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Exhibit 4.9
CONFORMATION COPY
PATENT AND TRADEMARK SECURITY AGREEMENT
PATENT AND TRADEMARK SECURITY AGREEMENT, dated as of
January 15, 1998, made by Day International, Inc., a Delaware corporation (the
"Grantor"), in favor of Societe Generale ("SocGen"), as administrative agent (in
such capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated as of January 15, 1998 (as amended, waived, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Day International
Group, Inc., a Delaware corporation, the Lenders, the Administrative Agent and
Societe Generale Securities Corporation, as advisor and arranger, (in such
capacity, the "Arranger").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower (as defined
therein) upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantor shall execute and deliver this Agreement to the
Administrative Agent for the ratable benefit of the Secured Parties (as defined
below);
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Arranger and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, the Grantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, capitalized terms which
are defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Patent and Trademark Security Agreement, as
the same may be amended, supplemented, waived or otherwise modified
from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
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"Default": a "Default" as defined in the Credit Agreement.
"Event of Default": an "Event of Default" as defined in the
Credit Agreement.
"General Intangibles": as defined in Section 9-106 of the
Code, including, without limitation, all Patents and Trademarks now or
hereafter owned by the Grantor to the extent such Patents and
Trademarks would be included in General Intangibles under the Code.
"Loan Documents": the collective reference to the "Loan
Documents" as defined in the Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in
the Credit Agreement.
"Obligations": the Obligations (as defined in the Guarantee
and Collateral Agreement) of the Grantor.
"Patent Licenses": all United States written license
agreements of the Grantor with any Person who is not an Affiliate or
Subsidiary of the Grantor in connection with any of the Patents or such
other Person's patents, whether the Grantor is a licensor or a licensee
under any such agreement, including, without limitation, the license
agreements listed on Schedule II hereto, subject, in each case, to the
terms of such license agreements, and the right to prepare for sale,
sell and advertise for sale, all Inventory (as defined in the Guarantee
and Collateral Agreement) now or hereafter covered by such licenses.
"Patents": all of the Grantor's right, title and interest in
and to all United States patents, patent applications and patentable
inventions and all reissues and extensions thereof, including, without
limitation, all patents and patent applications identified in Schedule
II hereto, and including, without limitation, (a) all inventions and
improvements described and claimed therein, and patentable inventions,
(b) the right to ▇▇▇ or otherwise recover for any and all past, present
and future infringements and misappropriations thereof, (c) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (d) all
other rights corresponding thereto in the United States and all
reissues, divisions, continuations, continuations-in-part, substitutes,
renewals, and extensions thereof, all improvements thereon, and all
other rights of any kind whatsoever of the Grantor accruing thereunder
or pertaining thereto (Patents and Patent Licenses being, collectively,
the "Patent Collateral").
"Proceeds": as defined in Section 9-306(1) of the Code.
"Revolving Credit Commitments": the collective reference to
the "Revolving Credit Commitments" as defined in the Credit Agreement.
"Secured Parties": the collective reference to the
Administrative Agent, the Lenders (including, without limitation, the
Issuing Lender and the Swing Line Lender), any Affiliate of any Lender
which has entered into any Hedge Agreement (as defined in
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the Guarantee and Collateral Agreement) or Permitted Hedging
Arrangement with the Borrower or any of its Subsidiaries, and their
respective successors and assigns.
"Trademark Licenses": all United States written license
agreements of the Grantor with any Person who is not an Affiliate or
Subsidiary of the Grantor in connection with any of the Trademarks or
such other Person's names or trademarks, whether the Grantor is a
licensor or a licensee under any such agreement, including, without
limitation, the license agreements listed on Schedule I hereto,
subject, in each case, to the terms of such license agreements, and the
right to prepare for sale, sell and advertise for sale, all Inventory
(as defined in the Guarantee and Collateral Agreement) now or hereafter
covered by such licenses.
"Trademarks": all of the Grantor's right, title and interest
in and to all United States trademarks, service marks, trade names,
trade dress or other indicia of trade origin or business identifiers,
trademark and service ▇▇▇▇ registrations, and applications for
trademark or service ▇▇▇▇ registrations (except for "intent to use"
applications for trademark or service ▇▇▇▇ registrations filed pursuant
to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. Section 1051, unless and
until an Amendment to Allege Use or a Statement of Use under Sections
1(c) and 1(d) of said Act has been filed), and any renewals thereof,
including, without limitation, each registration and application
identified in Schedule I hereto, and including, without limitation, (a)
the right to ▇▇▇ or otherwise recover for any and all past, present and
future infringements and misappropriations thereof, (b) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (c) all
other rights corresponding thereto in the United States and all other
rights of any kind whatsoever of the Grantor accruing thereunder or
pertaining thereto, together in each case with the goodwill of the
business connected with the use of, and symbolized by, each such
trademark, service ▇▇▇▇, trade name, trade dress or other indicia of
trade origin or business identifiers (Trademarks and Trademark Licenses
being, collectively, the "Trademark Collateral").
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(d) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to the Grantor, shall
refer to the Grantor's Collateral or the relevant part thereof.
2. Grant of Security Interest. The Grantor hereby grants,
subject to existing ownership rights of joint owners and existing licenses
granted by the Grantor in the ordinary course of business with respect to the
Collateral (as hereinafter defined), to the Administrative Agent for the ratable
benefit of the Secured Parties a security interest in all of the following
property now owned or at any time hereafter acquired by the Grantor or in which
the Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the prompt
and complete payment and performance when
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due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations of the Grantor:
(i) all Patents;
(ii) all Patent Licenses;
(iii) all Trademarks;
(iv) all Trademark Licenses;
(v) all General Intangibles connected with the use of or
symbolized by the Trademarks and Patents; and
(vi) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security
and guarantees given by any Person with respect to any of the
foregoing;
provided, that the foregoing grant of a security interest with respect to
General Intangibles, Patent Licenses and Trademark Licenses shall not include a
security interest in, and the Collateral shall not include, any Patent License
or Trademark License with or issued by Persons other than a Subsidiary of the
Grantor that would otherwise be included in the Collateral to the extent that
the grant by such Grantor of such security interest is prohibited by the terms
and provisions of the written agreement or document or instrument creating or
evidencing such license or permit or Patent License or Trademark License, or
gives the other party thereto the right to terminate such Patent License or
Trademark License in the event of the grant of a security interest with respect
thereto and, provided further, that the foregoing grant of a security interest
with respect to Patents and Trademarks shall not include a security interest in,
and the Collateral shall not include, any Patent or Trademark owned jointly with
or issued to Persons other than a Subsidiary of the Grantor that would otherwise
be included in the Collateral to the extent that the grant by such Grantor of
such security interest is prohibited by the terms and provisions of the written
agreement or document or instrument creating or evidencing such joint ownership
or gives the other party the right to terminate the rights of the Grantor with
respect to such Patent or Trademark in the event of the grant of a security
interest with respect thereto. All references in this Agreement to any of the
property described in clauses (i) through (vi) of the preceding sentence, or to
any Proceeds thereof, shall be deemed to be references to such property or
Proceeds to the extent such property or Proceeds constitutes Collateral.
3. Representations and Warranties. The Grantor hereby
represents and warrants to the Administrative Agent on behalf of the Secured
Parties that:
(a) Power and Authority. As of the date hereof, the Grantor
has the corporate power and authority, and the legal right, to make,
deliver and perform its obligations under, and to grant the security
interest in the Trademark Collateral and the Patent Collateral to the
extent provided in, and pursuant to, this Agreement and has taken all
necessary corporate action to authorize the execution, delivery and
performance of, and grant of the security interest in the Trademark
Collateral and the Patent Collateral to the extent provided in, and
pursuant to, this Agreement.
(b) Title; No Other Liens. As of the date hereof, except for
the Liens granted to the Administrative Agent, for the benefit of the
Secured Parties, pursuant to this
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Agreement and the other Liens permitted to exist on the Collateral
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to Section 7.3 of
the Credit Agreement), and except as set forth on Schedule I or II
hereto, the Grantor is (or, in the case of after-acquired Collateral,
will be) the sole, legal and beneficial owner of the entire right,
title and interest in and to the material Trademarks set forth on
Schedule I hereto and the material Patents set forth in Schedule II
hereto free and clear of any and all Liens. As of the date hereof,
except as set forth on Schedule III hereto, no security agreement,
financing statement or other public notice similar in effect with
respect to all or any part of the Collateral is on file or of record in
any public office (including, without limitation, the United States
Patent and Trademark Office), except such as may have been filed in
favor of the Administrative Agent, for the benefit of the Secured
Parties, pursuant to this Agreement or in respect of such Liens as may
be permitted pursuant to the Loan Documents (including, without
limitation, any Liens permitted to exist on the Collateral pursuant to
Section 7.3 of the Credit Agreement).
(c) Perfected Liens. (i) As of the date hereof, this Agreement
is effective to create, as collateral security for the Obligations,
valid and enforceable Liens on the Collateral in favor of the
Administrative Agent, for the benefit of the Secured Parties, except as
enforceability may be affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing.
(ii) As of the date hereof, except with respect to Liens upon
Patents and Trademarks and Patent Licenses and Trademark Licenses,
which Liens, to the extent not otherwise perfected by the filing of
financing statements under the Code in accordance herewith, would in
the case of Patents and Trademarks listed in Schedules I and II hereto,
or in the case of Patent Licenses and Trademark Licenses listed in
Schedules I and II hereto, may be perfected upon the filing, acceptance
and recordation thereof in the United States Patent and Trademark
Office, upon filing of the financing statements delivered to the
Administrative Agent by the Grantor on the Closing Date in the
jurisdictions listed on Schedule 4.19(a) to the Credit Agreement (which
financing statements are in proper form for filing in such
jurisdictions) (and the recording of this Agreement in the United
States Patent and Trademark Office, and the making of filings after the
Closing Date in any other jurisdiction in the United States as may be
necessary under any Requirement of Law) the Liens created pursuant to
this Agreement will constitute valid and perfected Liens on the
Collateral in the United States in favor of the Administrative Agent
for the benefit of the Secured Parties, which Liens will be prior to
all other Liens of all other Persons with respect to the Collateral,
except for Liens permitted pursuant to the Loan Documents (including,
without limitation, those permitted to exist pursuant to Section 7.3 of
the Credit Agreement) and except as set forth on Schedule I or II
hereto, and which Liens are enforceable as such against all creditors
of and purchasers (except to the extent that the recording of an
assignment or other transfer of title to the Administrative Agent in
the United States Patent and Trademark Office may be necessary for such
enforceability) from the Grantor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing.
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(d) Consents. No consent of any party (other than the Grantor)
to any material Patent License or material Trademark License
constituting Collateral is required, or purports to be required, to be
obtained by or on behalf of the Grantor in connection with the
execution, delivery and performance of this Agreement that has not been
obtained. Each Patent License and Trademark License constituting
Collateral is in full force and effect and constitutes a valid and
legally enforceable obligation of the Grantor and (to the knowledge of
the Grantor) each other party thereto except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing and except to the extent the failure of any such
Patent License or Trademark License constituting Collateral to be in
full force and effect or valid or legally enforceable would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). No consent or authorization of, filing with or other
act by or in respect of any Governmental Authority is required in
connection with the execution, delivery, performance, validity or
enforceability of any of the Patent Licenses or Trademark Licenses
constituting Collateral by any party thereto other than those which
have been duly obtained, made or performed and are in full force and
effect and those the failure of which to make or obtain would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). Neither such Grantor nor (to the knowledge of such
Grantor) any other party to any Patent License or Trademark License
constituting Collateral is in default in the performance or observance
of any of the terms thereof, except for such defaults as would not
reasonably be expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). Except for rights reserved in favor of the United
States government, as required under law, the right, title and interest
of the Grantor in, to and under each Patent License and Trademark
License constituting Collateral are not subject to any defense, offset,
counterclaim or claim which would be reasonably expected, either
individually or in the aggregate, to have a material adverse effect on
the value of the Collateral (as such term is defined in the Credit
Agreement).
(e) Schedules I and II are Complete; All Filings Have Been
Made. Set forth in Schedules I and II is a complete and accurate list
of all material Trademarks and material Patents owned by the Grantor as
of the date hereof. As of the date hereof, the Grantor will have made
all necessary filings to protect and maintain its interest in the
Trademarks and Patents set forth in Schedules I and II, including,
without limitation, all necessary filings and payments of all
maintenance fees, in the United States Patent and Trademark Office to
the extent such Trademarks and Patents are material to the Grantor's
business. Set forth in Schedules I and II is a complete and accurate
list of all of the material Trademark Licenses and material Patent
Licenses owned by the Grantor as of the date hereof.
(f) The Trademarks and Trademark Licenses are Subsisting and
Not Adjudged Invalid. As of the date hereof, each trademark
registration and trademark application of the Grantor set forth in
Schedule I is subsisting as of the date hereof, and has not been
adjudged invalid, unregisterable or unenforceable, in whole or in part,
and, to the best of such Grantor's knowledge, is valid, registrable and
enforceable. As of the date hereof, each of the Trademark Licenses set
forth in Schedule I is validly subsisting and has not been adjudged
invalid or unenforceable, in whole or in part, and, to the best of such
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Grantor's knowledge, is valid and enforceable. As of the date hereof,
each Grantor has notified the Administrative Agent in writing of all
uses of any item of Trademark Collateral material to such Grantor's
business of which such Grantor is aware which could reasonably be
expected to lead to such item becoming invalid or unenforceable,
including unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with such
Collateral.
(g) The Patents and Patent Licenses are Subsisting and Not
Adjudged Invalid. As of the date hereof, each Patent and patent
application of the Grantor set forth in Schedule II is subsisting and
has not been adjudged invalid, unpatentable or unenforceable, in whole
or in part, and, to the best of such Grantor's knowledge, is valid,
patentable and enforceable. As of the date hereof, each of the Patent
Licenses set forth in Schedule II is validly subsisting and has not
been adjudged invalid or unenforceable, in whole or in part, and, to
the best of such Grantor's knowledge, is valid and enforceable. As of
the date hereof, the Grantor has notified the Administrative Agent in
writing of all uses of any item of Patent Collateral material to such
Grantor's business of which such Grantor is aware which could
reasonably be expected to lead to such item becoming invalid or
unenforceable.
(h) No Previous Assignments or Releases. Except as set forth
on Schedule I or II hereto, as of the date hereof, the Grantor has not
made an agreement constituting a present or future assignment, sale,
transfer or encumbrance of any of the Collateral (except for any such
assignment, sale, transfer or encumbrance permitted under the Loan
Documents). Except as permitted by the Loan Documents or as required by
law, the Grantor has not granted any license, shop right, release,
covenant not to ▇▇▇, or non-assertion assurance to any Person with
respect to any material part of the Collateral which would have a
Material Adverse Effect.
(i) Proper Statutory Notice. The Grantor has marked its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law trademark symbol (TM), or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(j) No Knowledge of Claims Likely to Arise. Except for the
Trademark Licenses and Patent Licenses listed in Schedules I and II
hereto, the Grantor has no knowledge of the existence of any right or
any claim (other than as permitted by this Agreement or the Loan
Documents) that is likely to be made under or against any item of
Collateral contained on Schedules I and II which would have a Material
Adverse Effect.
(k) No Knowledge of Existing or Threatened Claims. No claim
has been made and is continuing or, to the Grantor's knowledge,
threatened that the use by such Grantor of any item of Collateral is
invalid or unenforceable or that the use by such Grantor of any
Collateral does or may violate the rights of any Person, which would
have a Material Adverse Effect. To the Grantor's knowledge, there is
currently no infringement or unauthorized use of any item of Collateral
contained on Schedules I and II hereto which would have a Material
Adverse Effect.
The Grantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Grantor on and as of each
date on which an extension of credit is made by the Lenders to the Borrower
under the Credit Agreement, in each case as though
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made on and as of each such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date).
4. Covenants. The Grantor covenants and agrees with the
Administrative Agent and the other Secured Parties that, from and after the date
of this Agreement until the payment in full of the Loans, the Reimbursement
Obligations and to the extent then due and owing, all other Obligations, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit:
(a) Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the written request of
the Administrative Agent or the Grantor, as the case may be, and at the
sole expense of such Grantor, such Grantor or the Administrative Agent,
as the case may be, will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Administrative Agent or the Grantor, as the case may be, may reasonably
request for the purpose of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted, including,
without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Liens created hereby. The Grantor also
hereby authorizes the Administrative Agent to file any such financing
or continuation statement without the signature of the Grantor to the
extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. The Administrative Agent
agrees to notify the Grantor and the Grantor agrees to notify the
Administrative Agent of any financing or continuation statement filed
by it pursuant to this Section 4(a), provided that any failure to give
any the notice shall not affect the validity or effectiveness of any
such filing.
(b) Indemnification and Expenses. The Grantor agrees to pay,
and to save the Administrative Agent, the other Secured Parties and
their respective agents, officers, directors and successors harmless
from, any and all liabilities and reasonable costs and expenses
(including, without limitation, reasonable legal fees and expenses) (i)
with respect to, or resulting from, any delay by the Grantor in
complying with any material Requirement of Law applicable to any of the
Collateral, or (ii) in connection with any of the transactions
contemplated by this Agreement, provided that such indemnity shall not,
as to the Administrative Agent, any of the other Secured Parties or any
of their respective agents, officers, directors and successors, be
available to the extent that such liabilities, costs and expenses
resulted from the gross negligence or willful misconduct of any of the
same. In any suit, proceeding or action brought by the Administrative
Agent or any other Secured Party under any of the Collateral for any
sum owing thereunder, or to enforce any of the Collateral, the Grantor
will save, indemnify and keep the Administrative Agent, such Secured
Party and their respective agents, officers, directors and successors
harmless from and against all expense, loss or damage suffered by
reason of any defense or counterclaim raised in any such suit,
proceeding or action, except to the extent such expense, loss or damage
resulted from the gross negligence or willful misconduct of any of the
same.
(c) Maintenance of Records. The Grantor will keep and maintain
at its own cost and expense reasonably satisfactory and complete
records of the Collateral, and shall ▇▇▇▇ such records to evidence this
Agreement and the Liens and the security interests created hereby. For
the Administrative Agent's and the other Secured Parties' further
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security, the Administrative Agent, for the benefit of the Secured
Parties, shall have a security interest in all of the Grantor's books
and records pertaining to the Collateral.
(d) Right of Inspection. Upon reasonable written advance
notice to the Grantor and at reasonable intervals, or at any time and
from time to time after the occurrence and during the continuation of
an Event of Default, the Administrative Agent shall have reasonable
access during normal business hours to all the books, correspondence
and records of the Grantor, and the Administrative Agent and its
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees
to render to the Administrative Agent, at the Grantor's reasonable cost
and expense, such clerical and other assistance as may be reasonably
requested with regard thereto.
(e) Compliance with Laws, etc. The Grantor will comply in all
material respects with all material Requirements of Law applicable to
the Collateral or any part thereof, except to the extent that the
failure to so comply would not be reasonably expected to materially
adversely affect in the aggregate the Administrative Agent's or the
other Secured Parties' rights hereunder, the priority of their Liens on
the Collateral or the value of the Collateral.
(f) Further Identification of Collateral. The Grantor will
furnish to the Administrative Agent from time to time such statements
and schedules further identifying and describing the Collateral, and
such other reports in connection with the Collateral, as the
Administrative Agent may reasonably request, all in reasonable detail.
(g) Security Interest in Any Newly Acquired Collateral. The
Grantor agrees that, should it obtain an ownership interest in any
material Trademark, Patent, Trademark License or Patent License, which
is not now a part of the Collateral, (i) the provisions of Section 2
shall automatically apply thereto, (ii) any such Trademark, Patent,
Trademark License and Patent License shall automatically become part of
the Collateral, and (iii) with respect to any ownership interest in any
such Trademark, Patent, Trademark License or Patent License that such
Grantor should obtain, it shall give notice thereof to the
Administrative Agent in writing, in reasonable detail, at its address
set forth in the Credit Agreement within 45 days after the end of the
calendar quarter in which it obtains such ownership interest. The
Grantor authorizes the Administrative Agent to modify this Agreement by
amending Schedules I and II (and will cooperate reasonably with the
Administrative Agent in effecting any such amendment) to include on
Schedule I any Trademark and Trademark License and on Schedule II any
Patent or Patent License of which it receives notice under this
Section, or to prepare and file with the United States Patent and
Trademark Office a supplement to this Agreement to include any Patent
or Trademark of which it receives notice to under this Section.
(h) Maintenance of the Trademark Collateral. Except as
permitted in the Loan Documents and to the extent permitted by law, the
Grantor agrees to take all reasonably necessary steps, including,
without limitation, in the United States Patent and Trademark Office or
in any court, to (i) maintain each trademark registration and each
Trademark License identified on Schedule I hereto, and (ii) pursue each
trademark application now or hereafter identified in Schedule I hereto,
including, without limitation, the filing of responses to office
actions issued by the United States Patent and Trademark Office, the
filing of applications for renewal, the filing of affidavits under
Sections 8 and 15 of the United States Trademark Act, and the
participation in opposition, cancellation,
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infringement and misappropriation proceedings, except, in each case in
which such Grantor has reasonably determined that any of the foregoing
is not of material economic value to it. The Grantor agrees to take
corresponding steps with respect to each new or acquired trademark or
service ▇▇▇▇ registration, or application for trademark or service ▇▇▇▇
registration, or any rights obtained under any Trademark License, in
each case, which it is now or later becomes entitled, except in each
case in which the Grantor has reasonably determined that any of the
foregoing is not of material economic value to it. Any expenses
incurred in connection with such activities shall be borne by such
Grantor.
(i) Maintenance of the Patent Collateral. Except as permitted
in the Loan Documents and to the extent permitted by law, the Grantor
agrees to take all reasonably necessary steps, including, without
limitation, in the United States Patent and Trademark Office or in any
court, to (i) maintain each patent and each Patent License identified
on Schedule II hereto, and (ii) pursue each patent application, now or
hereafter identified in Schedule II hereto, including, without
limitation, the filing of divisional, continuation,
continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of
maintenance fees, and the participation in interference, reexamination,
opposition, infringement and misappropriation proceedings, except, in
each case in which the Grantor has reasonably determined that any of
the foregoing is not of material economic value to it. The Grantor
agrees to take corresponding steps with respect to each new or acquired
patent, patent application, or any rights obtained under any Patent
License, in each case, which it is now or later becomes entitled,
except in each case in which the Grantor has reasonably determined that
any of the foregoing is not of material economic value to it. Any
expenses incurred in connection with such activities shall be borne by
the Grantor.
(j) Preservation and Protection of the Trademark Collateral
and Patent Collateral. Except as provided in Section 4(k) hereof, the
Grantor shall take all steps permitted by law which it or the
Administrative Agent deems reasonably appropriate under the
circumstances to preserve and protect its material Trademark Collateral
and Patent Collateral.
(k) Grantor Shall Not Abandon any Collateral. The Grantor
shall not abandon any trademark registration, patent or any pending
trademark or patent application, in each case listed on Schedule I or
Schedule II, without the written consent of the Administrative Agent,
unless such Grantor shall have previously determined that such use or
the pursuit or maintenance of such trademark registration, patent or
pending trademark or patent application is not of material economic
value to it, in which case, such Grantor will, at least annually, give
notice of any such abandonment to the Administrative Agent in writing,
in reasonable detail, at its address set forth in the Credit Agreement.
(l) Infringement of Any Collateral. In the event that any
Grantor becomes aware that any item of the Collateral which such
Grantor has reasonably determined to be material to its business is
infringed or misappropriated by a third party, which infringement or
misappropriation would reasonably be expected to have a Material
Adverse Effect, the Grantor shall notify the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth
in the Credit Agreement, and shall take such actions permitted by law
as the Grantor or the Administrative Agent deems reasonably appropriate
under the circumstances to protect such Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense
incurred in connection with
11
such activities shall be borne by such Grantor. The Grantor will advise
the Administrative Agent promptly and in writing, in reasonable detail,
at its address set forth in the Credit Agreement, of any adverse
determination or the institution of any proceeding (including, without
limitation, the institution of any proceeding in the United States
Patent and Trademark Office or any court) regarding any item of the
Collateral which has a Material Adverse Effect.
(m) Use of Statutory Notice. The Grantor shall ▇▇▇▇ its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law trademark symbol (TM), or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(n) Limitation on Liens on Collateral. The Grantor will not
create, incur or permit to exist, will defend the Collateral against,
and will take such other action as is reasonably necessary to remove,
any material Lien or material adverse claim on or to any of the
Collateral, other than Liens created hereby and other than as permitted
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to Section 7.3 of
the Credit Agreement), and will defend the right, title and interest of
the Administrative Agent and the other Secured Parties in and to any of
the Collateral against the claims and demands of all Persons
whomsoever, except where failure to defend would not have a Material
Adverse Effect and except where such claim or demand arises from a Lien
permitted pursuant to the Loan Documents including, without limitation,
any Liens permitted to exist on the Collateral pursuant to Section 7.3
of the Credit Agreement).
(o) Limitations on Dispositions of Collateral. Without the
prior written consent of the Administrative Agent, the Grantor will not
sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract
to do so, except with respect to licenses in the ordinary course of
business or as permitted by this Agreement or the Loan Documents.
(p) Notices. The Grantor will advise the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth
in the Credit Agreement, (i) of any Lien (other than Liens created
hereby or permitted under the Loan Documents, including, without
limitation, any Liens permitted to exist on the Collateral pursuant to
Section 7.3 of the Credit Agreement) on any Patents or Trademarks and
(ii) of the occurrence of any other event which would reasonably be
expected in the aggregate to have a material adverse effect on the
aggregate value of the Collateral taken as a whole or the Liens created
hereunder.
5. Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent of the Administrative
Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the Grantor
and in the name of the Grantor or in its own name, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be reasonably necessary
or desirable to accomplish the purposes of this Agreement to the extent
permitted by law, and, without limiting the generality of the foregoing, to the
extent permitted by law, the Grantor hereby gives the Administrative Agent the
power and right, on behalf of the Grantor, without notice to or
12
assent by the Grantor, to do, at any time when an Event of Default has occurred
and is continuing, the following:
(i) to execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's and the other
Secured Parties' security interest in any of the Collateral and the
goodwill of the Grantor relating thereto or represented thereby;
(ii) in the name of the Grantor or its own name, or otherwise,
to take possession of and indorse and collect any checks, drafts,
notes, acceptances or other instruments for the payment of moneys due
under any General Intangible (to the extent that the foregoing
constitute Collateral) or with respect to any other Collateral and to
file any claim or to take any other action or institute any proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such
moneys due under such General Intangible or with respect to any other
Collateral whenever payable;
(iii) to pay or discharge Liens placed on the Collateral,
other than Liens permitted under this Agreement or the other Loan
Documents, including, without limitation, any Liens permitted to exist
on the Collateral pursuant to Section 7.3 of the Credit Agreement; and
(iv) (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) to ask for, or demand, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought against the
Grantor with respect to any of the Collateral; (F) subject to any
preexisting rights of joint owners, to settle, compromise or adjust any
suit, action or proceeding described in clause (E) above and, in
connection therewith, to give such discharges or releases as the
Administrative Agent may deem appropriate; (G) subject to any
pre-existing reserved rights or licenses, to assign any Patent or
Trademark constituting Collateral (along with the goodwill of the
business to which any such Patent or Trademark pertains), for such term
or terms, on such conditions, and in such manner, as the Administrative
Agent shall in its sole discretion determine; and (H) generally, to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner of all such
Grantor's rights therein for all purposes, and to do, at the
Administrative Agent's option and the Grantor's expense, at any time,
or from time to time, all acts and things which the Administrative
Agent deems reasonably necessary to protect, preserve or realize upon
the Collateral and the Administrative Agent's and the other Secured
Parties' Liens thereon and to effect the intent of this Agreement, all
as fully and effectively as the Grantor might do.
13
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit.
(b) Other Powers. The Grantor also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) No Duty on the Part of Administrative Agent or Secured
Parties. The powers conferred on the Administrative Agent and the other Secured
Parties hereunder are solely to protect the Administrative Agent's and the other
Secured Parties' interests in the Collateral and shall not impose any duty upon
the Administrative Agent or any other Secured Party to exercise any such powers.
The Administrative Agent and the other Secured Parties shall be accountable only
for amounts that they actually receive as a result of the exercise of such
powers, and neither they nor any of their officers, directors, employees,
affiliates, agents or successors shall be responsible to the Grantor for any act
or failure to act hereunder, except for gross negligence or willful misconduct
of any of the same.
6. Performance by Administrative Agent of Grantor's
Obligations. If the Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall perform or comply, or otherwise cause performance
or compliance, with such agreements, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum equal to 2.0% above the rate
applicable to Base Rate Loans that are Term Loans, shall be payable by the
Grantor to the Administrative Agent on demand, and the Grantor's obligations to
make such payments shall constitute Obligations secured hereby.
7. Proceeds. It is agreed that if an Event of Default shall
occur and be continuing, (a) all Proceeds of any Collateral received by the
Grantor consisting of cash, checks and other near-cash items shall be held by
the Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of the Grantor, and shall, forthwith upon receipt by
the Grantor, be turned over to the Administrative Agent in the exact form
received by the Grantor (duly indorsed by the Grantor to the Administrative
Agent, if required), and (b) any and all such Proceeds received by the
Administrative Agent (whether from the Grantor or otherwise) shall be held by
the Administrative Agent for the benefit of the Secured Parties as collateral
security for the Obligations (whether matured or unmatured), and/or then or at
any time thereafter may, in the sole discretion of the Administrative Agent, be
applied by the Administrative Agent against the Obligations then due and owing
in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses
incurred by the Administrative Agent (including, without limitation, in
its capacity as Credit Agreement Administrative Agent) in connection
with this Agreement, the Guarantee and Collateral Agreement, the Credit
Agreement, any other Loan Document or any of the Obligations,
including, without limitation, all court costs and the reasonable fees
and expenses of its agents and legal counsel, and any other reasonable
costs or expenses incurred in connection with the exercise by the
Administrative Agent (including, without limitation,
14
in its capacity as Credit Agreement Administrative Agent) of any right
or remedy under this Agreement, the Credit Agreement, or any other Loan
Document;
SECOND, to the ratable satisfaction of all other Obligations;
and
THIRD, to the Grantor or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Secured Parties, may
exercise all rights and remedies of a secured party under the Code, and, to the
extent permitted by law, all other rights and remedies granted to the
Administrative Agent or any Secured Party in this Agreement and the other Loan
Documents and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker's board or office of the
Administrative Agent or any other Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Administrative Agent or any other Secured Party shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Grantor, which right or equity is hereby waived and released. The Grantor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at the Grantor's premises
or elsewhere. In the event of any sale, assignment, or other disposition of any
of the Collateral, the goodwill of the business connected with and symbolized by
any Trademark Collateral subject to such disposition shall be included, and the
Grantor shall supply to the Administrative Agent or its designee the Grantor's
know-how and expertise relating to the Collateral subject to such disposition,
and the Grantor's notebooks, studies, reports, records, documents and things
embodying the same or relating to the inventions, processes or ideas covered by,
and to the manufacture of any products under or in connection with, the
Collateral subject to such disposition, and the Grantor's customer's lists,
studies and surveys and other records and documents relating to the
distribution, marketing, advertising and sale of products relating to the
Collateral subject to such disposition. The Administrative Agent shall apply the
net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the other Secured Parties hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment and
performance in whole or in part of the Obligations then due and owing, in the
order of priority specified in Section 7 hereof, and only after such application
and after the payment by the Administrative Agent of any other amount required
by any provision of law, including, without limitation, Section 9-504(1)(c) of
the Code, need the Administrative Agent account for the surplus, if any, to the
Grantor. To the extent permitted by applicable law, (a) the Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent or
any other Secured Party arising out of the
15
repossession, retention or sale of the Collateral, other than any such claims,
damages and demands that may arise from the gross negligence or willful
misconduct of any of them, and (b) any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least 10 days before such sale or other
disposition. The Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay in
full the Loans, the Reimbursement Obligations, and, to the extent then due and
owing, all other Obligations, including, without limitation, the reasonable fees
and disbursements of any attorneys employed by the Administrative Agent or any
other Secured Party to collect such deficiency, as provided in the Credit
Agreement.
9. Limitation on Duties Regarding Preservation of Collateral.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account.
Neither the Administrative Agent, any other Secured Party, nor any of their
respective directors, officers, employees, affiliates or agents shall be liable
for failure to demand, collect or realize upon all or any part of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Grantor or any other
Person.
10. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled with
an interest and are irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and, to the extent then due and owing, all other
Obligations, the termination of the Revolving Credit Commitments and the
expiration, termination or return to the Issuing Lender of any Letters of
Credit.
11. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the Administrative
Agent nor any other Secured Party nor the Grantor shall by any act (except by a
written instrument pursuant to Section 14 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any other Secured Party or
the Grantor, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any other Secured Party or the Grantor of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such other Secured Party or the Grantor would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
16
14. Waivers and Amendments; Successors and Assigns. None of
the terms or provisions of this Agreement may be amended, supplemented, waived
or otherwise modified except by a written instrument executed by the Grantor and
the Administrative Agent, provided that, if requested by the Grantor, any
provision of this Agreement for the benefit of the Administrative Agent and/or
the other Secured Parties may be waived by the Administrative Agent in a written
letter or agreement executed by the Administrative Agent or by telex or
facsimile transmission from the Administrative Agent. This Agreement shall be
binding upon and shall inure to the benefit of the Grantor and its successors
and assigns, and the Administrative Agent and the other Secured Parties and
their respective successors, indorsees, transferees and assigns, except that
(other than in accordance with Section 7.5 of the Credit Agreement) the Grantor
shall not assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Administrative Agent.
15. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with Section 10.2 of the
Credit Agreement. The Administrative Agent, the Secured Parties and the Grantor
may change their respective addresses and transmission numbers for notices by
notice in the manner provided in this Section 15.
16. Authority of Administrative Agent. The Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Grantor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation to make any inquiry
respecting such authority.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
18. Release of Collateral and Termination. (a) This Agreement
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms and the security interest created by this Agreement
shall not be released until the payment in full of the Loans, the Reimbursement
Obligations and the other Obligations then due and owing shall have occurred,
the Revolving Credit Commitments shall have been terminated and any Letters of
Credit shall have expired or been terminated or returned to the Issuing Lender,
at which time the Collateral shall be released from the Liens created hereby,
and this Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and the Grantor hereunder
shall terminate, all without delivery of any instrument or performance of any
act by any party, and all rights to the Collateral shall revert to the Grantor,
provided that if any payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Grantor or any other Loan Party, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or a
trustee or similar officer for, the Grantor or any other Loan Party or any
substantial part of its property, or otherwise, this Agreement, all rights
hereunder and the Liens created hereby shall continue to be effective, or be
reinstated, as though such payments had not been made. Upon request of the
17
Grantor following any such termination, the Administrative Agent shall reassign
(at the sole cost and expense of the Grantor) to the Grantor any Collateral held
by the Administrative Agent hereunder, and execute and deliver (at the sole cost
and expense of the Grantor) to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination and reassignment and shall have
prepared and submitted to the Administrative Agent for its execution.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Grantor (at the sole cost and expense of the Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral as such Grantor may reasonably request that shall have
been prepared by the Grantor and submitted to the Administrative Agent for its
signature.
19. Incorporation of Provisions of Guarantee and Collateral
Agreement. The Grantor hereby acknowledges and affirms that the rights and
remedies of the Administrative Agent with respect to the security interest in
the Collateral made and granted hereby are more fully set forth in the Guarantee
and Collateral Agreement, the terms, conditions and other provisions of which,
in so far as they relate to the Collateral, such security interest and such
rights and remedies, are incorporated by reference herein as if fully set forth
herein. Nothing in this Agreement shall defer or impair the attachment or
perfection of any security interest in any collateral described in the Guarantee
and Collateral Agreement which would attach or be perfected pursuant to the
terms of the Guarantee and Collateral Agreement without action by the Grantor or
any other Person.
20. Interpretation. In the event of a conflict between any
term of this Agreement and the terms of the Credit Agreement, the terms of the
Credit Agreement shall control.
21. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Grantor and the Administrative Agent with
respect to the subject matter hereof and there are no promises or
representations by the Grantor, the Administrative Agent or any other Secured
Party relative to the subject matter hereof not reflected or referred to herein
or therein.
22. Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient forum and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially
18
similar form of mail), postage prepaid, to the Grantor or the
applicable Secured Party, as the case may be, at the address referred
to in Section 15 or at such other address of which the Administrative
Agent and the Grantor shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 22 any punitive damages.
23. WAIVER OF JURY TRIAL. THE GRANTOR AND THE ADMINISTRATIVE
AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
24. Counterparts. This Agreement may be executed and
acknowledged by one or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
19
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
20
DAY INTERNATIONAL, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ Vanden Beukel
Title: Vice President and Secretary
21
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
SOCIETE GENERALE, NEW YORK BRANCH, as Administrative Agent
By:
--------------------
Title: Director
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of January, 1998, before me personally came
__________________ to me known, who, being by me duly sworn, did depose and say
he resides at ____________________________________________________________ and
that he is the ____________________________ of DAY INTERNATIONAL, INC., the
corporation described in and which executed the above instrument; that he has
been authorized to execute said instrument on behalf of said corporation; and
that he has signed said instrument on behalf of said corporation pursuant to
said authority.
-------------
Notary Public
[Notarial Seal]
23
Schedule I
TRADEMARKS AND TRADEMARK LICENSES
24
Schedule II
PATENTS AND PATENT LICENSES
25
Schedule III
EXISTING SECURITY INTERESTS
