mis_8k0118ex106.htm


    
      
        Exhibit
          10.6

        


         

        PATENT
          AND TRADEMARK SECURITY AGREEMENT

         

         

        This
          Agreement, dated as of January 14, 2008, is made by and between 3-D SERVICE,
          LTD., an Ohio limited liability company having a business location at the
          address set forth below under its signature (the “Debtor”), and Wells Fargo
          Bank, National Association (the “Secured Party”), acting through its Wells Fargo
          Business Credit operating division, having a business location at the address
          set forth below under its signature.

         

        RECITALS:

         

        The
          Debtor, together with certain affiliates of the Debtor, and the Secured
          Party
          are parties to a Credit and Security Agreement of even date herewith (as
          the
          same may hereafter be amended, supplemented or restated from time to time,
          the
“Credit Agreement”) setting forth the terms on which the Secured Party may now
          or hereafter extend credit to or for the account of the Debtor.

         

        As
          a
          condition to extending credit to or for the account of the Debtor, the
          Secured
          Party has required the execution and delivery of this Agreement by the
          Debtor.

         

        ACCORDINGLY,
          in consideration of the mutual covenants contained in the Loan Documents
          and
          herein, the parties hereby agree as follows:

         

        1.           Definitions  All
          terms defined in the Recitals hereto or in the Credit Agreement that are
          not
          otherwise defined herein shall have the meanings given to them
          therein.  In addition, the following terms have the meanings set forth
          below:

         

        “Obligations”
          means each and every debt, liability and obligation of every type and
          description arising under or in connection with any Loan Document (as defined
          in
          the Credit Agreement) which the Debtor may now or at any time hereafter
          owe to
          the Secured Party, whether such debt, liability or obligation now exists
          or is
          hereafter created or incurred and whether it is or may be direct or indirect,
          due or to become due, absolute or contingent, primary or secondary, liquidated
          or unliquidated, independent, joint, several or joint and several, and
          including
          specifically, but not limited to, the Indebtedness (as defined in the Credit
          Agreement).

         

        “Patents”
          means all of the Debtor’s right, title and interest in and to patents or
          applications for patents, fees or royalties with respect to each, and including
          without limitation the right to sue for past infringement and damages therefor,
          and licenses thereunder, all as presently existing or hereafter arising
          or
          acquired, including without limitation the patents listed on Exhibit
          A.

         

        “Security
          Interest” has the meaning given in Section 2.

         

        “Trademarks”
          means all of the Debtor’s right, title and interest in and to:
          (i) trademarks, service marks, collective membership marks, registrations
          and

         

        
          
            
            

          

          
            1

            
              

            

          

          
            
            

          

        

         

        applications
          for registration for each, and the respective goodwill associated with
          each,
          (ii) licenses, fees or royalties with respect to each, (iii) the right
          to sue for past, present and future infringement, dilution and damages
          therefor,
          (iv) and licenses thereunder, all as presently existing or hereafter
          arising or acquired, including, without limitation, the marks listed on
          Exhibit B.

         

        2.           Security
          Interest.  The Debtor hereby irrevocably pledges and assigns to,
          and grants the Secured Party a security interest (the “Security Interest”), with
          power of sale to the extent permitted by law, in the Patents and in the
          Trademarks to secure payment of the Obligations.  As set forth in the
          Credit Agreement, the Security Interest is coupled with a security interest
          in
          substantially all of the personal property of the Debtor.  This
          Agreement grants only the Security Interest herein described, is not intended
          to
          and does not affect any present transfer of title of any trademark registration
          or application and makes no assignment and grants no right to assign or
          perform
          any other action with respect to any intent to use trademark application,
          unless
          such action is permitted under 15 U.S.C. §1060.

         

        3.           Representations,
          Warranties and Agreements.  The Debtor represents, warrants and
          agrees as follows:

         

        (a)           Existence;
          Authority.  The Debtor is a corporation
          duly organized, validly existing and in good standing under the laws of
          its
          state of incorporation, and this Agreement has been duly and validly authorized
          by all necessary corporate action on the part of the Debtor.

         

        (b)           Patents.  Exhibit
          A accurately lists all Patents owned or controlled by the Debtor
          as of
          the date hereof, or to which the Debtor has a right as of the date hereof
          to
          have assigned to it, and accurately reflects the existence and status of
          applications and letters patent pertaining to the Patents as of the date
          hereof.  If after the date hereof, the Debtor owns, controls or has a
          right to have assigned to it any Patents not listed on Exhibit
          A, or if Exhibit A ceases to accurately reflect the
          existence and status of applications and letters patent pertaining to the
          Patents, then the Debtor shall within sixty (60) days provide written notice
          to
          the Secured Party with a replacement Exhibit A, which upon acceptance by
          the
          Secured Party shall become part of this Agreement.

         

        (c)           Trademarks.
          Exhibit B accurately lists all Trademarks owned or
          controlled by the Debtor as of the date hereof and accurately reflects
          the
          existence and status of Trademarks and all applications and registrations
          pertaining thereto as of the date hereof; provided, however, that
Exhibit B need not list common law marks (i.e., Trademarks for
          which there are no applications or registrations) which are not material
          to the
          Debtor’s or any Affiliate’s business(es).  If after the date hereof,
          the Debtor owns or controls any Trademarks not listed on Exhibit B
(other than common law marks which are not material to
          the Debtor’s or
          any Affiliate’s business(es)), or if Exhibit B ceases to
          accurately reflect the existence and status of applications and

         

        
          
            
            

          

          
            2

            
              

            

          

          
            
            

          

        

         

        registrations
          pertaining to the Trademarks, then the Debtor shall promptly provide written
          notice to the Secured Party with a replacement Exhibit B, which
          upon acceptance by the Secured Party shall become part of this
          Agreement.

         

        (d)           Affiliates.  As
          of the date hereof, no Affiliate owns, controls, or has a right to have
          assigned
          to it any items that would, if such item were owned by the Debtor, constitute
          Patents or Trademarks.  If after the date hereof any Affiliate owns,
          controls, or has a right to have assigned to it any such items, then the
          Debtor
          shall promptly either: (i) cause such Affiliate to assign all of its rights
          in such item(s) to the Debtor; or (ii) notify the Secured Party of such
          item(s) and cause such Affiliate to execute and deliver to the Secured
          Party a
          patent and trademark security agreement substantially in the form of this
          Agreement.

         

        (e)           Title.  The
          Debtor has absolute title to each Patent and each Trademark listed on Exhibits
          A
          and B, free and clear of all Liens except Permitted Liens.  The Debtor
          (i) will have, at the time the Debtor acquires any rights in Patents or
          Trademarks hereafter arising, absolute title to each such Patent or Trademark
          free and clear of all Liens except Permitted Liens, and (ii) will keep all
          Patents and Trademarks free and clear of all Liens except Permitted
          Liens.

         

        (f)           No
          Sale.  Except as permitted in the
          Credit Agreement, the Debtor will not assign, transfer, encumber or otherwise
          dispose of the Patents or Trademarks, or any interest therein, without
          the
          Secured Party’s prior written consent.

         

        (g)           Defense.  The
          Debtor will at its own expense and using commercially reasonable efforts,
          protect and defend the Patents and Trademarks against all claims or demands
          of
          all Persons other than those holding Permitted Liens.

         

        (h)           Maintenance.  The
          Debtor will at its own expense maintain the Patents and the Trademarks
          to the
          extent reasonably advisable in its business including, but not limited
          to,
          filing all applications to obtain letters patent or trademark registrations
          and
          all affidavits, maintenance fees, annuities, and renewals possible with
          respect
          to letters patent, trademark registrations and applications
          therefor.  The Debtor covenants that it will not abandon nor fail to
          pay any maintenance fee or annuity due and payable on any Patent or Trademark,
          nor fail to file any required affidavit or renewal in support thereof,
          without
          first providing the Secured Party:  (i) sufficient written
          notice, of at least thirty (30) days, to allow the Secured Party to timely
          pay
          any such maintenance fees or annuities which may become due on any Patents
          or
          Trademarks, or to file any affidavit or renewal with respect thereto, and
          (ii) a separate written power of attorney or other authorization to pay
          such maintenance fees or annuities, or to file such affidavit or renewal,
          should
          such be necessary or desirable.

         

        (i)           Secured
          Party’s Right to Take Action.  If the Debtor fails to
          perform or observe any of its covenants or agreements set forth in this
          Section
          3, and if such

         

        
          
            
            

          

          
            3

            
              

            

          

          
            
            

          

        

         

        failure
          continues for a period of ten (10) calendar days after the Secured Party
          gives
          the Debtor written notice thereof (or, in the case of the agreements contained
          in subsection (h), immediately upon the occurrence of such failure, without
          notice or lapse of time), or if the Debtor notifies the Secured Party that
          it
          intends to abandon a Patent or Trademark, the Secured Party may (but need
          not)
          perform or observe such covenant or agreement or take steps to prevent
          such
          intended abandonment on behalf and in the name, place and stead of the
          Debtor
          (or, at the Secured Party’s option, in the Secured Party’s own name) and may
          (but need not) take any and all other actions which the Secured Party may
          reasonably deem necessary to cure or correct such failure or prevent such
          intended abandonment.

         

        (j)           Costs
          and Expenses.  Except to the extent
          that the effect of such payment would be to render any loan or forbearance
          of
          money usurious or otherwise illegal under any applicable law, the Debtor
          shall
          pay the Secured Party on demand the amount of all moneys expended and all
          costs
          and expenses (including reasonable attorneys’ fees and disbursements) incurred
          by the Secured Party in connection with or as a result of the Secured Party’s
          taking action under subsection (i) or exercising its rights under Section
          6,
          together with interest thereon from the date expended or incurred by the
          Secured
          Party at the Default Rate.

         

        (k)           Power
          of Attorney.  To facilitate the Secured
          Party’s taking action under subsection (i) and exercising its rights under
          Section 6, the Debtor hereby irrevocably appoints (which appointment is
          coupled
          with an interest) the Secured Party, or its delegate, as the attorney-in-fact
          of
          the Debtor with the right (but not the duty) from time to time to create,
          prepare, complete, execute, deliver, endorse or file, in the name and on
          behalf
          of the Debtor, any and all instruments, documents, applications, financing
          statements, and other agreements and writings required to be obtained,
          executed,
          delivered or endorsed by the Debtor under this Section 3, or, necessary
          for the
          Secured Party, after an Event of Default, to enforce or use the Patents
          or
          Trademarks or to grant or issue any exclusive or non-exclusive license
          under the
          Patents or Trademarks to any third party, or to sell, assign, transfer,
          pledge,
          encumber or otherwise transfer title in or dispose of the Patents or Trademarks
          to any third party.  The Debtor hereby ratifies all that such attorney
          shall lawfully do or cause to be done by virtue hereof.  The power of
          attorney granted herein shall terminate upon the termination of the Credit
          Agreement as provided therein and the payment and performance of all
          Obligations.

         

        4.           Debtor’s
          Use of the Patents and Trademarks.  The Debtor shall be permitted
          to control and manage the Patents and Trademarks, including the right to
          exclude
          others from making, using or selling items covered by the Patents and Trademarks
          and any licenses thereunder, in the same manner and with the same effect
          as if
          this Agreement had not been entered into, so long as no Event of Default
          occurs
          and remains uncured.

         

        5.           Events
          of Default.  Each of the following occurrences shall constitute an
          event of default under this Agreement (herein called “Event of
          Default”):  (a) an Event of Default, as defined in the Credit
          Agreement, shall occur; or (b) the Debtor shall fail promptly to observe or
          perform any covenant or agreement herein binding on it; or (c) any of the
          representations or warranties contained in Section 3 shall prove to have
          been
          incorrect in any material respect when made.

         

        
          
            
            

          

          
            4

            
              

            

          

          
            
            

          

        

         

        6.           Remedies.  Upon
          the occurrence of an Event of Default and at any time thereafter, the Secured
          Party may, at its option, take any or all of the following actions:

         

        (a)           The
          Secured Party may exercise any or all remedies available under the Credit
          Agreement.

         

        (b)           The
          Secured Party may sell, assign, transfer, pledge, encumber or otherwise
          dispose
          of the Patents and Trademarks.

         

        (c)           The
          Secured Party may enforce the Patents and Trademarks and any licenses
          thereunder, and if Secured Party shall commence any suit for such enforcement,
          the Debtor shall, at the request of Secured Party, do any and all lawful
          acts
          and execute any and all proper documents required by Secured Party in aid
          of
          such enforcement.

         

        7.           Miscellaneous.  This
          Agreement can be waived, modified, amended, terminated or discharged, and
          the
          Security Interest can be released, only explicitly in a writing signed
          by the
          Secured Party.  A waiver signed by the Secured Party shall be
          effective only in the specific instance and for the specific purpose
          given.  Mere delay or failure to act shall not preclude the exercise
          or enforcement of any of the Secured Party’s rights or remedies.  All
          rights and remedies of the Secured Party shall be cumulative and may be
          exercised singularly or concurrently, at the Secured Party’s option, and the
          exercise or enforcement of any one such right or remedy shall neither be
          a
          condition to nor bar the exercise or enforcement of any other.  All
          notices to be given to Debtor under this Agreement shall be given in the
          manner
          and with the effect provided in the Credit Agreement.  The Secured
          Party shall not be obligated to preserve any rights the Debtor may have
          against
          prior parties, to realize on the Patents and Trademarks at all or in any
          particular manner or order, or to apply any cash proceeds of Patents and
          Trademarks in any particular order of application.  This Agreement
          shall be binding upon and inure to the benefit of the Debtor and the Secured
          Party and their respective participants, successors and assigns and shall
          take
          effect when signed by the Debtor and delivered to the Secured Party, and
          the
          Debtor waives notice of the Secured Party’s acceptance hereof.  The
          Secured Party may execute this Agreement if appropriate for the purpose
          of
          filing, but the failure of the Secured Party to execute this Agreement
          shall not
          affect or impair the validity or effectiveness of this Agreement.  A
          carbon, photographic or other reproduction of this Agreement or of any
          financing
          statement signed by the Debtor shall have the same force and effect as
          the
          original for all purposes of a financing statement.  This Agreement
          shall be governed by the internal

         

        
          
            
            

          

          
            5

            
              

            

          

          
            
            

          

        

         

        law
          of
          Wisconsin without regard to conflicts of law provisions.  If any
          provision or application of this Agreement is held unlawful or unenforceable
          in
          any respect, such illegality or unenforceability shall not affect other
          provisions or applications which can be given effect and this Agreement
          shall be
          construed as if the unlawful or unenforceable provision or application
          had never
          been contained herein or prescribed hereby.  All representations and
          warranties contained in this Agreement shall survive the execution, delivery
          and
          performance of this Agreement and the creation and payment of the
          Obligations.

         

        THE
          PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
          ON OR
          PERTAINING TO THIS AGREEMENT.

         

        IN
          WITNESS WHEREOF, the parties have executed this Patent and Trademark Security
          Agreement as of the date written above.

         

         

        
          
            	
                    WELLS
                      FARGO BANK, NATIONAL ASSOCIATION

                  	 	
                    3-D
                      SERVICE, LTD.

                  	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	
                    By:

                  	 	 	
                    By:

                  	/s/
                    John A. Martell
	
                    Its:

                  	
                    Vice
                      President

                  	 	
                    Its:

                  	 CEO
	 	 	 	 	 	 
	 	 	 	 
	
                    Wells
                      Fargo Bank, National Association

                  	 	
                    3-D
                      Service, Ltd.

                  	 
	
                    100
                      East Wisconsin Avenue

                  	 	
                    800
                      Nave Road

                  	 
	
                    MAC
                      N9811-143

                  	 	
                    Massillon,
                      Ohio  45246

                  	 
	
                    Milwaukee,
                      Wisconsin  53202

                  	 	 	 	 


          

        

         

         

         

        
          
            
            

          

          
            6

            
              

            

          

          
            
            

          

        

         

        
          


           

          


          
            	
                    STATE
                      OF

                  	 Indiana	
                    )

                  	 	 	 
	 	 	
                    )

                  	 	 	 
	
                    COUNTY
                      OF

                  	 St.
                    Joseph	
                    )

                  	 	 	 


          

           

          The
            foregoing instrument was acknowledged before me this ___ day of January,
            2008,
            by John A. Martell, the President of 3-D Service, Ltd., an Ohio limited
            liability company, on behalf of the company.

           

          


          
            	 	 /s/
                    James M. Lewis
	 	
                        Notary
                      Public

                  
	 	 	 
	 	
                    My
                      commission:

                  	 expires
                    2/9/2008
	 	 	 


          

        

         

        
           

          


          
            	
                    STATE
                      OF

                  	 	
                    )

                  	 	 	 
	 	 	
                    )

                  	 	 	 
	
                    COUNTY
                      OF

                  	 	
                    )

                  	 	 	 


          

           

          
            The
              foregoing instrument was
              acknowledged before me this ___ day of January, 2008, by Lynn A. Gruber,
              a Vice
              President of Wells Fargo Bank, National Association, on behalf of the
              association.



          
            	 	 
	 	
                        Notary
                      Public

                  
	 	 	 
	 	
                    My
                      commission:

                  	 
	 	 	 


          

        

      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      


       

      EXHIBIT
        A

       

      UNITED
        STATES ISSUED PATENTS

       

      


       

      NONE

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

     

    
      


       

      EXHIBIT
        B

       

      UNITED
        STATES ISSUED TRADEMARKS

       

      


      
        	
                MARK

              	
                COUNTRY

              	
                SERIAL
                  NO./REG. NO.

              	
                FILING
                  DATE/REG. DATE

              	
                STATUS

              
	
                3-D
                  SERVICE

              	
                US

              	
                2,993,788

              	
                09/13/2005

              	
                Registered

              
	
                TOTAL
                  MOTOR MANAGEMENT

                 

              	
                US

              	
                3,061,583

              	
                02/28/2006

              	
                Registered