Exhibit 10.10


 


TRADEMARK
SECURITY AGREEMENT


 


This TRADEMARK SECURITY
AGREEMENT (this “Agreement”), dated as of March 24, 2005, is made
between each of the entities listed on the signature pages hereof (each a “Grantor”
and, collectively, the “Grantors”), in favor of General Electric Capital
Corporation (“GECC”), as U.S. collateral agent (in such capacity,
together with its successors and permitted assigns, the “Collateral Agent”)
for the benefit of itself and the U.S. Secured Parties.


 


W I T N E
S S E T H:


 


WHEREAS pursuant to the
terms of that certain Credit Agreement, dated as of March 24, 2005 (as it may
be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among Progress Rail Services Holdings Corp. (the “Parent”), each of Parent’s
domestic subsidiaries identified on the signature pages thereof (the Parent and
such subsidiaries, collectively, the “U.S. Borrowers”), Progress Rail
Canada Corporation, Progress Rail Transcanada Corporation (the “Canadian Borrowers”;
the Canadian Borrowers and the U.S. Borrowers, collectively, the “Borrowers”),
GECC, as U.S. Administrative Agent, GE Capital Finance Holding Co., as Canadian
Administrative Agent, the Lenders and the other parties thereto, the U.S.
Administrative Agent, the Canadian Administrative Agent, the Lenders and the
other parties thereto have agreed to extend credit and make certain financial
accommodations to the Borrowers;


 


WHEREAS pursuant to that
certain Domestic Pledge and Security Agreement, of even date herewith (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the “Security Agreement”), between Grantors and Collateral Agent,
each Grantor has granted to the Collateral Agent a security interest and
continuing lien on all of such Grantor’s right, title and interest in, to and
under all Collateral, including the Trademark Collateral (as defined below),
and all Collateral in each case whether now owned or existing or hereafter
acquired or arising and wherever located to secure the prompt and complete
payment and performance of all Secured Obligations (as defined in the Security
Agreement) including the obligations of the Borrowers under the Credit
Agreement; and


 


WHEREAS pursuant to the
Credit Agreement, the Grantors are required to execute and deliver this
Agreement.


 


NOW, THEREFORE, in
consideration of the premises and to induce the Lenders, the Issuing Banks, and
the Administrative Agents to enter into the Credit Agreement and to induce the
Lenders and the Issuing Banks to make their respective extensions of credit to
the Borrowers thereunder, each Grantor hereby agrees with the Collateral Agent
as follows:


 


Section 1.              Defined
Terms


 


Unless otherwise defined
herein, terms defined in the Security Agreement and used herein have the
meaning given to them in the Security Agreement.


 


Section 2.              Grant
of Security Interest in Trademarks


 


Each Grantor hereby
grants to the Collateral Agent a security interest and continuing lien on all
of such Grantor’s right, title and interest in, to and under the following


 


1

















 


Collateral of such
Grantor, in each case whether owned or existing or hereafter acquired or
arising and wherever located (collectively, the “Trademark Collateral”) provided
that applications filed in the U.S. Patent and Trademark Office to register
trademarks or service marks on the basis of any Grantor’s “intent to use” such
marks will not be deemed Trademark Collateral unless and until the filing of a
“Statement of Use” or “Amendment to Allege Use” has been filed and accepted in
the United States Patent and Trademark Office, whereupon such applications
shall be automatically subject to the lien granted herein and deemed included
in the Collateral:


 


(i)       all of its Trademarks and all
Intellectual Property Licenses providing for the grant by or to such Grantor of
any right under any Trademark, including, without limitation, those referred to
on Schedule 1 hereto;


 


(ii)      all renewals and extensions of the
foregoing;


 


(iii)     all goodwill of the business connected with
the use of, and symbolized by, each such Trademark; and


 


(iv)    all income, royalties, proceeds and
liabilities at any time due or payable or asserted under and with respect to
any of the foregoing, including, without limitation, all rights to sue and
recover at law or in equity for any past, present and future infringement,
misappropriation, dilution, violation or other impairment thereof.


 


Section 3.              Security
for Obligations


 


This Agreement secures,
and the Trademark Collateral is collateral security for, the prompt and
complete payment or performance in full when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation
of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§362(a) (and any successor provision thereof)), of all Secured Obligations.


 


Section 4.              Security
Agreement


 


The security interests
granted pursuant to this Agreement are granted in conjunction with the security
interests granted to the Collateral Agent pursuant to the Security Agreement
and each Grantor hereby acknowledges and affirms that the rights and remedies
of the Collateral Agent with respect to the security interest in the Trademark
Collateral made and granted hereby 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. In the event of any irreconcilable
conflict between the terms of this Agreement and the terms of the Security
Agreement, the terms of the Security Agreement shall control.


 


Section 5.              Grantor
Remains Liable


 


Each Grantor hereby
agrees that, anything herein to the contrary notwithstanding, such Grantor
shall remain liable for all obligations under the Collateral, and shall assume
full and complete responsibility for the prosecution, defense, enforcement or
any other reasonably


 


2

















 


necessary or desirable
actions in connection with their Trademarks and Intellectual Property Licenses
subject to a security interest hereunder.


 


Section 6.              Counterparts


 


This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.


 


Section 7.              Governing
Law


 


This agreement and the
rights and obligations of the parties hereto shall be governed by, and construed
in accordance with the laws of the State of New York, but giving effect to
federal laws applicable to national banks.


 


[SIGNATURE PAGE
FOLLOWS]


 


3

















 


IN WITNESS WHEREOF, each
Grantor has caused this Trademark Security Agreement to be duly executed and
delivered by its duly authorized officer as of the date first set forth above.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  FM INDUSTRIES, INC.,

  as Grantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P. Ainsworth

  	
   

  
	
   

  	
   

  	
  Name:  William P. Ainsworth

  
	
   

  	
   

  	
  Title:  President and Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHEMETRON RAILWAY PRODUCTS, INC.,

  as Grantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P. Ainsworth

  	
   

  
	
   

  	
   

  	
  Name:  William P. Ainsworth

  
	
   

  	
   

  	
  Title:  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROGRESS RAIL SERVICES
  CORPORATION,

  as Grantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P. Ainsworth

  	
   

  
	
   

  	
   

  	
  Name:  William P. Ainsworth

  
	
   

  	
   

  	
  Title:  President and Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROGRESS VANGUARD CORPORATION,

  
	
   

  	
  as Grantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P. Ainsworth

  	
   

  
	
   

  	
   

  	
  Name:  William P. Ainsworth

  
	
   

  	
   

  	
  Title:  President

  



 


SIGNATURE PAGE TO
TRADEMARK SECURITY AGREEMENT


 

















 


	
  ACCEPTED AND AGREED

  
	
  as of the date first above written:

  
	
   

  
	
  GENERAL ELECTRIC CAPITAL CORPORATION,

  
	
  as U.S. Collateral Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Edward N. Parkes IV

  	
   

  
	
   

  	
  Name: Edward N. Parkes IV

  
	
   

  	
  Title: Vice President

  



 

















 


ACKNOWLEDGEMENT OF
GRANTOR


 


	
  STATE OF ALABAMA

  	
  )

  
	
   

  	
  )     ss.

  
	
  COUNTY OF MARSHALL

  	
  )

  



 


On this 18th day of March, 2005 before me personally appeared
W. P. Ainsworth, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of FM INDUSTRIES, INC.,
who being by me duly sworn did depose and say that he is an authorized officer
of said limited liability company, that the said instrument was signed on
behalf of said limited liability company as authorized by its Board of
Directors and that he acknowledged said instrument to be the free act and deed
of said limited liability company.


 


 




	
  Diane E. Eakin

  
	
  Notary Public

  






 

















 


ACKNOWLEDGEMENT OF
GRANTOR


 


	
  STATE OF ALABAMA

  	
  )

  
	
   

  	
  )     ss.

  
	
  COUNTY OF MARSHALL

  	
  )

  



 


On this 18th day of March, 2005 before me personally appeared W.
P. Ainsworth, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of CHEMETRON RAILWAY
PRODUCTS, INC., who being by me duly sworn did depose and say that he is an
authorized officer of said corporation, that the said instrument was signed on
behalf of said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.


 


 




	
  Diane E. Eakin

  
	
  Notary Public

  






 

















 


ACKNOWLEDGEMENT OF
GRANTOR


 


	
  STATE OF ALABAMA

  	
  )

  
	
   

  	
  )     ss.

  
	
  COUNTY OF MARSHALL

  	
  )

  



 


On this 18th day of March, 2005 before me personally appeared W.
P. Ainsworth, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of PROGRESS RAIL
SERVICES CORPORATION, who being by me duly sworn did depose and say that he is
an authorized officer of said corporation, that the said instrument was signed
on behalf of said corporation as authorized by its Board of Directors and that
he acknowledged said instrument to be the free act and deed of said
corporation.


 


 




	
  Diane E. Eakin

  
	
  Notary Public

  






 

















 


ACKNOWLEDGEMENT OF
GRANTOR


 


	
  STATE OF ALABAMA

  	
  )

  
	
   

  	
  )     ss.

  
	
  COUNTY OF MARSHALL

  	
  )

  



 


On this 18th day of March, 2005 before me personally appeared W.
P. Ainsworth, proved to me on the basis of satisfactory evidence to be the
person who executed the foregoing instrument on behalf of PROGRESS VANGUARD
CORPORATION, who being by me duly sworn did depose and say that he is an
authorized officer of said corporation, that the said instrument was signed on
behalf of said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.


 


 




	
  Diane E. Eakin

  
	
  Notary Public

  






 

















 


SCHEDULE
I




TO




TRADEMARK
SECURITY AGREEMENT


 


 


A.                                   REGISTERED
TRADEMARKS

[Include Registration Number and Date]


 


B.                                     TRADEMARK
APPLICATIONS

[Include Application Number and Date]


 


C.                                     INTELLECTUAL
PROPERTY LICENSES


[Include complete legal
description of agreement (name of agreement, parties and date)]


 

















 


SCHEDULE
I




TO




TRADEMARK
SECURITY AGREEMENT


 


	
  Party

  	
   

  	
  Trademark

  	
   

  	
  Filing
  Date

  	
   

  	
  Registration
  No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress Rail Services Corporation

  	
   

  	
  KERSHAW

  	
   

  	
  US; December 30, 1966

  	
   

  	
  851,859

  	
   

  
	
  Progress Rail Services Corporation

  	
   

  	
  KERSHAW

  	
   

  	
  US; October 31, 1983

  	
   

  	
  1,320,112

  	
   

  
	
  Progress Rail Services Corporation

  	
   

  	
  ROCK BAT 785643

  	
   

  	
  US; November 5, 2003

  	
   

  	
  78/323,651 (app. no.)

  	
   

  
	
  Progress Rail Services Corporation

  	
   

  	
  PROGRESS RAIL SERVICES (Stylized)

  	
   

  	
  October 7, 2004

  	
   

  	
  76/615,490 (app. no.)

  	
   

  
	
  Progress Rail Services Corporation

  	
   

  	
  PROGRESS RAIL SERVICES Plus Design

  	
   

  	
  October 7, 2004

  	
   

  	
  76/615,523 (app. no.)

  	
   

  
	
  Progress Rail Canada Corporation

  	
   

  	
  CB & DIAMOND Design

  	
   

  	
  Canada; July 26, 1985

  	
   

  	
  TMA316738

  	
   

  
	
  Progress Rail Canada Corporation

  	
   

  	
  CB and Design

  	
   

  	
  Canada; July 27, 1977

  	
   

  	
  TMA 232934

  	
   

  
	
  Progress Rail Canada Corporation

  	
   

  	
  DIAMOND BRONZE

  	
   

  	
  Canada; July 26, 1985

  	
   

  	
  TMA 320826

  	
   

  
	
  Progress Rail Canada Corporation

  	
   

  	
  IMPREGNASEAL (new application)

  	
   

  	
  Canada; September 7, 2004

  	
   

  	
  1,229,837 (app. no.)

  	
   

  
	
  Progress Vanguard Corporation

  	
   

  	
  VANGUARD PROCESS

  	
   

  	
  Australia; January 8, 1996

  	
   

  	
  700,284

  	
   

  
	
  Progress Vanguard Corporation

  	
   

  	
  VANGUARD PROCESS

  	
   

  	
  CTM; January 4, 1996

  	
   

  	
  205,369

  	
   

  
	
  Progress Vanguard Corporation

  	
   

  	
  VANGUARD

  	
   

  	
  China; August 7, 1996

  	
   

  	
  861,856

  	
   

  
	
  FM Industries, Inc.

  	
   

  	
  FREIGHT-SAVER

  	
   

  	
  April 29, 1988

  	
   

  	
  1,538,089

  	
   

  
	
  FM Industries, Inc.

  	
   

  	
  FREIGHT MASTER

  	
   

  	
  April 5, 1995

  	
   

  	
  1,969,806

  	
   

  
	
  FM Industries, Inc.

  	
   

  	
  FREIGHT MASTER

  	
   

  	
  Canada; December 1, 1964

  	
   

  	
  TMA149027

  	
   

  



 


Schedule I to Trademark
Security Agreement