Execution Copy
COPYRIGHT, PATENT, TRADEMARK AND LICENSE MORTGAGE
THIS COPYRIGHT, PATENT, TRADEMARK AND LICENSE MORTGAGE (as amended,
modified or supplemented from time to time, this "Mortgage") made as of April
12, by KINETEK, INC., a Delaware corporation, having an office at ArborLake
Centre, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Mortgagor") in favor of U.S. BANK NATIONAL ASSOCIATION, as Trustee under
that certain Indenture identified below, a national banking association with
an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Mortgagee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof Kinetek Industries, Inc. ("Kinetek"), has
issued (i) those certain 5% Senior Secured Notes due 2007, in the original
principal amount of $15,000,000 and (ii) those certain 10% Senior Secured
Notes due 2007, in the original principal amount of $11,000,000 (collectively,
the "Notes" and each, a "Note") pursuant to the terms of those two certain
Indentures dated as of even date herewith by and among U.S. Bank National
Association, as Trustee (the "Trustee"), and Kinetek Industries, Inc. as
Issuer (the "Issuer") and the Guarantors identified below (as amended,
modified or supplemented from time to time, the "Indentures");
WHEREAS, Advanced D.C. Motors, Inc., a New York corporation, Electrical
Design and Control Company, a Delaware corporation, The Imperial Electric
Corporation, a Delaware corporation, ▇▇▇▇▇▇-▇▇▇▇▇ Industries, Inc., an
Illinois corporation, Motion Control Engineering, Inc., a California
corporation, Gear Research, Inc., a Delaware corporation, Kinetek, Inc., a
Delaware corporation, Motion Holdings, Inc., a Delaware corporation, Advanced
D.C. Holdings, a Delaware corporation, and FIR Group Holdings, Inc., a
Delaware corporation (collectively, the "Guarantors") have each guaranteed
payment and performance of the Indenture and the Notes pursuant to certain
guarantees contained in the Indenture (collectively, the "Guarantees"); and
WHEREAS, Pursuant to a Security Agreement (as amended, modified or
supplemented from time to time, the "Security Agreement") dated as of the date
hereof, the Issuer has secured its obligations under the Indenture and the
Notes, and pursuant to other security agreements (collectively, the "Guarantor
Security Agreements"), the Guarantors have secured their obligations under the
Guarantees, and the other obligations identified in the Security Agreement, by
liens and security interests granted therein, that in each case are
subordinate to the liens and security interests in favor of Senior Agent and
Senior Lenders under the Senior Loan Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, ▇▇▇▇▇▇▇▇▇ agrees as follows:
1. Incorporation of Indenture and Security Agreement. The Security
Agreement and Other Agreements and the terms and provisions thereof are hereby
incorporated herein in their entirety by this reference. All terms capitalized
but not otherwise defined herein shall have the same meanings herein as in the
Indentures or the Security Agreement.
2. Mortgage of Copyrights, Patents, Trademarks and Licenses. To secure
the complete and timely payment and satisfaction of all of the "Obligations"
(as defined in the Guarantor Security Agreement executed by Mortgagor),
Mortgagor hereby grants to Mortgagee for its own benefit and the benefit of
Holders, and hereby reaffirms its prior grant pursuant to the Guarantor
Security Agreement executed by Mortgagor of, a continuing security interest in
all of its now existing and hereafter created or acquired assets, interests
and property ("Collateral") consisting of:
(i) copyrights, rights and interests in copyrights, works
protectable by copyrights, copyright registrations and copyright
applications, including, without limitation, the copyright registrations
and applications listed on Exhibit A attached hereto and hereby made a
part hereof, and all renewals, extensions and continuations of any of the
foregoing, all income, royalties, damages and payments now and hereafter
due and/or payable under or with respect to any of the foregoing,
including, without limitation, damages and payments for past, present or
future infringements of any of the foregoing and the right to sue for
past, present and future infringements of any of the foregoing (all of
the foregoing are sometimes hereinafter individually and/or collectively
referred to as the "Copyrights");
(ii) patents and patent applications, including, without limitation,
the inventions and improvements described and claimed therein, all
patentable inventions and those patents and patent applications listed on
Exhibit B attached hereto and made a part hereof, and all reissues,
divisions, continuations, renewals, extensions and continuations-in-part
of any of the foregoing, and all income, royalties, damages and payments
now and hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for past,
present or future infringements of any of the foregoing and the right to
sue for past, present and future infringements of any of the foregoing
(all of the foregoing are sometimes hereinafter individually and/or
collectively referred to as the "Patents");
(iii) trademarks, trademark registrations, trademark applications,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, other business identifiers,
prints and labels on which any of the foregoing have appeared or appear,
all registrations and recordings thereof, and all applications in
connection therewith (other than "intent to use" applications until a
verified statement of use is filed with respect to such applications),
including, without limitation, the trademarks, trade names, service
marks, registrations and applications listed on Exhibit C attached hereto
and hereby made a part hereof, and all renewals, extensions and
continuations of any of the foregoing, and all income, royalties, damages
and payments now and hereafter due and/or payable under or with respect
to any of the foregoing, including, without limitation, damages and
payments for past, present or future infringements of any of the
foregoing and the right to sue for past, present and future infringements
of any of the foregoing (all of the foregoing are sometimes hereinafter
individually and/or collectively referred to as the "Trademarks");
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(iv) all license agreements between Mortgagor and any other party
with respect to any of the Copyrights or any of the Patents or any of the
Trademarks or any other copyright, patent, trademark, service mark or any
registration or application for registration or any other trade name or
tradestyle, whether Mortgagor is a licensor or licensee under any such
license agreement, including, without limitation, the licenses listed on
Exhibit D attached hereto and hereby made a part hereof, other than
license agreements which, according to their terms, may not be assigned
without the prior consent of the other Person party thereto (unless such
consent has been obtained) (all of the foregoing license agreements and
Mortgagor's rights thereunder are referred to collectively as the
"Licenses"); and
(v) all rights corresponding to any of the foregoing throughout the
world and the goodwill of ▇▇▇▇▇▇▇▇▇'s business connected with and
symbolized by the Trademarks.
Subject to the terms of the Intercreditor Agreement, upon the occurrence
of an Event of Default (as such term is defined in either Indenture),
Mortgagee, on behalf of itself and Holders, but subject to the next following
paragraph, shall have the power, to the extent permitted by law, to exercise
the rights and remedies of a secured party provided under the Security
Agreement and the Guarantor Security Agreement executed by ▇▇▇▇▇▇▇▇▇,
including without limitation the right to sell the Copyrights, Patents,
Trademarks and Licenses.
Notwithstanding any other provision contained herein, the security
interest granted by the Mortgagor to the Mortgagee, and any other rights of
Mortgagee with respect to the Collateral described herein, pursuant to this
Mortgage, to secure the Obligations shall be (i) subordinate and junior in
priority to the Liens granted to the Senior Agent and the Senior Lenders
pursuant to the Senior Loan Agreement or any other Senior Security Documents
(the "Senior Lender Liens"), and (ii) subject to the terms and conditions of
the Intercreditor Agreement. Any provisions contained herein that purport to
give the Mortgagee the right to exercise its judgment, the right to be
satisfied or other similar rights or decision making abilities shall only be
operative after such time as all indebtedness under the Senior Loan Agreement
has been fully and indefeasibly paid in cash and satisfied and all lending
commitments under the Senior Loan Agreement have been terminated. In addition,
the Mortgagor and the Mortgagee acknowledge and agree that, to the extent that
any provision hereunder imposes an obligation upon the Mortgagor that the
Mortgagor is unable to satisfy due to the satisfaction of its obligations
under the Senior Loan Agreement and the Senior Security Documents, such
provision shall not become operative until all indebtedness under the Senior
Loan Agreement has been fully and indefeasibly paid in cash and satisfied and
all lending commitments under the Senior Loan Agreement have been terminated.
3. Warranties, Representations and Covenants. For purposes of this
Mortgage, (a) the Copyrights listed on Exhibit A hereto, any other registered
Copyrights and any other Copyrights material to Mortgagor's business are
collectively referred to as the "Material Copyrights", (b) the Patents listed
on Exhibit B hereto, any other registered Patents and any other Patents
material to Mortgagor's business are collectively referred to as the "Material
Patents", (c) the Trademarks listed on Exhibit C hereto, any other registered
Trademarks and any other Trademarks material to ▇▇▇▇▇▇▇▇▇'s business are
collectively referred to as the "Material Trademarks") and (d) the Licenses
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listed on Exhibit D hereto and any other Licenses material to ▇▇▇▇▇▇▇▇▇'s
business are collectively referred to as the "Material Licenses". Mortgagor
warrants and represents to Mortgagee that:
(i) No Material Copyright, Material Patent, Material Trademark or
Material License has been adjudged invalid or unenforceable or, has been
cancelled, in whole or in part;
(ii) Each Material Copyright, Material Patent, Material Trademark
and Material License is valid and enforceable;
(iii) Mortgagor is the sole and exclusive owner of the entire
unencumbered right, title and interest in and to each Material Copyright,
Material Patent, Material Trademark and Material License, free and clear
of any liens, charges and encumbrances, including, without limitation,
licenses, shoprights and covenants by Mortgagor not to sue third parties,
other than the Senior Lender Liens;
(iv) Mortgagor has no notice of any suits or actions commenced or
threatened in writing with respect to any of the Material Copyrights,
Material Patents, Material Trademarks or Material Licenses;
(v) ▇▇▇▇▇▇▇▇▇ has the unqualified right to execute and deliver this
Mortgage and perform its terms;
(vi) No Material License restricts the ability of ▇▇▇▇▇▇▇▇▇ to
pledge, mortgage and assign such Material License as contemplated by this
Mortgage, except as disclosed on Schedule 1 hereto;
(vii) Mortgagor has no notice of any infringement or unauthorized
use presently being made of any of the Material Copyrights, Material
Patents, Material Trademarks or Material Licenses which would reasonably
be expected to materially adversely affect the fair market value of the
Material Copyrights, Material Patents, Material Trademarks or Material
Licenses or the benefits to Mortgagee of this Mortgage, including,
without limitation, the priority or perfection of the security interest
granted herein or the remedies of Mortgagee hereunder, other than the
Senior ▇▇▇▇▇▇ ▇▇▇▇▇; and
(viii) Mortgagor has no notice of any suits or actions commenced or
threatened in writing with respect to any Material Copyright, Material
Patent, Material Trademark or Material License.
4. Restrictions on Future Agreements. Mortgagor agrees that until the
Mortgagor's Obligations (as that term is defined in the Guarantor Security
Agreement executed by Mortgagor) shall have been satisfied in full and the
Indentures and Guarantor Security Agreement executed by Mortgagor shall have
been terminated (the "Indenture and Security Agreement Termination"),
Mortgagor shall not, without the prior written consent of Mortgagee, sell or
assign its interest in, or grant any license under, any Material Copyright,
Material Patent, Material Trademark or Material License, or enter into any
other agreement with respect to any Material Copyright, Material Patent,
Material Trademark or Material License which is inconsistent with the
obligations under this Mortgage. ▇▇▇▇▇▇▇▇▇ further agrees that it shall not
take any action, or permit any action to be taken by others subject to its
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control, including licensees, or fail to take any action, which would
adversely affect the validity or enforcement of the rights transferred to
Mortgagee under this Mortgage.
5. New Copyrights, Patents, Trademarks and Licenses. Mortgagor represents
and warrants to Mortgagee that the Copyrights, Patents, Trademarks and
Licenses listed on Exhibits A, B, C and D, respectively, constitute all of the
registered Copyrights, registered Patents and registered Trademarks now owned
by, and Licenses granted by or to, Mortgagor. If, before the Indenture and
Security Agreement Termination, Mortgagor shall (i) become aware of any
existing Copyrights, Patents, Trademarks or Licenses of which Mortgagor has
not previously informed Mortgagee; (ii) obtain rights to any new Copyrights,
patentable inventions, Patents, Trademarks or Licenses, or (iii) become
entitled to the benefit of any Copyrights, Patents, Trademarks or Licenses or
any improvement on any Patent, the provisions of this Mortgage above shall
automatically apply thereto. Mortgagor hereby authorizes Mortgagee to modify
this Mortgage by amending Exhibits A, B, C and D, as applicable, to include
any such (registered or unregistered) Copyrights, Patents, Trademarks and
Licenses.
6. Royalties; Term. The term of the security interests/mortgages granted
herein shall extend until the earlier of (i) the expiration of each of the
respective Copyrights, Patents, Trademarks and Licenses encumbered hereunder,
and (ii) the Indenture and Security Agreement Termination. Subject to the
terms of the Intercreditor Agreement and the last paragraph of Section 2
hereto, upon the occurrence of an Event of Default, ▇▇▇▇▇▇▇▇▇ agrees that the
use by Mortgagee of all Copyrights, Patents, Trademarks and Licenses shall be
worldwide and without any liability for royalties or other related charges
from Mortgagee to Mortgagor.
7. Release of Mortgage. This Mortgage is made for collateral purposes
only. Upon the Indenture and Security Agreement Termination, Mortgagee, at
Mortgagor's expense, shall take such actions as may be necessary or proper to
terminate and release its security interest in the Copyrights, Patents,
Trademarks, and Licenses created hereby and pursuant to the Security
Documents, subject to any disposition thereof which may have been made by
Mortgagee pursuant hereto or pursuant to the applicable Guarantor Security
Agreement.
8. Expenses. All expenses incurred in connection with the performance of
any of the agreements set forth herein shall be borne by ▇▇▇▇▇▇▇▇▇. All fees,
costs and expenses, of whatever kind or nature, including reasonable
attorneys' fees and legal expenses, incurred by Mortgagee in connection with
the filing or recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes,
maintenance fees, encumbrances or otherwise in protecting, maintaining or
preserving the Copyrights, Patents, Trademarks and Licenses, or in defending
or prosecuting any actions or proceedings arising out of or related to the
Copyrights, Patents, Trademarks and Licenses, shall be borne by and paid by
▇▇▇▇▇▇▇▇▇ on written demand by Mortgagee and until so paid shall be added to
the principal amount of the Issuer's Obligations and shall bear interest at
the then applicable rate as set forth in the Security Agreement.
9. Duties of Mortgagor. Mortgagor shall have the duty, in each case as
commercially reasonable (i) to file and prosecute diligently any copyright,
patent, trademark or service mark applications material to Mortgagor's business
and pending as of the date hereof or thereafter until the Indenture and Security
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Agreement Termination, (ii) to make application on uncopyrighted but
copyrightable works, on unpatented but patentable inventions and on trademarks
and service marks, as appropriate, material to Mortgagor's business, (iii) to
preserve and maintain all rights in the Material Copyrights, Material Patents,
Material Trademarks and Material Licenses and (iv) to ensure that the Material
Copyrights, Material Patents, Material Trademarks and Material Licenses are and
remain enforceable. Any expenses incurred in connection with ▇▇▇▇▇▇▇▇▇'s
obligations under this Section 9 shall be borne by Mortgagor. Mortgagor shall
not abandon any right to file an application with respect to a copyright,
patent, trademark or service mark that is material to Mortgagor's business, or
abandon any Material Copyright, Material Patent, Material Trademark or Material
License, without the written consent of Mortgagee. Subject to the terms of the
Intercreditor Agreement and the last paragraph of Section 2 hereof, if ▇▇▇▇▇▇▇▇▇
fails to comply with any of the foregoing duties, Mortgagee may perform said
duties in ▇▇▇▇▇▇▇▇▇'s name, to the extent permitted by law. ▇▇▇▇▇▇▇▇▇ agrees to
maintain the quality of any and all products in connection with which the
Material Trademarks are used, consistent with the quality of said products as of
the date hereof, except to the extent that the failure to perform any of the
following would not reasonably be expected to have a Material Adverse Effect.
Subject to the terms of the Intercreditor Agreement and the last paragraph of
Section 2 hereof, upon the occurrence and during the continuation of an Event of
Default, ▇▇▇▇▇▇▇▇▇ agrees that Mortgagee, or a conservator appointed by
Mortgagee, shall have the right to establish such additional product quality
controls as Mortgagee, or said conservator, in its sole judgment exercised in a
commercially reasonable manner, may deem necessary to assure maintenance of the
quality of products sold by ▇▇▇▇▇▇▇▇▇ under the Trademarks. Mortgagor shall
promptly, upon demand, reimburse and indemnify Mortgagee for all costs and
expenses of Mortgagee, including attorney's fees and expenses so incurred by
Mortgagee, in the exercise of its rights under this Section 9.
10. Mortgagee's Right to ▇▇▇. Subject to the terms of the Intercreditor
Agreement and the last paragraph of Section 2 hereof, after the occurrence
of an Event of Default, Mortgagee shall have the right, but shall in no way
be obligated, to bring suit in its own name to enforce the Copyrights,
Patents, Trademarks and Licenses, and, if Mortgagee shall commence any such
suit, Mortgagor shall, at the request of Mortgagee, do any and all lawful
acts and execute any and all proper documents required by Mortgagee in aid
of such enforcement and Mortgagor shall promptly, upon demand, reimburse
and indemnify Mortgagee for all costs and expenses incurred by Mortgagee,
including attorneys' fees and expenses so incurred by Mortgagee, in the
exercise of its rights under this Section 10 other than costs and expenses
incurred by Mortgagee as a result of its gross negligence or willful
misconduct.
11. Waivers. No course of dealing among Mortgagor, Mortgagee and the
Holders, nor any failure to exercise, nor any delay in exercising, on the part
of Mortgagee or Holders, any right, power or privilege hereunder or under the
Indentures or the Guarantor Security Agreement executed by the Mortgagor shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
12. Severability. The provisions of this Mortgage are severable, and if
any clause or provision shall be held invalid and unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall
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affect only such clause or provision, or part thereof, in such jurisdiction,
and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Mortgage in any
jurisdiction.
13. Modification. No amendment, modification or supplement or waiver of
any provision of this Mortgage nor consent to any departure by Mortgagee
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Mortgagee and the Mortgagor, and approved or consented to by the
Majority Holders and then such amendment, modification or supplement or waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment, modification,
supplement, waiver or consent shall be effective, unless in writing and signed
by each Holder, do any of the following: (1) amend any provision of this
Mortgage that requires the consent of all Holders or consent to or waive any
breach thereof, (2) amend the definition of the term "Majority Holders", (3)
amend this Section 13 or (4) release any substantial portion of the
Collateral. If a fee is to be paid by ▇▇▇▇▇▇▇▇▇ in connection with any waiver
or amendment hereunder, the agreement evidencing such amendment or waiver may
provide that only Holders executing such agreement by a specified date may
share in such fee (and in such case, such fee shall be divided among the
applicable Holders on a pro rata basis without including the interests of any
Holders who have not timely executed such agreement).
14. Cumulative Remedies; Power of Attorney; Effect on Loan Agreement. All
of Mortgagee's rights and remedies with respect to the Copyrights, Patents,
Trademarks and Licenses, whether established hereby or by the Security
Agreement or by the Guarantor Security Agreement executed by ▇▇▇▇▇▇▇▇▇, or by
any other agreements or by law shall be cumulative and may be exercised
singularly or concurrently. Subject to the terms of the Intercreditor
Agreement and the last paragraph of Section 2 hereof, upon the occurrence and
during the continuation of an Event of Default, Mortgagor hereby authorizes
Mortgagee to make, constitute and appoint any officer or agent of Mortgagee as
Mortgagee may select, in its sole discretion, as ▇▇▇▇▇▇▇▇▇'s true and lawful
attorney-in-fact, with power to (i) endorse Mortgagor's name on all
applications, documents, papers and instruments necessary or desirable for
Mortgagee in the use of any or all of the Copyrights, Patents, Trademarks and
Licenses, or (ii) take any other actions with respect to any or all of the
Copyrights, Patents, Trademarks and Licenses as Mortgagee deems to be in its
best interest, or (iii) grant or issue any exclusive or non-exclusive license
under any or all of the Copyrights, Patents, Trademarks or Licenses to any
Person, or (iv) assign, pledge, convey or otherwise transfer title in or
dispose of any or all of the Copyrights, Patents, Trademarks or Licenses to
any Person, or (v) take any other actions with respect to any or all of the
Copyrights, Patents, Trademarks and Licenses as Mortgagee deems to be in its
best interests. Mortgagor hereby ratifies all that such attorney-in-fact shall
lawfully do or cause to be done by virtue hereof. This power of attorney,
being coupled with an interest, shall be irrevocable until the Indenture and
Security Agreement Termination. ▇▇▇▇▇▇▇▇▇ acknowledges and agrees that this
Mortgage is not intended to limit or restrict in any way the rights and
remedies of Mortgagee or Holders or their respective successors transferees
and assigns under the Other Agreements but rather is intended to facilitate
the exercise of such rights and remedies. Mortgagee and such other parties
shall have, in addition to all other rights and remedies given it or them by
the terms of this Mortgage and the Other Agreements, all rights and remedies
allowed by law and the rights and remedies of a secured party under the
Uniform Commercial Code (or such other applicable law) as enacted in any
jurisdiction in which the Copyrights, Patents, Trademarks or Licenses may be
located.
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15. Binding Effect; Benefits. This Mortgage, shall be binding upon
Mortgagor and its respective successors and permitted assigns, and shall inure
to the benefit of Mortgagee and Holders, their successors, nominees and
assigns.
16. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
17. JURY TRIAL WAIVER. ▇▇▇▇▇▇▇▇▇ AND MORTGAGEE ▇▇▇▇▇▇ ▇▇▇▇▇, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY. ▇▇▇▇▇▇▇▇▇ FURTHER WAIVES ANY BOND OR SURETY
OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF
MORTGAGEE.
18. Headings. Paragraph headings used herein are for convenience only and
shall not modify the provisions which they precede.
19. Further Assurances. ▇▇▇▇▇▇▇▇▇ agrees to execute and deliver such
further agreements, instruments and documents, and to perform such further
acts, as Mortgagee shall request from time to time in order to carry out the
purpose of this Mortgage and agreements set forth herein.
20. Reinstatement. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by Trustee
in respect of the Mortgagor's Obligations (as that term is defined in the
Guarantor Security Agreement executed by the Mortgagor) is rescinded or must
otherwise be restored or returned by Trustee upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Mortgagor or upon the
appointment of any intervenor or conservator of, or trustee or similar
official for, Mortgagor or any substantial part of its assets; or otherwise,
all of though such payments had not been made.
21. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts taken together shall constitute but
one and the same instruments.
22. Notice. Except as otherwise provided herein, all notices, requests
and demands to or upon a party hereto, to be effective, shall be in writing,
return receipt requested, by personal delivery against receipt, by overnight
courier or by facsimile and, unless otherwise expressly provided herein, shall
be deemed to have been validly served, given, delivered or received
immediately when delivered against receipt, one Business Day after deposit
with an overnight courier or, in the case of facsimile notice, when sent,
addressed as set forth in the Indentures.
23. Consent. Whenever Trustee's, Majority Holders' or all Holders'
consent is required to be obtained under this Agreement, any of the Other
Agreements or any of the Security Documents as a condition to any action,
inaction, condition or event, except as otherwise specifically provided
herein, Trustee, Majority Holders or all Holders, as applicable, shall be
authorized to give or withhold such consent in their sole and absolute
discretion and to condition its consent upon the giving of additional
Collateral security for the Obligations, the payment of money or any other
matter.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇ has duly executed this Mortgage in favor of
Mortgagee as of the date first written above.
▇▇▇▇▇▇-▇▇▇▇▇ INDUSTRIES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Its Vice President
AGREED AND ACCEPTED THIS
12th day of April, 2002.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Its Vice President
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STATE OF )
-----------------------------------
) SS
COUNTY OF )
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The foregoing Copyright, Patent, Trademark and License Mortgage was
executed and acknowledged before me this ______ day of April, 2002 by
__________________________, personally known to me to be the
______________________ of Kinetek, Inc., a Delaware corporation, on behalf of
such corporation.
--------------------------------------
Notary Public
My Commission expires:
-------------------------------------
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STATE OF )
-----------------------------------
) SS
COUNTY OF )
----------------------------------
The foregoing Copyright, Patent, Trademark and License Mortgage was
executed and acknowledged before me this ) _____ day of April, 2002, by
________________________, personally known to me to be the
_________________________ U.S. Bank National Association, as Trustee, a
national banking association, on behalf of such association.
Notary Public
My Commission expires:
AFTER FILING RETURN THIS INSTRUMENT T0:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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KINETEK, INC.
EXHIBIT A
Copyrights
None
12
KINETEK, INC.
EXHIBIT B
Patents
None
13
KINETEK, INC.
EXHIBIT C
Trademarks
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TRADEMARKS & TRADENAMES
-------------------------------------------------------------------------
Trademark Reg. No. or Status
Serial No.
-------------------------------------------------------------------------
Kinetek, Inc. a. KINETEK (U.S.) S/N Pending
76/184,714
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b. KINETEK (U.S.) S/N Pending
76/184,711
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c. KINETEK (U.S.) S/N Pending
76/184,717
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d. KINETEK
TECHNOLOGY IN
MOTION (U.S.) S/N Pending
76/184,713
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e. KINETEK
TECHNOLOGY
IN MOTION (U.S.) S/N Pending
76/184,710
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f. KINETEK
TECHNOLOGY
IN MOTION (U.S.) S/N Pending
761184,716
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g. KINETEK
TECHNOLOGY
IN MOTION (U.S.) S/N Pending
(& DESIGN) 76/184,712
-------------------------------------------------------------------------
h. KINETEK
TECHNOLOGY
IN MOTION (U.S.) S/N Pending
(& DESIGN) 76/184,709
-------------------------------------------------------------------------
i. KINETEK
TECHNOLOGY
IN MOTION (U.S.) S/N Pending
(& DESIGN) 76/184,715
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14
KINETEK, INC.
EXHIBIT D
Licenses
FreeMarkets Access and Services Agreement between FreeMarkets, Inc. and
Kinetek, Inc., dated April 6, 2001.
15
KINETEK, INC.
SCHEDULE 1
Non-Assignable Licenses
FreeMarkets Access and Services Agreement between FreeMarkets, Inc. and
Kinetek, Inc., dated April 6, 2001. The agreement states that Kinetek may not
assign without prior written consent.
16
