EXHIBIT 10.17
XXXXXXX DRAFT
04/20/98
--------
PATENT COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
---------------------------------------------------
PATENT COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT, dated as of April 22,
1998, between CRYSTALOID TECHNOLOGIES, INC., a Delaware corporation having its
principal place of business at 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000
(the "Assignor"), and BANKBOSTON, N.A., as agent (hereinafter, in such capacity,
the "Agent"), for itself and other lending institutions (hereinafter,
collectively, the "Banks") which are, or may in the future become, parties to
that certain Revolving Credit and Acquisition Loan Agreement, dated as of April
22, 1998 (as amended and in effect from time to time, the "Credit Agreement"),
among the Assignor, the Banks, the Agent and Mercantile Bank National
Association, as Co-Agent.
WHEREAS, it is a condition precedent to the Banks' making any loans or
otherwise extending credit to the Assignor under the Credit Agreement that the
Assignor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a patent agreement in substantially the form hereof;
WHEREAS, the Assignor has executed and delivered to the Agent, for the
benefit of the Banks and the Agent, a Security Agreement, dated as of April 22,
1998 (the "Security Agreement"), pursuant to which the Assignor has granted to
the Agent, for the benefit of the Banks and the Agent, a security interest in
all of the Assignor's personal property and fixture assets, including without
limitation the patents and patent applications listed on Schedule A attached
-------- -
hereto, all to secure the payment and performance of the Obligations (as defined
in the Credit Agreement); and
WHEREAS, this Patent Agreement is supplemental to the provisions contained
in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
(S)1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
-----------
herein shall have the respective meanings provided therefor in the Credit
Agreement and the Security Agreement. In addition, the following terms shall
have the meanings set forth in this (S)1 or elsewhere in this Patent Agreement
referred to below:
Patent Agreement. This Patent Collateral Assignment and Security
------ ---------
Agreement, as amended and in effect from time to time.
Patent Collateral. All of the Assignor's right, title and interest in and
------ ----------
to all of the Patents, the Patent License Rights, and all other Patent Rights,
and all additions, improvements, and accessions to, all substitutions for and
replacements of, and all
-2-
products and Proceeds (including insurance proceeds) of any and all of the
foregoing, and all books and records and technical information and data
describing or used in connection with any and all such rights, interests, assets
or property.
Patent License Rights. Any and all past, present or future rights and
------ ------- ------
interests of the Assignor pursuant to any and all past, present and future
licensing agreements in favor of the Assignor, or to which the Assignor is a
party, pertaining to any Patents, or Patent Rights, owned or used by third
parties in the past, present or future, including the right in the name of the
Assignor or the Agent to enforce, and xxx and recover for, any past, present or
future breach or violation of any such agreement.
Patent Rights. Any and all past, present or future rights in, to and
------ ------
associated with the Patents throughout the world, whether arising under federal
law, state law, common law, foreign law, or otherwise, including, but not
limited to, the following: all such rights arising out of or associated with
the Patents; the right (but not the obligation) to register claims under any
federal, state or foreign patent law or regulation; the right (but not the
obligation) to xxx or bring opposition or bring cancellation proceedings in the
name of the Assignor or the Agent for any and all past, present and future
infringements of or any other damages or injury to the Patents or the Patent
Rights, and the rights to damages or profits due or accrued arising out of or in
connection with any such past, present or future infringement, damage or injury;
and the Patent License Rights.
Patents. All patents and patent applications, whether United States or
-------
foreign, that are owned by the Assignor or in which the Assignor has any right,
title or interest, now or in the future, including but not limited to:
(a) the patents and patent applications listed on Schedule A attached
-------- -
hereto (as the same may be amended pursuant hereto from time to time);
(b) all letters patent of the United States or any other country, and
all applications for letters patent of the United States or any other
country;
(c) all re-issues, continuations, divisions, continuations-in-part,
renewals or extensions thereof;
(d) the inventions disclosed or claimed therein, including the right
to make, use, practice and/or sell (or license or otherwise transfer or
dispose of) the inventions disclosed or claimed therein; and
(e) the right (but not the obligation) to make and prosecute
applications for such Patents.
Proceeds. Any consideration received from the sale, exchange, license,
--------
lease or other disposition or transfer of any right, interest, asset or property
which constitutes all or any part of the Patent Collateral, any value received
as a consequence of the ownership, possession, use or practice of any Patent
Collateral, and any payment received from any insurer or other person or entity
as a result of the destruction or the
-3-
loss, theft or other involuntary conversion of whatever nature of any right,
interest, asset or property which constitutes all or any part of the Patent
Collateral.
PTO. The United States Patent and Trademark Office.
---
(S)2. GRANT OF SECURITY INTEREST. To secure the payment and performance in
--------------------------
full of all of the Obligations, the Assignor hereby grants, assigns, transfers
and conveys to the Agent, for the benefit of the Banks and the Agent, BY WAY OF
COLLATERAL SECURITY, all of the Patent Collateral. NEITHER THE AGENT NOR ANY OF
THE BANKS ASSUMES ANY LIABILITY ARISING IN ANY WAY BY REASON OF ITS HOLDING SUCH
COLLATERAL SECURITY.
(S)3. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Assignor represents,
-----------------------------------------
warrants and covenants that:
(a) to the best of the Assignor's knowledge, Schedule A attached
-------- -
hereto sets forth a true and complete list of all the patents, rights to
patents and patent applications now owned, licensed, controlled or used by
the Assignor;
(b) to the best of the Assignor's knowledge, the issued Patents
are subsisting and have not been adjudged invalid or unenforceable, in
whole or in part, and there is no litigation or proceeding pending
concerning the validity or enforceability of the issued Patents;
(c) to the best of the Assignor's knowledge, each of the issued
Patents is valid and enforceable;
(d) to the best of the Assignor's knowledge, there is no
infringement by others of the issued Patents or Patent Rights;
(e) to the best of the Assignor's knowledge, no claim has been
made that the use of any of the Patents does or may violate the rights of
any third person, and there is no infringement by the Assignor of the
patent rights of others;
(f) the Assignor is the sole and exclusive owner of the entire
and unencumbered right, title and interest in and to each of the Patents
(other than ownership and other rights reserved by third party owners with
respect to Patents which the Assignor is licensed to practice or use), free
and clear of any liens, charges, encumbrances and adverse claims, including
without limitation pledges, assignments, licenses, shop rights and
covenants by the Assignor not to xxx third persons, other than the security
agreement and mortgage created by the Security Agreement and this Patent
Agreement;
(g) the Assignor has the unqualified right to enter into this
Patent Agreement and perform its terms and will comply with the covenants
herein contained;
(h) this Patent Agreement, together with the Security Agreement,
will create in favor of the Agent, for the benefit of the Banks, a valid
and perfected
-4-
first priority security interest in the Patent Collateral upon making the
filings referred to in clause (i) of this (S)3; and
(i) except for the filing of financing statements under the
Uniform Commercial Code and the filing of this Patent Agreement with the
PTO, no authorization, approval or other action by, and no notice to or
filing with, any governmental or regulatory authority, agency or office is
required either (i) for the grant by the Assignor or the effectiveness of
the security interest and assignment granted hereby or for the execution,
delivery and performance of this Patent Agreement by the Assignor, or (ii)
for the perfection of or the exercise by the Agent of any of its rights and
remedies hereunder.
(S)4. NO TRANSFER OR INCONSISTENT AGREEMENTS. Without the Agent's prior
--------------------------------------
written consent, the Assignor will not (a) mortgage, pledge, assign, encumber,
grant a security interest in, transfer, license or alienate any of the Patent
Collateral, or (b) enter into any agreement (for example, a license agreement)
that is inconsistent with the Assignor's obligations under this Patent Agreement
or the Security Agreement.
(S)5. AFTER-ACQUIRED PATENTS, ETC.
---------------------------
(S)5.1. AFTER-ACQUIRED PATENTS. If, before the Obligations shall have been
----------------------
finally paid and satisfied in full, the Assignor shall obtain any right, title
or interest in or to any other or new patents, patent applications or patentable
inventions, or become entitled to the benefit of any patent application or
patent or any reissue, division, continuation, renewal, extension, or
continuation-in-part of any of the Patent Collateral or any improvement on any
of the Patent Collateral, the provisions of this Patent Agreement shall
automatically apply thereto and the Assignor shall promptly give to the Agent
notice thereof in writing and execute and deliver to the Agent such documents or
instruments as the Agent may reasonably request further to transfer title
thereto to the Agent, for the benefit of the Banks and the Agent.
(S)5.2. AMENDMENT TO SCHEDULE. The Assignor authorizes the Agent to modify
---------------------
this Patent Agreement, without the necessity of the Assignor's further approval
or signature, by amending Schedule A attached hereto to include any future or
----------
other Patents or Patent Rights under (S)(S)2 or 5 hereof.
(S)6. PATENT PROSECUTION.
------------------
(S)6.1. ASSIGNOR RESPONSIBLE. The Assignor shall assume full and complete
--------------------
responsibility for the prosecution, grant, enforcement or any other necessary or
desirable actions in connection with the Patent Collateral, and shall hold the
Agent and the Banks harmless from any and all costs, damages, liabilities and
expenses which may be incurred by the Agent or any of the Banks in connection
with the Agent's title to any of the Patent Collateral or any other action or
failure to act in connection with this Patent Agreement or the transactions
contemplated hereby. In respect of such responsibility, the Assignor shall
retain patent counsel reasonably acceptable to the Agent.
-5-
(S)6.2. ASSIGNOR'S DUTIES, ETC. The Assignor shall have the duty, through
----------------------
patent counsel reasonably acceptable to the Agent, to prosecute diligently any
patent applications of the Patents pending as of the date of this Patent
Agreement or thereafter, to make application for unpatented but reasonably
patentable inventions and to preserve and maintain all rights in the Patents,
including without limitation the payment when due of all maintenance fees and
other fees, taxes and other expenses which shall be incurred or which shall
accrue with respect to any of the Patents. Any expenses incurred in connection
with such applications and actions shall be borne by the Assignor. The Assignor
shall not abandon any filed patent application, or any pending patent
application or patent, without the consent of the Agent, which consent shall not
be unreasonably withheld. The Agent hereby appoints the Assignor as its agent
for all matters referred to in the foregoing provisions of this (S)6 and agrees
to execute any documents necessary to confirm such appointment. Upon the
occurrence and during the continuance of an Event of Default, the Agent may
terminate such agency by providing written notice of termination to the
Assignor.
(S)6.3. ASSIGNOR'S ENFORCEMENT RIGHTS. The Assignor shall have the right,
-----------------------------
with the consent of the Agent which shall not be unreasonably withheld, to bring
suit or other action in the Assignor's own name to enforce the Patents and the
Patent Rights. The Agent shall be required to join in such suit or action as may
be necessary to assure the Assignor's ability to bring and maintain any such
suit or action in any proper forum so long as the Agent is completely satisfied
that such joinder will not subject the Agent or any of the Banks to any risk of
liability. The Assignor shall promptly, upon demand, reimburse and indemnify the
Agent and the Banks for all damages, costs and expenses, including legal fees,
incurred by the Agent and any of the Banks pursuant to this (S)6.
(S)6.4. PROTECTION OF PATENTS, ETC. In general, the Assignor shall take
--------------------------
any and all such actions (including but not limited to institution and
maintenance of suits, proceedings or actions) as may be necessary or appropriate
to properly maintain, protect, preserve, care for and enforce the Patent
Collateral. The Assignor shall not take or fail to take any action, nor permit
any action to be taken or not taken by others under its control, which would
affect the validity, grant or enforcement of any of the Patent Collateral.
(S)6.5. NOTIFICATION BY ASSIGNOR. Promptly upon obtaining knowledge
------------------------
thereof, the Assignor will notify the Agent in writing of the institution of, or
any final adverse determination in, any proceeding in the PTO or any similar
office or agency of the United States or any foreign country, or any court,
regarding the validity of any of the Patents or the Assignor's rights, title or
interests in and to any of the Patent Collateral, and of any event which does or
reasonably could materially adversely affect the value of any of the Patent
Collateral, the ability of the Assignor or the Agent to dispose of any of the
Patent Collateral or the rights and remedies of the Agent and the Banks in
relation thereto (including but not limited to the levy of any legal process
against any of the Patent Collateral).
(S)7. LICENSE BACK TO ASSIGNOR. Unless and until there shall have
------------------------
occurred and be continuing an Event of Default and the Agent has notified the
Assignor that the license granted hereunder is terminated, the Agent hereby
grants to
-6-
the Assignor the sole and exclusive, nontransferable, royalty-free, worldwide
right and license under the Patents to make, have made for it, use, sell and
otherwise practice the inventions disclosed and claimed in the Patents for the
Assignor's own benefit and account and for none other; provided, however, that
the foregoing right and license shall be no greater in scope than, and limited
by, the rights assigned to the Agent, for the benefit of the Banks and the
Agent, by the Assignor hereby. The Assignor agrees not to sell, assign,
transfer, encumber or sublicense its interest in the license granted to the
Assignor in this (S)7 without the prior written consent of the Agent. Any such
sublicenses granted on or after the date hereof shall be terminable by the Agent
upon termination of the Assignor's license hereunder.
(S)8. REMEDIES. If any Event of Default shall have occurred and be
--------
continuing, then at the discretion of the Agent, or upon instructions by the
Majority Banks to the Agent, and upon notice by the Agent to the Assignor: (a)
the Assignor's license with respect to the Patents as set forth in (S)7 hereof
shall terminate; (b) the Assignor shall immediately cease and desist from the
practice, manufacture, use and sale of the inventions claimed, disclosed or
covered by the Patents; and (c) the Agent shall have, in addition to all other
rights and remedies given it by this Patent Agreement, the Credit Agreement, the
Security Agreement, and the other Loan Documents, those allowed by law and the
rights and remedies of a secured party under the Uniform Commercial Code as
enacted in the Commonwealth of Massachusetts and, without limiting the
generality of the foregoing, the Agent may immediately, without demand of
performance and without other notice (except as set forth next below) or demand
whatsoever to the Assignor, all of which are hereby expressly waived, and
without advertisement, sell or license at public or private sale or otherwise
realize upon the whole or from time to time any part of the Patent Collateral,
or any interest which the Assignor may have therein, and after deducting from
the proceeds of sale or other disposition of the Patent Collateral all expenses
(including all reasonable expenses for broker's fees and legal services), shall
apply the residue of such proceeds toward the payment of the Obligations as set
forth in the Security Agreement. Notice of any sale, license or other
disposition of any of the Patent Collateral shall be given to the Assignor at
least fifteen (15) days before the time that any intended public sale or other
disposition of such Patent Collateral is to be made or after which any private
sale or other disposition of such Patent Collateral may be made, which the
Assignor hereby agrees shall be reasonable notice of such public or private sale
or other disposition. At any such sale or other disposition, the Agent may, to
the extent permitted under applicable law, purchase or license the whole or any
part of the Patent Collateral or interests therein sold, licensed or otherwise
disposed of.
(S)9. COLLATERAL PROTECTION. If the Assignor shall fail to do any act that
---------------------
it has covenanted to do hereunder, or if any representation or warranty of the
Assignor shall be breached, the Agent, in its own name or that of the Assignor
(in the sole discretion of the Agent), may (but shall not be obligated to) do
such act or remedy such breach (or cause such act to be done or such breach to
be remedied), and the Assignor agrees promptly to reimburse the Agent for any
cost or expense incurred by the Agent in so doing.
-7-
(S)10. POWER OF ATTORNEY. If any Event of Default shall have occurred and
-----------------
be continuing, the Assignor does hereby make, constitute and appoint the Agent
(and any officer or agent of the Agent as the Agent may select in its exclusive
discretion) as the Assignor's true and lawful attorney-in-fact, with the power
to endorse the Assignor's name on all applications, documents, papers and
instruments necessary for the Agent to use any of the Patent Collateral, to
practice, make, use or sell the inventions disclosed or claimed in any of the
Patent Collateral, to grant or issue any exclusive or nonexclusive license of
any of the Patent Collateral to any third person, or necessary for the Agent to
assign, pledge, convey or otherwise transfer title in or dispose of the Patent
Collateral or any part thereof or interest therein to any third person, and, in
general, to execute and deliver any instruments or documents and do all other
acts which the Assignor is obligated to execute and do hereunder. The Assignor
hereby ratifies all that such attorney shall lawfully do or cause to be done by
virtue hereof, and releases the Agent from any claims, liabilities, causes of
action or demands arising out of or in connection with any action taken or
omitted to be taken by the Agent under this power of attorney (except for the
Agent's gross negligence or willful misconduct). This power of attorney shall be
irrevocable for the duration of this Patent Agreement.
(S)11. FURTHER ASSURANCES. The Assignor shall, at any time and from time
------------------
to time, and at its expense, make, execute, acknowledge and deliver, and file
and record as necessary or appropriate with governmental or regulatory
authorities, agencies or offices, such agreements, assignments, documents and
instruments, and do such other and further acts and things (including, without
limitation, obtaining consents of third parties), as the Agent may request or as
may be necessary or appropriate in order to implement and effect fully the
intentions, purposes and provisions of this Patent Agreement, or to assure and
confirm to the Agent the grant, perfection and priority of the Agent's security
interest in any of the Patent Collateral.
(S)12. TERMINATION. At such time as all of the Obligations have been
-----------
finally paid and satisfied in full, this Patent Agreement shall terminate and
the Agent shall, upon the written request and at the expense of the Assignor,
execute and deliver to the Assignor all deeds, assignments and other instruments
as may be necessary or proper to reassign and reconvey to and re-vest in the
Assignor the entire right, title and interest to the Patent Collateral
previously granted, assigned, transferred and conveyed to the Agent and the
Banks by the Assignor pursuant to this Patent Agreement, as fully as if this
Patent Agreement had not been made, subject to any disposition of all or any
part thereof which may have been made by the Agent and the Banks pursuant hereto
or the Security Agreement.
(S)13. COURSE OF DEALING. No course of dealing among the Assignor, the
-----------------
Banks and the Agent, nor any failure to exercise, nor any delay in exercising,
on the part of the Agent or any of the Banks, any right, power or privilege
hereunder or under the Security Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege hereunder
or thereunder preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
(S)14. EXPENSES. Any and all fees, costs and expenses, of whatever kind or
--------
nature, including the reasonable attorneys' fees and legal expenses incurred by
the
-8-
Agent in connection with the preparation of this Patent Agreement and all other
documents relating hereto, the consummation of the transactions contemplated
hereby or the enforcement hereof, the filing or recording of any documents
(including all taxes in connection therewith) in public offices, the payment or
discharge of any taxes, counsel fees, maintenance fees, encumbrances or
otherwise protecting, maintaining or preserving any of the Patent Collateral, or
in defending or prosecuting any actions or proceedings arising out of or related
to any of the Patent Collateral, shall be borne and paid by the Assignor.
(S)15. OVERDUE AMOUNTS. Until paid, all amounts due and payable by the
---------------
Assignor hereunder shall be a debt secured by the Patent Collateral and other
Collateral and shall bear, whether before or after judgment, interest at the
rate of interest for overdue principal set forth in the Credit Agreement.
(S)16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION. NOTWITHSTANDING
-------------------------------------------
ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE AGENT NOR ANY BANK
ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY CLAIM OR CLAIMS
REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR RIGHTS OR
PURPORTED RIGHTS ARISING FROM, ANY OF THE PATENT COLLATERAL OR ANY PRACTICE,
USE, LICENSE OR SUBLICENSE THEREOF, OR ANY PRACTICE, MANUFACTURE, USE OR SALE OF
ANY OF THE INVENTIONS DISCLOSED OR CLAIMED THEREIN, WHETHER ARISING OUT OF ANY
PAST, CURRENT OR FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL
OF SUCH LIABILITIES SHALL BE EXCLUSIVELY BORNE BY THE ASSIGNOR, AND THE ASSIGNOR
SHALL INDEMNIFY THE AGENT AND THE BANKS FOR ANY AND ALL COSTS, EXPENSES, DAMAGES
AND CLAIMS, INCLUDING LEGAL FEES, INCURRED BY THE AGENT OR ANY BANK WITH RESPECT
TO SUCH LIABILITIES.
(S)17. RIGHTS AND REMEDIES CUMULATIVE. All of the Agent's and the Banks'
------------------------------
rights and remedies with respect to the Patent Collateral, whether established
hereby or by the Security Agreement or by any other agreements or by law, shall
be cumulative and may be exercised singularly or concurrently. This Patent
Agreement is supplemental to the Security Agreement, and nothing contained
herein shall in any way derogate from any of the rights or remedies of the Agent
and the Banks contained therein. Nothing contained in this Patent Agreement
shall be deemed to extend the time of attachment or perfection of or otherwise
impair the security interest in any of the Patent Collateral granted to the
Agent for the benefit of the Banks and the Agent under the Security Agreement.
(S)18. NOTICES. All notices and other communications made or required to
-------
be given pursuant to this Patent Agreement shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first-class
mail, postage prepaid, or sent by telegraph, telecopy or telex and confirmed by
delivery via courier or postal service, addressed as follows: if to the
Assignor, at the address set forth beneath its signature hereto, and if to the
Agent, at the address for notices to the Agent set forth in (S)20 of the Credit
Agreement, or at such address as either party may designate in
-9-
writing to the other. Any such notice or demand shall be deemed to have been
duly given or made and to have become effective (a) if delivered by hand to a
responsible officer of the party to which it is directed, at the time of the
receipt thereof by such officer, (b) if sent by registered or certified first-
class mail, postage prepaid, two (2) Business Days after the posting thereof,
and (c) if sent by telegraph, telecopy, or telex, at the time of the dispatch
thereof, if in normal business hours in the country of receipt, or otherwise at
the opening of business on the following Business Day.
(S)19. AMENDMENT AND WAIVER. This Patent Agreement is subject to
--------------------
modification only by a writing signed by the Agent (with the consent of the
Banks or Majority Banks as provided in the Credit Agreement) and the Assignor,
except as provided in (S)5.2 hereof. The Agent shall not be deemed to have
waived any right hereunder unless such waiver shall be in writing and signed by
the Agent and the Banks or Majority Banks as provided in the Credit Agreement. A
waiver on any one occasion shall not be construed as a bar to or waiver of any
right on any future occasion.
(S)20. GOVERNING LAW; CONSENT TO JURISDICTION. THIS PATENT AGREEMENT IS
--------------------------------------
INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The
Assignor agrees that any suit for the enforcement of this Patent Agreement may
be brought in the courts of The Commonwealth of Massachusetts or any federal
court sitting therein and consents to the non-exclusive jurisdiction of such
court and to service of process in any such suit being made upon the Assignor by
mail at the address specified in (S)18 hereof. The Assignor hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
(S)21. WAIVER OF JURY TRIAL. THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL
--------------------
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS PATENT AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the
Assignor waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Assignor (a) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers, and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this (S)21.
(S)22. MISCELLANEOUS. The headings of each section of this Patent
-------------
Agreement are for convenience only and shall not define or limit the provisions
thereof. This Patent Agreement and all rights and obligations hereunder shall be
binding upon the Assignor and its respective successors and assigns, and shall
inure to the benefit of the Agent, the Banks and their respective successors and
assigns. In the event of any
-10-
irreconcilable conflict between the provisions of this Patent Agreement and the
Credit Agreement, or between this Patent Agreement and the Security Agreement,
the provisions of the Credit Agreement or the Security Agreement, as the case
may be, shall control. If any term of this Patent Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
in no way be affected thereby, and this Patent Agreement shall be construed and
be enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Assignor acknowledges receipt of a copy of this Patent
Agreement.
IN WITNESS WHEREOF, this Patent Collateral Assignment and Security
Agreement has been executed as of the day and year first above written.
CRYSTALOID TECHNOLOGIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President & CFO
Address: _____________________
_____________________
BANKBOSTON, N.A., as Agent
By: /s/ Xxxxx van der Xxxxx
-----------------------------------
Xxxxx van der Xxxxx, Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 22nd day of April, 1998, personally appeared Xxxxxxxxxxx X.
Xxxxx to me known personally, and who, being by me duly sworn, deposes and says
that (s)he is the Vice President & CFO of Crystaloid Technologies, Inc., and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors, and said Vice President & CFO acknowledged
said instrument to be the free act and deed of said corporation.
/s/ Xxxx X. Xxxxxxxx
-------------------------------
Notary Public
My commission expires: August 3, 1999
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF NEW YORK)
)ss.
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 21 day of April, 1998, personally appeared Xxxxx van der
Xxxxx to me known personally, and who, being by me duly sworn, deposes and says
that (s)he is a Vice President of BankBoston, N.A. (the "Agent"), and that
said instrument was signed and sealed on behalf of said Agent by authority of
its Board of Directors, and said Vice President acknowledged said instrument
to be the free act and deed of said Agent.
/s/ X.X. Xxxxxxxx-Xxxxxx
------------------------------------
Notary Public
My commission expires: February 21, 1999
SCHEDULE A
----------
ISSUED AND PENDING PATENTS
--------------------------
PATENTS ISSUED BY U.S. PATENT
-----------------------------
AND TRADEMARK OFFICE
--------------------
Patent No. Issue Date Inventor(s) Title
--------- ---------- ----------- -----
PATENTS PENDING WITH U.S. PATENT
--------------------------------
AND TRADEMARK OFFICE
--------------------
