Exhibit 10.4

 

EXECUTION COPY

 

TRADEMARK SECURITY AGREEMENT

 

This TRADEMARK SECURITY AGREEMENT dated as March 15, 2012, is among NEW ENTERPRISE STONE & LIME CO., INC., a Delaware corporation (together with its successors and permitted assigns, the “Borrower”), SCI PRODUCTS INC., a Pennsylvania corporation and a wholly-owned subsidiary of the Borrower (“SCI”), and WORK AREA PROTECTION CORP., an Illinois corporation and a wholly-owned subsidiary of the Borrower (“Work Area”, together with the Borrower, SCI and any other Person that becomes a party to the Security Agreement (as referenced and defined below), together with their successors and permitted assigns, collectively, “Assignors”), and MANUFACTURERS AND TRADERS TRUST COMPANY, with an office at 301 W. Plank Road, Altoona, Pennsylvania 16602, as agent for itself and the other Secured Parties (as that term is defined in the Credit Agreement referenced below) (together with its successors and assigns in such capacity, “Assignee”) and is made pursuant to the Security Agreement dated as of the date hereof, by and among Assignors and Assignee (the “Security Agreement”).

 

WHEREAS, Assignors are the owners of certain registered trademarks, trade names, corporate names, company names, business names, fictitious business names, trade dress, service marks, logos, designs, domain names and other source or business identifiers including, without limitation, those listed on Exhibit 1 hereto, together with pending applications and/or registrations therefor, all registrations and recordings thereof, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, or otherwise, all rights to obtain any reissues, renewals or extensions of the foregoing, all common law rights related thereto, the goodwill associated therewith, all licenses for any of the foregoing, and all causes of action arising prior to or after the date hereof for infringement,

 











 

dilution, misappropriation, violation and unfair competition of or regarding the same (collectively, the “Marks”); and

 

WHEREAS, the Borrower, Assignee and certain Lenders (as defined in the Credit Agreement) entered into that certain Credit Agreement dated as of the date hereof (as the same may be amended, restated, modified, supplemented and/or replaced from time to time, the “Credit Agreement”), pursuant to which such Lenders and the other Secured Parties agreed to extend credit to the Borrower on the terms and conditions described therein; and

 

WHEREAS, one of the conditions to the extension of credit under the Credit Agreement is that payment of the Secured Obligations (as defined in the Credit Agreement) shall be secured by, among other things, a security interest in favor of the Assignee, for the benefit of the Lenders and the other Secured Parties, in the Marks now existing and hereafter adopted or acquired, and all Proceeds (as defined in the Security Agreement) thereof and Assignors are willing to grant to the Assignee, for the benefit of the Secured Parties, a security interest in the Marks, including without limitation, the Marks now existing and hereafter adopted or acquired, and all Proceeds thereof and all other related claims and rights as more fully described in the Security Agreement.

 

NOW, THEREFORE, for good and valuable consideration, as security for the due and timely payment and performance of the Secured Obligations, Assignors hereby pledge and grant to Assignee a security interest and lien in and to the Marks now existing and hereafter adopted or acquired and all Proceeds thereof and give notice of such security interest and the existence of the Security Agreement providing therefor.

 

[Signature Page Follows]

 











 

Executed as of the date first above written.

 

	
 
    	
Assignors:
    
	
 
    	
 
    	
 
    
	
 
    	
NEW   ENTERPRISE STONE & LIME CO., INC.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Paul I. Detwiler, III
    
	
 
    	
Name:
    	
Paul   I. Detwiler, III
    
	
 
    	
Title:
    	
President,   Chief Financial Officer
    
	
 
    	
 
    	
and   Secretary
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
SCI   PRODUCTS INC.
    
	
 
    	
WORK   AREA PROTECTION CORP.
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Paul I. Detwiler, III
    
	
 
    	
Name:
    	
Paul   I. Detwiler, III
    
	
 
    	
Title:
    	
Vice   President, on behalf of each of the foregoing
    


 

[Signature Page of Trademark Security Agreement]