Exhibit 10.6
TRADEMARK AND TRADEMARK
APPLICATION SECURITY AGREEMENT
This Trademark and Trademark Application Security Agreement (the "TM
SECURITY AGREEMENT") is made as of the 1st day of September, 2004, by Dynamics
Research Corporation, a Massachusetts corporation with its principal executive
offices at 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "COMPANY"), and
Xxxxx Brothers Xxxxxxxx & Co., with offices at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as administrative agent for itself and for each of the
other Lenders (defined below) as may become parties to the Loan Agreement
(defined below) (the "AGENT").
RECITALS
WHEREAS, pursuant to the Second Amended and Restated Loan Agreement
dated as of the date hereof (as same may be amended, modified or replaced from
time to time, the "LOAN AGREEMENT"), made by and among the Company and certain
affiliates of the Company (singly, a "BORROWER" and collectively, the
"BORROWERS"), the Agent, as administrative agent for a syndicate of Lenders (the
"LENDERS"), BankNorth, N.A., as Documentation Agent, KeyBank National
Association and Fleet National Bank, a Bank of America company, each as
Co-Syndication Agents, and such Lenders, the Agent and the Lenders have agreed
to make certain loans (hereinafter, the "LOANS") available to the Borrowers;
WHEREAS, under a certain Security Agreement of even date herewith (as
same may be amended, modified or replaced from time to time, the "SECURITY
AGREEMENT"), the Borrowers have created a security interest in each such
Borrower's assets to secure the liabilities and obligations of the Borrowers to
the Agent and the Lenders (as defined in the Loan Agreement) (hereinafter, the
"LIABILITIES");
WHEREAS, as a condition, among others, to the continuation of the
credit facilities contemplated by the Loan Agreement, and to further secure the
Liabilities, the parties hereto shall execute this TM Security Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Company and the Agent agree as
follows:
1. To secure the Liabilities, the Company hereby grants a security
interest in favor of the Agent for the benefit of each of the Lenders,
with power of sale, in and to the following and all proceeds thereof:
a. All of the Company's now owned or existing or hereafter
acquired or arising trademarks, trade registrations, trademark
applications, service marks, registered service marks and
service xxxx applications including, without limitation, the
trademarks, registered trademarks, trade xxxx applications,
service marks, registered service marks and service xxxx
applications listed on EXHIBIT A annexed hereto and made a
part hereof, together with any goodwill connected with and
symbolized by any such trademarks, trademark applications,
service marks, registered service marks or service xxxx
applications.
b. All renewals of any of the foregoing.
c. All income, royalties, damages and payments now and hereafter
due and/or payable under and with respect to any of the
foregoing, including, without limitation, payments under all
licenses entered into in connection therewith and damages and
payments for past or future infringements or dilutions
thereof.
d. The right to xxx for past, present and future infringements
and dilutions of any of the foregoing.
e. All of Company's rights corresponding to any of the foregoing
throughout the world.
All of the foregoing trademarks, registered trademarks and trademark
applications, and service marks, registered service marks and service
xxxx applications described in Subsection a, together with the items
respectively described in Subsections b through and including e are
hereinafter individually and/or collectively referred to as the
"TRADEMARKS".
2. Until this TM Security Agreement is terminated, the Company shall
undertake the following with respect to each Trademark to the extent
prudent in the exercise of its reasonable business judgment and
provided that any failure to do so does not have a material adverse
effect on the Company and its subsidiaries on a consolidated basis:
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a. Pay all renewal fees and other fees and costs associated with
maintaining the Trademarks and with the processing of the
Trademarks.
b. At Company's sole cost, expense, and risk, pursue the prompt,
diligent processing of each Application for Registration which
is the subject of the foregoing assignment and not abandon or
delay any such efforts.
c. At Company's sole cost, expense, and risk, take any and all
action which Company deems desirable to protect the
Trademarks, including, without limitation, but subject to
Company's discretion, the prosecution and defense of
infringement actions.
3. Upon the occurrence of any Event of Default (as defined in the Loan
Agreement), and until such Event of Default is cured, the Agent acting
in its own name or in that of the Company may (but shall not be
required to) act in the Company's place and stead and/or in the Agent's
own right in connection with the obligations set forth in Section 2,
above.
4. The Company represents and warrants that:
a. The Trademarks listed on EXHIBIT A include all of the
registered trademarks, Federal trademark applications,
registered service marks and Federal service xxxx applications
now owned by the Company.
b. No liens, claims or security interests have been granted by
the Company to any person or entity in such Trademarks other
than to the Agent or as otherwise permitted pursuant to the
Loan Agreement.
5. In order to further secure the Liabilities:
a. The Company shall give the Agent written notice (with
reasonable detail) within thirty (30) days following the
occurrence of any of the following:
i. The Company obtains rights to any new registered
trademarks, registered service marks or service xxxx
applications, (other than Company's right to sell
products containing the trademarks of others in the
ordinary course of Company's business)
ii. The Company becomes entitled to the benefit of any
registered trademarks, trademark applications,
trademark licenses, trademark license renewals,
service marks, registered service marks, service xxxx
applications, service xxxx licenses or service xxxx
license renewals whether as licensee or licensor
(other than Company's right to sell products
containing the trademarks of others in the ordinary
course of Company's business).
iii. The Company enters into any new trademark license
agreement or service xxxx license agreement.
b. The provisions of this TM Security Agreement shall
automatically apply to any such additional property or rights
described in a, above, all of which shall be
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deemed to be and treated as "Trademarks" within the meaning of
this TM Security Agreement.
c. The Company hereby authorizes the Agent to modify this
agreement by amending EXHIBIT A to include any future
trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx
applications, written notice of which is so given, provided,
however, the modification of said EXHIBIT A shall not be a
condition to the creation or perfection of the security
interest and TM Security Agreement created hereby.
6. Upon the occurrence and during the continuance of any Event of Default
(as defined in the Loan Agreement), the Agent may exercise all rights
and remedies of a secured party under the Uniform Commercial Code as
adopted in Massachusetts (Massachusetts General Laws, Chapter 106),
with respect to the Trademarks, in addition to which the Agent, subject
to the terms of the Loan Agreement, may sell, license, assign,
transfer, or otherwise dispose of the Trademarks. Any person may
conclusively rely upon an affidavit of an officer of the Agent that an
Event of Default and demand has occurred and is continuing and that the
Agent is authorized to exercise such rights and remedies.
7. Effective upon the occurrence and during the continuance of any Event
of Default (as defined in the Loan Agreement), the Company hereby
irrevocably constitutes and designates the Agent as and for the
Company's attorney in fact:
a. To exercise any of the rights exercisable and powers
referenced in Section 2.
b. To execute all and singular such instruments, documents, and
papers as the Agent determines to be appropriate in connection
with the exercise of such rights and remedies and to cause the
sale, license, assignment, transfer, or other disposition of
the Trademarks.
The within grant of a power of attorney, being coupled with an
interest, shall be irrevocable until the within TM Security Agreement
is terminated.
8. Any use by the Agent of the Trademarks as authorized hereunder in
connection with the exercise of the Agent's right and remedies under
the within TM Security Agreement and the Loan Agreement shall be
coextensive with the Company's rights thereunder and with respect
thereto and without any liability for royalties or other related
charges from the Agent to the Company.
9. The Agent hereby grants to the Company the right, prior to notice from
the Agent following the occurrence and during the continuance of an
Event of Default (as defined in the Loan Agreement), to xxx for past,
present and future infringement of the Trademarks including the right
to seek injunctions and/or money damages, in an effort by the Company
to protect the Trademarks against encroachment by third parties. The
Company shall notify Agent in writing of any such suit for enforcement
of the trademarks against a particular party. All reasonable costs
arising in connection with any such suit for enforcement shall be borne
by the Company.
10. Following the earlier to occur of (x) the Collateral Release Event (as
defined in the Loan Agreement), or (y) the payment and satisfaction of
all Liabilities, and the termination of
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any obligation of the Agent or any Lender to provide loans or financial
accommodations under the credit facility contemplated by the Loan
Agreement, this TM Security Agreement shall terminate and the Agent
shall promptly execute and deliver to the Company, at the Company's
cost and expense, all such instruments as the Company reasonably may
request to evidence such termination and to the extent, if any,
necessary to re-vest in the Company full title to the Trademarks and
the associated goodwill, subject to any disposition thereof which may
have been made by the Agent pursuant hereto or pursuant to the Loan
Agreement.
11. The Company shall, at the request of the Agent, do any and all acts and
execute any and all documents reasonably required by the Agent in
connection with the protection, preservation, and enforcement of the
Agent's rights hereunder.
12. The Company shall, upon demand, reimburse the Agent for all reasonable
costs and expenses incurred by the Agent in the exercise of any rights
hereunder (including, without limitation, reasonable fees and expenses
of counsel).
13. This TM Security Agreement is intended to be supplemental of the
Security Agreement. All provisions of the Security Agreement shall
apply to the Trademarks and the Agent shall have the same rights with
respect to any and all Trademarks granted the Agent to secure the
Liabilities hereunder as thereunder. In the event of a conflict between
this TM Security Agreement and the Security Agreement, the terms of
this TM Security Agreement shall control with respect to the
Trademarks, and the Security Agreement shall control with respect to
all other Collateral (as defined in the Loan Agreement).
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IN WITNESS WHEREOF, the Company and the Agent respectively have caused
this TM Security Agreement to be executed by officers duly authorized so to do
on the date first above written.
Dynamics Research Corporation Xxxxx Brothers Xxxxxxxx & Co.,
(The "Company") (The "Agent")
By_________________________________ By_______________________________
Title______________________________ Title____________________________
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COMMONWEALTH OF MASSACHUSETTS
County of Suffolk
Then personally appeared before me ________________ who acknowledged
that such person is the duly authorized _________ of Dynamics Research
Corporation and that such person executed the foregoing instrument as his free
act and deed on its behalf.
Witness my hand and seal this _____ day of September, 2004.
_________________________________
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk
Then personally appeared before me __________________, who acknowledged
that such person is the duly authorized _____________________ of Xxxxx Brothers
Xxxxxxxx & Co., and that such person executed the foregoing instrument on its
behalf.
Witness my hand and seal this _____ day of September, 2004.
_________________________________
, Notary Public
My Commission Expires:
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EXHIBIT A
U.S. Registrations
Xxxx Registration No.
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