EXHIBIT 10.33
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SECURITY AGREEMENT (TRADEMARKS)
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WHEREAS, PERITUS SOFTWARE SERVICES, INC, a Massachusetts corporation, with
a principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the
"Company") and FLEET NATIONAL BANK, with a place of business at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank") have entered into an Inventory,
Accounts Receivable and Intangibles Security Agreement dated as of September 6,
1996 (the "Security Agreement") and are also parties to a related letter
agreement (the "Letter Agreement") between the Bank and the Company; and
WHEREAS, the Company is the owner and user of the trademarks listed on
Schedule A hereto and identified in said Security Agreement (the "Trademarks");
and
WHEREAS, among the security interests granted by the Company to the Bank
pursuant to the Security Agreement is a security interest in the Trademarks
listed on Schedule A hereto, together with the goodwill of the business
associated with and symbolized by such Trademarks; and
WHEREAS, the parties to the Security Agreement contemplate and intend that,
if an Event of Default (as defined in the Letter Agreement) shall occur and be
continuing, the Bank shall have all rights of the Company in and to the
Trademarks and the goodwill of the business of the Company associated with and
symbolized by the Trademarks as may be necessary or proper in order to enable
the Bank, as foreclosing secured party, to continue such business of the Company
or, following such foreclosure, to transfer to a purchaser all such rights as
may be necessary or proper to enable such purchaser to continue such business of
the Company;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties reconfirm the terms of
the Security Agreement, as if set forth fully herein, and acknowledge that the
Bank has a security interest in the Trademarks listed on Schedule A hereto,
together with the goodwill of the business associated with and symbolized by
such Trademarks; as security for the Obligations (as defined in the Security
Agreement), the Company hereby collaterally assigns to the Bank, and grants a
security interest to the Bank in and to, all of the Company's right, title and
interest in and to said Trademark and the goodwill of the business associated
therewith; the Company agrees that it will not sell or assign any of the
Trademarks without the prior written consent of the Bank; and the Company and
the Bank request that the Commissioner of Patents and Trademarks record this
document with respect to the Trademarks.
The Company hereby appoints the Bank as the Company's attorney-in-fact
(with full power of substitution and resubstitution) with the power and
authority, after the occurrence and during the continuance of any Event of
Default (as defined in the Letter Agreement), to execute and deliver, in the
name and on behalf of the
Company, and to cause the recording of all such further assignments and other
instruments as the Bank may deem necessary or desirable in order to carry out
the intent of the Security Agreement and this Security Agreement (Trademarks).
The Company agrees that all third parties may conclusively rely on any such
further assignment or other instrument, so executed, delivered and recorded by
the Bank (or the Bank's designee in accordance with the terms hereof) and on the
statements made therein.
PERITUS SOFTWARE SERVICES, INC. FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
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Name: Name:
Title: Title:
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF )ss.
Then personally appeared before me the above-named , the
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of Peritus Software, Inc., and stated that he/she executed the
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foregoing instrument under the authority of said corporation's Board of
Directors and acknowledged the foregoing instrument to be the free act and deed
of said corporation.
WITNESS my hand and seal this day of September, 1996.
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Notary Public
My commission expires:
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SCHEDULE A
TO
SECURITY AGREEMENT (TRADEMARKS)
Marks with Federal Registration
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Marks Registration No./Date
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PERITUS (SKILLED) 1,968,718/April 16,1996
Marks with Pending Applications
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Marks Serial No./Filing Date
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AUTOENHANCER/2000 75-021,443/November 17, 1995
AUTOMATE: 2000 75-017,923/November 13, 1995
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