EXHIBIT 10.32
PATENT ASSIGNMENT - KLEARFOLD
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This Patent Assignment (as the same may be restated, amended or modified
from time to time, this "Assignment") is dated as of March 12, 1998 by and
between KLEARFOLD, INC. (the "Assignor") and BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as agent (the "Agent") for the Secured Creditors (as
defined below). Unless otherwise defined in Section 1, terms defined in the
Credit Agreement (as defined below) are used herein as therein defined.
R E C I T A L S:
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A. Pursuant to the Credit Agreement, dated as of even date herewith,
among IMPAC Group, Inc. (the "Company"), the Assignor, AGI Incorporated
(("AGI"), and together with Assignor, each a "L/C Borrower" and collectively,
the "L/C Borrowers"), the financial institutions from time to time party thereto
(the "Lenders") and the Agent (as from time to time restated, amended or
modified, the "Credit Agreement"), the Lenders have agreed to extend certain
credit to the Company and the L/C Borrowers;
B. Pursuant to the Guaranty, dated as of even date herewith (as from time
to time amended or modified, the "Guaranty"), each L/C Borrower, including the
Assignor, has jointly and severally guaranteed to the Secured Creditors the
payment when due of all obligations and liabilities of the Company under or with
respect to the Secured Debt Agreements (as defined below) to which the Company
is a party;
C. The Assignor may from time to time be party to one or more Swap
Contracts relating to the Revolving Loans (each such Swap Contract with a Swap
Creditor (as defined below), a "Secured Swap Contract") with Bank of America
National Trust & Savings Association ("BofA"), in its individual capacity, any
Lender or syndicate of financial institutions organized by BofA, or an affiliate
of BofA, or any Lender (even if BofA or any such Lender ceases to be a Lender
under the Credit Agreement for any reason) and any institution that participates
in, and in each case their subsequent assigns, such Secured Swap Contract
(collectively, the "Swap Creditors");
D. The Assignor may from time to time incur Indebtedness pursuant to
Section 8.05(i) of the Credit Agreement as an account party to one or more
letters of credit (a "Section 8.05 L/C Obligation") (each such Section 8.05 L/C
Obligation with a L/C Creditor (as defined below), a "Secured Letter of Credit")
issued by BofA or a Lender, in each case in its individual capacity (even if
BofA or such Lender ceases to be a Lender under the Credit Agreement for any
reason) and any institution that participates in, and in each case their
subsequent assigns, such Secured Letter of Credit (collectively, the "L/C
Creditors");
E. As a condition to entering into a Secured Debt Agreement and extending
credit under such Secured Debt Agreement, the Secured Creditors have required
that the Assignors grant to the Agent, for the ratable benefit of itself and the
Secured Creditors, a security interest in the Collateral (as defined below) on
the terms and conditions set forth below; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS AND EFFECT.
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1.1. General Terms. The following shall have (unless otherwise provided
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elsewhere in this Assignment) the following respective meanings (such meanings
being equally applicable to both the singular and plural form of the terms
defined):
"Agent" has the meaning ascribed to it in the Preamble.
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"Assignment" has the meaning ascribed to it in the Preamble.
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"Assignor" has the meaning ascribed to it in the Preamble.
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"BofA" has the meaning ascribed to it in the Recitals.
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"Collateral" has the meaning ascribed to it in Section 2.
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"Company" has the meaning ascribed to it in the Recitals.
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"Credit Agreement" has the meaning ascribed to it in the Recitals.
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"Event of Default" means any Event of Default under, and as defined in, the
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Credit Agreement, or any payment default, after any applicable grace period,
under any Secured Debt Agreement.
"Guaranty" has the meaning ascribed to it in the Recitals.
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"L/C Creditor" has the meaning ascribed to it in the Recitals.
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"Lenders" has the meaning ascribed to it in the Recitals.
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"Licenses" has the meaning ascribed to it in Section 2.
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"Patents" has the meaning ascribed to it in Section 2.
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"Related Documents" means, collectively, all documents and things in the
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Assignor's possession related to the production and sale by the Assignor, or any
Affiliate, Subsidiary, licensee
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or subcontractor thereof, of products or services sold by or under the authority
of the Assignor in connection with the Patents or Licenses.
"Section" means a numbered section of this Assignment, unless another
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document is specifically referenced.
"Secured Creditors" means, collectively, the Agent, each Lender, each L/C
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Creditor and each Swap Creditor.
"Secured Debt Agreements" means, collectively, the Credit Agreement and the
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other Loan Documents, each Secured Letter of Credit and each Secured Swap
Contract.
"Secured Letter of Credit" has the meaning ascribed to it in the Recitals.
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"Secured Obligations" means, collectively, (i) all "Obligations" as defined
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in the Credit Agreement, (ii) all "Obligations" as defined in the Guaranty,
(iii) the payment when due of all obligations of the Assignor to Swap Creditors
pursuant to any Secured Swap Contract and the due performance and compliance
with all the terms of the Secured Swap Contracts by the Assignor and (iv) the
payment when due of all obligations of the Assignor to L/C Creditors pursuant to
any Secured Letter of Credit and the due performance and compliance with all the
terms of the Secured Letter of Credit by the Assignor.
"Secured Swap Contract" has the meaning ascribed to it in the Recitals.
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"Security Agreement" means the Security Agreement, dated as of even date
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herewith, among the L/C Borrowers, including the Assignor, and the Agent, as the
same may be restated, amended or modified from time to time.
"Swap Creditor" has the meaning ascribed to it in the Recitals.
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2. GRANT OF SECURITY INTEREST.
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The Assignor hereby grants to the Agent, for the benefit of itself and the
Secured Creditors, a security interest in all of the Assignor's right, title and
interest in and to all of its now owned or existing and hereafter acquired or
arising property described as follows (collectively, the "Collateral") to secure
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the complete and timely payment, performance and satisfaction of the Secured
Obligations:
(a) all United States and foreign patents and patent applications,
whether in the United States or any foreign jurisdiction, and the
inventions and improvements described and claimed therein and trade secrets
and know-how related thereto, including, without limitation, the patents
and patent applications listed on Exhibit A hereto, and the re-issues,
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divisions, renewals, extensions and continuations-in-part thereof and all
income, royalties, damages and payments now and hereafter due and/or
payable thereunder and with respect thereto, including, without limitation,
damages and payments for past and future
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infringements thereof, the right to ▇▇▇ for past, present and future
infringements thereof and all rights corresponding thereto throughout the
world (all of the foregoing being sometimes hereinafter individually and/or
collectively referred to as the "Patents");
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(b) to the extent permitted by the relevant agreement but subject to
Section 9-318 of the Illinois Uniform Commercial Code, all rights under or
interest in any patent license agreements with any other party, whether the
Assignor is a licensee or licensor under any such license agreement,
including, without limitation, those patent license agreements listed on
Exhibit B attached hereto and made a part hereof, and the right to prepare
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for sale and sell any and all inventory now or hereafter owned by the
Assignor and now or hereafter covered by such licenses (all of the
foregoing are hereinafter referred to collectively as the "Licenses");
(c) the Related Documents; and
(d) all proceeds, including, without limitation, insurance proceeds,
of any of the foregoing.
3. REPRESENTATIONS AND WARRANTIES.
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The Assignor represents and warrants to the Agent and the Secured Creditors
that:
3.1. Principal Location. As of the date hereof, the Assignor's mailing
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address, and the location of its chief executive office and the books and
records relating to the Collateral are disclosed in Exhibit C hereto.
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3.2. No Other Names. The Assignor has not conducted business under any
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name except the names in which it has executed this Assignment or as otherwise
disclosed pursuant to the Loan Documents.
3.3. Registrations. The Assignor has duly and properly applied for
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registration of the Patents listed in Exhibit A hereto as indicated thereon in
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the United States Patent and Trademark Office.
3.4. Complete Listing. The Patents and Licenses set forth on the
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Schedules hereto constitute, as of the date hereof, all Patents and Licenses of
the Assignor.
4. COVENANTS.
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From the date of this Assignment, and thereafter until this Assignment is
terminated:
4.1. Preservation of Value. The Assignor agrees to protect and preserve
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the value and integrity of all material Patents and Licenses and, to that end,
shall maintain the quality of any and all of its products or services bearing
the trademarks or service marks included in such Patents or
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Licenses consistent with the quality of such products and services of such marks
as of the date of this Assignment, in each case to the extent necessary for the
operation of its business.
4.2. Collateral Royalties; Term. The Assignor hereby agrees that any use
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by the Agent, on behalf of itself and the Secured Creditors, during the
continuance of an Event of Default of any Patents and Licenses as described
above shall be worldwide, to the extent possessed by the Assignor, and without
any liability for royalties or other related charges from the Agent or any
Secured Creditor to the Assignor. The term of the assignments and grants of
security interests granted herein shall extend until the expiration of each of
the respective Patents and Licenses assigned or pledged hereunder, or until the
Secured Obligations have been indefeasibly paid in full, no commitment by the
Agent or any Secured Creditor exists that could give rise to any Secured
Obligations and the Secured Debt Agreements and this Assignment have been
terminated.
4.3. Duties of Assignor. The Assignor shall have the duty (a) to prosecute
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diligently any application to register the Patents pending as of the date hereof
or thereafter until all Secured Obligations have been indefeasibly paid in full,
(b) to make application on unpatented but patentable inventions, as appropriate
or as requested by the Agent, except where failure to do so would have a
Material Adverse Effect, and (c) to preserve and maintain all rights in all
applications to register Patents, except where failure to do so would have a
Material Adverse Effect. Any expenses incurred in connection with such
applications shall be borne by each Assignor. The Assignor shall not abandon any
right to file an application to register material Patents without the prior
written consent of the Agent.
4.4. Delivery of Certificates. The Assignor shall deliver to the Agent
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copies of all existing and future official Certificates of Registration for the
Patents.
4.5. Notice of Proceedings. The Assignor shall promptly notify the Agent
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of the institution of, and any adverse determination in, any proceeding in the
United States Patent and Trademark Office or any agency of any state or any
court regarding the Assignor's right, title and interest in any material Patent
or the Assignor's right to register any material Patent.
5. WAIVERS, AMENDMENTS AND REMEDIES.
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5.1. Remedies. In the event that an Event of Default has occurred and is
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continuing, the Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon the Assignor or any other person
(all and each of which demands, advertisements and/or notices are hereby
expressly waived), may, and upon the direction of the Secured Creditors shall,
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or forthwith sell, assign, give option or options to purchase,
contract to sell or otherwise dispose of and deliver said Collateral, or any
part thereof, in one or more portions at public or private sale or sales or
dispositions, at any exchange, broker's board or at any of the Agent's offices
or elsewhere upon such terms and conditions as the Agent may deem advisable and
at such prices as the Agent may deem best, for any combination of cash or on
credit or for future delivery without assumption of any credit risk, with
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the right to the Agent or any Secured Creditor upon any such sale or sales or
dispositions, public or private, to purchase the whole or any part of said
Collateral so sold, free of any right or equity of redemption in such Assignor,
which right or equity is hereby expressly waived and released.
5.2. Waivers and Amendments. No delay or omission of the Agent or any
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Secured Creditor to exercise any right or remedy granted under this Assignment
shall impair such right or remedy or be construed to be a waiver of any Default
or Event of Default or an acquiescence therein, and any single or partial
exercise of any such right or remedy shall not preclude other or further
exercise thereof or the exercise of any other right or remedy, and no waiver,
amendment or other variation of the terms, conditions or provisions of this
Assignment whatsoever shall be valid unless in writing signed by the Agent and
consented to by the Secured Creditors, and then only to the extent specifically
set forth in such writing.
6. PROCEEDS.
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6.1. Special Collateral Account. After an Event of Default has occurred
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and is continuing, all cash proceeds of the Collateral received by the Agent
shall be deposited in a special deposit account with the Agent and held there as
security for the Secured Obligations. The Agent shall invest any and all
available funds deposited in such special deposit account, within five (5)
business days after the date the relevant funds become available, in securities
issued as fully guaranteed or insured by the United States Government or any
agency thereof backed by the full faith and credit of the United States having
maturities of three (3) months from the date of acquisition thereof
(collectively, "Government Obligations"). The Assignor hereby acknowledges and
agrees that the Agent shall not have any liability with respect to, and the
Assignor hereby indemnifies the Agent against, any loss resulting from the
acquisition of the Government Obligation and the Agent shall not have any
obligation to monitor the trading activity of any such Governmental Obligations
on and after the acquisition thereof for the purpose of obtaining the highest
possible return with respect thereto, the Agent's responsibility being limited
to acquiring such Governmental Obligations.
6.2. Application of Proceeds. The proceeds of the Collateral shall be
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applied by the Agent to payment of the Secured Obligations in accordance with
Section 9 of the Security Agreement.
7. GENERAL PROVISIONS.
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7.1. Notice of Disposition of Collateral. Written notice of the time and
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place of any public sale or the time after which any private sale or other
disposition of all or any part of the Collateral shall be made ten (10) days
prior to such disposition. Any notice made shall be deemed reasonable if made
to the Assignor, addressed as set forth in Section 9 hereof, at least ten (10)
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days prior to any such public sale or the time after which any such private sale
or other disposition may be made.
7.2. Agent Performance of Assignor Obligations. Without having any
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obligation to do so, upon either (a) notice to the Assignor or (b) the
occurrence and continuation of a Default or an Event of Default, the Agent may
perform or pay any obligation which an Assignor has agreed to
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perform or pay in this Assignment and such Assignor shall reimburse the Agent
for any amounts paid by the Agent pursuant to this Section 7.2. The Assignor's
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obligation to reimburse the Agent pursuant to the preceding sentence shall be a
Secured Obligation payable on demand.
7.3. Authorization for Agent to Take Certain Action. The Assignor
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irrevocably authorizes the Agent at any time and from time to time, in the sole
discretion of the Agent, upon either (a) notice to the Assignor or (b) the
occurrence and continuation of an Event of Default: (i) to execute on behalf of
the Assignor as debtor and to file financing statements and other documents with
the United States Patent and Trademark Office or otherwise which are necessary
or desirable in the Agent's sole discretion to perfect and to maintain the
perfection and priority of the Agent's and Secured Creditors' security interest
in the Collateral; (ii) so long as an Event of Default shall have occurred and
is continuing, to endorse and collect any cash proceeds of the Collateral; or
(iii) to file a carbon, photographic or other reproduction of this Assignment or
any financing statement with respect to the Collateral as a financing statement
in such offices as the Agent in its sole discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the Agent's and the
Secured Creditors' security interest in the Collateral. At any time and from
time to time after the Secured Obligations have been declared or become due and
payable in accordance with the Secured Debt Agreements, the Assignor authorizes
the Agent to collect, endorse and apply the proceeds of any Collateral received
by the Agent to the Secured Obligations as provided in Section 6 hereof.
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7.4. Specific Performance of Certain Covenants. The Assignor acknowledges
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and agrees that a breach of any of the covenants contained in Sections 4.4 and
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7.5 hereof will cause irreparable injury to the Agent and the Secured Creditors
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and that the Agent and the Secured Creditors have no adequate remedy at law in
respect of such breaches and therefore agree, without limiting the right of the
Agent or the Secured Creditors to seek and obtain specific performance of other
obligations of such Assignor contained in this Assignment, that the covenants of
the Assignor contained in the Sections referred to in this Section 7.4 shall be
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specifically enforceable against the Assignor.
7.5. Dispositions Not Authorized. Except as provided for by the Credit
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Agreement, the Assignor is not authorized to sell or otherwise dispose of the
Collateral and notwithstanding any course of dealing between the Assignor and
the Agent or other conduct of the Agent, no authorization to sell or otherwise
dispose of the Collateral in a manner prohibited by the Credit Agreement shall
be binding upon the Agent or the Secured Creditors unless such authorization is
in writing signed by the Agent with the consent of the Secured Creditors, as
required by the Secured Debt Agreements.
7.6. Definition of Certain Terms. Terms defined in the Illinois Uniform
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Commercial Code which are not otherwise defined in this Assignment are used in
this Assignment as defined in the Illinois Uniform Commercial Code as in effect
on the date hereof.
7.7. Benefit of Agreement. The terms and provisions of this Assignment
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shall be binding upon and inure to the benefit of the Assignor, the Agent and
the Secured Creditors and their respective successors and assigns, except that
the Assignor shall have not the right to assign its rights
-7-
or obligations under this Assignment or any interest herein, without the prior
written consent of the Agent and the Secured Creditors.
7.8. Survival of Representations. All representations and warranties of
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the Assignor contained in this Assignment shall survive the execution and
delivery of this Assignment.
7.9. Taxes and Expenses. Any taxes (including, without limitation, any
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sales, gross receipts, general corporation, personal property, privilege or
license taxes, but not including any federal or other taxes imposed upon the
Agent or any Secured Creditor, with respect to its gross or net income or
profits arising out of this Assignment) payable or ruled payable by any Federal
or State authority in respect of this Assignment shall be paid by the respective
Assignor, together with interest and penalties, if any. The Assignor shall
reimburse (a) the Agent for any and all reasonable out-of-pocket expenses and
internal charges (including reasonable attorneys', auditors' and accountants'
fees and reasonable time charges of attorneys, paralegals, auditors and
accountants who may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, execution, delivery, administration, collection
and enforcement of this Assignment and in the administration, collection,
preservation or sale of the Collateral (including the reasonable expenses and
charges associated with any periodic or special audit of the Collateral), and
(b) the Agent and each Secured Creditor for any and all reasonable out-of-pocket
expenses and internal charges (including reasonable attorneys', auditors' and
accountants' fees and reasonable time charges of attorneys, paralegals, auditors
and accountants who may be employees of the Agent or such Secured Creditor) paid
or incurred by the Agent or such Secured Creditor in connection with the
collection and enforcement of this Assignment.
7.10. Headings. The title of and section headings in this Assignment are
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for convenience of reference only, and shall not govern the interpretation of
any of the terms and provisions of this Assignment.
7.11. Termination. This Assignment shall continue in effect
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(notwithstanding the fact that from time to time there may be no Secured
Obligations or commitments therefor outstanding) until the payment in full of
the Secured Obligations and the termination of the Secured Debt Agreements in
accordance with its terms thereunder, at which time the security interests
granted hereby shall terminate and any and all rights to the Collateral shall
revert to the Assignor. Upon such termination, the Agent shall promptly return
to the Assignor, at the Assignor's expense, such of the Collateral held by the
Agent as shall not have been sold or otherwise applied pursuant to the terms
hereof. The Agent will promptly execute and deliver to the Assignor such other
documents as the Assignor shall reasonably request to evidence such termination.
7.12. Entire Agreement. This Assignment and the Secured Debt Agreements
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embody the entire agreement and understanding between the Assignor and the Agent
relating to the Collateral and supersede all prior agreements and understandings
between the Assignor and the Agent relating to the Collateral.
7.13. Indemnity. The Assignor hereby agrees to assume liability for, and
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does hereby agree to indemnify and keep harmless the Agent and each Secured
Creditor, its successors, assigns, agents
-8-
and employees, from and against any and all liabilities, damages, penalties,
suits, costs, and expenses of any kind and nature, imposed on, incurred by or
asserted against the Agent or any Secured Creditor, or its successors, assigns,
agents and employees, in any way relating to or arising out of this Assignment,
or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition, sale, return or other disposition of any
Collateral (other than liability resulting from the gross negligence or wilful
misconduct of the Agent or any such Secured Creditor).
7.14. Releases. Upon termination of this Assignment in accordance with
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the provisions of Section 7.11 hereof, the Agent and the Secured Creditors
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shall, at the Assignor's request and expense, execute such releases as the
Assignor may reasonably request, in form and upon terms acceptable to the Agent
and the Secured Creditors in all respects.
7.15. Waivers. Except to the extent expressly otherwise provided herein
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or in any Secured Debt Agreement, the Assignor waives, to the extent permitted
by applicable law, (a) any right to require either the Agent or any Secured
Creditor to proceed against any other person, to exhaust its rights in any other
collateral, or to pursue any other right which either the Agent or any Secured
Creditor may have, and (b) with respect to the Secured Obligations, presentment
and demand for payment, protest, notice of protest and non-payment, and notice
of the intention to accelerate.
7.16. Counterparts. This Assignment may be executed in any number of
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counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Assignment by signing any such
counterpart. This Assignment shall be effective when it has been executed by
the Assignor and the Agent.
7.17. CHOICE OF LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE
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WITH THE INTERNAL LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS AND PATENTS.
7.18. WAIVER OF JURY TRIAL. ALL PARTIES HERETO HEREBY WAIVE TRIAL BY JURY
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IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUDNING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
7.19 Marshalling. Neither the Agent nor any Secured Creditor shall be
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under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of either Assignor or any
other party or against or in payment of any or all of the Secured Obligations.
8. THE AGENT.
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BofA has been appointed as Agent for the Secured Creditors hereunder, and
the Agent has agreed to act (and any successor Agent shall act) as such
hereunder only on the express conditions contained in Article X of the Credit
Agreement. Any successor Agent appointed pursuant to Article
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X of the Credit Agreement shall be entitled to all the rights, interests and
benefits of the Agent hereunder.
9. NOTICES.
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9.1. Sending Notices. Any notice required or permitted to be given under
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this Assignment shall be given (i) in the case of the Assignor, the Agent and
each Lender, in accordance the Credit Agreement, (ii) in the case of a L/C
Creditor, in accordance with the relevant Secured Letter of Credit and (iii) in
the case of a Swap Creditor, in accordance with the relevant Secured Swap
Contract.
9.2. Change in Address for Notices. The Assignor, the Agent or any
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Secured Creditor may change the address for service of notice upon it by a
notice in writing to the other.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed by their duly authorized representatives as of the date first set
forth above.
KLEARFOLD, INC.,
as Assignor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION, as Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
The foregoing Patent Assignment was executed and acknowledged before me
this 12 day of March, 1998 by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, personally known to me to be the
CFO, Treasurer + Secretary of KLEARFOLD, INC., a Pennsylvania corporation, on
behalf of such corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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NOTARY PUBLIC
My Commission Expires: August 31, 1998
(SEAL)
EXHIBIT A
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PATENTS
Patent or Filing Date/ Name of
Application No. Issue Date Invention Inventor Expiry Date
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None
EXHIBIT B
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LICENSES
Date Parties Subject of License Term
---- ------- ------------------ ----
None
EXHIBIT C
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Principal Place of Business and Mailing Address:
Klearfold, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇