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EXHIBIT 4.10
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of June 20,
1995, made by VISKASE CORPORATION, a Pennsylvania corporation (the "GRANTOR"),
having its principal place of business at 0000 Xxxx 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 in favor of BT COMMERCIAL CORPORATION, a Delaware corporation
("BTCC"), in its capacity as collateral agent (in such capacity, the
"COLLATERAL AGENT") pursuant to that certain Intercreditor and Collateral
Agency Agreement of even date herewith (as amended, restated, supplemented or
otherwise modified from time to time, the "COLLATERAL AGENCY AGREEMENT") among
the Collateral Agent and certain "SECURED PARTIES" (as defined in the
Collateral Agency Agreement) and acknowledged and consented to by the "PARENT"
(as hereinafter defined).
W I T N E S S E T H :
WHEREAS, pursuant to the "FINANCING AGREEMENTS" (as defined in the
Collateral Agency Agreement), Envirodyne Industries, Inc., a Delaware
corporation (the "PARENT"), is about to incur the Secured Indebtedness (as
defined in the Collateral Agency Agreement);
WHEREAS, Grantor acknowledges that in view of the business relations
between Grantor and Parent, the extensions of credit and other financial
accommodations contemplated by the Financing Agreements will inure to the
benefit of Grantor and it is in the direct interest and to the direct advantage
of Grantor that it execute and deliver this Agreement;
WHEREAS, pursuant to that certain Guaranty Agreement of even date
herewith (the "SUBSIDIARY GUARANTY"), made by the Grantor in favor of the
Collateral Agent on behalf and for the benefit of the Guarantied Parties, the
Grantor has guarantied the full and prompt payment and performance of the
"GUARANTIED OBLIGATIONS" (as defined in the Subsidiary Guaranty), including the
indebtedness and other obligations of Parent under the respective Financing
Agreements;
WHEREAS, pursuant to that certain Subsidiary Security Agreement of even
date herewith (the "SUBSIDIARY SECURITY AGREEMENT"), the Grantor has granted to
the Collateral Agent on behalf and for the benefit of the Guarantied Parties a
lien upon and security interest in substantially all of its property and
assets, including, without limitation, the Intellectual Property Collateral (as
hereinafter defined), to secure the prompt and complete payment, performance
and observance of the Guarantied Obligations; and
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WHEREAS, it is a condition precedent to the making of the extensions of
credit and other financial accommodations contemplated by the respective
Financing Agreements that the Grantor shall have entered into this Agreement;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Guarantied Parties and the other holders of Secured Indebtedness from time
to time to make the extensions of credit and other financial accommodations
contemplated by the respective Financing Agreements, the Grantor hereby agrees
with the Collateral Agent on behalf and for the benefit of the Guarantied
Parties as follows:
1. DEFINED TERMS. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Subsidiary
Guaranty. The following terms have the following meanings (such meanings being
equally applicable to both the singular and the plural forms of the terms
defined):
"AGREEMENT" means this Intellectual Property Security
Agreement, as the same may from time to time be amended, restated,
modified or otherwise supplemented, and shall refer to this
Intellectual Property Security Agreement as in effect on the date such
reference becomes operative.
"COPYRIGHTS" means copyrights, registrations and applications
therefor, and any and all (i) renewals and extensions thereof, (ii)
income, royalties, damages and payments now and hereafter due or
payable or both with respect thereto, including, without limitation,
damages and payments for past or future infringements or
misappropriations thereof, (iii) rights to xxx for past, present and
future infringements or misappropriations thereof, and (iv) all other
rights corresponding thereto throughout the world.
"INTELLECTUAL PROPERTY COLLATERAL" has the meaning assigned to
such term in Section 2 of this Agreement.
"LICENSES" means license agreements in which the Grantor grants
or receives a grant of any interest in Copyrights, Trademarks, Patents
and Trade Secrets and other intellectual property and any and all (i)
renewals, extensions, supplements, amendments and continuations
thereof, (ii) income, royalties, damages and payments now and hereafter
due or payable to the Grantor with respect thereto, including, without
limitation, damages and payments for past or future violations or
infringements or misappropriations thereof, and (iii) rights to xxx for
past, present and future violations or infringements thereof.
"PATENTS" means patents and patent applications along with any
and all (i) inventions and improvements described and claimed therein,
(ii) reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, (iii) income, royalties, damages and
payments now and here-
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after due and/or payable to the Grantor with respect thereto,
including, without limitation, damages and payments for past or future
infringements or misappropriations thereof, (iv) rights to xxx for
past, present and future infringements or misappropriations thereof,
and (v) all other rights corresponding thereto throughout the world.
"TRADEMARKS" means trademarks (including service marks and
trade names, whether registered or at common law), registrations and
applications therefor, and the entire product lines and goodwill of
Grantor's business connected therewith and symbolized thereby, together
with any and all (i) renewals thereof, (ii) income, royalties, damages
and payments now and hereafter due or payable or both with respect
thereto, including, without limitation, damages and payments for past
or future infringements or misappropriations thereof, (iii) rights to
xxx for past, present and future infringements or misappropriations
thereof, and (iv) all other rights corresponding thereto throughout the
world.
"TRADE SECRETS" means trade secrets, along with any and all (i)
income, royalties, damages and payments now and hereafter due and/or
payable to the Grantor with respect thereto, including, without
limitation, damages and payments for past or future infringements or
misappropriations thereof, (ii) rights to xxx for past, present and
future infringements or misappropriations thereof, and (iii) all other
rights corresponding thereto throughout the world.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the Exhibits and Schedules
hereto, and not to any particular section, subsection or clause contained in
this Agreement.
2. GRANT OF SECURITY INTEREST IN INTELLECTUAL PROPERTY COLLATERAL. In
order to secure the prompt and complete payment, performance and observance of
all of the Guarantied Obligations, the Grantor hereby grants and conveys to the
Collateral Agent on behalf and for the benefit of the Guarantied Parties as
collateral security, a continuing lien upon and security interest in all of the
Grantor's right, title and interest in and to all intellectual property rights
now owned or existing and hereafter acquired or arising in the following
assets, subject to the provisos set forth below in this Section 2 (all of which
being hereinafter referred to as the "INTELLECTUAL PROPERTY COLLATERAL"):
(a) all Trademarks of the Grantor, including, without
limitation, the Trademarks listed on SCHEDULE A hereto;
(b) all Copyrights of the Grantor, including, without
limitation, the Copyrights listed on SCHEDULE B hereto;
(c) all Licenses of the Grantor, including, without
limitation, the Licenses listed on SCHEDULE C hereto;
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(d) all Patents of the Grantor, including, without
limitation, the Patents listed on SCHEDULE D hereto;
(e) all Trade Secrets of the Grantor; and
(f) the entire goodwill of the Grantor's business connected
with the use of and symbolized by the Trademarks;
provided, however, that, (i) notwithstanding anything to the contrary contained
in this Section 2, the Intellectual Property Collateral shall not include any
License if (and solely to the extent and for so long as) such License expressly
prohibits Grantor from granting any "LIEN" (as defined in the Subsidiary
Guaranty) thereon, and (ii) nothing hereunder constitutes or shall be deemed to
constitute the grant of a security interest in favor of the Collateral Agent on
behalf and for the benefit of the Guarantied Parties with respect to any
Intellectual Property Collateral to the extent prohibited by applicable law.
3. REPRESENTATIONS AND WARRANTIES. The Grantor represents and warrants
that:
(a) The Trademarks, Copyrights, Licenses, Patents and Trade
Secrets are subsisting and have not been adjudged invalid or
unenforceable, in whole or in part, except for instances of such
invalidity or unenforceability which singly or in the aggregate could
not reasonably be expected to have a material adverse effect on the
Intellectual Property Collateral or the Grantor's ability to use the
Intellectual Property Collateral;
(b) The Grantor has the full right, power and authority to
enter into this Agreement and to grant all of its right, title and
interest herein granted;
(c) The execution, delivery and performance by the Grantor of
this Agreement do not and will not contravene any contractual
restriction binding on or affecting the Grantor or any of its
properties;
(d) This Agreement has been duly executed and delivered by
the Grantor and is a legal, valid and binding obligation of the Grantor
enforceable against the Grantor in accordance with its terms, except to
the extent that enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the enforcement of creditor's rights and
remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
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(e) The Grantor is the sole and exclusive owner of the
Intellectual Property Collateral, all of which is free and clear of any
Liens, other than Permitted Liens and Liens securing indebtedness to be
paid from the proceeds of the First Priority Notes on or immediately
following the date hereof, and no other person or entity has any claim
with respect to the Intellectual Property Collateral whatsoever;
(f) SCHEDULES A, B, C and D attached hereto list,
respectively, all Trademarks, Copyrights, Licenses and Patents related
to the Intellectual Property Collateral;
(g) The Grantor owns or licenses or otherwise has the right
to use all material licenses, permits, patents, patent applications,
trademarks, trademark applications, service marks, trade names,
copyrights, copyright applications, franchises, authorizations and
other intellectual property rights that are used in the operation of
its business;
(h) To the best of the Grantor's knowledge, the Intellectual
Property Collateral does not infringe any rights owned or possessed by
any third party;
(i) Except as set forth on SCHEDULE E hereto, there are no
claims, judgments or settlements to be paid by the Grantor or pending
claims or litigation relating to the Intellectual Property Collateral
which singly or in the aggregate could reasonably be expected to result
in liability to Grantor;
(j) No effective security agreement, financing statement,
equivalent security or lien instrument or continuation statement
covering all or any part of the Intellectual Property Collateral is on
file or of record in any public office, except such as may have been
filed by the Grantor in favor of the Collateral Agent for the benefit
of the Guarantied Parties pursuant to this Agreement or such as relate
to other Permitted Liens or Liens securing indebtedness to be paid from
the proceeds of the First Priority Notes on or immediately following
the date hereof; and
(k) Assuming appropriate financing statements have been filed
in the proper jurisdictions and appropriate filings have been made with
the United States Patent and Trademark Office and the United States
Copyright Office and any appropriate filing offices located in foreign
countries, this Agreement is effective to create a valid and continuing
first priority lien on and first priority security interest in the
Intellectual Property Collateral in favor of the Collateral Agent for
the benefit of the Guarantied Parties.
4. RIGHTS AND REMEDIES; APPLICATION OF MONIES.
(a) Upon the occurrence and during the continuation of an
Event of Default, the Collateral Agent may to the fullest extent
permitted by applicable law, without prior notice to
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Grantor, and without advertisement, hearing or process of law
in any kind, (i) exercise any and all rights as beneficial and legal
owner of the Intellectual Property Collateral, including, without
limitation, any and all consensual rights and powers with respect to
the Intellectual Property Collateral, and (ii) sell or assign or grant
a license or franchise to use, or cause to be sold or assigned or
granted a license or franchise to use, any or all of the Intellectual
Property Collateral, in each case, free of all rights and claims of
Grantor therein and thereto (but subject, in each case, to the rights
of others heretofore granted or created by Grantor in the ordinary
course of business). Upon the occurrence and during the continuation
of an Event of Default, the Collateral Agent may (i) sell or assign the
Intellectual Property Collateral, or any part thereof, for cash or
credit as the Collateral Agent may deem appropriate or (ii) grant
licenses or franchises or both to use the Intellectual Property
Collateral on such terms and conditions as the Collateral Agent shall
determine. In connection therewith, the Collateral Agent shall have
the right to impose such limitations and restrictions on the sale or
assignment of the Intellectual Property Collateral as the Collateral
Agent may deem to be necessary or appropriate to comply with any law,
rule or regulation (Federal, state, local or that of a foreign country)
having applicability to any such sale and requirements for any
necessary governmental approvals.
(b) It is expressly understood that, anything herein to the
contrary notwithstanding, the Grantor shall remain liable under each of
its Contracts (as such term is defined in any of the Security
Agreements) and each of its Licenses to observe and perform in all
material respects all the conditions and obligations to be observed by
it thereunder and the Grantor shall perform in all material respects
all of its duties and obligations thereunder, all in accordance with
and pursuant to the terms and provisions of each such Contract or
License. Neither the Collateral Agent nor any other Secured Party
shall have any obligation or liability under any Contract or License by
reason of or arising out of this Agreement or the granting to the
Collateral Agent of the security interest herein, nor shall the
Collateral Agent or any other Secured Party be required or obligated in
any manner to perform or fulfill any of the obligations of the Grantor
under or pursuant to any Contract or License, or to make any payment,
or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any
party under any Contract or License, or to present or file any claim,
or to take any action to collect or enforce any performance or the
payment of any amounts which may have been assigned to it or to which
it may be entitled at any time or times.
(c) Except as provided in this Section 4, Grantor hereby
expressly waives, to the fullest extent permitted by applicable law,
any and all notices, advertisements, hearings or
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process of law in connection with the exercise by the Collateral Agent
of any of its rights and remedies hereunder. The Collateral Agent
shall not be liable to any Person for any incorrect or improper payment
made pursuant to this Section 4.
(d) Notwithstanding any provisions of this Agreement to the
contrary, if, after giving effect to any sale, transfer, assignment or
other disposition of any or all of the Intellectual Property Collateral
pursuant hereto and after the application of the proceeds hereunder to
the Guarantied Obligations, any Guarantied Obligations remain unpaid or
unsatisfied, Grantor shall remain liable for the unpaid and unsatisfied
amount of such Guarantied Obligations.
(e) Any cash proceeds received by the Collateral Agent in
respect of any sale of, collection from, or other realization upon all
or part of the Intellectual Property Collateral shall be applied by the
Collateral Agent in the order of priorities set forth in the Collateral
Agency Agreement.
(f) Upon the declaration of an Event of Default, the Grantor
agrees that it will, at the request of the Collateral Agent, promptly
(and in any event within three business days) deliver to the Collateral
Agent or its designee an assignment of the Intellectual Property
Collateral, duly executed by the Grantor, in substantially the form of
SCHEDULE F annexed hereto. Upon the occurrence and during the
continuation of an Event of Default, the Grantor agrees that the
Collateral Agent may duly execute such an assignment as Grantor's true
and lawful attorney-in- fact pursuant to Section 15 hereof.
5. SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent with
respect to the Liens granted herein, and all obligations of the Grantor
pursuant hereto, shall be absolute and unconditional irrespective of:
(a) the lack of validity or enforceability of any provisions
of any of the Transaction Documents (as defined in the Subsidiary
Guaranty);
(b) any change in the time, manner or place of payment of, or
in any other term of, or increase in the amount of, all or any of the
Guarantied Obligations or any other amendment or waiver of any term of,
or any consent to any departure from any requirement of any of the
Transaction Documents;
(c) any exchange, release or non-perfection of any collateral
or security for the Guarantied Obligations other than the Intellectual
Property Collateral, or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the
Guarantied Obligations; or
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(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Grantor or a third-party
grantor.
6. TERMINATION OF SECURITY INTEREST. This Agreement, and the security
interests created or granted hereby or thereby, shall terminate when the later
of the following shall have occurred: (a) the date that the last Guarantied
Obligations shall have been fully paid and satisfied and (b) the date as of
which the last of the commitments and any other obligations that any of the
Guarantied Parties have under any of the Financing Agreements or related
documents and instruments have terminated, at which time the Collateral Agent
(without recourse upon, or any warranty whatsoever by, the Collateral Agent)
shall execute and deliver to Grantor, for filing in each office in which any
security agreement, notice or other filing, or any part thereof, shall have
been filed, an instrument releasing the Collateral Agent's security interest in
the Intellectual Property Collateral, and such other documents and instruments
to terminate any security interest of the Collateral Agent granted hereby as
Grantor may reasonably request, all without recourse upon, or warranty
whatsoever by, the Collateral Agent, except that the same shall be free and
clear of any claims, Liens or encumbrances created by or in respect of the
Collateral Agent, and at the cost and expense of Grantor.
7. USE AND PROTECTION OF INTELLECTUAL PROPERTY COLLATERAL.
(a) Notwithstanding anything to the contrary contained
herein, unless an Event of Default has occurred and is continuing, the
Grantor may continue to exploit, license, franchise, use, enjoy and
protect (whether in the United States of America or any foreign
jurisdiction) the Intellectual Property Collateral in the ordinary
course of business and the Collateral Agent shall from time to time
execute and deliver, upon written request of Grantor and at Grantor's
sole cost and expense, any and all instruments, certificates or other
documents, in the form so requested, necessary or appropriate in the
judgment of the Grantor to enable the Grantor to do so.
(b) In order to more fully protect the Intellectual Property
Collateral in respect of which security interests have been granted to
the Collateral Agent by the Grantor hereunder, the Grantor may
hereafter transfer to the Collateral Agent such additional rights,
privileges, marks and licenses as Grantor may in its discretion
determine to be necessary and appropriate to the continuing
exploitation, licensing, use, enjoyment and protection (whether in the
United States of America or any foreign jurisdiction) of the
Intellectual Property Collateral.
8. DUTIES OF GRANTOR. The Grantor shall have the duty to preserve and
maintain in a manner substantially consistent with its present practices all
rights in the Intellectual Property Collateral such that the failure to
preserve or maintain such
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Intellectual Property Collateral could singly or in the aggregate could
reasonably be expected to have a material and adverse effect on the
Intellectual Property Collateral or the business, assets or condition
(financial or otherwise) of Grantor. The Grantor shall take all action
reasonably requested by the Collateral Agent to register, record and/or perfect
the Collateral Agent's rights hereunder. Such duties shall include, but not be
limited to, the following:
(a) The Grantor shall take appropriate action at its expense
to halt the infringement of any of the Intellectual Property Collateral
if such infringement singly or in the aggregate could reasonably be
expected to have a material adverse effect on the value of the
Intellectual Property Collateral or the Grantor's ability to use the
Intellectual Property Collateral;
(b) The Grantor shall not amend, modify, terminate or waive
any provisions of any other contract to which the Grantor is a party in
any manner which singly or in the aggregate could reasonably be
expected to have a material adverse effect on the Intellectual Property
Collateral or on the Grantor's ability to use the Intellectual Property
Collateral.
9. THE COLLATERAL AGENT'S RIGHT TO XXX. Whenever an Event of Default
shall have occurred and be continuing, the Collateral Agent shall have the
right, but shall in no way be obligated, to bring suit in its own name to
protect or enforce any of the Intellectual Property Collateral, including,
without limitation, the Trademarks, Copyrights, Licenses, Patents and Trade
Secrets, and, if the Collateral Agent shall commence any such suit, Grantor
shall, at the request of the Collateral Agent, do any and all lawful acts and
execute any and all proper documents required by the Collateral Agent in aid of
such protection or enforcement.
10. MAINTENANCE OF RECORDS. The Grantor will keep and maintain at its
own cost and expense satisfactory and complete records of the Intellectual
Property Collateral, including, without limitation, a record of all payments
received and all credits granted with respect to the Intellectual Property
Collateral and all other dealings with the Intellectual Property Collateral.
At the Collateral Agent's request, the Grantor will xxxx its books and records
pertaining to the Intellectual Property Collateral to evidence this Agreement
and the security interests granted hereby. For the Collateral Agent's further
security, the Grantor agrees that the Collateral Agent shall have a special
property interest in all of the Grantor's books and records pertaining to the
Intellectual Property Collateral and, upon the occurrence and during the
continuation of any Event of Default, at the request of the Collateral Agent,
the Grantor shall deliver and turn over any such books and records to the
Collateral Agent or its representatives at any time on demand of the Collateral
Agent.
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11. RIGHT OF INSPECTION. Upon reasonable notice to the Grantor
(unless an Event of Default has occurred and is continuing, in which case no
notice is necessary), the Collateral Agent and any other Secured Party shall at
all times have full and free access during normal business hours to all the
books and records and correspondence of the Grantor, and the Collateral Agent,
any other Secured Party or their respective representatives may examine the
same, take abstracts therefrom and make photocopies thereof, and the Grantor
agrees to render to the Collateral Agent and each other Secured Party, at the
Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto.
12. NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of the
Collateral Agent to exercise, and no delay on the part of the Collateral Agent
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Collateral Agent preclude other or further exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies that may be available to the Collateral Agent
whether at law, in equity or otherwise.
13. NOTICES, ETC. Except as otherwise provided herein, all notices
and correspondences hereunder shall be in writing and delivered and deemed to
be effective in the manner and at the time set forth in Section 10 of the
Subsidiary Security Agreement.
14. EXPENSES OF COLLECTION. The Grantor hereby agrees to pay all
expenses of the Collateral Agent, including reasonable attorneys' fees,
incurred with respect to the enforcement of the respective rights of the
Collateral Agent hereunder, which expenses together with interest thereon as
aforesaid shall constitute Guarantied Obligations.
15. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Grantor hereby
irrevocably constitutes and appoints the Collateral Agent and any officer or
agent thereof, with full power of substitution, as Grantor's true and lawful
attorney-in-fact, for the purpose of, upon the occurrence and during the
continuance of any Event of Default, taking such action and executing such
agreements, instruments and other documents, in the name of Grantor or
otherwise, not inconsistent with the express provisions of this Agreement, as
the Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is an agency coupled with an interest and is
irrevocable until payment in full of all Guarantied Obligations; provided,
however, that, the Collateral Agent will forbear from exercising the power of
attorney or any of the rights granted to the Collateral Agent pursuant to this
Section 15 unless and until the Collateral Agent shall have requested that
Grantor take such action, and Grantor shall have failed to take such action
within five (5) days of its receipt of such request.
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16. GOVERNING LAW; BINDING EFFECT; ASSIGNMENT. This agreement shall
be governed by and construed in accordance with the internal law of the State
of Illinois, without regard to conflict of law principles. This Agreement
shall be binding upon Grantor and the Collateral Agent and their respective
successors and assigns and shall inure to the benefit of Grantor and the
Collateral Agent and its successors and assigns; provided, however, that
Grantor may not assign its rights or obligations hereunder or in connection
herewith or any interest herein (voluntarily, by operation of law or otherwise)
without the prior written consent of the Collateral Agent. Except as provided
in Section 2, no other Person (including, without limitation, any other
creditor of grantor) shall have any interest herein or any right or benefit
with respect hereto and this Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and each of their respective successors and assigns.
17. FURTHER INDEMNIFICATION. The Grantor agrees to pay, and save the
Collateral Agent and each other Secured Party harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
excise, sales or other similar taxes which may be payable with respect to any
of the Intellectual Property Collateral or in connection with any of the
transactions contemplated by this Agreement.
18. COLLATERAL AGENT PERFORM. If the Grantor fails to perform any
agreement contained herein, the Collateral Agent may, but shall not be
obligated to, itself perform, or cause performance of, such agreement, and the
expenses of the Collateral Agent incurred in connection therewith shall be
payable by the Grantor pursuant to Section 14 hereof or, if not so paid, shall
become Guarantied Obligations.
19. NEW INTELLECTUAL PROPERTY. In the event, prior to the time the
Guarantied Obligations have been paid in full and satisfied, the Grantor shall
(i) obtain any rights to or interests in any new inventions whether or not
patentable, patents, patent applications or any reissue, divisions,
continuations, renewals, extensions, or continuations-in-part of any patent or
improvement of any patent, trademarks, trade names, service marks, and
registrations or applications therefor, trade secrets or copyrights and
registrations or applications therefor, or licenses, or (ii) become entitled to
the benefit of any patent, copyright or trademark, or any registrations or
applications therefor, license, license renewal, trade secret or copyright
renewal, the provisions of this Agreement shall automatically apply thereto and
anything enumerated in clause (i) or (ii) of this Section 19 shall constitute
Intellectual Property Collateral; provided, however, that (i) notwithstanding
anything to the contrary contained in this Section 19, the Intellectual
Property Collateral shall not include any License if (and solely to the extent
and for so long as) such License expressly prohibits Grantor from granting any
Lien thereon and (ii) nothing hereunder constitutes or shall be deemed to
constitute the grant of a security interest in favor of the Collateral Agent on
behalf and for the benefit of the Guarantied
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Parties with respect to any Intellectual Property Collateral to the extent
prohibited by applicable law. The Grantor agrees, promptly following the
written request by the Collateral Agent, to amend this Agreement by amending
any or all of SCHEDULES A, B, C and D, as applicable, to include any such
future trademarks, trademark registrations, trademark applications, trade
names, service marks, copyrights and licenses which would be Intellectual
Property Collateral, and to immediately prepare, execute and record with all
appropriate foreign country, Federal, state and/or local offices and
authorities a Security Agreement for any such new Intellectual Property
Collateral, in form and substance similar to this Agreement, and to deliver to
the Collateral Agent reasonable proof of such recordation.
20. WAIVER OF JURY TRIAL. The Grantor hereby irrevocably waives to
the fullest extent permitted by law any and all right to trial by jury it may
have in respect of any litigation based on, arising out of, under or in
connection with, this Agreement.
21. AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement, nor consent to any departure by the Grantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent and Grantor, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
22. FURTHER DOCUMENTATION. The Grantor agrees that at any time and
from time to time, at the expense of the Grantor, the Grantor will promptly
execute and deliver such further instruments and documents, and take such
further action, as may be necessary or desirable, or as the Collateral Agent
may request, in order to perfect and protect any security interests granted or
purported to be granted hereby or to enable the Collateral Agent to exercise
and enforce the rights and remedies pursuant hereto with respect to any of the
Intellectual Property Collateral.
23. SEVERABILITY OF PROVISIONS. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
24. Section TITLES. The Section titles contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not part of this Agreement.
25. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the Grantor has caused this Agreement to be
executed and delivered by its duly authorized officer, on the date first above
written.
VISKASE CORPORATION, a
Pennsylvania corporation
By:_____________________________
Name:___________________________
Vice President
ACCEPTED AND ACKNOWLEDGED:
BT COMMERCIAL CORPORATION,
a Delaware corporation, as
Collateral Agent
By:________________________
Xxxxx Xxxxxxx
Senior Vice President
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SCHEDULE A
TRADEMARKS
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SCHEDULE B
COPYRIGHTS
None.
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SCHEDULE C
LICENSES
None.
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SCHEDULE D
PATENTS
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SCHEDULE E
LITIGATION
None, except:
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SCHEDULE F
ASSIGNMENT OF INTELLECTUAL PROPERTY COLLATERAL
AGREEMENT made this ______ day of ________ 19__, by VISKASE CORPORATION
(the "ASSIGNOR") and BT COMMERCIAL CORPORATION, a Delaware corporation, in its
capacity as collateral agent (the "COLLATERAL AGENT") under the Collateral
Agency Agreement (as defined in the Security Agreement).
W I T N E S S E T H:
WHEREAS, Assignor and the Collateral Agent are parties to the
Intellectual Property Security Agreement, dated as of June 20, 1995 (the
"SECURITY AGREEMENT"), which provides that upon the occurrence of certain
events specified therein, Assignor and the Collateral Agent shall execute and
deliver this Assignment; and
WHEREAS, the aforementioned events have occurred;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
1. INCORPORATION. This Assignment is made pursuant to and subject to
the terms of the Security Agreement, which is deemed incorporated herein by
this reference and shall constitute part of this Assignment as if fully set
forth herein.
2. ASSIGNMENT. Assignor hereby conveys, sells, assigns, transfers and
sets over to the Collateral Agent all of Assignor's entire right, title and
interest in and to the Intellectual Property Collateral (as defined in the
Security Agreement).
3. NOTICES. All notices hereunder to the parties hereto shall be made
in the manner and to the addresses specified in the Security Agreement.
4. FURTHER INSTRUMENTS. The parties agree to promptly execute and
deliver all further instruments necessary or desirable to carry out the
purposes of this Assignment.
5. HEADINGS. The headings in this Assignment are for purposes of
reference only and shall not in any way limit or otherwise affect the meaning
or interpretation of any of the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date first written above.
ASSIGNOR:
By: ___________________________
Title:
BT COMMERCIAL CORPORATION,
a Delaware corporation, as
Collateral Agent
By: ___________________________
Title:
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STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ____ day of __________, 19__, before me came _________________,
to me known to be an officer of _____________, the company described in and
which executed the above instrument, and duly acknowledged that he executed the
same.
______________________________
NOTARY PUBLIC
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STATE OF _________ )
) ss.:
COUNTY OF ________ )
On this ______ day of __________, 19__, before me came
_______________________, to me known to be an officer of BT Commercial
Corporation, as Collateral Agent, the company described in and which executed
the above instrument, and duly acknowledged that he executed the same.
_______________________________
NOTARY PUBLIC
