<EXHIBIT> EXHIBIT 10.10
CONDITIONAL TRADEMARK COLLATERAL ASSIGNMENT
THIS CONDITIONAL TRADEMARK COLLATERAL ASSIGNMENT dated as of
December 26, 1997, by and between PCD INC., a Massachusetts
corporation, with a principal place of business at 2 Technology
Drive, Centennial Park, Peabody, Massachusetts 01960-7977
("Assignor") and FLEET NATIONAL BANK, a national banking
association organized under the laws of the United States having
an office at One Federal Street, Boston, Massachusetts 02110
("Assignee"), as Agent for itself and each of the other Lenders
who are now or hereafter become parties to the hereinafter
defined Loan Agreement.
WHEREAS, Assignee and Assignor, as Agent for itself and each of
the other Lenders who are now or hereafter become parties to the Loan
Agreement (as hereinafter defined) have this day entered into a
certain Loan Agreement (as the same may be amended from time to time,
the "Loan Agreement") pursuant to which Assignee has agreed to make
certain loans to Assignor; and
WHEREAS, capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Loan
Agreement; and
WHEREAS, pursuant to the terms of a Security Agreement of
even date herewith by and between Assignor and Assignee (as
amended from time to time, the "Security Agreement"), Assignor
has concurrently granted to Assignee a security interest in all
of Assignor's assets to secure, INTER ALIA, the payment and
performance of the Obligations of Assignor to Assignee and/or the
Lenders under the Loan Agreement; and
WHEREAS, to evidence and perfect the rights of Assignee as
grantee of a security interest that has attached in certain of
said assets as described below, Assignor has executed and
delivered to Assignee this Conditional Trademark Collateral
Assignment.
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, AND SUBJECT TO THE
CONDITIONS SET FORTH HEREIN, Assignor does hereby conditionally
collaterally assign and grant unto Assignee all of Assignor's
right, title and interest in, to and under the following, whether
presently existing or hereafter arising or acquired:
(i) each trademark and servicemark (whether registered or
unregistered), and each registration thereof, and each trademark
and servicemark registration application (whether federal or
state, and whether foreign or domestic) owned by Assignor,
including, without limitation, each such trademark, servicemark
or trademark or servicemark registration application set forth on
SCHEDULE A, attached hereto and incorporated herein by reference;
(ii) all products and proceeds of the foregoing, including,
without limitation, any claim or causes of action of Assignor
against any third parties for past, present or future
infringement of any of the foregoing, with the right to sue and
recover the same in the Assignee's own name and for its own use
and behoove; and
(iii) the goodwill of Assignor's business symbolized by
each of the foregoing;
(all of the foregoing, individually and collectively, the
"Trademarks").
PROVIDED, HOWEVER, THAT ASSIGNOR'S RIGHTS IN THE TRADEMARKS
SHALL CONTINUE UNTIL, AND ASSIGNEE SHALL HAVE NO OBLIGATIONS OR
RIGHTS WITH RESPECT TO THE TRADEMARKS UNTIL, AND ASSIGNEE SHALL
BE ENTITLED TO EXERCISE ITS RIGHTS AND REMEDIES HEREUNDER IN AND
WITH RESPECT TO THE TRADEMARKS ONLY UPON, SATISFACTION OF THE
FOLLOWING CONDITIONS SUBSEQUENT:
(a) The occurrence and continuation of an Event of Default
as defined in the Loan Agreement; or
(b) The exercise by Assignee of any or all of its rights or
remedies under the Security Agreement in respect of the
Trademarks.
1. Assignor does hereby acknowledge, affirm and represent
that:
(i) the rights and remedies of Assignee with respect
to its interest in the Trademarks are more fully set forth in the
Security Agreement, the terms and provisions of which are
incorporated by reference herein as if fully set forth herein.
(ii) that nothing in this Conditional Trademark
Collateral Assignment shall be in derogation of the rights and
remedies of Assignee in and to the Trademarks as set forth in the
Security Agreement and as shall be available at law or in equity.
(iii) SCHEDULE A contains a true and complete record
of (a) all registered (state, federal and international)
trademarks and servicemarks in which Assignor has any interest
and (b) all applications pending in the U.S. Patent and Trademark
Office or other like office for registration of trademarks and
servicemarks in which Assignor has any interest.
(iv) the Trademarks are subsisting and have not been
adjudged invalid or unenforceable, in whole or in part by a court
of competent jurisdiction.
(v) each of the registered Trademarks is valid and
enforceable.
(vi) Assignor is the sole and exclusive owner of the
entire and unencumbered right, title and interest in and to each
of the registered Trademarks, free and clear of any Liens,
including, without limitation, licenses and covenants by Assignor
not to sue third persons, except as permitted under the Loan
Agreement.
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2. Assignor covenants that, until all of the Obligations
shall have been satisfied in full, it will not enter into any
agreement (for example, a license agreement) which is
inconsistent with Assignor's obligations under this Assignment,
without the Assignee's prior written consent.
3. Assignor covenants that if, before the Obligations shall
have been satisfied in full, Assignor shall obtain rights to any
additional registered trademarks or servicemarks, or become
entitled to the benefit of any registration applications for
trademarks or servicemarks, the provisions of this Assignment
shall automatically apply thereto and Assignor shall give to the
Assignee prompt notice thereof in writing.
4. Assignor shall indemnify, defend and hold Assignee, its
affiliates and their respective directors, officers, employees
and agents ("Assignee's Indemnified Parties") harmless from and
against all damages, losses or expenses suffered or paid as a
result of any and all claims, demands, suits, causes of action,
proceedings, judgments and liabilities, including reasonable
attorneys' fees incurred in litigation or otherwise assessed,
incurred or sustained by or against Assignee's Indemnified
Parties or any of them with respect to or arising out of or in
any way connected with this Assignment.
5. Assignor authorizes the Assignee to modify this
Assignment by amending SCHEDULE A to include any future
registered trademarks, servicemarks, or trademark or servicemark
applications in which Assignor may acquire an interest.
6. At such time as Assignor shall completely and finally
satisfy all of the Obligations, the Assignee shall execute and
deliver to Assignor all deeds, assignments and other instruments
as may be necessary or proper to re-vest in Assignor full title
to the Trademarks, subject to any disposition thereof which may
have been made by the Assignee pursuant to the Security
Agreement.
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IN WITNESS WHEREOF, Assignor has caused this Conditional
Trademark Collateral Assignment to be duly executed by its duly
authorized officer as of the date first set forth above.
PCD INC.
By: /S/ John L. Dwight, Jr.
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John L. Dwight, Jr.
Chairman of the Board
FLEET NATIONAL BANK
as Agent for itself and
the other Lenders
By: /S/ Thomas W. Davies
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Thomas W. Davies
Senior Vice President