EXHIBIT 10.21
AMENDMENT
TO SECURITY AGREEMENT
This is an Amendment to the Security Agreement dated as of December 16,
1999, by and among FLIR Systems, Inc., an Oregon corporation, and BANK OF
AMERICA, N.A. a national banking association, as agent for the Lenders and its
successors as agent for the Lenders (the "Security Agreement"). All capitalized
terms herein shall have the meaning given in the Security Agreement.
RECITALS
--------
The parties hereto desire to add certain items as Collateral to the
Security Agreement.
Therefore, the parties agree as follows:
1. Section 2(a) of the Security Agreement is amended by deleting the
existing Section 2(a) and replacing Section 2(a) in its entirety with the
following:
(a) Grant of Security Interest. As security for the payment and
performance of the Secured Obligation, the Grantor hereby pledges, assigns,
transfers, hypothecates and sets over to the Agent for its benefit and for the
ratable benefit of the other Lender Parties, and hereby grants to the Agent for
its benefit and for the ratable benefit of the other Lender Parties, a security
interest in all of the Grantor's rights, title and interest in, to and under the
following property, wherever located and whether now existing or owned or
hereafter acquired or arising (collectively, the "Collateral"): (i) all
Accounts; (ii) all Chattel Paper; (iii) all Deposit Accounts; (iv) all
Documents; (v) all Equipment; (vi) all General Intangibles; (vii) all
Instruments; (viii) all Inventory; (ix) all Books; (x) all products and Proceeds
of any and all of the foregoing; and (xi) all copyrights, patents, proprietary
information, trade secrets, trademarks, service marks, trade names, trade dress,
whether registered or unregistered, and all goodwill associated therewith, and
all registrations and applications for registration thereof (collectively
referred to as the "Intellectual Property"), including without limitation: (a)
the trademark and service mark registrations described in Exhibit A attached
hereto and all renewals thereof and any future trademark and service mark
registrations and renewals thereof (the "Trademark Registrations"); (b) the
applications for Trademark Registration described in Exhibit A and any Trademark
Registrations that may be issued on any of those applications and any future
Trademark Registration applications, to the full extent allowable by law (the
"Trademark Applications"); (c) all common law rights in the marks described in
Exhibit A; (d) all Patent Registrations including without limitation those
described in Exhibit B attached hereto, and all applications therefor and all
future applications and registrations (the "Patent Registrations"); (e) all
Patent Applications including without limitation those described in Exhibit B
attached hereto, and all applications therefor and all future applications and
registrations (the "Patent Applications"); (f) all future royalties or other
fees paid or payments made or owed to Grantor with respect to the Intellectual
Property (the "Royalties"); and (g) proceeds of any and all of the foregoing
(the Intellectual Property, Trademark Registrations, Trademark Applications,
Common Law, Trademarks, Patent Registrations, Patent Applications, Copyright
Registrations, Royalties, and such proceeds are referred to collectively as the
"Intellectual Property Rights").
Page 1 - AMENDMENT TO SECURITY AGREEMENT
2. Section 2 of the Security Agreement is amended by adding the following
subsection:
(d) Covenants Relating to Patents and Trademarks. The Grantor shall:
(1) (A) Continue to use each trademark and service mark in such a
manner as to maintain such trademark and service mark in full force
free from any claim of abandonment for non-use, (B) maintain as in the
past the quality of products and services offered under such trademark
or service mark, (C) employ such trademark or service mark with the
appropriate notice of registration or notice of trademark or service
mark, as applicable, sufficient to protect such trademark or service
mark, (D) not adopt or use any mark which is confusingly similar or a
colorable imitation of such trademark or service mark unless the
Agent, for the ratable benefit of the Lenders, shall obtain a
perfected security interest in such mark pursuant to this Security
Agreement, and (E) not (and not permit any licensee or sublicensee
thereof to) do any act or-knowingly omit to do any act whereby any
trademark or service mark may be lost.
(2) Not do any act, or omit to do any act, whereby any patent may
become abandoned or dedicated.
(3) Notify the Agent promptly if it knows that any application or
registration relating to any material patent or material mark may
become abandoned or dedicated, or of any adverse determination or
development (including, without limitation, the institution of, or any
such determination or development in, any proceeding in the United
States Patent and Trademark Office or any court or tribunal in any
country), regarding the Grantor's ownership of any patent or mark or
its right to register the same or to keep and maintain the same.
(4) Take all reasonable and necessary steps, including, without
limitation, 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, to maintain and pursue each
application (and to obtain the relevant registration) and to maintain
each registration of the patents and marks, including, without
limitation, filing of applications for renewal, affidavits of use,
affidavits of incontestability, and petitions to revive abandoned
applications. The Grantor also will promptly make application on any
patentable but unpatented inventions, and registerable but
unregistered trademarks and service marks, and promptly report new
applications and/or registrations to Agent.
(i) Promptly notify the Agent after it learns that any
material patent or material mark is infringed, misappropriated or
diluted in any material manner by a third party, and take such actions
as it shall
Page 2 - AMENDMENT TO SECURITY AGREEMENT
reasonably deem appropriate under the circumstances to protect such
patent or mark, including, where it shall reasonably deem appropriate,
the bringing of suit for infringement, misappropriation or dilution,
seeking injunctive relief where appropriate and seeking to recover any
and all damages for such infringement, misappropriation or dilution.
(ii) Not make any assignment or agreement in conflict with the
security interest in the patents or marks of the Grantor.
3. Except as expressly modified by this Agreement, the terms of the
Security Agreement, as amended prior to the date of this Agreement, shall remain
unchanged and in full force and effect. Grantors' agreement to modify the
Security Agreement pursuant to this Agreement shall not obligate Grantors to
make any future modifications to the Security Agreement or any other loan
document. Nothing in this Agreement shall constitute a satisfaction of any
indebtedness of any Borrower to Agent.
5. This Agreement may be signed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
IN WITNESS WHEREOF, the Grantor hereto has caused this Agreement to be
executed by its respective officers or agents duly authorized as of the date
first above written.
FLIR SYSTEMS, INC., an Oregon corporation
By: /s/ James A. Fitzhenry
-----------------------------------------------
Name: James A. Fitzhenry
---------------------------------------------
Title: Senior Vice President and General Counsel
--------------------------------------------
Page 3 - AMENDMENT TO SECURITY AGREEMENT