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EXHIBIT 4(f)
PATENT AND TRADEMARK SECURITY AGREEMENT
PATENT AND TRADEMARK SECURITY AGREEMENT, dated as of
February 10, 1997, made by EV International, Inc., a Delaware corporation
formerly named Electro-Voice, Incorporated and successor by merger to Gulton
Acquisition Corp., Gulton Industries, Inc., LFE Corporation, ▇▇▇▇ ▇▇ Audio, Inc.
and ▇▇▇▇ ▇▇ Audio Magnetic, Inc., each a Delaware corporation (the "Grantor"),
in favor of The Chase Manhattan Bank, a New York banking corporation ("Chase"),
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 February 10, 1997 (as amended, waived,
supplemented or otherwise modified from time to time, the "Senior Secured Credit
Agreement"), among the Grantor (as successor by merger to Gulton Acquisition
Corp.) (in such capacity, the "Borrower"), the Lenders and the Administrative
Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Senior Secured Credit Agreement, the
Lenders have severally agreed to make extensions of credit to the Borrower 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 Senior Secured
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 and the Lenders to enter into the Senior Secured 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 Senior Secured Credit Agreement and used herein
shall have the meanings given to them in the Senior Secured 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.
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"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.
"Default": a "Default" as defined in the Senior Secured Credit
Agreement.
"Event of Default": an "Event of Default" as defined in the Senior
Secured 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 Senior Secured Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in the
Senior Secured 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,
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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 Senior Secured 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 Interest Rate Protection 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
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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 such
Grantor's Collateral or the relevant part thereof.
2. Grant of Security Interest. The Grantor hereby grants, subject to
existing licenses granted by such 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 such
Grantor or in which such 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 due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations of such 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
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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. 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 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
subsection 8.3 of the Senior Secured Credit Agreement), 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 subsection 8.3 of the
Senior Secured Credit Agreement).
(c) Perfected First Priority 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
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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 Effective Date in the jurisdictions listed on Schedule 5.14
to the Senior Secured 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 Effective 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
subsection 8.3 of the Senior Secured Credit Agreement), 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.
(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
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is defined in the Senior Secured 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 Senior Secured 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 Senior Secured 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 Senior Secured 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 such 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 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.
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(g) The Patent 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. 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 Senior
Secured Credit Agreement, in
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each case as though 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 such 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 such 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 such Grantor and
such 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 such 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 such 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,
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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 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 such
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 such 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 each of the
Credit Agreements within 45 days after the end of the calendar quarter in
which it obtains such ownership interest. The Grantor authorizes
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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 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, 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 such 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. The Grantor agrees to take
all 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 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 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 such 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.
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(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 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 Senior Secured 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, such
Grantor shall notify the Administrative Agent promptly and in writing, in
reasonable detail, at its address set forth in the Senior Secured Credit
Agreement, and shall take such actions as such 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
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 Senior Secured 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 subsection 8.3 of the Senior Secured Credit
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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.
(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 Senior Secured 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
subsection 8.3 of the Senior Secured 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 such Grantor and
in the name of such 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 such Grantor, without notice to or assent by such
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 such
Grantor relating thereto or represented thereby;
(ii) in the name of such 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
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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 subsection 8.3 of the Senior Secured 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) 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 thereof 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 such Grantor might do.
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
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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 1.75% above the rate applicable to
ABR Loans that are Term Loans, shall be payable by such Grantor to the
Administrative Agent on demand, and such 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 such
Grantor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Administrative Agent in the exact form
received by such Grantor (duly indorsed by such 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 Senior Secured Credit Agreement Administrative Agent) in
connection with this Agreement, the Guarantee and Collateral Agreement,
the Senior Secured 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, in
its capacity as Senior Secured
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Credit Agreement Administrative Agent) of any right or remedy under this
Agreement, the Senior Secured 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 such 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 such
Grantor shall supply to the Administrative Agent or its designee such Grantor's
know-how and expertise relating to the Collateral subject to such disposition,
and such 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 such 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
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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 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 Senior Secured
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.
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18
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.
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 subsection 8.5 of the Senior Secured 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 subsection 11.2 of
the Senior Secured 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 Senior Secured 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 such Grantor, the Administrative
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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 such
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
Grantor following any such termination, the Administrative Agent shall reassign
(at the sole cost and expense of such Grantor) to such Grantor any Collateral
held by the Administrative Agent hereunder, and execute and deliver (at the sole
cost and expense of such Grantor) to such Grantor such documents as such Grantor
shall reasonably request to evidence such termination and reassignment.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Grantor in a transaction permitted by the Senior Secured
Credit Agreement, then the Administrative Agent shall execute and deliver to the
Grantor (at the sole cost and expense of such Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
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
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20
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 Senior Secured Credit Agreement, the terms
of the Senior Secured 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 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.
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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.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
EV INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. VANDEN BEUKEL
------------------------------
Title: Vice President and Secretary
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
-------------------------
Title: Vice President
Attorney-in-Fact
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of February, 1997, before me personally came
▇▇▇▇▇▇▇▇▇ ▇. Vanden Beukel to me known, who, being by me duly sworn, did depose
and say he resides at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
that she is the VP, Secretary and Treasurer of EV 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 signed said instrument on behalf of said corporation pursuant to said
authority.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Notary Public
[Notarial Seal] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires June 3, 1998
24
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of February, 1997, before me personally came
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say he
resides at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and that he is a Vice
President of THE CHASE MANHATTAN BANK, the national banking association
described in and which executed the above instrument; that he has been
authorized to execute said instrument on behalf of said association; and that he
has signed said instrument on behalf of said association pursuant to said
authority.
/s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
---------------------------------
Notary Public
[Notarial Seal] ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires April 17, 1997
25
Schedule I
TRADEMARKS AND TRADEMARK LICENSES
26
Schedule II
PATENTS AND PATENT LICENSES
27
Schedule III
EXISTING SECURITY INTERESTS