TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between AGROTEC WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Agrotec Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
AGROTEC WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Agrotec Williams, Inc., a Delaware corporation, on
behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,89,761
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between HARDEE WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Hardee Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as ofJuly 11, 1997.
HARDEE WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Hardee Williams, Inc., a Delaware corporation, on behalf
of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,511,526
Reg. No. 1,511,527
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between KENCO/WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Kenco/Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
KENCO/WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Kenco/Williams, Inc., a Delaware corporation, on behalf
of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,879,664
Reg. No. 1,755,176
Reg. No. 1,484,182