything herein contained to the contrary notwithstanding, if and while
an Event of Default exists, Debtor hereby covenants and agrees that Lender, as
the holder of a security interest under the Uniform Commercial Code, as now or
hereafter in effect in Pennsylvania, may take such action permitted under the
Loan Documents or permitted by law, in its exclusive discretion, to foreclose
upon the Trademarks covered hereby. For such purposes, and in the event of an
Event of Default and while such Event of Default exists, Debtor hereby
authorizes and empowers Lender, its successors and assigns, and any officer or
agent of Lender as Lender may select, in its exclusive discretion, as Debtor's
true and lawful attorney-in-fact, with the power to endorse Debtor's name on all
applications, assignments, documents, papers and instruments necessary for
Lender to use the Trademarks or to grant or issue any exclusive or non-exclusive
license under the Trademarks to anyone else, or necessary for Lender to assign,
pledge, convey or otherwise transfer title in or dispose of the Trademarks to
anyone else including, without limitation, the power to execute a trademark
assignment in the form attached hereto as Exhibit 1. Debtor hereby ratifies all
that such attorney shall lawfully do or cause to be done by virtue hereof,
except for the gross negligence or willful misconduct of such attorney. This
power of attorney shall be coupled with an interest, irrevocable for the life of
this Agreement and the Loan Documents, and until all Debtor's Obligations are
satisfied in full and the Line of Credit has terminated.
8. This Agreement may not be modified without the written consent of the
party against whom enforcement is being sought.
9. All rights and remedies herein granted to Lender shall be in addition
to any rights and remedies granted under the Guaranty.
10. Upon full and unconditional satisfaction of all of the Obligations and
termination of the Line of Credit, Lender shall, at Debtor's expense, execute
and deliver to Debtor all documents reasonably necessary to terminate Lender's
security interest in the Trademarks.
11. Any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and legal expenses incurred by
Lender in connection with the filing or recording of any documents (including
all taxes in connection therewith) in public offices, the payment or discharge
of any taxes, reasonable counsel fees, maintenance fees,
3
encumbrances or costs otherwise incurred in protecting, maintaining, preserving
the Trademarks, or in defending or prosecuting any actions or proceedings
arising out of or related to the Trademarks, or defending, protecting or
enforcing Lender's rights hereunder, shall be borne and paid by Debtor on demand
by Lender and until so paid shall be added to the principal amount of the
Obligations and shall bear interest at the applicable rate for Advances under
the Line of Credit or the rate prescribed in Section 2 of the Credit Agreement
applicable to the Line of Credit.
12. Debtor 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, until all of the Obligations shall have been satisfied
in full and the Line of Credit terminated, to preserve and maintain all rights
in the Trademarks, and upon reasonable request of Lender, Debtor shall make
federal application on registrable but unregistered trademarks belonging to
Debtor. Any reasonable expenses incurred in connection with such applications
shall be borne by Debtor. Debtor shall not abandon any Trademark without the
prior written consent of Lender.
13. Debtor shall have the right to bring suit in its own name to enforce
the Trademarks, in which event Lender, may, if Debtor reasonably deems it
necessary, be joined as a nominal party to such suit if Lender shall have been
satisfied, in its sole discretion, that it is not thereby incurring any risk of
liability because of such joinder. Debtor shall promptly, upon demand, reimburse
and indemnify Lender for all damages, reasonable costs and expenses, including
attorneys' fees, incurred by Lender in the fulfillment of the provisions of this
paragraph.
14. During the existence of an Event of Default, Lender may, without any
obligation to do so, complete any obligation of Debtor hereunder, in Debtor's
name or in Lender's name, but at Debtor's expense, and Debtor hereby agrees to
reimburse Lender in full for all reasonable costs and expenses, including
reasonable attorneys' fees, incurred by Lender in protecting, defending and
maintaining the Trademarks.
15. Upon the full payment and termination of the Line of Credit (as defined
in the Loan Documents), the Bank's security interest in the Trademarks shall no
longer secure the Borrower's debts, liabilities and obligations pursuant to that
certain Master Lease Agreement and any Schedules thereto by and between the
Grantor and PNC Leasing LLC dated as of March 3, 1997.
16. No course of dealing between Debtor and Lender nor any failure to
exercise, nor any delay in exercising, on the part of Lender any right, power or
privilege hereunder, shall operate as a waiver thereof, and all of Lender's
rights and remedies with respect to the Trademarks, whether established hereby
or by the Guaranty, or by any other future agreements between Pledgor and Lender
or by law, shall be cumulative and may be exercised singularly or concurrently.
17. 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.
4
18. This Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.
19. This Agreement shall be governed by and construed in accordance with
the substantive laws of the Commonwealth of Pennsylvania, without regard to its
otherwise applicable principles of conflicts of laws.
20. Waiver of Jury Trial. The Debtor irrevocably waives any and all right
--------------------
the debtor may have to a trial by jury in any action, proceeding or claim of any
nature relating to this agreement, any documents executed in connection with
this Agreement or any transaction contemplated in any of such documents. The
Debtor acknowledges that the foregoing waiver is knowing and voluntary.
IN WITNESS WHEREOF, the parties hereto have executed this Trademark
Security Agreement, under seal, the day and year first above written.
Teleservices Technology Company
By: /s/ Xxxx Xxxxx
------------------------------------
Approved and Accepted:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
--------------------------
5
SCHEDULE A. TO TRADEMARK SECURITY AGREEMENT
-------------------------------------------
--------------------------------------------------------------------------------
TRADEMARKS APPLICATION SERIAL NO. FILING DATE
---------- ---------------------- -----------
--------------------------------------------------------------------------------
RMH* 76/301056 August 17, 2001
--------------------------------------------------------------------------------
RMH (Stylized)* 76/302227 August 17, 2001
--------------------------------------------------------------------------------
TRADENAMES
----------
RMH Teleservices*
* These items are owned by the Debtor by way of an assignment from the
Borrower on April 1, 1997. The Borrower has the right to use these items under
an exclusive license granted on April 1, 1997.
6
