Trademark Security Agreement between Blue Rhino Corporation, CPD Associates, Inc., Uniflame Corporation, and Bank of America, N.A.
Contract Categories:
Business Finance
›
Security Agreements
Summary
Blue Rhino Corporation, CPD Associates, Inc., and Uniflame Corporation have entered into this agreement with Bank of America, N.A., as Administrative Agent, to grant a security interest in their trademarks and related rights as collateral for obligations under a credit agreement. The agreement ensures that the lender can claim these trademark assets if the borrowers default. The grantors agree not to take actions that would harm the value or enforceability of the trademarks until all obligations are satisfied. The agreement also covers future trademarks acquired by the grantors.
EX-10.5 19 g81245exv10w5.txt EX-10.5 TRADEMARK SECURITY AGREEMENT EXHIBIT 10.5 TRADEMARK SECURITY AGREEMENT THIS TRADEMARK SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement") is entered into as of November 20, 2002 by BLUE RHINO CORPORATION, a Delaware corporation, CPD ASSOCIATES, INC., a North Carolina corporation, and UNIFLAME CORPORATION, a Delaware corporation (collectively, the "Grantors"), in favor of BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative Agent") under the Credit Agreement (as defined below). The Grantors own certain trademarks and service marks, including those trademark registrations and trademark applications listed on Schedule 1 annexed hereto, and are parties to the trademark licenses listed on Schedule 2 annexed hereto; and Pursuant to the terms of the Collateral Agreement dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the "Collateral Agreement"), between the Grantors and the Administrative Agent, the Grantors have granted to the Administrative Agent a security interest in certain assets of the Grantors, including all right, title and interest of each of the Grantors in, to and under all Trademark Collateral (as hereinafter defined) as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations owing by Blue Rhino Corporation, as Borrower (the "Borrower") under the Credit Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified, the "Credit Agreement"), by and among the Borrower, the Lenders party thereto and the Administrative Agent, and the other Loan Documents described in the Credit Agreement. All capitalized terms defined in the Credit Agreement or the Collateral Agreement and not otherwise defined herein have the respective meanings provided for in the Credit Agreement or the Collateral Agreement, as applicable. To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective Credit Extensions to the Borrowers thereunder, each Grantor hereby agrees with the Administrative Agent, for the ratable benefit of itself and the Lenders, as follows: 1. GRANT OF SECURITY INTEREST. Each Grantor does hereby grant to the Administrative Agent a- continuing security interest in all of such Grantor's right, title and interest in, to and under all of the following (all of the following items or types of property being herein collectively referred to as the "Trademark Collateral"), whether now existing or hereafter created or acquired, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations: (a) all Trademarks, including, without limitation, each Trademark referred to in Schedule 1 annexed hereto together with any divisions or renewals thereof; (b) all Trademark Licenses and other agreements providing the Grantor with the right to use, or pursuant to which such Grantor provides the right to use, any of the items described in Section 1(a), including each Trademark license referred to in Schedule 2 annexed hereto; (c) all of the goodwill of the business connected with the use of, and symbolized by, each item described in Section 1(a) or Section 1(b); (d) the right to sue third parties for past, present or future infringements of any Trademark Collateral described in Section 1(a) and, to the extent applicable, Section 1(b); and (e) all products and proceeds of, and the rights associated with, the foregoing, including, without limitation, any claim by such Grantor against third parties for past, present or future (i) infringement or dilution of any Trademark or Trademark registration including, without limitation, the Trademarks and Trademark registrations referred to in Schedule 1 annexed hereto, the Trademark registrations issued with respect to the Trademark applications referred to in Schedule 1 and the trademarks licensed under any Trademark License, (ii) injury to the goodwill associated with the use of any such Trademark, Trademark registration or trademark licensed under any Trademark License, or (iii) breach or enforcement of any Trademark license. 2. OTHER SECURITY INTERESTS. This security interest is granted in conjunction with the security interests granted to the Administrative Agent pursuant to the Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of the Administrative Agent with respect to the security interest granted herein are without prejudice to, and are in addition to, those set forth in the Collateral Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provisions of this Agreement are deemed to conflict with the Collateral Agreement, the provisions of the Collateral Agreement shall govern. 3. RESTRICTIONS ON FUTURE AGREEMENTS. Each Grantor agrees that until all Obligations shall have been satisfied in full and the Credit Agreement shall have been terminated, such Grantor will not, without the Administrative Agent's prior written consent, enter into any agreement including, without limitation, any license agreement, which is inconsistent with such Grantor's obligations under this Agreement if such action would reasonably be expected to materially adversely affect the fair market value of the Trademark Collateral or the benefits of this Agreement to the Administrative Agent, and each Grantor further agrees that it will not take any action, or permit any action to be taken by others subject to its control, including licensees, or fail to take any action, which would materially adversely affect the validity or enforcement of the rights transferred to the Administrative Agent under this Agreement. 4. NEW TRADEMARKS. Each Grantor represents and warrants to the Administrative Agent that the Trademarks listed on Schedule 1 and the Trademark Licenses listed on Schedule 2 constitute all of the Trademarks now owned by or licensed to such Grantor for which registrations have been issued or applied for in the United States Patent and Trademark Office. If, before the Obligations have been satisfied in full and the Credit Agreement terminated, the Grantor shall (i) obtain rights to any new trademarks, trademark registrations or applications or tradenames used in the United States or in any foreign country or (ii) become entitled to the benefit of any trademark application, trademark, trademark registration or tradename used in the United States or in any foreign country, the provisions of Section 1 above shall automatically apply thereto and the Grantor shall give to the Administrative Agent prompt written notice thereof. The Grantor hereby authorizes the Administrative Agent to modify this Agreement 2 upon such written notice by amending Schedule 1 and Schedule 2 to include any future trademarks, trademark registrations, trademark applications, tradenames and license agreements which are Trademarks, as applicable, under Section 1 above or under this Section 4. 5. LENDERS NOT LIABLE. Neither the Administrative Agent nor any Lender by virtue of this Agreement assumes any obligations whatsoever in respect of the Trademark Collateral including, without limitations, any obligation to renew registrations of or defend the validity, enforceability or distinctiveness of the Trademark Collateral. 6. COUNTERPARTS. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy) and all of said counterparts, taken together, shall be deemed to constitute one and the same instrument. 7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the successors and assigns of the Grantors and shall inure to the benefit of the Grantors, the Administrative Agent and the Lenders and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent. [Signature Pages Follow] 3 IN WITNESS WHEREOF, the Grantors have caused this Trademark Security Agreement to be duly executed by their duly authorized officer thereunto, all as of the date first set forth above. BLUE RHINO CORPORATION, as Grantor By: /s/ Mark Castaneda ----------------------------------------------- Name: Mark Castaneda Title: Executive Vice President and Chief Financial Officer CPD ASSOCIATES, INC., as Guarantor By: /s/ Mark Castaneda ----------------------------------------------- Name: Mark Castaneda Title: Vice President UNIFLAME CORPORATION, as Grantor By: /s/ Kurt Gehsmann ----------------------------------------------- Name: Kurt Gehsmann Title: Vice President [Signature Pages Continue] 4 ACKNOWLEDGMENT STATE OF NORTH CAROLINA COUNTY OF FORSYTH I, Abbye R. Caudle, a Notary Public for said County and State, do hereby certify that Mark Castaneda personally appeared before me this day and stated that he is Exec. VP & CFO of BLUE RHINO CORPORATION and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal, this 13th day of November, 2002. /s/ Abbye R. Caudle --------------------------------------- Notary Public My commission expires: 9/26/04 - ------------------------ 5 ACKNOWLEDGMENT STATE OF NORTH CAROLINA COUNTY OF FORSYTH I, Abbye R. Caudle, a Notary Public for said County and State, do hereby certify that Mark Castaneda personally appeared before me this day and stated that he is Vice President of CPD ASSOCIATES, INC. and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal, this 13th day of November, 2002. /s/ Abbye R. Caudle --------------------------------------- Notary Public My commission expires: 9/26/04 - ------------------------ 6 ACKNOWLEDGMENT STATE OF NORTH CAROLINA COUNTY OF FORSYTH I, Abbye R. Caudle a Notary Public for said County and State, do hereby certify that Kurt Gehsmann personally appeared before me this day and stated that he is Vice President of UNIFLAME CORPORATION and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal, this 13th day of November, 2002. /s/ Abbye R. Caudle --------------------------------------- Notary Public My commission expires: 9/26/04 - ------------------------ 7 Agreed and Accepted as of November 20, 2002. BANK OF AMERICA, N.A., as Administrative Agent By: /s/ Michael Brashler -------------------------------------- Name: Michael Brashler Title: Vice President and Senior Agency Officer [Acknowledgment Follows] 8 Schedule 1
- ----------------------- --------------------- -------------------- --------------------- --------------------
- ----------------------- ------------------------------------------
- ----------------------- --------------------- -------------------- --------------------- --------------------
- ----------------------- ------------------------------------------
- ----------------------- --------------------- -------------------- --------------------- --------------------
- ----------------------- ------------------------------------------
Schedule 2 to Trademark Security Agreement None