EXHIBIT 10.3
PATENT AND TRADEMARK SECURITY AGREEMENT
SECOND AMENDED AND RESTATED PATENT AND TRADEMARK SECURITY
AGREEMENT, dated as of September 16, 2003, made by Day International Group,
Inc., a Delaware corporation, Day International, Inc., a Delaware corporation,
Xxxx International, Inc., a Delaware corporation, and Day International Finance,
Inc., a Delaware corporation, (together with any other entity that may become a
party hereto as provided herein, the "Grantors"), in favor of Xxxxxx Commercial
Paper Inc., as administrative agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions (the "Lenders") from time
to time parties to the Second Amended and Restated Senior Secured Credit
Agreement, dated as of September 16, 2003 (as amended, waived, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Day
International Group, Inc., a Delaware corporation, the Lenders, Xxxxxx Brothers
Inc., as sole advisor, sole bookrunner and joint lead arranger, and Banc One
Capital Markets, Inc., as joint lead arranger (together in such capacities, the
"Arrangers"), Bank One, NA, as syndication agent, National City Bank, as
documentation agent, and the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower (as defined
therein) upon the terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that each of the Grantors execute and deliver this Agreement to the
Administrative Agent for the ratable benefit of the Secured Parties (as defined
below); and
WHEREAS, in connection with the Existing Credit Agreement,
certain of the parties hereto entered into the Amended and Restated Patent and
Trademark Security Agreement, dated as of October 19, 1999 (the "Existing Patent
and Trademark Agreement"), and, in connection with the Credit Agreement, the
parties hereto wish to enter into this Agreement to amend and restate the
Existing Patent and Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Arrangers and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each of the Grantors hereby agrees with the
Administrative Agent, for the ratable benefit of the Secured Parties, that the
Existing Patent and Trademark Security Agreement shall be amended and restated
to read in its entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following
meanings:
"Agreement": this Second Amended and Restated Patent and
Trademark Security Agreement, as the same may be amended, supplemented, waived
or otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"Default": a "Default" as defined in the Credit Agreement.
"Event of Default": an "Event of Default" as defined in the
Credit Agreement.
"General Intangibles": as defined in Section 9-102(a)(42) of
the Code, including, without limitation, all Patents and Trademarks now or
hereafter owned by each of the Grantors to the extent such Patents and
Trademarks would be included in General Intangibles under the Code.
"Loan Documents": the collective reference to the "Loan
Documents" as defined in the Credit Agreement.
"Loans": the collective reference to the "Loans" as defined in
the Credit Agreement.
"Obligations": the Obligations (as defined in the Guarantee
and Collateral Agreement) of each of the Grantors.
"Patent Licenses": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, use or
sell any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule II.
"Patents": (i) all letters patent of the United States, any
other country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule II, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation,
any of the foregoing referred to in Schedule II, and (iii) all rights to obtain
any reissues or extensions of the foregoing (Patents and Patent Licenses being,
collectively, the "Patent Collateral").
"Proceeds": as defined in Section 9-102(a)(64) of the Code.
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"Qualified Counterparty": as defined in the Guarantee and
Collateral Agreement.
"Revolving Credit Commitments": the collective reference to
the "Revolving Credit Commitments" as defined in the Credit Agreement.
"Secured Parties": the collective reference to the
Administrative Agent, the Lenders (including, without limitation, the Issuing
Lender and the Swing Line Lender), any Qualified Counterparty, and their
respective successors and assigns.
"Trademark Licenses": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any Trademark,
including, without limitation, any of the foregoing referred to in Schedule I.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, including, without limitation, any of the foregoing
referred to in Schedule I, and (ii) the right to obtain all renewals thereof
(Trademarks and Trademark Licenses being, collectively, the "Trademark
Collateral").
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
2. Grant of Security Interest. Each of the Grantors
hereby grants, subject to existing ownership rights of joint owners and existing
licenses granted by the Grantors in the ordinary course of business with respect
to the Collateral (as hereinafter defined), to the Administrative Agent for the
ratable benefit of the Secured Parties a security interest in all of the
following property now owned or at any time hereafter acquired by each of the
Grantors or in which the Grantors now have or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"), as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations of the Grantors:
(i) all Patents;
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(ii) all Patent Licenses;
(iii) all Trademarks;
(iv) all Trademark Licenses;
(v) all General Intangibles connected with the
use of or symbolized by the Trademarks and Patents; and
(vi) to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing including,
without limitation, any claim by such Grantor against third parties for
past, present or future (a) infringement of any Patent or Patent
licensed under any Patent License, (b) infringement or dilution of any
Trademark or Trademark licensed under any Trademark License or (c)
injury to the goodwill associated with any Trademark or Trademark
licensed under any Trademark License, and all collateral security and
guarantees given by any Person with respect to any of the foregoing;
provided, that the foregoing grant of a security interest with respect to
General Intangibles, Patent Licenses and Trademark Licenses shall not include a
security interest in, and the Collateral shall not include, any Patent License
or Trademark License with or issued by Persons other than a Subsidiary of the
Grantor that would otherwise be included in the Collateral to the extent that
the grant by such Grantor of such security interest is prohibited by the terms
and provisions of the written agreement or document or instrument creating or
evidencing such license or permit or Patent License or Trademark License, or
gives the other party thereto the right to terminate such Patent License or
Trademark License in the event of the grant of a security interest with respect
thereto and, provided further, that the foregoing grant of a security interest
with respect to Patents and Trademarks shall not include a security interest in,
and the Collateral shall not include, any Patent or Trademark owned jointly with
or issued to Persons other than a Subsidiary of the Grantor that would otherwise
be included in the Collateral to the extent that the grant by such Grantor of
such security interest is prohibited by the terms and provisions of the written
agreement or document or instrument creating or evidencing such joint ownership
or gives the other party the right to terminate the rights of the Grantor with
respect to such Patent or Trademark in the event of the grant of a security
interest with respect thereto. All references in this Agreement to any of the
property described in clauses (i) through (vi) of the preceding sentence, or to
any Proceeds thereof, shall be deemed to be references to such property or
Proceeds to the extent such property or Proceeds constitutes Collateral.
3. Representations and Warranties. Each of the Grantors
hereby represents and warrants to the Administrative Agent on behalf of the
Secured Parties that:
(a) Power and Authority. As of the date hereof, the
Grantor has the corporate power and authority, and the legal right, to
make, deliver and perform its obligations under, and to grant the
security interest in the Trademark Collateral and the Patent Collateral
to the extent provided in, and pursuant to, this Agreement and has
taken all necessary corporate action to authorize the execution,
delivery and performance of, and
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grant of the security interest in the Trademark Collateral and the
Patent Collateral to the extent provided in, and pursuant to, this
Agreement.
(b) Title; No Other Liens. As of the date hereof, except
for the Liens granted to the Administrative Agent, for the benefit of
the Secured Parties, pursuant to this Agreement and the other Liens
permitted to exist on the Collateral pursuant to the Loan Documents
(including, without limitation, any Liens permitted to exist on the
Collateral pursuant to Section 7.3 of the Credit Agreement), and except
as set forth on Schedule I or II hereto, the Grantor is (or, in the
case of after-acquired Collateral, will be) the sole, legal and
beneficial owner of the entire right, title and interest in and to the
material Trademarks set forth on Schedule I hereto and the material
Patents set forth in Schedule II hereto free and clear of any and all
Liens. As of the date hereof, no security agreement, financing
statement or other public notice similar in effect with respect to all
or any part of the Collateral is on file or of record in any public
office (including, without limitation, the United States Patent and
Trademark Office), except such as may have been filed in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant
to this Agreement or in respect of such Liens as may be permitted
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to Section 7.3 of
the Credit Agreement).
(c) Perfected Liens. (i) As of the date hereof, this
Agreement is effective to create, as collateral security for the
Obligations, valid and enforceable Liens on the Collateral in favor of
the Administrative Agent, for the benefit of the Secured Parties,
except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(ii) As of the date hereof, except with respect
to Liens upon Patents and Trademarks and Patent Licenses and
Trademark Licenses, which Liens, to the extent not otherwise
perfected by the filing of financing statements under the Code
in accordance herewith, would in the case of Patents and
Trademarks listed in Schedules I and II hereto, or in the case
of Patent Licenses and Trademark Licenses listed in Schedules
I and II hereto, may be perfected upon the filing, acceptance
and recordation thereof in the United States Patent and
Trademark Office, upon filing of the financing statements
delivered to the Administrative Agent by the Grantor on the
Closing Date in the jurisdictions listed on Schedule 3 to the
Guarantee and Collateral Agreement (which financing statements
are in proper form for filing in such jurisdictions) (and the
recording of this Agreement in the United States Patent and
Trademark Office, and the making of filings after the Closing
Date in any other jurisdiction in the United States as may be
necessary under any Requirement of Law), the Liens created
pursuant to this Agreement will constitute valid and perfected
Liens on the Collateral in the United States in favor of the
Administrative Agent for the benefit of the Secured Parties,
which Liens will be prior to all other Liens of all other
Persons with respect to the Collateral, except for Liens
permitted pursuant to the Loan
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Documents (including, without limitation, those permitted to
exist pursuant to Section 7.3 of the Credit Agreement) and
except as set forth on Schedule I or II hereto, and which
Liens are enforceable as such against all creditors of and
purchasers (except to the extent that the recording of an
assignment or other transfer of title to the Administrative
Agent in the United States Patent and Trademark Office may be
necessary for such enforceability) from the Grantor, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of
good faith and fair dealing.
(d) Consents. No consent of any party (other than the
Grantor) to any material Patent License or material Trademark License
constituting Collateral is required, or purports to be required, to be
obtained by or on behalf of the Grantor in connection with the
execution, delivery and performance of this Agreement that has not been
obtained. Each Patent License and Trademark License constituting
Collateral is in full force and effect and constitutes a valid and
legally enforceable obligation of the Grantor and (to the knowledge of
the Grantor) each other party thereto except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing and except to the extent the failure of any such
Patent License or Trademark License constituting Collateral to be in
full force and effect or valid or legally enforceable would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). No consent or authorization of, filing with or other
act by or in respect of any Governmental Authority is required in
connection with the execution, delivery, performance, validity or
enforceability of any of the Patent Licenses or Trademark Licenses
constituting Collateral by any party thereto other than those which
have been duly obtained, made or performed and are in full force and
effect and those the failure of which to make or obtain would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). Neither such Grantor nor (to the knowledge of such
Grantor) any other party to any Patent License or Trademark License
constituting Collateral is in default in the performance or observance
of any of the terms thereof, except for such defaults as would not
reasonably be expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as such term is defined in the
Credit Agreement). Except for rights reserved in favor of the United
States government, as required under law, the right, title and interest
of the Grantor in, to and under each Patent License and Trademark
License constituting Collateral are not subject to any defense, offset,
counterclaim or claim which would be reasonably expected, either
individually or in the aggregate, to have a material adverse effect on
the value of the Collateral (as such term is defined in the Credit
Agreement).
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(e) Schedules I and II are Complete; All Filings Have
Been Made. Set forth in Schedules I and II is a complete and accurate
list of all material Trademarks and material Patents owned by the
Grantor as of the date hereof. As of the date hereof, the Grantor will
have made all necessary filings to protect and maintain its interest in
the Trademarks and Patents set forth in Schedules I and II, including,
without limitation, all necessary filings and payments of all
maintenance fees, in the United States Patent and Trademark Office to
the extent such Trademarks and Patents are material to the Grantor's
business. Set forth in Schedules I and II is a complete and accurate
list of all of the material Trademark Licenses and material Patent
Licenses owned by the Grantor as of the date hereof.
(f) The Trademarks and Trademark Licenses are Subsisting
and Not Adjudged Invalid. As of the date hereof, each trademark
registration and trademark application of the Grantor set forth in
Schedule I is subsisting as of the date hereof, and has not been
adjudged invalid, unregisterable or unenforceable, in whole or in part,
and, to the best of such Grantor's knowledge, is valid, registrable and
enforceable. As of the date hereof, each of the Trademark Licenses set
forth in Schedule I is validly subsisting and has not been adjudged
invalid or unenforceable, in whole or in part, and, to the best of such
Grantor's knowledge, is valid and enforceable. As of the date hereof,
each Grantor has notified the Administrative Agent in writing of all
uses of any item of Trademark Collateral material to such Grantor's
business of which such Grantor is aware which could reasonably be
expected to lead to such item becoming invalid or unenforceable,
including unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with such
Collateral.
(g) The Patents and Patent Licenses are Subsisting and
Not Adjudged Invalid. As of the date hereof, each Patent and patent
application of the Grantor set forth in Schedule II is subsisting and
has not been adjudged invalid, unpatentable or unenforceable, in whole
or in part, and, to the best of such Grantor's knowledge, is valid,
patentable and enforceable. As of the date hereof, each of the Patent
Licenses set forth in Schedule II is validly subsisting and has not
been adjudged invalid or unenforceable, in whole or in part, and, to
the best of such Grantor's knowledge, is valid and enforceable. As of
the date hereof, the Grantor has notified the Administrative Agent in
writing of all uses of any item of Patent Collateral material to such
Grantor's business of which such Grantor is aware which could
reasonably be expected to lead to such item becoming invalid or
unenforceable.
(h) No Previous Assignments or Releases. Except as set
forth on Schedule I or II hereto, as of the date hereof, the Grantor
has not made an agreement constituting a present or future assignment,
sale, transfer or encumbrance of any of the Collateral (except for any
such assignment, sale, transfer or encumbrance permitted under the Loan
Documents). Except as permitted by the Loan Documents or as required by
law, the Grantor has not granted any license, shop right, release,
covenant not to xxx, or non-assertion assurance to any Person with
respect to any material part of the Collateral which would have a
Material Adverse Effect.
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(i) Proper Statutory Notice. The Grantor has marked its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law trademark symbol (TM), or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(j) No Knowledge of Claims Likely to Arise. Except for
the Trademark Licenses and Patent Licenses listed in Schedules I and II
hereto, the Grantor has no knowledge of the existence of any right or
any claim (other than as permitted by this Agreement or the Loan
Documents) that is likely to be made under or against any item of
Collateral contained on Schedules I and II which would have a Material
Adverse Effect.
(k) No Knowledge of Existing or Threatened Claims. No
claim has been made and is continuing or, to the Grantor's knowledge,
threatened that the use by such Grantor of any item of Collateral is
invalid or unenforceable or that the use by such Grantor of any
Collateral does or may violate the rights of any Person, which would
have a Material Adverse Effect. To the Grantor's knowledge, there is
currently no infringement or unauthorized use of any item of Collateral
contained on Schedules I and II hereto which would have a Material
Adverse Effect.
Each Grantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Grantor on and as of each
date on which an extension of credit is made by the Lenders to the Borrower
under the Credit Agreement, in each case as though made on and as of each such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
4. Covenants. Each of the Grantors covenants and agrees
with the Administrative Agent and the other Secured Parties that, from and after
the date of this Agreement until the payment in full of the Loans, the
Reimbursement Obligations and to the extent then due and owing, all other
Obligations, the termination of the Revolving Credit Commitments and the
expiration, termination or return to the Issuing Lender of any Letters of
Credit:
(a) Further Documentation; Pledge of Instruments and
Chattel Paper. At any time and from time to time, upon the written
request of the Administrative Agent or the Grantor, as the case may be,
and at the sole expense of such Grantor, such Grantor or the
Administrative Agent, as the case may be, will promptly and duly
execute and deliver such further instruments and documents and take
such further action as the Administrative Agent or the Grantor, as the
case may be, may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code
in effect in any jurisdiction with respect to the Liens created hereby.
The Grantor also hereby authorizes the Administrative Agent to file any
such financing or continuation statement without the signature of the
Grantor to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. The
Administrative Agent agrees to notify the
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Grantor and the Grantor agrees to notify the Administrative Agent of
any financing or continuation statement filed by it pursuant to this
Section 4(a), provided that any failure to give any notice shall not
affect the validity or effectiveness of any such filing.
(b) Indemnification and Expenses. The Grantor agrees to
pay, and to save the Administrative Agent, the other Secured Parties
and their respective agents, officers, directors and successors
harmless from, any and all liabilities and reasonable costs and
expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay by the
Grantor in complying with any material Requirement of Law applicable to
any of the Collateral, or (ii) in connection with any of the
transactions contemplated by this Agreement, provided that such
indemnity shall not, as to the Administrative Agent, any of the other
Secured Parties or any of their respective agents, officers, directors
and successors, be available to the extent that such liabilities, costs
and expenses resulted from the gross negligence or willful misconduct
of any of the same. In any suit, proceeding or action brought by the
Administrative Agent or any other Secured Party under any of the
Collateral for any sum owing thereunder, or to enforce any of the
Collateral, the Grantor will save, indemnify and keep the
Administrative Agent, such Secured Party and their respective agents,
officers, directors and successors harmless from and against all
expense, loss or damage suffered by reason of any defense or
counterclaim raised in any such suit, proceeding or action, except to
the extent such expense, loss or damage resulted from the gross
negligence or willful misconduct of any of the same.
(c) Maintenance of Records. The Grantor will keep and
maintain at its own cost and expense reasonably satisfactory and
complete records of the Collateral, and shall xxxx such records to
evidence this Agreement and the Liens and the security interests
created hereby. For the Administrative Agent's and the other Secured
Parties' further security, the Administrative Agent, for the benefit of
the Secured Parties, shall have a security interest in all of the
Grantor's books and records pertaining to the Collateral.
(d) Right of Inspection. Upon reasonable written advance
notice to the Grantor and at reasonable intervals, or at any time and
from time to time after the occurrence and during the continuation of
an Event of Default, the Administrative Agent shall have reasonable
access during normal business hours to all the books, correspondence
and records of the Grantor, and the Administrative Agent and its
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees
to render to the Administrative Agent, at the Grantor's reasonable cost
and expense, such clerical and other assistance as may be reasonably
requested with regard thereto.
(e) Compliance with Laws, etc. The Grantor will comply in
all material respects with all material Requirements of Law applicable
to the Collateral or any part thereof, except to the extent that the
failure to so comply would not be reasonably expected to materially
adversely affect in the aggregate the Administrative Agent's or the
other Secured Parties' rights hereunder, the priority of their Liens on
the Collateral or the value of the Collateral.
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(f) Further Identification of Collateral. The Grantor
will furnish to the Administrative Agent from time to time such
statements and schedules further identifying and describing the
Collateral, and such other reports in connection with the Collateral,
as the Administrative Agent may reasonably request, all in reasonable
detail.
(g) Security Interest in Any Newly Acquired Collateral.
The Grantor agrees that, should it obtain an ownership interest in any
material Trademark, Patent, Trademark License or Patent License, which
is not now a part of the Collateral, (i) the provisions of Section 2
shall automatically apply thereto, (ii) any such Trademark, Patent,
Trademark License and Patent License shall automatically become part of
the Collateral, and (iii) with respect to any ownership interest in any
such Trademark, Patent, Trademark License or Patent License that such
Grantor should obtain, it shall give notice thereof to the
Administrative Agent in writing, in reasonable detail, at its address
set forth in the Credit Agreement within 45 days after the end of the
calendar quarter in which it obtains such ownership interest. The
Grantor authorizes the Administrative Agent to modify this Agreement by
amending Schedules I and II (and will cooperate reasonably with the
Administrative Agent in effecting any such amendment) to include on
Schedule I any Trademark and Trademark License and on Schedule II any
Patent or Patent License of which it receives notice under this
Section, or to prepare and file with the United States Patent and
Trademark Office a supplement to this Agreement to include any Patent
or Trademark of which it receives notice to under this Section.
(h) Maintenance of the Trademark Collateral. Except as
permitted in the Loan Documents and to the extent permitted by law, the
Grantor agrees to take all reasonably necessary steps, including,
without limitation, in the United States Patent and Trademark Office or
in any court, to (i) maintain each trademark registration and each
Trademark License identified on Schedule I hereto, and (ii) pursue each
trademark application now or hereafter identified in Schedule I hereto,
including, without limitation, the filing of responses to office
actions issued by the United States Patent and Trademark Office, the
filing of applications for renewal, the filing of affidavits under
Sections 8 and 15 of the United States Trademark Act, and the
participation in opposition, cancellation, infringement and
misappropriation proceedings, except, in each case in which such
Grantor has reasonably determined that any of the foregoing is not of
material economic value to it. The Grantor agrees to take corresponding
steps with respect to each new or acquired trademark or service xxxx
registration, or application for trademark or service xxxx
registration, or any rights obtained under any Trademark License, in
each case, which it is now or later becomes entitled, except in each
case in which the Grantor has reasonably determined that any of the
foregoing is not of material economic value to it. Any expenses
incurred in connection with such activities shall be borne by such
Grantor.
(i) Maintenance of the Patent Collateral. Except as
permitted in the Loan Documents and to the extent permitted by law, the
Grantor agrees to take all reasonably necessary steps, including,
without limitation, in the United States Patent and Trademark Office or
in any court, to (i) maintain each Patent and each Patent License
identified on Schedule II hereto, and (ii) pursue each patent
application, now or hereafter identified in Schedule II hereto,
including, without limitation, the filing of divisional, continuation,
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continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of
maintenance fees, and the participation in interference, reexamination,
opposition, infringement and misappropriation proceedings, except, in
each case in which the Grantor has reasonably determined that any of
the foregoing is not of material economic value to it. The Grantor
agrees to take corresponding steps with respect to each new or acquired
Patent, patent application, or any rights obtained under any Patent
License, in each case, which it is now or later becomes entitled,
except in each case in which the Grantor has reasonably determined that
any of the foregoing is not of material economic value to it. Any
expenses incurred in connection with such activities shall be borne by
the Grantor.
(j) Preservation and Protection of the Trademark
Collateral and Patent Collateral. Except as provided in Section 4(k)
hereof, the Grantor shall take all steps permitted by law which it or
the Administrative Agent deems reasonably appropriate under the
circumstances to preserve and protect its material Trademark Collateral
and Patent Collateral.
(k) Grantor Shall Not Abandon any Collateral. The Grantor
shall not abandon any trademark registration, Patent or any pending
trademark or patent application, in each case listed on Schedule I or
Schedule II, without the written consent of the Administrative Agent,
unless such Grantor shall have previously determined that such use or
the pursuit or maintenance of such trademark registration, Patent or
pending trademark or patent application is not of material economic
value to it, in which case, such Grantor will, at least annually, give
notice of any such abandonment to the Administrative Agent in writing,
in reasonable detail, at its address set forth in the Credit Agreement.
(l) Infringement of Any Collateral. In the event that any
Grantor becomes aware that any item of the Collateral which such
Grantor has reasonably determined to be material to its business is
infringed or misappropriated by a third party, which infringement or
misappropriation would reasonably be expected to have a Material
Adverse Effect, the Grantor shall notify the Administrative Agent
promptly and in writing, in reasonable detail, at its address set forth
in the Credit Agreement, and shall take such actions permitted by law
as the Grantor or the Administrative Agent deems reasonably appropriate
under the circumstances to protect such Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense
incurred in connection with such activities shall be borne by such
Grantor. The Grantor will advise the Administrative Agent promptly and
in writing, in reasonable detail, at its address set forth in the
Credit Agreement, of any adverse determination or the institution of
any proceeding (including, without limitation, the institution of any
proceeding in the United States Patent and Trademark Office or any
court) regarding any item of the Collateral which has a Material
Adverse Effect.
(m) Use of Statutory Notice. The Grantor shall xxxx its
products with the trademark registration symbol (R), the numbers of all
appropriate patents, the common law
11
trademark symbol (TM), or the designation "patent pending," as the case
may be, to the extent that it is reasonably and commercially
practicable.
(n) Limitation on Liens on Collateral. The Grantor will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is reasonably necessary to
remove, any material Lien or material adverse claim on or to any of the
Collateral, other than Liens created hereby and other than as permitted
pursuant to the Loan Documents (including, without limitation, any
Liens permitted to exist on the Collateral pursuant to Section 7.3 of
the Credit Agreement), and will defend the right, title and interest of
the Administrative Agent and the other Secured Parties in and to any of
the Collateral against the claims and demands of all Persons
whomsoever, except where failure to defend would not have a Material
Adverse Effect and except where such claim or demand arises from a Lien
permitted pursuant to the Loan Documents including, without limitation,
any Liens permitted to exist on the Collateral pursuant to Section 7.3
of the Credit Agreement).
(o) Limitations on Dispositions of Collateral. Without
the prior written consent of the Administrative Agent, the Grantor will
not sell, assign, transfer, exchange or otherwise dispose of, or grant
any option with respect to, the Collateral, or attempt, offer or
contract to do so, except with respect to licenses in the ordinary
course of business or as permitted by this Agreement or the Loan
Documents.
(p) Notices. The Grantor will advise the Administrative
Agent promptly and in writing, in reasonable detail, at its address set
forth in the Credit Agreement, (i) of any Lien (other than Liens
created hereby or permitted under the Loan Documents, including,
without limitation, any Liens permitted to exist on the Collateral
pursuant to Section 7.3 of the Credit Agreement) on any Patents or
Trademarks and (ii) of the occurrence of any other event which would
reasonably be expected in the aggregate to have a material adverse
effect on the aggregate value of the Collateral taken as a whole or the
Liens created hereunder.
5. Administrative Agent's Appointment as
Attorney-in-Fact.
(a) Powers. Each Grantor hereby irrevocably constitutes
and appoints the Administrative Agent and any officer or agent of the
Administrative Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Grantor and in the name of the Grantor or in its own name, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be reasonably necessary or desirable to accomplish the purposes of this
Agreement to the extent permitted by law, and, without limiting the generality
of the foregoing, to the extent permitted by law, the Grantor hereby gives the
Administrative Agent the power and right, on behalf of the Grantor, without
notice to or assent by the Grantor, to do, at any time when an Event of Default
has occurred and is continuing, the following:
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(i) to execute and deliver any and all
agreements, instruments, documents, and papers as the
Administrative Agent may reasonably request to evidence the
Administrative Agent's and the other Secured Parties' security
interest in any of the Collateral and the goodwill of the
Grantor relating thereto or represented thereby;
(ii) in the name of the Grantor or its own name,
or otherwise, to take possession of and indorse and collect
any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any General Intangible (to
the extent that the foregoing constitute Collateral) or with
respect to any other Collateral and to file any claim or to
take any other action or institute any proceeding in any court
of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all
such moneys due under such General Intangible or with respect
to any other Collateral whenever payable;
(iii) to pay or discharge Liens placed on the
Collateral, other than Liens permitted under this Agreement or
the other Loan Documents, including, without limitation, any
Liens permitted to exist on the Collateral pursuant to Section
7.3 of the Credit Agreement; and
(iv) (A) to direct any party liable for any
payment under any of the Collateral to make payment of any and
all moneys due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall
direct; (B) to ask for, or demand, collect, receive payment of
and receipt for, any and all moneys, claims and other amounts
due or to become due at any time in respect of or arising out
of any Collateral; (C) to sign and indorse any invoices,
freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with
any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding
brought against the Grantor with respect to any of the
Collateral; (F) subject to any preexisting rights of joint
owners, to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the
Administrative Agent may deem appropriate; (G) subject to any
pre-existing reserved rights or licenses, to assign any Patent
or Trademark constituting Collateral (along with the goodwill
of the business to which any such Patent or Trademark
pertains), for such term or terms, on such conditions, and in
such manner, as the Administrative Agent shall in its sole
discretion determine; and (H) generally, to sell, transfer,
pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner of all
such Grantor's rights therein for all purposes, and to do, at
the Administrative Agent's option and the Grantor's expense,
at any time, or from time to time, all
13
acts and things which the Administrative Agent deems
reasonably necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's and the other
Secured Parties' Liens thereon and to effect the intent of
this Agreement, all as fully and effectively as the Grantor
might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Revolving Credit Commitments and the expiration, termination
or return to the Issuing Lender of any Letters of Credit.
(b) Other Powers. Each Grantor also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) No Duty on the Part of Administrative Agent or
Secured Parties. The powers conferred on the Administrative Agent and the other
Secured Parties hereunder are solely to protect the Administrative Agent's and
the other Secured Parties' interests in the Collateral and shall not impose any
duty upon the Administrative Agent or any other Secured Party to exercise any
such powers. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees, affiliates, agents or successors shall be responsible to the Grantors
for any act or failure to act hereunder, except for gross negligence or willful
misconduct of any of the same.
6. Performance by Administrative Agent of Grantor's
Obligations. If any Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall perform or comply, or otherwise cause performance
or compliance, with such agreements, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum equal to 2.0% above the rate
applicable to Base Rate Loans that are Revolving Credit Loans, shall be payable
by such Grantor to the Administrative Agent on demand, and such Grantor's
obligations to make such payments shall constitute Obligations secured hereby.
7. Proceeds. It is agreed that if an Event of Default
shall occur and be continuing, (a) all Proceeds of any Collateral received by
each Grantor consisting of cash, checks and other near-cash items shall be held
by such Grantor in trust for the Administrative Agent and the other Secured
Parties, segregated from other funds of the Grantor, and shall, forthwith upon
receipt by the Grantor, be turned over to the Administrative Agent in the exact
form received by the Grantor (duly indorsed by the Grantor to the Administrative
Agent, if required), and (b) any and all such Proceeds received by the
Administrative Agent (whether from the Grantor or otherwise) shall be held by
the Administrative Agent for the benefit of the Secured Parties as collateral
security for the Obligations (whether matured or unmatured), and/or then or at
any time thereafter may, in the sole discretion of the Administrative Agent, be
applied by the
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Administrative Agent against the Obligations then due and owing in the following
order of priority:
FIRST, to pay incurred and unpaid fees and expenses of the
Administrative Agent under the Loan Documents;
SECOND, to the Administrative Agent, for application by it
towards payment of amounts then due and owing and remaining unpaid in
respect of the Obligations, pro rata among the Secured Parties
according to the amounts of the Obligations then due and owing and
remaining unpaid to the Secured Parties;
THIRD, to the Administrative Agent, for application by it
towards prepayment of the Obligations, pro rata among the Secured
Parties according to the amounts of the Obligations then held by the
Secured Parties; and
FOURTH, any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid
over to the Borrower or to whomsoever may be lawfully entitled to
receive the same.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Secured Parties, may
exercise all rights and remedies of a secured party under the Code, and, to the
extent permitted by law, all other rights and remedies granted to the
Administrative Agent or any Secured Party in this Agreement and the other Loan
Documents and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantors or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker's board or office of the
Administrative Agent or any other Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Administrative Agent or any other Secured Party shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Grantor, which right or equity is hereby waived and released. Each of the
Grantors further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. In the event of any sale, assignment, or other disposition of any
of the Collateral, the goodwill of the business connected with and symbolized by
any Trademark Collateral subject to such disposition shall be included, and the
Grantor shall supply to the Administrative Agent or its designee such Grantor's
know-how and expertise
15
relating to the Collateral subject to such disposition, and the Grantor's
notebooks, studies, reports, records, documents and things embodying the same or
relating to the inventions, processes or ideas covered by, and to the
manufacture of any products under or in connection with, the Collateral subject
to such disposition, and the Grantor's customer's lists, studies and surveys and
other records and documents relating to the distribution, marketing, advertising
and sale of products relating to the Collateral subject to such disposition. The
Administrative Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Administrative Agent and the other Secured
Parties hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment and performance in whole or in part of the
Obligations then due and owing, in the order of priority specified in Section 7
hereof, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the Code, need the
Administrative Agent account for the surplus, if any, to the Grantor. To the
extent permitted by applicable law, (a) each Grantor waives all claims, damages
and demands it may acquire against the Administrative Agent or any other Secured
Party arising out of the repossession, retention or sale of the Collateral,
other than any such claims, damages and demands that may arise from the gross
negligence or willful misconduct of any of them, and (b) any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay in full the Loans, the Reimbursement Obligations, and,
to the extent then due and owing, all other Obligations, including, without
limitation, the reasonable fees and disbursements of any attorneys employed by
the Administrative Agent or any other Secured Party to collect such deficiency,
as provided in the Credit Agreement.
9. Limitation on Duties Regarding Preservation of
Collateral. The Administrative Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
Section 9-207 of the Code or otherwise, shall be to deal with it in the same
manner as the Administrative Agent deals with similar property for its own
account. Neither the Administrative Agent, any other Secured Party, nor any of
their respective directors, officers, employees, affiliates or agents shall be
liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person.
10. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are powers coupled
with an interest and are irrevocable until the payment in full of the Loans, the
Reimbursement Obligations and, to the extent then due and owing, all other
Obligations, the termination of the Revolving Credit Commitments and the
expiration, termination or return to the Issuing Lender of any Letters of
Credit.
11. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
16
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
12. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the
Administrative Agent nor any other Secured Party nor any Grantor shall by any
act (except by a written instrument pursuant to Section 14 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent, any other
Secured Party or the Grantor, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the
Administrative Agent, any other Secured Party or any Grantor of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent, such other Secured Party or such
Grantor would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
14. Waivers and Amendments; Successors and Assigns. None
of the terms or provisions of this Agreement may be amended, supplemented,
waived or otherwise modified except in accordance with Section 10.1 of the
Credit Agreement. No consent of any Qualified Counterparty shall be required for
any waiver, amendment, supplement or other modification to this Agreement. This
Agreement shall be binding upon and shall inure to the benefit of each of the
Grantors and their respective successors and assigns, and the Administrative
Agent and the other Secured Parties and their respective successors, indorsees,
transferees and assigns, except that (other than in accordance with Section 7.5
of the Credit Agreement) none of the Grantors shall assign, transfer or delegate
any of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent.
15. Notices. All notices, requests and demands to or upon
the respective parties hereto shall be made in accordance with Section 10.2 of
the Credit Agreement. The Administrative Agent, the Secured Parties and the
Grantors may change their respective addresses and transmission numbers for
notices by notice in the manner provided in this Section 15.
16. Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with
17
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and the Grantors shall not
be under any obligation to make any inquiry respecting such authority.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
18. Release of Collateral and Termination. (a) At such
time as the Loans, the Reimbursement Obligations and the other Obligations
(other than Borrower Hedge Agreement Obligations (as defined in the Guarantee
and Collateral Agreement) and Guarantor Hedge Agreement Obligations (as defined
in the Guarantee and Collateral Agreement)) shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors;
provided, that if any payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any other Secured Party upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Grantor or any other Loan Party, or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or a
trustee or similar officer for, the Grantor or any other Loan Party or any
substantial part of its property, or otherwise, this Agreement, all rights
hereunder and the Liens created hereby shall continue to be effective, or be
reinstated, as though such payments had not been made. At the request and sole
expense of any Grantor following any such termination, the Administrative Agent
shall reassign to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination and reassignment.
(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
(c) No consent of any Qualified Counterparty shall be
required for any release of Collateral or Grantors pursuant to this Section.
19. Incorporation of Provisions of Guarantee and
Collateral Agreement. Each Grantor hereby acknowledges and affirms that the
rights and remedies of the Administrative Agent with respect to the security
interest in the Collateral made and granted hereby are more fully set forth in
the Guarantee and Collateral Agreement, the terms, conditions and other
provisions of which, insofar as they relate to the Collateral, such security
interest and such rights and remedies, are incorporated by reference herein as
if fully set forth herein. Nothing in this
18
Agreement shall defer or impair the attachment or perfection of any security
interest in any collateral described in the Guarantee and Collateral Agreement
which would attach or be perfected pursuant to the terms of the Guarantee and
Collateral Agreement without action by the Grantor or any other Person.
20. Interpretation. In the event of a conflict between
any term of this Agreement and the terms of the Credit Agreement, the terms of
the Credit Agreement shall control.
21. Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Grantors and the Administrative
Agent with respect to the subject matter hereof and there are no promises or
representations by the Grantors, the Administrative Agent or any other Secured
Party relative to the subject matter hereof not reflected or referred to herein
or therein.
22. Submission To Jurisdiction; Waivers. Each Grantor
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgement in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient forum and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Grantor at the address referred to in Section 15 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section 22 any punitive damages.
23. WAIVER OF JURY TRIAL. EACH OF THE GRANTORS AND THE
ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR
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PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. Counterparts. This Agreement may be executed and
acknowledged by one or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
25. Additional Grantors. Each Subsidiary of the Borrower
that is required to become a party to this Agreement pursuant to Section 6.9 of
the Credit Agreement shall become a Grantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex I hereto.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
DAY INTERNATIONAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
DAY INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
XXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
DAY INTERNATIONAL FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
XXXXXX COMMERCIAL PAPER INC., as Administrative Agent
By: /s/ G. Xxxxxx Xxxxx
---------------------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
