Covenants and Agreements. Each Grantor hereby covenants and agrees as follows: (i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein; (ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality; (iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office; (iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry; (v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time); (vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages; (vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain; (viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and (ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
Appears in 5 contracts
Sources: Pledge and Security Agreement, Revolving Credit Facility Pledge and Security Agreement, Credit Agreement (Zekelman Industries, Inc.)
Covenants and Agreements. Each Grantor hereby The Company covenants and agrees with the Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement, the ADS Registration Statement and any amendments thereto to become effective, if it has not already become effective, and to cause the Registration Statement to remain effective until the later of (a) the date that is nine (9) months following the date of this Agreement and (b) the date on which the Warrants are no longer outstanding, and the Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) except where such act when the Registration Statement and the ADS Registration Statement have become effective and the time and date of any filing of any post-effective Registration Statement or failure any amendment or supplement to omission could not reasonably be expected any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to have a Material Adverse Effectthe Registration Statement becomes effective, it shall not do any act or omit (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to do any act whereby any Rule 424(b) under the Act, (iii) of the Material Intellectual Property receipt of such Grantor may lapseany comments of the Commission, or become abandoned, dedicated any request by the Commission for amendments or supplements to the publicRegistration Statement, invalidany Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or of the suspension of qualification of the Offered Securities for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5(i) hereof, of any adverse change in the Company’s or any subsidiary’s condition (financial or other), business, prospects, properties, net worth or results of operations, or unenforceable, or placed of any event that comes to the attention of the Company that makes any statement made in the public domainRegistration Statement, or, the ADS Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect as of the date made or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of a Trade Secretthe Prospectus, lose its competitive valuein light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request. The Company shall file with the Commission such Prospectus in accordance with Rule 424(b) under the Act, and in form and substance satisfactory to the Representative, before the close of business on the first Business Day immediately following the date hereof.
(b) The Company will furnish to you, without charge, two signed copies of the Registration Statement and the ADS Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement and the ADS Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file (or cause to be filed, if applicable) with the Commission any amendment or supplement to the Registration Statement, the ADS Registration Statement or the Prospectus that may, in the judgment of the Company or the Representative, be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement, the ADS Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to you and counsel for Representative and obtain your consent prior to filing any of those with the Commission.
(e) The Company will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus without your prior written consent.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would adversely affect conflict with the validityinformation in the Registration Statement, grantthe ADS Registration Statement, the most recent Preliminary Prospectus or the Prospectus, or enforceability would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the security interest granted circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) If at any time following the distribution of any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act (“Testing-the-Waters Communication”) that is a written communication within the meaning of Rule 405 under the Act (“Written Testing-the-Waters Communications”), there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein;, in the light of the circumstances under which they were made existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Representative of (A) any distribution by the Company of Written Testing-the-Waters Communications and (B) any request by the Commission for information concerning the Written Testing-the-Waters Communications.
(h) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the ADS Offered Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(i) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Representative a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the ADS Offered Securities, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as each Underwriter and each dealer may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the ADS Offered Securities are offered by the several Underwriters and by all dealers to whom ADS Offered Securities may be sold, both in connection with the offering and sale of the ADS Offered Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the ADS Offered Securities pursuant to the Offering, (ii) the expiration of prospectus delivery requirements with respect to the ADS Offered Securities under Section 4(a)(3) of the Act and Rule 174 under the Act thereunder or (iii) the date on which the Warrants are no longer outstanding, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Representative is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(j) If required in connection with the Offering, the Company will cooperate with you and counsel for the Representative in connection with the registration or qualification of the ADS Offered Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the ADS Offered Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the ADS Offered Securities, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the ADS Offered Securities in any jurisdiction is suspended, the Company shall so advise you promptly in writing. If required in connection with the Offering, the Company will use its best efforts to qualify or register the ADS Offered Securities for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market-making transactions and secondary trading and will comply with such Blue Sky laws and will use its best efforts to continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(k) The Company will make generally available to its security holders, as soon as practicable after the Effective Date, but not later than the first day of the fifteenth full calendar month following the date of this Agreement, a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a period of at least 12 months commencing after the Effective Date and satisfying the provisions of Section 11(a) of the Act.
(l) If this Agreement shall be terminated by the Underwriters (except as pursuant to a termination under Section 11 hereof) because of any inability, failure or refusal on the part of the Company to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse you and the other Underwriters for all reasonable and documented out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Representative, but excluding wages and salaries paid by you) reasonably incurred by you in connection herewith.
(m) The Company will apply the net proceeds from the sale of the Offered Securities to be sold by it hereunder and in the European Placement in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(n) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), the Company will not, directly or indirectly, (1) offer for sale, issue, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could not reasonably be expected to, result in the disposition by any person at any time in the future of) any Ordinary Shares, ADSs, options, warrants or other securities of the Company (the “Company Securities”) or any securities convertible into or exercisable or exchangeable for, or any rights to have purchase or otherwise acquire, any Company Securities (other than upon the exercise of equity incentives granted pursuant to the Company’s equity incentive plans existing on the date hereof) (collectively, the “Lock-Up Securities”), or sell or grant options, rights or warrants with respect to any Lock-Up Securities or securities convertible into or exchangeable for Lock-Up Securities (other than the grant of equity incentives pursuant to the Company’s equity incentive plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities or other securities, in cash or otherwise, (3) file or cause to be filed a Material Adverse Effectregistration statement in the United States or any foreign jurisdiction, it shall notincluding any amendments, with respect to any Trademarks constituting Material Intellectual Property, cease the use registration of any of such Trademarks Lock-Up Securities or fail to maintain the level securities convertible, exercisable or exchangeable into Lock-Up Securities or any other securities of the quality of products sold and services rendered under Company or (4) publicly disclose the intention to do any of such Trademark at a level at least substantially consistent with the quality of such products and services as foregoing in clauses (1), (2) or (3), in each case without the prior written consent of the date hereof, and each Grantor Representative on behalf of the Underwriters. The prohibition in the foregoing sentence shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit the ADS Offered Securities to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and be sold hereunder, (B) do any act Ordinary Shares issued by the Company upon the exercise of an option or omit to do any act whereby any portion warrant or the conversion of a security outstanding on the Copyrights may fall into date hereof and described in the public domain;
Registration Statement, Time of Sale Information and Prospectus (viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements the issuance by the Company of any Ordinary Shares upon the conversion of the Company’s convertible promissory notes issued to each of Amphion Innovations plc and Amphion Innovations US, Inc. (the “Notes”), either on the maturity date of such Notes or in connection with employees the Company’s election to prepay the Notes prior to the maturity date), provided that such option, warrant, convertible securities or Notes have not been amended since the date of this Agreement to increase the number of securities or to decrease the exercise price, exchange price or conversion price of such securities, (C) any Ordinary Shares issued or options to purchase or subscribe for Ordinary Shares granted pursuant to existing employee benefit or equity incentive plans of the Company described in the Registration Statement, Time of Sale Information and labeling and restricting access Prospectus, (D) the filing by the Company of any registration statement on Form S-8 or any successor form thereto with respect to secret information and documents.the registration of securities to be offered under any employee benefit or equity incentive plans of the Company described in the Registration Statement, Time of Sale Information
Appears in 3 contracts
Sources: Underwriting Agreement, Underwriting Agreement (Motif Bio PLC), Underwriting Agreement (Motif Bio PLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act It will not, nor will it permit any of its licensees (or failure to omission could not reasonably be expected to have a Material Adverse Effectsublicensees) to, it shall not knowingly do any act act, or omit to do any act act, whereby any material Patent included in the Collateral and that is related to the conduct of the Material Intellectual Property of such Grantor its business may lapse, become invalidated or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in and it shall continue to ▇▇▇▇ any products covered by a Patent with the public domain, or, in the case of a Trade Secret, lose relevant patent number as necessary to establish and preserve its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;maximum rights under applicable patent laws.
(ii) except as could not reasonably be expected It will (either directly or through its licensees or its sublicensees), for each material Trademark included in the Collateral that is related to have a Material Adverse Effectthe conduct of its business, it shall not(A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to (B) maintain the level of the quality of products sold and services rendered offered under any of such Trademark, (C) display such Trademark at a level at least substantially consistent with notice of Federal or other analogous registration to the quality of such products extent necessary to establish and services as of the date hereofpreserve its rights under applicable law, and each Grantor shall take all steps necessary (D) not knowingly use or knowingly permit any of its licensees or sublicensees to insure that licensees of such Trademarks use such consistent standards Trademark in violation of quality;any third party’s valid and legal rights.
(iii) except where such failure to register could not reasonably be expected to have It will (either directly or through its licensees or its sublicensees), for each work covered by a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright included in the United States Copyright Office;Collateral that is related to the conduct of its business, continue to publish, reproduce, display, adopt and distribute the material work with appropriate copyright notice as necessary to establish and preserve its maximum rights under applicable copyright laws.
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will promptly notify the Collateral Administrative Agent in writing if it knows that any item of Material Intellectual Property included in the Collateral material to the conduct of its business may become (x) abandoned abandoned, lost or dedicated to the public or placed in the public domain, (y) invalid or unenforceablepublic, or (z) subject to of any adverse determination or development (including the institution of proceedings) in of, or any action such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States of America or any other country) regarding such Grantor’s ownership of any such Intellectual Property, its right to register the same, or to keep and maintain the same.
(v) In no event shall it, either directly or through any agent, employee, licensee or designee, file an application for any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry;similar offices in the United States of America or any other country, unless it promptly notifies the Administrative Agent in writing thereof and, upon request of the Administrative Agent, executes and delivers any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s security interest in such Intellectual Property, and such Grantor hereby appoints the Administrative Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.
(vvi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will take all reasonable necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any state registrysimilar offices or tribunals in the United States of America or any other country, to maintain and pursue any each material application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material relating to its business which is now or shall become the Intellectual Property included in the Material Intellectual Property including, but not limited to, those items Collateral owned or held by it or on Schedules 11(a), 11(b), its behalf (and 11(cto obtain the relevant grant or registration) and to maintain each issued Patent and each registered Trademark and Copyright included in the Collateral that is material to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectconduct of its business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent, in good faith, with reasonable business judgment, to initiate opposition, interference and cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property owned by or exclusively licensed included in the Collateral material to any Grantor is or the conduct of its business has been or is about to be infringed, misappropriated, misappropriated or diluted by a third party, such Grantor it promptly shall notify the Administrative Agent in writing and shall, if consistent, in good faith, with reasonable business judgment, promptly take ▇▇▇ for infringement, misappropriation or dilution and to recover any and all reasonable actions to stop damages for such infringement, misappropriationmisappropriation or dilution, or dilution and take such other actions consistent with reasonable business practices under the circumstances to protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;Property.
(vii) except as could not reasonably be expected to have a Material Adverse EffectDuring the continuance of an Event of Default, it shall not use its best efforts to obtain all requisite consents or approvals by the licensor of each License included in the Collateral owned or held by it or on its behalf to effect the assignment (as collateral security) of all of its right, title and shall not permit any licensee interest thereunder to the Administrative Agent or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;designee.
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it It shall take all reasonable steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets used in the conduct of its business, including, without limitation, entering into confidentiality agreements with employees and labeling and including restricting access to secret information such Trade Secrets.
(ix) It shall continue to collect all amounts due or to become due to such Grantor under all material Intellectual Property included in the Collateral owned or held by it or on its behalf, and documentsdiligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Administrative Agent may reasonably deem necessary. Notwithstanding the foregoing, the Administrative Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to notify, or require such Grantor to notify, any relevant obligors with respect to such amounts of the Administrative Agent’s security interest therein.
Appears in 3 contracts
Sources: Security Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.), Security Agreement (Virtus Investment Partners, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect in any material respect the validity, grant, or enforceability of the security interest in favor of Collateral Agent granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)Property;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that if any Material Intellectual Property material to the business of such Grantor owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions as it determines are appropriate in the exercise of its commercially reasonable judgment, to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) , except as where failure to take such action could not reasonably be expected to have result in a Material Adverse Effect, ;
(vi) it shall not (and shall not permit any licensee or sublicensee thereof under its control to) promptly report to Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or omit to do any act whereby state registry (whether such application is filed by such Grantor or through any portion of the Copyrights may become invalidated trustee, employee, licensee, or otherwise impaired designee thereof) and (B) do the registration of any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property by any such office, in each case by executing and delivering to infringeCollateral Agent a completed Pledge Supplement, misappropriatesubstantially in the form of Exhibit A attached hereto, or violate the intellectual property rights of any other Persontogether with all applicable Supplements to Schedules thereto; and
(ixvii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect use proper statutory notice in connection with its use of any of the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsIntellectual Property.
Appears in 3 contracts
Sources: Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc), Pledge and Security Agreement (Evergreen Solar Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
: (i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any commercially unreasonable act or omit to do any commercially reasonable act whereby any of the Material Intellectual Property which, in its reasonable business judgment, is material to any line of such Grantor business of the Grantors may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
therein under this Agreement; (ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect report to any Trademarks constituting Material Intellectual Property, cease the use Lender (i) its filing of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure application to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectPatent, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceableTrademark, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in Copyright with the United States Patent and Trademark Office, the United States Copyright Office Office, or any state registry;
registry (vwhether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (ii) except where its acquisition of ownership of any United States Patent, Trademark or Copyright application or registration by purchase or assignment, and (iii) the failure registration of any United States Patent, Trademark or Copyright by any such office, in each case by executing and delivering to do so could not the Lender (A) a completed Supplement, together with all applicable supplements to Schedules thereto and (B) a grant of security in such Patent, Trademark or Copyright, in a form reasonably be expected satisfactory to have a Material Adverse EffectLender, it shall take all reasonable steps in as applicable, within thirty (30) days of such submission, acquisition or registration, or as soon thereafter as is legally permissible, and promptly file such grant with the United States Patent and Trademark Office, Office or the United States Copyright Office Office, as applicable; provided, that any Intellectual Property or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned rights therein acquired by any Grantor after the date hereof (other than Excluded Assets) shall constitute Collateral as if such would have constituted Collateral at the time of execution hereof and material be subject to its business which the lien and security interest created by this Agreement without further action by any party; (iii) it shall, promptly execute and deliver within thirty (30) days to the Lender at such Grantor’s expense, a certificate or other indicia of ownership where a registration of any United States Patent, Trademark or Copyright is issued hereafter as a result of any application now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b)hereafter pending, and 11(c) execute, deliver and record any document required to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectacknowledge, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringedconfirm, misappropriatedregister, record, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, perfect the initiation of a suit for injunctive relief and to recover damages;
Lender’s security interest therein; (viiiv) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents; and (v) it shall take all steps reasonably necessary to use proper statutory notice in connection with its use of any of the Intellectual Property.
Appears in 3 contracts
Sources: Security Agreement (BOSTON OMAHA Corp), Security Agreement (BOSTON OMAHA Corp), Security Agreement (BOSTON OMAHA Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not knowingly do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may Copyrights, Amylin Patents, Trade Secrets, Trademarks, US Regulatory Approvals would lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, except, in each case, with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall or shall not take, as applicable, any such acts;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, (a) it shall not, with respect to any Trademarks constituting Material Intellectual Propertymaterial Trademarks, cease the use of any of such material Trademarks or (b) materially fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary use commercially reasonable efforts to insure that cause licensees of such Trademarks to use such consistent standards of qualityquality only in such jurisdictions where the exercise of such consistent standards of quality is required to maintain such Trademarks, except in each case, with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall or shall not, as applicable, undertake such use or take such actions;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Lilly if it knows that any item of Material Intellectual Property may the material Copyrights, Amylin Patents, Trade Secrets, Trademarks or US Regulatory Approvals has become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, the United States Food and Drug Administration (“FDA”), any state registry, any foreign counterpart of the foregoing, or any court, except, in each case, (x) for any of the foregoing occurring in the ordinary course of business or (y) to the extent that any such Copyrights, Amylin Patents, Trade Secrets, Trademarks or US Regulatory Approvals are no longer used or useful in the Business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, the FDA, any state registry or any state registrycounterpart in the European Union (other than with respect to US Regulatory Approvals) of the foregoing, to pursue any application and maintain any registration or filing of each material Trademark, Amylin Patent, and Copyright Copyright, US Regulatory Approval owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property includingor US Regulatory Approvals, but not limited to, including those items on Schedules 11(a)Schedule 4.3, 11(b)except in each case for any such Trademark, and 11(c) Amylin Patent, Copyright or US Regulatory Approvals with respect to which the Perfection Certificate (as such schedules may be amended Grantor has determined with the exercise of its commercially reasonable business judgment that it shall not so apply or supplemented from time to time)pursue or maintain;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by material Copyrights, Amylin Patents, Trade Secrets or exclusively licensed Trademarks or any Grantor’s rights under the Eng License is, to any Grantor is or has been such Grantor’s knowledge, materially infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property or rights under the Eng License (to the extent not a breach thereof as it exists as of the Effective Date) including, but not limited towhere appropriate, the initiation of a suit for injunctive relief and to recover damages, except with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not take such actions;
(vi) it shall promptly (but in no event more than 60 days after any Grantor obtains knowledge thereof) report to Lilly (i) the filing of any application to register any Trademark, Patent or Copyright with the United States Patent and Trademark Office, United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Trademark, Amylin Patent or Copyright by any such office, in each case by executing and delivering to Lilly a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (and shall not permit but in no event more than 60 days after any licensee or sublicensee thereof under its control toGrantor obtains knowledge thereof) report to Lilly (Ai) do the filing of any act or omit to do any act whereby any portion of US Regulatory Approvals with the Copyrights may become invalidated or otherwise impaired FDA, and (Bii) do the granting of any act or omit US Regulatory Approval by any such office, in each case by executing and delivering to do any act whereby any portion Lilly a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not execute and deliver to Lilly any document reasonably requested by Lilly (nor shall subject to Grantor’s reasonable request to redact extraneous information from said document to the licensees extent it will be publicly filed) to acknowledge, confirm, register, record, or sublicensees under its control) do perfect Lilly’s interest in any act that uses US public filing office necessary or desirable for the registration or recording of Lilly’s security interest in any Material part of the Intellectual Property to infringeand US Regulatory Approvals, misappropriatewhether now owned or hereafter acquired (including, or violate as applicable, Trademark Security Agreements, Copyright Security Agreements and Patent Security Agreements, in the intellectual property rights form of any other Person; andExhibits B, C and D, respectively);
(ix) except where with the failure prior consent of Lilly (which, for any potential financing arrangements with respect to do so could Amylin Ohio, shall not reasonably be expected unreasonably withheld), except for Permitted Liens and subject to have Sections 2.3 and 2.4, (1) each Grantor shall not execute, and there will not be on file in any US public office, any effective financing statement or recorded licenses or instruments granting or evidencing a Material Adverse Effectlien in any material Trademark, Amylin Patent, Copyright, US Regulatory Approval or US Regulatory Material, except financing statements or other documents or instruments filed or to be filed in favor of Lilly, and (2) each Grantor shall not sell, assign, grant any option or right of first refusal or negotiation to acquire ownership of any Secured IP or an assignment of such Grantor’s rights under the Eng License, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, such Grantor’s rights under the Eng License, US Regulatory Materials or US Regulatory Approvals; and
(x) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the material Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at Lilly’s reasonable direction, after the occurrence and during the continuance of an Event of Default shall take) such action as such Grantor or Lilly may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, (a) any such actions taken by such Grantor shall be in its sole discretion but not inconsistent with its ordinary course of all Trade Secretsbusiness and (b) Lilly shall have the right at any time, includingafter the occurrence and during the continuance of an Event of Default, without limitationto notify, entering into confidentiality agreements or require any Grantor to notify, any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby provided that the Grantor is given concurrent notice thereof in writing.
Appears in 3 contracts
Sources: Security Agreement, Security Agreement (Amylin Pharmaceuticals Inc), Settlement and Termination Agreement (Amylin Pharmaceuticals Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectfor Permitted Sales, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except for Permitted Sales and except as could not reasonably may otherwise be expected to have a Material Adverse Effectcommercially reasonable, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary use commercially reasonable efforts to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where it shall, not later than the failure next following date upon which reports are required to do so could not reasonably be expected delivered pursuant to have a Material Adverse EffectSection 5.1(b) of the Credit Agreement, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registryregistry or (with respect to any item of Intellectual Property that is material to the conduct of Grantors' business) any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 5 (as such schedules schedule may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all actions appropriate in its reasonable actions business judgment to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited toif appropriate, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could it shall, not reasonably later than the next following date upon which reports are required to be expected delivered pursuant to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control toSection 5.1(b) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated Credit Agreement, promptly (but in no event more than thirty days after any Grantor obtains knowledge thereof) report to Collateral Agent: (y) the filing of any application to register any Intellectual Property owned by such Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or otherwise impaired any state registry or (with respect to any item of Intellectual Property that is material to the conduct of the Grantors' business) foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (Bz) do the registration of any act or omit such Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domain;Exhibit A attached hereto, together with a supplement to Schedule 5 hereto; and
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of Collateral Agent, execute and deliver to have a Material Adverse EffectCollateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect Collateral Agent's interest in any part of the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectIntellectual Property, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 3 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Medical Device Manufacturing, Inc.), Credit and Guaranty Agreement (Medical Device Manufacturing, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent's reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Connetics Corp), Pledge and Security Agreement (Navisite Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, cancelled, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Security Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court) or (d) the subject of any asserted reversion or termination rights;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration or issuance of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property Property, including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property that is material to any Grantor’s business and owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Security Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office, (iii) the acquisition of any Intellectual Property that is registered or applied for in any such office, and (iv) the filing of any “statement of use” or “amendment to allege use” in the PTO with respect to any “intent to use” Trademark application owned by such Grantor, in each case by executing and delivering to the Security Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Security Agent, execute and deliver to the Security Agent any document (including each Intellectual Property Security Agreement) required to acknowledge, confirm, register, record or otherwise impaired and (B) do perfect the Security Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Security Agent or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Indenture, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Security Agent and each Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Intellectual Property, except for the Lien created by and under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate this Agreement and the intellectual property rights of any other Person; andNotes Documents and other Permitted Liens;
(ix) except where it shall hereafter use best efforts so as not to permit the failure inclusion in any contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property material to have a Material Adverse Effect, such Grantor’s business acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice, in all material respects, in connection with its use of any of the Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Security Agent’s reasonable direction, shall take) such action as such Grantor or the Security Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Security Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Notes Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i1) except where for Intellectual Property that is not in use and has negligible value, such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor the Grantors may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii2) except as could not reasonably be expected for copyrights of negligible value, such Grantor shall, within thirty (30) days of the creation or acquisition of any Copyrightable work which is material to have a Material Adverse Effectthe business of the Grantors, it apply to register the Copyright in the United States Copyright Office;
(3) such Grantor shall notpromptly notify the Collateral Agent if such Grantor knows or has reason to know that any item of the Intellectual Property of any Grantor that is in use or has more than negligible value may become (a) abandoned or dedicated to the public or placed in the public domain, with respect (b) invalid or unenforceable, or (c) subject to any Trademarks constituting Material adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, and state registry, any foreign counterpart of the foregoing, or any court arbitral tribunal or regulatory agency;
(4) such Grantor shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and which is now or shall become included in the Intellectual PropertyProperty including, cease but not limited to, those items on Schedule VI(A), (C) and (E) (as each may be amended or supplemented from time to time) except for those pertaining to IP that are no longer in use and has negligible value;
(5) in the use event that any Intellectual Property owned by or exclusively licensed to any Grantor is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Intellectual Property including, but not limited to, the initiation of any of such Trademarks or fail a suit for injunctive relief and to recover damages;
(6) each Grantor shall maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii7) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy confidentiality of all material Trade SecretsSecrets of any Grantor, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret confidential information and documents;
(8) such Grantor shall promptly (but in no event more than thirty (30) days) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property whether it owns in whole or in part or to the best of its knowledge which it is exclusively licensing from a third party with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensor, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office, or (iii) the acquisition of any application or registration and, in each case, shall execute and deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto an executed Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement in form and substance satisfactory to the Agent;
(9) except with the prior consent of the Collateral Agent or as permitted under the Securities Purchase Agreement, no Grantor shall execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent, and no Grantor shall sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and the other Loan Documents, any liens created in favor of First Capital under the First Capital Credit Facility and any liens if favor of the holders of the Existing Subordinated Notes.
(10) such Grantor shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any Intellectual Property acquired under such Contracts;
(11) such Grantor shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(12) such Grantor shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. In connection with such collections, such Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat:
(i) except where for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such act Grantor shall defend the Collateral against all Persons at any time claiming any interest therein other than Intellectual Property that such Grantor determines in its reasonable judgment is not material to its business;
(ii) it shall not produce, use or failure permit any Collateral to omission could be used unlawfully, in any material respect, or in violation of any provision of this Agreement or any policy of insurance covering the Collateral or in violation, in any material respect, of any applicable statute, regulation or ordinance except to the extent such violation would not reasonably be expected to have result in a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effectwithout limiting any prohibitions or restrictions on mergers or other transactions set forth in the Indenture, it shallshall not change such Grantor’s name, promptly following identity, organizational identification number, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), sole place of business or chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the creation Security Agent in writing on or acquisition prior the date that is ten (10) days after any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business or chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Security Agent may reasonably request and (b) taken or cooperated with Security Agent to enable Security Agent to take all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Security Agent’s security interest in the Collateral granted or intended to be granted and agreed to hereby (other than Collateral with respect to which the security interest is not required to be perfected pursuant to the terms hereof), which in the case of any Copyrightable work constituting Material Intellectual Propertymerger or other change in corporate structure shall include, apply without limitation, executing and delivering to register the Copyright Security Agent a completed Pledge Supplement together with all Supplements to Schedules thereto, upon completion of such merger or other change in corporate structure confirming the United States Copyright Officegrant of the security interest hereunder to the extent the successor entity of such merger or other transaction is required to be a Grantor hereunder pursuant to the Indenture;
(iv) except where if the failure Security Agent or any Secured Party gives value to do enable Grantor to acquire rights in or the use of any Collateral, it shall use such value for such purposes and such Grantor further agrees that repayment of any Notes Obligation shall apply on a “first-in, first-out” basis so could not reasonably that the portion of the value used to acquire rights in any Collateral shall be expected paid in the chronological order such Grantor acquired rights therein;
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, to have a Material Adverse Effectthe extent required by the Indenture;
(vi) upon such Grantor’s or any officer of such Grantor’s obtaining knowledge thereof, it shall promptly notify the Collateral Security Agent if it knows in writing of any event that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectEffect on the value of the Collateral or any substantial portion thereof, it shall take all reasonable steps in the United States Patent and Trademark Officeexcept as contemplated hereby or under any other Notes Document, the United States Copyright Office ability of any Grantor or the Security Agent to dispose of the Collateral or any state registryportion thereof, to pursue any application or the rights and maintain any registration remedies of each Trademarkthe Security Agent in relation thereto, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited towithout limitation, the initiation levy of a suit for injunctive relief and to recover damagesany legal process against the Collateral or any portion material thereof;
(vii) except as could not reasonably be expected to have a Material Adverse Effectthe extent permitted by the Indenture, it shall not (and shall not take or permit any licensee or sublicensee thereof under its control to) (A) do any act or omit action which could be reasonably likely to do any act whereby any portion of materially impair the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of Security Agent’s rights in the Copyrights may fall into the public domainCollateral;
(viii) except as could not reasonably be expected to have in the event that it hereafter acquires any Collateral of a Material Adverse Effecttype described in Section 4.1(a)(xii) hereof, it shall not (nor shall promptly notify the licensees or sublicensees under its control) do Security Agent thereof in writing and take such actions and execute such documents and make such filings all at Grantor’s expense as the Security Agent may reasonably request in order to ensure that the Security Agent has a valid, perfected, first priority security interest in such Collateral, subject in the case of priority only, to any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other PersonPermitted Liens; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary not sell, transfer or assign (by operation of law or otherwise) or exclusively license to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsanother Person any Collateral except as Permitted Sales.
Appears in 2 contracts
Sources: Notes Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsfollows until the Full Payment of the Secured Obligations:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor in its reasonable business judgment may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor in its reasonable business judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertythe registration of which is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice when such registration is deemed necessary by the Grantor exercising its reasonable business judgment;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to timetime in accordance with the terms of this Agreement);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall shall, as it deems necessary in the exercise of its reasonable business judgment, promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to Agent (i) the filing of any application to register any Intellectual Property owned by the Grantor with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property owned by the Grantor by any such office, in each case by executing and delivering to do any act whereby any portion Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of Agent, execute and deliver to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Agent an Intellectual Property Security Agreement, substantially in the form of Exhibit C attached hereto, together with all supplements and schedules thereto, and any other document reasonably required to infringeacknowledge, misappropriateconfirm, register, record, or violate perfect Agent’s interest in any part of the intellectual property rights of any other Person; andIntellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments that remain in effect, except financing statements or other documents or instruments filed or to do be filed in favor of Agent and each Grantor shall not sell, assign, transfer, grant an exclusive license otherwise outside of the ordinary course of business, consistent with past practice, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created or permitted by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents, except to the extent that a Trade Secret is no longer material or necessary to the business of such Grantor or the Trade Secret no longer derives substantial value from not being known to the public, as determined by such Grantor in its reasonable business judgment;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property where necessary and proper; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at Agent’s reasonable direction, shall take) such action as such Grantor or, after the occurrence and during the continuance of an Event of Default, Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Pledge and Security Agreement (Euramax International, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where it shall (a) within thirty (30) days of the Closing Date, file with the United States Patent and Trademark Office, the United States Copyright Office and the Canadian counterpart of such act or failure offices documents sufficient to omission could not reasonably be expected ensure that all U.S. and Canadian registrations and applications for Copyrights, Patents and Trademarks listed on Schedule 4.7(a)(i) stand in the name of a Grantor and shall immediately provide the Priority Lien Collateral Trustee with copies of such filings; and (b) within one hundred eight (180) days of the Closing Date, file with all other foreign counterparts to have the United States Patent and Trademark Office and the United States Copyright Office documents sufficient to ensure that all other foreign registrations and applications for Copyrights, Patents and Trademarks listed on Schedule 4.7(a)(i) stand in the name of a Material Adverse Effect, Grantor and shall immediately provide Priority Lien Collateral Trustee with copies of such filings;
(ii) it shall not do any act or omit to do any act whereby any of the Material Intellectual Property owned by a Grantor which is material to the business of such a Grantor may could reasonably be expected to lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(iiiii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyowned by or licensed to a Grantor which are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all such commercially reasonable steps as are necessary to insure that licensees of such Trademarks use such consistent the standards of qualityquality set by such Grantor;
(iiiiv) except where such failure within thirty (30) days of the date hereof with respect to register could any Copyrights set forth on Schedule 4.7(i) that were not reasonably be expected to have a Material Adverse Effectstanding in the name of any Grantor upon the effectiveness of the Closing Date and, it shallin all other cases, promptly following within sixty (60) days of the creation or acquisition by a Grantor of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice and record therein all documents necessary to effectuate such acquisition;
(ivv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Priority Lien Collateral Agent Trustee if it knows or has reason to know that any item of Material Intellectual Property owned by or licensed to a Grantor that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(vvi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vivii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted misappropriated by a third partyparty and Grantor becomes aware of such infringement or misappropriation, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, infringement or dilution misappropriation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viiviii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Priority Lien Collateral Trustee the filing by or on behalf of a Grantor of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired and (B) do through any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effectagent, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeemployee, misappropriatelicensee, or violate the intellectual property rights of any other Person; anddesignee thereof);
(ix) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Priority Lien Collateral Trustee the registration by or on behalf of a Grantor of any Intellectual Property by any such office, in each case by executing and delivering to the Priority Lien Collateral Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(x) it shall, promptly upon the reasonable request of the Priority Lien Collateral Trustee, execute and deliver to the Priority Lien Collateral Trustee any document required to acknowledge, confirm, register, record, or perfect the Priority Lien Collateral Trustee’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(xi) except where with the failure prior consent of the Priority Lien Collateral Trustee or as permitted under the each of the Priority Lien Documents, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Priority Lien Collateral Trustee and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents and Permitted Liens;
(xii) it shall hereafter use reasonable best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xiii) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all Trade Secrets;
(xiv) it shall use proper statutory notice in connection with its use of any of the material Intellectual Property owned by a Grantor; and
(xv) it shall continue to collect, includingat its own expense, without limitationall amounts due or to become due to such Grantor in respect of the Intellectual Property owned by a Grantor or any portion thereof. In connection with such collections, entering into confidentiality agreements each Grantor may take (and, at the Priority Lien Collateral Trustee’s reasonable direction, shall take) such action as such Grantor or the Collection Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Priority Lien Collateral Trustee shall have the right at any time after an Event of Default has occurred and is continuing, to notify, or require any Grantor to notify, any obligors with employees respect to any such amounts of the existence of the security interest created hereby, and labeling following and restricting access during the continuation of an Event of Default, may take such action as the Priority Lien Collateral Trustee may deem reasonably necessary to secret information and documentsenforce collection of such amounts.
Appears in 2 contracts
Sources: Pledge and Security Agreement (NewPage Holding CORP), Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected according to have a Material Adverse Effect, such Grantor’s customary business practices it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;[reserved]
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent as promptly as practicable if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of the Grantors taken as a whole may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps consistent with its ordinary business practices in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its the business of the Grantors taken as a whole which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 10(A), 11(b), (C) and 11(c(E) each annexed to the Perfection Certificate Collateral Questionnaire (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to the business is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions consistent with its ordinary business practices to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the registration of any material Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired, including, without limitation, as applicable a Trademark Security Agreement, a Copyright Security Agreement and a Patent Security Agreement, together with all Schedules thereto;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents, under the Revolving Agreement or as expressly permitted by the Credit Documents;
(x) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall make best efforts to use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Pledge and Security Agreement (J Crew Group Inc), Pledge and Security Agreement (J Crew Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property owned by such Grantor which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyowned by such Grantor which are material to the business of any Grantor (excluding any Trademarks which such Grantor decides to cease using in its reasonable business judgment), cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Trustee if it knows or has reason to know that any item of Material Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property Collateral including, but not limited to, those items on Schedules 11(aSchedule 4.10(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time), unless such Grantor decides, in its reasonable business judgment, not to pursue or maintain such application or registration because such Trademark, Patent or Copyright is no longer necessary for or material to such Grantor’s business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted or otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall report to the Collateral Trustee within five (5) Business Days after the last day of the fiscal quarter during which the following occurs (but with respect to Copyrights, within 30 days of such occurrence); (i) such Grantor’s filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) such Grantor’s registration of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Trustee a completed Pledge Supplement together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (execute and shall not permit deliver to the Collateral Trustee any licensee document that is necessary or sublicensee thereof under its control to) (A) do appropriate to acknowledge, confirm, register, record, or perfect the Collateral Trustee’s interest in any act or omit to do any act whereby any portion part of the Copyrights may become invalidated Intellectual Property, whether now owned or otherwise impaired hereafter acquired (including, but not limited to Trademark Security Agreements, Copyright Security Agreements and (B) do any act or omit to do any act whereby any portion Patent Security Agreements, in the form of the Copyrights may fall into the public domainExhibits C, D and E, respectively);
(viii) except as could not reasonably be expected to have a Material Adverse Effectpermitted under the Indenture, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Trustee and except as permitted in the Indenture each Grantor shall the licensees or sublicensees under its control) do not sell, assign, transfer, license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate create or suffer to exist any Lien upon or with respect to the intellectual property rights of any Intellectual Property, except for the Lien created by and under this Agreement and the other Person; andLoan Documents;
(ix) except where it shall hereafter use commercially reasonable efforts so as not to permit the failure inclusion in any contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice in connection with its use of any of the Intellectual Property owned by such Grantor; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property owned by such Grantor or any portion thereof. In connection with such collections, each Grantor may take such action as such Grantor may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Trustee shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Senior Notes Security Agreement (PRETIUM CANADA Co), Senior Notes Security Agreement (PRETIUM CANADA Co)
Covenants and Agreements. Each Grantor Debtor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor Debtor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Debtor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor Debtor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor Debtor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Debtor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.5(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viiv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor Debtor that is or has been material to such Debtor's business is infringed, misappropriated, or diluted by a third party, such Grantor Debtor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(v) it shall promptly following the time it obtains knowledge thereof report to Secured Party (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Debtor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to Secured Party a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vi) it shall, promptly execute and deliver to Secured Party any document required to acknowledge, confirm, register, record, or perfect Secured Party's interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(vii) except as could permitted under the Indenture, no Debtor shall execute, and there will not reasonably be expected on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to have a Material Adverse Effectbe filed in favor of Secured Party and the Credit Facility Secured Party, it and no Debtor shall not (sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion this Security Agreement and the other Loan Documents and the Lien in favor of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainCredit Facility Secured Party;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall hereafter use commercially reasonable efforts so as not (nor shall to permit the licensees inclusion in any contract to which it hereafter becomes a party of any provision that could or sublicensees under its control) do might in any act that uses way materially impair or prevent the creation of a security interest in, or the assignment of, such Debtor's rights and interests in any Material property included within the definitions of any Intellectual Property to infringe, misappropriate, or violate the intellectual property rights acquired under such contracts;
(ix) it shall use proper statutory notice in connection with its use of any other Personof the Intellectual Property; and
(ixx) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect, at its own expense, all amounts due or to become due to such Debtor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Debtor may take all steps such action as such Debtor may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, Secured Party shall have the right at any time, to notify, or require any Debtor to notify, any obligors with respect to any such amounts of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe existence of the security interest created hereby.
Appears in 2 contracts
Sources: Indenture (Majestic Investor Capital Corp), Pledge and Security Agreement (Majestic Investor Capital Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where In order to facilitate filings with the United States Patent and Trademark Office and the United States Copyright Office, each Grantor shall execute and deliver to Collateral Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements, or supplements thereto, to further evidence Collateral Agent’s Lien on such act Grantor’s Patents, Trademarks, or failure to omission could not reasonably be expected to have a Material Adverse EffectCopyrights, and the General Intangibles of such Grantor relating thereto or represented thereby.
(ii) it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor Grantors, taken as a whole, may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect in any material respect the validity, grant, or enforceability of the security interest in favor of Collateral Agent granted therein;
(iiiii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of Grantors, taken as a whole, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of Grantors, taken as a whole, may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its the business of Grantors, taken as a whole,which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)Property;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that if any Material Intellectual Property material to the business of Grantors taken as a whole, owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions as it determines are appropriate in the exercise of its commercially reasonable judgment, to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) , except as where failure to take such action could not reasonably be expected to have result in a Material Adverse Effect, ;
(vii) it shall not (and shall not permit any licensee or sublicensee thereof under its control to) promptly report to Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or omit to do any act whereby state registry (whether such application is filed by such Grantor or through any portion of the Copyrights may become invalidated trustee, employee, licensee, or otherwise impaired designee thereof) and (B) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domain;Exhibit A attached hereto, together with all applicable Supplements to Schedules thereto; and
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under use proper statutory notice in connection with its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights use of any other Person; and
(ix) except where of the failure Intellectual Property, material to do so could not reasonably be expected to have the business of Grantors, taken as a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhole.
Appears in 2 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Akoustis Technologies, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not knowingly do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would materially adversely affect the validity, grant, validity or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court regarding such Grantor’s ownership of any material item of Intellectual Property or its right to register the same or to keep and maintain the same;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all such actions as it deems appropriate in its reasonable actions business judgment to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after any filing or after any Grantor obtains knowledge of any registration, or application, it will) report to the Collateral Agent (i) except with regard to intent to use Trademarks, the filing of any application to register any Intellectual Property owned by such Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property owned by such Grantor by any such office, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Agent’s security interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps reasonably necessary to protect the secrecy of all Trade Secrets;
(ix) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(x) it shall use commercially reasonably efforts to collect, includingat its own expense, without limitation, entering into confidentiality agreements with employees and labeling and restricting access all amounts due or to secret information and documentsbecome due to such Grantor in respect of the Intellectual Property or any portion thereof.
Appears in 2 contracts
Sources: First Lien Pledge and Security Agreement (Arizona Chemical Ltd.), Second Lien Pledge and Security Agreement (Arizona Chemical Ltd.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Meridian Waste Solutions, Inc.), Pledge and Security Agreement (Meridian Waste Solutions, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Collateral Intellectual Property that is material to the business of such Grantor or otherwise of material value may lapse, or become abandoned, canceled, dedicated to the public, invalidforfeited, unenforceable or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, otherwise impaired or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of Grantor and included in the Collateral, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Security Agent if it knows or has reason to know that any item of Material the Collateral Intellectual Property that is material to the business of Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court) or (d) the subject of any asserted reversion or termination rights;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration or issuance of each Trademark, Patent, Patent and Copyright owned by any Grantor and included in the Collateral and material to its business which is now or shall become included in the Material Collateral Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Collateral Intellectual Property that is material to Grantor’s business and owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its rights in such Material Collateral Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after Grantor obtains knowledge thereof) report to the Security Agent (i) the filing of any application to register any Collateral Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry or foreign counterpart of the foregoing (whether such application is filed by Grantor or through any agent, employee, licensee, or designee thereof), (ii) the registration of any Collateral Intellectual Property by any such office, (iii) the acquisition of any Collateral Intellectual Property that is registered or applied for in any such office, and (iv) the filing of an “statement of use” or “amendment to allege use” in the PTO with respect to any “intent to use” Trademark application owned by Grantor, in each case by executing and delivering to the Security Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Security Agent, execute and deliver to the Security Agent any document (including each Intellectual Property Security Agreement) required to acknowledge, confirm, register, record or otherwise impaired and (B) do perfect the Security Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainCollateral Intellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Security Agent or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Indenture, it Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Security Agent and Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Collateral Intellectual Property, except for the Lien created by and under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate this Agreement and the intellectual property rights of any other Person; andNotes Documents and other Permitted Liens;
(ix) except where it shall hereafter use best efforts so as not to permit the failure inclusion in any contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, Grantor’s rights and interests in any property included within the definitions of any Collateral Intellectual Property material to have a Material Adverse Effect, Grantor’s business acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets included in the Collateral, including, without limitation, entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice, in all material respects, in connection with its use of any of the Collateral Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to Grantor in respect of the Collateral Intellectual Property or any portion thereof. In connection with such collections, Grantor may take (and, at the Security Agent’s reasonable direction, shall take) such action as Grantor or the Security Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Security Agent shall have the right at any time, to notify, or require Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Notes Pledge and Security Agreement (Altice USA, Inc.), Notes Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees agrees, except as followsotherwise permitted pursuant to the Credit Agreement,:
(i) except where such act or failure to omission could the extent not reasonably be expected material to have a Material Adverse Effectits business, it shall not do any act or omit to do any act whereby any of the Material Registered Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall nottake, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a4.7(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeE);
(viiii) except where to the failure to do so could not reasonably be expected to have a Material Adverse Effect, extent deemed prudent (as determined by the Grantor in good faith) in the event Grantor becomes aware that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to its business is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages if the initiation of such suit is commercially reasonable;
(viiiv) except as could not reasonably be expected to have a Material Adverse Effect, it shall not report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property by any such office, in each case by executing and delivering to infringe, misappropriate, or violate the intellectual property rights of any other PersonCollateral Agent a completed Pledge Supplement; and
(ixv) except where it shall, promptly upon the failure reasonable request of the Collateral Agent, execute and deliver to do so could not reasonably the Collateral Agent any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired. Notwithstanding anything contained herein or in any other Loan Document to the contrary the parties hereto agree that in no event shall any Grantor be expected required to have a Material Adverse Effectperfect the security interest of the Lenders in the Grantor’s Intellectual Property under the law of any jurisdiction other than the United States of America, it shall take all steps reasonably necessary to protect any state thereof or the secrecy District of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsColumbia.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Covenants and Agreements. Each Grantor hereby of the Company and the Trust, each as to itself, covenants and agrees with the several Underwriters as follows:
(a) Each of the Company and the Trust will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) except where when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such act purposes and (v) within the period of time referred to in Section 5(h) below, of any change in the condition (financial or other), business, prospects, properties, net worth or results of operations of the Company, the Trust or the Underlying Properties, or of any event that comes to the attention of the Company or the Trust that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company and the Trust will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company and the Trust will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) Neither the Company nor the Trust has made or will make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company and the Trust will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Preliminary Prospectus, the Time of Sale Information or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof, the Company and the Trust consent to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company or the Trust.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Units, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company and the Trust consent to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company and the Trust will forthwith prepare and, subject to Section 5(a) hereof, file with the Commission and use their best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to Section 13(i) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to omission perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) reasonably incurred by the Representatives or the other Underwriters in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(k) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), neither the Company nor the Trust will, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5(k) shall not restrict or prohibit the Company Parties from pledging or otherwise granting a security interest with respect to any Trust Securities held by the Company Parties pursuant to that certain Fifth Amended and Restated Credit Agreement, dated as of October 15, 2010, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent, as amended (the “Credit Agreement”).
(l) The Company and the Trust will comply with all provisions of any undertakings contained in the Registration Statement.
(m) Neither the Company nor the Trust will at any time, directly or indirectly, take any action designed, or which might reasonably be expected to have a Material Adverse Effectcause or result in, it shall not do any act or omit which will constitute, stabilization or manipulation of the price of the Trust Units to do any act whereby facilitate the sale or resale of any of the Material Intellectual Property Units in violation of such Grantor may lapsethe Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or become abandonedother applicable law.
(n) On the Closing Date, dedicated all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the publicUnderwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, invalid, or unenforceable, or placed all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability sale and transfer of the security interest granted therein;Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(iip) except In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as could not reasonably be expected to have a Material Adverse Effectamended (the “Code”), it shall notand the regulations promulgated thereunder, with respect to any Trademarks constituting Material Intellectual Propertythe transactions herein contemplated, cease the use of any Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such Trademarks filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy business days following the Closing Date.
(r) The Company and the Trust will comply with all agreements and satisfy all conditions on its part to be complied with or fail satisfied pursuant to maintain this Agreement on or prior to the level Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with Company or the quality of such products and services Trust, as appropriate, in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the date hereofClosing Date or the Additional Closing Date, as the case may be.
(s) The Company and each Grantor shall take all steps necessary to insure that licensees the Trust will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such Trademarks use jurisdictions as you may reasonably designate and will file such consistent standards consents to service of quality;
(iii) except where process or other documents as may be reasonably necessary in order to effect and maintain such failure registration or qualification for so long as required to register could not reasonably complete the distribution of the Units; provided that in no event shall the Company or the Trust be expected obligated to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure qualify to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or proceeding in sale of the United States Patent Units, as contemplated by this Agreement and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectProspectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any Material Intellectual Property owned by or exclusively licensed to any Grantor jurisdiction is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited tosuspended, the initiation Company and the Trust shall so advise you promptly in writing. The Trustee will use its reasonable best efforts to qualify or register the Trust Units for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except each state where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect permit market making transactions and secondary trading and will use its reasonable best efforts to cause the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements Trust to comply with employees and labeling and restricting access to secret information and documents.such Blue Sky laws
Appears in 2 contracts
Sources: Underwriting Agreement (Whiting USA Trust II), Underwriting Agreement (Whiting USA Trust II)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsfollows until the payment in full of the Secured Obligations and termination of the Commitments:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not, without the prior consent of the Collateral Agent, which shall not be unreasonably withheld or delayed, do any act or omit to do any act whereby any of the Material Intellectual Property which is, in such Grantor’s reasonable business judgment, material to the business of such Grantor may lapse, or become be abandoned, dedicated to the public, invalid, or become unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall notshall, with respect to any Trademarks constituting Material Intellectual Propertywhich are, cease in such Grantor’s reasonable business judgment, material to the use business of any of Grantor, maintain such Trademarks in full force free from any adjudication of abandonment or fail to invalidity for non-use and maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertythe registration of which is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice when such registration is deemed necessary by the Grantor exercising its reasonable business judgment;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xA) abandoned or dedicated to the public or placed in the public domaindomain other than by expiration in the normal course (and not in violation of clause (v) below), (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding (other than routine office actions and the like) in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where on the failure Closing Date, each applicable Grantor will sign and deliver to do so could not reasonably be expected the Collateral Agent Intellectual Property Security Agreements with respect to have a Material Adverse Effect, all Recordable Intellectual Property then owned by it;
(vi) it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue maintain and prosecute any application and maintain any or registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeE);
(vivii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that a Grantor becomes aware that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been being infringed, misappropriated, or diluted by a third party, such Grantor shall shall, as it deems necessary in the exercise of its reasonable business judgment, promptly take all commercially reasonable actions as are appropriate in the circumstances to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viiviii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) on a semi-annual basis report to the Collateral Agent (A) do the filing of any act application to register any Intellectual Property owned by the Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or omit to do any act whereby any portion state registry or foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (B) do the registration of any act or omit to do Intellectual Property owned by the Grantor by any act whereby any portion such office, and upon the request of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse EffectCollateral Agent, it shall not (nor shall execute and deliver to the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to infringe, misappropriate, or violate the intellectual property rights of any other Person; andSchedules thereto;
(ix) it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to the Collateral Agent any document reasonably required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(x) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute or file any financing statements or other similar documents or instruments that remain in effect, except financing statements or similar documents or instruments filed or to do so could be filed in favor of the Collateral Agent and each Grantor shall not reasonably be expected sell, assign, transfer, grant an exclusive license otherwise outside of the ordinary course of business, consistent with past practice, grant any option, or create or suffer to have a Material Adverse Effectexist any Lien upon or with respect to any material Intellectual Property, except for the Lien created or permitted by and under this Agreement and the other Credit Documents;
(xi) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees relevant employees, except to the extent that a Trade Secret is no longer material or necessary to the business of such Grantor or the Trade Secret no longer derives substantial value from not being known to the public, as determined by such Grantor in its reasonable business judgment; and
(xii) it shall use proper statutory notice in connection with its use of any material registered Copyrights, Trademarks and labeling Patents (and, if applicable, applications thereof) where necessary and restricting access to secret information and documentsproper in its reasonable business judgment.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Education Management Corporation), Pledge and Security Agreement (AID Restaurant, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i1) except where for Intellectual Property that is not in use and has negligible value, such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii2) except as could not reasonably be expected to have a Material Adverse Effectfor copyrights of negligible value, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv3) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall promptly notify the Collateral Agent if it such Grantor knows or has reason to know that any item of Material the Intellectual Property of Grantor that is in use or has more than negligible value may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt arbitral tribunal or regulatory agency;
(v4) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule VI(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for those pertaining to Intellectual Property that are no longer in use and have negligible value;
(vi5) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii6) except as could not reasonably be expected to have a Material Adverse Effect, it Grantor shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion maintain the level of the Copyrights may become invalidated or otherwise impaired quality of products sold and (B) do services rendered under any act or omit to do any act whereby any portion Trademark at a level at least substantially consistent with the quality of such products and services as of the Copyrights may fall into the public domaindate hereof, and Grantor shall take all steps necessary to insure that licensees of such Trademarks use such standards of quality;
(viii7) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall take all steps reasonably necessary to protect the secrecy confidentiality of all material Trade SecretsSecrets of Grantor, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret confidential information and documents;
(8) such Grantor shall promptly (but in no event more than thirty (30) days) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property whether it owns in whole or in part or to the best of its knowledge which it is exclusively licensing from a third party with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensor, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office, or (iii) the acquisition of any application or registration and, in each case, shall execute and deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto an executed Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement in form and substance satisfactory to the Agent;
(9) except with the prior consent of the Collateral Agent or as permitted under the Securities Purchase Agreement, Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent, and Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and the other Loan Documents.
(10) such Grantor shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any Intellectual Property acquired under such Contracts;
(11) such Grantor shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(12) such Grantor shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. In connection with such collections, such Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it no Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such owned or used by any Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which Security Interest therein would be adversely affect the validity, grant, or enforceability of the security interest granted therein;affected,
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks constituting Material Intellectual Property at a level consistent with reasonable business judgment, at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that control the quality of goods and services offered by its licensees of such Trademarks use such consistent standards of qualityconstituting Material Intellectual Property;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall promptly notify the Collateral Agent if it knows or has reason to know that any item of the Material Intellectual Property may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office any Intellectual Property Registry or any state registrycourt;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, applicable Intellectual Property Registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 4.7 constituting Material Intellectual Property (as such schedules schedule may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, diluted, misappropriated, or diluted otherwise violated by a third party, such each Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution the same and protect its enforce any rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) each Grantor shall report to the Collateral Agent (i) the filing of any application to register a copyright no later than thirty (30) days after such filing occurs (ii) the filing of any application to register any Intellectual Property with any other Intellectual Property Registry and the issuance thereof no later than ninety (90) days after such filing or issuance occurs and, in each case, simultaneously delivering to the Collateral Agent a supplemental Copyright, Patent or Trademark Security Agreement, as applicable, substantially in the form of Exhibit C-1, C-2 or C-3, as applicable, attached hereto, together with all schedules thereto. In addition, each Grantor hereby authorizes the Collateral Agent to modify this Agreement by amending Schedule 4.7 and will cooperate with each Agent in effecting any such amendment to include any new item of Intellectual Property included in the Collateral;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document or otherwise impaired and (B) do instrument required to acknowledge, confirm, register, record, or perfect the Security Interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainMaterial Intellectual Property;
(viii) except as could not reasonably be expected to have a Material Adverse Effectno Grantor shall execute, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriatefile, or violate authorize the intellectual property rights filing of any financing statement or other Person; anddocuments or instruments, except financing statements or other documents or instruments filed (or to be filed) in favor of the Collateral Agent, with respect to any Intellectual Property, and no Grantor shall sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to any Intellectual Property, except for the Security Interest and Permitted Encumbrances;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it each Grantor shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets constituting Material Intellectual Property; and
(x) each Grantor shall use statutory notice of registration in connection with its use of registered Trademarks constituting Material Intellectual Property, includingproper marking practices in connection with the use of Patents constituting Material Intellectual Property, without limitationappropriate notice of copyright in connection with the publication of Copyrighted materials constituting Material Intellectual Property, entering into confidentiality agreements with employees and labeling and restricting access legends or markings applicable to secret information and documentsother Intellectual Property constituting Material Intellectual Property.
Appears in 2 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i1) except where such act or failure to omission could for Intellectual Property that is not reasonably be expected to have a Material Adverse Effectin use and has negligible value, it Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii2) except as could not reasonably be expected for copyrights of negligible value, Grantor shall, within thirty (30) days of the creation or acquisition of any Copyrightable work which is material to have a Material Adverse Effectthe business of Grantor, apply to register the Copyright in the United States Copyright Office;
(3) it shall notpromptly notify the Secured Party if it knows or has reason to know that any item of the Intellectual Property that is in use or has more than negligible value of any Grantor may become (a) abandoned or dedicated to the public or placed in the public domain, with respect (b) invalid or unenforceable, or (c) subject to any Trademarks constituting Material adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, and state registry, any foreign counterpart of the foregoing, or any court arbitral tribunal or regulatory agency;
(4) it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and which is now or shall become included in the Intellectual PropertyProperty including, cease but not limited to, those items on Schedule VI(A), (C) and (E) (as each may be amended or supplemented from time to time) expect for those pertaining to IP that are no longer in use and has negligible value;
(5) in the use event that any Intellectual Property owned by or exclusively licensed to any Grantor is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Intellectual Property including, but not limited to, the initiation of any of such Trademarks or fail a suit for injunctive relief and to recover damages;
(6) it shall maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii7) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(8) it shall promptly (but in no event more than thirty (30) days) report to the Secured Party (i) the filing of any application to register any Intellectual Property whether it owns in whole or in part or to the best of its Knowledge which it is exclusively licensing from a third party with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensor, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office, or (iii) the acquisition of any application or registration and, in each case, shall execute and deliver to the Secured Party a completed Pledge Supplement, substantially in the form of Annex A attached hereto, together with all Supplements to Schedules thereto or signed counterpart of a Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement substantially in the form of Annexes B, C, and D, as applicable together with all supplements to the schedules thereto;
(9) except with the prior consent of the Secured Party or as permitted under the Note Purchase Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Secured Party and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Encumbrance upon or with respect to the Intellectual Property, except for the Encumbrance created by and under this Security Agreement and the other Transaction Documents;
(10) it shall not hereafter permit the inclusion in any contract to which it hereafter becomes a party of any provision that would impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any Intellectual Property acquired under such Contracts;
(11) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(12) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. In connection with such collections, each Grantor may take (and, at the Secured Party’s reasonable direction, shall take) such action as such Grantor or the Secured Party may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Secured Party shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Xfit Brands, Inc.), Pledge and Security Agreement (Xfit Brands, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor the Credit Parties, taken as a whole, may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of the Credit Parties, taken as a whole, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to the business of the Credit Parties, taken as a whole, apply to register the Copyright copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of the Credit Parties, taken as a whole, may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business the Credit Parties, taken as a whole, which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 3.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and the other Loan Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secretstrade secrets relating to the products and services sold or delivered under or in connection with the Intellectual Property, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) except as otherwise in the ordinary course of business as generally conducted by it on and prior to the date hereof, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent, upon the occurrence of an Event of Default and during the continuation thereof, may deem reasonably necessary or advisable to enforce collection of such amounts.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followswith the Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations that:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Secured Party if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Secured Party (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Secured Party a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Secured Party, execute and deliver to have a Material Adverse Effectthe Secured Party any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Secured Party's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Secured Party or as permitted under the Indenture, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Secured Party and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement the Notes, the Indenture, and the other Security Documents (as defined in the Indenture);
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secretstrade secrets relating to the products and services sold or delivered under or in connection with the Intellectual Property, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Secured Party's reasonable direction, shall take) such action as such Grantor or the Secured Party may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Secured Party shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Atlantic Coast Entertainment Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property owned by such Grantor which is material to the business of such any Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyowned by such Grantor which are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of any Grantor, apply to register the Copyright in the United States Copyright OfficeOffice or the Canadian counterpart thereof, of applicable;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property may that is material to the business of any Grantor is likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its the business of any Grantor which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)Collateral;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall confirm, register, record, or perfect the licensees or sublicensees under its control) do Collateral Agent's interest in any act that uses any Material part of the Intellectual Property to infringeCollateral, misappropriate, whether now owned or violate the intellectual property rights of any other Person; andhereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Term Loan Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property Collateral, except for the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets material to the business of any Grantor, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any Intellectual Property owned by such Grantor; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent's reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Notwithstanding anything contained herein to the contrary, each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not (A) do any act or omit to do any act whereby any of the Material Intellectual Property of such material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor may lapselapses or becomes invalidated, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive valueas applicable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, or (B) except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor (other than the licensing of such Intellectual Property in the ordinary course of business);
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary reasonable measures to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material Intellectual Property may become material Patents, Trademarks, Copyrights or Trade Secrets owned or used by any Grantor becomes, as applicable, (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any domain name registrar or any foreign counterpart of the foregoing, to pursue any application and maintain any registration (including, without limitation, the timely payment of all renewal and maintenance fees) of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property includingwhich Grantor, in its reasonable business judgment, believes should be pursued or maintained, but not limited to, those items on Schedules 11(a), 11(b), in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timexvi);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property (A) owned by any Grantor or (B) exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by any Person in a third partymanner that materially ▇▇▇▇▇ the Grantor, such Grantor shall promptly notify the Collateral Agent and take all actions that Grantor deems reasonable actions or appropriate under the circumstances (to the extent permitted under the applicable IP License and by applicable law) to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, as applicable, the initiation of a suit for injunctive relief and to recover damages;
(vi) in the event that any Grantor receives any written notice or communication alleging that such Grantor or the conduct of such Grantor’s business is infringing, misappropriating, diluting or otherwise violating any Patent, Trademark, Copyright or Trade Secret owned or controlled by any Person other than such Grantor, such Grantor shall promptly report such notice or communication to the Collateral Agent and take actions that such Grantor deems reasonable or appropriate under the circumstances, provided that such actions are in accordance with Sections 4.7(b)(xv) and (xvi).
(vii) except as could not reasonably be expected it shall, on a quarterly basis, report to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) the Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any domain name registrar or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired and through any agent, employee, licensee, or designee thereof) (B) do the registration of any act Patents, Trademarks, Copyrights or omit Trade Secrets by any such office, in each case by executing and delivering to do the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto and (C) any act whereby any portion of the Copyrights may fall new material IP Licenses entered into the public domainby Grantor;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the Collateral Agent’s interest in any part of Grantor’s Intellectual Property, whether now owned or hereafter acquired by such Grantor, including, without limitation, intellectual property rights security agreements in the form of any other Person; andExhibits F, G and H and the domain name control agreement in the form of Exhibit I, as applicable;
(ix) except where with the failure prior consent of the Collateral Agent or the First Lien Collateral Agent pursuant to do and in accordance with the First Lien Security Documents or as permitted under the Credit Agreement, each Grantor shall not execute, file or have filed in any public office, any financing statement or similar document or instruments, except financing statements or similar documents or instruments filed or to be filed in favor of the Collateral Agent or the First Lien Collateral Agent pursuant to the First Lien Security Documents, and, except as permitted under the Credit Agreement, each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien (except Permitted Liens) upon or with respect to the Intellectual Property used in the business of any Grantor, except for the Lien created by and under this Agreement and the other Credit Documents and Permitted Liens;
(x) it shall hereafter use commercially reasonable efforts so could as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would reasonably be expected likely to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment (upon an Event of Default) of, such Grantor’s interest in any Intellectual Property which Grantor acquires under such contracts;
(xi) it shall take all steps reasonably deemed necessary by Grantor, in its commercially reasonable business judgment, to protect the secrecy confidentiality of all material Trade Secrets, including, without limitation, entering into confidentiality and proprietary information and invention assignment agreements with employees and consultants and labeling and restricting access to secret confidential information and documents;
(xii) except as would not have a Material Adverse Effect, it shall use proper statutory notice in connection with its use of any of its Intellectual Property;
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property used in the business of any Grantor or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby;
(xiv) it shall continue to diligently prepare and file patent applications for all identified inventions that have come to the attention of senior management personnel, which Grantor, in its reasonable business judgment believes to be patentable and better protected under a Patent as opposed to any other form of Intellectual Property, but in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and (xvi);
(xv) within six months after the Effective Date (or such later date as the Administrative Agent may approve), Holdings shall prepare and obtain approval of the board of directors for a strategy for the protection, development, acquisition, licensing and prosecution of patents and other Intellectual Property and the assessment, monitoring and mitigation of, and response to, litigation, threats and other risks relating thereto (including defensive and offensive patent strategies). On a quarterly basis thereafter, Holdings shall report to the board of directors on Holdings’ progress on implementation of such strategy as it may be revised from time to time. Any material changes to such strategy or the implementation thereof shall be subject to prior approval of the board of directors. Such strategy and any material changes thereto shall be reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the only Events of Default resulting from any failure of Holdings to comply with its obligations in this paragraph shall be Holdings’ failure to provide the certificates referred to in paragraph (xvii) below or to obtain the approval of the board of directors referred to in this paragraph (xv); and
(xvi) each regular quarterly and annual compliance certificate required to be delivered to the Agent and the Lenders by Holdings pursuant to Section 5.1(d) of the Credit Agreement shall include a certification that Holdings has complied, in all material respects with its obligations to prepare and implement an Intellectual Property strategy and to obtain board approval for such strategy and for any material changes to such strategy or the implementation thereof or, if Holdings has not so complied, a statement to that effect.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Vonage Holdings Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where to the extent not material to its business as determined in good faith in such act or failure to omission could not reasonably be expected to have a Material Adverse EffectGrantor’s reasonable business judgment, it shall not do any act or omit to do any act whereby any of the Material material Intellectual Property of owned by such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall nottake, with respect to any Trademarks constituting Material Intellectual Propertyat its own expense, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, or any state registryforeign 24 counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business as determined in good faith in such Grantor’s reasonable business judgment which is now or shall become included in the Material Intellectual Property included in the Collateral including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeE);
(viiii) except where to the failure to do so could not reasonably be expected to have a Material Adverse Effect, extent determined in the event good faith in such Grantor’s reasonable business judgment that any Material Intellectual Property owned by or exclusively licensed to any such Grantor that is or has been material to its business is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages, as applicable;
(viiiv) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (report to the Collateral Agent and shall not permit any licensee or sublicensee thereof under its control to) the Administrative Agent (A) do the filing of any act application to register any Intellectual Property material to the conduct of its business with the United States Patent and Trademark Office or omit to do the United States Copyright Office (whether such application is filed by such Grantor or through any act whereby any portion of the Copyrights may become invalidated agent, employee, licensee, or otherwise impaired and designee thereof), (B) do the acquisition of any act such application or omit registration by purchase or assignment, and (C) the registration of any such Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent and the Administrative Agent a completed Pledge Supplement in each case of the Copyrights may fall into preceding clauses (A), (B) and (C), no later than the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall Quarterly Update Date for the licensees Fiscal Quarter during which such filing or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Personregistration was made; and
(ixv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary within a reasonable period of time upon the reasonable request of the Collateral Agent, execute and deliver to protect the secrecy Collateral Agent and the Administrative Agent at such Grantor’s expense any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of all Trade Secretsthe material Intellectual Property registered in the United States, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property that is material to the business of such said Grantor may lapse, lapse or become abandoned, abandoned or become dedicated to the public, invalid, or unenforceable, or placed unenforceable in the public domain, or, in the case of a Trade Secret, lose its competitive valueany material respect, or which would adversely affect in any material respect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office[reserved];
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry[reserved];
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each material Trademark, Patent, and Copyright owned by any Grantor and material to its business which that is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third partyparty and such action would reasonably be expected to have a Material Adverse Effect, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not within forty-five (45) days after the end of each Fiscal Quarter, report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto; provided that, for the Copyrights avoidance of doubt this Section 4.7(b) may fall into the public domainalso be satisfied by attaching an amended and restated Schedule 4.7 to such Pledge Supplement;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent (acting upon a Direction of the Requisite Lenders) or any Lender, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent (acting upon a Direction of the Requisite Lenders) or as permitted under the Credit Agreement, each Grantor shall not execute or authorize the filing of any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent or any holder of a Permitted Lien and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for Permitted Liens and the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use commercially reasonable efforts so could as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would reasonably be expected to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such ▇▇▇▇▇▇▇'s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use commercially reasonable efforts to use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all material amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iviii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)Property;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to the business of any Grantor is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Agent's interest in any act part of such Intellectual Property, whether now owned or omit to do any act whereby any portion of the Copyrights may fall into the public domainhereafter acquired;
(viii) except with the prior consent of the Collateral Agent, subject to the terms of the Intercreditor Agreement, or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Term Loan Credit Agreement, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent or the First Lien Collateral Agent and each Grantor shall the licensees or sublicensees under its control) do not sell, assign, transfer, license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate create or suffer to exist any Lien upon or with respect to the intellectual property rights of any Intellectual Property, except for the Lien created by and under this Agreement and the other Person; andCredit Documents and the First Priority Liens;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets material to the business of any Grantor, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents; and
(x) it shall continue to collect, at its own expense, and in accordance with reasonable business practices, all material amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent's reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, upon the occurrence and during the continuance of any Event of Default, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Carmike Cinemas Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect in any material respect the validity, grant, or enforceability of the security interest in favor of Collateral Agent granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) , in each case except where such failure to register could not reasonably be expected to have result in a Material Adverse Effect, ;
(iii) it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration);
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) , except where the such failure to do so take such action could not reasonably be expected to have result in a Material Adverse Effect, ;
(vi) in the event that any Material Intellectual Property material to the business of such Grantor owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions as it determines are appropriate in the exercise of its commercially reasonable judgment, to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) , except as where failure to take such action could not reasonably be expected to have result in a Material Adverse Effect, ;
(vii) it shall not (and shall not permit any licensee or sublicensee thereof under its control to) promptly report to Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or omit to do any act whereby any portion state registry or foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (B) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all applicable Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of Collateral Agent, execute and deliver to have a Material Adverse EffectCollateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect Collateral Agent's interest in any part of the intellectual property rights of any other Person; andIntellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of Collateral Agent or as permitted under the Credit Agreement, (A) each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of Collateral Agent and (B) each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement, the other Credit Documents and the Senior Secured Note Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, includingat its own expense, without limitationall amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, entering into confidentiality agreements each Grantor may take (and, at Collateral Agent's reasonable direction, shall take) such action as such Grantor or Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) Office except where for works with respect to which the failure to do Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so could not reasonably be expected to have a Material Adverse Effect, apply; it shall promptly notify the Term Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; except for works with respect to which the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for works that the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is of significant value or has been is material to the business of any Grantor is, to such Grantor's knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages (except for works that the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;);
(vi) it shall promptly (but in no event more than ten (10) days before in the case of any Copyrights and otherwise no more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Term Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Term Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Term Collateral Agent, execute and deliver to the Term Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Term Collateral Agent's interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Term Collateral Agent (not to be unreasonably withheld) or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Term Credit Agreement, it each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments (nor other than financing statements, documents or instruments filed in respect of Permitted Liens) and each Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Intellectual Property, except for (1) the Lien created by and under its controlthis Agreement and the other Credit Documents, and (2) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andPermitted Liens;
(ix) except where it shall hereafter use commercially reasonable efforts so as not to permit the failure inclusion in, or omission from, any Material Contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Term Collateral Agent's reasonable direction (subject to the terms of the Intercreditor Agreement), shall take) such action as such Grantor or the Term Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Term Collateral Agent shall have the right (subject to the terms of the Intercreditor Agreement) at any time to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(iA) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;; *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
(iiB) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iiiC) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(ivD) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it any Authorized Officer knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(vE) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viF) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor and necessary to the conduct of its business is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viiG) except as could not reasonably be expected to have a Material Adverse Effect, it shall not report quarterly to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viiiH) it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired; *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.
(I) except with the prior consent of the Collateral Agent or as could permitted under the Financing Agreement, each Grantor shall not reasonably execute, and there will not be expected on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to have a Material Adverse Effectbe filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Loan Documents;
(J) it shall hereafter use best efforts so as not (nor shall to permit the licensees inclusion in any contract to which it hereafter becomes a party of any provision that could or sublicensees under its control) do might in any act that uses way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any Material property included within the definitions of any Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andacquired under such contracts;
(ixK) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(L) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(M) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time after and during the continuance of an Event of Defult, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to the business of such Grantor is, to such Grantor's knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, (except for such works in respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not take any action);
(vi) it shall promptly (but not limited toin no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any material Intellectual Property with the United States Patent and Trademark Office, the initiation United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent a suit for injunctive relief and completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to recover damagesSchedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Agent's interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Collateral Agent (not to be unreasonably withheld) or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Credit Agreement, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and each Grantor shall the licensees or sublicensees under its control) do not sell, assign, transfer, license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate create or suffer to exist any Lien upon or with respect to the intellectual property rights of any Intellectual Property, except for the Lien created by and under this Agreement and the other PersonCredit Documents; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary hereafter use commercially reasonable efforts so as not to protect permit the secrecy inclusion in any material contract to which it hereafter becomes a party of all Trade Secretsany provision that could or might in any way materially impair or prevent the creation of a security interest in, includingor the assignment of, without limitationsuch Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts, entering provided that this shall not apply to standard form contracts entered into confidentiality agreements with employees and labeling and restricting access to secret information and documentsin the ordinary course of business.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Achievement Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(iA) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectas permitted under the Secured Agreements, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereintherein or herein;
(iiB) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office or any state registryOffice, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Collateral constituting Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.2(A), 11(b), (B) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeC);
(viC) except where reasonably promptly following each anniversary of the failure date hereof or at any time upon the request of the Collateral Agent (at the written direction of the Acting Secured Parties), it shall report to do so could not reasonably be expected Collateral Agent (i) the filing of any new application to have a Material Adverse Effectregister any Intellectual Property with the United States Patent and Trademark Office or the United States Copyright Office (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) any new registration of any Intellectual Property by any such office, in each case by executing and delivering to Collateral Agent a completed Security Agreement Supplement, substantially in the event form of Exhibit A attached hereto, together with a supplement to Schedule 4.2; provided that in the case -------- of any Material Intellectual Property owned by or exclusively licensed that is the subject of any proposed filing described in the preceding clause (i) that is reasonably expected at the time of such filing to any Grantor is or has been infringed, misappropriated, or diluted by a third partybe material to the operation of such Grantor's business, such Grantor shall promptly take all reasonable actions also provide, within ten (10) days prior to stop filing, notice of such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and filing to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other PersonCollateral Agent; and
(ixD) except where if requested by the failure Collateral Agent (at the written direction of the Acting Secured Parties) in connection with the actions required pursuant to do so could not reasonably be expected to have a Material Adverse EffectSection 4.2(b)(C), it shall take all steps reasonably necessary promptly execute and deliver to protect Collateral Agent any document required to acknowledge, confirm, register, record, or perfect Collateral Agent's interest in any part of the secrecy of all Trade Secretsnew Intellectual Property, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where it shall (a) within thirty (30) days of the Closing Date, file with the United States Patent and Trademark Office, the United States Copyright Office and the Canadian counterpart of such act or failure offices documents sufficient to omission could not reasonably be expected ensure that all U.S. and Canadian registrations and applications for Copyrights, Patents and Trademarks listed on Schedule 4.6(a)(i) stand in the name of a Grantor and shall immediately provide the Parity Lien Collateral Trustee with copies of such filings; and (b) within one hundred eight (180) days of the Closing Date, file with all other foreign counterparts to have the United States Patent and Trademark Office and the United States Copyright Office documents sufficient to ensure that all other foreign registrations and applications for Copyrights, Patents and Trademarks listed on Schedule 4.6(a)(i) stand in the name of a Material Adverse Effect, Grantor and shall immediately provide Parity Lien Collateral Trustee with copies of such filings;
(ii) it shall not do any act or omit to do any act whereby any of the Material Intellectual Property owned by a Grantor which is material to the business of such a Grantor may could reasonably be expected to lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(iiiii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyowned by or licensed to a Grantor which are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all such commercially reasonable steps as are necessary to insure that licensees of such Trademarks use such consistent the standards of qualityquality set by such Grantor;
(iiiiv) except where such failure within thirty (30) days of the date hereof with respect to register could any Copyrights set forth on Schedule 4.6(i) that were not reasonably be expected to have a Material Adverse Effectstanding in the name of any Grantor upon the effectiveness of the Closing Date and, it shallin all other cases, promptly following within sixty (60) days of the creation or acquisition by a Grantor of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice and record therein all documents necessary to effectuate such acquisition;
(ivv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Parity Lien Collateral Agent Trustee if it knows or has reason to know that any item of Material Intellectual Property owned by or licensed to a Grantor that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(vvi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.6(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vivii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted misappropriated by a third partyparty and Grantor becomes aware of such infringement or misappropriation, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, infringement or dilution misappropriation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viiviii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Parity Lien Collateral Trustee the filing by or on behalf of a Grantor of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired and (B) do through any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effectagent, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeemployee, misappropriatelicensee, or violate the intellectual property rights of any other Person; anddesignee thereof);
(ix) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Parity Lien Collateral Trustee the registration by or on behalf of a Grantor of any Intellectual Property by any such office, in each case by executing and delivering to the Parity Lien Collateral Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(x) it shall, promptly upon the reasonable request of the Parity Lien Collateral Trustee, execute and deliver to the Parity Lien Collateral Trustee any document required to acknowledge, confirm, register, record, or perfect the Parity Lien Collateral Trustee’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(xi) except where with the failure prior consent of the Parity Lien Collateral Trustee or as permitted under the each of the Parity Lien Documents, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Parity Lien Collateral Trustee and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents and Permitted Liens;
(xii) it shall hereafter use reasonable best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xiii) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all Trade Secrets;
(xiv) it shall use proper statutory notice in connection with its use of any of the material Intellectual Property owned by a Grantor; and
(xv) it shall continue to collect, includingat its own expense, without limitationall amounts due or to become due to such Grantor in respect of the Intellectual Property owned by a Grantor or any portion thereof. In connection with such collections, entering into confidentiality agreements each Grantor may take (and, at the Parity Lien Collateral Trustee’s reasonable direction, shall take) such action as such Grantor or the Collection Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Parity Lien Collateral Trustee shall have the right at any time after an Event of Default has occurred and is continuing, to notify, or require any Grantor to notify, any obligors with employees respect to any such amounts of the existence of the security interest created hereby, and labeling following and restricting access during the continuation of an Event of Default, may take such action as the Parity Lien Collateral Trustee may deem reasonably necessary to secret information and documentsenforce collection of such amounts.
Appears in 1 contract
Sources: Pledge and Security Agreement (NewPage Energy Services LLC)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where for Intellectual Property that is not in use and has no material value as determined by such act or failure to omission could not reasonably be expected to have a Material Adverse EffectGrantor in its reasonable business judgment, it such Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor included in the Collateral may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effectfor Copyrights of no material value, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywork, apply to register the Copyright in the United States Copyright OfficeOffice and such Grantor shall record its interest in any exclusive license of a Copyright to such Grantor in the U.S. Copyright Office within thirty (30) days of the execution of such license;
(iviii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material Intellectual Property included in the Collateral that is in use or has more than negligible value may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry;
(v) except where , any foreign counterpart of the failure to do so foregoing, or any court arbitral tribunal or regulatory agency, and such event could not be reasonably be expected to have a Material Adverse Effect, it ;
(iv) such Grantor shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, including the payment of applicable fees, to pursue any application for, and maintain any issued Patent and registration of of, each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which that is now or shall become included in the Material Intellectual Property Collateral including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate SCHEDULE VI (as such schedules schedule may be amended or supplemented from time to time)) except for those items of Intellectual Property that are no longer in use or have no material value;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all actions deemed advisable in its reasonable actions business judgment to stop such infringement, misappropriation, dilution or dilution other violation and to protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viivi) except such Grantor shall maintain the quality of products and services sold under any Trademark owned by such Grantor at a level that is at least substantially consistent to that prevailing as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired date hereof, and (B) do any act or omit such Grantor shall take all steps necessary in accordance with reasonable business practice to do any act whereby any portion insure that licensees of such Trademarks observe the Copyrights may fall into the public domainstandards of quality contained in their related license agreements;
(viiivii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets;
(viii) such Grantor shall promptly (but in any event within thirty (30) days) report to the Agent any and all of the following: (i) the filing by such Grantor or on its behalf of any application to register any Intellectual Property owned by such Grantor in whole or in part, includingwith the United States Patent and Trademark Office, without limitationthe United States Copyright Office, entering into confidentiality agreements any state registry or foreign counterpart of the foregoing, (ii) the registration of any Intellectual Property owned by such Grantor in whole or in part by any such office, (iii) the acquisition by such Grantor of any issued Patent, or application or registration of any other Intellectual Property, or (iv) the existence of any contract granting an Intellectual Property license which is in the nature of a contract described in SECTION 4.7(a)(xii), and, in each case, such Grantor shall immediately notify the Agent thereof and deliver to the Agent supplements to Schedules hereto and signed counterparts of a Patent Security Agreement and a Trademark Security Agreement suitable for recording a security interest in the applicable type of Intellectual Property, together with employees all supplements to the schedules thereto;
(ix) except with the prior consent of the Agent or as permitted under the Credit Agreement, such Grantor shall not execute, and labeling there will not be on file in any public office, any financing statement or other document or instrument, except financing statements or other documents or instruments filed or to be filed in favor of the Agent and restricting access such Grantor shall not sell, assign, transfer, license, grant any option with respect to, or create any Lien upon, any Intellectual Property, except for Permitted Liens and the Liens created by and under this Security and Pledge Agreement and the other Facility Documents;
(x) it shall use commercially reasonable efforts to secret information avoid the inclusion in any Patent License, Copyright License, Trademark License, Trade Secret License or any other Contract regarding Intellectual Property to which it hereafter becomes a party, of provisions that would impair or prevent the creation of a security interest in, or the assignment of, such Grantor's rights and documentsinterests under such Contract or in, any Intellectual Property acquired under such Contracts;
(xi) it shall use statutory notices of registration in connection with its use of any registered Trademarks, proper marking practices in connection with the use of Patents, if any, and appropriate notices of copyright in connection with the publication of material Copyrighted works; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. In connection with such collections, such Grantor may take (and, at the Agent's reasonable direction, shall take) such action as such Grantor or the Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act It will not, knowingly or failure to omission could not reasonably be expected to have a Material Adverse Effectintentionally, nor will it shall not permit any of its licensees (or sublicensees) to, do any act act, or omit to do any act act, whereby any Patent that is related to the conduct of the Material Intellectual Property of such Grantor its business may lapse, become invalidated or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in and it shall use its reasonable best efforts to continue to ▇▇▇▇ any products covered by a Patent with the public domain, or, in the case of a Trade Secret, lose relevant patent number as necessary and sufficient to establish and preserve its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;maximum rights under applicable patent laws.
(ii) except as could It will (either directly or through its licensees or its sublicensees), for each Trademark that is necessary for the conduct of its business, (A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non use, (B) display such Trademark with notice of Federal or other analogous registration to the extent necessary and sufficient to establish and preserve its rights under applicable law, and (C) not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease knowingly use or knowingly permit the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality in violation of such products any third party’s valid and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;legal rights.
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will promptly notify the Collateral Agent in writing if it knows or has reason to know that any item of Material Intellectual Property material to the conduct of its business may become (x) abandoned abandoned, lost or dedicated to the public or placed in the public domain, (y) invalid or unenforceablepublic, or (z) subject to of any adverse determination or development (including the institution of proceedings) in of, or any action such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States or any other country) regarding such Grantor’s ownership of any such Intellectual Property, its right to register the same, or to keep and maintain the same.
(iv) In no event shall it, either directly or through any agent, employee, licensee or designee, file an application for any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry;similar offices in the United States or any other country, unless it promptly notifies the Collateral Agent in writing thereof and, upon request of the Collateral Agent, executes and delivers any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Collateral Agent’s security interest in such Intellectual Property, and such Grantor hereby appoints the Collateral Agent as its attorney in fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will take all reasonable necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any state registrysimilar offices or tribunals in the United States and the European Union, and except as otherwise determined in its good faith business judgment, any other country, to maintain and pursue any each material application relating to the Intellectual Property owned or held by it (and to obtain the relevant grant or registration) and to maintain any registration of each Trademark, Patent, issued Patent and each registered Trademark and Copyright owned by any Grantor and that is material to the conduct of its business which is now or shall become included in the Material Intellectual Property includingbusiness, but not limited toincluding timely filings of applications for renewal, those items on Schedules 11(a)affidavits of use, 11(b)affidavits of incontestability and payment of maintenance fees, and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectand, if consistent, in good faith, with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property owned by or exclusively licensed material to any Grantor is or the conduct of its business has been or is about to be infringed, misappropriated, misappropriated or diluted by a third party, such Grantor it promptly shall notify the Collateral Agent in writing and shall, if consistent with good business judgment, promptly take ▇▇▇ for infringement, misappropriation or dilution and to recover any and all reasonable actions to stop damages for such infringement, misappropriationmisappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Intellectual Property.
(vi) During the continuance of an Event of Default, it shall use its reasonable best efforts to obtain all requisite consents or dilution approvals by the licenser of each License to effect the assignment (as collateral security) of all of its right, title and protect interest thereunder to the Collateral Agent or its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;designee.
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it It shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets relating to the products and services sold or delivered under or in connection with the Intellectual Property owned or held by, including, without limitation, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
(viii) It shall in accordance with its past practices continue to collect all amounts due or to become due to such Grantor under all Intellectual Property, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to notify, or require such Grantor to notify, any relevant obligors with respect to such amounts of the Collateral Agent’s security interest therein.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectfor the security interest created by this Agreement, it shall not do create or suffer to exist any act Lien upon or omit with respect to do any act whereby any of the Material Intellectual Property of such Grantor may lapseCollateral, or become abandonedexcept Permitted Liens, dedicated to and it shall defend the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security Collateral against all Persons at any time claiming any interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall notnot produce, with respect use or permit any Collateral to any Trademarks constituting Material Intellectual Property, cease the use be used unlawfully or in violation of any provision of such Trademarks this Agreement or fail to maintain any applicable statute, regulation or ordinance or any policy of insurance covering the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of qualityCollateral;
(iii) except where it shall not change its name, identity, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such failure Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Agent in writing, at least thirty (30) days prior to register could not any such change or establishment, identifying such new proposed name, identity, Exhibit E-11 corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Agent may reasonably be expected request and (b) taken all actions necessary or advisable to have a Material Adverse Effectmaintain the continuous validity, it shall, promptly following perfection and the creation same or acquisition better priority of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright Agent's security interest in the United States Copyright OfficeCollateral granted or intended to be granted and agreed to hereby;
(iv) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except where to the extent the validity thereof is being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on such Grantor's books in accordance with GAAP; provided, such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not later than five (5) days prior to the date of any proposed sale under any judgment, writ or warrant of attachment entered or filed against such Grantor or any of the Collateral as a result of the failure to do so could not reasonably be expected to have a Material Adverse Effectmake such payment;
(v) upon such Grantor or any officer of such Grantor obtaining knowledge thereof, it shall promptly notify the Agent in writing of any event that may materially and adversely affect the value of the Collateral or any material portion thereof, the ability of such Grantor or the Agent if it knows that to dispose of the Collateral or any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceablematerial portion thereof, or (z) subject to any adverse determination or development (including the institution rights and remedies of proceedings) the Agent in any action or proceeding in the United States Patent and Trademark Officerelation thereto, including, without limitation, the United States Copyright Office levy of any legal process against the Collateral or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)portion thereof;
(vi) except where it shall not take or permit any action which could impair the failure to do so could not reasonably be expected to have a Material Adverse Effect, Agent's rights in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesCollateral;
(vii) except as could not reasonably be expected to have a Material Adverse Effectexpressly permitted by the Credit Agreement, it shall not sell, transfer or assign (and shall not permit by operation of law or otherwise) any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;Collateral; and
(viii) except such Grantor will take, and will cause each of its Subsidiaries to take, all action or actions as could not reasonably may be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect prevent any of the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsCollateral from becoming fixtures.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsfollows until the payment in full of the Secured Obligations and termination of the Commitments:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, except to the extent that a particular item of Intellectual Property is no longer material or necessary to the business of such Grantor;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality, except to the extent that a Trademark is no longer material or necessary to the business of such Grantor;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertythe registration of which is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any material adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and the maintenance or registration of which is material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 3.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been materially infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Collateral Agent Intellectual Property Security Interest Assignments and any other document required to infringeacknowledge, misappropriateconfirm, register, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, (A) no Grantor shall execute, and there will not be on file in any public office, any financing statement or other document or instruments which remain in effect, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and (B) such Grantor shall not sell, assign, transfer, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and the other Credit Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all commercially reasonable steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets relating to the products and services sold or delivered under or in connection with the Intellectual Property, including, without limitation, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents, except to the extent that a Trade Secret is no longer material or necessary to the business of such Grantor;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property where necessary and proper; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, any Grantor may take (and, at the Collateral Agent's reasonable direction, shall take) such action as such Grantor or after the occurrence and during the continuance of an Event of Default, the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Berry Plastics Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(iA) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectas permitted under the Secured Agreements, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereintherein or herein;
(iiB) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office or any state registryOffice, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Collateral constituting Intellectual Property (except for such Intellectual Property with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.2(A), 11(b), (B) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeC);
(viC) except where it shall (i) within 15 calendar days after either the end of each calendar year or the request of the Collateral Agent (at the written direction of the Acting Secured Parties), report to Collateral Agent (1) any new application that has been filed during the preceding calendar year in the name of such Grantor to register any Intellectual Property not constituting Excluded Collateral with the United States Patent and Trademark Office or the United States Copyright Office, and (2) any new registration of such Intellectual Property by any such office, in each case, by executing and delivering to Collateral Agent a completed Security Agreement Supplement, substantially in the form of Exhibit A attached hereto, together with a supplement to Schedule 4.2 and (ii) provide Collateral Agent, within ten (10) days prior to any filing described in clause (i)
(1) of this Paragraph (C), written notice of such filing; provided, however, that any failure to do so could comply with the requirements of this clause (ii) shall not reasonably constitute a Default if (I) the actions previously taken in connection with this Agreement are effective, and following such filing will continue to be expected effective, to have a Material Adverse Effect, create and perfect the security interest intended to be created hereby in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringewhich such filing relates, misappropriate(II) such filing relates to Intellectual Property that is not reasonably expected to be material to the business of such Grantor at the time of such filing, or violate (III) such failure is subsequently remedied at a time when no other Lien (other than a Permitted Lien) on the intellectual property rights of any other PersonIntellectual Property to which such filing relates shall have attached and become perfected; and
(ixD) except where if requested by the failure Collateral Agent (such request to do so could not reasonably be expected given at the written request of the Acting Secured Parties) in connection with the actions required pursuant to have a Material Adverse EffectSection 4.2(b)(C), it shall take all steps reasonably necessary promptly execute and deliver to protect Collateral Agent any document required to acknowledge, confirm, register, record, or perfect Collateral Agent's interest in any part of the secrecy of all Trade Secretsnew Intellectual Property, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Notwithstanding anything contained herein to the contrary, each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not (A) do any act or omit to do any act whereby any of the Material Intellectual Property of such material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor may lapselapses or becomes invalidated, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive valueas applicable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, or (B) except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor (other than the licensing of such Intellectual Property in the ordinary course of business);
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary reasonable measures to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material Intellectual Property may become material Patents, Trademarks, Copyrights or Trade Secrets owned or used by any Grantor becomes, as applicable, (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any domain name registrar or any foreign counterpart of the foregoing, to pursue any application and maintain any registration (including, without limitation, the timely payment of all renewal and maintenance fees) of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property includingwhich Grantor, in its reasonable business judgment, believes should be pursued or maintained, but not limited to, those items on Schedules 11(a), 11(b), in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timexvi);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property (A) owned by any Grantor or (B) exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by any Person in a third partymanner that materially ▇▇▇▇▇ the Grantor, such Grantor shall promptly notify the Collateral Agent and take all actions that Grantor deems reasonable actions or appropriate under the circumstances (to the extent permitted under the applicable IP License and by applicable law) to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, as applicable, the initiation of a suit for injunctive relief and to recover damages;
(vi) in the event that any Grantor receives any written notice or communication alleging that such Grantor or the conduct of such Grantor’s business is infringing, misappropriating, diluting or otherwise violating any Patent, Trademark, Copyright or Trade Secret owned or controlled by any Person other than such Grantor, such Grantor shall promptly report such notice or communication to the Collateral Agent and take actions that such Grantor deems reasonable or appropriate under the circumstances, provided that such actions are in accordance with Sections 4.7(b)(xv) and (xvi).
(vii) except as could not reasonably be expected it shall, on a quarterly basis, report to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) the Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any domain name registrar or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired and through any agent, employee, licensee, or designee thereof) (B) do the registration of any act Patents, Trademarks, Copyrights or omit Trade Secrets by any such office, in each case by executing and delivering to do the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto and (C) any act whereby any portion of the Copyrights may fall new material IP Licenses entered into the public domainby Grantor;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the Collateral Agent’s interest in any part of Grantor’s Intellectual Property, whether now owned or hereafter acquired by such Grantor, including, without limitation, intellectual property rights security agreements in the form of any other Person; andExhibits F, G and H and the domain name control agreement in the form of Exhibit I, as applicable;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, file or have filed in any public office, any financing statement or similar document or instruments, except financing statements or similar documents or instruments filed or to do be filed in favor of the Collateral Agent, and, except as permitted under the Credit Agreement, each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien (except Permitted Liens) upon or with respect to the Intellectual Property used in the business of any Grantor, except for the Lien created by and under this Agreement and the other Credit Documents and Permitted Liens;
(x) it shall hereafter use commercially reasonable efforts so could as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would reasonably be expected likely to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment (upon an Event of Default) of, such Grantor’s interest in any Intellectual Property which Grantor acquires under such contracts;
(xi) it shall take all steps reasonably deemed necessary by Grantor, in its commercially reasonable business judgment, to protect the secrecy confidentiality of all material Trade Secrets, including, without limitation, entering into confidentiality and proprietary information and invention assignment agreements with employees and consultants and labeling and restricting access to secret confidential information and documents;
(xii) except as would not have a Material Adverse Effect, it shall use proper statutory notice in connection with its use of any of its Intellectual Property;
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property used in the business of any Grantor or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby;
(xiv) it shall continue to diligently prepare and file patent applications for all identified inventions that have come to the attention of senior management personnel, which Grantor, in its reasonable business judgment believes to be patentable and better protected under a Patent as opposed to any other form of Intellectual Property, but in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and (xvi);
(xv) within six months after the Effective Date (or such later date as the Administrative Agent may approve), Holdings shall prepare and obtain approval of the board of directors for a strategy for the protection, development, acquisition, licensing and prosecution of patents and other Intellectual Property and the assessment, monitoring and mitigation of, and response to, litigation, threats and other risks relating thereto (including defensive and offensive patent strategies). On a quarterly basis thereafter, Holdings shall report to the board of directors on Holdings’ progress on implementation of such strategy as it may be revised from time to time. Any material changes to such strategy or the implementation thereof shall be subject to prior approval of the board of directors. Such strategy and any material changes thereto shall be reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the only Events of Default resulting from any failure of Holdings to comply with its obligations in this paragraph shall be Holdings’ failure to provide the certificates referred to in paragraph (xvii) below or to obtain the approval of the board of directors referred to in this paragraph (xv); and
(xvi) each regular quarterly and annual compliance certificate required to be delivered to the Agent and the Lenders by Holdings pursuant to Section 5.1(d) of the Credit Agreement shall include a certification that Holdings has complied, in all material respects with its obligations to prepare and implement an Intellectual Property strategy and to obtain board approval for such strategy and for any material changes to such strategy or the implementation thereof or, if Holdings has not so complied, a statement to that effect.
Appears in 1 contract
Sources: First Lien Pledge and Security Agreement (Vonage Holdings Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsfollows until the payment in full of the Secured Obligations:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not not, unless consistent with reasonable commercial judgment, do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, except to the extent that a particular item of Intellectual Property is no longer material or necessary to the business of such Grantor;
(ii) except as could not reasonably be expected to have a Material Adverse Effectit shall not, unless consistent with reasonable commercial judgment, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of such Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all commercially reasonable steps necessary to insure ensure that licensees of such Trademarks use such consistent standards of quality, except to the extent that a Trademark is no longer material or necessary to the business of such Grantor;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Agent, in writing, if it knows or has reason to know that any item of Material the Intellectual Property may that is material to the business of such Grantor is reasonably likely to become (xxi) abandoned or dedicated to the public or placed in the public domain, (yxii) invalid or unenforceable, or (zxiii) subject to any material adverse determination or development development, (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain foreign counterpart of the foregoing, or any registration of each Trademarkcourt, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included other than routine office actions in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)ordinary course of prosecution;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor Borrower and its Subsidiaries, taken as a whole, may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Borrower and its Subsidiaries, taken as a whole, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary use commercially reasonable efforts to insure that cause licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of Borrower and its Subsidiaries, taken as a whole, may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.10(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to the business of such Grantor is, to such Grantor’s knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not take such actions;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not it shall, subject to the Intercreditor Agreement, execute and deliver to the Collateral Agent any document reasonably be expected requested by the Collateral Agent to have a Material Adverse Effectacknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired (including, but not limited to Trademark Security Agreements, Copyright Security Agreements and Patent Security Agreements), in the form of Exhibits B, C and D, respectively);
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do so could be filed in favor of the First Lien Collateral Agent and except as permitted in the Credit Agreement each Grantor shall not reasonably be expected sell, assign, transfer, license, grant any option, or create or suffer to have a Material Adverse Effectexist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement, the other Loan Documents, the First Lien Credit Agreement and the related documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts; and
(xi) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction, after the occurrence and during the continuance of an Event of Default shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Collateral Agent shall have the right at any time, after the occurrence and during the continuance of all Trade Secretsan Event of Default, includingto notify, without limitationor require any Grantor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Paramount Acquisition Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;; SECOND LIEN PLEDGE AND SECURITY AGREEMENT EXECUTION
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor in the United States, apply to register the Copyright in the United States Copyright Office, provided, however, that the Company may, in its prudent business judgment, decide that it shall not apply to register such Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property may that is material to the business of any Grantor is likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not timely report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectIntellectual Property, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.whether now owned or hereafter acquired;
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Reprographics CO)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, cancelled, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Security Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court) or (d) the subject of any asserted reversion or termination rights;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration or issuance of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property Property, including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property that is material to any Grantor’s business and owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Security Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office, (iii) the acquisition of any Intellectual Property that is registered or applied for in any such office, and (iv) the filing of any “statement of use” or “amendment to allege use” in the PTO with respect to any “intent to use” Trademark application owned by such Grantor, in each case by executing and delivering to the Security Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Security Agent, execute and deliver to the Security Agent any document (including each Intellectual Property Security Agreement) required to acknowledge, confirm, register, record or otherwise impaired and (B) do perfect the Security Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Security Agent or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Credit Agreement, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Security Agent and each Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Intellectual Property, except for the Lien created by and under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate this Agreement and the intellectual property rights of any other Person; andLoan Documents and other Permitted Liens;
(ix) except where it shall hereafter use best efforts so as not to permit the failure inclusion in any contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property material to have a Material Adverse Effect, such Grantor’s business acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice, in all material respects, in connection with its use of any of the Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Security Agent’s reasonable direction, shall take) such action as such Grantor or the Security Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Security Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Loans Pledge and Security Agreement (Altice USA, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not therein where such act or omission would be reasonably be expected likely to have a Material Adverse Effect, ;
(ii) it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except quality where such cessation or failure, or any failure to register could not take such steps, has had or would be reasonably be expected likely to have a Material Adverse Effect, ;
(iii) it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any material adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 3.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor and material to its business is or has been materially infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do so could be filed in favor of the Collateral Agent and each Grantor shall not reasonably be expected sell, assign, transfer, license, grant any option, or create or suffer to have a Material Adverse Effectexist any Security Interest upon or with respect to the Intellectual Property, except for the Security Interest created by and under this Security Agreement and the other Senior Finance Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that materially impairs or prevents the creation of a security interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps such action as such Grantor may reasonably deem necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, following the occurrence and during the continuation of all Trade Secretsan Event of Default, includingthe Collateral Agent shall have the right, without limitationat any time, entering into confidentiality agreements to notify, or require any Grantor to notify, any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Security and Pledge Agreement (Delta I Acquisition Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat until the payment in full of all Obligations (other than unmatured contingent obligations), the cancellation or termination of all Commitments, the expiration or termination of the Swap Agreement, all Hedge Agreements and all agreements for Specified Secured Hedge Indebtedness and the cancellation or expiration of all outstanding Letters of Credit:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectfor the security interest created by this Agreement, it shall not do create or suffer to exist any act Lien upon or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereofCollateral, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse EffectPermitted Liens, it shalland, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not be reasonably be expected to have a Material Adverse Effect, it such Grantor shall promptly notify defend the Collateral Agent if it knows that against all Persons at any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to time claiming any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registryinterest therein;
(vii) it shall not produce, use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or, except where the failure to do so could not be reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Officeany applicable statute, the United States Copyright Office regulation or ordinance or any state registry, to pursue any application and maintain any registration policy of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in insurance covering the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)Collateral;
(viiii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise) sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall, promptly after such change, and shall not permit any licensee in no event later than 15 days after such change (a) notify the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, identifying such new name, identity, corporate structure, sole place of business (or sublicensee thereof under its control toprincipal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) (A) do any act take all actions necessary to maintain the continuous validity, perfection and the same or omit to do any act whereby any portion better priority of the Copyrights may become invalidated or otherwise impaired Collateral Agent’s security interest in the Collateral intended to be granted and (B) do any act or omit agreed to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Personhereby; and
(ixiv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise permitted in accordance with the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsCredit Agreement.
Appears in 1 contract
Sources: First Lien Pledge and Security Agreement (CVR Energy Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, lapse or become abandoned, dedicated to the public, invalid, public or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, grant or enforceability of the security interest granted thereinherein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of such Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold sold, if any, and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within sixty (60) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to the business of such Grantor, apply to register the Copyright in the United States Copyright Office, and it shall record its interest in any exclusive license of a Copyright to such Grantor in the United States Copyright Office within sixty (60) days of the execution of such license;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that is material to the business of such Grantor may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, unenforceable or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing or any court, arbitral tribunal or regulatory agency;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registry, foreign counterpart of the foregoing to pursue any application and maintain any registration of each Trademark, Patent, Patent and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for those items of Intellectual Property with respect to which such Grantor has determined, in the exercise of its commercially reasonable judgment, are no longer in use or have negligible value), including, but not limited to, those items on Schedules 11(a)Sections A, 11(b), C and 11(c) to the Perfection Certificate E of Schedule 4.7 (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its exclusive rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee or sublicensee thereof under its control todesignee thereof), (ii) the registration of any Intellectual Property by any such office, (Aiii) do the acquisition by such Grantor of any act application or omit to do registration of any act whereby any portion of the Copyrights may become invalidated or otherwise impaired Intellectual Property and (Biv) do the existence of any act or omit agreement granting an Intellectual Property license which is in the nature of an agreement described in Section 4.7(a)(xiii), in each case by executing and delivering to do any act whereby any portion of the Copyrights may fall into the public domainCollateral Agent a completed Pledge Supplement, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of Collateral Agent, execute and deliver to have a Material Adverse EffectCollateral Agent any document required to acknowledge, it shall not (nor shall confirm, register, record or perfect Collateral Agent's security interest in any part of the licensees Intellectual Property, whether now owned or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andhereafter acquired;
(ix) except where with the failure prior consent of Collateral Agent or as permitted under the Credit Agreement, such Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of Collateral Agent, and such Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and the other Credit Documents and Permitted Liens, if any;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation hereunder of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property such Grantor acquires under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality and nondisclosure agreements with employees and other Persons having access to such Trade Secrets and labeling and restricting access to secret information Trade Secrets;
(xii) it shall use appropriate statutory notices of registration in connection with its use of registered Trademarks, proper marking practices in connection with the use of Patents and documentsappropriate notices of copyright in connection with the publication of Copyrights, in each case material to the business of such Grantor; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, Grantor may take (and, at Collateral Agent's reasonable direction, shall take) such action as such Grantor or Collateral Agent may deem reasonably necessary to enforce collection of such amounts. Notwithstanding the foregoing, Collateral Agent shall have the right at any time, to notify, or require such Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any reasonable act whereby any of the Material Intellectual Property which is material to the business of such the Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereintherein except as permitted by the Credit Agreement;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Trustee if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (B) and 11(c(C) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, at such Grantor’s discretion, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall quarterly report to the Collateral Trustee (i) the filing of any application to register any material Intellectual Property with the United States Patent and Trademark Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Patents, Trademarks, and, to the extent practicable, material Copyrights, by any such office, in each case by executing and delivering to the Collateral Trustee a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Trustee, execute and deliver to the Collateral Trustee any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Trustee’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall hereafter use commercially reasonable efforts so as not (nor shall to permit the licensees inclusion in any contract to which it hereafter becomes a party of any provision that could or sublicensees under its control) do might in any act that uses way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any Material property included within the definitions of any Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andacquired under such contracts;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(x) it shall continue to collect, in the ordinary course of business, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Trustee’s reasonable direction, shall take) such action as such Grantor or the Collateral Trustee may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Trustee shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Houghton Mifflin Co)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any commercially unreasonable act whereby any of the Material Intellectual Property which in its reasonable judgment is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, as determined in its reasonable judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly within sixty (60) days following the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeOffice except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Intellectual Property that in its reasonable judgment is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt, except as would not have a Material Adverse Effect;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time), except as would not have a Material Adverse Effect;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that in its reasonable judgment is or has been material to the business of such Grantor is, to such Grantor’s knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but (except for such works in respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not limited to, the initiation of a suit for injunctive relief and to recover damagestake any action);
(vii) except as could not reasonably be expected to have On the Quarterly Reporting Date after a Material Adverse Effectfiling or registration described in clause (i) or (ii) takes place, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any material Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(ix) except as could with the prior consent of the Collateral Agent (not reasonably to be expected unreasonably withheld) or with respect to have a Material Adverse EffectPermitted Liens, it each Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and each Grantor shall the licensees or sublicensees under its control) do not license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate create or suffer to exist any Lien upon or with respect to the intellectual property rights material Intellectual Property, except for (a) the Liens created by and under this Agreement and the other Credit Documents and (b) licenses entered into in the ordinary course of any other Personbusiness of such Grantor; and
(ixx) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any Material Contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts, provided that this shall not apply to standard form contracts entered into in the ordinary course of business.
(xi) it shall use proper statutory notice in connection with its use of any Patent, except where the failure to do so could would not reasonably be expected to have a Material Adverse Effect; and
(xii) unless otherwise determined in the exercise of business judgment, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the material Intellectual Property or any portion thereof. Following the occurrence and during the continuance of an Event of Default, in connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary to protect the secrecy enforce collection of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.such
Appears in 1 contract
Sources: Pledge and Security Agreement (Easton-Bell Sports, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act Except to the extent that action or failure to omission could not act would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, it shall not will not, nor will it permit any of its licensees (or sublicensees) to, do any act act, or omit to do any act act, whereby any material Patent included in the Collateral that is related to the conduct of the Material Intellectual Property of such Grantor its business may lapse, become invalidated or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in and it shall continue to mark any products covered by a Patent with the public domain, or, in the case of a Trade Secret, lose relevant patent number as necessary to establish and preserve its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;maximum rights under applicable patent laws.
(ii) except as could not Except to the extent that action or failure to act would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, it shall notwill (either directly or through its licensees or its sublicensees), with respect for each Trademark included in the Collateral that is related to the conduct of its business, (A) maintain such Trademark in full force free from any Trademarks constituting Material Intellectual Propertyclaim of abandonment or invalidity for non-use, cease the use of any of such Trademarks or fail to (B) maintain the level of the quality of products sold and services rendered offered under any of such Trademark, (C) display such Trademark at a level at least substantially consistent with notice of Federal or other analogous registration to the quality of such products extent necessary to establish and services as of the date hereofpreserve its rights under applicable law, and each Grantor shall take all steps necessary (D) not knowingly use or knowingly permit any of its licensees or sublicensees to insure that licensees of such Trademarks use such consistent standards Trademark in violation of quality;any third party’s valid and legal rights.
(iii) except where such Except to the extent that action or failure to register could not act would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, it shallwill (either directly or through its licensees or its sublicensees), promptly following the creation or acquisition of any Copyrightable for each material work constituting Material Intellectual Property, apply to register the covered by a Copyright included in the United States Copyright Office;Collateral that is related to the conduct of its business, continue to publish, reproduce, display, adopt and distribute such work with appropriate copyright notice as necessary to establish and preserve its maximum rights under applicable copyright laws.
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will promptly notify the Collateral Agent Lender in writing if it knows that any item of Material Intellectual Property included in the Collateral material to the conduct of its business may become (x) abandoned abandoned, lost or dedicated to the public or placed in the public domain, (y) invalid or unenforceablepublic, or (z) subject to of any adverse determination or development (including the institution of proceedings) in of, or any action such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States of America or any other country) regarding such Grantor’s ownership of any such Intellectual Property, its right to register the same, or to keep and maintain the same.
(v) In no event shall it, either directly or through any agent, employee, licensee or designee, file an application for any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry;similar offices in the United States of America or any other country, unless it promptly notifies the Lender in writing thereof and, upon the reasonable request of the Lender, executes and delivers any and all agreements, instruments, documents and papers as the Lender may reasonably request to evidence the Lender’s security interest in such Intellectual Property, and such Grantor hereby appoints the Lender as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.
(vvi) except where Except to the extent that action or failure to do so could not act would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, it shall will take all reasonable necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any state registrysimilar offices or tribunals in the United States of America or any other country, to maintain and pursue any each material application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material relating to its business which is now or shall become the Intellectual Property included in the Material Intellectual Property including, but not limited to, those items Collateral owned or held by it or on Schedules 11(a), 11(b), its behalf (and 11(cto obtain the relevant grant or registration) and to maintain each issued Patent and each registered Trademark and Copyright included in the Collateral that is material to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectconduct of its business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent, in good faith, with reasonable business judgment, to initiate opposition, interference and cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property owned by or exclusively licensed included in the Collateral material to any Grantor is or the conduct of its business has been or is about to be infringed, misappropriated, misappropriated or diluted by a third party, such Grantor it promptly shall notify the Lender in writing and shall, if consistent, in good faith, with reasonable business judgment, promptly take sue for infringement, misappropriation or dilution and to recover any and all reasonable actions to stop damages for such infringement, misappropriationmisappropriation or dilution, or dilution and take such other actions consistent with reasonable business practices under the circumstances to protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;Property.
(vii) except as could not reasonably be expected to have a Material Adverse EffectDuring the continuance of an Event of Default, it shall not use its best efforts to obtain all requisite consents or approvals by the licensor of each License included in the Collateral owned or held by it or on its behalf to effect the assignment (as collateral security) of all of its right, title and shall not permit any licensee interest thereunder to the Lender or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;designee.
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it It shall take all reasonable steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets used in the conduct of its business, including, without limitation, entering into confidentiality agreements with employees and labeling and including restricting access to secret information such Trade Secrets.
(ix) It shall continue to collect all amounts due or to become due to such Grantor under all licenses of Intellectual Property included in the Collateral owned or held by it or on its behalf, and documentsdiligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Lender may reasonably deem necessary. Notwithstanding the foregoing, the Lender shall have the right at any time after the occurrence and during the continuance of an Event of Default to notify, or require such Grantor to notify, any relevant obligors with respect to such amounts of the Lender’s security interest therein.
(x) On the date hereof, each Grantor having Trademarks (or applications with respect thereto), Patents (or applications with respect thereto) or Copyrights (or applications with respect thereto) shall execute and deliver to the Lender a Trademark Security Agreement, Patent Security Agreement and/or Copyright Security Agreement, as applicable, upon request by the Lender.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants Section 5.1. Conduct of Business by the Company or Parent. From and agrees after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except (i) as followsmay be required by law (provided that any party availing itself of such exception must first consult with the other party), (ii) as may be agreed in writing by Parent and the Company, (iii) as may be expressly permitted pursuant to this Agreement, or (iv) as set forth in Section 5.1 of the Company Disclosure Schedule or the Parent Disclosure Schedule, as the case may be:
(a) the Company:
(i) except where such act or failure shall, and shall cause each of its Subsidiaries to, conduct its operations according to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any their ordinary and usual course of business in substantially the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereinsame manner as heretofore conducted;
(ii) shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organiza tion and goodwill (except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of that any of such Trademarks its Subsidiaries may be merged with or fail to maintain the level of the quality of products sold and services rendered under into, or be consolidated with any of such Trademark at a level at least substantially consistent its other Subsidiaries or may be liquidated into the Company or any of its Subsidiaries), keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with the quality of such products Company and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of qualityits Subsidiaries;
(iii) except where shall confer at such failure times as Parent may reasonably request with one or more representatives of Parent to register could not report material operational matters and the general status of ongoing operations (to the extent Parent reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Officerequires such information);
(iv) except where shall notify Parent of any emergency or other change in the failure to do so normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries' respective properties and of any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of any governmen tal body or authority if such emergency, change, complaint, investigation or hearing could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify Effect on the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registryCompany;
(v) shall not, and shall not (except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Officeordinary course of business consistent with past practice) permit any of its Subsidiaries that is not wholly owned to, the United States Copyright Office authorize or pay any state registry, to pursue dividends on or make any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material distribution with respect to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)outstanding shares of stock;
(vi) except where shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock or issue or authorize or propose the failure to do so could not reasonably be expected to have a Material Adverse Effectissuance of any other securities in respect of, in the event that lieu of or in substitution for, shares of its capital stock, except for any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted such transaction by a third party, wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagestransaction;
(vii) except as could not reasonably be expected to have a Material Adverse Effectshall not, it shall not (and shall not permit any licensee of its Subsidiaries to, except in the ordinary course of business consistent with past practice, enter into or sublicensee thereof under its control to) (A) do amend any act employment, severance or omit to do similar agreements or arrangements with any act whereby any portion of the Copyrights may become invalidated their respective directors or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainexecutive officers;
(viii) except as could not reasonably be expected to have a Material Adverse Effectshall not, it and shall not (nor shall the licensees permit any of its Subsidiaries to, authorize, propose or sublicensees under its control) do any act that uses any Material Intellectual Property announce an intention to infringe, misappropriateauthorize or propose, or violate enter into an agreement with respect to, any merger, consolidation or business combination (other than (A) the intellectual property rights Merger and (B) any mergers, consolidations or business combinations with the Company's Subsidiaries entered into in the ordinary course of business consistent with past practice or which comply with the size of transactions limitations set forth at the end of this clause (viii)), any other Person; andacquisition of assets or securities, any disposition of assets or securities or any release or relinquishment of material contract rights, in each case not in the ordinary course of business consistent with past practice, except that the Company may acquire or dispose of assets or securities in transactions where the fair market value of the consideration paid or received does not exceed $25 million in any single transaction or $100 million in all such transactions;
(ix) shall not propose or adopt any amendments to its corporate charter or by-laws;
(x) shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of their capital stock of any class (whether through the issuance or granting of options, warrants, commit ments, subscriptions, rights to purchase or otherwise);
(xi) shall not, and shall not permit any of its Subsidiaries to, grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock;
(xii) shall not, and shall not permit any of its Subsidiaries to, purchase or redeem any shares of its stock or any rights, warrants or options to acquire any such shares;
(xiii) shall not, and shall not permit any of its Subsidiaries to, amend in any respect the terms of their respective employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements in existence on the date hereof, or adopt any new employee benefit plans, programs or arrangements or any severance or similar agreements or arrangements;
(xiv) shall not, and shall not permit any of its Subsidiaries to, incur, assume or prepay any indebtedness or any other material liabilities, other than in the ordinary course of business consistent with past practice;
(xv) shall not, and shall not permit any of its Subsidiaries to, (i) make any loans, advances or capital contributions to, or investments in, any other person, other than by the Company or a Subsidiary of the Company to or in the Company or any wholly-owned Subsidiary of the Company or (ii) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than indebtedness, issuances of debt securities, guarantees, loans, advances, capital contributions, investments, payments, discharges or satisfactions incurred or committed to in the ordinary course of business consistent with past practice;
(xvi) shall not sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets (including securitizations), other than in the ordinary course of business consistent with past practice;
(xvii) shall not, and shall not permit any of its Subsidiaries to, (i) make any Tax election or settle or compromise any Tax liability or (ii) change its fiscal year;
(xviii) except where as disclosed in the failure Company SEC Reports filed prior to do so could the date of this Agreement, or as required by a governmental body or authority, shall not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy change its methods of all Trade Secrets, accounting (including, without limitation, entering into confidentiality agreements make any material write-off or reduction in the carrying value of any assets) in effect at December 31, 1997, except as required by changes in GAAP as concurred in by the Company's independent auditors;
(xix) shall not, and shall not permit any of its Subsidiaries to, take any action or fail to take any action which action or failure to act would, or would be reasonably likely to, prevent the parties hereto from accounting for the Merger in accordance with employees and labeling and restricting access to secret information and documents.the pooling of interests method of accounting under the requirements of Opinion No. 16 "Business Combinations" of the Accounting Principles Board of the American Institute of Certified Public Accountants, as amended by applicable pronouncements by the Financial Accounting Standards Board ("APB No. 16"); and
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby Borrower covenants and agrees as follows:
(a) Except for substances normally used for maintenance or operation of the Property which are used, stored and disposed of in accordance with all applicable Environmental Regulations, Borrower shall not, nor shall it permit others to, place, store, locate, generate, produce, create, process, treat, handle, transport, incorporate, discharge, emit, spill, release, deposit or dispose of any Hazardous Substance in, upon, under, over or from the Property. Borrower shall cause all Hazardous Substances found on or under the Property, which are not permitted under the foregoing sentence, to be properly removed therefrom and properly disposed of at Borrower's cost and expense. Borrower shall not install or permit to be installed any underground storage tank on or under the Property. Borrower shall give written notice to Lender prior to a change in the operations on the Property.
(b) In the event that (i) except where such act or failure to omission could not Lender reasonably be expected to believes that a violation of an Environmental Regulation may have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of occurred in connection with the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
Property; (ii) except as Lender receives notice from Borrower or otherwise has knowledge that an event described in subparagraph 3(d) has occurred; (iii) Lender reasonably believes that a representation or warranty of Borrower in Paragraph 2 was untrue in any material respect when made or has become untrue in any material respect; (iv) Lender receives notice from Borrower or otherwise has knowledge of a change in operations on the Property and Lender reasonably believes that the new operations may entail the presence of more or different Hazardous Substances on the Property; or (v) Lender reasonably believes that Hazardous Substances are present on the Property which were not previously known by Lender to be present on the Property; then, in any such event, Borrower shall at its cost obtain and deliver to Lender an environmental review, audit, assessment and/or report relating to the Property or shall have any previously delivered materials updated and/or amplified, by an engineer or scientist selected by Borrower and acceptable to Lender; if Borrower fails to do so within forty-five (45) days after such request is made, Lender shall have the right to do so, in which event Borrower shall reimburse Lender for the cost incurred by
(c) Borrower shall comply with all Accessibility Regulations which are applicable to the Property. In the event that (i) Lender reasonably believes that a material violation of an Accessibility Regulation may have occurred in connection with the Property; or (ii) Lender receives notice from Borrower or otherwise has knowledge that an event described in subparagraph 3(d) and pertaining to Accessibility Regulations has occurred; then, in any such event, Borrower shall at its cost obtain and deliver to Lender an Accessibility Regulation compliance report relating to the Property or shall have any previously delivered materials updated and/or amplified, by a qualified consultant selected by Borrower and acceptable to Lender; if Borrower fails to do so within forty-five (45) days after such request is made, Lender shall have the right to do so, in which event Borrower shall reimburse Lender for the cost incurred by Lender in doing so within ten (10) days following demand therefor by Lender.
(d) Borrower shall, promptly after obtaining actual knowledge thereof, give notice to Lender of: (i) any activity in violation of any applicable Environmental Regulations relating to the Property, (ii) any governmental or regulatory actions instituted or threatened under any Environmental Regulations or any Accessibility Regulations affecting the Property, (iii) all claims made or threatened by any third party against the Borrower or the Property relating to any Hazardous Substance or a violation of any Environmental Regulations or any Accessibility Regulations, (iv) discovery by Borrower of any occurrence or condition on or under the Property or on or under any real property adjoining or in the vicinity of the Property which could not reasonably be expected subject Borrower, Lender or the Property to have a Material Adverse Effect, it claim under any Environmental Regulations or Accessibility Regulations. Any such notice shall not, include copies of any written materials received by Borrower.
(e) Any investigation or any remedial or corrective action taken with respect to any Trademarks constituting Material Intellectual Propertythe Property shall be done under the supervision of a qualified consultant, cease engineer or scientist acceptable to Lender who shall, at Borrower's cost and at the use completion of such investigation or action, provide a written report of such investigation or action to Lender. Borrower shall also provide Lender with a copy of any interim reports prepared in connection with any such investigation or action.
(f) If the Property has, or is suspected to have, asbestos or asbestos containing materials ("ACM") which, due to its condition or location or due to any planned building renovation or demolition, is recommended to be abated by repair, encapsulation, removal or other action, Borrower shall promptly carry out the recommended abatement action. If the recommended abatement includes removal of ACM, Borrower shall cause the same to be removed and disposed of offsite by a licensed and experienced asbestos removal contractor, all in accordance with Environmental Regulations. Upon completion of the recommended abatement action, Borrower shall deliver to Lender a certificate, signed by an officer of Borrower and the consultant overseeing the abatement action, certifying to Lender that the work has been completed in compliance with all applicable laws, ordinances, codes and regulations (including without limitation those regarding notification, removal and disposal) and that no airborne fibers beyond permissible exposure limits remain on site. Borrower shall develop and implement an Operations and Maintenance Program (as contemplated by Environmental Protection Agency guidance document entitled "Managing Asbestos In Place; A Building Owner's Guide to Operations and Maintenance Programs for Asbestos-Containing Materials") for managing in place any ACM at or in the Property. Borrower shall deliver a complete copy of such Trademarks or fail Operations and Maintenance Program to maintain the level of the quality of products sold Lender and services rendered under any of certify to Lender that such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or Program has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsimplemented.
Appears in 1 contract
Sources: Environmental and Ada Indemnification Agreement (Reuter Manufacturing Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act It will not, knowingly or failure to omission could not reasonably be expected to have a Material Adverse Effectintentionally, nor will it shall not permit any of its licensees (or sublicensees) to, do any act act, or omit to do any act act, whereby any Patent that is related to the conduct of the Material Intellectual Property of such Grantor its business may lapse, become invalidated or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in and it shall use its reasonable best efforts to continue to ▇▇▇▇ any products covered by a Patent with the public domain, or, in the case of a Trade Secret, lose relevant patent number as necessary and sufficient to establish and preserve its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;maximum rights under applicable patent laws.
(ii) except as could It will (either directly or through its licensees or its sublicensees), for each Trademark that is necessary for the conduct of its business, (A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non use, (B) display such Trademark with notice of Federal or other analogous registration to the extent necessary and sufficient to establish and preserve its rights under applicable law, and (C) not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease knowingly use or knowingly permit the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality in violation of such products any third party’s valid and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;legal rights.
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will promptly notify the Collateral Agent in writing if it knows or has reason to know that any item of Material Intellectual Property material to the conduct of its business may become (x) abandoned abandoned, lost or dedicated to the public or placed in the public domain, (y) invalid or unenforceablepublic, or (z) subject to of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States or any other country) regarding such Grantor’s ownership of proceedingsany such Intellectual Property, its right to register the same, or to keep and maintain the same.
(iv) Within thirty (30) days following the last day of each fiscal quarter (and at such other times as the Collateral Agent shall reasonably request) each Grantor shall execute and deliver to the Collateral Agent a Copyright Security Agreement, Trademark Security Agreement and/or Patent Security Agreement, as applicable, containing a description of all Intellectual Property in which such Grantor has obtained an ownership interest during such fiscal quarter or which is not otherwise covered by any previously filed Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, as applicable, and each Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.
(v) It will take all necessary steps that are consistent with the practice in any action or proceeding in before the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps similar offices or tribunals in the United States and the European Union, and except as otherwise determined in its good faith business judgment, any other country, to maintain and pursue each material application relating to the Intellectual Property owned or held by it (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registered Trademark Officeand Copyright that is material to the conduct of its business, the United States Copyright Office or any state registryincluding timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent, in good faith, with good business judgment, to pursue any application initiate opposition, interference and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property owned by or exclusively licensed material to any Grantor is or the conduct of its business has been or is about to be infringed, misappropriated, misappropriated or diluted by a third party, such Grantor it promptly shall notify the Collateral Agent in writing and shall, if consistent with good business judgment, promptly take ▇▇▇ for infringement, misappropriation or dilution and to recover any and all reasonable actions to stop damages for such infringement, misappropriationmisappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Intellectual Property.
(vi) During the continuance of an Event of Default, it shall use its reasonable best efforts to obtain all requisite consents or dilution approvals by the licenser of each License to effect the assignment (as collateral security) of all of its right, title and protect interest thereunder to the Collateral Agent or its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;designee.
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it It shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets relating to the products and services sold or delivered under or in connection with the Intellectual Property owned or held by, including, without limitation, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
(viii) It shall in accordance with its past practices continue to collect all amounts due or to become due to such Grantor under all Intellectual Property, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to notify, or require such Grantor to notify, any relevant obligors with respect to such amounts of the Collateral Agent’s security interest therein.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission for Copyrights the loss of which could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywork, apply to register the Copyright in the United States Copyright OfficeOffice and such Grantor shall record such Grantor’s interest in any exclusive license of a Copyright to such Grantor in the U.S. Copyright Office within thirty (30) days of the execution of such license;
(ivii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Grantor shall promptly notify the Collateral Administrative Agent if it such Grantor knows or has reason to know that any item of Material Intellectual Property included in the Collateral that is in use and has more than negligible value may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark OfficeUSPTO, the United States Copyright Office or Office, any state registry;
(v) except where , any foreign counterpart of the failure to do so foregoing, or any court arbitral tribunal or regulatory agency, in each case if such event could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(viiii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and to protect its such Grantor’s exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) , in each case except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viiiiv) such Grantor shall, concurrently with any delivery of financial statements under Sections 5.01(a) or (b) of the Credit Agreement, report to the Administrative Agent of any and all of the following: (i) the filing by Grantor or on such Grantor’s behalf of any application to register any Intellectual Property, owned by such Grantor in whole or in part, with the USPTO, the United States Copyright Office, any state registry or any foreign counterpart of the foregoing, (ii) the registration of any Intellectual Property owned by Grantor in whole or in part by any such office, and (iii) the acquisition by such Grantor of any issued Patent, or application or registration of any other Intellectual Property, and, in each case, such Grantor shall deliver to the Administrative Agent signed counterparts of the Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement, as applicable, together with all Supplements to the Schedules thereto;
(v) such Grantor shall use commercially reasonable efforts to avoid the inclusion in any Patent License, Copyright License, Trademark License, Trade Secret License or any other Contract regarding Intellectual Property to which such Grantor hereafter becomes a party, of provisions that would prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests under such Contract or in any Intellectual Property acquired under such Contracts; and
(vi) such Grantor shall use statutory notice of registration in connection with such Grantor’s use of any of any registered Trademarks, proper marking practices in connection with the use of Patents, and appropriate notice of copyright in connection with the publication of Copyrighted material, except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
Appears in 1 contract
Sources: Pledge and Security Agreement (Talecris Biotherapeutics Holdings Corp.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where (i) for the abandonment of Owned Intellectual Property no longer beneficial or necessary to the operation of such act or failure to omission could Grantor’s business, (ii) as permitted by the Credit Agreement and, (iii) after the Discharge of Credit Obligations, not reasonably be expected to have a Material Adverse Effectprohibited by any Other First Lien Agreement, it shall not knowingly do any act or omit to do any act whereby that would cause any of the Material Intellectual Property of such Grantor may to lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, not cease the use of any Trademarks included in the Owned Intellectual Property of such Trademarks Grantor or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality; provided, however, that the foregoing shall not oblige such Grantor to continue to use any Trademark that such Grantor determines, in its reasonable business judgment, is no longer beneficial or necessary to the operation of such Grantor’s business;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the Owned Intellectual Property of such Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court (excluding any non-final determinations of the United States Patent and Trademark Office with respect to pending Trademark applications); provided, however, that no such notice shall be required if any item of Owned Intellectual Property is abandoned (x) in connection with a contribution, distribution, transfer or assignment of Intellectual Property that is permissible pursuant to the Credit Agreement or after the Discharge of Credit Obligations, not prohibited by any Other First Lien Agreement or (y) following such Grantor’s determination, in its reasonable business judgment, that such Owned Intellectual Property is no longer beneficial or necessary to the operation of such Grantor’s business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain (except as permitted by the Credit Agreement and, after the Discharge of Credit Obligations, not prohibited by any Other First Lien Agreement) any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become hereafter included in the Material Owned Intellectual Property of such Grantor including, but not limited to, those items on Schedules 11(a), 11(b), and 11(cSchedule 4.5(A) to the Perfection Certificate (as such schedules schedule may be amended or supplemented from time to time); provided, however, that the foregoing shall not oblige such Grantor to pursue any application or maintain any registration for any Trademark, Patent or Copyright that such Grantor determines, in its reasonable business judgment, is no longer beneficial or necessary to the operation of such Grantor’s business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Owned Intellectual Property owned by or exclusively licensed to any of such Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable such actions with respect to stop such infringement, misappropriation, or dilution and as such Grantor deems necessary or appropriate in its reasonable business judgment to protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages, if such Grantor deems such a suit necessary or appropriate;
(vi) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing in such Grantor’s name of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration in such Grantor’s name of any Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, and shall confirm the attachment of the Lien and security interest created by this Agreement to any rights described in clauses (i) and (ii) above by execution of an instrument in form reasonably acceptable to the Collateral Agent and the filing of any instruments or statements as shall be reasonably necessary to create, preserve, protect or perfect the Collateral Agent’s security interest in such Intellectual Property; provided that the provisions hereof shall automatically apply thereto and any such item enumerated in the preceding clause (i) or (ii) and any such Intellectual Property shall automatically constitute Collateral hereunder and be subject to the Lien and security interest created by this Agreement without further action by any party;
(vii) except with the prior consent of the Collateral Agent or as could permitted under the Credit Agreement and, after the Discharge of Credit Obligations, not reasonably be expected to have a Material Adverse Effectprohibited by any Other First Lien Agreement, it each Grantor shall not (execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and each Grantor shall not permit sell, assign, transfer, license, grant any licensee option, or sublicensee thereof create or suffer to exist any Lien upon or with respect to the Material Intellectual Property, except for the Lien created by and under its control to) (A) do any act or omit to do any act whereby any portion this Agreement and the other Secured Credit Documents and licenses granted in the ordinary course of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainbusiness;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under use proper statutory notice in connection with its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights use of any other Personof the Owned Intellectual Property, consistent with such Grantor’s past practice; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Owned Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat until the payment in full of all Obligations (other than unmatured contingent obligations), the cancellation or termination of all Commitments, the expiration or termination of all Hedge Agreements and the cancellation or expiration of all outstanding Letters of Credit:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks Trademarks, unless the products or services rendered under any such Trademark are being discontinued in the reasonable business judgment of the applicable Grantor, or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary commercially reasonable measures to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domaindomain (except, in the case of Patents or Copyrights, due to the expiration of the statutory term of such item of Intellectual Property), (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) adverse proceedings in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions action to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents and sales, assignments, transfers, licenses and grants of options to Subsidiaries of the Company;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary commercially reasonable measures to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: First Lien Pledge and Security Agreement (Day International Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where to the extent deemed prudent in its reasonable business judgment as determined by such act or failure to omission could not reasonably be expected to have a Material Adverse EffectGrantor in good faith and in the ordinary course of business as generally conducted by it, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor Specified Product IP Rights may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except to the extent deemed prudent in its reasonable business judgment as could not reasonably be expected to have a Material Adverse Effectdetermined by such Grantor in good faith and in the ordinary course of business as generally conducted by it, it shall not, with respect to any Product Trademarks constituting Material Intellectual Propertyowned or in-licensed by the Grantor, cease the use of any of such Product Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Product Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Product Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effectfor the abandonment of applications that occurs in the ordinary course of prosecution, it shall, promptly following on a quarterly basis, after any Grantor obtains knowledge thereof and in any case prior to any abandonment or dedication to the creation public or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright placement in the United States Copyright Office;
(ivpublic domain occurring) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Administrative Agent if it knows that any item of Material Intellectual Property the Specified Product IP Rights that constitutes Collateral may become (xa) abandoned or dedicated to the public or placed in the public domain, domain or (yb) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(viv) except where for the failure to do so could not reasonably be expected to have a Material Adverse Effectabandonment of applications that occurs in the ordinary course of prosecution, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Product Trademark, Patent, Product Patent and Product Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property any Specified Product IP Rights including, but not limited to, those items on Schedules 11(a), 11(b), Schedule 4.5(A) and 11(c(B) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to timetime pursuant to Section 5.1);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that Grantor becomes aware that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been Specified Product IP Rights are infringed, misappropriated, or diluted by a third party, to the extent deemed prudent in its reasonable business judgment as determined by such Grantor in good faith or in the ordinary course of business as generally conducted by it, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property Specified Product IP Rights, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall, on a quarterly basis, report to the Administrative Agent (i) the filing of any application to register any Product Intellectual Property Rights with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee (excluding a Generic Licensee), or designee thereof by or on behalf of the Grantor) and (ii) the registration of any Product Intellectual Property Rights by any such office by or on behalf of the Grantor, in each case by executing and delivering to the Administrative Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto and shall execute and deliver to the Administrative Agent with respect to any such Product Intellectual Property Rights a Patent Security Agreement, Trademark Security Agreement or Copyright Security Agreement, as applicable, in each case in the forms attached hereto as Exhibits B, C and D;
(vii) it shall, promptly upon the request of the Administrative Agent, execute and deliver to the Administrative Agent any document required to acknowledge, confirm, register, record, or perfect the Administrative Agent’s interest in any part of the Owned Intellectual Property Rights, whether now owned or hereafter acquired;
(viii) except with the prior written consent of the Administrative Agent or as permitted under the Financing Agreement, each Grantor shall not execute, shall not file and shall not consent to the filing of any financing statement or other document or instruments in any public office, except financing statements or other documents or instruments filed or to be filed in favor of the Administrative Agent;
(ix) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Product Intellectual Property Rights acquired under such contracts;
(x) to the extent deemed prudent in its reasonable business judgment as determined by such Grantor in good faith or in the ordinary course of business as generally conducted by it, it shall not (take reasonable steps to maintain the confidentiality of, and shall not permit any licensee or sublicensee thereof under otherwise protect and enforce its control to) rights in, non-public Product Intellectual Property Rights, including, as applicable (A) do any act or omit protecting the secrecy and confidentiality of its confidential information and Product Trade Secrets by having and enforcing a policy requiring all current employees, consultants, licensees, vendors and contractors with access to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired such information to execute appropriate confidentiality agreements and (B) do any act taking actions reasonably necessary to ensure that no Product Trade Secret owned or omit to do any act whereby any portion of in-licensed by the Copyrights may fall Grantor falls into the public domain;
(viiixi) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor enter, and shall the licensees prohibit any of its Subsidiaries from entering, into any agreement to receive any license or sublicensees under its control) do rights in any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights Rights of any other PersonPerson which relate to the Product, any clinical trial for the Product administered by or on behalf of the Company (including the ATHENA Trial) or the research, development, use, manufacture, licensure, packaging, processing, delivery or Commercialization of the Product, or any services provided in connection with the Product, unless such Grantor has used commercially reasonable efforts to permit the assignment or grant of a security interest in such agreement (and all rights of Grantor thereunder) to the Administrative Agent (and any transferees of the Administrative Agent); and
(ixxii) except where notwithstanding the failure foregoing, the Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to do so could not reasonably be expected notify, or require any Grantor to have a Material Adverse Effectnotify, it shall take all steps reasonably necessary any obligors with respect to protect any such amounts of the secrecy existence of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Clovis Oncology, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(iA) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectas permitted under the Indenture and the Security Documents, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereintherein or herein;
(iiB) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office or any state registryOffice, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Collateral constituting Intellectual Property (except for such Intellectual Property with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.2(A), 11(b), (B) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeC);
(viC) except where it shall (i) within 15 calendar days after either the end of each calendar year or the request of the Collateral Trustee (at the written direction of the Secured Parties), report to Collateral Trustee (1) any new application that has been filed during the preceding calendar year in the name of such Grantor to register any Intellectual Property not constituting Excluded Collateral with the United States Patent and Trademark Office or the United States Copyright Office, and (2) any new registration of such Intellectual Property by any such office, in each case, by executing and delivering to Collateral Trustee a completed Security Agreement Supplement, substantially in the form of Exhibit A attached hereto, together with a supplement to Schedule 4.2 and (ii) provide Collateral Trustee, within ten (10) days prior to any filing described in clause (i)(1) of this Paragraph (C), written notice of such filing; provided, however, that any failure to do so could comply with the requirements of this clause (ii) shall not reasonably constitute a Default if (I) the actions previously taken in connection with this Agreement are effective, and following such filing will continue to be expected effective, to have a Material Adverse Effect, create and perfect the security interest intended to be created hereby in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringewhich such filing relates, misappropriate(II) such filing relates to Intellectual Property that is not reasonably expected to be material to the business of such Grantor at the time of such filing, or violate (III) such failure is subsequently remedied at a time when no other Lien (other than a Permitted Lien) on the intellectual property rights of any other PersonIntellectual Property to which such filing relates shall have attached and become perfected; and
(ixD) except where if requested by the failure Collateral Trustee (such request to do so could not reasonably be expected given at the written request of the Holders) in connection with the actions required pursuant to have a Material Adverse EffectSection 4.2(b)(C), it shall take all steps reasonably necessary promptly execute and deliver to protect Collateral Trustee any document required to acknowledge, confirm, register, record, or perfect Collateral Trustee’s interest in any part of the secrecy of all Trade Secretsnew Intellectual Property, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby Mortgagor covenants and agrees as follows:
(a) Except for substances normally used for maintenance or operation of the Property which are used, stored and disposed of in accordance with all applicable Environmental Regulations, Mortgagor shall not, nor shall it permit others to, place, store, locate, generate, produce, create, process, treat, handle, transport, incorporate, discharge, emit, spill, release, deposit or dispose of any Hazardous Substance in, upon, under, over or from the Property. Mortgagor shall cause all Hazardous Substances found on or under the Property, which are not permitted under the foregoing sentence, to be properly removed therefrom and properly disposed of at Mortgagor’s cost and expense. Mortgagor shall not install or permit to be installed any underground storage tank on or under the Property. Mortgagor shall give written notice to Lender prior to a change in the operations on the Property.
(b) In the event that (i) except where such act or failure to omission could not Lender reasonably be expected to believes that a violation of an Environmental Regulation may have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of occurred in connection with the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
Property; (ii) except as Lender receives notice from Mortgagor or otherwise has knowledge that an event described in subparagraph 3(d) has occurred; (iii) Lender reasonably believes that a representation or warranty of Mortgagor in Paragraph 2 was untrue in any material respect when made or has become untrue in any material respect; (iv) Lender receives notice from Mortgagor or otherwise has knowledge of a change in operations on the Property and Lender reasonably believes that the new operations may entail the presence of more or different Hazardous Substances on the Property; or (v) Lender reasonably believes that Hazardous Substances are present on the Property which were not previously known by Lender to be present on the Property; then, in any such event, Mortgagor shall at its cost obtain and deliver to Lender an environmental review, audit, assessment and/or report relating to the Property or shall have any previously delivered materials updated and/or amplified, by an engineer or scientist selected by Mortgagor and acceptable to Lender; if Mortgagor fails to do so within forty-five (45) days after such request is made, Lender shall have the right to do so, in which event Mortgagor shall reimburse Lender for the cost incurred by Lender in doing so within ten (10) days following demand therefor by Lender.
(c) Mortgagor shall comply with all Accessibility Regulations which are applicable to the Property. In the event that (i) Lender reasonably believes that a material violation of an Accessibility Regulation may have occurred in connection with the Property; or (ii) Lender receives notice from Mortgagor or otherwise has knowledge that an event described in subparagraph 3(d) and pertaining to Accessibility Regulations has occurred; then, in any such event, Mortgagor shall at its cost obtain and deliver to Lender an Accessibility Regulation compliance report relating to the Property or shall have any previously delivered materials updated and/or amplified, by a qualified consultant selected by Mortgagor and acceptable to Lender; if Mortgagor fails to do so within forty- five (45) days after such request is made, Lender shall have the right to do so, in which event Mortgagor shall reimburse Lender for the cost incurred by Lender in doing so within ten (10) days following demand therefor by Lender.
(d) Mortgagor shall, promptly after obtaining actual knowledge thereof, give notice to Lender of: (i) any activity in violation of any applicable Environmental Regulations relating to the Property, (ii) any governmental or regulatory actions instituted or threatened under any Environmental Regulations or any Accessibility Regulations affecting the Property, (iii) all claims made or threatened by any third party against the Mortgagor or the Property relating to any Hazardous Substance or a violation of any Environmental Regulations or any Accessibility Regulations, (iv) discovery by Mortgagor of any occurrence or condition on or under the Property or on or under any real property adjoining or in the vicinity of the Property which could not reasonably be expected subject Mortgagor, Lender or the Property to have a Material Adverse Effect, it claim under any Environmental Regulations or Accessibility Regulations. Any such notice shall not, include copies of any written materials received by Mortgagor.
(e) Any investigation or any remedial or corrective action taken with respect to any Trademarks constituting Material Intellectual Propertythe Property shall be done under the supervision of a qualified consultant, cease engineer, or scientist acceptable to Lender who shall, at Mortgagor’s cost and at the use completion of such investigation or action, provide a written report of such investigation or action to Lender. Mortgagor shall also provide Lender with a copy of any interim reports prepared in connection with any such investigation or action.
(f) If the Property has, or is suspected to have, asbestos or asbestos containing materials (“ACM”) which, due to its condition or location or due to any planned building renovation or demolition, is recommended to be abated by repair, encapsulation, removal or other action, Mortgagor shall promptly carry out the recommended abatement action. If the recommended abatement includes removal of ACM, Mortgagor shall cause the same to be removed and disposed of offsite by a licensed and experienced asbestos removal contractor, all in accordance with Environmental Regulations. Upon completion of the recommended abatement action, Mortgagor shall deliver to Lender a certificate, signed by an officer of Mortgagor and the consultant overseeing the abatement action, certifying to Lender that the work has been completed in compliance with all applicable laws, ordinances, codes and regulations (including without limitation those regarding notification, removal and disposal) and that no airborne fibers beyond permissible exposure limits remain on site. Mortgagor shall develop and implement an Operations and Maintenance Program (as contemplated by Environmental Protection Agency guidance document entitled “Managing Asbestos In Place; A Building Owner’s Guide to Operations and Maintenance Programs for Asbestos-Containing Materials”) for managing in place any ACM at or in the Property. Mortgagor shall deliver a complete copy of such Trademarks or fail Operations and Maintenance Program to maintain the level of the quality of products sold Lender and services rendered under any of certify to Lender that such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;Program has been implemented.
(iiig) except where such failure After an Event of Default (as defined in the Credit Agreement), Lender shall have the right, after ten (10) days’ prior written notice to register could not reasonably be expected Mortgagor, to have a Material Adverse Effectan environmental review, it shallaudit, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertyassessment, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated testing program and/or report with respect to the public Property performed or placed in prepared by an environmental engineering firm selected by Lender. Mortgagor shall reimburse Lender for the public domain, cost incurred for each such action within ten (y10) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned days following demand therefor by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsLender.
Appears in 1 contract
Sources: Environmental and Ada Indemnification Agreement (Electromed, Inc.)
Covenants and Agreements. Each Grantor hereby covenants 10.1 [Intentionally Left Blank]
10.2 Seller agrees that it will, at any time and agrees from time to time, after the Closing, upon request of Buyer, do, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as follows:may be reasonably required to convey and transfer to and vest in Buyer and protect its rights, title and interest in and enjoyment of all the Assets.
10.3 The parties hereto shall use their reasonable best efforts to obtain, and to cooperate with each other in obtaining, all authorizations, approvals, licenses, permits and other consents contemplated by Articles VIII and IX.
10.4 During the period from the date of this Agreement through the Closing Date, Seller will conduct its operation of the Business only in accordance with the Management Agreement and Seller shall not dispose of any of the assets of the Business, except as contemplated by the Management Agreement.
10.5 Seller shall afford to Buyer, its attorneys, accountants and such other representatives of Buyer as Buyer shall designate to Seller, free and full access at all reasonable times, and upon reasonable prior notice, to the Assets and the properties, books and records of Seller, and to interview personnel, suppliers and customers of Seller, in order that Buyer may have full opportunity to make such investigation as it shall reasonably desire of the Assets, the Liabilities and the Business. Seller shall allow an environmental consulting firm selected by Buyer (the "ENVIRONMENTAL AUDITOR") to have prompt access to the Real Property in order to conduct an environmental investigation, satisfactory to Buyer in scope (such scope being sufficient to result in a Phase I environmental audit report and a Phase II environmental audit report, if desired by Buyer), of, and to prepare a report with respect to, the Real Property (the "ENVIRONMENTAL AUDIT"). Seller shall provide to the Environmental Auditor: (i) except where such act or failure reasonable access to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any all of its existing records concerning the matters which are the subject of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
Environmental Audit; and (ii) except as could not reasonably be expected reasonable access to the employees of Seller and the last known addresses of former employees of Seller who are most familiar with the matters which are the subject of the Environmental Audit (Seller agreeing to use reasonable efforts to have a Material Adverse Effectsuch former employees respond to any reasonable requests or inquiries by the Environmental Auditor). Seller shall otherwise cooperate with the Environmental Auditor in connection with the Environmental Audit. Buyer shall bear 100% of the costs, it fees and expenses in connection with the Environmental Audit.
10.6 All representations and warranties of Seller and the Stockholder shall notsurvive the Closing Date. Seller and the Stockholder, jointly and severally, agree to indemnify and hold harmless Buyer and its stockholders, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them or asserted against any of them or the Assets, arising out of or based upon (a) the failure of any representation or warranty of Seller or the Stockholder contained herein, or in any agreement, certificate or document executed by Seller or the Stockholder in connection herewith, to be true and correct in all material respects as of the Inventory Date, (b) the breach of any covenant or agreement of Seller or the Stockholder contained in this Agreement, (c) any liability or obligation of Seller or the Stockholder not expressly assumed by Buyer pursuant to this Agreement, or (d) any arrangements or agreements made or alleged to have been made by Seller or the Stockholder with any broker, finder or other agent in connection with the transactions contemplated hereby. Notwithstanding the foregoing, the total indemnification obligations of the Seller and the Stockholder hereunder shall not exceed the Purchase Price.
10.7 All representations and warranties of Buyer shall survive the Closing Date. Buyer agrees to indemnify and hold harmless Seller and its stockholder, officers, directors, employees and agents, and their respective successors and assignees, from and against any and all losses, liabilities, obligations, assessments, suits, actions, proceedings, claims or demands, including costs, expenses and fees (including reasonable attorneys' fees and expert witness fees) incurred in connection therewith, suffered by any of them, or asserted against any of them, arising out of or based upon (a) the failure of any representation or warranty of Buyer contained herein, or in any agreement, certificate or document executed by Buyer in connection herewith, to be true and correct in all material respects as of the Closing Date, (b) the breach of any covenant or agreement of Buyer contained in this Agreement, or (c) the Liabilities.
10.8 Personal property, use and intangible taxes and assessments with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold Assets shall be prorated on a per diem basis and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products apportioned between Seller and services Buyer as of the date hereofof the Closing. Seller shall be liable for that portion of such taxes and assessments relating to, or arising in respect of, periods on or prior to the Inventory Date, and each Grantor Buyer shall take all steps necessary to insure be liable for that licensees portion of such Trademarks use taxes and assessments relating to, or arising in respect of, any period after the Inventory Date. Any taxes attributable to the sale or transfer of the Assets to Buyer hereunder shall be paid by Seller.
10.9 Except as may be required by law or the rules of the New York Stock Exchange or as necessary in connection with the transactions contemplated hereby, no party hereto shall (i) make any press release or other public announcement relating to this Agreement or the transactions contemplated hereby, without the prior approval of the other parties hereto or (ii) otherwise disclose the existence and nature of negotiations regarding the transactions contemplated hereby to any person or entity other than such consistent standards party's accountants, attorneys, agents and representatives, all of quality;
(iii) except where whom shall be subject to this nondisclosure obligation as agents of such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following party. The parties shall cooperate with each other in the creation or acquisition preparation and dissemination of any Copyrightable work constituting Material Intellectual Propertypublic announcements of the transactions contemplated by this Agreement.
10.10 Neither Seller nor the Stockholder shall pursue, apply initiate, encourage or engage in, any negotiations or discussions with, or provide any information to, any person or entity (other than Buyer and its representatives and affiliates) regarding the sale or possible sale to register any such person or entity of any of the Copyright in the United States Copyright Office;Assets or capital stock of Seller or any merger or consolidation or similar transaction involving Seller.
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it 10.11 Buyer shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceableapply for, or (z) subject cause an affiliate of Buyer to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Officeapply for, the United States Copyright Office or any state registry;
(v) except where issuance of franchises to operate a Lincoln-Mercury-Jaguar dealership upon the failure to do so could not reasonably be expected to have a Material Adverse EffectReal Property. Effective as of the Closing, it Seller shall terminate its Dealer Sales and Service Agreements with the Manufacturers. Seller shall fully cooperate with Buyer, and take all reasonable steps to assist Buyer, in Buyer's efforts to obtain its own similar Dealer Sales and Service Agreements with the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) Manufacturers. The parties acknowledge that Buyer's Dealer Agreements are subject to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion approval of the Copyrights may become invalidated or otherwise impaired Manufacturers and (B) do any act or omit that Buyer would be unable to do any act whereby any portion obtain its own, similar Dealer Sales and Service Agreement absent Seller's termination of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsagreement.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat it shall:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such owned or used by Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which Security Interest therein would be adversely affect the validity, grant, or enforceability of the security interest granted therein;affected,
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level level, consistent with reasonable business judgment, at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all steps necessary to insure that licensees control the quality of such Trademarks use such consistent standards of qualitygoods and services offered by its Trademark licensees;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of such Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office any Intellectual Property Registry or any state registrycourt;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, applicable Intellectual Property Registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright Intellectual Property owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 4.7 (as such schedules schedule may be amended or supplemented from time to time), provided, that at any time that the Copyright of the Grantors set forth on Schedule 4.7 with registration number VA0001826183 is no longer the subject of any litigation or dispute, Grantors shall not be required to maintain the registration related thereto;;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, diluted, misappropriated, or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution the same and protect enforce its rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) report to the Collateral Agent (i) the filing of any application to register a copyright no later than thirty (30) days after such filing occurs (ii) the filing of any application to register any Intellectual Property with any other Intellectual Property Registry and the issuance thereof no later than ninety (90) days after such filing or issuance occurs and, in each case, simultaneously delivering to the Collateral Agent a supplemental Trademark, Patent or Copyright Security Agreement, as applicable, substantially in the form of Exhibit C attached hereto, together with all schedules thereto. In addition, such Grantor hereby authorizes the Collateral Agent to modify this Agreement by amending Schedule 4.7 and will cooperate with the Agent in effecting any such amendment to include any new item of Intellectual Property included in the Collateral;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document or otherwise impaired and (B) do instrument required to acknowledge, confirm, register, record, or perfect the Security Interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into Intellectual Property owned by such Grantor, provided, that no filing in the public domainIntellectual Property Registries shall be required to be made to perfect the Security Interest with respect to the Copyright of the Grantors with registration number VA0001826183;
(viii) not execute, file, or authorize the filing of any financing statement or other document or instruments, except as could not reasonably financing statements or other documents or instruments filed (or to be expected to have a Material Adverse Effect, it filed) in favor of the Collateral Agent and such Grantor shall not (nor shall the licensees or sublicensees under its control) do sell, assign, transfer, license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate the intellectual property rights of create or suffer to exist any other Person; andLien upon or with respect to Intellectual Property, except for Permitted Encumbrances;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets material to its business; and
(x) use statutory notice of registration in connection with its use of registered Trademarks, includingproper marking practices in connection with the use of Patents, without limitationappropriate notice of copyright in connection with the publication of Copyrighted materials, entering into confidentiality agreements with employees and labeling and restricting access legends or markings applicable to secret information and documentsother Intellectual Property.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Collateral Intellectual Property that is material to the business of such Grantor or otherwise of material value may lapse, or become abandoned, canceled, dedicated to the public, invalidforfeited, unenforceable or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, otherwise impaired or which would adversely affect the validity, grant, grant or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of Grantor and included in the Collateral, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Collateral Intellectual Property that is material to the business of Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing ,or any court) or (d) the subject of any asserted reversion or termination rights;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration or issuance of each Trademark, Patent, Patent and Copyright owned by any Grantor and included in the Collateral and material to its business which is now or shall become included in the Material Collateral Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Collateral Intellectual Property that is material to Grantor’s business and owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and protect its rights in such Material Collateral Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall promptly (but in no event more than thirty (30) days after Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Collateral Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry or foreign counterpart of the foregoing (whether such application is filed by Grantor or through any agent, employee, licensee, or designee thereof), (ii) the registration of any Collateral Intellectual Property by any such office, (iii) the acquisition of any Collateral Intellectual Property that is registered or applied for in any such office, and (iv) the filing of an “statement of use” or “amendment to allege use” in the PTO with respect to any “intent to use” Trademark application owned by Grantor, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document (including each Intellectual Property Security Agreement) required to acknowledge, confirm, register, record or otherwise impaired and (B) do perfect the Collateral Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainCollateral Intellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Collateral Agent or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Credit Agreement, it Grantor shall not (nor execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Collateral Intellectual Property, except for the Lien created by and under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate this Agreement and the intellectual property rights of any other Person; andCredit Documents and other Permitted Liens;
(ix) except where it shall hereafter use best efforts so as not to permit the failure inclusion in any contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, Grantor’s rights and interests in any property included within the definitions of any Collateral Intellectual Property material to have a Material Adverse Effect, Grantor’s business acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets included in the Collateral, including, without limitation, entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice, in all material respects, in connection with its use of any of the Collateral Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to Grantor in respect of the Collateral Intellectual Property or any portion thereof. In connection with such collections, Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or FIRST LIEN PLEDGE AND SECURITY AGREEMENT become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor in the United States, apply to register the Copyright in the United States Copyright Office, provided, however, that the Company may, in its prudent business judgment, decide that it shall not apply to register such Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property may that is material to the business of any Grantor is likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not timely report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domain;Exhibit A attached hereto, together with all Supplements to Schedules thereto; FIRST LIEN PLEDGE AND SECURITY AGREEMENT
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse EffectIntellectual Property, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.whether now owned or hereafter acquired;
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Reprographics CO)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor the Grantors, may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of the Grantors, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereofClosing Date, and each Grantor shall take all steps necessary use commercially reasonable efforts to insure that cause licensees of such Trademarks to use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(ivcase where permitted under Section 4.7(a)(ii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectabove, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property that is material to the business of the Grantors may become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court (other than office actions, rejections or objections received from any of them during routine prosecution);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registryregistry and any foreign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright all Registered Intellectual Property owned by any Grantor and material to its the business of the Grantors which is now or shall become included in the Material Intellectual Property Collateral including, but not limited to, those items applications or registrations listed on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 4.7 (as such schedules may be amended or supplemented from time to time), except, to the extent permitted in the Financing Agreement, in cases in which such acts have not been performed as a result of a Grantor’s reasonable determination in the ordinary course of business to allow such Intellectual Property to lapse or terminate because it is no longer necessary or useful to the conduct of the business of the Grantors or to fully exploit the value of the Intellectual Property of Grantor taken as a whole;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Grantor shall promptly take all commercially reasonable actions to stop address such infringement, misappropriation, dilution or dilution violation and protect its rights in such Material Intellectual Property including, but not limited to, (A) the initiation of a suit for injunctive relief and to recover damagesdamages and (B) taking such other actions, in each case as such Grantor shall deem appropriate under the circumstances using its reasonable business judgment to protect and enforce such Intellectual Property;
(vi) it shall, on each date upon which Compliance Certificates are due pursuant to the Financing Agreement, report to the Collateral Agent (A) the filing (or acquisition) of any application to register any Intellectual Property owned by such Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (B) the registration (or acquisition of any registration) of any Intellectual Property by or with any such office, in each case, by executing and delivering to the Collateral Agent supplements to Schedule 4.7;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable written request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior written consent of the Collateral Agent or as permitted under the Financing Agreement, each Grantor shall not execute or authorize for filing in any public office, any financing statement or similar document or instrument, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent or with respect to Permitted Liens and except with the prior written consent of the Collateral Agent or as permitted under the Financing Agreement, each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to its Intellectual Property, except for Liens arising under the Loan Documents or other Permitted Liens;
(ix) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such ▇▇▇▇▇▇▇’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(x) it shall take all commercially reasonable steps to maintain the confidentiality of (to the extent non-public), and otherwise protect and enforce its rights in, all Intellectual Property that is material to the conduct of the Grantors’ business, including, as applicable (A) maintaining and protecting the secrecy and confidentiality of its confidential information and Trade Secrets by having and enforcing a policy requiring all current and future employees, consultants, licensees, vendors, contractors and any other Person with access to such information to execute appropriate confidentiality agreements, (B) taking actions commercially and reasonably be expected necessary to have ensure that no Trade Secret falls into the public domain, and (C) protecting the secrecy and confidentiality of the source code of all software programs and applications of which it is the owner or licensee by having and enforcing a Material Adverse Effect, policy requiring any licensees (or sublicensees) of such source code to enter into license agreements with commercially reasonable use and nondisclosure restrictions;
(xi) it shall not (nor shall incorporate any third-party code that is licensed pursuant to any open source license, including the licensees GNU Public License, Lesser GNU Public License or sublicensees under its control) do Mozilla Public License into any act that uses any Material Intellectual Property that is material to infringethe conduct of the Grantors’ business in a manner that would require the disclosing, misappropriatelicensing, or violate distribution of any source code for any portion of any Intellectual Property that is material to the intellectual property conduct of Grantors’ business;
(xii) it shall assign and transfer any Intellectual Property that is developed, created, applied-for or otherwise acquired after the Closing Date to IPCo;
(xiii) it shall not after the Closing Date enter into any license to receive any material license or rights in any Intellectual Property of any other PersonPerson (other than with respect to off-the-shelf programs or other programs that are generally available on commercially reasonable terms and on a non-exclusive basis) unless such Grantor has used commercially reasonable efforts to permit the assignment of or grant of a security interest in such license (and all rights of Grantor thereunder) to the Collateral Agent (and any transferees of Collateral Agent);
(xiv) it shall use appropriate statutory notice in connection with its use of any Intellectual Property, except as such would not have a material adverse effect on the value of such Intellectual Property or the conduct of the business of the Grantors; and
(ixxv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect in its ordinary course of business, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction, upon written instruction of the Required Lenders, shall take) such commercially reasonable action as such Grantor or the Collateral Agent, upon written instruction of the Required Lenders, may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Danimer Scientific, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) Office except where for works with respect to which the failure to do Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so could not reasonably be expected to have a Material Adverse Effect, apply; it shall promptly notify the Revolving Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; except for works with respect to which the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for works that the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is of significant value or has been is material to the business of any Grantor is, to such Grantor's knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages (except for works that the Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;);
(vi) it shall promptly (but in no event more than ten (10) days before in the case of any Copyrights and otherwise no more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Revolving Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Revolving Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Revolving Collateral Agent, execute and deliver to the Revolving Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Revolving Collateral Agent's interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Revolving Collateral Agent (not to be unreasonably withheld) or as could not reasonably be expected to have a Material Adverse Effectpermitted under the Revolving Credit Agreement, it each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments (nor other than financing statements, documents or instruments filed in respect of Permitted Liens) and each Grantor shall not sell, assign, transfer, license, grant any option or create or suffer to exist any Lien upon or with respect to the licensees or sublicensees Intellectual Property, except for (1) the Lien created by and under its controlthis Agreement and the other Credit Documents, and (2) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andPermitted Liens;
(ix) except where it shall hereafter use commercially reasonable efforts so as not to permit the failure inclusion in, or omission from, any Material Contract to do so which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Revolving Collateral Agent's reasonable direction (subject to the terms of the Intercreditor Agreement), shall take) such action as such Grantor or the Revolving Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Revolving Collateral Agent shall have the right (subject to the terms of the Intercreditor Agreement) at any time to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat until payment in full of all Secured Obligations (other than unmatured contingent obligations), the cancellation or termination in full of the Total Revolving Loan Commitment, the cancellation or expiration of all outstanding Letters of Credit, the expiration or termination of all Secured Hedging Agreements and the expiration or termination of all Secured Cash Management Agreements:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Grantor Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) therein except as to the extent a particular item of Intellectual Property is no longer material or necessary to the business of such Grantor or that the same could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iiiii) it shall, within a reasonable time from the creation or acquisition of any Copyrightable work the registration of which is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office where warranted in the Grantor’s reasonable business judgment, except where such the failure to register do the same could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iviii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly (within a reasonable time after any Grantor obtains knowledge thereof) notify the Collateral Agent if it knows that any item of Material the Grantor Intellectual Property may that is material to the business of any Grantor has become (xA) abandoned or dedicated to the public or placed in the public domain, (yB) invalid or unenforceable, or (zC) subject to any material adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registrycourt;
(viv) except it shall, where the failure to do so could not reasonably be expected to have a Material Adverse Effectwarranted in any Grantor’s reasonable business judgment, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Grantor Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(v) it shall (within a reasonable time after any Grantor obtains knowledge thereof) report to the Collateral Agent (A) the filing of any application to register any material Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (B) the registration of any material Intellectual Property by any such office, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vi) except where it shall, promptly upon the failure reasonable request of the Collateral Agent, execute and deliver to do so could not reasonably be expected the Collateral Agent any document required to have a Material Adverse Effectacknowledge, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringedconfirm, misappropriatedregister, record, or diluted by a third partyperfect the Collateral Agent’s interest in any part of the Grantor Intellectual Property, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, whether now owned or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;hereafter acquired; and
(vii) except as could not reasonably be expected to have a Material Adverse Effectafter the occurrence and during the continuance of an Event of Default, it shall not (and shall not permit any licensee continue to collect, at its own expense, all amounts due or sublicensee thereof under its control to) (A) do any act to become due to such Grantor in respect of the Grantor Intellectual Property or omit to do any act whereby any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion existence of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentssecurity interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor (or, with respect to the following clause (a), without the prior written consent of the Required Lenders, any other Product Intellectual Property Rights)
(a) may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or (b) which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except Except, with the prior written consent of the Required Lenders (which shall not be unreasonably withheld), to the extent deemed prudent in its reasonable business judgment as could not reasonably be expected to have a Material Adverse Effectdetermined by such Grantor in good faith and in the ordinary course of business as generally conducted by it, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyowned or in-licensed by the Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse EffectExcept for the abandonment of applications that occurs in the ordinary course of prosecution, it shall, promptly following on a quarterly basis, after any Grantor obtains knowledge thereof and in any case prior to any abandonment or dedication to the creation public or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright placement in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectpublic domain occurring, it shall promptly notify the Collateral Administrative Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, domain or (yb) invalid or unenforceableunenforceable excluding, or (z) subject to in each case, non-final office actions and any adverse determination or development (including the institution statutory expiration of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registrysuch Intellectual Property;
(viv) except where Except for the failure to do so could not reasonably be expected to have a Material Adverse Effectabandonment of applications that occurs in the ordinary course of prosecution, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, Patent and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), Schedule 4.5(A) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeB);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, to the extent deemed prudent in its reasonable business judgment as determined by such Grantor in good faith or in the ordinary course of business as generally conducted by it, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) it shall on a quarterly basis report to the Administrative Agent (i) the filing of any application to register any U.S. Patents or U.S Trademarks with the United States Patent and Trademark Office, or U.S. Copyrights with the United States Copyright Office, or any successor agency or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof by or on behalf of the Grantor) and (ii) the registration of any U.S. Patents, U.S. Trademarks or U.S. Copyrights by any such office by or on behalf of the Grantor, in each case by executing and delivering to the Administrative Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all supplements to Schedules thereto and shall execute and deliver to the Administrative Agent with respect to any such Intellectual Property a Patent Security Agreement, Trademark Security Agreement or Copyright Security Agreement, as applicable, in each case in the forms attached hereto as Exhibits B, C and D;
(vii) it shall, promptly upon the reasonable request of the Administrative Agent, execute and deliver to the Administrative Agent the Intellectual Property Security Agreements (the “Trademark Security Agreement”, the “Copyright Security Agreement”, and “Patent Security Agreement”), as applicable, set forth hereto as Exhibits B, C and D with respect to any U.S. Trademarks, U.S. Patents or U.S. Copyrights acquired by Grantor following the Effective Date, whether now owned or hereafter acquired;
(viii) except with the prior written consent of the Administrative Agent or as permitted under the Financing Agreement, each Grantor shall not execute, shall not file and shall not consent to the filing of any financing statement or other document or instruments in any public office, except financing statements or other documents or instruments filed or to be filed in favor of the Administrative Agent;
(ix) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such ▇▇▇▇▇▇▇’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(x) to the extent deemed prudent in its reasonable business judgment as determine by such Grantor in good faith or in the ordinary course of business as generally conducted by it, it shall not (take reasonable steps to maintain the confidentiality of, and shall not permit any licensee or sublicensee thereof under otherwise protect and enforce its control to) rights in, non-public Intellectual Property, including, as applicable (A) do any act or omit protecting the secrecy and confidentiality of its confidential information and Trade Secrets by having and enforcing a policy requiring all current employees, consultants, licensees, vendors and contractors with access to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired such information to execute appropriate confidentiality agreements and (B) do any act taking actions reasonably necessary to ensure that no Trade Secret owned or omit to do any act whereby any portion of in-licensed by the Copyrights may fall Grantor falls into the public domain;
(viiixi) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor enter, and shall the licensees prohibit any of its Subsidiaries from entering, into any agreement to receive any license or sublicensees under its control) do rights in any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other PersonPerson which relate to any Product or the Lucinatib Product, any clinical trial for any Product administered by or on behalf of the Company (including the ATHENA Trial) or research, development, use, manufacture, licensure, packaging, processing, delivery or Commercialization of any Product or the Lucinatib Product or any services provided in connection with any Product or the Lucinatib Product, unless such Grantor has used commercially reasonable efforts to permit the assignment of or grant of a security interest in such agreement (and all rights of Grantor thereunder) to the Administrative Agent (and any transferees of the Administrative Agent); and
(ixxii) except where notwithstanding the failure foregoing, the Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default, to do so could not reasonably be expected notify, or require any Grantor to have a Material Adverse Effectnotify, it shall take all steps reasonably necessary any obligors with respect to protect any such amounts of the secrecy existence of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Clovis Oncology, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any commercially reasonable act whereby any of the Material Intellectual Property which in its reasonable judgment is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, as determined in its reasonable judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly within sixty (60) days following the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright OfficeCanadian Intellectual Property Office except for works with respect to which the Grantor has determined with the exercise of its commercially reasonable judgment that it shall not so apply;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Canadian Agent if it knows that any item of Material the Intellectual Property that in its reasonable judgment is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Canadian Intellectual Property Office, the United States Copyright Office or any state registrycourt, except as would not have a Material Adverse Effect;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Canadian Intellectual Property Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.10 (A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time), except as would not have a Material Adverse Effect;
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that in its reasonable judgment is or has been material to the business of such Grantor is, to such Grantor’s knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but (except for such works in respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not limited to, the initiation of a suit for injunctive relief and to recover damagestake any action);
(vii) except as could not reasonably be expected to have on the Quarterly Reporting Date after a Material Adverse Effectfiling or registration described in clause (i) or (ii) takes place, it shall not promptly (and shall not permit but in no event more than thirty (30) days after any licensee Grantor obtains knowledge thereof) report to the Canadian Agent (i) the filing of any application to register any material Intellectual Property with the Canadian Intellectual Property Office, or sublicensee thereof under its control to) (A) do any act provincial or omit to do any act whereby any portion territorial registry or foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Canadian Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Canadian Agent, execute and deliver to have a Material Adverse Effectthe Canadian Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Canadian Agent’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except with the prior consent of the Canadian Agent (not to be unreasonably withheld) or with respect to Permitted Liens, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Canadian Agent and each Grantor shall not license, grant any option, or create or suffer to exist any Lien upon or with respect to the material Intellectual Property, except for (A) the Liens created by and under this Agreement and the other Credit Documents and (B) licenses entered into in the ordinary course of business of such Grantor;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any Material Contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts, provided that this shall not apply to standard form contracts entered into in the ordinary course of business;
(xi) it shall use proper statutory notice in connection with its use of any Patent, except where the failure to do so could would not reasonably be expected to have a Material Adverse Effect; and
(xii) unless otherwise determined in the exercise of business judgment, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the material Intellectual Property or any portion thereof. Following the occurrence and during the continuance of an Event of Default, in connection with such collections, each Grantor may take all steps (and, at the Canadian Agent’s reasonable direction, shall take) such action as such Grantor or the Canadian Agent may deem reasonably necessary to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Canadian Agent shall have the right at any time following the occurrence and during the continuance of all Trade Secretsan Event of Default, includingto notify, without limitationor require any Grantor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Easton-Bell Sports, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any commercially unreasonable act whereby any of the Material Intellectual Property which, in its reasonable business judgment, is material to any line of such Grantor business of the Grantors may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to any line of business of the Grantors, as determined in its reasonable business judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following at its own expense, within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to any line of business of the Grantors, apply to register the Copyright in the United States Copyright Office;
(iv) Office except where for works with respect to which such Grantor has determined with the failure to do exercise of its commercially reasonable judgment that it shall not so could not reasonably be expected to have a Material Adverse Effect, apply; it shall promptly notify the Revolving Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to any line of business of the Grantors may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; except for works with respect to which such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectit shall, it shall at its own expense, take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its any line of business of the Grantors which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.6(A), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.,
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followswith the Collateral Agent and each other Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations, the cancellation or termination of the Commitments and the cancellation or expiration of all Outstanding Letters of Credit that:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor Grantors, taken as a whole, may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;; PLEDGE AND SECURITY AGREEMENT 434560-New York Server 3A EXECUTION
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of Grantors, taken as a whole, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantors, taken as a whole, apply to register the Copyright in the United States Copyright OfficeOffice in accordance with such Grantor's past practice;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows knows, has reason to know, or reasonably believes that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its the business of Grantors, taken as a whole, which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have the Collateral Agent any document (including, without limitation, a Material Adverse EffectGrant of Trademark Security Interest in the form of Exhibit E hereto or a Grant of Copyright Security Interest in the form of Exhibit F hereto) required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate PLEDGE AND SECURITY AGREEMENT 434560-New York Server 3A EXECUTION perfect the intellectual property rights Collateral Agent's interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property material to the business of Grantors, taken as a whole, except for Permitted Liens and the Lien created by and under this Security Agreement and the other Credit Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor's rights and interests in any property included within the definitions of any Intellectual Property that is material to have the business of the Grantors, taken as a Material Adverse Effectwhole, acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets that is material to the business of Grantors, taken as a whole, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to trade secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and during an Event of Default, at the Collateral Agent's reasonable direction, shall take) such action as such Grantor or, during an Event of Default, the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time during an Event of Default, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Mariner Health Care Inc)
Covenants and Agreements. Each Grantor hereby covenants Section 5.1 Conduct of Business by the Company and Parent.
(a) From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the "Termination Date"), and except (i) as may be required by applicable Law, (ii) with the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, (iii) as expressly contemplated or permitted by this Agreement or (iv) as disclosed in Section 5.1 of the Company Disclosure Schedule, the Company shall, and shall cause each of its Subsidiaries to conduct its business in all material respects in the ordinary course consistent with past practices, and use commercially reasonable efforts to maintain and preserve intact its business organization and significant business relationships and to retain the services of its key officers and key employees; provided, however, that no action by the Company or its Subsidiaries with respect to matters specifically addressed by any other provision of this Section 5.1 shall be deemed a breach of this sentence unless such action would constitute a breach of such other provision. In the event that (i) the Company requests the written consent of Parent to take any action otherwise prohibited by this Section 5.1 and (ii) Parent does not grant such consent, any fact, circumstance, event, change, effect or occurrence resulting directly from the failure of the Company to be able to take such action as result of the failure of Parent to grant its written consent shall not constitute, or be considered in determining the existence or occurrence of, a Company Material Adverse Effect.
(b) The Company agrees with Parent, on behalf of itself and its Subsidiaries, that between the date hereof and the Effective Time, except as followsset forth in Section 5.1 of the Company Disclosure Schedule, consented to in writing by Parent (such consent not to be unreasonably withheld, conditioned or delayed) or contemplated by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent:
(i) adjust, split, combine or reclassify any capital stock or otherwise amend the terms of its capital stock;
(ii) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire or encumber, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, except where such act in connection with cashless exercises or failure similar transactions pursuant to omission could not reasonably the exercise of stock options or other awards issued and outstanding as of the date hereof under the Company Stock Plans or permitted hereunder to be expected to have a Material Adverse Effectgranted after the date hereof; provided, it that this Section 5.1(b)(ii) shall not do any act apply to (A) dividends or omit to do any act whereby any distributions paid by wholly-owned Subsidiaries of the Material Intellectual Property Company to the Company or to other wholly-owned Subsidiaries or (B) dividends or distributions paid by Subsidiaries of the Company, other than wholly-owned Subsidiaries, that are not within the discretion of the Company or its Subsidiaries;
(iii) grant any person any right to acquire any shares of its capital stock except as required under any existing agreement;
(iv) issue any additional shares of capital stock except pursuant to the exercise of stock options or other awards issued under the Company Stock Plans issued and outstanding as of the date hereof and in accordance with the terms of such Grantor instruments; provided, that the Company shall not issue any Shares under the Stock Purchase Plan;
(v) except for hedging agreements entered into in the ordinary course of business consistent with past practice, purchase, sell, transfer, mortgage, encumber or otherwise dispose of any properties or assets having a value in excess of $ 5,000,000 in the aggregate;
(vi) make any capital expenditures in any fiscal quarter exceeding the Company's capital expenditure budget for such fiscal quarter by more than 1%; provided, that any capital expenditures contemplated by the Company's capital expenditure budget for any fiscal quarter not made such fiscal quarter may lapsebe made in the fiscal quarter immediately following such fiscal quarter;
(vii) other than in connection with guarantees, surety bonds, security time deposits and customs bonds in the ordinary course of business consistent with past practice or in connection with drawdowns and issuances of letters of credit under existing credit facilities in the ordinary course of business consistent with past practice, incur, assume, guarantee, or become abandonedobligated with respect to any indebtedness for borrowed money;
(viii) make any acquisition of another Person or business in excess of $5,000,000 in the aggregate, dedicated whether by purchase of stock or securities, contributions to capital (other than (A) capital contributions to wholly-owned Subsidiaries of the Company and (B) capital contributions to Subsidiaries of the Company, other than wholly--owned Subsidiaries, that are not within the discretion of the Company or its Subsidiaries), property transfers, or entering into binding agreements with respect to any such investment or acquisition;
(ix) except in the ordinary course of business consistent with past practice, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the publicdate hereof would be a Company Material Contract, invalidin each case, other than any Contract relating to indebtedness that would not be prohibited under clause (vii) of this Section 5.1(b);
(x) except to the extent required by Law or by Contracts in existence as of the date hereof, (A) increase in any manner the compensation or benefits of any of its present or former employees, directors, consultants, independent contractors or service providers except in the ordinary course of business consistent with past practice (including, for this purpose, the normal employee salary, bonus and equity compensation review process conducted each year), (B) pay any pension, severance or retirement benefits not required by any existing plan or agreement to any such present or former employees, directors, consultants, independent contractors or service providers, (C) other than in the ordinary course of business consistent with past practice, enter into, amend, alter, adopt, implement or otherwise commit itself to any compensation or benefit plan, program, policy, arrangement or agreement including any pension, retirement, profit-sharing, bonus or other employee benefit or welfare benefit plan, policy, arrangement or agreement or employment, consulting or collective bargaining agreement with or for the benefit of any present or former employee, director, consultant or service provider (other than amendments that do not materially increase the cost to the Company or any of its Subsidiaries of maintaining such plan, policy, arrangement or agreement), (D) accelerate the vesting of, or unenforceablethe lapsing of restrictions with respect to, any stock options or other stock-based compensation, (E) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, or placed (F) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable Law;
(xi) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the public domainfinancial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $1,250,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice;
(xii) amend or waive any provision of its articles of incorporation and bylaws or other equivalent organizational documents or, in the case of a Trade Secretthe Company, lose enter into any agreement with any of its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereinshareholders in their capacity as such;
(iixiii) except as could not take or omit to take any action that is intended or would reasonably be expected to, individually or in the aggregate, result in any of the conditions to have the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement;
(xiv) enter into any "non-compete", "non-solicit" or similar agreement that would materially restrict the businesses of the Surviving Corporation or its Subsidiaries or their ability to solicit customers or employees following the Effective Time;
(xv) adopt a Material Adverse Effectplan of complete or partial liquidation, it shall notdissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity;
(xvi) implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by GAAP, applicable Law or regulatory guidelines;
(xvii) enter into any closing agreement with respect to material Taxes, settle or compromise any Trademarks constituting Material Intellectual Propertymaterial liability for Taxes, cease the use make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling;
(xviii) enter into any new, or materially amend or otherwise materially alter any current, Affiliate Transaction or transaction which would be an Affiliate Transaction if such Trademarks or fail transaction occurred prior to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iiixix) except where such failure make any loans to register could not reasonably be expected any individual (other than advances of out-of-pocket business expenses to have a Material Adverse Effectemployees, it shall, promptly following the creation contractors or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright consultants in the United States Copyright Office;
(ivordinary course of business and consistent with past practices) except where the failure to do so could not reasonably be expected to have a Material Adverse Effector make any material loans, it shall promptly notify the Collateral Agent if it knows that advances or capital contributions to, or investments in, any item other Person in excess of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed $3,000,000 in the public domainaggregate for all such loans, advances, contributions and investments, except for (yi) invalid or unenforceabletransactions solely among the Company and/or wholly-owned Subsidiaries of the Company, or (zii) subject to any adverse determination or development (including as required by existing contracts set forth in Section 5.1(b)(xix) of the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;Company Disclosure Schedule; or
(vxx) except where the failure agree to do so could not reasonably be expected take, make any commitment to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriatedtake, or diluted by a third partyadopt any resolutions of its Board of Directors in support of, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsactions prohibited by this Section 5.1(b).
Appears in 1 contract
Sources: Merger Agreement (Crane James R)
Covenants and Agreements. Each Canadian Grantor hereby covenants and agrees as follows:
(ia) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it Canadian Grantor shall (and shall cause its licensees to) not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor included in the Collateral may lapse, or become abandoned, invalidated, harmed, become destroyed, dedicated to the public, invalid, unenforceable or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereinotherwise impaired;
(iib) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Canadian Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Canadian Collateral Agent if it knows or has reason to know that any item of Material Intellectual Property included in the Collateral that is in use or is planned on being used in the future and has material value may become (xa) forfeited, misused, abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office at CIPO or any state registryforeign counterpart thereof, or any court arbitral tribunal or regulatory agency, regarding the validity or enforceability of such Canadian Grantor’s ownership of, interest in, right to use, register, own or maintain any such item of Intellectual Property;
(vc) except where the failure such Canadian Grantor shall (and shall cause all its licensees to) not knowingly do any act or omit to do so could not reasonably be expected any act to have a Material Adverse Effectinfringe, it misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other person;
(d) such Canadian Grantor shall take all necessary and reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office with CIPO or any state registryforeign counterpart thereof, including the payment of applicable fees, to pursue any application for, and maintain any issued Patent and registration of of, each Trademark, Patent, Patent and Copyright owned by any such Canadian Grantor and material to its business which is now or shall become included in the Material Intellectual Property Collateral, including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule VI (as such schedules schedule may be amended or supplemented from time to time)time in connection with the delivery of a Pledge Supplement hereunder) except for those items of Intellectual Property that are no longer in use or planned on being used in the future and which have do not have material value;
(vie) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Canadian Grantor is or has been infringed, misappropriated, diluted or diluted otherwise violated by a third party, such Canadian Grantor shall promptly take all necessary and reasonable actions to stop such infringement, misappropriation, dilution or dilution other violation and to protect its exclusive rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(viif) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it such Canadian Grantor shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(g) such Canadian Grantor shall promptly (but in no event more than thirty (30) days) report to the Canadian Collateral Agent of any and all of the following; (i) the filing by such Canadian Grantor or on its behalf of any application to register any Intellectual Property owned by such Canadian Grantor in whole or in part, with CIPO or any foreign counterpart thereof, (ii) the registration of any Intellectual Property owned by such Canadian Grantor in whole or in part by any such office, or (iii) the acquisition by such Canadian Grantor of any issued Patent, or application or registration of any other Intellectual Property, and (iv) the existence of any Contract granting an Intellectual Property License which is in the nature of a Contract described in Section Error! Reference source not found., and, in each case, such Canadian Grantor shall execute and deliver to the Canadian Collateral Agent a completed Pledge Supplement, substantially in the form of Annex I, together with all Supplements to Schedules thereto and signed counterparts of the Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement, as applicable, together with all supplements to the schedules thereto; and any and all additional agreements, instruments, documents, and papers as the Canadian Collateral Agent may reasonably request to evidence the Canadian Collateral Agent’s and the Canadian Secured Parties’ security interest in such Intellectual Property;
(h) except with the prior written consent of the Canadian Collateral Agent or as permitted under the Credit Agreement, such Canadian Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favour of the Canadian Collateral Agent and such Canadian Grantor shall not sell, assign, transfer, license, grant any option with respect to, or create any Lien upon, the Intellectual Property, except for Liens permitted by Section 6.02 of the Credit Agreement and the Lien created by and under this Agreement and the other Loan Documents;
(i) such Canadian Grantor shall use best efforts to avoid the inclusion in any Intellectual Property License or any other material Contract regarding Intellectual Property to which it hereafter becomes a party, of provisions that would impair or prevent the creation of a security interest in, or the assignment of, such Canadian Grantor’s rights and interests under such Contract or in any Intellectual Property acquired under such Contracts; and
(j) such Canadian Grantor shall use best efforts to continue to collect, at its own expense, all amounts and royalties due or to become due to such Canadian Grantor in respect of any Intellectual Property. In connection with such collections, such Canadian Grantor may take (and, at the Canadian Collateral Agent’s reasonable direction, shall take) such action as such Canadian Grantor or the Canadian Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Canadian Collateral Agent shall have the right at any time, to notify, or require any Canadian Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Progress Rail Services, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act outside of the normal course of its business whereby any of the Material its Intellectual Property that is material to the business of such Grantor may will lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of except as would not have a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereinMaterial Adverse Effect;
(ii) except as could such Grantor otherwise determines in its reasonable business judgment in the normal course of business, or as would not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any of its Trademarks constituting Material Intellectual Propertywhich are material to the business of such Grantor, cease the use of any of such Trademarks or fail to maintain take commercially reasonable steps to insure that licensees of such Grantor’s Trademarks use its standards of quality in the level manufacture, distribution, and sale of the quality of all products sold and in the provision of all services rendered under any of or in connection with such Trademark at a level Trademarks at least substantially consistent with the standards of quality of such products and services maintained as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly within a commercially reasonable time notify the Collateral Agent if it knows or has reason to know that any item of Material its Intellectual Property may that is material to the business of such Grantor is reasonably likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) the subject to of any materially adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, any state intellectual property registry, or any state registrycourt;
(viv) except where as such Grantor otherwise determines in its reasonable judgment in the failure to do so could not reasonably be expected to have a Material Adverse Effectnormal course of its business, it shall take all commercially reasonable steps as it may deem necessary or appropriate in its reasonable business judgment in the United States Patent and Trademark Office, the United States Copyright Office or any intellectual property state registry, registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.10(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event any Grantor becomes aware that any Material Intellectual Property owned by or exclusively licensed such Grantor that is material to any Grantor the business is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall shall, if consistent with its reasonable business judgment in the normal course of its business, promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property (including, but not limited towhere commercially reasonable, the initiation of a suit for injunctive relief and to recover damages);
(vi) it shall promptly (but in no event more than ninety (90) days after such Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property owned by such Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or any intellectual property state registry (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration with any such office of any Intellectual Property owned by any such Grantor, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) it shall, execute and deliver to the Collateral Agent any document reasonably requested by such Collateral Agent to acknowledge, confirm, register, record, or perfect such Collateral Agent’s security interest in any part of the Intellectual Property, other than any foreign Intellectual Property, whether now owned or hereafter owned by such Grantor (including, but not limited to Trademark Security Agreements, Copyright Security Agreements and Patent Security Agreements in the form of Exhibits D, E and F, respectively);
(viii) except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any effective financing statement or other document or instruments for security purposes, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and, except as could permitted in the Credit Agreement, each Grantor shall not reasonably be expected sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the material Intellectual Property owned by such Grantor, except for the Lien created by and under this Agreement and the other Loan Documents;
(ix) it shall use commercially reasonable efforts so as not to permit the inclusion in any material Copyright License, Trademark License, or Patent License to which it hereafter becomes a party of any provision that prevents the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in such Copyright License, Trademark License, or Patent License;
(x) it shall, if consistent with its reasonable business judgment in the normal course of business, take commercially reasonable steps to protect the secrecy of all of its Trade Secrets;
(xi) except as would not have a Material Adverse Effect, it shall not (and shall not permit use commercially reasonable efforts to use proper statutory notice in connection with its use of any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property owned or exclusively licensed by it and material to infringe, misappropriate, or violate the intellectual property rights of any other Personits business; and
(ixxii) except where as such Grantor otherwise determines in its reasonable business judgment in the failure to do so could not reasonably be expected to have a Material Adverse Effectnormal course of its business, it shall continue to collect, at its own expense (as between such Grantor and Collateral Agent), all amounts due or to become due to such Grantor in respect of the Intellectual Property material to the business or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction (only upon and during the continuance of an Event of Default), shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or reasonably advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Collateral Agent shall have the right at any time (only upon and during the continuance of all Trade Secretsan Event of Default), includingto notify, without limitationor require any Grantor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where to the extent not material to its business as determined in good faith in such act or failure to omission could not reasonably be expected to have a Material Adverse EffectGrantor’s reasonable business judgment, it shall not do any act or omit to do any act whereby any of the Material material Intellectual Property of owned by such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall nottake, with respect to any Trademarks constituting Material Intellectual Propertyat its own expense, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business as determined in good faith in such Grantor’s reasonable business judgment which is now or shall become included in the Material Intellectual Property included in the Collateral including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeE);
(viiii) except where to the failure to do so could not reasonably be expected to have a Material Adverse Effect, extent determined in the event good faith in such Grantor’s reasonable business judgment that any Material Intellectual Property owned by or exclusively licensed to any such Grantor that is or has been material to its business is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages, as applicable;
(viiiv) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (report to the Collateral Agent and shall not permit any licensee or sublicensee thereof under its control to) the Administrative Agent (A) do the filing of any act application to register any Intellectual Property material to the conduct of its business with the United States Patent and Trademark Office or omit to do the United States Copyright Office (whether such application is filed by such Grantor or through any act whereby any portion of the Copyrights may become invalidated agent, employee, licensee, or otherwise impaired and designee thereof), (B) do the acquisition of any act such application or omit registration by purchase or assignment, and (C) the registration of any such Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent and the Administrative Agent a completed Pledge Supplement in each case of the Copyrights may fall into preceding clauses (A), (B) and (C), no later than the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall Quarterly Update Date for the licensees Fiscal Quarter during which such filing or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Personregistration was made; and
(ixv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary within a reasonable period of time upon the reasonable request of the Collateral Agent, execute and deliver to protect the secrecy Collateral Agent and the Administrative Agent at such Grantor’s expense any document required to acknowledge, confirm, register, record, or perfect the Collateral Agent’s interest in any part of all Trade Secretsthe material Intellectual Property registered in the United States, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentswhether now owned or hereafter acquired.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees with respect to itself as follows:
(i) except where other than in a manner consistent with an exercise of such act or failure to omission could not reasonably be expected to have a Material Adverse EffectGrantor’s reasonable business judgment, it shall not do any act or knowingly omit to do any act whereby any of the Material United States Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material the United States Intellectual Property may that is material to the business of such Grantor is reasonably likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceableunenforceable (other than as a result of the expiration of its non-renewable, or natural term), or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, Office or the United States Copyright Office Office, or any state registrycourt (other than office actions in the course of prosecution that do not materially affect such Grantor’s right to use such Intellectual Property);
(viii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each United States Trademark, Patent, and Copyright owned by any such Grantor and that is material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 4.5 (as such schedules it may be amended or supplemented from time to time), but only to the extent that such items remain material to such Grantor’s business;
(viiv) except where it shall promptly (but in no event more than once in any calendar year) report to the failure Collateral Agent the occurrence of any of the following which occurred since the last report to do so could not reasonably be expected the Collateral Agent, but only to have the extent that such items remain material to such Grantor’s business: (i) the filing of any application to register any Patent, Trademark or Copyright with the United States Patent and Trademark Office or the United States Copyright Office (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, or the acquisition of any such Intellectual Property in each case by executing and delivering to the Collateral Agent a Material Adverse Effectcompleted Pledge Supplement, substantially in the event that any Material Intellectual Property owned by or exclusively licensed form of Exhibit A attached hereto, together with all Supplements to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other PersonSchedules thereto; and
(ixv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary that are, in such Grantor’s reasonable business judgment, commercially reasonable to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access Secrets that are material to secret information and documentsthe business of such Grantor.
Appears in 1 contract
Sources: Pledge and Security Agreement (Covanta Holding Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act outside of the normal course of its business whereby any of the Material its Intellectual Property that is material to the business of such Grantor may will lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of except as would not have a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereinMaterial. Adverse Effect;
(ii) except as could such Grantor otherwise determines in its reasonable business judgment in the normal course of business, or as would not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any of its Trademarks constituting Material Intellectual Propertywhich are material to the business of such Grantor, cease the use of any of such Trademarks or fail to maintain take commercially reasonable steps to insure that licensees of such Grantor’s Trademarks use its standards of quality in the level manufacture, distribution, and sale of the quality of all products sold and in the provision of all services rendered under any of or in connection with such Trademark at a level Trademarks at least substantially consistent with the standards of quality of such products and services maintained as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly within a commercially reasonable time notify the Collateral Agent if it knows or has reason to know that any item of Material its Intellectual Property may that is material to the business of such Grantor is reasonably likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) the subject to of any materially adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, any state intellectual property registry, or any state registrycourt;
(viv) except where as such Grantor otherwise determines in its reasonable judgment in the failure to do so could not reasonably be expected to have a Material Adverse Effectnormal course of its business, it shall take all commercially reasonable steps as it may deem necessary or appropriate in its reasonable business judgment in the United States Patent and Trademark Office, the United States Copyright Office or any intellectual property state registry, registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.10(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event any Grantor becomes aware that any Material Intellectual Property owned by or exclusively licensed such Grantor that is material to any Grantor the business is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall shall, if consistent with its reasonable business judgment in the normal course of its business, promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property (including, but not limited towhere commercially reasonable, the initiation of a suit for injunctive relief and to recover damages);
(vi) it shall promptly (but in no event more than ninety (90) days after such Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property owned by such Grantor with the United States Patent and Trademark Office, the United States Copyright Office, or any intellectual property state registry (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration with any such office of any Intellectual Property owned by any such Grantor, in each case by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vii) it shall, execute and deliver to the Collateral Agent any document reasonably requested by such Collateral Agent to acknowledge, confirm, register, record, or perfect such Collateral Agent’s security interest in any part of the Intellectual Property, other than any foreign Intellectual Property, whether now owned or hereafter owned by such Grantor (including, but not limited to Trademark Security Agreements, Copyright Security Agreements and Patent Security Agreements in the form of Exhibits D, E and F, respectively);
(viii) except with the prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any effective financing statement or other document or instruments for security purposes, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Agent and, except as could permitted in the Credit Agreement, each Grantor shall not reasonably be expected sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the material Intellectual Property owned by such Grantor, except for the Lien created by and under this Agreement and the other Loan Documents;
(ix) it shall use commercially reasonable efforts so as not to permit the inclusion in any material Copyright License, Trademark License, or Patent License to which it hereafter becomes a party of any provision that prevents the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in such Copyright License, Trademark License, or Patent License;
(x) it shall, if consistent with its reasonable business judgment in the normal course of business, take commercially reasonable steps to protect the secrecy of all of its Trade Secrets;
(xi) except as would not have a Material Adverse Effect, it shall not (and shall not permit use commercially reasonable efforts to use proper statutory notice in connection with its use of any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property owned or exclusively licensed by it and material to infringe, misappropriate, or violate the intellectual property rights of any other Personits business; and
(ixxii) except where as such Grantor otherwise determines in its reasonable business judgment in the failure to do so could not reasonably be expected to have a Material Adverse Effectnormal course of its business, it shall continue to collect, at its own expense (as between such Grantor and Collateral Agent), all amounts due or to become due to such Grantor in respect of the Intellectual Property material to the business or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Collateral Agent’s reasonable direction (only upon and during the continuance of an Event of Default), shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or reasonably advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Collateral Agent shall have the right at any time (only upon and during the continuance of all Trade Secretsan Event of Default), includingto notify, without limitationor require any Grantor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Tumi Holdings, Inc.)
Covenants and Agreements. Each Except to the extent not prohibited by the Facilities Agreement, each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest Encumbrance granted therein, except as permitted under the Facilities Agreement or through the expiration of registered Intellectual Property at the end of its maximum statutory term (including renewal terms, where applicable);
(ii) except as could not reasonably be expected to have a Material Adverse Effectthe extent commercially reasonable to do so, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent in all material respects with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Administrative Agent if it knows or has reason to know that any item of Material the Intellectual Property material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, other than through the expiration of registered Intellectual Property at the end of its maximum statutory term having no applicable renewal periods, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, or any state registrycourt (other than office actions issued as part of the examination process by any patent, trademark or copyright office);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office or any state registry, to pursue any filed application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), Schedule 4.7(A) (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time), but in each case subject to such Grantor’s reasonable business judgment;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property (A) which is material to the business of any Grantor, and (B) owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages, but in each case subject to such Grantor’s reasonable business judgment;
(vi) except to the extent otherwise required by clause (xii) below, concurrently with delivering quarterly financials pursuant to Section 18(s)(ii) of the Facilities Agreement, it shall report to the Administrative Agent (i) the filing of any application to register any Intellectual Property material to its business with the United States Patent and Trademark Office or the United States Copyright Office (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property material to its business by any such office, in each case by executing and delivering to the Administrative Agent a completed Pledge Supplement, together with all Supplements to Schedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Administrative Agent, execute and deliver to the Administrative Agent any document reasonably required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Administrative Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into the public domainIntellectual Property, whether now owned or hereafter acquired;
(viii) except with the prior consent of the Administrative Agent or as could permitted under the Facilities Agreement, no Grantor shall execute, and there will not reasonably be expected on file in any public office, any financing statement or other document or instruments with respect to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property of any Grantor included in the Collateral, except financing statements or other documents or instruments filed or to infringebe filed in favor of the Administrative Agent or filed in connection with a Permitted Encumbrance or as otherwise permitted by the Facilities Agreement, misappropriateand no Grantor shall sell, assign, transfer, license, grant any option, or violate create or suffer to exist any Encumbrance upon or with respect to the intellectual property rights of any Intellectual Property included in the Collateral, except for the Encumbrance created by and under this Agreement and the other Person; andCredit Documents or Permitted Encumbrances or as otherwise permitted by the Facilities Agreement;
(ix) except where it shall hereafter use commercially reasonable efforts so as not to permit the failure inclusion in any contract to do so could which it hereafter becomes a party of any provision that would materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property acquired under such contracts which would be included within the definitions of any Intellectual Property and the Collateral, and which would be material to such Grantor’s business; provided, that it is agreed that commercially reasonable efforts shall not reasonably be expected require such Grantor to agree to a term solely in order to comply with this provision if such term would have a Material Adverse Effect, financially negative impact on such Grantor;
(x) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xi) it shall use proper statutory notice in connection with its use of any of the Intellectual Property material to its business to the extent necessary to maintain such Intellectual Property;
(xii) it shall continue to collect, at its own expense, all material amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof, consistent with past practices and to the extent deemed prudent business conduct by such Grantor in good faith. In connection with such collections, each Grantor may take (and, at the Administrative Agent’s reasonable direction during the occurrence and continuance of an Event of Default, shall take) such action as such Grantor or, during the occurrence and continuance of an Event of Default, the Administrative Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Administrative Agent shall have the right at any time during the occurrence and continuance of an Event of Default, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the Encumbrance created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Better Choice Co Inc.)
Covenants and Agreements. Each The Grantor hereby covenants and agrees as follows:
(i) except where such act It will not, knowingly or failure to omission could not reasonably be expected to have a Material Adverse Effectintentionally, nor will it shall not permit any of its licensees (or sublicensees) to, do any act act, or omit to do any act act, whereby any Patent that is related to the conduct of the Material Intellectual Property of such Grantor its business may lapse, become invalidated or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in and it shall use its reasonable best efforts to continue to m▇▇▇ any products covered by a Patent with the public domain, or, in the case of a Trade Secret, lose relevant patent number as necessary and sufficient to establish and preserve its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;maximum rights under applicable patent laws.
(ii) except as could It will (either directly or through its licensees or its sublicensees), for each Trademark that is necessary for the conduct of its business, (A) maintain such Trademark in full force free from any claim of abandonment or invalidity for non use, (B) display such Trademark with notice of Federal or other analogous registration to the extent necessary and sufficient to establish and preserve its rights under applicable law, and (C) not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease knowingly use or knowingly permit the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality in violation of such products any third party’s valid and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;legal rights.
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will promptly notify the Collateral Agent in writing if it knows or has reason to know that any item of Material Intellectual Property material to the conduct of its business may become (x) abandoned abandoned, lost or dedicated to the public or placed in the public domain, (y) invalid or unenforceablepublic, or (z) subject to of any adverse determination or development (including the institution of proceedings) in of, or any action such determination or development in, any proceeding in the United States Patent and Trademark Office or the United States Copyright Office, or any similar offices or tribunals in the United States or any other country) regarding the Grantor’s ownership of any such Intellectual Property, its right to register the same, or to keep and maintain the same.
(iv) In no event shall it, either directly or through any agent, employee, licensee or designee, file an application for any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office or any state registry;similar offices in the United States or any other country, unless it promptly notifies the Collateral Agent in writing thereof and, upon request of the Collateral Agent, executes and delivers any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Collateral Agent’s security interest in such Intellectual Property, and the Grantor hereby appoints the Collateral Agent as its attorney in fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall It will take all reasonable necessary steps that are consistent with the practice in any proceeding before the United States Patent and Trademark Office, the United States Copyright Office or any state registrysimilar offices or tribunals in the United States and the European Union, and except as otherwise determined in its good faith business judgment, any other country, to maintain and pursue any each material application relating to the Intellectual Property owned or held by it (and to obtain the relevant grant or registration) and to maintain any registration of each Trademark, Patent, issued Patent and each registered Trademark and Copyright owned by any Grantor and that is material to the conduct of its business which is now or shall become included in the Material Intellectual Property includingbusiness, but not limited toincluding timely filings of applications for renewal, those items on Schedules 11(a)affidavits of use, 11(b)affidavits of incontestability and payment of maintenance fees, and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectand, if consistent, in good faith, with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties. In the event that it has reason to believe that any Material Intellectual Property owned by or exclusively licensed material to any Grantor is or the conduct of its business has been or is about to be infringed, misappropriated, misappropriated or diluted by a third party, such Grantor it promptly shall notify the Collateral Agent in writing and shall, if consistent with good business judgment, promptly take s▇▇ for infringement, misappropriation or dilution and to recover any and all reasonable actions to stop damages for such infringement, misappropriationmisappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Intellectual Property.
(vi) During the continuance of an Event of Default, it shall use its reasonable best efforts to obtain all requisite consents or dilution approvals by the licenser of each License to effect the assignment (as collateral security) of all of its right, title and protect interest thereunder to the Collateral Agent or its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;designee.
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it It shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets relating to the products and services sold or delivered under or in connection with the Intellectual Property owned or held by, including, without limitation, including entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
(viii) It shall in accordance with its past practices continue to collect all amounts due or to become due to the Grantor under all Intellectual Property, and diligently exercise each material right it may have thereunder, in each case at its own cost and expense, and in connection with such collections and exercise, it shall, upon the occurrence and during the continuance of an Event of Default, take such action as it or the Collateral Agent may reasonably deem necessary. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time after the occurrence and during the continuance of an Event of Default to notify, or require the Grantor to notify, any relevant obligors with respect to such amounts of the Collateral Agent’s security interest therein.
Appears in 1 contract
Sources: Security Agreement (Loton, Corp)
Covenants and Agreements. Each Grantor hereby covenants Section 6.1. Conduct of the Company Prior to the Effective Time.
(a) The Company shall, and agrees shall cause its Subsidiaries (and Questor shall cause the Company and its Subsidiaries)
(i) to carry on their respective businesses in the usual, regular and ordinary course of business in substantially the same manner as followsheretofore conducted, (ii) not to engage at any time in any business or business activity other than the business currently conducted by them and business activities reasonably incidental thereto and (iii) use commercially reasonable efforts to preserve intact their present business organizations, keep available the services of their present officers and employees and preserve their relationships with customers, suppliers, dealers, agents and others having business dealings with them to the end that their goodwill and on-going businesses shall be unimpaired at the Effective Time, except such impairment as would not have a Material Adverse Effect on the Company. The Company shall, and shall cause its Subsidiaries to (i) maintain insurance coverages in the usual manner consistent with prior practices, (ii) maintain its books, accounts and records in the usual manner consistent with prior practices, (iii) comply in all material respects with all laws, ordinances and regulations of governmental entities applicable to the Company and its Subsidiaries, (iv) maintain and keep its properties and equipment in good repair, working order and condition, ordinary wear and tear excepted, and (v) perform in all material respects its obligations under all contracts and commitments to which it is a party or by which it is bound, in each case, except for clauses (i) and (v), other than where the failure to so maintain, comply or perform, would, individually or in the aggregate, not result in a Material Adverse Effect on the Company;
(b) Except as required or permitted by this Agreement, neither the Company nor any of its Subsidiaries shall nor shall they propose to (and Questor shall not permit the Company or any of its Subsidiaries to) (i) sell or agree to sell any capital stock owned by it in any of its Subsidiaries, (ii) amend its Certificate of Incorporation or By-laws, (iii) split, combine or reclassify its outstanding capital stock or declare, set aside or pay any dividend or other distribution payable in cash, stock or property, or (iv) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any Company Class C Common Stock except for repurchases of Company Common Class C Stock from employees, officers, consultants or directors in the ordinary course of business;
(c) Except as set forth on Schedule 6.1(c), the Company shall not, nor shall it permit any of its Subsidiaries (and Questor shall not permit the Company or any of its Subsidiaries) to:
(i) except where such act or failure for the issuance of shares pursuant to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any Options outstanding as of the Material Intellectual Property of such Grantor may lapsedate hereof and except as required or permitted by this Agreement, issue, deliver or sell or agree to issue, deliver or sell any additional shares of, or become abandonedrights of any kind to acquire any shares of, dedicated its capital stock of any class, except for issuances, deliveries or sales to the publicemployees, invalidofficers, consultants or unenforceable, or placed in the public domain, or, in the case directors of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability not more than 2,000 shares of the security interest granted thereinClass C Common Stock;
(ii) except as could not reasonably be expected acquire, lease or dispose or agree to have acquire, lease or dispose of any capital assets or any other assets other than in the ordinary course of business and consistent with past practice;
(iii) incur additional indebtedness in excess, in the aggregate, of $25,000,000, or encumber or grant a Material Adverse Effectsecurity interest in any asset to secure indebtedness, in the aggregate, in excess of $25,000,000 or enter into any other material transaction other than, in each case, in the ordinary course of business, it shall notbeing understood that it is within the ordinary course of business of the Company and its Subsidiaries to issue indebtedness within the limits of existing credit facilities;
(iv) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, in each case in this clause (iv) which are material, individually or in the aggregate, to the Company and its Subsidiaries taken as a whole, except that the Company may create new wholly owned subsidiaries in the ordinary course of business;
(v) fail to comply in all material respects with the applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to Employee Benefit Plans;
(vi) sell or transfer any Trademarks constituting Material Intellectual Propertymaterial properties or assets to, cease or purchase or acquire any material property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except that the Company or any of its Subsidiaries may engage in any of the foregoing transactions (A) pursuant to existing arrangements disclosed on Schedule 4.17, or (B) except for transactions with Significant Stockholders, in the ordinary course of business at prices and on terms and conditions no less favorable to the Company or any of its Subsidiaries than could be obtained on an arm's-length basis from unrelated third parties;
(vii) without Buyer's consent, which consent shall not be unreasonably withheld or delayed, make any material tax election under the Code (other than in the ordinary course of business consistent with past practice) or settle or compromise any tax liability involving amounts in excess of $1,000,000 in the aggregate;
(viii) pay, discharge, settle or satisfy any claims, litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) involving amounts in excess of $1,000,000 in the aggregate, other than the payment, discharge or satisfaction of liabilities (x) reflected or reserved against in, or contemplated by, the financial statements (or the notes thereto) of the Company included in the Company Public Reports or (y) in the ordinary course of business consistent with past practice;
(ix) fail to use all commercially reasonable efforts to keep its insurable properties adequately insured at all times by financially sound and reputable insurers, maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it, fail to maintain such other insurance as may be required by law, provided, however, that notwithstanding anything to the contrary contained herein, the Company may continue its current insurance practices;
(x) fail to maintain in full force and effect insurance that, to the best of such Trademarks the Company's Knowledge, is customary in the industry and complies with applicable material governmental regulations, provided, however, that notwithstanding anything to the contrary contained herein, the Company may continue its current insurance practices;
(xi) with respect to its fleet of trucks, fail to perform maintenance (routine or unscheduled) and repairs, fail to keep its fleet, in all material respects, in good working order and condition, or fail to maintain its fleet as required in order to keep the level manufacturer's warranty, in all material respects, if any, in force;
(xii) fail to use all commercially reasonable efforts to continue to collect its accounts receivable in the ordinary course of business and consistent with past practice;
(xiii) fail to prepare and file all material federal, state, local and foreign returns for Taxes and other material Tax reports, filings and amendments thereto required to be filed by it, or fail to allow Buyer, at its request, to review all such returns, reports, filings and amendments prior to the quality filing thereof, which review shall not interfere with the timely filing of products sold and services rendered under such returns;
(xiv) increase by more than 10% the base salary of any of such Trademark at a level at least substantially consistent with the quality its employees whose base salary is in excess of such products and services $100,000 as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such except consistent standards of qualitywith past practice or enter into a new material Employee Benefit Plan;
(iiixv) except where as may be required by applicable law (in which case Buyer shall have the option to participate in such failure negotiation), enter into any negotiation with respect to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Officecollective bargaining agreement;
(ivxvi) except where the failure make any loans to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item third party in excess of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed $1,000,000 in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding aggregate except in the United States Patent and Trademark Office, the United States Copyright Office or any state registryordinary course of business;
(vxvii) except where the failure to do so could without Buyer's consent which may not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office unreasonably withheld or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now delayed amend or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) cancel or agree to the Perfection Certificate (material amendment or cancellation of any contract filed as an exhibit to the Company Public Reports or enter into any new contract required to be filed as such schedules may be amended or supplemented from time to time)an exhibit;
(vixviii) without Buyer's consent which may not be unreasonably withheld or delayed make any change in any accounting methods, except where the failure as may be required by GAAP or as appropriate to do so could not reasonably be expected conform to have a Material Adverse Effect, changes in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;GAAP; or
(viixix) except as could not reasonably be expected enter into any contract, agreement commitment or arrangement to have a Material Adverse Effect, it shall not (and shall not permit take any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated actions described in Section 6.1(b) or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentselsewhere in this Section 6.1(c).
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property owned by such Grantor which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are owned by such Grantor and material to the business of such Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of such Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property may that is material to the business of such Grantor is likely to become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property Collateral including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, misappropriated, or diluted by a third partyparty in any material respect, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall confirm, register, record, or perfect the licensees or sublicensees under its control) do Collateral Agent’s interest in any act that uses any Material part of the Intellectual Property to infringeCollateral, misappropriate, whether now owned or violate the intellectual property rights of any other Person; andhereafter acquired;
(ix) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets material to the business of such Grantor, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(xii) it shall use proper statutory notice in connection with its use of any Intellectual Property owned by such Grantor; and
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any commercially unreasonable act whereby any of the Material Intellectual Property which, in its reasonable business judgment, is material to any line of such Grantor business of the Grantors may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to any line of business of the Grantors, as determined in its reasonable business judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following at its own expense, within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to any line of business of the Grantors, apply to register the Copyright in the United States Copyright Office;
(iv) Office except where for works with respect to which such Grantor has determined with the failure to do exercise of its commercially reasonable judgment that it shall not so could not reasonably be expected to have a Material Adverse Effect, apply; it shall promptly notify the Revolving Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to any line of business of the Grantors may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; except for works with respect to which such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectit shall, it shall at its own expense, take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its any line of business of the Grantors which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.6(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(viE) except for Intellectual Property that such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business or where the failure to do so take such action, individually or in the aggregate, could not reasonably be expected to have result in a Material Adverse Effect, ;
(v) in the event that any Material Intellectual Property owned by or exclusively licensed to such Grantor that is of significant value or is material to any Grantor is or has been line of business of the Grantors is, to such Grantor’s knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages (except for Intellectual Property that such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of such line of business); such Grantor shall also notify in writing Revolving Collateral Agent of the name and address of such third party, as well as any pertinent information reasonably requested by the Revolving Collateral Agent regarding the infringement, misappropriation, or dilution;
(vi) it shall report to the Revolving Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (ii) the acquisition of any such application or registration by purchase or assignment, and (iii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Revolving Collateral Agent (A) a completed Pledge Supplement, substantially in the form of Exhibit A, together with all supplements to Schedules thereto; and (B) a grant of security in the Intellectual Property substantially in the form of Exhibit D, Exhibit E, or Exhibit F, as applicable, within thirty (30) days of such submission or acquisition or as soon as legally permissible, and promptly file such grant with the United States Patent and Trademark Office or the United States Copyright Office, as applicable; provided, that for the avoidance of doubt, any Intellectual Property or rights therein acquired by any Grantor after the date hereof shall constitute Collateral as if such would have constituted Collateral at the time of execution hereof and be subject to the lien and security interest created by this Agreement without further action by any party;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly execute and deliver within thirty (30) days to the Revolving Collateral Agent at such Grantor’s expense, a certificate or other indicia of ownership where a registration of Intellectual Property is issued hereafter as a result of any application now or hereafter pending, and shall not permit execute, deliver and record any licensee document required to acknowledge, confirm, register, record, or sublicensee thereof under its control to) (A) do perfect the Revolving Collateral Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may become invalidated Intellectual Property, whether now owned or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainhereafter acquired;
(viii) except with the prior consent of the Revolving Collateral Agent (not to be unreasonably withheld) or as could permitted under the Revolving Credit Agreement, no Grantor shall execute, and there will not reasonably be expected on file in any public office, any financing statement or other document or instruments (other than financing statements, documents or instruments filed in respect of Permitted Liens) and no Grantor shall sell, assign, transfer, license, grant any option or create or suffer to have a Material Adverse Effectexist any Lien upon or with respect to the Intellectual Property, it shall not except for (nor shall 1) the licensees or sublicensees Lien created by and under its controlthis Agreement and the other Credit Documents and (2) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andPermitted Liens;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents, except as, individually or in the aggregate, could not be reasonably expected to result in a Material Adverse Effect;
(x) it shall take all steps reasonably necessary to use proper statutory notice in connection with its use of any of the Intellectual Property, except as, individually or in the aggregate, could not be reasonably expected to result in a Material Adverse Effect; and
(xi) subject to the next sentence, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Revolving Collateral Agent’s reasonable direction (subject to the terms of the Intercreditor Agreement), shall take) such action as such Grantor or the Revolving Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Revolving Collateral Agent shall have the right (subject to the terms of the Intercreditor Agreement) at any time to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby; provided with respect to sub-clauses (i) through (x) above, nothing in this Agreement shall prevent any Grantor from discontinuing the use or maintenance of any Article 9 Collateral consisting of a Patent, Trademark or Copyright, or require any Grantor to pursue any claim of infringement, misappropriation or dilution, if (x) such Grantor so reasonably determines in its good business judgment and (y) it is not prohibited by the Revolving Credit Agreement.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followswith the Secured Party that from and after the date of this Agreement until the payment in full of all Secured Obligations that:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted thereintherein unless such Intellectual Property is not material to the conduct of its business or operations;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertyof any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereofhereof unless any such Trademark is not material to the conduct of its business or operations, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Secured Party if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Grantor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall unless it shall reasonably determine that such Intellectual Property is not material to the conduct of its business or operations, promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Secured Party (i) the filing of any application to register any Intellectual Property with the United States Patent and shall not permit Trademark Office, the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Secured Party a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Secured Party, execute and deliver to have a Material Adverse Effectthe Secured Party any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the intellectual property rights Secured Party’s interest in any part of any other Person; andthe Intellectual Property, whether now owned or hereafter acquired;
(ix) except where with the failure prior consent of the Secured Party or as permitted under the Credit Agreement (including, without limitation, with respect to do purchase money security interests permitted under the Credit Agreement), each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Secured Party and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secretstrade secrets relating to the products and services sold or delivered under or in connection with the Intellectual Property;
(xii) it shall use proper statutory notice in connection with its use of any of the Intellectual Property; and
(xiii) it shall continue to collect, includingat its own expense, without limitationall amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, entering into confidentiality agreements each Grantor may take such action as such Grantor may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Secured Party shall have the right at any time, to notify, or require any Grantor to notify, any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xo Communications Inc)
Covenants and Agreements. Each Notwithstanding anything contained herein to the contrary, each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not (A) do any act or omit to do any act whereby any of the Material Intellectual Property of such material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor may lapselapses or becomes invalidated, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive valueas applicable, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein, or (B) except with the prior consent of the Collateral Agent or as permitted under the Note Purchase Agreement, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any material Patents, Trademarks, Copyrights or Trade Secrets owned by any Grantor (other than the licensing of such Intellectual Property in the ordinary course of business);
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary reasonable measures to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material Intellectual Property may become material Patents, Trademarks, Copyrights or Trade Secrets owned or used by any Grantor becomes, as applicable, (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any domain name registrar or any foreign counterpart of the foregoing, to pursue any application and maintain any registration (including, without limitation, the timely payment of all renewal and maintenance fees) of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property includingwhich Grantor, in its reasonable business judgment, believes should be pursued or maintained, but not limited to, those items on Schedules 11(a), 11(b), in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timexvi);
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property (A) owned by any Grantor or (B) exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by any Person in a third partymanner that materially ▇▇▇▇▇ the Grantor, such Grantor shall promptly notify the Collateral Agent and take all actions that Grantor deems reasonable actions or appropriate under the circumstances (to the extent permitted under the applicable IP License and by applicable law) to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, as applicable, the initiation of a suit for injunctive relief and to recover damages;
(vi) in the event that any Grantor receives any written notice or communication alleging that such Grantor or the conduct of such Grantor’s business is infringing, misappropriating, diluting or otherwise violating any Patent, Trademark, Copyright or Trade Secret owned or controlled by any Person other than such Grantor, such Grantor shall promptly report such notice or communication to the Collateral Agent and take actions that such Grantor deems reasonable or appropriate under the circumstances, provided that such actions are in accordance with Sections 4.7(b)(xv) and (xvi).
(vii) except as could not reasonably be expected it shall, on a quarterly basis, report to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) the Collateral Agent (A) do the filing of any act application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any domain name registrar or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired and through any agent, employee, licensee, or designee thereof) (B) do the registration of any act Patents, Trademarks, Copyrights or omit Trade Secrets by any such office, in each case by executing and delivering to do the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto and (C) any act whereby any portion of the Copyrights may fall new material IP Licenses entered into the public domainby Grantor;
(viii) except as could not reasonably be expected it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document required to acknowledge, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringeconfirm, misappropriateregister, record, or violate perfect the Collateral Agent’s interest in any part of Grantor’s Intellectual Property, whether now owned or hereafter acquired by such Grantor, including, without limitation, intellectual property rights security agreements in the form of any other Person; andExhibits F, G and H, as applicable;
(ix) except where with the failure prior consent of the Collateral Agent, the First Lien Collateral Agent pursuant to do and in accordance with the First Lien Security Documents or the Second Lien Collateral Agent pursuant to and in accordance with the Second Lien Security Documents or as permitted under the Note Purchase Agreement, each Grantor shall not execute, file or have filed in any public office, any financing statement or similar document or instruments, except financing statements or similar documents or instruments filed or to be filed in favor of the Collateral Agent, the First Lien Collateral Agent pursuant to the First Lien Security Documents or the Second Lien Collateral Agent pursuant to the Second Lien Security Documents, and, except as permitted under the Note Purchase Agreement, each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien (except Permitted Liens) upon or with respect to the Intellectual Property used in the business of any Grantor, except for the Lien created by and under this Agreement and the other Credit Documents and Permitted Liens;
(x) it shall hereafter use commercially reasonable efforts so could as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that would reasonably be expected likely to have materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment (upon an Event of Default) of, such Grantor’s interest in any Intellectual Property which Grantor acquires under such contracts;
(xi) it shall take all steps reasonably deemed necessary by Grantor, in its commercially reasonable business judgment, to protect the secrecy confidentiality of all material Trade Secrets, including, without limitation, entering into confidentiality and proprietary information and invention assignment agreements with employees and consultants and labeling and restricting access to secret confidential information and documents;
(xii) except as would not have a Material Adverse Effect, it shall use proper statutory notice in connection with its use of any of its Intellectual Property;
(xiii) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property used in the business of any Grantor or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby;
(xiv) it shall continue to diligently prepare and file patent applications for all identified inventions that have come to the attention of senior management personnel, which Grantor, in its reasonable business judgment believes to be patentable and better protected under a Patent as opposed to any other form of Intellectual Property, but in any event in a manner consistent with such Grantor’s obligations pursuant to Sections 4.7(b)(xv) and (xvi);
(xv) within six months after the Effective Date (or such later date as the Note Agent may approve), Holdings shall prepare and obtain approval of the board of directors for a strategy for the protection, development, acquisition, licensing and prosecution of patents and other Intellectual Property and the assessment, monitoring and mitigation of, and response to, litigation, threats and other risks relating thereto (including defensive and offensive patent strategies). On a quarterly basis thereafter, Holdings shall report to the board of directors on Holdings’ progress on implementation of such strategy as it may be revised from time to time. Any material changes to such strategy or the implementation thereof shall be subject to prior approval of the board of directors. Such strategy and any material changes thereto shall be reasonably satisfactory to the Note Agent. Notwithstanding the foregoing, the only Events of Default resulting from any failure of Holdings to comply with its obligations in this paragraph shall be Holdings’ failure to provide the certificates referred to in paragraph (xvii) below or to obtain the approval of the board of directors referred to in this paragraph (xv); and
(xvi) each regular quarterly and annual compliance certificate required to be delivered to the Agent and the Holders by Holdings pursuant to Section 5.1(d) of the Note Purchase Agreement shall include a certification that Holdings has complied, in all material respects with its obligations to prepare and implement an Intellectual Property strategy and to obtain board approval for such strategy and for any material changes to such strategy or the implementation thereof or, if Holdings has not so complied, a statement to that effect.
Appears in 1 contract
Sources: Third Lien Pledge and Security Agreement (Vonage Holdings Corp)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effectas permitted under the Financing Agreement, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all commercially reasonable steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents.
Appears in 1 contract
Sources: Financing Agreement (Global Geophysical Services Inc)
Covenants and Agreements. Each each Grantor hereby covenants and agrees as follows:
(i1) except where such act or failure to omission could for Intellectual Property that is not reasonably be expected to have a Material Adverse Effectin use and has negligible value, it Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property that is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii2) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent Secured Debt Representatives if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of such Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, any foreign counterpart of the foregoing, or any state registrycourt arbitral tribunal or regulatory agency;
(v3) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property and which is material to the business of such Grantor including, but not limited to, those items on Schedules 11(aSchedule VI(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time)) except for those pertaining to Intellectual Property that is not material to the Business of such Grantor;
(vi4) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor that is or has been material to such Grantor's business is infringed, misappropriated, or diluted by a third party, such Grantor shall promptly shall, to the extent such Grantor considers action advisable under the circumstances, take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii5) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion maintain the level of the Copyrights may become invalidated or otherwise impaired quality of products sold and (B) do services rendered under any act or omit Trademark that is material to do any act whereby any portion such Grantor's business at a level at least substantially consistent with the quality of such products and services as of the Copyrights may fall into the public domaindate hereof, and each Grantor shall require that licensees of such Trademarks use such standards of quality;
(viii6) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling third parties with access to Trade Secrets and restricting access to material secret information and documents;
(7) it shall promptly (but in no event more than thirty (30) days after Grantor's knowledge thereof) report to the Secured Debt Representatives (i) the filing of any application by such Grantor to register any Intellectual Property whether it owns in whole or in part or to the best of its knowledge which it is exclusively licensing from a third party with the United States Patent and Trademark Office, the United States Copyright Office, (whether such application is filed by such Grantor or through any agent, employee or designee thereof), (ii) the registration of any Intellectual Property by any such office, or (iii) the acquisition by Grantor of any application or registration and, in each case, subject to Section 2(b) hereof, shall execute and deliver to the Collateral Trustee a completed Pledge Supplement, substantially in the form of Annex A attached hereto, together with all Supplements to Schedules thereto or signed counterpart of a Trademark Security Agreement, Patent Security Agreement, or Copyright Security Agreement substantially in the form of Annexes B, C, and D, as applicable together with all supplements to the schedules thereto;
(8) except as permitted under the Secured Debt Documents, each Grantor shall not execute or file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Collateral Trustee and each Grantor shall not sell, assign, transfer, grant any option to purchase, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Security Agreement and any Secured Debt Document and except for Permitted Sales;
(9) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. Upon the occurrence and continuance of an Event of Default, in connection with such collections, each Grantor may take (and, at the Collateral Trustee's reasonable direction, shall take) such action as such Grantor or the Collateral Trustee may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Trustee shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Joinder Agreement (Iwo Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest to the Collateral Agent granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item Trademark, Patent or Copyright that is material to the business of Material Intellectual Property may any Grantor has or will become (xa) abandoned or dedicated to the public or placed in the public domain, or (yb) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and that is material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time)business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed material Trademark, Patent and Copyright that is material to any Grantor a Grantor’s business is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property;
(vi) it shall promptly (but in no event more than thirty (30) days after any Grantor obtains knowledge thereof) report to the Collateral Agent the filing of any application to register any material Intellectual Property including, but not limited towith the United States Patent and Trademark Office, the initiation United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) by executing and delivering to the Collateral Agent a suit for injunctive relief and completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to recover damagesSchedules thereto;
(vii) except as could not reasonably be expected to have a Material Adverse Effectit shall, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document required to acknowledge, confirm, register, record, or otherwise impaired and (B) do perfect the Collateral Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into Intellectual Property material to the public domainbusiness of such Grantor, whether now owned or hereafter acquired;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents; and
(ix) it shall use appropriate statutory notice of registration in connection with its proper marking practices in connection with the use of any of the Patents.
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following within thirty (30) days of the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Grantor, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Administrative Agent if it knows or has reason to know that all or part of any Annovera Patent, Bijuva Patent, Imvexxy Patent, or any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, except at the end of the natural term of any of the aforementioned patents, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright that is owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to timeE);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly (but in no event more than forty-five (45) days after any Grantor obtains knowledge thereof) report to the Administrative Agent (i) the filing of any application to register any material Intellectual Property with the United States Patent and Trademark Office or the United States Copyright Office (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any such material Intellectual Property by any such office, in each case by executing and delivering to the Administrative Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) it shall, promptly upon the reasonable request of the Administrative Agent, execute and deliver to the Administrative Agent any document required to acknowledge, confirm, register, record, or perfect, in each case, to the extent required by this Agreement, the Administrative Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(ix) except with the prior consent of the Administrative Agent or as permitted under the Financing Agreement, each Grantor shall not execute, and there will not be on file in any public office in the United States, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Administrative Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for Permitted Liens and the Lien created by and under this Agreement and the other Loan Documents;
(x) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion in any licensee contract to which it hereafter becomes a party of any provision that could or sublicensee thereof might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xi) it shall take reasonable steps to maintain the confidentiality of, and otherwise protect and enforce its control to) rights in, the Intellectual Property that is necessary in the conduct of such Grantor’s business, including, as applicable (A) do any act or omit protecting the secrecy and confidentiality of its confidential information and Trade Secrets by having and enforcing a policy requiring all current employees, consultants, licensees, vendors and contractors with access to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired such information to execute appropriate confidentiality agreements and (B) do any act or omit taking actions reasonably necessary to do any act whereby any portion of the Copyrights may fall ensure that no Trade Secret falls into the public domain;
(viiixii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under use proper statutory notice in connection with its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights use of any other Personof the Intellectual Property; and
(ixxiii) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take all steps (and, at the Administrative Agent’s reasonable direction, shall take) such action as such Grantor or the Administrative Agent may deem reasonably necessary to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Administrative Agent shall have the right at any time following the occurrence and during the continuance of all Trade Secretsan Event of Default, includingto notify, without limitationor require any Grantor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (TherapeuticsMD, Inc.)
Covenants and Agreements. Each Grantor Debtor hereby covenants and agrees ------------------------ as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any reasonable act whereby any of the Material Intellectual Property which is material to the business of such Grantor Debtor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would be reasonably likely to materially adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Debtor, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor Debtor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality; provided that it is -------- commercially reasonable for each Debtor to continue using such Trademarks;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following after the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertywhich is material to the business of Debtor, Debtor shall apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor Debtor and material to its business which is now or shall become included in the Material Intellectual Property (except for such works with respect to which such Debtor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.5(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(v) it shall promptly (but in no event more than thirty (30) days after any Debtor obtains knowledge thereof) report to the Secured Party (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Debtor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Secured Party a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto;
(vi) except where it shall, promptly upon the failure reasonable request of the Secured Party, execute and deliver to do so could not reasonably be expected the Secured Party any document required to have a Material Adverse Effectacknowledge, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringedconfirm, misappropriatedregister, record, or diluted by a third partyperfect the Secured Party's interest in any part of the Intellectual Property, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, whether now owned or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damageshereafter acquired;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall hereafter use commercially reasonable efforts so as not (to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could or might in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Debtor's rights and shall not permit interests in any licensee or sublicensee thereof property included within the definitions of any Intellectual Property acquired under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainsuch contracts;
(viii) except as could not reasonably be expected to have a Material Adverse Effectwhere commercially reasonable and practicable, it shall not (nor shall the licensees or sublicensees under use proper statutory notice in connection with its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights use of any other Personof the Intellectual Property; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect (or attempt to collect), at its own expense, all amounts due or to become due to such Debtor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Debtor may take all steps such action as such Debtor or the Secured Party may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, the Secured Party shall have the right at any time, to notify, or require any Debtor to notify, any obligors with respect to any such amounts of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documentsthe existence of the security interest created hereby.
Appears in 1 contract
Covenants and Agreements. Each Grantor Debtor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor Debtor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease which are material to the use business of any Debtor, each Debtor shall take all commercially reasonable steps (as determined by such Debtor in the exercise of its reasonable business judgment) to require that licensees of such Trademarks or fail to maintain the level use standards of quality consistent with the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services Trademarks as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, Office and the United States Copyright Office Office, and, if reasonably requested by the Secured Party, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor Debtor and material to its business which is now or shall become included in the Material Collateral constituting Intellectual Property (except for such works with respect to which such Debtor has determined in the exercise of its commercially reasonable judgment that it shall not seek registration) including, but not limited to, those items on Schedules 11(aSchedule 4.5(A), 11(b), (B) and 11(c(D) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(viiv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor Debtor that is or has been material to such Debtor's business is infringed, misappropriated, or diluted by a third party, such Grantor Debtor shall promptly take all reasonable actions (as determined by such Debtor in the exercise of its reasonable business judgment) to stop seek a remedy for such infringement, misappropriation, or dilution and protect its exclusive rights in such Material Intellectual Property;
(v) on such periodic basis as Secured Party shall reasonably require and in any event no less frequently than quarterly, not later than the thirtieth day after the end of each quarter, it shall report to Secured Party (i) the filing of any application to register any Intellectual Property including, but not limited towith the United States Patent and Trademark Office, the initiation United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Debtor or through any agent, employee, licensee, or designee thereof) and (ii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to Secured Party a suit for injunctive relief completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with a Supplement to Schedule 4.5;
(vi) in connection with the actions required pursuant to Section 4.5(b)(v), it shall promptly execute and deliver to recover damagesSecured Party any document required to acknowledge, confirm, register, record, or perfect Secured Party's interest in any part of the Intellectual Property, whether now owned or hereafter acquired;
(vii) except as could permitted under the Indenture, no Debtor shall execute, and there will not reasonably be expected on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to have a Material Adverse Effectbe filed in favor of creditors under Permitted Liens, it Secured Party or the Credit Facility Secured Party, and no Debtor shall not (create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for Permitted Liens, the Lien created by and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion this Security Agreement and the other Indenture Documents and the Lien in favor of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainCredit Facility Secured Party;
(viii) except it shall hereafter use commercially reasonable efforts consistent with industry practice (as determined by such Debtor in the exercise of its reasonable business judgment) so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Debtor's rights and interests in any material property included within the definitions of any Intellectual Property acquired under such contracts;
(ix) it shall not (nor shall the licensees or sublicensees under use proper statutory notice in connection with its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights use of any other Personmaterial Intellectual Property; and
(ixx) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall continue to collect, at its own expense, all amounts due or to become due to such Debtor in respect of the Intellectual Property or any portion thereof as it deems advisable in its reasonable business judgment. In connection with such collections, each Debtor may take all steps such action as such Debtor may deem reasonably necessary or advisable to protect enforce collection of such amounts. Notwithstanding the secrecy foregoing, subject to the Credit Facility Documents and the Intercreditor Agreement as then in effect, Secured Party shall have the right at any time following an Event of all Trade SecretsDefault, includingto notify, without limitationor require any Debtor to notify, entering into confidentiality agreements any obligors with employees and labeling and restricting access respect to secret information and documentsany such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Orbital Sciences Corp /De/)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat:
(i) except where for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, except Permitted Liens, and such act Grantor shall defend the Collateral against all other Persons at any time claiming any interest therein;
(ii) it shall not produce, use or permit any Collateral to be used unlawfully or in material violation of any provision of this Agreement or any applicable statute, regulation or ordinance or any policy of insurance covering the Collateral;
(iii) it shall not change such Grantor’s name, identity, corporate structure (e.g., by merger, consolidation, change in corporate form or otherwise), sole place of business (or principal residence if such Grantor is a natural person), chief executive office, type of organization or jurisdiction of organization or establish any trade names unless it shall have (a) notified the Collateral Agent in writing, by executing and delivering to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, at least ten (10) days prior to any such change or establishment, identifying such new proposed name, identity, corporate structure, sole place of business (or principal residence if such Grantor is a natural person), chief executive office, jurisdiction of organization or trade name and providing such other information in connection therewith as the Collateral Agent may reasonably request and (b) taken all actions necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral intended to be granted and agreed to hereby;
(iv) [INTENTIONALLY OMITTED];
(v) it shall pay promptly when due all property and other taxes, assessments and governmental charges or levies imposed upon, and all claims (including claims for labor, materials and supplies) against, the Collateral, except to the extent the validity thereof is being contested in good faith or the failure to omission could pay such amounts would not reasonably be expected to have a Material Adverse Effect; provided, it such Grantor shall in any event pay such taxes, assessments, charges, levies or claims not do later than five (5) days prior to the date of any act proposed sale under any judgment, writ or omit to do any act whereby warrant of attachment entered or filed against such Grantor or any of the Material Intellectual Property Collateral as a result of the failure to make such payment;
(vi) upon such Grantor or any officer of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectobtaining knowledge thereof, it shall promptly notify the Collateral Agent if it knows in writing of any event that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in Effect on the United States Patent and Trademark Officevalue of the Collateral or any portion thereof, the United States Copyright Office ability of any Grantor or the Collateral Agent to dispose of the Collateral or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriatedportion thereof, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution the rights and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion remedies of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsCollateral Agent in relation thereto, including, without limitation, entering into confidentiality agreements the levy of any legal process against the Collateral or any portion thereof;
(vii) it shall not take or permit any action which could impair in any material respect the Collateral Agent’s rights in the Collateral; and
(viii) it shall not sell, transfer or assign (by operation of law or otherwise) any Collateral except as otherwise in accordance with employees and labeling and restricting access to secret information and documentsthe Credit Agreement.
Appears in 1 contract
Sources: Pledge and Security Agreement (Mortons Restaurant Group Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become irrevocably abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to the business of any Grantor, cease the use of any of such Trademarks (except where, in the ordinary course and in such Grantor’s reasonable business judgment, cessation of use of a Trademark is appropriate or advisable) or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation no later than thirty (30) days before it takes any action to enforce its rights in or acquisition of to any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to its business, apply to register the applicable Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of any Grantor may become (xa) irrevocably abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; provided, however, that the foregoing subsection (c) shall not apply to rejections of claims given by the United States Patent and Trademark Office, the United States Copyright Office, or any of their foreign counterparts during the ordinary course of a patent or trademark prosecution or copyright registration;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.7(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected it shall, no less often than quarterly, report to have a Material Adverse Effectthe Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, it shall not (and shall not permit the United States Copyright Office, or any licensee state registry or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion foreign counterpart of the Copyrights may become invalidated foregoing (whether such application is filed by such Grantor or otherwise impaired through any agent, employee, licensee, or designee thereof) and (Bii) do the registration of any act or omit Intellectual Property by any such office, in each case by executing and delivering to do any act whereby any portion the Collateral Agent a completed Pledge Supplement, substantially in the form of the Copyrights may fall into the public domainExhibit A attached hereto, together with all Supplements to Schedules thereto;
(viii) except as could not reasonably be expected (A) it shall, promptly upon the reasonable request of the Collateral Agent, execute and deliver to have a Material Adverse Effectthe Collateral Agent any document (including, it shall not without limitation, agreements in the form of Exhibits E, F and G) required to acknowledge, confirm, register, record, maintain, continue, enforce, protect or perfect the Collateral Agent’s interest in any part of the Intellectual Property, whether now owned or hereafter acquired, subject to clause (nor shall B) of this paragraph in connection with the licensees or sublicensees under its controlforeign Intellectual Property; and (B) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate without limiting the intellectual property rights of any other Person; andforegoing:
(ix) it shall execute and deliver to the Collateral Agent, within 30 days of the Initial Closing Date (or such later date as the Collateral Agent, in its reasonable discretion taking into consideration the good faith best efforts of such Grantor, may consent), a security agreement or similar instrument governed by the laws of jurisdictions of material, foreign Intellectual Property, respectively, pursuant to which the Grantor shall have granted to the Collateral Agent a perfected security interest in its interests in the trademarks registered in such jurisdictions, each such security agreement or similar instrument to be in form and substance reasonably satisfactory to the Collateral Agent;
(x) except where with the failure prior consent of the Collateral Agent or as permitted under the Credit Agreement, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to do be filed in favor of the Collateral Agent and each Grantor shall not sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to the Intellectual Property, except for the Lien created by and under this Agreement and the other Credit Documents;
(xi) it shall hereafter use best efforts so as not to permit the inclusion in any contract to which it hereafter becomes a party of any provision that could not reasonably be expected to have or might in any way materially impair or prevent the creation of a Material Adverse Effectsecurity interest in, or the assignment of, such Grantor’s rights and interests in any property included within the definitions of any Intellectual Property acquired under such contracts;
(xii) it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, by entering into employment agreements containing confidentiality agreements provisions with those employees and customarily subject to employment agreements, and by labeling and restricting access to secret information and documents;
(xiii) it shall use proper statutory notice of registration in connection with its use of registered Trademarks, proper marking practices in connection with the use of Patents, and appropriate notice of copyright in connection with the publication of Copyrights, in each case to the extent the same are material to the business of such Grantor; and
(xiv) it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Medical Systems Holdings Inc)
Covenants and Agreements. Each Grantor hereby covenants and agrees as followsthat it shall:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such owned or used by Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which Security Interest therein would be adversely affect the validity, grant, or enforceability of the security interest granted therein;affected,
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark Trademarks at a level level, consistent with reasonable business judgment, at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all steps necessary to insure that licensees control the quality of such Trademarks use such consistent standards of qualitygoods and services offered by its Trademark licensees;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to the business of such Grantor may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office any Intellectual Property Registry or any state registrycourt;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, applicable Intellectual Property Registry to pursue any application and maintain any registration of each Trademark, Patent, and Copyright Intellectual Property owned by any such Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a), 11(b), and 11(c) to the Perfection Certificate Schedule 4.7 (as such schedules schedule may be amended or supplemented from time to time), provided, that at any time that the Copyright of the Grantors set forth on Schedule 4.7 with registration number VA0001826183 is no longer the subject of any litigation or dispute, Grantors shall not be required to maintain the registration related thereto;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any such Grantor is or has been infringed, diluted, misappropriated, or diluted otherwise violated by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution the same and protect enforce its rights in such Material Intellectual Property Property, including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vi) report to the Collateral Agent (i) the filing of any application to register a copyright no later than thirty (30) days after such filing occurs (ii) the filing of any application to register any Intellectual Property with any other Intellectual Property Registry and the issuance thereof no later than ninety (90) days after such filing or issuance occurs and, in each case, simultaneously delivering to the Collateral Agent a supplemental Trademark, Patent or Copyright Security Agreement, as applicable, substantially in the form of Exhibit C attached hereto, together with all schedules thereto. In addition, such Grantor hereby authorizes the Collateral Agent to modify this Agreement by amending Schedule 4.7 and will cooperate with the Agent in effecting any such amendment to include any new item of Intellectual Property included in the Collateral;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion promptly upon the reasonable request of the Copyrights may become invalidated Collateral Agent, execute and deliver to the Collateral Agent any document or otherwise impaired and (B) do instrument required to acknowledge, confirm, register, record, or perfect the Security Interest in any act or omit to do any act whereby any portion part of the Copyrights may fall into Intellectual Property owned by such Grantor, provided, that no filing in the public domainIntellectual Property Registries shall be required to be made to perfect the Security Interest with respect to the Copyright of the Grantors with registration number VA0001826183;
(viii) not execute, file, or authorize the filing of any financing statement or other document or instruments, except as could not reasonably financing statements or other documents or instruments filed (or to be expected to have a Material Adverse Effect, it filed) in favor of the Collateral Agent and such Grantor shall not (nor shall the licensees or sublicensees under its control) do sell, assign, transfer, license, grant any act that uses any Material Intellectual Property to infringe, misappropriateoption, or violate the intellectual property rights of create or suffer to exist any other Person; andLien upon or with respect to Intellectual Property, except for Permitted Encumbrances;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade SecretsSecrets material to its business; and
(x) use statutory notice of registration in connection with its use of registered Trademarks, includingproper marking practices in connection with the use of Patents, without limitationappropriate notice of copyright in connection with the publication of Copyrighted materials, entering into confidentiality agreements with employees and labeling and restricting access legends or markings applicable to secret information and documentsother Intellectual Property.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Joe's Jeans Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act act, failure or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any act whereby any of the Material Intellectual Property of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Property, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Property, apply to register the Copyright in the United States Copyright Office;
(iv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (x) abandoned or dedicated to the public or placed in the public domain, (y) invalid or unenforceable, or (z) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any state registry;
(v) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any state registry, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(a10(a), 11(b10(b), and 11(c10(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(vi) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that any Material Intellectual Property owned by or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion of the Copyrights may become invalidated or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domain;
(viii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(x) each Grantor agrees, within fourteen (14) days of the Issue Date, to provide the Collateral Agent with a complete and accurate list of all U.S. registered and applied for Intellectual Property owned by such Grantor, and to execute all documents necessary to perfect the security interest granted herein; and
(xi) Each Grantor will take reasonable steps to clear and correct defects in the chain of title (including any Liens other than Permitted Liens) of the Intellectual Property owned by such Grantor by making appropriate filings with the United States Patent and Trademark Office and United States Copyright Office promptly upon learning of such defect and will provide evidence of such filings promptly upon receipt thereof from the United States Patent and Trademark Office and United States Copyright Office, as applicable.
Appears in 1 contract
Sources: Pledge and Security Agreement (CommScope Holding Company, Inc.)
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i1) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property which is material to the business of such Grantor may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would could reasonably be expected to adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii2) except as could at the Joint Collateral Agent's request Grantor shall, or with not reasonably be expected less than fifteen (15) days' notice to have a Material Adverse Effect, it shall not, with respect the Joint Collateral Agent prior to filing any Trademarks constituting Material Intellectual Property, cease copyright application of the use of any details of such Trademarks proposed application (or fail shorter notice period, to maintain the level extent that delaying the filing of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with copyright application would adversely affect the quality of such products and services as of the date hereofGrantor's rights to enforce its copyright against an alleged infringer), and each Grantor shall take all steps necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following the creation or acquisition of any Copyrightable work constituting Material Intellectual Propertymay, apply to register any unregistered Copyrightable work which is material to the Copyright business of Grantor, in the United States Copyright OfficeOffice and; in each case, Grantor shall, concurrently with such notice, execute and deliver to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Annex A attached hereto, together with all Supplements to Schedules thereto or signed counterpart of a Copyright Security Agreement substantially in the form of Annex D, together with all supplements to the schedules thereto;
(iv3) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall promptly notify the Joint Collateral Agent if it knows or has reason to know that any item of Material material Intellectual Property may that is material to the business of any Grantor is likely to become or be (xa) other than as a result of the expiration in the ordinary course of a non-renewable term, abandoned or dedicated to the public or placed in the public domain, (y) or invalid or unenforceable, or (zb) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office Office, and state registry, any foreign counterpart of the foregoing, or any state registrycourt arbitral tribunal or regulatory agency, or (c) within the statutory period in which statutory termination rights can be exercised;
(v4) except where the failure subject to do so could not reasonably be expected to have a Material Adverse Effectclause (2) above, it shall take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office or any Office, each state registryregistry and each foreign counterpart of the foregoing, to pursue any application and maintain any registration of each material Trademark, Patent, and Copyright owned by any Grantor and material to its business which is now or shall become included in the Material Intellectual Property Collateral including, but not limited to, those items on Schedules 11(aSchedule VI(A), 11(b), (C) and 11(c(E) to the Perfection Certificate (as such schedules each may be amended or supplemented from time to time);
(vi5) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, in the event that that, to the Grantor's knowledge, any Material material Intellectual Property owned by by, or exclusively licensed to any Grantor is or has been infringed, misappropriated, or diluted by a third another party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages;
(vii6) except as could not reasonably be expected to have a Material Adverse Effectthe extent required to prevent material Trademarks from becoming invalid, it each Grantor shall not (and shall not permit any licensee or sublicensee thereof under its control to) (A) do any act or omit to do any act whereby any portion maintain the level of the Copyrights may become invalidated or otherwise impaired quality of products sold and (B) do services rendered under any act or omit Trademark, and each Grantor shall take all steps necessary to do any act whereby any portion insure that licensees of the Copyrights may fall into the public domainsuch Trademarks use such standards of quality;
(viii7) except as could not reasonably be expected to have a Material Adverse Effect, it shall not (nor shall the licensees or sublicensees under its control) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; and
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all commercially reasonable steps reasonably necessary required to protect the secrecy and proprietary nature of all material Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents;
(8) it shall promptly (but in no event more than forty-five (45) days after the fact) report to the Joint Collateral Agent (i) the filing of any application to register any Trademarks and Patents (whether it owns in whole or in part) with the United States Patent and Trademark Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensor, licensee, or designee thereof), (ii) the registration of any Intellectual Property by any such office (but only to the extent that there was no recordation of the Joint Collateral Agent's security interst made with respect to the application for such registration) or (iii) the acquisition of any application or registration and, in each case, shall, concurrently with such report to the Joint Collateral Agent, execute and deliver to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of ANNEX A attached hereto, together with all Supplements to Schedules thereto or signed counterpart of a Trademark Security Agreement, or Patent Security Agreement, substantially in the form of Annexes B, and C, as applicable together with all supplements to the schedules thereto;
(9) except with the prior consent of the Joint Collateral Agent or as permitted under the Indenture, each Grantor shall not execute, and there will not be on file in any public office, any financing statement or other document or instruments, except financing statements or other documents or instruments filed or to be filed in favor of the Joint Collateral Agent and each Grantor shall not (i) outside the ordinary course of business, sell, assign, transfer, license or grant an option to do any of the foregoing with respect to any material Intellectual Property or any material Intellectual Property License, or (ii) create or suffer to exist any Lien upon or with respect to the Intellectual Property it owns or with regard to any Intellectual Property License, except for the Lien created by and under this Agreement and the other Transaction Documents;
(10) it shall hereafter use commercially reasonable efforts so as not to permit the inclusion or absence, as applicable, in any contract to which it hereafter becomes a party of any provision the inclusion or absence, as applicable, of which would impair or prevent the creation, perfection or enforcement of a security interest in, or the assignment of, such Grantor's rights and interests in any Intellectual Property acquired under such Contracts;
(11) it shall use required statutory notices and in connection with its use of any of material Intellectual Property;
(12) it shall make commercially reasonable efforts to continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of any Intellectual Property. In connection with such collections, each Grantor may take such action as such Grantor may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Joint Collateral Agent shall have the right at any time, to notify, or require to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby; and
(13) it shall within 60 days of the date hereof request all consents necessary or advisable to permit the Restricted Patents to be subject to the security interest of the Joint Collateral Agent or to permit the Joint Collateral Agent to exercise remedies with respect thereto.
Appears in 1 contract
Covenants and Agreements. Each Grantor hereby covenants and agrees as follows:
(i) except where such act or failure to omission could not reasonably be expected to have a Material Adverse Effect, it shall not do any act or omit to do any commercially unreasonable act whereby any of the Material Intellectual Property which, in its reasonable business judgment, is material to any line of such Grantor business of the Grantors may lapse, or become abandoned, dedicated to the public, invalid, or unenforceable, or placed in the public domain, or, in the case of a Trade Secret, lose its competitive value, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;
(ii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not, with respect to any Trademarks constituting Material Intellectual Propertywhich are material to any line of business of the Grantors, as determined in its reasonable business judgment, cease the use of any of such Trademarks or fail to maintain the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and each such Grantor shall take all steps reasonably necessary to insure that licensees of such Trademarks use such consistent standards of quality;
(iii) except where such failure to register could not reasonably be expected to have a Material Adverse Effect, it shall, promptly following at its own expense, within thirty (30) days of the creation or acquisition of any Copyrightable copyrightable work constituting Material Intellectual Propertywhich is material to any line of business of the Grantors, apply to register the Copyright in the United States Copyright Office;
(iv) Office except where for works with respect to which such Grantor has determined with the failure to do exercise of its commercially reasonable judgment that it shall not so could not reasonably be expected to have a Material Adverse Effect, apply; it shall promptly notify the Term Collateral Agent if it knows or has reason to know that any item of Material the Intellectual Property that is material to any line of business of the Grantors may become (xa) abandoned or dedicated to the public or placed in the public domain, (yb) invalid or unenforceable, or (zc) subject to any adverse determination or development (including the institution of proceedings) in any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office or Office, any state registry, any foreign counterpart of the foregoing, or any court; except for works with respect to which such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business;
(viv) except where the failure to do so could not reasonably be expected to have a Material Adverse Effectit shall, it shall at its own expense, take all reasonable steps in the United States Patent and Trademark Office, the United States Copyright Office Office, any state registry or any state registryforeign counterpart of the foregoing, to pursue any application and maintain any registration of each Trademark, Patent, and Copyright owned by any such Grantor and material to its any line of business of the Grantors which is now or shall become included in the Material Intellectual Property including, but not limited to, those items on Schedules 11(aSchedule 4.6(A), 11(b), (C) and 11(c) to the Perfection Certificate (as such schedules may be amended or supplemented from time to time);
(viE) except for Intellectual Property that such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of its business or where the failure to do so take such action, individually or in the aggregate, could not reasonably be expected to have result in a Material Adverse Effect, ;
(v) in the event that any Material Intellectual Property owned by or exclusively licensed to such Grantor that is of significant value or is material to any Grantor is or has been line of business of the Grantors is, to such Grantor’s knowledge, infringed, misappropriated, or diluted by a third party, such Grantor shall promptly take all reasonable actions to stop such infringement, misappropriation, or dilution and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damagesdamages (except for Intellectual Property that such Grantor has reasonably determined are of diminishing value and not used in or needed for the conduct of such line of business); such Grantor shall also notify in writing Term Collateral Agent of the name and address of such third party, as well as any pertinent information reasonably requested by the Term Collateral Agent regarding the infringement, misappropriation, or dilution;
(vi) it shall report to the Term Collateral Agent (i) the filing of any application to register any Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, or any state registry or foreign counterpart of the foregoing (whether such application is filed by such Grantor or through any agent, employee, licensee, or designee thereof), (ii) the acquisition of any such application or registration by purchase or assignment, and (iii) the registration of any Intellectual Property by any such office, in each case by executing and delivering to the Term Collateral Agent (A) a completed Pledge Supplement, substantially in the form of Exhibit A, together with all supplements to Schedules thereto; and (B) a grant of security in the Intellectual Property substantially in the form of Exhibit B, Exhibit C, or Exhibit D, as applicable, within thirty (30) days of such submission or acquisition or as soon as legally permissible, and promptly file such grant with the United States Patent and Trademark Office or the United States Copyright Office, as applicable; provided, that for the avoidance of doubt, any Intellectual Property or rights therein acquired by any Grantor after the date hereof shall constitute Collateral as if such would have constituted Collateral at the time of execution hereof and be subject to the lien and security interest created by this Agreement without further action by any party;
(vii) except as could not reasonably be expected to have a Material Adverse Effect, it shall not promptly execute and deliver within thirty (30) days to the Term Collateral Agent at such Grantor’s expense, a certificate or other indicia of ownership where a registration of Intellectual Property is issued hereafter as a result of any application now or hereafter pending, and shall not permit execute, deliver and record any licensee document required to acknowledge, confirm, register, record, or sublicensee thereof under its control to) (A) do perfect the Term Collateral Agent’s interest in any act or omit to do any act whereby any portion part of the Copyrights may become invalidated Intellectual Property, whether now owned or otherwise impaired and (B) do any act or omit to do any act whereby any portion of the Copyrights may fall into the public domainhereafter acquired;
(viii) except with the prior consent of the Term Collateral Agent (such consent not to be unreasonably withheld, delayed or conditioned) or as could permitted under the Term Loan Agreement, no Grantor shall execute, and there will not reasonably be expected on file in any public office, any financing statement or other document or instruments (other than financing statements, documents or instruments filed in respect of Permitted Liens) and no Grantor shall sell, assign, transfer, license, grant any option or create or suffer to have a Material Adverse Effectexist any Lien upon or with respect to the Intellectual Property, it shall not except for (nor shall 1) the licensees or sublicensees Lien created by and under its controlthis Agreement and the other Credit Documents and (2) do any act that uses any Material Intellectual Property to infringe, misappropriate, or violate the intellectual property rights of any other Person; andPermitted Liens;
(ix) except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, it shall take all steps reasonably necessary to protect the secrecy of all Trade Secrets, including, without limitation, entering into confidentiality agreements with employees and labeling and restricting access to secret information and documents, except as, individually or in the aggregate, could not be reasonably expected to result in a Material Adverse Effect;
(x) it shall take all steps reasonably necessary to use proper statutory notice in connection with its use of any of the Intellectual Property, except as, individually or in the aggregate, could not be reasonably expected to result in a Material Adverse Effect; and
(xi) subject to the next sentence, it shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, each Grantor may take (and, at the Term Collateral Agent’s reasonable direction (subject to the terms of the Intercreditor Agreement), shall take) such action as such Grantor or the Term Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, the Term Collateral Agent shall have the right (subject to the terms of the Intercreditor Agreement) at any time to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby; provided with respect to sub-clauses (i) through (x) above, nothing in this Agreement shall prevent any Grantor from discontinuing the use or maintenance of any Article 9 Collateral consisting of a Patent, Trademark or Copyright, or require any Grantor to pursue any claim of infringement, misappropriation or dilution, if (x) such Grantor so reasonably determines in its good business judgment and (y) it is not prohibited by the Term Loan Agreement.
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