EXHIBIT 10.67
TRADEMARK COLLATERAL
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SECURITY AND PLEDGE AGREEMENT
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TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT dated as of June 11,
1998, between InSolutions Incorporated, a Delaware corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(the "Assignor"), and BankBoston, N.A. (formerly known as The First National
Bank of Boston), a national banking association having an office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ as agent (hereinafter, in such capacity, the
"Agent") for itself and other banking institutions (hereinafter, collectively,
the "Banks") which are, or may in the future become, parties to an Amended and
Restated Revolving Credit and Term Loan Agreement dated as of June 11, 1998 (as
amended and in effect from time to time, the "Credit Agreement"), among the
Assignor, the Banks, the Agent and certain other parties thereto.
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Assignor under the Credit Agreement that the
Assignor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a trademark agreement in substantially the form hereof;
WHEREAS, the Assignor has executed and delivered to the Agent, for the
benefit of the Banks and the Agent, the Security Agreement (as defined in the
Credit Agreement), pursuant to which the Assignor has granted to the Agent, for
the benefit of the Banks and the Agent, a security interest in certain of the
Assignor's personal property and fixture assets, including without limitation
the trademarks, service marks, trademark and service ▇▇▇▇ registrations, and
trademark and service ▇▇▇▇ registration applications listed on Schedule A
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attached hereto, all to secure the payment and performance of the Obligations
(as defined in the Credit Agreement); and
WHEREAS, this Trademark Agreement is supplemental to the provisions
contained in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
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Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided therefor in the Credit Agreement and the
Security Agreement. In addition, the following terms shall have the meanings
set forth in this (S)1 or elsewhere in this Trademark Agreement referred to
below:
Assignment of Marks. See (S)2.1.
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Associated Goodwill. All goodwill of the Assignor and its business,
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products and services appurtenant to, associated with or symbolized by the
Trademarks and the use thereof.
Pledged Trademarks. All of the Assignor's right, title and interest in and
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to all of the Trademarks, the Trademark Registrations, the Trademark License
Rights, the Trademark Rights, the Associated Goodwill, the Related Assets, and
all accessions to, substitutions for, replacements of, and all products and
proceeds of any and all of the foregoing.
PTO. The United States Patent and Trademark Office.
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Related Assets. All assets, rights and interests of the Assignor that
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uniquely reflect or embody the Associated Goodwill, including the following:
(a) all patents, inventions, copyrights, trade secrets, confidential
information, formulae, methods or processes, compounds, recipes, know-how,
methods and operating systems, drawings, descriptions, formulations,
manufacturing and production and delivery procedures, quality control
procedures, product and service specifications, catalogs, price lists, and
advertising materials, relating to the manufacture, production, delivery,
provision and sale of goods or services under or in association with any of
the Trademarks; and
(b) the following documents and things in the possession or under
the control of the Assignor, or subject to its demand for possession or
control, related to the production, delivery, provision and sale by the
Assignor, or any affiliate, franchisee, licensee or contractor, of products
or services sold by or under the authority of the Assignor in connection
with the Trademarks or Trademark Rights, whether prior to, on or subsequent
to the date hereof:
(i) all lists, contracts, ancillary documents and other
information that identify, describe or provide information with
respect to any customers, dealers or distributors of the Assignor, its
affiliates or franchisees or licensees or contractors, for products or
services sold under or in connection with the Trademarks or Trademark
Rights, including all lists and documents containing information
regarding each customer's, dealer's or distributor's name and address,
credit, payment, discount, delivery and other sale terms, and history,
pattern and total of purchases by brand, product, style, size and
quantity;
(ii) all agreements (including franchise agreements), product
and service specification documents and operating, production and
quality control manuals relating to or used in the design,
manufacture, production, delivery, provision and sale of products or
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services under or in connection with the Trademarks or Trademark
Rights;
(iii) all documents and agreements relating to the identity and
locations of all sources of supply, all terms of purchase and
delivery, for all materials, components, raw materials and other
supplies and services used in the manufacture, production, provision,
delivery and sale of products or services under or in connection with
the Trademarks or Trademark Rights; and
(iv) all agreements and documents constituting or concerning the
present or future, current or proposed advertising and promotion by
the Assignor (or any of its affiliates, franchisees, licensees or
contractors) of products or services sold under or in connection with
the Trademarks or Trademark Rights.
Trademark Agreement. This Trademark Collateral Security and Pledge
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Agreement, as amended and in effect from time to time.
Trademark License Rights. Any and all past, present or future rights and
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interests of the Assignor pursuant to any and all past, present and future
franchising or licensing agreements in favor of the Assignor, or to which the
Assignor is a party, pertaining to any Trademarks, Trademark Registrations, or
Trademark Rights owned or used by third parties in the past, present or future,
including the right (but not the obligation) in the name of the Assignor or the
Agent to enforce, and ▇▇▇ and recover for, any breach or violation of any such
agreement to which the Assignor is a party.
Trademark Registrations. All past, present or future federal, state, local
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and foreign registrations of the Trademarks, all past, present and future
applications for any such registrations (and any such registrations thereof upon
approval of such applications), together with the right (but not the obligation)
to apply for such registrations (and prosecute such applications) in the name of
the Assignor or the Agent, and to take any and all actions necessary or
appropriate to maintain such registrations in effect and renew and extend such
registrations.
Trademark Rights. Any and all past, present or future rights in, to and
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associated with the Trademarks throughout the world, whether arising under
federal law, state law, common law, foreign law or otherwise, including the
following: all such rights arising out of or associated with the Trademark
Registrations; the right (but not the obligation) to register claims under any
state, federal or foreign trademark law or regulation; the right (but not the
obligation) to ▇▇▇ or bring opposition or cancellation proceedings in the name
of the Assignor or the Agent for any and all past, present and future
infringements or dilution of or any other damages or injury to the Trademarks,
the Trademark Rights, or the Associated Goodwill, and the rights to damages or
profits due or accrued arising out of or in connection with any such past,
present or future infringement, dilution, damage or injury; and the Trademark
License Rights.
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Trademarks. All of the trademarks, service marks, designs, logos, indicia,
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trade names, corporate names, company names, business names, fictitious business
names, trade styles, elements of package or trade dress, and other source and
product or service identifiers, used or associated with or appurtenant to the
products, services and businesses of the Assignor, that (i) are set forth on
Schedule A hereto, or (ii) have been adopted, acquired, owned, held or used by
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the Assignor or are now owned, held or used by the Assignor, in the Assignor's
business, or with the Assignor's products and services, or in which the Assignor
has any right, title or interest, or (iii) are in the future adopted, acquired,
owned, held and used by the Assignor in the Assignor's business or with the
Assignor's products and services, or in which the Assignor in the future
acquires any right, title or interest.
use. With respect to any Trademark, all uses of such Trademark by, for or
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in connection with the Assignor or its business or for the direct or indirect
benefit of the Assignor or its business, including all such uses by the Assignor
itself, by any of the affiliates of the Assignor, or by any franchisee, licensee
or contractor of the Assignor.
Unless otherwise provided herein, the rules of interpretation set forth in
(S)* of the Credit Agreement shall be applicable to this Trademark Agreement.
2. GRANT OF SECURITY INTEREST.
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2.1. SECURITY INTEREST; ASSIGNMENT OF MARKS. As collateral security for
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the payment and performance in full of all of the Obligations, the Assignor
hereby unconditionally grants to the Agent, for the benefit of the Banks and the
Agent, a continuing security interest in and first priority lien on the Pledged
Trademarks, and pledges and mortgages (but does not transfer title to) the
Pledged Trademarks to the Agent for the benefit of the Banks and the Agent. In
addition, the Assignor has executed in blank and delivered to the Agent an
assignment of federally registered trademarks in substantially the form of
Exhibit 1 hereto (the "Assignment of Marks") but specifically excluding all
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intent to use filings. The Assignor hereby authorizes the Agent to complete as
assignee and record with the PTO the Assignment of Marks upon the occurrence and
during the continuance of an Event of Default and the proper exercise of the
Agent's remedies under this Trademark Agreement and the Security Agreement.
2.2. CONDITIONAL ASSIGNMENT. In addition to, and not by way of limitation
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of, the grant, pledge and mortgage of the Pledged Trademarks provided in (S)2.1,
the Assignor grants, assigns, transfers, conveys and sets over to the Agent, for
the benefit of the Banks and the Agent, the Assignor's entire right, title and
interest in and to the Pledged Trademarks; provided that such grant, assignment,
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transfer and conveyance shall be and become of force and effect only (i) upon or
after the occurrence and during the continuance of an Event of Default and (ii)
either (A) upon the written demand of the Agent at any time during such
continuance or (B) immediately and automatically (without notice or action of
any kind by the Agent)
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upon an Event of Default for which acceleration of the Loans is automatic under
the Credit Agreement or upon the sale or other disposition of or foreclosure
upon the Collateral pursuant to the Security Agreement and applicable law
(including the transfer or other disposition of the Collateral by the Assignor
to the Agent or its nominee in lieu of foreclosure).
2.3. SUPPLEMENTAL TO SECURITY AGREEMENT. Pursuant to the Security
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Agreement the Assignor has granted to the Agent, for the benefit of the Banks
and the Agent, a continuing security interest in and lien on the Collateral
(including the Pledged Trademarks). The Security Agreement, and all rights and
interests of the Agent in and to the Collateral (including the Pledged
Trademarks) thereunder, are hereby ratified and confirmed in all respects. In no
event shall this Trademark Agreement, the grant, assignment, transfer and
conveyance of the Pledged Trademarks hereunder, or the recordation of this
Trademark Agreement (or any document hereunder) with the PTO, adversely affect
or impair, in any way or to any extent, the Security Agreement, the security
interest of the Agent in the Collateral (including the Pledged Trademarks)
pursuant to the Security Agreement and this Trademark Agreement, the attachment
and perfection of such security interest under the Uniform Commercial Code
(including the security interest in the Pledged Marks), or any present or future
rights and interests of the Agent in and to the Collateral under or in
connection with the Security Agreement, this Trademark Agreement or the Uniform
Commercial Code. Any and all rights and interests of the Agent in and to the
Pledged Trademarks (and any and all obligations of the Assignor with respect to
the Pledged Trademarks) provided herein, or arising hereunder or in connection
herewith, shall only supplement and be cumulative and in addition to the rights
and interests of the Agent (and the obligations of the Assignor) in, to or with
respect to the Collateral (including the Pledged Trademarks) provided in or
arising under or in connection with the Security Agreement and shall not be in
derogation thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
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The Assignor represents, warrants and covenants that: (i) Schedule A
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sets forth a true and complete list of all Trademarks and Trademark
Registrations now owned, licensed, controlled or used by the Assignor; (ii) the
Trademarks and Trademark Registrations are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part, and there is no litigation or
proceeding pending concerning the validity or enforceability of the Trademarks
or Trademark Registrations; (iii) to the best of the Assignor's knowledge, each
of the Trademarks and Trademark Registrations is valid and enforceable; (iv) to
the best of the Assignor's knowledge, there is no infringement by others of the
Trademarks, Trademark Registrations or Trademark Rights; (v) no claim has been
made that the use of any of the Trademarks does or may violate the rights of any
third person, and to the best of the Assignor's knowledge, there is no
infringement by the Assignor of the trademark rights of others; (vi) the
Assignor is the sole and exclusive owner of the entire and unencumbered right,
title and interest in and to each of the Trademarks (other than ownership and
other rights reserved by third
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party owners with respect to Trademarks that the Assignor is licensed to use),
free and clear of any liens, charges, encumbrances and adverse claims, including
pledges, assignments, licenses, registered user agreements and covenants by the
Assignor not to ▇▇▇ third persons, other than the security interest and
assignment created by the Security Agreement and this Trademark Agreement; (vii)
the Assignor has the unqualified right to enter into this Trademark Agreement
and to perform its terms and has entered and will enter into written agreements
with each of its present and future employees, agents, consultants, licensors
and licensees that will enable them to comply with the covenants herein
contained; (viii) the Assignor has used, and will continue to use, proper
statutory and other appropriate proprietary notices in connection with its use
of the Trademarks; (ix) the Assignor has used, and will continue to use for the
duration of this Trademark Agreement, consistent standards of quality in its
manufacture and provision of products and services sold or provided under the
Trademarks; (x) this Trademark Agreement, together with the Security Agreement,
will create in favor of the Agent a valid and perfected first priority security
interest in the Pledged Trademarks upon making the filings referred to in clause
(xi) of this (S)3; and (xi) except for the filing of financing statements with
the Secretary of State for the Commonwealth of Massachusetts under the Uniform
Commercial Code and the recording of this Trademark Agreement with the PTO, no
authorization, approval or other action by, and no notice to or filing with, any
governmental or regulatory authority, agency or office is required either (A)
for the grant by the Assignor or the effectiveness of the security interest and
assignment granted hereby or for the execution, delivery and performance of this
Trademark Agreement by the Assignor, or (B) for the perfection of or the
exercise by the Agent of any of its rights and remedies hereunder.
4. INSPECTION RIGHTS.
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The Assignor hereby grants to each of the Agent and the Banks and its
employees and agents the right to visit the Assignor's plants and facilities
that manufacture, inspect or store products sold under any of the Trademarks,
and to inspect the products and quality control records relating thereto at
reasonable times during regular business hours.
5. NO TRANSFER OR INCONSISTENT AGREEMENTS.
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Without the Agent's prior written consent and except for licenses of the
Pledged Trademarks in the ordinary course of the Assignor's business consistent
with its past practices, the Assignor will not (i) mortgage, pledge, assign,
encumber, grant a security interest in, transfer, license or alienate any of the
Pledged Trademarks, or (ii) enter into any agreement (for example, a license
agreement) that is inconsistent with the Assignor's obligations under this
Trademark Agreement or the Security Agreement.
6. AFTER-ACQUIRED TRADEMARKS, ETC.
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6.1. AFTER-ACQUIRED TRADEMARKS. If, before the Obligations shall have
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been finally paid and satisfied in full, the Assignor shall obtain any right,
title or interest
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in or to any other or new Trademarks, Trademark Registrations or Trademark
Rights, the provisions of this Trademark Agreement shall automatically apply
thereto and the Assignor shall promptly provide to the Agent notice thereof in
writing and execute and deliver to the Agent such documents or instruments as
the Agent may reasonably request further to implement, preserve or evidence the
Agent's interest therein.
6.2. AMENDMENT TO SCHEDULE. The Assignor authorizes the Agent to modify
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this Trademark Agreement and the Assignment of Marks, without the necessity of
the Assignor's further approval or signature, by amending Exhibit A hereto and
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the Annex to the Assignment of Marks to include any future or other Trademarks,
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Trademark Registrations or Trademark Rights under (S)2 or (S)6.
7. TRADEMARK PROSECUTION.
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7.1. ASSIGNOR RESPONSIBLE. The Assignor shall assume full and complete
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responsibility for the prosecution, defense, enforcement or any other necessary
or desirable actions in connection with the Pledged Trademarks, and shall hold
each of the Agent and the Banks harmless from any and all costs, damages,
liabilities and expenses that may be incurred by the Agent or any Bank in
connection with the Agent's interest in the Pledged Trademarks or any other
action or failure to act in connection with this Trademark Agreement or the
transactions contemplated hereby. In respect of such responsibility, the
Assignor shall retain trademark counsel acceptable to the Agent.
7.2. ASSIGNOR'S DUTIES, ETC. The Assignor shall have the right and the
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duty, through trademark counsel acceptable to the Agent, to prosecute diligently
any trademark registration applications of the Trademarks pending as of the date
of this Trademark Agreement or thereafter, to preserve and maintain all rights
in the Trademarks and Trademark Registrations, including the filing of
appropriate renewal applications and other instruments to maintain in effect the
Trademark Registrations and the payment when due of all registration renewal
fees and other fees, taxes and other expenses that shall be incurred or that
shall accrue with respect to any of the Trademarks or Trademark Registrations.
Any expenses incurred in connection with such applications and actions shall be
borne by the Assignor. The Assignor shall not abandon any filed trademark
registration application, or any Trademark Registration or Trademark, without
the consent of the Agent, which consent shall not be unreasonably withheld.
7.3. ASSIGNOR'S ENFORCEMENT RIGHTS. The Assignor shall have the right
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and the duty to bring suit or other in the Assignor's own name to maintain and
enforce the Trademarks, the Trademark Registrations and the Trademark Rights.
The Assignor may require the Agent to join in such suit or action as necessary
to assure the Assignor's ability to bring and maintain any such suit or action
in any proper forum if (but only if) the Agent is completely satisfied that such
joinder will not subject the Agent or any Bank to any risk of liability. The
Assignor shall
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promptly, upon demand, reimburse and indemnify the Agent for all damages, costs
and expenses, including legal fees, incurred by the Agent pursuant to this
(S)7.3.
7.4. PROTECTION OF TRADEMARKS, ETC. In general, the Assignor shall take
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any and all such actions (including institution and maintenance of suits,
proceedings or actions) as may be necessary or appropriate to properly maintain,
protect, preserve, care for and enforce the Pledged Trademarks. The Assignor
shall not take or fail to take any action, nor permit any action to be taken or
not taken by others under its control, that would adversely affect the validity,
grant or enforcement of the Pledged Trademarks.
7.5. NOTIFICATION BY ASSIGNOR. Promptly upon obtaining knowledge thereof,
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the Assignor will notify the Agent in writing of the institution of, or any
final adverse determination in, any proceeding in the PTO or any similar office
or agency of the United States or any foreign country, or any court, regarding
the validity of any of the Trademarks or Trademark Registrations or the
Assignor's rights, title or interests in and to the Pledged Trademarks, and of
any event that does or reasonably could materially adversely affect the value of
any of the Pledged Trademarks, the ability of the Assignor or the Agent to
dispose of any of the Pledged Trademarks or the rights and remedies of the Agent
in relation thereto (including but not limited to the levy of any legal process
against any of the Pledged Trademarks).
8. REMEDIES.
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Upon the occurrence and during the continuance of an Event of Default, the
Agent shall have, in addition to all other rights and remedies given it by this
Trademark Agreement (including, without limitation, those set forth in (S)2.2,
the Credit Agreement, the Security Agreement and the other Loan Documents, those
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted in the Commonwealth of Massachusetts, and, without
limiting the generality of the foregoing, the Agent may immediately, without
demand of performance and without other notice (except as set forth next below)
or demand whatsoever to the Assignor, all of which are hereby expressly waived,
sell or license at public or private sale or otherwise realize upon the whole or
from time to time any part of the Pledged Trademarks, or any interest that the
Assignor may have therein, and after deducting from the proceeds of sale or
other disposition of the Pledged Trademarks all expenses incurred by the Agent
in attempting to enforce this Trademark Agreement (including all reasonable
expenses for broker's fees and legal services), shall apply the residue of such
proceeds toward the payment of the Obligations as set forth in or by reference
in the Security Agreement. Notice of any sale, license or other disposition of
the Pledged Trademarks shall be given to the Assignor at least five (5) days
before the time that any intended public sale or other public disposition of the
Pledged Trademarks is to be made or after which any private sale or other
private disposition of the Pledged Trademarks may be made, which the Assignor
hereby agrees shall be reasonable notice of such public or private sale or other
disposition. At any such sale or other
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disposition, the Agent may, to the extent permitted under applicable law,
purchase or license the whole or any part of the Pledged Trademarks or interests
therein sold, licensed or otherwise disposed of.
9. COLLATERAL PROTECTION.
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If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Agent, in its own name or that of the Assignor (in the sole
discretion of the Agent), may (but shall not be obligated to) do such act or
remedy such breach (or cause such act to be done or such breach to be remedied),
and the Assignor agrees promptly to reimburse the Agent for any cost or expense
incurred by the Agent in so doing.
10. POWER OF ATTORNEY.
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If any Event of Default shall have occurred and be continuing, the Assignor
does hereby make, constitute and appoint the Agent (and any officer or agent of
the Agent as the Agent may select in its exclusive discretion) as the Assignor's
true and lawful attorney-in-fact, with full power of substitution and with the
power to endorse the Assignor's name on all applications, documents, papers and
instruments necessary for the Agent to use the Pledged Trademarks, or to grant
or issue any exclusive or nonexclusive license of any of the Pledged Trademarks
to any third person, or to take any and all actions necessary for the Agent to
assign, pledge, convey or otherwise transfer title in or dispose of any of the
Pledged Trademarks or any interest of the Assignor therein to any third person,
and, in general, to execute and deliver any instruments or documents and do all
other acts that the Assignor is obligated to execute and do hereunder. The
Assignor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof and releases each of the Agent and the Banks from any
claims, liabilities, causes of action or demands arising out of or in connection
with any action taken or omitted to be taken by the Agent under this power of
attorney (except for the Agent's gross negligence or willful misconduct). This
power of attorney is coupled with an interest and shall be irrevocable for the
duration of this Trademark Agreement.
11. FURTHER ASSURANCES.
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The Assignor shall, at any time and from time to time, and at its expense,
make, execute, acknowledge and deliver, and file and record as necessary or
appropriate with governmental or regulatory authorities, agencies or offices,
such agreements, assignments, documents and instruments, and do such other and
further acts and things (including, without limitation, obtaining consents of
third parties), as the Agent may request or as may be necessary or appropriate
in order to implement and effect fully the intentions, purposes and provisions
of this Trademark Agreement, or to assure and confirm to the Agent the grant,
perfection and priority of the Agent's security interest in the Pledged
Trademarks.
12. TERMINATION.
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At such time as all of the Obligations have been finally paid and satisfied
in full, this Trademark Agreement shall terminate and the Agent shall, upon the
written request and at the expense of the Assignor, execute and deliver to the
Assignor all deeds, assignments and other instruments as may be necessary or
proper to reassign and reconvey to and re-vest in the Assignor the entire right,
title and interest to the Pledged Trademarks previously granted, assigned,
transferred and conveyed to the Agent by the Assignor pursuant to this Trademark
Agreement, as fully as if this Trademark Agreement had not been made, subject to
any disposition of all or any part thereof that may have been made by the Agent
pursuant hereto or the Security Agreement.
13. COURSE OF DEALING.
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No course of dealing between the Assignor and the Agent, nor any failure to
exercise, nor any delay in exercising, on the part of the Agent, any right,
power or privilege hereunder or under the Security Agreement or any other
agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
14. EXPENSES.
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Any and all fees, costs and expenses, of whatever kind or nature, including
the reasonable attorneys' fees and expenses incurred by the Agent in connection
with the preparation of this Trademark Agreement and all other documents
relating hereto, the consummation of the transactions contemplated hereby or the
enforcement hereof, 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 or renewal fees, encumbrances, or otherwise
protecting, maintaining or preserving the Pledged Trademarks, or in defending or
prosecuting any actions or proceedings arising out of or related to the Pledged
Trademarks, shall be borne and paid by the Assignor.
15. OVERDUE AMOUNTS.
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Until paid, all amounts due and payable by the Assignor hereunder shall be
a debt secured by the Pledged Trademarks and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
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NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE
AGENT NOR ANY BANK ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY
CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR
RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PLEDGED TRADEMARKS OR ANY
USE, LICENSE OR
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SUBLICENSE THEREOF, WHETHER ARISING OUT OF ANY PAST, CURRENT OR FUTURE EVENT,
CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL OF SUCH LIABILITIES SHALL BE
EXCLUSIVELY THE RESPONSIBILITY OF THE ASSIGNOR, AND THE ASSIGNOR SHALL INDEMNIFY
THE AGENT AND THE BANKS FOR ANY AND ALL COSTS, EXPENSES, DAMAGES AND CLAIMS,
INCLUDING LEGAL FEES, INCURRED BY THE AGENT OR ANY BANK WITH RESPECT TO SUCH
LIABILITIES.
17. NOTICES.
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All notices and other communications made or required to be given pursuant
to this Trademark Agreement shall be in writing and shall be delivered in hand,
mailed by United States registered or certified first-class mail, postage
prepaid, or sent by telegraph, telecopy or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Assignor, at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
Attention: President, or at such other address for notice as the Assignor
shall last have furnished in writing to the person giving the notice, with
copies to ▇▇▇▇▇▇ & Dodge LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.; and
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇., or at such other address for notice as the
Agent shall last have furnished in writing to the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand to a responsible officer
of the party to which it is directed, at the time of the receipt thereof by such
officer, (ii) if sent by registered or certified first-class mail, postage
prepaid, two (2) Business Days after the posting thereof, and (iii) if sent by
telegraph, telecopy, or telex, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
18. AMENDMENT AND WAIVER.
--------------------
This Trademark Agreement is subject to modification only by a writing
signed by the Agent (with the consent of the Majority Banks) and the Assignor,
except as provided in (S)6.2. The Agent shall not be deemed to have waived any
right hereunder unless such waiver shall be in writing and signed by the Agent
and the Majority Banks. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
--------------------------------------
THIS TRADEMARK AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT
AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
-12-
COMMONWEALTH OF MASSACHUSETTS. The Assignor agrees that any suit for the
enforcement of this Trademark Agreement may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Assignor by mail at the address specified in
(S)17. The Assignor hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
20. WAIVER OF JURY TRIAL.
--------------------
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS TRADEMARK AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Assignor waives any right which
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Assignor (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers, and (ii) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this (S)20.
21. MISCELLANEOUS.
-------------
The headings of each section of this Trademark Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Trademark Agreement and all rights and obligations hereunder shall be binding
upon the Assignor and its respective successors and assigns, and shall inure to
the benefit of the Agent, the Banks and their respective successors and assigns.
In the event of any irreconcilable conflict between the provisions of this
Trademark Agreement and the Credit Agreement, or between this Trademark
Agreement and the Security Agreement, the provisions of the Credit Agreement or
the Security Agreement, as the case may be, shall control. If any term of this
Trademark Agreement shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby, and this
Trademark Agreement shall be construed and be enforceable as if such invalid,
illegal or unenforceable term had not been included herein. The Assignor
acknowledges receipt of a copy of this Trademark Agreement.
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of the
day and year first above written.
INSOLUTIONS INCORPORATED
By:___________________________
Name:
Title:
BANKBOSTON, N.A., as Agent
By:___________________________
Name:
Title:
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS ________ )
) ss.
COUNTY OF SUFFOLK ____________________ )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this __ day of June, 1997, personally appeared __________________
to me known personally, and who, being by me duly sworn, deposes and says that
he is the _________________ of InSolutions Incorporated, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said _________________ acknowledged said instrument
to be the free act and deed of said corporation.
______________________________
Notary Public
My commission expires:
SCHEDULE A
----------
TRADEMARKS AND TRADEMARK REGISTRATIONS
--------------------------------------
Trademark Registrations --
or United States Patent and Trademark Office
Service ▇▇▇▇ Registration No. Registration Date
------------ ---------------- -----------------
Trademark Pending Applications --
or United States Patent and Trademark Office
Service ▇▇▇▇ Serial No. Filing Date
------------ --------- -----------
EXHIBIT 1
---------
ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS (U.S.)
-------------------------------------------------
WHEREAS, InSolutions Incorporated, a corporation organized and existing
under the laws of the State of Delaware, having a place of business at
_____________ (the "Assignor"), has adopted and used and is using the trademarks
and service marks (the "Marks") identified on the Annex hereto, and is the owner
-----
of the registrations of and pending registration applications for such Marks in
the United States Patent and Trademark Office identified on such Annex; and
-----
WHEREAS, ______________, a __________________ organized and existing under
the laws of the State of ____________, having a place of business at
____________________ (the "Assignee"), is desirous of acquiring the Marks and
the registrations thereof and registration applications therefor;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the Assignor does hereby assign, sell and transfer unto the
Assignee all right, title and interest in and to the Marks, together with (i)
the registrations of and registration applications for the Marks, (ii) the
goodwill of the business symbolized by and associated with the Marks and the
registrations thereof, and (iii) the right to ▇▇▇ and recover for, and the right
to profits or damages due or accrued arising out of or in connection with, any
and all past, present or future infringements or dilution of or damage or injury
to the Marks or the registrations thereof or such associated goodwill.
This Assignment of Trademarks and Service Marks (U.S.) is intended to and
shall take effect as a sealed instrument at such time as the Assignee shall
complete this instrument by inserting its name in the second paragraph above and
signing its acceptance of this Assignment of Trademarks and Service Marks (U.S.)
below.
-2-
IN WITNESS WHEREOF, the Assignor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on this __ day of ___,
199__.
INSOLUTIONS INCORPORATED
By: ______________________________
Title:
The foregoing assignment of the Marks and the registrations thereof and
registration applications therefor by the Assignor to the Assignee is hereby
accepted as of the ____ day of __, 199__.
________________________
By:______________________________
Title:
COMMONWEALTH OR STATE OF *__________ )
) ss.
COUNTY OF * ________________________ )
On this the ___ day of ___, 199__, before me appeared ____________, the
person who signed this instrument, who acknowledged that (s)he is the ____ of
___________ and that being duly authorized (s)he signed such instrument as a
free act on behalf of ____________________.
______________________________
Notary Public
[Seal]
My commission expires:
ANNEX
-----
Trademark Registrations --
or United States Patent and Trademark Office
Service ▇▇▇▇ Registration No. Registration Date
------------ --------------- -----------------
Insolutions 2,054,299 April 22, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ --
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent and Trademark Office
Service ▇▇▇▇ Serial No. Filing Date
------------ --------- -----------