EXHIBIT 10.20
TRADEMARK COLLATERAL
--------- ----------
SECURITY AND PLEDGE AGREEMENT
-------- --- ------ ---------
TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT, dated as of April 22,
1998, between OSD ENVIZION, INC., a Delaware corporation having its principal
place of business at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (the
"Assignor"), and BANKBOSTON, N.A., as agent (hereinafter, in such capacity, the
"Agent") for itself and other lending institutions (hereinafter, collectively,
the "Banks") which are, or may in the future become, parties to a Revolving
Credit and Acquisition Loan Agreement dated as of April 22, 1998 (as amended and
in effect from time to time, the "Credit Agreement"), among the Assignor, the
Banks, the Agent and Mercantile Bank National Association, as Co-Agent.
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 all of the
Assignor's personal property and fixture assets, including, without limitation,
the trademarks, service marks, trademark and service xxxx registrations, and
trademark and service xxxx registration applications listed on Schedule A
-------- -
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:
(S)1. DEFINITIONS. 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 hereof.
---------- -- -----
Associated Goodwill. All goodwill of the Assignor and its business,
---------- --------
products and services appurtenant to, associated with or symbolized by the
Trademarks and the use thereof.
-2-
Pledged Trademarks. All of the Assignor's right, title and interest in and
------- ----------
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.
---
Related Assets. All assets, rights and interests of the Assignor that
------- ------
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
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
-3-
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
-------------------
Agreement, as amended and in effect from time to time.
Trademark License Rights. Any and all past, present or future rights and
------------------------
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 xxx 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 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
----------------
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 xxx 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.
Trademarks. All of the trademarks, service marks, designs, logos, indicia,
----------
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
-------- -
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
-4-
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
---
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)1.2 of the Credit Agreement shall be applicable to this Trademark Agreement.
(S)2. GRANT OF SECURITY INTEREST.
--------------------------
(S)2.1. SECURITY INTEREST; ASSIGNMENT OF MARKS. As collateral security for
--------------------------------------
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 attached hereto (the "Assignment of Marks"). 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.
(S)2.2. CONDITIONAL ASSIGNMENT. In addition to, and not by way of
----------------------
limitation of, the grant, pledge and mortgage of the Pledged Trademarks provided
in (S)2.1 hereof, 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, 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) 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).
(S)2.3. SUPPLEMENTAL TO SECURITY AGREEMENT. Pursuant to the Security
----------------------------------
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
-5-
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 Trademarks), 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.
(S)3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Assignor represents,
-----------------------------------------
warrants and covenants that:
(a) to the best of the Assignor's knowledge, Schedule A attached
-------- -
hereto sets forth a true and complete list of all Trademarks and Trademark
Registrations now owned, licensed, controlled or used by the Assignor;
(b) to the best of the Assignor's knowledge, 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;
(c) to the best of the Assignor's knowledge, each of the
Trademarks and Trademark Registrations is valid and enforceable;
(d) to the best of the Assignor's knowledge, there is no
infringement by others of the Trademarks, Trademark Registrations or
Trademark Rights;
(e) to the best of the Assignor's knowledge, no claim has been
made that the use of any of the Trademarks does or may violate the rights
of any third person, and there is no infringement by the Assignor of the
trademark rights of others;
(f) 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 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 xxx third persons, other than the security interest and
assignment created by the Security Agreement and this Trademark Agreement;
-6-
(g) the Assignor has the unqualified right to enter into this
Trademark Agreement and to perform its terms and will comply with the
covenants herein contained;
(h) the Assignor has used, and will continue to use, proper
statutory and other appropriate proprietary notices in connection with its
use of the Trademarks ;
(i) 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;
(j) 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 (k) of this (S)3; and
(k) except for the filing of financing statements 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.
(S)4. INSPECTION RIGHTS. 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.
(S)5. NO TRANSFER OR INCONSISTENT AGREEMENTS. Without the Agent's prior
--------------------------------------
written consent, the Assignor will not (a) mortgage, pledge, assign, encumber,
grant a security interest in, transfer, license or alienate any of the Pledged
Trademarks, or (b) 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.
(S)6. AFTER-ACQUIRED TRADEMARKS, ETC.
------------------------------
(S)6.1. AFTER-ACQUIRED TRADEMARKS. If, before the Obligations shall have
-------------------------
been finally paid and satisfied in full, the Assignor shall obtain any right,
title or interest 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
-7-
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.
(S)6.2. AMENDMENT TO SCHEDULE. The Assignor authorizes the Agent to modify
---------------------
this Trademark Agreement and the Assignment of Marks, without the necessity of
the Assignor's further approval or signature, by amending Exhibit A attached
------- -
hereto and the Annex to the Assignment of Marks to include any future or other
-----
Trademarks, Trademark Registrations or Trademark Rights under (S)(S)2 or 6
hereof.
(S)7. TRADEMARK PROSECUTION.
---------------------
(S)7.1. ASSIGNOR RESPONSIBLE. The Assignor shall assume full and complete
--------------------
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 reasonably acceptable to the Agent.
(S)7.2. ASSIGNOR'S DUTIES, ETC. The Assignor shall have the right and the
----------------------
duty, through trademark counsel reasonably 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.
(S)7.3. ASSIGNOR'S ENFORCEMENT RIGHTS. The Assignor shall have the right
-----------------------------
and the duty to bring suit or other action 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 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.
(S)7.4. PROTECTION OF TRADEMARKS, ETC. In general, the Assignor shall take
-----------------------------
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,
-8-
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.
(S)7.5. NOTIFICATION BY ASSIGNOR. Promptly upon obtaining knowledge
------------ -- --------
thereof, 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).
(S)8. REMEDIES. 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 hereof, 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 fifteen (15) 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 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.
(S)9. COLLATERAL PROTECTION. 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.
-9-
(S)10. POWER OF ATTORNEY. 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.
(S)11. FURTHER ASSURANCES. 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.
(S)12. TERMINATION. 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.
(S)13. COURSE OF DEALING. 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.
-10-
(S)14. EXPENSES. 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.
(S)15. OVERDUE AMOUNTS. 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.
(S)16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION. 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 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.
(S)17. NOTICES. 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 set forth in (S)20 of the
Credit Agreement. Any such notice or demand shall be deemed to have been duly
given or made and to have become effective (a) 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, (b) if sent by registered or certified first-
class mail, postage prepaid, two (2) Business Days after the posting thereof,
and (c) 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.
(S)18. AMENDMENT AND WAIVER. This Trademark Agreement is subject to
--------------------
modification only by a writing signed by the Agent (with the consent of the
Banks or Majority Banks as provided in the Credit Agreement) and the Assignor,
except as provided in (S)6.2 hereof. The Agent shall not be deemed to have
waived any right
-11-
hereunder unless such waiver shall be in writing and signed by the Agent and the
Banks or Majority Banks as provided in the Credit Agreement. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right on any future
occasion.
(S)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 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 hereof. 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.
(S)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 (a) 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 (b)
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.
(S)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.
-12-
IN WITNESS WHEREOF, this Trademark Collateral Security and Pledge Agreement
has been executed as of the day and year first above written.
OSD ENVIZION, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
BANKBOSTON, N.A., AS AGENT
By: /s/ Xxxxx van der Xxxxx
----------------------------------
Xxxxx van der Xxxxx, Vice President
-13-
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 22nd day of April, 1998, personally appeared Xxxxxxxxxxx X.
Xxxxx to me known personally, and who, being by me duly sworn, deposes and says
that he is the VP & CFO of OSD Envizion, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said VP & CFO acknowledged said instrument to be the free act and
deed of said corporation.
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Notary Public
My commission expires: August 3, 1999
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 21 day of April, 1998, personally appeared Xxxxx van der
Xxxxx to me known personally, and who, being by me duly sworn, deposes and says
that he is a Vice President of BankBoston, N.A. (the "Agent"), and that said
instrument was signed and sealed on behalf of said Agent by authority of its
Board of Directors, and said Xxxxx van derHorst acknowledged said instrument to
be the free act and deed of said Agent.
/s/ X.X. Xxxxxxxx-Xxxxxx
------------------------------------
Notary Public
My commission expires: February 21, 1999
SCHEDULE A
----------
TRADEMARKS AND TRADEMARK REGISTRATIONS
--------------------------------------
Trademark REGISTRATIONS --
or United States Patent and Trademark Office
Service Xxxx Registration No. Registration Date
------------ ---------------- -----------------
Trademark PENDING APPLICATIONS --
or United States Patent and Trademark Office
Service Xxxx Serial No. Filing Date
------------ ---------- -----------
